# Bavaria v. Ohio State Univ.

> Ohio Court of Claims · July 19, 2024 · 2024 Ohio 3217

URL: https://www.frixlaw.com/law-library/cases/10521480

## Case

- **Court:** Ohio Court of Claims
- **Decided:** July 19, 2024
- **Citations:** 2024 Ohio 3217
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Cain
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[Cite as Bavaria v. Ohio State Univ., 2024-Ohio-3217.]

IN THE COURT OF CLAIMS OF OHIO

FREE STATE OF BAVARIA, Case No. 2022-00495JD
REPRESENTED BY THE UNIVERSITY
OF WURZBURG Judge David E. Cain

Plaintiff DECISION

v.

THE OHIO STATE UNIVERSITY

Defendant

I. Introduction
{¶1} Plaintiff Free State of Bavaria Represented by the University of Würzburg
brings an original civil action against Defendant The Ohio State University. Plaintiff’s
lawsuit concerns a dispute about compensation owing to Plaintiff from a collaboration
between Dr. Michael Sendtner (a research scientist at the University of Würzburg) and
Dr. Arthur Burghes (a research scientist at The Ohio State University). Dr. Sendtner and
Dr. Burghes collaborated to create a genetically modified mouse model, which, along with
other genetically modified mouse models, proved useful in the development of a gene
therapy for spinal muscular atrophy (SMA).1 Plaintiff seeks $49 million from Defendant,
which Plaintiff asserts is the amount that Nationwide Children’s Hospital in Columbus,
Ohio—a non-party in this case—would have been obligated to pay Plaintiff in licensing
fees if Defendant had met its legal obligations to Plaintiff.2

1 Spinal muscular atrophy is a genetic disorder that, as stipulated by the parties, “is fatal to children

and has been the subject of sophisticated research for decades.” Proposed Joint Stipulations of Fact filed
on April 29, 2024, at paragraph 1. The Court previously has approved the parties’ Proposed Joint
Stipulations of Fact.
2 Under R.C. 2743.02(E) the only defendant in original actions in the Court of Claims of Ohio is the

State. See R.C. 2743.02(E). As used in R.C. Chapter 2743, the term “state” means the State of Ohio,
including, but not limited to, the General Assembly, the Supreme Court, the offices of all elected state
Case No. 2022-00495JD -2- DECISION

{¶2} After carefully considering all the admitted evidence presented at trial, as well
as the parties’ arguments, and, after a careful weighing of all the evidence, the Court
holds that Plaintiff has not proven its civil claims by the requisite degree of proof for
reasons that follow. The Court further holds that Defendant is entitled to a judgment in
its favor.

II. Procedural History
{¶3} In an Amended Complaint Plaintiff asserted seven claims against Defendant
(which Plaintiff labeled as “Counts”): (1) Breach Of Contract Regarding [An] Agency
Agreement, (2) Breach Of Fiduciary Duty, (3) Fraud, (4) Rescission, (5) Unjust
Enrichment, (6) Civil Conspiracy, and (7) Declaratory Judgment (wherein Plaintiff seeks
a declaration that Defendant is obligated to reimburse Plaintiff for Plaintiff’s and
Dr. Sendtner’s research, including but not limited to a declaratory judgment that Plaintiff
is due royalties from all sales of approved Zolgensma®).3
{¶4} On Defendant’s motion, the Court granted a partial summary judgment in
Defendant’s favor on Plaintiff’s claim of Rescission. The matter proceeded to a bench
trial on Plaintiff’s remaining claims: (1) Breach Of Contract Regarding [An] Agency
Agreement, (2) Breach Of Fiduciary Duty, (3) Fraud, (4) Unjust Enrichment, (5) Civil
Conspiracy, and (6) Declaratory Judgment.

officers, and all departments, boards, offices, commissions, agencies, institutions, and other
instrumentalities of the State. R.C. 2743.01(A).
Pursuant to R.C. 2743.02(E), and applying the statutory definition contained in R.C. 2743.01(A),
Nationwide Children’s Hospital (a non-party that, through counsel, appeared at trial), as well as The Abigail
Wexner Research Institute at Nationwide Children’s Hospital (another non-party that, through counsel,
appeared at trial), are statutorily prohibited from being parties in this original action.
The Court takes judicial notice that Plaintiff has brought a related action against Nationwide
Children’s Hospital and others in federal district court. See Free State of Bavaria Represented by the
University of Würzburg v. The Ohio State University et al., case No. 2:22-cv-02580 (S.D. Ohio Jun 22,
2022). See generally State ex rel. Coles v. Granville, 2007-Ohio-6057, ¶ 20, citing Liberty Mut. Ins. Co. v.
Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d. Cir. 1992), quoting Kramer v. Time Warner, Inc., 937
F.2d 767, 774 (2d Cir. 1991) (“[a] court may take judicial notice of a document filed in another court “not for
the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings’”).

3 The parties have stipulated that, on May 24, 2019, the United States Food and Drug

Administration approved Zolgensma®, a gene therapy product intended to treat children less than two years
of age with the most severe form of spinal muscular atrophy. Proposed Joint Stipulations of Fact filed on
April 29, 2024, at paragraph 8.
Case No. 2022-00495JD -3- DECISION

{¶5} After Plaintiff presented its case-in-chief, Defendant moved for a directed
verdict pursuant to Civ.R. 50. The Court construed Defendant’s Civ.R. 50 motion as a
motion for dismissal under Civ.R. 41(B)(2); the Court denied Defendant’s motion for
dismissal; and Defendant proceeded with its case-in-chief. The Court granted leave for
the parties to file post-trial briefing. After trial concluded, the Court held a hearing for the
limited purpose of clarifying exhibits that had been, or should have been, admitted into
evidence during trial.

III. Narrative of Factual Findings4
A. Dr. Michael Sendtner and Dr. Arthur Burghes engage in a scientific
collaboration.
{¶6} Dr. Michael Sendtner bred a mouse with a null allele (“null knockout mouse”).
Dr. Sendtner published research about the “null knockout mouse” in scientific literature,
which caught the attention of Dr. Arthur Burghes at The Ohio State University (OSU). Dr.
Burghes contacted Dr. Sendtner. Dr. Burghes proposed a collaboration between himself
and Dr. Sendtner. Dr. Sendtner agreed to Dr. Burghes’s proposed collaboration.
{¶7} At Dr. Burghes’s request, Dr. Sendtner provided “null knockout mice” to
Dr. Burghes for use in Dr. Burghes’s research. Dr. Burghes cross-bred Dr. Sendtner’s
mice with mice in Dr. Burghes’s laboratory to create another mouse model (Severe SMA
Mouse). Dr. Burghes later used the Severe SMA Mouse model to develop another mouse
model, the Delta 7 Mouse model.
{¶8} During Dr. Sendtner and Dr. Burghes’s collaboration, Dr. Sendtner and
Dr. Burghes exchanged emails; Dr. Burghes visited Dr. Sendtner in Europe; Dr. Sendtner
hosted a doctoral student of Dr. Burghes in Germany, so the doctoral student could learn
Dr. Sendtner’s technique for counting motor neurons in mice in Dr. Sendtner’s laboratory;
and Dr. Sendtner and Dr. Burghes co-authored certain scientific articles.
{¶9} By email correspondence Dr. Sendtner permitted Dr. Burghes to provide
Dr. Sendtner’s “null knockout” mice to not-for-profit institutions, such as academic

