180 Degree Solutions, L.L.C. v. Metron Nutraceuticals, L.L.C. ( 2021 )

[Cite as 180 Degree Solutions, L.L.C. v. Metron Nutraceuticals, L.L.C., 2021-Ohio-2769.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
180 DEGREE SOLUTIONS LLC, :
Plaintiff-Appellant, :
No. 109986
v. :
METRON NUTRACEUTICALS, :
LLC, ET AL. :
Defendant-Appellees. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED IN PART AND REMANDED
RELEASED AND JOURNALIZED: August 12, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-888247
Appearances:
Hahn Loeser & Parks L.L.P., Dennis R. Rose, Daniel A.
DeMarco, Michael B. Pascoe, and David M. Hopkins, for
appellant.
Lewis Brisbois Bisgaard & Smith L.L.P., Ryan K. Rubin,
Greg Amend, and Daniel A. Leister, for appellees.
MARY J. BOYLE, A.J.:
Plaintiff-appellant, 180 Degree Solutions, LLC (“180”), appeals from
the trial court’s denial of its motion for judgment notwithstanding the verdict
(“JNOV”) and other discovery and expert rulings after the jury returned a verdict in
favor of defendants-appellees, Metron Nutraceuticals, LLC and Dr. Nikolaos
Tsirikos-Karapanos. 180 raises two assignments of error for our review:
1. The trial court erred in its denial of Appellant’s Motion for Judgment
Notwithstanding the Verdict.
2. The cumulative effect of the trial court’s pre-trial discovery and
expert rulings against Appellant constitutes an abuse of discretion.
Finding merit to 180’s first assignment of error, we reverse and
remand with instructions for the trial court to enter judgment in favor of 180 on
Metron’s claim for breach of contract. We overrule 180’s second assignment of
error.
I. Procedure Before Trial
In October 2017, 180 filed a complaint against Metron and its owner,
Dr. Tsirikos-Karapanos, for fraud and negligent misrepresentation. The complaint
stemmed from a distribution agreement entered between 180 and Metron for a
nutritional supplement (“HCF-C” or “CytoDetox”). In an amended complaint before
Metron and Dr. Tsirikos-Karapanos filed an answer, 180 added claims for tortious
interference with business relations and breach of contract. 180 claimed that
Metron and Dr. Tsirikos-Karapanos made false representations about how
CytoDetox should be consumed.
In January 2018, Metron and Dr. Tsirikos-Karapanos filed an answer.
They also brought counterclaims against 180 and a third-party complaint against its
owner, Warren Phillips, for abuse of process, breach of contract, negligent
misrepresentation, tortious interference with business relations, and fraud. Metron
and Dr. Tsirikos-Karapanos claimed that 180 breached various provisions of the
distribution agreement, misrepresented that CytoDetox caused tongue
inflammation, overstated its customer base, and engaged in fraudulent behavior.
In March 2020, 180 and Phillips moved to dismiss the counts for
abuse of process and fraud from the counterclaim and third-party complaint for
failure to state a claim upon which relief can be granted. The trial court denied the
motion, and 180 and Phillips filed an answer.
In November 2018, 180 and Phillips sought leave to file a second
amended complaint, which the trial court granted. 180 and Phillips added
allegations that recent tests of CytoDetox showed that Metron was supplying a
“minimal strength version of its product that has nowhere close to the represented
dose of active ingredient[.]”
Before trial, the trial court denied three of 180’s motions to compel
the production of documents and struck 180’s expert witness for untimely
disclosure. The trial court also denied 180’s motions in limine to exclude reference
to Phillips’s business partner, testimony that 180 had violated FDA regulations, and
argument that 180 breached the distribution agreement on theories not included in
Metron’s complaint.
The week before trial, Metron and Dr. Tsirikos-Karapanos voluntarily
dismissed their claim for tortious interference with business relations from their
counterclaim and third-party complaint. 180 also dismissed its claim for tortious
interference with a business relationship.
II. Trial Procedure and Evidence
The case proceeded to a jury trial in February 2020. In its case in
chief, 180 presented Phillips and Dr. Tsirikos-Karapanos as if on cross-examination.
For its case in chief, Metron presented four witnesses: Dr. Tsirikos-Karapanos,
Phillips as if on cross-examination, and the videotaped deposition testimony of Erin
Smith (180’s former regional sales manager) and Sean Behun (180’s former chief
financial officer). 180 also presented Bill Labovitz (180’s legal counsel) as a rebuttal
witness to Behun’s testimony. For clarity, we will describe the trial evidence in
chronological order of the underlying events rather than the order in which each
witness testified at trial.
Dr. Tsirikos-Karapanos testified that he developed a process to create
hydrolyzed clinoptilolite fragments (“HCF”), which are consumed to remove toxins
from the body. He explained that Metron creates a concentrate of the fragments and
sends the concentrate to contract manufacturing organizations, which dilute the
concentrate with water and add vitamin C to create the final product, hydrolyzed
clinoptilolite fragments with vitamin C, or “HCF-C.” Dr. Tsirikos-Karapanos
explained that the commercial name for HCF-C was “CytoDetox.” The contract
manufacturing organizations would bottle the CytoDetox, test it pursuant to FDA
regulations, and ship Metron samples with certificates of analyses for each batch.
Phillips testified that Metron reached out to him to see if he would
help bring CytoDetox to market. Dr. Tsirikos-Karapanos testified that Phillips and
his business partner said they had a large distribution network and could reach “tens
of thousands” of practitioners in the United States. 180’s former regional sales
manager, Erin Smith, testified that in 2015, Phillips was building the business
“literally from the ground up, from ground zero.”
