I must respectfully dissent from the majority opinion herein.
I find that the plaintiff-appellant Metaullics is entitled to a new trial because the trial court improperly interjected questions and statements in its examination of plaintiff's witnesses which disparaged their testimony before the jury and indicated in unmistakable terms its opinion in favor of defendants on the most critical issue in the case: whether plaintiff or defendants developed the trade secrets at issue. I also find that the court committed reversible error in excluding plaintiff's expert testimony on the same issue. Contrary to the *Page 379 majority's conclusion, the plaintiff preserved these errors on appeal by timely objections and motions for mistrial at the end of plaintiff's case and at the end of all the evidence. It is hard to imagine what more the plaintiff could have done to preserve the judicial errors manifest upon this record.
This appeal turns on the very delicate situation where a trial court interjects itself in the examination of witnesses. While a trial court is permitted to examine witnesses, there are strict limits placed on judicial questioning of witnesses, lest the court by its inquiries give the appearance of favoring one side or the other. The majority correctly observes that the court has discretion pursuant to Evid.R. 614(B) to "interrogate witnesses, in an impartial manner, whether called by itself or by a party." A reviewing court must determine whether the trial court abused that discretion, i.e., to interrogate in "an impartial manner." State v. Prokos (1993), 91 Ohio App.3d 39,44, 631 N.E.2d 684, 687.
However, the court's discretion is severely limited to ensure that the right to trial by jury is preserved. The court's discretion is not a license to disparage witnesses or prejudice a party's case, as was done in the trial below. That discretion is circumscribed by the Supreme Court's admonitions in State exrel. Wise v. Chand (1970), 21 Ohio St.2d 113, 50 O.O.2d 322,256 N.E.2d 613, paragraphs three and four of the syllabus:
"In a trial before a jury, the court's participation by questioning or comment must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury its opinion of the evidence or on the credibility of a witness.
"In a jury trial, where the intensity, tenor, range and persistence of the court's interrogation of a witness can reasonably indicate to the jury the court's opinion as to the credibility of the witness or the weight to be given his testimony, the interrogation is prejudicially erroneous." See, also, State v. Prokos, supra; Sweet v. Clare-Mar Camp, Inc. (1987), 38 Ohio App.3d 6, 8, 526 N.E.2d 74, 77; Jenkins v.Clark (1982), 7 Ohio App.3d 93, 98, 7 OBR 124, 129-130,454 N.E.2d 541, 548; State v. Bridgeman (1977), 51 Ohio App.2d 105,117, 5 O.O.3d 275, 281, 366 N.E.2d 1378, 1387 ("[A]ny expression by the trial court, and particularly any positive statement to the jury which indicates or even intimates to the jury the court's opinion on the facts in evidence is error.").
I agree with Metaullics' contentions that the trial court repeatedly overstepped the Chand boundaries by clearly expressing its opinion on hotly contested issues which were critical to the outcome of the case. Specifically, plaintiff argues in its brief:
"The court grilled plaintiff's witnesses making it clear to the jury that the court doubted their credibility; and the court answered questions posed by plaintiff to defendants' witnesses, indicating that the court favored defendants; and the *Page 380 court went beyond intimating its views on the case and in fact told the jury through statements interposed between its own questions to plaintiff's witnesses that defendants had developed the pump at issue, thus stating its opinion that the defendant has not stolen the plaintiff's trade secrets or breached any employment agreement with Metaullics."
Unfortunately, these contentions are fully supported by the record.
Examples of the court's intervention include the court's examination of plaintiff's damage expert, Dr. Lewis Koppel:
"The Court: It certainly, if Metaullics built that samepump, it would have cost them some money, wouldn't it?
"Dr. Koppel: Built in terms of built and sold the pumps, your Honor?
"The Court: Built and sold the pump, but it would cost them something to develop it. They didn't develop it, Mr. Cooperdeveloped it. It would have cost them some money to develop it, wouldn't it? They would have to pay their engineers and do allthe tests that Mr. Cooper did and so forth. Wouldn't they be cost charged against profits on the pump?
"* * *
"Dr. Koppel: Right. And it's a trade secret case, so to the extent that there was additional work that had to be done, there would have been some additional expense, that's correct, but this is a calculation strictly of what MMEI earned. It has nothing to do with what —
"The Court: Forget MMEI. It would have cost Metaullics money to develop this pump, this pump had not been developed. Therehad been nothing done on this pump that Mr. Cooper developed. It would have cost them money to do that, wouldn't it?
"Mr. Koppel: It would have likely cost some additional funds.
"The Court: What do you mean additional? It would have cost them money to make the pump from the beginning to the end.