4 The Narrative of Factual Findings is based on all evidence admitted at trial (even if reference to

certain evidence is not expressly stated in the Narrative of Factual findings). By design the Narrative of
Factual Findings is not intended to be an exhaustive summary of all the witness testimony and documentary
evidence presented at trial, which was vast. Nor is the Narrative of Factual Findings intended to constitute
a complete record of the evidence presented at trial, such as a transcript of the trial proceedings.
Case No. 2022-00495JD -4- DECISION

institutions, for scientific research. However, Dr. Sendtner asked Dr. Burghes to provide
a copy of Plaintiff’s Material Transfer Agreement (MTA) (a contract governing the transfer
of tangible research materials) with Dr. Sendtner’s “null knockout mice,” when Dr.
Burghes provided Dr. Sendtner’s “null knockout mice” to not-for-profit institutions. On
August 28, 2002, in email correspondence between Dr. Sendtner and Dr. Burghes, Dr.
Sendtner wrote,
Dear Arthur,
....
Please keep the MTA. In case anybody asks you about the mice, send it
directly to persons who would like to have them. This saves time and makes
things less complicated. It took some time the MTA was approved. The
first version which I received was much heavier, I tried to eliminate any
passages which could hinder transfer or cooperation.
....
(Email dated August 28, 2002, 12:11:19 PM.)
{¶10} Plaintiff’s Material Transfer Agreement For The Distribution Of Biological
Material (for non-profit recipients) contains the following provision concerning the
commercial use of research materials:
7. The RECIPIENT is free to file patent applications claiming inventions
made by the RECIPIENT through the use of the MATERIAL but agrees to
notify the PROVIDER before filing a patent application claiming
MODIFICATIONS or methods of manufacture or use of the MATERIAL.

The RECIPIENT shall notify the PROVIDER if any profit is made by the
COMMERCIAL USE of inventions (either patented or not) made through the
use of the MATERIAL. The PROVIDER shall receive 10% of such profit.

If the RECIPIENT fails to notify the PROVIDER of filing a patent application
or of making profit by COMMERCIAL USE as specified above, the
PROVIDER shall receive the additional amount of 50,000 USD as penalty.
Case No. 2022-00495JD -5- DECISION

(Joint Exhibit EZ.) On a case-by-case basis Plaintiff would negotiate the terms of its
Material Transfer Agreement For The Distribution Of Biological Material (for non-profit
recipients).
{¶11} Staff from OSU’s Technology Commercialization Office (as it is now known)
contacted Dr. Burghes at different times to inquire about the mouse model that was bred
from Dr. Burghes’s collaboration with Dr. Sendtner (i.e., the Severe SMA Mouse model),
as well as to inquire about other matters. Dr. Burghes advised TCO staff that Plaintiff had
an ownership interest in the Severe SMA Mouse model because Dr. Sendtner had
contributed a component to the Severe SMA Mouse model and Dr. Sendtner collaborated
in the development of the Severe SMA Mouse model.
{¶12} On September 30, 2002, Dr. Burghes responded to an email from Kathleen
Garber, J.D. (a Licensing Associate in Defendant’s then-Office for Technology Licensing)
about a request received by Defendant from Rinat Neuroscience Corporation for
materials related to “your SMA Animal Model (SMN-/-; SMN2 mice, line 89.” Dr. Burghes
wrote to Ms. Garber:
....
The mice are composed of two parts first the german half which the
KO allele developed by Micael Sendters lab in germany. Therefore the[y]
must work with the university of Wurzburg in regards to the k[n]ockout allele
attached is an MTA covering academia. Trophos (France) has already
been trough this process and I would suggest following this model. Robin
Razor when she was at OSU put this together and Trophos got OSU and
Wurzburg permission. This person already knows that he needs to go
through Wurzburg for the KO allele and us for the SMN2 allele . . . .
(Joint Exhibit K.) Thus, since at least 2002 staff in Defendant’s Technology
Commercialization Office (as it is now known) had been on notice of Plaintiff’s ownership
interest in the Severe SMA Mouse model created by Dr. Sendtner and Dr. Burghes’s
collaboration.
{¶13} Plaintiff, through Dr. Sendtner, also informed Ms. Garber of Plaintiff’s
ownership interest in the Severe SMA Mouse model created by Dr. Sendtner and Dr.
Case No. 2022-00495JD -6- DECISION

Burghes’s collaboration. In response to an email query from Ms. Garber, Dr. Sendtner
wrote:
....
I send you as an attached file the MTA which our University has worked out
for transfer of Smn +/-mice, which are usually crossbred with Arthur
Burghes’ mice in order to generate an animal model for SMA. I suggest
that you give out this file to anybody requesting the mice. Otherwise, I could
send it out to anybody who wishes to use these mice. In case anybody
wishes changes, he or she should contact me and I will direct to them to the
contract department of our University.
....
(Joint Exhibit N.)

B. Plaintiff and Defendant separately enter into licensing agreements with
The Spinal Muscular Atrophy Foundation.
Defendant enters into an agreement with The Jackson Laboratory for the
distribution of mice models.
Non-party Nationwide Children’s Hospital obtains the Delta 7 Mouse
model from The Jackson Laboratory.
{¶14} Around 2004 The Spinal Muscular Atrophy Foundation (SMA Foundation), a
nonprofit organization, undertook to have SMA mice deposited with The Jackson
Laboratory, a biomedical research institution with a repository for mouse models. The
SMA Foundation entered into non-exclusive license agreements with both parties.
Effective December 1, 2004, the SMA Foundation and Plaintiff entered into a non-
exclusive license agreement. (Proposed Joint Stipulations of Fact, at paragraph 2.) And,
effective March 9, 2005, SMA Foundation and Defendant entered into a non-exclusive
license agreement. (Proposed Joint Stipulations of Fact, at paragraph 4.)
{¶15} On April 14, 2005—about a month after Defendant and the SMA Foundation
entered into a non-exclusive license agreement—Defendant and The Jackson Laboratory
(TJL) entered into a Letter of Agreement For Distribution (Letter of Agreement).
(Proposed Joint Stipulations of Fact, at paragraph 5. Joint Exhibit AZ.) In the Letter of
Case No. 2022-00495JD -7- DECISION

Agreement, Defendant and The Ohio State Research Foundation (collectively
“INSTITUTION”) represented
to the best of its knowledge and belief that it has the legal right to license
MICE, and hereby grants to TJL a non-exclusive license to make, breed, use,
and sell MICE to the biomedical research community. While non-profit and
academic institutions have permission to use MICE received from TJL solely
for research purposes, INSTITUTION requires use licenses from for-profit
entities. TJL agrees to inquire whether the party requesting MICE is a for-
profit, and if so, will advise the party that it must first obtain a use license from
INSTITUTION before receiving the MICE. TJL further agrees to send [an]
attached Notice to all for-profits requesting the MICE.
(Joint Exhibit AZ.) Under the Letter of Agreement, for-profit entities purchasing the mice
for commercial use were directed to Defendant to execute a licensing agreement with
Defendant. (Proposed Joint Stipulations of Fact, at paragraph 6.) Defendant’s Letter of
Agreement with The Jackson Laboratory does not direct for-profit entities to execute a
licensing agreement with Plaintiff.
{¶16} Defendant concedes that, at the time of Defendant’s Letter of Agreement
with The Jackson Laboratory, its Technology Commercialization Office (TCO), which,
among other things, negotiates licensing agreements for inventions arising from university
research, had been in “a horrible state of disarray.” (Post-Trial Brief, 7.) Defendant
relates, “From 2000 until around 2018-2019, the TCO suffered from a lack of financial
and human resources, significant turnover in leadership, lack of an effective system to
track research-related agreements, and lack of a comprehensive accounting system.”
(Post-Trial Brief, 7.)
{¶17} Notably, with respect to Dr. Burghes’s Delta 7 Mouse model, by at least 2013
Defendant was licensing the Delta 7 Mouse model according to credible testimony elicited
at trial. (Testimony of David Mess, Tr., 783.) And, in approximately 2016, Defendant
generally was charging $80,000 per year for a license agreement for the Delta 7 Mouse
model. (Testimony of David Mess, Tr., 876.)
{¶18} Meanwhile, a researcher who was affiliated with Nationwide Children’s
Hospital obtained the Delta 7 Mouse model from The Jackson Laboratory. This
Case No. 2022-00495JD -8- DECISION