Dr. Tsirikos-Karapanos and Phillips testified that in January 2015,
Metron and 180 entered the distribution agreement, which was admitted into
evidence. The agreement states that 180 has the exclusive right to distribute
Metron’s professional strength “product” to healthcare practitioners within the
United States. Appendix B to the agreement defines “product” as “Hydrolyzed
Clinoptilolite Fragments (HCF).” The agreement sets forth minimum quantities
that 180 must purchase to maintain its exclusive right to sell the product.
The distribution agreement provides that 180 “assures” Metron that
it or its affiliated entities have the “facilities, personnel, and technical expertise
necessary to market the products.” It also states that 180 is responsible for
developing marketing materials, but 180 must obtain Metron’s prior written
approval before using them. The agreement states that if 180 “ceases to market and
sell” HCF for Metron “for any reason,” 180 and Metron “shall not use any such
product name or logo/graphic unique to the Product to sell and/or market the
Product[.]” The agreement also contains a termination clause, which provides that
each party has the right to terminate the agreement “at any time for a breach of this
Agreement and the failure to cure such breach within ten (10) days after written
notice of such breach by a party.”
Phillips testified that 180 purchased CytoDetox from Metron for $13
to $15 per bottle. He did not dispute that 180 sold CytoDetox to practitioners for
roughly $45 per bottle and directly to consumers at roughly $84 per bottle. He
explained that 180 would offer a lower price per bottle depending on the volume of
the purchase.
Phillips testified that on December 23, 2015, Metron sent a letter to
him that 180 had breached the distribution agreement by selling CytoDetox to
nonpractitioners. He testified that he sent a letter in response disputing the claim
but assuring Dr. Tsirikos-Karapanos that 180 had modified its website to clarify that
only practitioners were authorized to purchase CytoDetox.
Dr. Tsirikos-Karapanos and Phillips testified that on April 21, 2016,
Metron and 180 executed an amendment to the distribution agreement.
Dr. Tsirikos-Karapanos explained that the amendment “waived” the minimum
amount of product that 180 was required to sell to maintain exclusivity in 2015.
Phillips testified that Metron was having financial challenges and offered a “better
rate” to sell “extra inventory” with a lower concentration of HCF. He explained the
amendment was “mutually beneficial” to both parties.
Phillips testified that in July 2016, he had a phone call with
Dr. Tsirikos-Karapanos about selling a product to nonpractitioners. He said that he
offered to purchase more CytoDetox and make it available for the public to purchase,
and Dr. Tsirikos-Karapanos told him that was a “great idea” and to “sell as much as
you can.” Dr. Tsirikos-Karapanos denied having this phone call with Phillips.
Phillips testified that on December 29, 2016, Metron sent 180 a
“Notice of Breach” letter, which was admitted into evidence. The letter identifies
two violations to the distribution agreement: the sale of CytoDetox to
nonpractitioners and the sale of CytoDetox outside of the United States. Phillips
testified that he was surprised to receive Dr. Tsirikos-Karapanos’s letter, but Metron
and 180 resolved the dispute by executing a second amendment to the distribution
agreement. The amendment includes a release in which Metron agreed to waive any
claims it had against 180 arising from 180’s “unauthorized retail sales” of CytoDetox
to nonpractitioners and to customers outside of the United States.
Phillips testified that in early 2017, he had “calls all the time” with
Dr. Tsirikos-Karapanos and that Dr. Tsirikos-Karapanos gave him permission to
distribute CytoDetox outside of the United States. Phillips admitted that he did not
get this authorization in writing because “he didn’t know better.” On March 8, 2017,
Dr. Tsirikos-Karapanos sent Phillips a letter titled, “Notice to Cure Sales of
CytoDetox Outside the Territory,” which was admitted into evidence. The letter
states that Metron does not consent to 180’s sales to six practitioners outside of the
United States. Metron reminded 180 in the letter that 180 must request written
consent if it wished to expand sales outside of the United States.
180’s former chief financial officer, Sean Behun, testified that 180 was
“selling fairly extensively at one point in Europe” and directly to customers in
Canada. 180 and Phillips rebutted this testimony by calling Bill Labovitz, 180’s legal
counsel. Labovitz testified that after 180 terminated Behun’s employment, Behun
“was attempting to blackmail or engage in extortion to get $25,000 so that he would
not go back to Metron and disclose to Metron what he called harmful information
about 180.” Labovitz testified that 180 did not pay Behun the $25,000.
Phillips testified that in May 2017, 180 had shipments of CytoDetox
delivered and stored in the garage of Phillips’s townhouse in Pittsburg. Phillips
admitted that his garage was not temperature controlled and that he “probably
shouldn’t have stored it in the garage” but that Dr. Tsirikos-Karapanos knew that
180 was having CytoDetox shipped to the townhouse and did not object.
Dr. Tsirikos-Karapanos testified that he saw the delivery address for the CytoDetox
shipments but did not know it was Phillips’s townhouse.
Phillips testified that in September 2017, he received a question from
a Facebook group member asking if CytoDetox had ever caused tongue swelling. He
said that he emailed Dr. Tsirikos-Karapanos with the question, and the email chain
was admitted into evidence. In his email in response to Phillips, Dr. Tsirikos-
Karapanos stated that Metron “has never received such a report” and “recommends
that CytoDetox is added to a beverage and not taken orally directly.” (Emphasis sic.)
