[Cite as Kranbuhl-Mckee v. Durrani, 2016-Ohio-5286.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          BUTLER COUNTY




LAURA KRANBUHL-MCKEE,                                  :
                                                           CASE NO. CA2015-11-191
        Plaintiff-Appellant,                           :
                                                                OPINION
                                                       :         8/8/2016
   - vs -
                                                       :

ABUBAKAR ATIQ DURRANI, M.D., et al.,                   :

        Defendants-Appellees.                          :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2013-02-0667



Matthew J. Hammer, 5247 Madison Pike, Independence, Kentucky 41051, for plaintiff-
appellant

Lindhorst & Dreidame Co., L.P.A., James F. Brockman and Michael F. Lyon, 312 Walnut
Street, Suite 3100, Cincinnati, Ohio 45202, for defendants-appellees, Abubakar Atiq Durrani,
M.D. and Center for Advanced Spine Technologies, Inc.

Frost Brown Todd, LLC, Douglas R. Dennis, Walter E. Haggerty, 3300 Great American
Tower, 301 East Fourth Street, Cincinnati, Ohio 45202, for defendants-appellees, West
Chester Hospital LLC & UC Health, Inc.



        S. POWELL, J.

        {¶1}    Plaintiff-appellant, Laura Kranbuhl-McKee, appeals from the decision of the

Butler County Court of Common Pleas denying her motion for a new trial in a medical

malpractice action against defendants-appellees, Abubakar Atiq Durrani, M.D., his private
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practice, the Center for Advanced Spine Technologies, Inc. ("CAST"), as well as West

Chester Hospital, LLC ("WCH") and UC Health, Inc. For the reasons outlined below, we

affirm.

          {¶2}   On February 28, 2013, Kranbuhl-McKee filed a medical malpractice action

against Dr. Durrani, CAST, WCH, and UC Health resulting from the medical treatment she

received between October 2010 and March 2012. The complaint set forth several causes of

action including claims of negligence, battery, fraud, and intentional infliction of emotional

distress. The matter ultimately proceeded to a jury trial in July 2015. It is undisputed that Dr.

Durrani was not present at trial having previously left the country.

          {¶3}   Prior to trial, the trial court issued an order on one of Kranbuhl-McKee's various

motions in limine, wherein it determined that her trial counsel could argue during closing

argument that Dr. Durrani's leaving the country was evidence of his "consciousness of

professional negligence." The trial court then stated that its decision on this issue, as well as

a variety of other pre-trial issues, was "final and not the starting point for further argument."

The trial court also determined that it would give the following introductory statement as it

concerns Dr. Durrani's absence from the trial:

                 Dr. Durrani is not required to attend this trial and he has chosen
                 not to attend and has left the country. His failure to attend is not
                 because of a professional conflict. The fact that Dr. Durrani will
                 not participate does not mean that he committed malpractice in
                 his treatment of [Kranbuhl-McKee]. The burden of proof is upon
                 [Kranbuhl-McKee] to prove malpractice, not upon Dr. Durrani to
                 prove he didn't commit malpractice.

          {¶4}   Although the trial court had previously indicated its decision on the matter was

final, WCH and UC Health filed a motion asking the trial court to reconsider its decision as to

whether Kranbuhl-McKee's trial counsel would be allowed to present an argument regarding

Dr. Durrani's purported "consciousness of professional negligence" during closing argument.

After hearing arguments from all parties, the trial court agreed to reconsider its prior decision

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and determined that allowing Kranbuhl-McKee's trial counsel to present such an argument

during closing argument would be improper for it would be encouraging the jury to engage in

speculation. Specifically, the trial court stated, in pertinent part:

              You're asking [the jury] to speculate and isolate the fact that [Dr.
              Durrani] left the country as it relates to this – his behavior in this
              case. And that's asking the jury to speculate.

              And that's exactly what * * * courts are trying to avoid. * * * But
              the way I see it, it's a question of motivation.

              And to get at the motivation, allow it to be argued, is allowing the
              * * * jury to guess as to why [Dr. Durrani] left the country; and
              then what's worse, to hold it against him, rather than concentrate
              on the facts of this case.

              Did [Dr. Durrani], in the course of his treatment of [Kranbuhl-
              McKee], commit malpractice?

              Did he, in the course of his conversations with her * * * and the
              documents he had her sign, did he commit fraud?

              In the course of his * * * surgical presentation, did he * * * lure
              her into * * * having surgery when the rationale for it and the
              reasons for it were made up?

              That's where the rubber meets the road in this case. And * * * as
              a trial judge who has a degree of discretion, I'm going to keep
              this trial * * * in focus.

              ***

              I'm trying to keep this trial focused. That's my job. That's what
              I'm going to do. Okay?

              So this decision, I regret, I have to tell you. I made this pretrial
              order because I fully intended to be governed by it, but things
              change as evidence develops.

              ***

              So you can tell the jury exactly what I said in the pretrial order,
              and nothing more.

Following deliberations, the jury returned a verdict in favor of Dr. Durrani and CAST, with the

trial court awarding a directed verdict to WCH and UC Health.


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       {¶5}   After the jury reached its verdict, Kranbuhl-McKee filed a motion for a new trial.

As part of that motion, Kranbuhl-McKee argued that she was entitled to a new trial since the

trial court improperly "changed a material ruling" by prohibiting her trial counsel from arguing

in closing that Dr. Durrani's leaving the country was evidence of his "consciousness of

professional liability." The trial court subsequently denied the motion finding it had "simply

changed its mind" in order to avoid having the jury speculate as to the reason why Dr.