researcher used the Delta 7 Mouse model in scientific investigations that proved useful
in the development of Zolgensma®. Nationwide Children’s Hospital has received a
financial benefit for its role in the development of Zolgensma®.

C. Plaintiff and Defendant negotiate a backdated Inter-Institutional
Agreement.
{¶19} On December 13, 2016, Elizabeth M. Richards of Defendant’s Technology
Commercialization Office emailed Mr. René Demling, Plaintiff’s legal counsel, about
entering into an Inter-Institutional Agreement (IIA).5 Ms. Richards wrote:
Hello Rene,
I am reaching out to you so that we can get an Inter-Institutional agreement,
in place, as we recently discovered Ohio State and Wuerzburg are joint
owners of the SMNΔ7 mouse (https://www.jax.org/strain/005025).
I have attached OSU’s standard IIA template for your review if you would
like to move forward with this template. If not, please send me your template
for review.
....
Two days later—on December 15, 2016—Mr. Demling emailed a response to
Ms. Richards with copies of the response sent to Mr. David Mess of Defendant’s
Technology Commercialization Office, and Dr. Iris Zwirner-Baier in the Technology
Transfer Office (TTO) of the University of Würzburg. Mr. Demling informed Ms. Richards
that he forwarded the template to Dr. Zwirner-Baier. Mr. Demling stated, “The TTO is
responsible for Inter-Institutional Agreements at our University. She will contact you as
soon as we have reviewed the template. For reviewing the template, can you provide
information about the scientists involved in generating the intellectual property regarding
the mouse?. . . .” (Joint Exhibit DA.)
{¶20} On January 3, 2017, Ms. Elizabeth Richards emailed Mr. Demling and
inquired: “Hi Rene, I just wanted to follow up on the status of the IIA, as we have yet to

5 According to testimony elicited at trial, “Generally when there’s a -- sort of an invention that arises

from the work of two universities, you put in place an inter-institutional agreement to sort of talk about how
the parties are going to do things like patenting, which wasn’t the case in this case, but also how you’re
going to handle licensing of the invention.” (Testimony of David Mess) (Tr. 787-788).
Case No. 2022-00495JD -9- DECISION

hear anything back?” (Joint Exhibit DA.) Eight days later—on January 11, 2017—in an
email message to Ms. Richards (with a copy sent to Mr. David Mess), Dr. Zwirner-Baier
related, “We have some open issues on this topic and we need the feedback of our
scientist, who is hopefully available next week.”
{¶21} On January 23, 2017, Mr. David Mess, who at that time was the Assistant
Director, Licensing, within Defendant’s Technology Commercialization Office, wrote to Dr.
Zwirner-Baier,
....
Elizabeth is no longer with Ohio State. Kristina Jeckering (copied) and I will
be your contact at Ohio State for this matter.
We have received another inquiry from a company that would like to license
this mouse model. The license would be $80,000 and we propose splitting
that equally with the University of Wurzburg.
....
(Joint Exhibit DA.)
About a week later—on January 31, 2017—Dr. Zwirner-Baier responded,
Dear David,
Thank you for your email. After talking to our scientist Prof. Sendtner, we
have some questions:
The University of Würzburg has an existing non exclusive licence
agreement regarding the Smn +/- mutant mice with the SMA Foundation.
Are the same mice subject to the suggested IIA? How is the Ohio State
University in the research projects with the SMA foundation involved? Is
the IIA agreement independent to the SMA contract?
We do not know the history behind your IIA proposal.
We would highly appreciate to receive some further information from you.
....

(Joint Exhibit DA.) That same day—January 31, 2017—Mr. Mess replied, “We had an
agreement with the SMA Foundation however it is now expired.” (Joint Exhibit DA.)
Mr. Mess’s email contained no comment about Defendant’s arrangement with The
Case No. 2022-00495JD -10- DECISION

Jackson Laboratory that Defendant entered into on April 14, 2005—almost twelve years
earlier.
{¶22} According to credible testimony elicited at trial, before the parties entered
into an Inter-Institutional Agreement, Defendant had no intent to pay Plaintiff for the
licensing that had happened before the parties’ Inter-Institutional Agreement. (Testimony
of David Mess) (Tr., 788-789.) And, before the parties formally entered into an Inter-
Institutional Agreement, on July 26-27, 2017, Dr. Iris Zwirner-Baier and Mr. Mess had the
following email exchange:
Dear David,
We have checked the agreement and we can agree to the most terms but
one minor concern remains. Our agreement should start in April 2005 as
effective date and the licence fees in Juli 2017.
There is a 12 year period between both dates. It doesn’t make sense to us.
According to our budget law it is very difficult for us to push back the begin
of the agreement in 2005.

In response, Mr. Mess wrote:
Hi Iris,
Yes, that’s right. We just recently became aware of the contribution the
University of Wuerzburg made to the mouse model that was created in 2004
or 2005. Ohio State has entered into agreements since then and July 2017
would start the sharing of revenue with University of Wuerzburg.
If there is a better way to achieve this, we would certainly welcome that.

In response, Dr. Zwirner-Baier wrote:
Hi David,
As I understand OSU made some licensing deal without knowing the
University of Würzburg was Co-owner. My suggestion is to pay a fee about
25.0000 US Dollar to the University of Würzburg for the period between
2005 and 2017.
I hope this is acceptable to OSU.
Case No. 2022-00495JD -11- DECISION

....

Mr. Mess replied to Dr. Zwirner-Baier, stating:
Hi Iris,
I think that makes sense. Can you send over the agreement incorporating
that concept for final review?
....