Dr. Tsirikos-Karapanos testified that Phillips’s email made him “jump off the
ground” because he knew that tongue swelling “can be deadly.” He testified that he
asked 180 to investigate into the tongue-swelling incident, and he did not receive
any information back from 180. Phillips testified that he did not know whether 180
investigated.
Phillips and Dr. Tsirikos-Karapanos both testified that on October 6,
2017, Metron sent 180 a letter terminating the distribution agreement. Behun
testified that 180’s leadership was happy when Metron terminated the agreement
because “they wanted to get out of” it.
Phillips testified that on October 16, 2017, Metron sent 180 a letter
that it had further violated the distribution agreement by publishing a brochure that
contained instructions for consuming CytoDetox that were “wrong and could be
dangerous.” The letter was admitted into evidence and demanded that 180
immediately remove the brochure from the market and notify all its customers that
the brochure contained incorrect instructions. The letter stated that if 180 did not
complete the requested actions, Metron would file a lawsuit and seek injunctive
relief “for the protection of the public.”
The brochure states the following instructions for “how to get the best
results” from CytoDetox: (1) take CytoDetox in the morning and evening “on an
empty stomach or 30 minutes away from food”; (2) take 10 drops “under the tongue,
and swish for 30 seconds prior to swallowing”; and (3) “[w]ait 30 minutes before
eating or drinking.” Dr. Tsirikos-Karapanos testified that CytoDetox is not meant to
be taken under the tongue and without food or drink. He said that these
instructions, combined with the question about tongue swelling, was “a huge red
flag.” Phillips testified that these were “always the instruction[s]” that Metron
provided, but he had nothing in writing from Metron with these instructions.
Dr. Tsirikos-Karapanos testified, and Phillips admitted, that 180 did not send the
brochure to Metron for prior approval like the distribution agreement required.
Phillips testified that after receiving Metron’s letter, 180 removed the
brochure from its website, but he did not remember whether 180 informed its
customers that the instructions were wrong. He also stated that 180 did not respond
to Metron’s October 16, 2017 letter. Instead, on October 30, 2017, 180 filed its first
complaint against Metron for fraud and negligent misrepresentation, alleging that
Metron had misrepresented how to consume CytoDetox.
Dr. Tsirikos-Karapanos stated that throughout the litigation, Metron
began to sell HCF-C under the name “Clear Detox Pro,” and 180 continued to sell
the CytoDetox bottles it had purchased from Metron before Metron terminated the
distribution agreement.
Behun testified that in the spring or summer of 2017, 180 began
seeking manufacturers to replace Metron’s product, and Phillips testified that on
May 23, 2018, 180 received its first shipment of the new product. Metron
introduced into evidence a brochure showing that 180 had been marketing its new
product under the name “CytoDetox.” Dr. Tsirikos-Karapanos testified that 180 had
been advertising its product as “molecular” clinoptilolite fragments, which he
emphasized is identical to Metron’s product except for the addition of the word
“molecular.” Phillips testified that adding the word “molecular” was purely a
marketing strategy. Phillips also said that 180’s annual revenue at the time of trial
was somewhere between $500,000 and $1 million dollars, and 180 had experienced
sales growth every year.
Dr. Tsirikos-Karapanos testified that Metron has had difficulty selling
Clear Detox Pro because 180 is selling its product as CytoDetox. He explained that
Metron could not find a distributor for Clear Detox Pro in 2018 or 2019.
Dr. Tsirikos-Karapanos testified that the month before trial, Metron sold
approximately 50 bottles of Clear Detox Pro, and Metron sold a “very small number
of bottles” in 2018 and 2019. He explained that the original distribution agreement
with 180 reflects that Metron had expected to sell 50,000 or 75,000 bottles of HCF-
C per quarter. He testified that if he had known in 2015 what he knows now about
180, he would “never” have entered the distribution agreement with 180.
Phillips testified that in the spring and summer of 2019, during this
litigation, 180 hired a chemistry professor to conduct a test on Metron’s version of
CytoDetox. Phillips testified that the results showed there was no aluminum, silica,
or vitamin C in the samples. He interpreted the test results to mean that
unbeknownst to 180, Metron was selling it ionized water. He explained that 180
therefore stopped selling the rest of its supply of Metron’s CytoDetox.
After 180’s and Phillips’s case in chief, Metron and Dr. Tsirikos-
Karapanos moved for a directed verdict on all claims against them, and the trial
court denied the motion. Metron and Dr. Tsirikos-Karapanos renewed their motion
for directed verdict at the close of all evidence, and the trial court again denied the
motion.
On February 12, 2020, the jury returned a verdict in favor of Metron
on its claim for breach of contract and awarded Metron $260,000 in damages. The
jury also found that 180 proved its claim that Metron committed negligent
misrepresentation but awarded 180 no damages. The jury found no liability for the
remainder of the parties’ claims. The jury awarded no punitive damages but found
that an unspecified amount of attorney fees should be awarded to Metron. 180
orally moved to set aside the attorney fees, and although the record does not reflect
that the trial court ruled on the motion, the trial court did not journalize the jury’s
award of attorney fees.
III. Procedure After Trial
In March 2020, Metron filed a motion for prejudgment interest and
a motion for legal costs, expenses, and fees. The motion for legal expenses explained
that the distribution agreement contained a fee-shifting provision. Metron included
affidavits from its attorneys and Dr. Tsirikos-Karapanos attesting to the costs, fees,
and expenses Metron incurred throughout the litigation for a total amount of
$276,260.71.
Also in March 2020, 180 filed a motion for JNOV. 180 requested that
the trial court enter a judgment in favor of 180 on Metron’s claim for breach of
contract because Metron failed to introduce evidence of damages.
