I concur in the principal opinion, but write separately to address matters raised by the dissenting opinion which are not supported by the law or facts in this case. The record shows that the parties received a fair trial and the jury verdict should not be disturbed.
I Metaullics' arguments concerning judicial bias in the first assignment of error lack merit for both procedural and substantive reasons. See State v. Davis (1992), 79 Ohio App.3d 450, 607 N.E.2d 543; Lorenc v. Sciborowski (Mar. 16, 1995), Cuyahoga App. No. 66945, unreported, at 7-8, 1995 WL 116850 (Porter, J.). As in Lorenc, the record shows that the trial court actively presided over the lengthy, six-day trial and posed questions to almost every witness presented by either plaintiff or defendants. Evid.R. 611. Metaullics objected at trial to only one of the five incidents of "judicial bias" raised on appeal.
Although, as the dissent argues, it is not necessary for a party to object to every question posed by the trial judge, the appealing party should at a minimum have raised a timely objection concerning the questioning of each witness or *Page 373 indicated on the record a continuing general objection. Failure to object either generally or specifically to the questioning of the four witnesses waives any claim of error concerning them.State v. Davis, 79 Ohio App.3d at 455, 607 N.E.2d at 546-547. If, as the dissent now contends, Metaullics did not want to "call attention to" the court's questioning in front of the jury, it should have objected outside the hearing of the jury as required by Evid.R. 614(C). Id.
The record shows that Metaullics objected during the six-day trial to the court's handling of one witness only, Dr. Koppel. Even if a party could subsequently resurrect waived objections concerning other witnesses by making a belated motion for mistrial as the dissent contends, Metaullics' motion for mistrial did not purport to do so because it expressly involved only Dr. Koppel. Metaullics' post-trial motion for new trial likewise concerned Koppel and for the first time mentioned two other witnesses who are not even discussed on appeal. It is not "hard to imagine" what more Metaullics could have done to preserve these belatedly raised claims.
The dissent relies on the "plain error" doctrine to overcome Metaullics' failure to preserve objections concerning four of the five named witnesses. Notice of plain error is extremely rare in civil cases and is invoked with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Schade v. Carnegie Body Co. (1982),70 Ohio St.2d 207, 209, 24 O.O.3d 316, 317, 436 N.E.2d 1001, 1003. The record does not satisfy this stringent standard in this case.
In fact, examination of the record reveals that all five claims of improper conduct are unfounded.1 None of the cases cited by the dissent concerning the trial judge's limited authority to develop testimony involves simultaneous trials to both the court and a jury as in this case. Trial judges have an obligation to understand the equitable issues tried to the court and may, if necessary, conduct more extensive questioning concerning these issues than is permitted in cases tried solely to a jury. Metaullics never requested that the trial judge conduct his questioning outside the presence of the jury and instead now asks this court to assume, without any showing, that the judge adversely influenced the jury's findings. Under the circumstances, Metaullics' failure to object before trial to consolidating the preliminary injunction (tried to the court) with the merits (tried to the jury) or to take appropriate action at the consolidated trial when any error could have been corrected precludes it from belatedly raising claims concerning the effect of the judge's conduct on the jury after an adverse decision. *Page 374
The record does not show that the trial court abused its discretion or that its questioning influenced the jury verdict in any way. As noted above, the trial court questioned almost every witness presented by either side. It is not surprising that the trial court asked more questions during Metaullics' case, because Metaullics presented nine witnesses and approximately six hundred twenty pages of testimony compared to three witnesses and one hundred three pages of testimony presented by defendants. To put this issue in perspective, Metaullics' claim of abuse of discretion involves fewer than ten pages out of the entire nine-hundred-thirteen-page trial transcript or approximately one percent of the six-day proceedings. During those six days Metaullics did not raise any argument concerning the four witnesses other than Koppel. Such a continuing failure to object indicates that none of the participants discerned any impropriety concerning them at trial.
The central issue concerns the trial court's questioning of Koppel. Because Metaullics' brief on appeal quotes excerpts from the same sections of Koppel's testimony four times, the significance of the statements is unduly magnified. The claims boil down to the three statements emphasized by the dissent. Koppel, who had previously been employed full-time by affiliates of Metaullics for approximately eleven years, admits that he was retained by Metaullics as an expert witness concerning damages.
Koppel was produced to testify concerning only damages and not Metaullics' substantive trade secrets or breach of contract claims. He began testifying in part based on a supplemental expert report which had not been provided to the defense prior to trial. His initial answers to the court's questions were evasive. The dissent notably omits his answers, which bolster Metaullics' theory of the case on the substantive trade secret and breach of contract issues.