Dr. Zwirner-Baier later inquired of Kristina Jeckering and Mr. Mess, stating:
Dear Kristina, dear David,
I will come back to you as soon as our legal department gives me a
feedback.
Lately I talked to our scientist Prof. Sendtner, who is one of the mouse
creators. He wants to know which companies have received a mice license
from OSU. Can you make this information available?
(Plaintiff UW Exhibit 11.) Mr. Mess responded:
Hi Iris,
I think we will be able to share the specific names after IIA is entered into
because of confidentiality provisions. Our database shows that 7
companies have received commercial licenses from Ohio State directly
(note that only relatively recently (around 2013) have we realized that we
can charge a significant fee).
(Plaintiff UW Exhibit 11.) However, on cross-examination, Mr. Mess generally agreed
that certain license agreements failed to contain confidentiality provisions. (Tr., 800-802.)
{¶23} In September 2017 Plaintiff entered into an Inter-Institutional Agreement (IIA)
with Defendant that had an effective date of April 14, 2005. (Tr., 908; Joint Exhibit BA.)
Under the transaction terms in the IIA, each party is entitled to a 50% share of net
consideration. (Joint Exhibit BA.) The Inter-Institutional Agreement contains a provision
for a lump sum payment:
3.4 Lump Sum Payment: As consideration of licensing revenue
received by the Lead Institution from April 14, 2005 until July 1, 2017, the
Lead Institution [The Ohio State University] will pay from the Net
Case No. 2022-00495JD -12- DECISION

Consideration a one-time lump sum payment of $25,000 USD to the Other
Institution [Freistaat Bayern represented by the University of Wuerzburg].
For the avoidance of doubt, in the event Lead Institution enters into a
License Agreement after the Effective Date and receives $80,000 in License
Consideration, the first $80,000 of License Consideration will be allocated
as follows: $61,000 to Other Institution, $8,000 to Jackson Lab, and $11,000
to Lead Consideration. Thereafter, License Consideration shall be
allocated as set forth in Section 3.1(b), above.
(Joint Exhibit BA.) Section 3.1(b) of the Inter-Institutional Agreement provides: “The Lead
Institution will deduct from the License Consideration and retain for itself or reimburse the
Other Institution(s) the following amounts: the Administration Fee. The Net Consideration
will be distributed to the Other Institution(s) in accordance with the Share of Net
Consideration set forth in the Transaction Terms.” (Joint Exhibit BA.)
{¶24} Defendant has attempted to make payment to the University of Würzburg for
licensing revenues, but Plaintiff has refused to accept those funds. (Tr., 659.) At trial, in
response to a question by the Court, Dr. Iris Zwirner-Baier explained:
{¶25} We had received an email from OSU that went into our spam. And then we
received a second email where a sum of $800,000 was offered.
{¶26} Then we found the old email in the spam, and that was two months before
where they offered the sum of $200,000. And I was extremely surprised how within two
months, $200,000 became $800,000.
{¶27} I talked to legal and my financial departments and we discussed this, and we
concluded something cannot be correct, something has to be wrong. And we would want
to clear that up first.
(Tr. 662-663.)

IV. Law and Analysis
{¶28} Plaintiff suggests that the proffered evidence establishes that Defendant,
through its employees, acted in a dishonest manner and in bad faith. Plaintiff asserts that
it expected that Dr. Sendtner and Dr. Burghes’s Severe SMA Mouse model would be
made available to requesting organizations in the following manner:
Case No. 2022-00495JD -13- DECISION

(1) To partners of the SMA Foundation (SMAF Partners) through Plaintiff’s and
Defendant’s Individual License Agreements with the SMA Foundation,
(2) To non-SMAF Partners (e.g., for-profit or commercial entities) through licenses
from Plaintiff and Defendant, and
(3) To non-profit institutions through Plaintiff’s Material Transfer Agreement.
{¶29} Plaintiff maintains that Defendant harmed Plaintiff by Defendant’s
negotiation with The Jackson Laboratory and by Defendant’s entering into a Letter
Agreement with the Jackson Laboratory. Plaintiff further maintains that Defendant,
through its employees, directly misrepresented the Letter of Agreement to Plaintiff
through Defendant’s employees’ email correspondence and in Defendant’s negotiation
for a back-dated Inter-Institutional Agreement. Plaintiff asserts that, absent an executed
Material Transfer Agreement with Plaintiff, Nationwide Children’s Hospital would not have
been able to use the Delta 7 Mouse model in its research that contributed to the
development of Zolgensma®.
{¶30} Defendant disputes that its employees acted in a dishonest manner and in
bad faith. Defendant essentially urges that the parties established a scientific
collaboration through Dr. Sendtner and Dr. Burghes to create the Severe SMA Mouse
model, that Dr. Burghes created the Delta 7 Mouse model from the Severe SMA Mouse
model, which researchers later used as a tool in the development of the gene therapy of
Zolgensma®, that Plaintiff did nothing to develop the gene therapy of Zolgensma ®, and
that Plaintiff is entitled to 50% of the licensing fees under the parties’ Inter-Institutional
Agreement and nothing more.

A. Plaintiff has the burden of production and the burden of persuasion.6

6 The Ohio Supreme Court has discussed the burden of proof as follows:

* * * [T]he “burden of proof” is a composite burden that “encompasses two different
aspects of proof: the burden of going forward with evidence (or burden of production) and
the burden of persuasion.” Chari v. Vore, 91 Ohio St.3d 323, 326, 2001-Ohio-49, 744
N.E.2d 763 (2001). See also Xenia v. Wallace, 37 Ohio St.3d 216, 219, 524 N.E.2d 889
(1988); State v. Robinson, 47 Ohio St.2d 103, 107, 351 N.E.2d 88 (1976).
The “burden of production” in a civil case requires that the plaintiff produce
sufficient evidence to support the case and that the defendant produce sufficient evidence
of any affirmative defenses. Id. at 107. The party having the burden on any given issue
will lose on that issue as a matter of law if sufficient evidence is not produced. Id.
Case No. 2022-00495JD -14- DECISION

{¶31} On trial of a civil case, the weight to be given the evidence and the credibility
of the witnesses are primarily for the trier of the facts. State v. DeHass, 10 Ohio St.2d
230 (1967), paragraph one of the syllabus. Here, the Court is the trier-of-facts. See
R.C. 2743.03(C)(1) (“[a] civil action against the state shall be heard and determined by a
single judge”). The Court, as the trier-of-facts in this case, is free to believe all, part, or
none of the testimony of the witnesses who have appeared before it in this case. See
State v. Green, 2004-Ohio-3697, ¶ 24 (10th Dist).
{¶32} Under Ohio law a plaintiff generally is required to establish civil claims by a
preponderance of the evidence. See Merrick v. Ditzler, 91 Ohio St. 256, 260 (1915) (“[i]n
the ordinary civil case the degree of proof, or the quality of persuasion as some text-
writers characterize it, is a mere preponderance of the evidence”); Weishaar v. Strimbu,
76 Ohio App.3d 276, 282 (8th Dist.1991). A preponderance of the evidence “is defined as
that measure of proof that convinces the judge or jury that the existence of the fact sought
to be proved is more likely than its nonexistence.” State ex rel. Doner v. Zody, 2011-
Ohio-6117, ¶ 54.
{¶33} Elements of fraud, however, “must be established by clear and convincing
evidence.” Trepp, LLC v. Lighthouse Commer. Mtge., Inc., 2010-Ohio-1820, ¶ 20 (10th
Dist.). Clear and convincing evidence “is that measure or degree of proof which is more
than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is
required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. The burden
to prove fraud “rests upon the party alleging the fraud.” Trepp at ¶ 20, citing First Discount
Corp. v. Daken, 75 Ohio App. 33 (1944) (1st. Dist.), paragraph seven of the syllabus.

