CINCINNATI - When jurors started deliberating in the first malpractice trial against Dr. Atiq Durrani, some might have still heard the admonishment from Durrani’s defense attorney ringing in their ears.
Push came to shove in final arguments Monday when soft-spoken attorney Michael Lyon appeared to switch tactics from defending the Mason spine doctor to attacking the accuser’s attorney, flamboyant Eric Deters.
“Bombast after bombast after bombast. Don’t give him a verdict based on bombast,” Lyon said to the jury, raising his voice for the first time.
He softened it again as he turned to the accuser, Crystal Pierce, a 33-year-old mother of two, who sat motionless through the six-day trial. She testified last week that she was unable to turn her head to much degree five years after surgery by Durrani.
“Crystal Pierce is a very nice, very good person. There’s no question about that. But if you give him a verdict,” Lyon said, pointing emphatically at Deters sitting next to Pierce, “that’s wrong.”
Before the closing arguments, Deters had called Pierce back to the witness stand Monday morning and asked her to turn her head as far as she could – left, then right.
After Lyon said her neck pain could have been caused by arthritis, as his expert witness had testified, he appeared to refer to that demonstration when he said to the jury:
“Their case completely lacks expert testimony. He has appealed to your sympathy. It has been one sideshow after another sideshow in a case of sideshows.”
The truth is there couldn’t be two attorneys with more contrasting appearances and personalities than Lyon and Deters.
Lyon, looking distinguished and grandfatherly with his neatly styled gray hair, held his glasses in his right hand and waved his arms like a symphony conductor to make a point.
The bald-headed Deters, who calls himself “The Bulldog,” barked loudly in the courtroom. When Deters waves his arms, he looks like a wrestler on WWE Live.
At one point in Deters’ close, he drew an admonishment from Visiting Judge Guy C. Guckenberger.
Besides accusing Durrani of malpractice, Deters attacked the doctor as a liar who tried to cover up his diagnostic and surgical errors after scaring Pierce into an unnecessary surgery. She claimed Durrani told her she would be “paralyzed” without it. He denied that in a 2011 deposition.
Deters showed the jury about a dozen documents on a projector screen. Some were doctor’s reports that seemed to contradict Durrani’s deposition. In one case, Deters listed maybe a dozen reasons Durrani gave for operating on Pierce and started reading and attacking them.
“’She’s at the point where she can barely sit.’ Lie. Lie,” Deters said.
“’She lost the grip on her right hand.' Lie. Lie.”
Cutting off, Deters said, “He knew she was looking for a surgical option and he pounced.”
Deters concluded that Durrani did “an unnecessary surgery for money.”
On the subject of money, Deters told the jury he calculated that Pierce had lost $188,965 in wages as a result of Durrani’s surgery in January, 2009. She became unable to work and had to give up her job as an IRS tax examiner, he said.
“I’m not going to ask you for a certain amount,” Deters told the jury. “I do want you to compensate her for her pain and suffering.”
The eight-member jury deliberated about an hour and resumes Tuesday morning.
The jury is weighing four claims in Pierce’s suit:
➢ Negligence, based on accusations that Durrani violated the standard of care and caused Pierce severe pain and permanent injury.
➢ Lack of informed consent. Deters said Durrani operated beyond Pierce’s consent and that she never consented to his use of BMP-2, a bone-growth hormone. The North American Spine Society had warned spine doctors not to use it in surgeries like Pierce’s, a witness for Pierce testified.
➢ Battery, based on Deters’ claim that Durrani’ surgery amounted to intentional, unconsented contact.
➢ Fraudulent misrepresentation, based on the claim that Durrani performed a unnecessary surgery.
It takes six of the eight jurors to agree to a finding on each matter. For each finding for Pierce, the jury could then give a financial award.
Guckenberger instructed the jurors that there has to be a “preponderance of evidence” for jurors to accept a claim.
Durrani wasn’t around to testify at the trial – he fled to his native Pakistan in December, Lyon said.
By judge’s order, the jury was never told that. The jury was only told that Durrani elected not to testify.
That led to a hostile exchange between the attorneys Monday.
Lyon took Deters to task for using documents from Pierce’s previous surgeon, Paul Cohen of Mayfield Clinic, and her pain doctor, Carl Shapiro, to challenge Durrani's deposition, rather than calling them to testify in person.
“You have the nerve to stand up here and say, ‘Where is Cohen? Where is Shapiro?’ when Durrani elected not to attend his own trial?” Deters said.
“He had the opportunity come here and defend himself and he elected not to.”
Pierce’s case is the first of 175 lawsuits filed by
Deters to come to trial. Deters said he plans to file another 220 suits by the end of February.
RELATED: Read Pierce’s lawsuit
Durrani also faces a 36-count federal indictment. His criminal trial is scheduled to begin in August.
The government and the civil suits claim Durrani performed hundreds of unnecessary surgeries between 2008 and 2013 and botched many of them, leaving some patients in worse condition.
The government charged Durrani with billing insurers millions of dollars for fraudulent services. The federal charges carry a potential prison sentence of up to 125 years. The indictment also seeks forfeiture of any proceeds Durrani received from his alleged scheme.
Durrani was also stripped of his licenses in Ohio and Kentucky based on the indictment.
RELATED: Read the indictment.
Durrani professed his innocence in an exclusive interview with WCPO's Tom McKee last August.
Durrani had owned a private practice called the Centers for Advanced Spine Technologies (CAST) with offices in Evendale and Florence. But the phones have been disconnected and the website has been taken down.
Durrani most recently performed surgeries at JourneyLite in Evendale, where he was part owner.
Between 2007 and 2013, Durrani performed surgery at West Chester Hospital UC Health, Children's Hospital, Good Samaritan, Christ and Deaconess, but he no longer had privileges at any of those hospitals as of June, 2013, the indictment says.