On August 31, 2020, the trial court granted Metron’s motion for
prejudgment interest and denied 180’s JNOV motion. In its opinion denying the
JNOV motion, the trial court explained its reasoning:
At trial, Defendants produced evidence of 180 engaging in improper
non-territory sales to consumers, having insufficient temperature
controlled facilities, and publicizing an unapproved brochure, which
demonstrate material breaches of the [distribution] agreement. At
trial, Defendants produced evidence of damages through product sales,
revenue, and per unit costs.
On September 1, 2020, the trial court granted Metron’s motion for
legal expenses.
On September 28, 2020, 180 filed a notice of appeal, challenging the
trial court’s denial of its JNOV motion as well as the trial court’s orders striking 180’s
expert and denying its motions to compel and motions in limine.
IV. Judgment Notwithstanding the Verdict
In its first assignment of error, 180 argues that the trial court erred in
denying its JNOV motion because Metron failed to establish damages for its breach
of contract claim. 180 contends that Metron did not present evidence that it suffered
any damages at all. 180 further maintains that Metron admitted that its damages
were speculative because during closing arguments, Metron’s counsel told the jury
that he would not suggest a dollar amount for damages.
Civ.R. 50(B)(1), JNOV, allows a party to “serve a motion to have the
verdict and any judgment entered thereon set aside and to have judgment entered
in accordance with the party’s motion[.]” “If a verdict was returned, the court may
allow the judgment to stand or may reopen the judgment. If the judgment is
reopened, the court shall either order a new trial or direct the entry of judgment, but
no judgment shall be rendered by the court on the ground that the verdict is against
the weight of the evidence.” Civ.R. 50(B)(3).
We review the trial court’s ruling on a JNOV motion de novo.
Environmental Network Corp. v. Goodman Weiss Miller, L.L.P., 119 Ohio St.3d
209, 2008-Ohio-3833, 893 N.E.2d 173, ¶ 23. On review, “we must test whether the
evidence, construed most strongly in favor of appellees, is legally sufficient to sustain
the verdict.” Id. Accordingly, we consider neither the weight of the evidence nor the
credibility of the witnesses when undertaking this review. Texler v. D.O. Summers
Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 679, 693 N.E.2d 271 (1998).
To recover on a claim for breach of contract, a plaintiff must
demonstrate (1) the existence of a binding contract, (2) performance by the plaintiff,
(3) breach by the defendant, and (4) damages resulting from the breach. Corsaro v.
ARC Westlake Village, Inc., 8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, ¶ 20,
citing Am. Sales, Inc. v. Boffo, 71 Ohio App.3d 168, 175, 593 N.E.2d 316 (2d
Dist.1991). The damages must “correspond to injuries resulting from the breach.”
Corsaro at ¶ 20.
“As a general rule, an injured party cannot recover damages for
breach of contract beyond the amount that is established by the evidence with
reasonable certainty, and generally, courts have required greater certainty in the
proof of damages for breach of contract than in tort.” Id. at 808-809. Damages are
not uncertain merely because they cannot be calculated with absolute exactness; it
is sufficient if the evidence affords a reasonable basis for computing damages, even
if the result is only an approximation. TJX Cos., Inc. v. Hall, 183 Ohio App.3d 236,
2009-Ohio-3372, 916 N.E.2d 862, ¶ 32 (8th Dist.). If sufficient evidence is
presented from which the jury could award damages, then the jury’s verdict should
not be disturbed. Fiorilli Constr., Inc. v. A. Bonamase Contracting, Inc., 8th Dist.
Cuyahoga No. 94719, 2011-Ohio-107, ¶ 38.
Ohio courts consistently recognize that recovery for breach of
contract is precluded only when the existence of damages is uncertain, not when the
amount is uncertain. Woehler v. Brandenburg, 12th Dist. Clermont No. CA2011-
12-082, 2012-Ohio-5355, ¶ 35; Fiorilli Constr. at ¶ 36. However, to recover damages
for lost profits, “the amount of the lost profits, as well as their existence, must be
demonstrated with reasonable certainty.” Rhodes v. Rhodes Indus., Inc., 71 Ohio
App.3d 797, 809, 595 N.E.2d 441 (8th Dist.1991).
As an initial matter, we acknowledge that 180’s argument is
appropriately asserted through a JNOV motion instead of a motion for a new trial
or remittitur. Metron argues that attacking the amount of damages must be raised
in a motion for a new trial or remittitur because a JNOV motion attacks the jury’s
verdict, not its award of damages. We agree with this principle. See Gateway
Consultants Group, Inc. v. Premier Physicians Ctrs., Inc., 8th Dist. Cuyahoga No.
104014, 2017-Ohio-1443, ¶ 9, quoting Desai v. Franklin, 177 Ohio App.3d 679,
2008-Ohio-3957, 895 N.E.2d 875, ¶ 25 (9th Dist.) (“‘Civ.R. 50(B) provides the
means to challenge the jury’s verdict, not the jury’s award of damages.’”). However,
180 is indeed challenging the jury’s verdict in finding 180 liable for breach of
contract. 180 is arguing that it cannot be liable for breach of contract because
Metron did not establish damages; 180 is not arguing that the jury’s damages award
should be a different amount.