Durrani may have left the country. Kranbuhl-McKee now appeals from the trial court's

decision, raising two assignments of error for review.

       {¶6}   Assignment of Error No. 1:

       {¶7}   THE TRIAL COURT ERRED BY ARBITRARILY, UNREASONABLY, AND

UNCONSCIONABLY CHANGING ITS MIND RESULTING IN AN INJUSTICE TO

APPELLANT.

       {¶8}   Assignment of Error No. 2:

       {¶9}   APPELLANT WAS PREJUDICED AND THE TRIAL COURT'S ABUSE OF

DISCRETION EFFECTED AN INJUSTICE TO HER.

       {¶10} In her two assignments of error, Kranbuhl-McKee argues the trial court erred

and abused its discretion by denying her motion for a new trial. We disagree.

       {¶11} Civ.R. 59(A) sets forth nine separate grounds under which a party may seek a

new trial. A N Bros. Corp. v. Total Quality Logistics, L.L.C., 12th Dist. Clermont No. CA2015-

02-021, 2016-Ohio-549, ¶ 57. Pursuant to Civ.R. 59(A)(1), this includes an "[i]rregularity in

the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or

magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a

fair trial[.]" The rule also permits a trial court to grant a new trial for "good cause shown."

Rathert v. Kempker, 12th Dist. Clermont No. CA2010-06-043, 2011-Ohio-1873, ¶ 67. "The

decision to grant or deny a motion for a new trial pursuant to Civ.R. 59 is reviewed for an

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abuse of discretion." Pettit v. Pettit, 12th Dist. Fayette No. CA2011-08-018, 2012-Ohio-1801,

¶ 10, citing Sharp v. Norfolk & W. Ry. Co., 72 Ohio St.3d 307, 312 (1995). An abuse of

discretion in ruling on a motion for a new trial connotes an unreasonable, arbitrary, or

unconscionable attitude on the part of the trial court. Domestic Linen Supply & Laundry Co.

v. Kenwood Dealer Group, Inc., 109 Ohio App.3d 312, 325 (12th Dist.1996).

       {¶12} Kranbuhl-McKee argues the trial court erred and abused its discretion by

denying her motion for a new trial since the trial court improperly "changed its mind" and

prohibited her trial counsel from arguing during closing that Dr. Durrani's leaving the country

was evidence of his "consciousness of professional liability" when the court previously

determined that counsel could make the argument. However, although originally stating that

its decision on that issue was "final," such a decision was clearly an interlocutory order on a

motion in limine.

       {¶13} "Requests for reconsideration of interlocutory orders in the trial court 'may be

entertained at the discretion of the court.'" Helman v. EPL Prolong, Inc., 139 Ohio App.3d

231, 241 (7th Dist.2000), quoting LaBarbera v. Batsch, 117 Ohio App. 273, 276 (8th

Dist.1962). That is because "[a] trial court always has the inherent power to correct prior

errors or reconsider an interlocutory order entered in the same case." Murphy v. Murphy, 1st

Dist. Hamilton No. C-130229, 2014-Ohio-656, ¶ 20. We find no abuse of discretion in the

trial court's decision to reconsider its original ruling in this matter for "it has long been

established that a trial court has wide discretion in control of its own docket and regulating

the proceedings before it." Fifth Third Bank v. Meadowpark Plaza, L.L.C., 12th Dist. Clinton

No. CA2015-07-012, 2016-Ohio-753, ¶ 34.

       {¶14} The question then becomes whether the trial court erred and abused its

discretion by prohibiting Kranbuhl-McKee's trial counsel from presenting this argument to the

jury during closing argument, something which she claims unfairly prejudiced her case.

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       {¶15} Due to the trial court's earlier decision in regards to one of Kranbuhl-McKee's

various motions in limine, no evidence was ever presented as to why Dr. Durrani left the

country, nor can we find any evidence in the record that would indicate Dr. Durrani left the

country because Kranbuhl-McKee filed a lawsuit against him. Kranbuhl-McKee admitted as

much to the trial court when her trial counsel specifically acknowledged that it was pure

speculation as to why Dr. Durrani may have left the country. Although it should generally go

without saying, the purpose of closing argument is not to encourage the jury to engage in

unnecessary speculation as to some tertiary issue, but rather "to summarize the evidence at

trial." John F. Bushelman Const. v. Glacid Group, Inc., 1st Dist. Hamilton Nos. C-950412

and C-950438, 1996 WL 348002, *3 (June 26, 1996). The evidence presented at trial dealt

with the issue of whether Dr. Durrani had committed medical malpractice, a question which

the jury clearly determined in the negative.

       {¶16} We are also unpersuaded by Kranbuhl-McKee's assertion that the trial court's

decision unfairly prejudiced her case. Contrary to Kranbuhl-McKee's claim, because the trial

court's decision dealt exclusively with what arguments her trial counsel could present during

closing argument, nothing about the trial court's decision impacted what evidence she could

present to the jury during her case-in-chief. Moreover, just as the trial court found, "[n]ot

permitting what counsel had planned is far different from allowing [the defendants] to produce

evidence that [she] had no chance to confront." The fact that her trial counsel had to re-write

his closing argument to remove certain portions of his prepared statements also falls well-

short of what could be considered unfairly prejudicial. Therefore, because we find no error or

abuse of discretion in the trial court's decision, Kranbuhl-McKee's two assignments of error

are without merit and overruled.

       {¶17} Judgment affirmed.


       M. POWELL, P.J., and PIPER, J., concur.
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