United States District Court, S.D. Ohio, Western Division
OPINION & ORDER
MICHAEL R. BARRETT, JUDGE.
matter came for consideration of three motions filed by
Defendants Abubakar Atiq Durrani, M.D. and Center for
Advanced Spine Technology: Renewed Motion for Judgment as a
Matter of Law (Doc. 780); Motion for New Trial (Doc. 781);
and Motion to Alter Judgment or Amend the Judgments (Doc.
782). These motions have been fully briefed. (Docs. 812, 813,
are the former patients of Defendant Dr. Abubakar Atiq
Durrani. Six of the plaintiffs proceeded to trial on their
claims for negligence; battery; lack of informed consent;
intentional infliction of emotional distress; and fraud. On
October 12, 2018, the jury returned a verdict in favor of
Plaintiffs Rebekah Brady, Robert Houghton, Michael Sander,
David Shempert, Richard Allen Stanfield. (Docs. 758, 759,
761, 762, 763). The jury did not find in favor of Plaintiff
Hiram McCauley. (Doc. 760).
30, 2019, the Court held oral argument on the above motions
and ruled from the bench on the majority of the issues. (Doc.
856). The Court will now reiterate those rulings and rule
upon the remaining issues.
Standard of Review
Renewed Motion for Judgment as a Matter of
Rule of Civil Procedure 50(a) allows a party to bring a
motion for judgment as a matter of law “at any time
before the case is submitted to the jury.” Fed.R.Civ.P.
50(a)(2). If the district court denies the motion and the
case is submitted to the jury, “the movant may file a
renewed motion for judgment as a matter of law” within
ten days after the entry of judgment on the verdict.
Fed.R.Civ.P. 50(b). “Judgment as a matter of law may
only be granted if, when viewing the evidence in a light most
favorable to the non-moving party, giving that party the
benefit of all reasonable inferences, there is no genuine
issue of material fact for the jury, and reasonable minds
could come to but one conclusion in favor of the moving
party.” Barnes v. Cincinnati, 401 F.3d 729,
736 (6th Cir. 2005).
Motion for New Trial
Rule of Civil Procedure 59(a) provides that a district court
may grant a new trial “for any reason for which a new
trial has heretofore been granted in an action at law in
federal court.” “Generally courts have
interpreted this language to mean that a new trial is
warranted when a jury has reached a ‘seriously
erroneous result' as evidenced by: (1) the verdict being
against the weight of the evidence; (2) the damages being
excessive; or (3) the trial being unfair to the moving party
in some fashion, i.e., the proceedings being
influenced by prejudice or bias.” Holmes v. City of
Massilon, Ohio, 78 F.3d. 1041, 1045-46 (6th Cir. 1996)
(citing Montgomery Ward & Co. v. Duncan, 311
U.S. 243, 251 (1940)).
Motion to Alter Judgments or Amend the
alternative, Defendants ask the Court to alter or amend
judgment pursuant to Federal Rule of Civil Procedure 59(e).
“A Rule 59(e) motion must present newly discovered
evidence or clearly establish a manifest error of law.”
D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016);
see also Roger Miller Music, Inc. v. Sony/ATV Publ'g,
LLC, 477 F.3d 383, 395 (6th Cir. 2007). “A court
may grant a Rule 59(e) motion to alter or amend if there is:
(1) a clear error of law; (2) newly discovered evidence; (3)
an intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005).
set forth the applicable standards, the Court now turns to
each of the arguments made in Defendants' motions.
Durrani's indictment, flight and speedy trial
argue that Durrani was denied a fair trial because the Court
informed the jury of Durrani's criminal indictment in
this Court and his subsequent flight to Pakistan. Defendants
also argue that the Court erred in taking judicial notice the
waivers of speedy trial signed by Durrani.
first day of trial during voir dire, the Court informed the
Dr. Durrani, who is the individual defendant in this case, he
was indicted on August 7th, 2013, for various counts alleging
a scheme to defraud by performing unnecessary surgeries and
Sometime after the case was filed, Dr. Durrani fled the
jurisdiction to Pakistan. He will not be physically present
during the trial. However, when defendants are charged with
criminal offenses in this country, they are presumed innocent
unless and until a jury unanimously decides otherwise.
At the conclusion of this case, I will be presenting the
instructions of law on the various elements, that is the
factors that make up the case, as well as instructions on
evidentiary considerations. As I said before, often this
cannot be determined until the evidence is complete. It is
important and, in fact, you will take an oath to this effect,
that you will follow the instructions of law presented to you
during the case. At that time there will be an instruction as
to whether and to what extent, if at all, you could consider
Dr. Durrani's absence. Okay?
(Doc. 698, PAGEID# 28025). The Court gave this initial
instruction regarding Durrani's absence out of an
abundance of caution. Counsel for Durrani had complained of
publicity about his client and the Court was concerned that
the jury would inadvertently discover information about
Durrani's criminal charges during trial. Later, at the
close of the evidence, the Court instructed the jury:
Dr. Durrani was indicted August 7, 2013 for various counts.
The Indictment alleges a scheme to defraud by performing
unnecessary surgeries and healthcare fraud. Sometime after
the filing of the Indictment, he fled the jurisdiction to
Pakistan. As you know Dr. Durrani, was not physically present
in court. You saw his video testimony. The Indictment is not
considered evidence, it is the charging document that
notifies the defendant of the allegations against him. Dr.
Durrani is presumed innocent unless and until a criminal jury
would find him unanimously guilty. At the outset of the case,
I explained I would give further instructions at the
appropriate time. I instruct you that you may not consider
Dr. Durrani's act of flight, taken alone, to determine
his potential guilt in the criminal matter or his liability
in this action because, on the one hand, this conduct may
indicate that he thought he was guilty of criminal charges
but on the other hand, sometimes an innocent person may flee
for some other reason. The defendant has no obligation to
prove he had an innocent reason for his flight conduct.
Further, defendants in criminal cases have an absolute right
not to testify. You have all probably heard “I'm
taking the Fifth” and that cannot be considered by a
jury in their determination. However, once the defendant
waives or gives up that right by choosing to testify, and
offers an explanation, then that defendant cannot selectively
choose what ...