Background
Dr. Abubakar Atiq Durrani, a spine surgeon at the Center for Advanced Spine Technologies, is the defendant in hundreds of pending cases in Hamilton County alleging that he performed medically unnecessary spinal surgeries. Three of those plaintiffs—Carol Wilson, Michael Crail, and David Smith—each sued Durrani in 2017 for negligence, battery, fraudulent misrepresentation, and lack of informed consent. All three alleged that Durrani misread or fabricated their radiological findings to justify invasive procedures they did not need, leaving them with permanent pain, nerve damage, and diminished quality of life. Wilson underwent four surgeries between 2010 and 2012; Crail had two surgeries in 2011 and 2012; Smith had a single lumbar procedure in 2012 that led to opioid dependency.
In 2020, plaintiffs’ counsel moved for group trials across the Durrani docket, citing judicial efficiency and perceived factual similarities. The trial court granted the motion in principle but capped groups at two or three plaintiffs. Wilson, Crail, and Smith were, notably, absent from the plaintiffs’ own proposed grouping lists. Nonetheless, by January 2023 the three were scheduled for a joint trial, which proceeded over ten days beginning October 30, 2023. Durrani objected before trial, arguing the court had never identified the common question of law or fact required by Ohio Civ.R. 42(A). The trial court overruled the objection, citing shared expert witnesses and docket-management concerns.
The jury returned verdicts on November 14, 2023. Wilson prevailed on all four claims and was awarded $801,085.41 (later reduced to $671,085.41 after a statutory cap on noneconomic damages). Crail won only on negligence—the jury unanimously rejected his battery, informed-consent, and fraud claims—and recovered $934,703.10 (reduced to $724,703.10). Smith likewise prevailed only on negligence and was awarded $1,628,756.70 (reduced to $643,756.70). The jury declined to award punitive damages in all three cases, though the parties later stipulated to $75,000 in attorney fees for each plaintiff. Durrani moved for judgment notwithstanding the verdict or a new trial, arguing improper consolidation. The trial court denied the motion, and Durrani appealed.
The Court’s Holding
The First District reversed all three judgments and remanded for separate individual trials. Addressing Durrani’s first assignment of error—improper consolidation—the court found it dispositive and declared the remaining nine assignments of error moot. The court held that Ohio Civ.R. 42(A) imposes a two-step inquiry: a trial court must first determine whether the actions share a common question of law or fact, and only if that threshold is met may it proceed to weigh the practical considerations of consolidation. The trial court here skipped the first step, basing its consolidation decision on shared expert witnesses and the pressing size of the Durrani docket—factors relevant only to step two.
Drawing on the Ohio Supreme Court’s decision in Director of Highways v. Kleines, 38 Ohio St.2d 317 (1974), and class-action precedent under Civ.R. 23(A), the court articulated what a “common question of law” requires: (1) it must be resolvable at once for all parties rather than piecemeal; (2) it must go to the defendant’s liability; and (3) a single answer to the question must resolve the issue uniformly across the consolidated cases. The divergent verdicts in this very trial exposed the absence of any such common question—the jury unanimously rejected Crail’s and Smith’s non-negligence claims while finding for Wilson on all four, demonstrating that each plaintiff’s case turned on distinct individual facts that could not be answered in common.
The court expressly acknowledged that this decision tests the limits of—and refines—its own prior Durrani consolidation precedents, such as Jones v. Durrani, 2024-Ohio-1776, and Puckett-Morrissette v. Durrani, 2026-Ohio-1444, which had permitted joinder where plaintiffs received the same or similar surgeries or relied on shared legal theories. Because Wilson, Crail, and Smith received surgeries at different spinal levels for different diagnoses, their cases did not satisfy even that more permissive prior standard, let alone the stricter common-question framework the court now articulates.
Key Takeaways
- Ohio Civ.R. 42(A) consolidation is a two-step analysis: courts must identify a specific common question of law or fact before weighing efficiency or practicality — docket congestion alone cannot justify joinder.
- A “common question of law” under Civ.R. 42(A) requires a liability issue whose answer would be uniform across all consolidated cases; differing jury verdicts among the joined plaintiffs are strong evidence that no such common question existed.
- The First District recalibrated its own Durrani mass-tort consolidation precedent, holding that shared expert witnesses and a common defendant are insufficient to satisfy the commonality threshold when plaintiffs received materially different surgeries.
- All three jury verdicts totaling more than $3.3 million (post-cap) are vacated; each plaintiff must retry their claims individually in Hamilton County Common Pleas Court.
- The statutory noneconomic-damages cap under R.C. 2323.43(A)(2) applied to reduce each plaintiff’s award before appeal, capping individual noneconomic recoveries at $350,000 or $500,000 depending on the nature of the injury found by the jury.
Why It Matters
This decision has significant practical consequences for the approximately 400 remaining Durrani cases still pending in Hamilton County. By tightening the standard for consolidation, the First District effectively slows the mass-tort resolution strategy plaintiffs’ counsel had pursued since 2020. Trial courts presiding over the remaining Durrani docket must now identify a discrete, answerable common question before grouping cases—they cannot rely on a shared defendant, overlapping witnesses, or the general narrative that Durrani performed unnecessary surgeries. The decision may force many cases into individual trials, extending the timeline for resolution by years.
Beyond the Durrani litigation, the opinion fills a significant gap in Ohio civil procedure law. By synthesizing Kleines and Civ.R. 23(A) class-action doctrine into a concrete two-step framework, the First District has provided the clearest statewide guidance to date on what Ohio’s consolidation rule actually demands at the threshold. Defense counsel in mass-tort and multi-plaintiff litigation now have a stronger basis to challenge consolidation orders that rest on shared witnesses or broad factual overlap rather than a specifically identified, uniformly resolvable question of law or fact.