180 argues that Metron’s damages were speculative, like the damages
in the case Peltier v. McCartan, 3d Dist. Shelby No. 17-05-14, 2005-Ohio-3901. In
Peltier, owners of an alpaca farm brought claims against their vet for negligence and
malpractice for misdiagnosing their alpaca as pregnant because they sold her as a
pregnant alpaca, she never gave birth, and they had to refund the purchaser. Id. at
¶ 6. The owners argued that had they known the alpaca was not pregnant, they
would have continued trying to breed her, and they would have been able to
advertise her for mating on Alpaca.com. Id. at ¶ 11-12. The trial court granted
summary judgment in favor of the vet because the owners’ claim for monetary
damages was speculative. Id. at ¶ 7. The Third District affirmed, finding that the
misdiagnosis caused no loss in value to the alpaca itself, and there was no evidence
as to what the monetary damages were. Id. at ¶ 12. 180 contends that Metron’s
damages were likewise speculative because Metron presented no evidence of the
specific damages it was entitled to.
180 also points to Lee v. Cooke, 11th Dist. Lake No. 2018-L-045, 2019-
Ohio-1163, in which Cooke and the country club he owned sued a former employee
to recover funds that the former employee allegedly took from the country club. Id.
at ¶ 2-6. The former employee testified that the funds went toward the country
club’s expenses. Id. at ¶ 8-9. Cooke’s ex-wife, “who has no golf-course experience
or first-hand information as to the operation of the” golf course, testified as to which
expenses “she thought may or may not be necessary to operation of a golf course.”
Id. at ¶ 9. Cooke himself also testified that he had no “exact numbers” that he
claimed that the former employee took that should have belonged to the country
club. Id. at ¶ 19-21. The trial court granted the former employee’s motion for
directed verdict for Cooke’s failure to establish damages. Id. at ¶ 10. On appeal,
Cooke argued that the jury should have been allowed to determine the issue of
damages. Id. at ¶ 15. The Eleventh District affirmed the trial court’s judgment,
finding that Cooke’s testimony failed to establish damages, and his ex-wife’s
testimony as to which expenses were for the golf course “was pure speculation.” Id.
at ¶ 15-17. 180 draws a comparison between Cooke’s testimony that he had no “exact
numbers” and Metron’s counsel’s decision to “never” ask Dr. Tsirikos-Karapanos
how much Metron was “financially harmed.”
Metron argues that Cooke is distinguishable because it involved a
directed verdict instead of a JNOV motion, and although the court in Cooke could
consider only the plaintiff’s evidence, we must consider all the evidence presented
at trial. This is a distinction without a difference in this case because even looking
at all the evidence presented at trial in the light most favorable to Metron, there is
no evidence showing that Metron incurred damages. Metron also contends that
Cooke “attempted to distinguish a substantive split” between the Eighth and
Eleventh Districts by noting that once the fact of damage is established with
reasonable certainty, the plaintiff has latitude to prove the amount of the loss. We
recognize that Cooke cites an Eighth District case for this proposition of law, but
there is no discussion or acknowledgement of a district split on this issue. Lastly,
Metron points out that Cooke is from the Eleventh District and has never been cited.
We acknowledge that Cooke is not binding authority, but we find it persuasive.
Metron identifies the following evidence to support its award for
damages:
 Dr. Tsirikos-Karapanos testified that Metron would have never
entered the agreement with 180 if it knew how 180 would
conduct itself.
 180 developed its own product, stockpiled Metron’s product to
sell in the meantime, and failed to notify Metron of its plans.
 At the time it entered into the Agreement, 180 was a[t] “ground
zero” with respect to product sales. But by 2017, 180’s annual
revenue had grown to $562,000, and CytoDetox was its “best
seller.”
 180 paid Metron $13 per bottle of CytoDetox and sold them to
customers at $45-$84 per bottle.
 After the termination of the distribution agreement, 180 sold at
least 6,700 bottles of Metron’s product in 2018.
 180’s revenue has “definitely” increased in the years following
the termination, totaling nearly $1 million in 2019.
 After the agreement termination, Metron was unable to find a
new distributor and saw a “dramatic decline” in its sales volume.
Metron maintains that 180 did not object to the jury instruction
regarding contract damages or the lack of jury interrogatories, and we must
therefore presume that the jury followed the instruction. The instruction stated as
follows:
The law provides that a person who has been damaged by a breach of
contract shall be fairly and reasonably compensated for his or her loss.
In determining the damages, if any, you will allow an amount that will
reasonably compensate the injured person for all losses that are the
natural and probable result of the breach.
Metron emphasizes that 180 did not request, and the trial court did not submit,
special jury interrogatories that would have differentiated between the types of
damages the jury was awarding or the theories of breach. Metron points out that we
therefore do not know whether the jury awarded damages for 180’s non-territory
sales to consumers or for publicizing an unapproved brochure, for example, or how
it calculated its award. Metron maintains that 180 is therefore limited to challenging
the jury’s verdict “as a whole.”
Jury interrogatories to clarify how the jury reached its damages award
would have certainly been helpful to “‘test the correctness of the general verdict
returned.’” Freeman v. Norfolk & W. Ry. Co., 69 Ohio St.3d 611, 613-614, 635
N.E.2d 310 (1994), quoting Bradley v. Mansfield Rapid Transit, Inc., 154 Ohio St.
154, 160, 93 N.E.2d 672 (1950). But the lack of jury interrogatories on this topic and
180’s lack of objection do not prevent us from reviewing whether Metron produced
evidence of damages at all. See Bobb Forest Prods. v. Morbark Indus., 151 Ohio
App.3d 63, 2002-Ohio-5370, 783 N.E.2d 560, ¶ 63-64 (7th Dist.) (reviewing each
specific ground upon which the jury could have based its award in the absence of
jury interrogatories differentiating between the types of damages the jury was
awarding).