By contrast, the “burden of persuasion” “refers to the risk . . . borne by a party if
the jury finds that the evidence is in equilibrium.” Id. “In a civil case, the party with the
burden of persuasion is to persuade the trier of fact by a preponderance of the evidence,
or upon some issues, by clear and convincing evidence.” Id. The party with this burden
will lose if he or she fails to persuade the trier of fact that the alleged fact is true by such
quantum of evidence as the law demands. Id. If the trier of fact finds itself in doubt, “it
must decide the issue against the party having the burden of persuasion.” Id.
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 20-22.
Case No. 2022-00495JD -15- DECISION

B. Plaintiff has not proven its claim of fraud by clear and convincing
evidence.
{¶34} At trial Plaintiff maintained that Defendant, through its employees (for
example, Mr. David Mess), knowingly made false statements, misrepresented facts, and
concealed material facts from Plaintiff to induce Plaintiff to enter into a back-dated Inter-
Institutional Agreement (IIA) with Defendant.
With respect to fraud, the Tenth District Court of Appeals has explained:
The elements of a fraud claim are:
(1) a representation or, where there is a duty to disclose,
concealment of a fact, (2) the representation was material to
the transaction, (3) the representation was made falsely, with
knowledge of its falsity, or with such disregard and
recklessness as to whether it is true or false that knowledge
may be inferred, (4) the representation was made with the
intent of misleading another into relying on it, (5) justifiable
reliance on the representation or concealment, and (6) an
injury proximately caused by the reliance.
Wiles v. Miller, 10th Dist. No. 12AP-989, 2013-Ohio-3625, ¶ 33, 3 N.E.3d
226, citing Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475, 700 N.E.2d
859 (1998).
O’Brien v. Ashley, 2021-Ohio-4064, ¶ 13 (10th Dist.). All elements of fraud must be
present to find actionable fraud. Malek v. Eresearch Tech. Inc., 2022-Ohio-3330, ¶ 24
(8th Dist.), citing Westfield Ins. Co. v. HULS Am., Inc., 128 Ohio App.3d 270, 280 (10th
Dist.1998). The “absence of even one of these elements precludes recovery.” Malek at
¶ 24, citing HULS Am., Inc., 128 Ohio App.3d at 280.
{¶35} After assessing Mr. Mess’s demeanor and the credibility of Mr. Mess’s
testimony, and, after weighing the evidence, the Court finds that, while Plaintiff has shown
that some of Mr. Mess’s email statements to Dr. Zwirner-Baier were inaccurate (e.g., “We
just recently became aware of the contribution the University of Wuerzburg made to the
mouse model that was created in 2004 or 2005”), or perhaps even cagey (e.g., Mr. Mess’s
failure to disclose Defendant’s agreement with The Jackson Laboratory to Dr. Iris Zwirner-
Case No. 2022-00495JD -16- DECISION

Baier), Plaintiff has failed to prove that Mr. Mess’s representations to Dr. Iris Zwirner-
Baier were made falsely, with knowledge of the falsity, or with such disregard and
recklessness as to whether the representations were true or false, or with an intent of
misleading Plaintiff to rely on the representations. Furthermore, the Court finds that the
evidence shows that Defendant disclosed to Plaintiff (1) the number of companies who
received licenses from Defendant, (2) the fees that Defendant charged these companies,
and (3) the amount of payment received from the licenses. In view of these findings, the
Court concludes that Plaintiff cannot, and has not, established all the required elements
of a claim of fraud.
{¶36} Under Ohio case law a fraud claim “‘may not be based on a
misrepresentation made to a third party.’” O’Brien v. Ashley, 2021-Ohio-4064, ¶ 15 (10th
Dist.), quoting Wiles v. Miller, 2013-Ohio-3625, ¶ 37 (10th Dist.). To the extent that
Plaintiff contends that Defendant engaged in fraud through misrepresentations contained
in the Letter of Agreement to The Jackson Laboratory (a third party), such a contention
fails, as a matter of law. O’Brien at ¶ 37.
{¶37} Accordingly, after carefully weighing all the admitted evidence and the
credibility of witnesses’ testimony, the Court determines that Plaintiff has failed to prove
all the elements of fraud by clear and convincing evidence. Plaintiff’s claim of fraud
therefore fails.

C. Plaintiff has not proven its claim of breach of fiduciary duty by a
preponderance of the evidence.
{¶38} Under Ohio case law a fiduciary duty “‘is generally defined as a duty of
utmost good faith, trust, confidence, and candor owed by a fiduciary to the beneficiary; a
duty to act with the highest degree of honesty and loyalty toward another person and in
the best interests of the other person.’” Wood v. Cashelmara Condominium Unit Owners
Assn., 8th Dist. Cuyahoga No. 110696, 2022-Ohio-1496, ¶ 34 (8th Dist.), quoting
DiPasquale v. Costas, 2010-Ohio-832, ¶ 122 (2d Dist.) (quotations and alterations
omitted).
{¶39} Ohio case law recognizes a claim of breach of a fiduciary duty as an
equitable action. See, e.g., Health Alliance of Greater Cincinnati v. Christ Hosp., 2008-
Ohio-4981, ¶ 24 (1st Dist.) (“[i]n an equitable action involving a breach of fiduciary duty,
Case No. 2022-00495JD -17- DECISION

the trial court has discretion in fashioning an appropriate remedy to protect the interest of
the beneficiary”); Ross Sinclaire & Assocs., LLC v. Huntington Natl. Bank, 2018-Ohio-
661, ¶ 24 (10th Dist.) (“[o]ne asserting a claim of breach of fiduciary duty must establish
the existence of a fiduciary duty, breach of that duty, and injury proximately caused by
the breach”).
{¶40} Discussing what constitutes a fiduciary relationship, the Court of Appeals of
New York has stated:
A fiduciary relationship “exists between two persons when one of
them is under a duty to act for or to give advice for the benefit of another
upon matters within the scope of the relation” (Restatement [Second] of
Torts § 874, Comment a). Such a relationship, necessarily fact-specific, is
grounded in a higher level of trust than normally present in the marketplace
between those involved in arm’s length business transactions (see
Northeast Gen. Corp. v Wellington Adv., 82 N.Y.2d 158, 162, 624 N.E.2d
129, 604 N.Y.S.2d 1 [1993]). Generally, where parties have entered into a
contract, courts look to that agreement to discover . . . the nexus of [the
parties’] relationship and the particular contractual expression establishing
the parties’ interdependency” (see id. at 160). “If the parties . . . do not
create their own relationship of higher trust, courts should not ordinarily
transport them to the higher realm of relationship and fashion the stricter
duty for them” (id. at 162). However, it is fundamental that fiduciary “liability
is not dependent solely upon an agreement or contractual relation between
the fiduciary and the beneficiary but results from the relation” (Restatement
[Second] of Torts § 874, Comment b).
EBC I, Inc. v. Goldman Sachs & Co., 5 N.Y.3d 11, 19-20 (2005).
{¶41} In the Court’s view, the evidence establishes that Plaintiff and Defendant,
through Dr. Sendtner and Dr. Burghes, collaborated in limited research, as demonstrated
by Dr. Sendtner’s sharing of his “null knockout mouse” with Dr. Burghes, and Dr.
Sendtner’s and Dr. Burghes’s shared authorship of certain scientific articles. The parties’
collaboration was not merely an arm’s length business transaction subject to the level of
trust in the marketplace. The parties’ collaboration required both Plaintiff and Defendant
Case No. 2022-00495JD -18- DECISION