"Mr. Koppel: To manufacture and sell these pumps, yes, they would have had manufacturing expenses.
"The Court: How much would that have been?
"Mr. Koppel: That would typically be measured by Metaullics' gross profit margins, for example, or an alternative measure would be MMEI's gross profit margins, in that they're similar kinds of operations.
"The Court: But you don't know, is what you're telling me now?
"Mr. Koppel: I'm sorry, your Honor — *Page 381
"The Court: Well, it's got to cost them some money. They justcan't come, for instance, take Mr. Cooper's pump, and say,`We're taking all your profits,' including his labor, his workand things, right?
"* * *
"The Court: You didn't have '90 or '91 [financial statements], did you?
"Mr. Koppel: There is no element in the equalizations [sic, calculations] for profits in '90, '91.
"The Court: You didn't have '90, '91. Did you inquire where are they, of the lawyers? Did you ask where are '90 and '91?
"Mr. Koppel: At the beginning of my involvement in this case I asked for all of the financial statements that could be gotten.
"The Court: Didn't you say you wanted '90 and '91?
"Mr. Koppel: Yes.
"The Court: Where are they? When you didn't get them, did you ask the next question, `Where are they?'
"Mr. Koppel: And I was told that they hadn't been produced.
"The Court: That's what you were told, right?
"Mr. Koppel: Yes.
"The Court: And you never went any further than that, and you come in here today, right, and as far as you knew there was nothing in '90 and '91, until they handed you the income tax returns?
"Mr. Koppel: There were — I believe I saw the '90 tax form. Tax form is not a financial statement." (Emphasis added.)
The emphasized statements in no uncertain terms informed the jury that the pump was Cooper's, that Metaullics had not developed it, that Cooper developed it, and that Metaullics was not entitled to take the fruits of Cooper's labor. The implications in these statements went to the heart of the case. They squarely violated the cardinal principle that "[a] trial judge must remain impartial at all times and avoid making comments that might influence the jury." State v. Allen (1995),102 Ohio App.3d 696, 700, 657 N.E.2d 843, 845. At the same time, the court's examination tended to minimize plaintiff's injury by pointing out perceived omissions from plaintiff's damage case.
There were other episodes that bear recounting. In examining one of Metaullics' development engineers, Mr. Mordue, the court expressed its disbelief in Mordue's description of his participation in the development of the trade secrets by asking, "You had all that technology. Why didn't you just make a pump like *Page 382 Cooper did?" This question implied to the jury that Cooper was the inventor of the pump, rather than Metaullics, i.e., Metaullics had no trade secrets which Cooper stole. "While the court can ask neutrally phrased questions, its questions should not suggest disbelief in a witness's testimony." State v.Prokos, supra, 91 Ohio App.3d at 44, 631 N.E.2d at 687.
The court also interrupted plaintiff's cross-examination of Cooper, answering for Cooper and prompting him with leading questions in a manner that was prejudicial and improper. Plaintiff had endeavored to prove that Cooper had a plan to set up a competing business before he ever left Metaullics, contrary to his employment agreement covenants, and consulted an attorney regarding such a competing business. The court interrupted the cross-examination of Cooper on this point:
"Q. [By plaintiff's counsel, Mr. Shunk, to defendant Cooper:] And now can you tell the jury, sir, why you decided to ask Mr. Nikaido [the lawyer] what you could and couldn't do? What was your motivation in asking that if you had no intention at the time?
"The Court: Well, I believe he testified yesterday that he always thought of starting a new business, he always had that in his mind when he was in college.
"Mr. Cooper: Yes I did.
"The Court: That was the reason, sir; is that right?
"Mr. Cooper: I've always thought of starting a new business."
The court's adoption of Cooper's earlier testimony indicated to the jury that the court found Cooper to be credible and believed Cooper's claims that when he left Metaullics he had no plans to set up a competing business. This intervention went beyond "even intimat[ing]" its opinion; it went beyond "scrupulous limit[ation]" and clearly "indicate[d] to the jury the court's opinion on the facts in evidence." Chand, supra,21 Ohio St.2d 113, 50 O.O.2d 322, 256 N.E.2d 613; State v.Bridgeman, supra, 51 Ohio App.2d at 117, 5 O.O.3d at 281-282,366 N.E.2d at 1387. The court's interruption preempted a line of questioning which could have borne unfavorably on Cooper's motives in seeking legal advice to start a competing business while still employed by Metaullics. This kind of commentary was clearly improper and unwarranted.