In this case, the lack of jury interrogatories differentiating between
the theories of breach is inconsequential because Metron produced no evidence that
any of 180’s breaches of the distribution agreement caused it to incur damages. “A
claimant seeking to recover for breach of contract must show damage as a result of
the breach. Damages are not awarded for a mere breach of contract; the amount of
damages awarded must correspond to injuries resulting from the breach.” Corsaro,
8th Dist. Cuyahoga No. 84858, 2005-Ohio-1982, at ¶ 20 (finding plaintiff had not
proven contract damages because the injury was “not the natural consequence” of
the breach).
Metron produced no evidence that it suffered any damages arising
from 180’s sales outside of the United States, sales to nonpractitioners, failure to
maintain appropriate facilities and personnel, publication of the brochure without
prior approval, or continued use of the name “CytoDetox” to sell its own product
after the termination of the distribution agreement. Metron produced no evidence,
for example, that practitioners stopped purchasing CytoDetox because of allegedly
faulty instructions in the brochure, or that Metron lost a particular relationship with
another distributor due to 180’s international sales or sales directly to consumers.
Although Metron produced testimony that it could not find a new distributor for its
Clear Detox Pro, and Dr. Tsirikos-Karapanos thought that was because 180
continued to use the name CytoDetox, Metron produced no evidence of specific
distributors with which it tried to do business and no evidence that those
distributors refused to sell Metron’s Clear Detox Pro because of 180’s continued use
of the name CytoDetox.
Metron does not explicitly state that 180’s breaches of the distribution
agreement caused Metron to lose profits. But to the extent Metron makes such an
argument, it lacks merit. Even if Metron established that it suffered some amount
of lost profits as a result of 180’s breaches of the distribution agreement, Metron
produced no evidence as to what its lost profits might be. See Blain’s Folding Serv.
v. Cincinnati Ins. Co., 2018-Ohio-959, 109 N.E.3d 177 (8th Dist.) (holding that the
plaintiff failed to adequately prove its damages for lost profits because it “failed to
offer any evidence of what those lost profits might be.”) Id. at ¶ 18. To establish lost
profits, Metron must produce more than a “conclusory statement” and must explain
“how that sum was determined.” Rhodes, 71 Ohio App.3d 797, at 809, 595 N.E.2d
441. “Lost profits must be substantiated by calculations based on facts available or
in evidence, otherwise they are speculative and uncertain.” Id. Metron points to the
evidence of 180’s revenue growth, but evidence of 180’s revenue is not evidence of
Metron’s lost profits. Metron produced no testimony or expert report to establish
an amount of lost profits. Metron does not purport to explain how to calculate lost
profits, and its counsel in closing arguments specifically told the jury that the “dollar
figures are for you-all to decide. I’m not going to suggest them.” See MADFAN, Inc.
v. Makris, 2017-Ohio-979, 86 N.E.3d 707 (8th Dist.) (lack of evidence to support a
damages award was further shown “by the fact that plaintiffs’ counsel could not even
offer a number or method of calculating damages during closing argument”).
Accordingly, we find that Metron failed to establish with reasonable
certainty that it suffered damages from any of 180’s breaches of the distribution
agreement. Although Metron may have established (1) the existence of a binding
contract, (2) performance by Metron, and (3) breach by 180, without evidence of
damages resulting from the breach, Metron has failed to establish a claim for breach
of contract. We find that the trial court therefore erred in denying 180’s JNOV
motion. We sustain 180’s first assignment of error.
V. Pretrial and Trial Rulings
In its second assignment of error, 180 requests a new trial on its
claims against Metron. 180 argues that the cumulative effect of many of the trial
court’s rulings before and during trial “constituted abuse of discretion” and deprived
180 of a fair trial. Specifically, 180 challenges the trial court’s denial of three motions
to compel discovery, exclusion of an expert witness, limitation of Phillips’s
testimony to his personal knowledge, and denial of three motions in limine.
Under the cumulative-error doctrine, a judgment can be reversed
when the cumulation of errors prevents a fair trial even if each individual error alone
does not justify reversal. Daniels v. Northcoast Anesthesia Providers, Inc., 2018-
Ohio-3562, 120 N.E.3d 52, ¶ 66 (8th Dist.2018).
We review a trial court’s decisions regarding discovery matters,
motions in limine, and the admissibility of expert testimony for abuse of discretion.
Penix v. Avon Laundry & Dry Cleaners, 8th Dist. Cuyahoga No. 91355, 2009-Ohio-
1362, ¶ 30 (“It is well established that a trial court enjoys considerable discretion in
the regulation of discovery proceedings.”); Halenar v. Ameritech-Ohio
SBC/Ameritech, 8th Dist. Cuyahoga No. 94976, 2011-Ohio-2030, ¶ 28 (“A trial
court’s determination of the admissibility of expert testimony * * * [and] a trial
court’s ruling on a motion in limine is left to the sound discretion of the trial court.”).
An abuse of discretion connotes that the trial court’s attitude was unreasonable,
arbitrary, or unconscionable. Ruwe v. Bd. of Twp. Trustees, 29 Ohio St.3d 59, 61,
505 N.E.2d 957 (1987). “Appellate courts should defer to trial judges, who witnessed
the trial firsthand and relied upon more than a cold record to justify a decision.”
Harris v. Mt. Sinai Med. Ctr., 116 Ohio St.3d 139, 2007-Ohio-5587, 876 N.E.2d
1201, ¶ 36.
We address 180’s arguments separately regarding the motions to
compel, expert rulings, and motions in limine.