to act with a high degree of honesty, good faith, trust, confidence, and candor in
accordance with accepted scientific norms.
{¶42} The evidence also establishes, however, that, at times, Defendant acted in
a manner that failed to instill confidence as (1) Defendant effectively misrepresented its
authority to grant licenses for the Severe SMA Mouse model and Delta 7 Mouse model
to The Jackson Laboratory and (2) some of Defendant’s employees’ email
correspondence with Dr. Zwirner-Baier lacked precision and candor during the parties’
negotiation for a backdated Inter-Institutional Agreement.
{¶43} Plaintiff urges that Defendant owed, and breached, fiduciary duties to
Plaintiff. But if Defendant owed fiduciary duties to Plaintiff, then Defendant would have
had a duty to act in Plaintiff’s best interests, even to Defendant’s own detriment. See
Groob v. KeyBank, 2006-Ohio-1189, ¶ 25 (“[a] bank’s committing to keep a customer’s
information confidential does not create an obligation to act only in its customer’s best
interest, even to its own detriment, which is what a fiduciary relationship requires”). The
evidence shows, however, that, under the parties’ collaborative arrangement, Defendant
was not required to act solely in Plaintiff’s best interests. Rather, the evidence shows that
both parties acted with self-interest in protecting the discoveries and inventions of their
respective research scientists through separate licensing agreements. And, under the
parties’ collaborative arrangement, Dr. Burghes was able to pursue additional research
interests, including developing the Delta 7 Mouse model, which proved valuable in the
development of Zolgensma®.
{¶44} After carefully weighing the evidence and the credibility of the witnesses’
testimony, the Court holds that Plaintiff has not proven by a preponderance of the
evidence its breach-of-a-fiduciary-duty claim.

D. Plaintiff’s declaratory-judgment claim essentially is subsumed into
Plaintiff’s breach-of-contract claim with an analysis of the breach-of-
contract claim governing the declaratory-judgment claim.
{¶45} Plaintiff seeks a declaration that Defendant is obligated to reimburse Plaintiff
for Dr. Sendtner’s research and Plaintiff is due royalties from all sales of approved
Zolgensma®. Plaintiff’s declaratory-judgment claim essentially is subsumed into Plaintiff’s
breach-of-contract claim. And the analysis concerning Plaintiff’s breach-of-contract claim
Case No. 2022-00495JD -19- DECISION

governs Plaintiff’s declaratory-judgment claim. See Ambulatory Care Affiliates, Ltd. v.
OhioHealth Corp., 2010-Ohio-3035, (10th Dist.), ¶ 10 (actions for declaratory judgment
are special proceedings but when a declaratory judgment claim is asserted within the
context of an ordinary civil action for breach of contract, the underlying action governs an
appellate court’s analysis); see also R.C. 2743.03(A)(2) (generally providing that, if a
claimant also files a claim for declaratory judgment, injunctive relief, or equitable relief
that arises out of the same circumstances that gave rise to the claimant’s civil action
against the state, this Court has exclusive, original jurisdiction to hear and determine that
claim).

E. Plaintiff has not proven its claims of breach of contract and declaratory
judgment by a preponderance of the evidence.
{¶46} Plaintiff contends in its Amended Complaint that Dr. Sendtner and Dr.
Burghes’s collaboration created an enforceable contract. Defendant disputes Plaintiff’s
contention.
{¶47} “‘A contract is generally defined as a promise, or a set of promises,
actionable upon breach. Essential elements of a contract include an offer, acceptance,
contractual capacity, consideration (the bargained for legal benefit and/or detriment), a
manifestation of mutual assent and legality of object and of consideration.’” Kostelnik v.
Helper, 2002-Ohio-2985, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.
Supp. 409, 414 (N.D. Ohio 1976). To establish a claim for breach of contract under Ohio
law, a plaintiff “must prove: (1) the existence of a contract, (2) performance by the plaintiff,
(3) breach by the defendant, and (4) damages or loss resulting from the breach.” Claris,
Ltd. v. Hotel Dev. Servs., LLC, 2018-Ohio-2602, ¶ 28 (10th Dist.), citing Lucarell v.
Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41; Jarupan v. Hanna, 2007-Ohio-5081, ¶ 18,
(10th Dist.). The party seeking to recover for a breach of contract bears the burden of
proving each element of a breach-of-contract claim. Claris, Ltd. at ¶ 47.
{¶48} To declare the existence of a contract, “both parties to the contract must
consent to its terms; there must be a meeting of the minds of both parties; and the contract
must be definite and certain.” (Citations omitted.) Episcopal Retirement Homes v. Ohio
Dept. of Indus. Relations, 61 Ohio St.3d 366, 369 (1991). Black’s Law Dictionary (12th
Ed. 2024) defines “meeting of the minds” as “[a]ctual assent by both parties to the
Case No. 2022-00495JD -20- DECISION

formation of a contract, meaning that they agree on the same terms, conditions, and
subject matter.” Black’s Law Dictionary notes: “Although a meeting of the minds was
required under the traditional subjective theory of assent, modern contract doctrine
requires only objective manifestations of assent.” Id.
{¶49} The Tenth District Court of Appeals has stated, “Parties manifest their mutual
assent either by making a promise or by beginning or rendering performance.” Gates v.
Praul, 2011-Ohio-6230, ¶ 18 (10th Dist.), citing Ford v. Tandy Transp., 86 Ohio App.3d
364, 380 (4th Dist.1993). And the United States Court of Appeals for the Sixth Circuit has
explained:
It is a fundamental tenet of contract law that a legally binding contract
can be implied “from the circumstances and conduct of the parties.” Cooper
v. Lakewood Eng’g & Mfg. Co., 45 F.3d 243, 246 (8th Cir. 1995). In
“circumstances which, according to the ordinary course of dealing and the
common understanding of men, show a mutual intention to contract,” a
contract implied in fact arises. Luithly v. Cavalier Corporation; New Era
Vending, Inc., 1999 U.S. App. LEXIS 10653, at *8 (6th Cir. 1999) quoting
Weatherly v. American Ag. Chem. Co., 16 Tenn. App. 613, 65 S.W.2d 592,
598 (Tenn. App. 1933). “An implied-in-fact contract is one that is ‘founded
upon a meeting of minds which, although not embodied in an express
contract, is inferred, as a fact, from conduct of the parties showing, in the
light of the surrounding circumstances, their tacit understanding.’”
Conglomerated Hosts, Ltd., v. Jepco, Inc., 1992 U.S.App. LEXIS 1672, at
*16 (6th Cir. 1992) quoting Parker v. Department of Health, Education, and
Welfare, 478 F. Supp. 1156, 1160 (M.D. Tenn. 1979). “Hence, the
distinctive feature of an implied in fact contract is that it is implied from
conduct and circumstances; aside from this there is no difference between
an express contract and an implied contract.” Conglomerated Hosts, 1992
U.S.App. LEXIS 1672 at * 16-17.
Contship Containerlines v. Howard Industries, 309 F.3d 910, 912-913 (6th Cir.2002).
{¶50} The Court finds that Plaintiff’s breach-of-contract claim fails for several
reasons. First, the evidence establishes, by a preponderance, that Dr. Sendtner and Dr.
Case No. 2022-00495JD -21- DECISION