The trial court's questioning, after the parties concluded, concerned whether Koppel's adjusted profit calculations took into account all development costs of the pump. The parties had presented different theories during trial concerning development of the pump: Metaullics admitted that by the time Cooper left its employment in June 1990 it had not fully developed plans for the pump that defendants ultimately manufactured, whereas Cooper claimed that he independently developed the pump after he left. The trial court's questions concern development costs after June 1990 and were based on the same terminology used by the parties during trial.
Metaullics complains that the trial court used suggestive variations of the terms "Cooper pump" and "develop" during its questioning of Koppel. However, as noted in the dissent, even Metaullics expressly used the term "Cooper pump." *Page 375 During the course of trial, counsel for Metaullics,2 Henderson3 and Koppel4 repeatedly used similar references to the pump in open court before the jury. The parties referred to numerous pumps during trial, and the term "Cooper pump" was merely a convenient shorthand reference to the particular pump Cooper indisputably physically produced. When viewed in the context of the case and the usage by the parties, the term does not improperly express or imply an improper opinion concerning who in fact created or owned the underlying concepts. Simply stated, the trial court did not commit reversible error by using the same terms Metaullics used to refer to the pump.
The precise meaning of the word "develop" in the trial court's questioning is ambiguous. Metaullics' theory was that it developed the pump in the sense of creating the generic design of the pump without complete details. Defendants' theory used the same term more broadly to include creating the generic design as well as subsequent modifications, in addition to manufacturing the pump. The term "develop" properly includes all these variations in meaning. The dissent's suggestion that the trial court's questions "clearly indicated," "implied," and stated in "no uncertain terms" the court's opinions to the jury concerning creation or ownership of the pump unjustifiably assumes only Metaullics' meaning of the word. The dissent also ignores that the purpose of Koppel's testimony during these isolated comments was to prove damages attributable to pump sales rather than ownership of the technology.
Moreover, to conclude that the trial court improperly invaded the province of the jury is to ignore these nuances in the meaning of the term "develop" and also to ignore the context of the entire trial. The record negates such a conclusion: the trial court submitted the issues to the jury, specifically accepted the jury's finding of the facts, and thereafter decided the equitable issues based on the jury's findings. To find prejudice, furthermore, from the trial court's use of terms repeatedly used by the various parties throughout the trial is unwarranted. Although the trial court, viewed in hindsight with night-vision goggles, could have chosen other words when questioning Metaullics' witnesses, its failure to do so does not constitute reversible error. *Page 376
II Metaullics' remaining arguments concerning the exclusion of testimony in the second assignment of error are likewise unpersuasive. The record shows that Metaullics did not lay an adequate foundation for Henderson's opinion testimony before offering the testimony as required by the Ohio Evidence Rules. Evid.R. 705 specifically requires disclosure of the supporting facts or data before the expert provides any opinion testimony. Evid.R. 703 further requires that expert opinions be based on facts or data (1) perceived by the witness or (2) admitted into evidence at the hearing. Wells v. Miami Valley Hosp. (1993),90 Ohio App.3d 840, 855-865, 631 N.E.2d 642, 651-658; State v.Whitt (1991), 68 Ohio App.3d 752, 757, 589 N.E.2d 492, 495;State v. Robles (1989), 65 Ohio App.3d 104, 107-111,583 N.E.2d 318, 319-322. Metaullics failed to satisfy the requirements of either of these rules.
The voir dire of Henderson, an off-site research supervisor for Metaullics' parent corporation, revealed that Henderson had no direct involvement in the research or design of the pumps. He was not a member of the pump redesign team, did not oversee Cooper, and derived most of his knowledge concerning the pumps from other unspecified people on the pump team. The record shows, moreover, that Henderson was vague in his voir dire about the bases and sources of his opinions and did not adequately disclose them before his opinion testimony was offered.5
Metaullics' brief on appeal, on the other hand, is remarkably clear in specifying that Henderson obtained knowledge from at least three engineers directly involved on the pump design team,viz., Gilbert, Mordue and Masarin. However, the trial transcript unambiguously shows that only one of these three engineers, Gilbert, testified prior to Henderson. Since Metaullics did not claim that Henderson's opinions could be supported only by facts perceived by him or admitted into evidence through Gilbert, and in fact argued a different basis at trial, this court must conclude that not all the facts supporting Henderson's opinion were admitted into evidence at trial before his opinion testimony was offered.
The dissent's contention that Gilbert's testimony provided a sufficient foundation is unpersuasive for two reasons. First, Metaullics never made this argument and continues to propose different foundations for the testimony. As noted above, Metaullics' brief on appeal specifically identifies three engineers, Gilbert, Mordue and Masarin. During closing argument to the jury, Metaullics claimed *Page 377 that Mordue, Gilbert and Martin rather than Masarin were the sources of the trade secrets. Finally, Metaullics' motion for new trial expressly stated that two engineers provided the foundation, viz., Gilbert and Mordue.6
Metaullics' own proffer, cited by the dissent, belies the claim that the foundation for Henderson's opinion testimony was provided by Gilbert:
"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 [sic] that Mr. Gilbert'stestified earlier today * * *." (Emphasis added.)