A. Motions to Compel Discovery
180 argues that the trial court abused its discretion in denying its
three motions to compel Metron to produce certain categories of documents,
including documents related to a settlement in a different lawsuit, Metron’s internal
communications about HCF concentrate, and the results of Metron’s internal testing
of the HCF concentrate and HCF-C final product. 180 contends that the denials of
the motions to compel prevented it from presenting “a considerable amount of
evidence” and prejudiced it at trial.
“‘Ohio has a liberal discovery policy which, subject to privilege,
enables opposing parties to obtain from each other all evidence that is material,
relevant and competent, notwithstanding its admissibility at trial.’” Nemcek v.
Northeast Ohio Regional Sewer Dist., 8th Dist. Cuyahoga No. 98431, 2012-Ohio-
5516, ¶ 8, quoting Fletcher v. Nationwide Mut. Ins. Co., 2d Dist. Darke No.
02CA1599, 2003-Ohio-3038, ¶ 14, citing Civ.R. 26(B)(1). While discovery should be
liberally allowed, a trial court is vested with broad discretion in discovery matters.
Roe v. Planned Parenthood S.W. Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-
2973, 912 N.E.2d 61, ¶ 82. Notwithstanding Ohio’s liberal discovery provisions, a
trial court is vested with the authority to limit pretrial discovery to prevent an abuse
of the discovery process. Arnold v. Am. Natl. Red Cross, 93 Ohio App. 3d 564, 575,
639 N.E.2d 484 (8th Dist.1994).
1. Documents Related to Prior Litigation
In May 2019, 180 subpoenaed LifeHealth Science, a lab where
Dr. Tsirikos-Karapanos worked before he created Metron. 180 sought a settlement
agreement from litigation between LifeHealth Science and Metron in 2014,
communication leading to the settlement, and all documents relating to the
ownership and development of HCF-C. 180 then broadened the request to the entire
case file to “reduce the burden” so that LifeHealth Science would not need to sort
through the documents itself. Metron filed a motion to quash the subpoena,
explaining that as part of the settlement, the owner of LifeHealth Science executed
an affidavit stating that LifeHealth Science “does not contest Dr. Tsirikos-
Karapanos’s ownership and rights to any and all patents filed and/or issued as of the
date of this affidavit and any rights emanating therefrom.” 180 then filed a motion
to compel the documents from either Metron or LifeHealth Science.
The trial court held a hearing on the matter, and in a later judgment
entry, the trial court granted Metron’s motion to quash the subpoena and denied
180’s motion to compel. In the detailed judgment entry, the trial court explained
that the current case between 180 and Metron involves the “alleged representations
in marketing and instruction for use of the product, the alleged concentration of the
product supplied, and the alleged breaches of the [distribution] agreement.” The
trial court continued that neither party raised a claim about “the ownership or patent
rights of the product or Metron’s ability to sell its product.” The trial court
concluded that, therefore, the documents 180 sought “are irrelevant to this matter,
unduly burdensome, and require[] disclosure of privileged or otherwise protected
matter pursuant to Civ.R. 45(C)(3).”
Civ.R. 26(B)(1) provides that, in general, “[p]arties may obtain
discovery regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action[.]” 180 sought discovery regarding the
ownership of HCF-C, but its claims were based on allegations regarding
misrepresentations of how to consume CytoDetox and the concentration of HCF in
CytoDetox. 180 did not allege in its complaint that the distribution agreement was
void because Metron did not own HCF-C. Therefore, we find that the trial court did
not abuse its discretion when it precluded 180 from obtaining discovery irrelevant
to its claims. See Janezic v. Eaton Corp., 8th Dist. Cuyahoga No. 99897, 2013-Ohio-
5436, ¶ 16 (holding trial court did not abuse discretion where the plaintiff sought
discovery that had no relevance to his claims).
2. Internal Communications and Testing
In August 2019, 180 filed a motion to compel Metron to provide a
“forensic image of [its] internal computers and a harvest of all e-mails for both the
professional and personal accounts” of Metron’s employees. 180 argued that after
taking depositions, it had proof that Metron withheld a “substantial number” of
relevant documents, including “testing of the HCF-C concentrate,” testing of the
finished CytoDetox product, and “electron scanning microscopy testing.” 180
maintained that Metron could not be trusted to produce documents responsive to
180’s discovery requests, and forensic imaging of their computers and an email
“harvest” is warranted. After briefing, the trial court denied 180’s motion,
explaining that it “weighed and considered the significant privacy and
confidentiality concerns inherent in imaging against the utility or necessity of the
imaging.” But the trial court stated in its judgment entry that “if discovery disputes
remain, the parties may file motions to compel for any specific and clearly defined
items for production.”
In September 2019, 180 filed another motion to compel, identifying
six categories of documents: (1) testing results of Metron’s HCF concentrate, (2)
results of electron microscopy testing of HCF and HCF-C, (3) internal Metron
correspondence regarding HCF and HCF-C, (4) communications between Metron
and third parties relating to 180 or Phillips, (5) documents relating to Metron’s
claims for breach of contract and tortious interference, and (6) correspondence
between Metron and 180’s former CFO, Sean Behun. In its appellate brief, 180
argues that the most important documents were those relating to “internal testing
of concentration” because they directly related to 180’s allegations that CytoDetox
did not contain the “critical amount” of the active ingredient.