Burghes had authority to conduct research in accordance with scientific norms and
institutional guidelines from their respective academic institutions. But the Court finds
insufficient evidence to support any conclusion that Dr. Sendtner and Dr. Burghes had
actual or apparent authority to contractually bind their respective academic institutions.
See generally Drake v. Med. College, 120 Ohio App.3d 493, 496 (10th Dist.1997) (“public
officers cannot bind the state by acts outside their express authority”). Ohio statutory law
expressly confers a right to enter contracts upon the Board of Trustees of The Ohio State
University. R.C. 3335.03(A).
{¶51} Second, under Ohio’s Statute of Frauds, “[n]o action shall be brought
whereby to charge the defendant . . . upon an agreement that is not to be performed
within one year from the making thereof; unless the agreement upon which such action
is brought, or some memorandum or note thereof, is in writing and signed by the party to
be charged therewith or some other person thereunto by him or her lawfully authorized.”
R.C. 1335.05. Therefore, any alleged oral contract between Dr. Sendtner and
Dr. Burghes, which would not be fully performed within a one-year period, would be
unenforceable under the Statute of Frauds set forth in R.C.1335.05. See ZBS Industries
v. Anthony Cocca Videoland, 93 Ohio App.3d 101, 105 (8th Dist.1994). Here, however,
according to Plaintiff, Dr. Sendtner’s and Dr. Burghes’s collaboration lasted more than
one year.
{¶52} Third, even if Dr. Sendtner and Dr. Burghes’s email correspondence and
collaboration reasonably could be construed to form a contract, the Court finds that the
terms of the purported contract are not definite and certain. Under Ohio law a contract is
not enforceable when the terms are not sufficiently definite. Phu Ta v. Chaudhry, 2016-
Ohio-4944, ¶ 13 (10th Dist.). The Tenth District Court of Appeals has instructed:
“The terms of a contract are sufficiently certain or definite where they ‘provide a basis for
determining the existence of a breach and for giving an appropriate remedy.’” Phu Ta at
¶ 14, quoting Mr. Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167 (8th Dist.1983), quoting
Restatement of the Law 2d, Contracts, Section 33 at 92 (1981). The Court finds that Dr.
Sendtner’s and Dr. Burghes’s email correspondence does not provide a basis for giving
an appropriate remedy, even if Dr. Sendtner and Dr. Burghes’s email correspondence
demonstrates an agreement for Dr. Burghes to include Plaintiff’s Material Transfer
Case No. 2022-00495JD -22- DECISION

Agreement when Dr. Burghes forwarded Dr. Sendtner’s “null knockout” mice to not-for-
profit entities.
{¶53} Fourth, Plaintiff’s claim of $49 million in damages against Defendant is based
on speculation—namely, a notion that, if Defendant had not misrepresented its authority
to license mice to The Jackson Laboratory, Nationwide Children’s Hospital would have
agreed to the terms in Plaintiff’s Material Transfer Agreement For The Distribution Of
Biological Material (for non-profit recipients) with its requirement that Plaintiff would
receive 10% of profits made from commercial use of Dr. Sendtner’s “null knockout”
mouse. See Joint Exhibit EZ. Under Ohio law compensatory damages “must be shown
with certainty, and damages that are too speculative are not recoverable. Carey v. Down
River Specialties, Inc., 2016-Ohio-4864, ¶ 29 (8th Dist.), citing Moton v. Carroll, 2002-
Ohio-567, (10th Dist.). Accord Cruz v. Warehouse Sales by C.H.I.P., 1996 Ohio App.
LEXIS 543, at *5 (10th Dist. Feb. 13, 1996) (evidence of damages “must be shown with
a reasonable degree of certainty and speculative damages are not recoverable”).
{¶54} At trial Amy Roscoe, who previously served as Manager of Business
Development and Licensing at The Abigail Wexner Research Institute at Nationwide
Children’s Hospital, credibly testified that, as a nonprofit organization, The Abigail Wexner
Research Institute, would not engage in commercial terms in its material transfer
agreements. (Tr. 1259.) And Roscoe also credibly testified that, in a past material
transfer agreement with the University of Würzburg, The Abigail Wexner Research
Institute did not agree to the commercial terms as set forth in paragraph 7 of a material
transfer agreement with the University of Würzburg. (Tr., 1268.)
{¶55} After carefully weighing the evidence and the credibility of the witnesses’
testimony, the Court holds that Plaintiff has not proven by a preponderance of the
evidence its breach-of-contract claim and its declaratory-judgment claim.

F. Plaintiff has not proven its claim of civil conspiracy by a preponderance
of the evidence.
{¶56} In Plaintiff’s Amended Complaint, Plaintiff essentially contends that
Defendant, Brian Kaspar, Ph.D. (a research scientist formerly affiliated with Nationwide
Children’s Hospital), Nationwide Children’s Hospital, The Abigail Research Institute at
Case No. 2022-00495JD -23- DECISION

Nationwide Children’s Hospital, and Dr. Arthur Burghes conspired to fraudulently induce
the University of Würzburg to enter into Inter-Institutional Agreement, thereby breaching
Defendant’s fiduciary duties to Plaintiff.
{¶57} Civil conspiracy “has been defined as ‘a malicious combination of two or
more persons to injure another in person or property, in a way not competent for one
alone, resulting in actual damages.’” Kenty v. Transamerica Premium Ins. Co., 72 Ohio
St.3d 415, 419 (1995), quoting LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d
121, 126 (1987), citing Minarik v. Nagy, 8 Ohio App.2d 194, 196 (8th Dist. 1963). A civil
conspiracy claim “‘“is derivative and cannot be maintained absent an underlying tort that
is actionable without the conspiracy.”’” O’Brien v. Ashley, 2021-Ohio-4064, ¶ 17 (10th
Dist.), quoting Adams v. Margarum, 2017-Ohio-2741, ¶ 21 (10th Dist.), quoting Morrow
v. Reminger & Reminger Co., LPA, 2009-Ohio-2665, ¶ 40 (10th Dist.).
{¶58} The Court finds that the evidence presented at trial establishes that, by a
preponderance of the evidence, mice used in Dr. Kaspar’s research when Dr. Kaspar was
affiliated with Nationwide Children’s Hospital were obtained from The Jackson
Laboratory—not from Defendant—and that Dr. Arthur Burghes, through his research,
collaborated with researchers at Nationwide Children’s Hospital. The evidence presented
at trial does not, however, establish by a preponderance of the evidence that Defendant,
with Dr. Kaspar, Nationwide Children’s Hospital, The Abigail Wexner Research Institute
at Nationwide Children’s Hospital, and Dr. Burghes, conspired to fraudulently induce
Plaintiff to enter into the Inter-Institutional Agreement with Defendant. The Court finds
insufficient evidence was presented at trial to establish that Defendant, Dr. Burghes, Dr.
Kaspar, Nationwide Children’s Hospital, and The Abigail Wexner Research Institute
engaged in an underlying tort to fraudulently induce Plaintiff to enter into the Inter-
Institutional Agreement with Defendant.
{¶59} After carefully weighing the evidence and the credibility of the witnesses’
testimony, the Court holds that Plaintiff has not established its derivative claim of civil
conspiracy by a preponderance of the evidence.