The court also disparaged the testimony of Mr. Martin, Cooper's supervisor at Metaullics, who had a conversation with Cooper just before he left the company. In that conversation, Martin testified that Cooper told him that Cooper had ideas for a pump which he was not going to disclose to Metaullics in contravention of his employment covenants. At the conclusion of Martin's testimony, the following colloquy took place: *Page 383
"The Court: All right. You [Mr. Martin] didn't tell anyone about this conversation that you had with Paul [Cooper] in 1990; is that correct?
"Mr. Martin: Until just now?
"The Court: Yes, just now.
"Mr. Martin: Well, my attorneys were aware of this conversation.
"The Court: Your attorneys. Are these your attorneys?
"Mr. Martin: These are the Metaullics' attorneys.
"The Court: This was in 1990, when did you tell them?
"Mr. Martin: Well, when this became an issue.
"The Court: When was that?
"Mr. Martin: I can't remember when that was. When I was deposed.
"The Court: It had to be 1993.
"Mr. Isroff: Your Honor, to refresh, his deposition was taken in December of 1993.
"The Court: '93, I see, yes. When did you next think of it, in 1990, the conversation was? When did you next think of it, or did you think about it everyday?
"Mr. Martin: No, I didn't think about it everyday.
"The Court: When did you next think of it?
"Mr. Martin: I next thought about it when I understood that Paul Cooper was into the pump business.
"The Court: That was a couple of years later?
"Mr. Martin: Yes.
"The Court: That's when this conversation come [sic] back to you very clearly at that time, right?
"Mr. Martin: That's when I thought about it.
"The Court: But you don't know where you had it, you don't know when you had it; is that right?
"Mr. Martin: I had it in the time frame in early — the six months —
"The Court: Sometime within six months you had it?
"Mr. Martin: Yes.
"The Court: Okay. All right. You may step down." *Page 384
This examination clearly conveyed to the jury by its tenor, intensity, range and persistence the trial court's disbelief in Martin's testimony in violation of the rules set forth inChand. It was prejudicial for the court to imply in the presence of the jury that Martin was fabricating this incriminating conversation with Cooper because he did not report it earlier. In effect, the court's questioning implied that the jury should not believe plaintiff's claims that Cooper had plans or ideas relating to pumps before he left Metaullics and that he improperly withheld them from Metaullics in order to start his own business later.
I find that the trial court's questions and comments in the presence of the jury crossed over the line of proper intervention to guarantee that the truth is presented. The defendants were represented by experienced and capable counsel. It was not necessary for the court to take an adversarial role in developing the evidence. To state that the pump was not developed by Metaullics but by Cooper after he left Metaullics' employ could not simply be cured by boilerplate instructions in the general charge to disregard the judge's earlier remarks. The fallacy of that conclusion is put to rest by the Supreme Court inState v. Thomas (1973), 36 Ohio St.2d 68, 72, 65 O.O.2d 216, 218, 303 N.E.2d 882, 884:
"It is well known, as a matter of judicial notice that juries are highly sensitive to every utterance by the trial judge, the trial arbiter, and that some comments may be so highly prejudicial that even a strong admonition by the judge to the jury, that they are not bound by the judge's views, will not cure the error."
When the judge is interposing frequently (as he was here), the failure to object each time is not a sufficient ground for arguing that counsel waived these errors. An opposing attorney only magnifies the prejudicial remarks by calling attention to them, especially when the examiner can overrule any objections to his own questions. The appellant correctly notes that "the trial judge's comments were so pervasive that the instruction given could not cure the error; in fact, no instruction could have cured the error." The court's conduct was beyond the pale, and plain error warrants reversal and a new trial. Evid.R. 103(D). Reichert v. Ingersoll (1985), 18 Ohio St.3d 220, 223, 18 OBR 281, 283-284, 480 N.E.2d 802, 805 ("The plain-error doctrine permits correction of judicial proceedings when error is clearly apparent on the face of the record and is prejudicial to the appellant.").
The majority also excuses the court's improprieties in a bifurcated trial by stating that "the court had every right to determine for itself and to confirm by witness testimony answersto its questions relating to the requested injunctive relief." (Emphasis added.) This conclusion reflects an elementary misconception of the court's role in a case where legal and equitable issues are tried together. To satisfy itself, the court does not have the right to influence the jury findings. Otherwise, trial by a fair and impartial jury is illusory and a sham. What the *Page 385 majority overlooks is that Evid.R. 614(B) requires the court to "interrogate witnesses in an impartial manner," despite the fact that equitable issues are also at stake.