The literal terms of this proffer state that Henderson's opinion was not based on Gilbert, but was based on other unidentified persons "like Mr. Gilbert" who had not yet testified from whom he had learned "similar" information. Finally, Henderson's own testimony during voir dire failed to disclose the specific bases.
Metaullics' citation to case law involving the Federal Evidence Rules to overcome the defects in this foundation is misplaced because the Federal Rules have fewer foundational requirements than the Ohio Evidence Rules. Sowers v. MiddletownHosp. (1993), 89 Ohio App.3d 572, 585-587, 626 N.E.2d 968,977-979. Specifically, Fed.R.Evid. 705 permits giving opinion testimony before disclosing the supporting facts, whereas Ohio Evid.R. 705 conversely requires disclosure of the facts before offering the opinion. Moreover, Fed.R.Evid. 703 permits an expert's opinion to be based on a third category of information not permitted by Ohio Evid.R. 703, viz., facts which were not perceived by the expert or introduced into evidence if they were made known to the expert prior to the hearing. By rejecting the Federal model when it promulgated these Ohio Evidence Rules, the Ohio Supreme Court deliberately adopted these differences. We must, therefore, adhere to the specific Ohio requirements in this case.
The purpose of these rules is to ensure that neither reviewing courts nor trial courts are required to engage in the sort of speculation engaged in by the dissent concerning the basis for the opinion testimony. Contrary to the dissent's argument, neither Henderson's voir dire nor even his report, proffer, or subsequent factual testimony at trial sufficiently demonstrated that his opinions were based on facts perceived by him or admitted into evidence at trial before Metaullics offered his opinion testimony. *Page 378
Lacking a consistent theory, the purported basis for Henderson's testimony continues to shift like grains of sand. Metaullics made these conflicting arguments orally at trial and, upon reflection, in writing after trial. Even under a scrupulous review, the foundation for Henderson's testimony is obscure and one cannot reliably discern the basis for all or any of his opinions. Courts should not be required to guess, or as in this case second-guess, whether proposed expert opinions are based wholly or even in major part on information recognized by Evid.R. 703.
Because Metaullics did not sufficiently disclose all necessary supporting facts as required by the Ohio Evidence Rules, and Henderson's proposed opinion testimony was admittedly not limited to his personal knowledge, the trial court's ruling excluding his opinion testimony for lack of an adequate foundation was correct. The fact that other judges might not apply these foundational requirements as meticulously or might reach a different conclusion concerning the admissibility of this testimony does not establish that the trial court abused its discretion. Kitchens v. McKay (1987), 38 Ohio App.3d 165,528 N.E.2d 603. Furthermore, the record shows that trial court made a similarly strict evidentiary ruling against defendants and excluded opinion testimony from their trade secret expert Stephen Hill.
An alternative way to introduce Henderson's opinion testimony would have required using hypothetical questions to elicit opinions based on assumed facts which could have been proved by the testimony of other witnesses later in the trial. The record shows, however, that Metaullics did not pose any hypothetical questions to Henderson or seek to recall Henderson after the other engineers had testified. Because Metaullics failed to present the proposed opinion testimony properly, and the trial court had a legal basis for excluding the evidence, Metaullics has failed to show that the trial court erred or abused its discretion by acting unreasonably, arbitrarily or unconscionably.
I concur in the principal opinion affirming the trial court's judgment on the jury verdict.
1 The dissent does not assert any error concerning the trial court's questioning of David Masarin, and I agree.
2 References by Metaullics' counsel include "Cooper Pump"; "Has Metaullics suffered lost profits from the sale by Mr. Cooper of his pump?"; "Did you [Cooper] apply for a patent based on novel aspects of this new pump that you designed at Molten Metal Equipment Innovations?"; and "This is the stuff that Mr. Cooper put on his advertisement to sell his pumps."
3 "I had already seen Mr. Cooper's pumps in the fields."
4 Koppel calculated damages "using the sales invoices that MMEI had provided us for their molten metal pumps and equipment * * *."
5 The objection to this testimony was lack of foundation and not simply that Henderson lacked personal knowledge. Metaullics knew these requirements and was able to lay an adequate foundation for opinion testimony of Koppel regarding damages.
6 Metaullics' motion for new trial states as follows:
"Witnesses Gilbert and Mordue had already testified as to the actual engineering work they had done, and they identified various documents upon which Dr. Henderson would have relied."
This statement in the motion is obviously inaccurate. The record shows Mordue had not "already testified" when the defense called Henderson.