G. Plaintiff has not proven its claim of unjust enrichment by a
preponderance of the evidence.
Case No. 2022-00495JD -24- DECISION

{¶60} In Plaintiff’s claim of unjust enrichment in the Amended Complaint, Plaintiff
asserts that Defendant received the benefit of mice containing Dr. Sendtner’s knockout
allele and Defendant used these mice to develop further research and knowledge towards
a treatment for spinal muscular atrophy. Plaintiff further asserts that it would be
inequitable for Defendant to retain benefits received at the expense of Plaintiff without
compensation to Plaintiff.
{¶61} Unjust enrichment presents an equitable claim. Sterling Contracting, LLC v.
Main Event Ent., LP, 2022-Ohio-2138, ¶ 18 (8th Dist.). In Sterling Contracting, LLC, the
Eighth District Court of Appeals explained:
“[U]njust enrichment is an equitable claim that applies when one
retains a benefit that ‘in justice and equity belong[s] to another’ and that
restitution is afforded as a remedy ‘to prevent one from retaining [a benefit]
to which he is not justly entitled.’” State Farm Mut. Auto. Ins. Co. v. Balcer
Performance & Restoration, 8th Dist. Cuyahoga No. 106768, 2018-Ohio-
4868, ¶ 16, quoting Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-
Ohio-4985, 834 N.E.2d 791, ¶ 20, Hummel v. Hummel, 133 Ohio St. 520,
528, 14 N.E.2d 923 (1938), and Keco Industries, Inc. v. Cincinnati &
Suburban Bell Tel. Co., 166 Ohio St. 254, 256, 141 N.E.2d 465 (1957).
“[T]he purpose of such claims ‘is not to compensate the plaintiff for any loss
or damage suffered by him but to compensate him for the benefit he has
conferred on the defendant.’” (Emphasis added.) Johnson at ¶ 21, quoting
Hughes v. Oberholtzer, 162 Ohio St. 330, 335, 123 N.E.2d 393 (1954). “The
goal of equitable relief is not to punish . . . .” Sun Prairie v. Cason, D.S.D.
No. 3:02-CV-03030-RAL, 2016 U.S. Dist. LEXIS 86349, 16 (July 1, 2016),
quoting Graves v. Romney, 502 F.2d 1062, 1064-1065 (8th Cir.1974).
(Emphasis sic.) Sterling Contracting, LLC at ¶ 18.
{¶62} A party asserting an unjust enrichment claim “must come to court with clean
hands.” Just Like Us Family Enrichment Ctr. v. Easter, 2010-Ohio-4893, ¶ 19 (8th Dist.).
“The ‘clean hands doctrine’ of equity requires that whenever a party takes the initiative to
set in motion the judicial machinery to obtain some remedy but has violated good faith by
his prior-related conduct, the court will deny the remedy.” Marinaro v. Major Indoor
Case No. 2022-00495JD -25- DECISION

Soccer League, 81 Ohio App.3d 42, 45, (9th Dist.1991), quoting Bean v. Bean, 14 Ohio
App.3d 358, 363-364, (12th Dist.1983).
{¶63} Based on evidence presented at trial, the Court finds that Defendant has
attempted to make payment to the University of Würzburg for licensing revenues, but
Plaintiff has refused to accept those funds. (Tr., 659.) Plaintiff’s refusal to accept its
share of licensing funds effectively has conferred a benefit upon Defendant, thereby
contradicting Plaintiff’s equitable claim of unjust enrichment.
{¶64} Moreover, the evidence shows that Plaintiff exercised due diligence before
Plaintiff entered into a backdated Inter-Institutional Agreement with a provision for a lump
sum payment of $25,000 USD as consideration of licensing revenue previously received
by Defendant, as suggested by Dr. Iris Zwirner-Baier.
{¶65} Notably, the Supreme Court of Ohio has explained:
“[I]t is not the province of courts to relieve parties of improvident
contracts.” Ohio Crane Co. v. Hicks (1924), 110 Ohio St. 168, 172, 2 Ohio
Law Abs. 275, 143 N.E. 388, 22 Ohio L. Rep. 74. In addition, “unless there
is fraud or other unlawfulness involved, courts are powerless to save a
competent person from the effects of his own voluntary agreement.”
Ullmann v. May (1947), 147 Ohio St. 468, 476, 34 O.O. 384, 72 N.E.2d 63.
Dugan & Meyers Constr. Co. v. Ohio Dept. of Adm. Servs., 2007-Ohio-1687, ¶ 29.
{¶66} Where legal rights are defined and settled by the rules of law, then equity
follows the law. See In re Barone, 2005-Ohio-4479, ¶ 19 (11th Dist.). The Seventh
District Court of Appeals has explained,
[T]he Ohio Supreme Court has held that when there is no cause of
action at law, there can be none in equity. Salem Iron Co. v. Hyland (1906),
74 Ohio St. 160, 167, 77 N.E. 751. The Court further noted in Schwaben v.
School Emp. Retirement Sys. (1996), 76 Ohio St. 3d 280, 285, 667 N.E.2d
398, that, while it may be tempting to decide a case on subjective principles
of equity and fundamental fairness, courts have a greater obligation to
follow the law. Unlike Solomon, today’s judges cannot base their decisions
only on fundamental fairness. Id.
Case No. 2022-00495JD -26- DECISION

Mosesson v. Rach, 2001-Ohio-3232, ¶ 11 (7th Dist. Mar. 28, 2001). Under Ohio law a
court “may not reform a contract unless the proponent of reformation establishes the
existence and terms of an underlying agreement, which the court can instate in writing
through reformation.” Bank of Am., N.A. v. Seymour, 2019-Ohio-2884, ¶ 22 (10th Dist.).
And to “prevail in an action to rescind a contract on the basis that it was procured by fraud,
the proponent of rescission must establish the applicable elements by clear and
convincing evidence. Owens v. Heilmann, 12th Dist. Butler No. CA95-04-081, 1996 Ohio
App. Lexis 427, at *5-6 (Feb. 12, 1996).
{¶67} Here, as discussed above, the Court has concluded that Plaintiff has not
proven its civil claims of breach of contract, breach of fiduciary duty, fraud, civil
conspiracy, and declaratory judgment against Defendant by the requisite degree of proof.
And, in this instance, the equitable remedy of reformation of the parties’ Inter-Institutional
Agreement is not available because Plaintiff has not established the existence of terms
of an underlying agreement that the Court can instate.
{¶68} After carefully weighing the evidence presented at trial, the Court holds that
equity does not support Plaintiff’s claim of unjust enrichment, notwithstanding Defendant’s
lack of precision and candor during the parties’ negotiation for the backdated Inter-
Institutional Agreement.

V. Conclusion
{¶69} For reasons set forth above, the Court holds that Plaintiff has not proven its
civil claims by the requisite degree of proof. The Court further holds that Defendant is
entitled to a judgment in its favor.

DAVID E. CAIN
Judge
[Cite as Bavaria v. Ohio State Univ., 2024-Ohio-3217.]

FREE STATE OF BAVARIA, Case No. 2022-00495JD
REPRESENTED BY THE UNIVERSITY
OF WURZBURG Judge David E. Cain

Plaintiff JUDGMENT ENTRY

v.

THE OHIO STATE UNIVERSITY

Defendant

IN THE COURT OF CLAIMS OF OHIO

{¶70} For reasons set forth in the Decision filed concurrently herewith, the Court
holds that Plaintiff has not proven its civil claims by the requisite degree of proof.
Judgment is entered in favor of Defendant. Court costs are assessed against Plaintiff.
The Clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.

DAVID E. CAIN
Judge

Filed July 19, 2024
Sent to S.C. Reporter 8/23/24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10521480. Public record. Not legal advice.