Like its federal counterpart, Ohio Civ.R. 65(B)(2) makes clear that where the trial court is hearing the equitable issues on the merits: "This Subdivision (B)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury." "This [section] precludes a bench trial of facts that are common to legal and equitable claims. If they are tried together, they must be tried to the jury." 7 Moore's Federal Practice (2 Ed. 1988) 65-122-23, Section 65.04[6]. "Indeed, in order to safeguard the parties' Seventh Amendment rights with respect to claims triable to the jury, the general rule is that the jury must be allowed to decide the legal claims prior to the court's determination of the equitable claims * * *." LeBlanc-Sternberg v. Fletcher (C.A.2, 1995), 67 F.3d 412,432; Bouchet v. Natl. Urban League, Inc. (C.A.D.C. 1984),730 F.2d 799, 803 ("As a general rule, when a case contains claims triable to a jury and claims triable to the court that involve common issues of fact, the jury's resolution of those issues governs the entire case."). The trial court had no right to impose its views of the evidence on the jury.
Based on the foregoing, I would sustain Assignment of Error I.
I would also sustain Assignment of Error II, which deals with the exclusion of the testimony of plaintiff's trade secret expert, Dr. Richard Henderson. Dr. Henderson was employed by Metaullics' corporate parent, BP America, and was a member of BP's corporate research staff assigned to Metaullics. Dr. Henderson's testimony as to the trade secrets was excluded altogether by the trial court after an extensive voir dire out of the presence of the jury. As the majority notes, the objection to his testimony was that "Henderson could not testify to the existence of trade secrets if he didn't work for the company at the time they were developed * * * [and] didn't have any firsthand knowledge * * *." Lack of personal knowledge was no reason to exclude Dr. Henderson's testimony.
Most experts are consultants or independent contractors retained after the events at issue occurred. Their testimony is frequently elicited by hypothetical questions. They do not havepersonal knowledge of the underlying facts upon which their opinions are based. If every expert had to work at the company where the events occurred, there would be very little expert testimony.
The trial court misunderstood the application of Evid.R. 703 in the circumstance of this case, and the majority compounds that error by approving of the trial court's action. Evid.R. 602, which requires personal knowledge for a witness to testify, expressly states that "[t]his rule is subject to the provisions of Rule *Page 386 703, relating to opinion testimony by expert witnesses." The purpose of this exception is explained:
"The reference in Evid.R. 602 to Rule 703 is to avoid any question of conflict between the two rules, the latter of which permits an expert to express an opinion based on facts of which the expert does not have personal knowledge. Staff Note to Evid.R. 602. Evid.R. 703 states that `[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing.'" Huebner v. Miles (1993), 92 Ohio App.3d 493,502, 636 N.E.2d 348, 354.
The voir dire examination, Henderson's expert report and plaintiff's proffer clearly laid the proper foundation for Dr. Henderson's testimony. Plaintiff's proffer stated:
"If Dr. Henderson were asked the appropriate questions, we believe he would testify to all of the matters that are set forth in his expert report * * *.
"We think he would explain the three trade secrets of Metaullics to be precisely those three trade secrets that were referred to in my opening statement.
"We believe that he would testify that he examined the Cooper pump, that he had discussions with persons like Mr. Gilbert and learned information similar to that that Mr. Gilbert's testified earlier today, that based upon reading that information and based upon his own expertise, gained from his training and his years of experience in the field and his position as Director of Engineering Research and Design at Metaullics, that he would reach the opinion that the three trade secrets he identified were, indeed, to be found in the Cooper pump.
"And he would give explicit testimony as to the way in which the company first learned that the trade secrets were embodied in the pump and the actions that were taken in order to determine that the trade secrets were located in the pump.
"He would also testify, we believe, as to the value of the trade secrets and would explain to the jury in precisely what way the trade secrets were not known to the public generally and gave Metaullics an advantage over competitors in the marketplace."
That Dr. Henderson may have gained data or information or insights at business meetings among the Metaullics' researchers was not a basis for excluding his testimony. Experts may glean information from numerous sources, including books, upon which to base their expertise. Kane v. Ford Motor Co. (1984), 17 Ohio App.3d 111,112, 17 OBR 173, 174-175, 477 N.E.2d 662, 664-665;Worthington City Schools v. ABCO Insulation (1992), 84 Ohio App.3d 144,152-153, 616 N.E.2d 550, 555-556. In any event, as the proffer makes clear, Henderson's expert testimony would have rested on the foundational testimony of *Page 387 Mr. Gilbert as "perceived by him or admitted in evidence at the hearing." Evid.R. 703.
The court erred in excluding any and all opinions by Dr. Henderson on trade secret matters because they were not based on his personal knowledge of the facts of the case.
I would sustain Assignment of Error II.
I would reverse the judgment and remand the cause for a new trial before a different judge. *Page 388