In its opposition to 180’s motion to compel, and again in its appellate
brief, Metron argued that 180 never sought in its discovery requests documents
relating to the testing of the HCF concentrate. Metron highlighted the distinction
between the HCF concentrate that it produces in its lab and the bottles of CytoDetox
that the contract manufacturing organizations create by adding water and vitamin
C to the HCF concentrate. Metron maintained that electron microscopy testing was
performed only on the HCF concentrate, not on the HCF-C final product. Regarding
communications, Metron claimed that the requests for “all communications” were
too broad, it already produced “specifically responsive” communications, it
stipulated it would not contest the authenticity of emails from 180, and it has not
challenged 180’s subpoenas to Metron’s contract manufacturing and research
organizations. The trial court denied 180’s motion to compel without opinion.
The trial court did not abuse its discretion in denying these motions
to compel. As an initial matter, 180 does not argue on appeal that the trial court
erred by refusing to order an imaging of Metron’s computers and harvesting
Metron’s email. Regarding the test results for the HCF concentrate, a review of 180’s
discovery requests shows that 180 never requested documents related to the testing
of HCF concentrate. Instead, 180 requested documents relating to “HCF-C” or
“CytoDetox.” 180 does not dispute this and implies that such a request includes the
HCF concentrate. But the test results for the finished product — not the HCF
concentrate — would be the documents relevant to 180’s allegations that CytoDetox
does not contain any HCF concentrate and is instead simply ionized water. Metron’s
test results for the HCF concentrate would be meaningless if, as 180 claims, the
concentrate was not actually in the finished CytoDetox product. Furthermore, given
Metron’s representation that it produced all relevant communication, combined
with the additional documents 180 obtained directly from Metron’s contract
manufacturing and research organizations, we find that the trial court’s decisions to
deny these motions to compel were not unreasonable, arbitrary, or unconscionable.
B. Expert Rulings
Next, 180 argues that the trial court erred when it excluded its expert,
Dr. Ball, and refused to qualify Phillips as a party expert.
1. Exclusion of Dr. Ball
180 argues that the trial court abused its discretion by striking the
proposed testimony and expert report of Dr. Ball, who would have testified that he
designed a procedure to test the amount of HCF in CytoDetox samples, that he
secured a facility (Jordi Labs) to run the test, and that the test results show that the
CytoDetox samples contained only a “miniscule fraction” of HCF. 180 contends that
cases should be decided on their merits, and the trial court’s decision to strike the
expert report for being untimely prevented the jury from considering highly
probative evidence. 180 also argues that the expert-disclosure deadline became
moot when the trial court later continued the trial date by several months.
“Trial courts have broad discretion in managing their dockets, setting
case schedules and imposing discovery sanctions for violations of court rules and
scheduling orders, including the exclusion of expert witnesses who are not timely
disclosed.” Sonis v. Rasner, 2015-Ohio-3028, 39 N.E.3d 871, ¶ 40 (8th Dist.2015).
Cuyahoga County Common Pleas Court Loc.R. 21.1 Part(I)(A) provides in relevant
part that parties “shall submit expert reports in accord with the time schedule
established at the Case Management Conference. Upon good cause shown, the
Court may grant the parties additional time within which to submit expert reports.”
Furthermore, pursuant to Part(I)(B) of this rule, “unless good cause is shown, all
supplemental [expert] reports must be supplied no later than thirty (30) days prior
to trial.”
On August 17, 2018, the trial court extended the deadline for the
parties to submit expert reports. The order imposed a deadline for 180 and Phillips
to disclose expert reports by October 31, 2018. 180 and Phillips did not object to this
deadline or at any point request a continuance or extension. But on August 1, 2019,
180 and Phillips filed an amended pretrial statement that disclosed for the first time
Dr. Ball as an expert witness. The amended pretrial statement provides that they
will call Dr. Ball and “a representative of Jordi Labs LLC to provide expert testimony
regarding the information contained in Dr. Ball’s and Jordi Labs’ expert reports,”
which were being submitted separately. This filing was 9 months after the deadline
to disclose expert reports and less than 30 days before the scheduled trial. Metron
and Dr. Tsirikos-Karapanos moved to strike the experts, and the trial court granted
the motion because 180 and Phillips produced the experts after the deadline, “failed
to seek an extension of time to produce an expert,” and produced the experts only
20 days before trial.
180 cites to Booker v. Revco DS, Inc., 113 Ohio App.3d 540, 544, 681
N.E.2d 499 (8th Dist.1996), for the proposition that when an expert report requires
results from an independent laboratory and the testing will take 60 days, the trial
court abuses its discretion in not extending the expert deadline to allow the testing
and report. 180 contends that, like in Booker, Dr. Ball’s expert report was late
because of a delay in getting subpoena responses necessary to conduct the testing
and the need to secure a lab. However, the plaintiff in Booker moved for an
extension of time to file an expert report, and the Eighth District found that the trial
court abused its discretion in not granting the extension. But 180 did not file a
motion for extra time. If 180 anticipated delays in obtaining subpoena response and
the lab-testing process, it should have alerted the court ahead of time and sought an
extension.
We are not persuaded by 180’s argument regarding the trial court
continuing the trial date. A trial court has discretion to continue a trial date without
also continuing the deadline for disclosing expert witnesses. Paugh & Farmer, Inc.
v. Menorah Home for Jewish Aged, 15 Ohio St.3d 44, 472 N.E.2d 704 (1984) (“The
subsequent postponement of the trial date did not lead to a reasonable presumption
that the filing deadline was extended as well.”); see also Cox v. Greene Mem. Hosp.,
2d Dist. Greene No. 2000-CA-46, 2000 Ohio App. LEXIS 3942, 9-10 (Sept. 1, 2000)
(The plaintiff “acknowledged that it would have been within the trial court’s
discretion to continue the trial date without also continuing the deadline for
disclosing expert witnesses.”). Given 180’s delay in producing Dr. Ball as an expert
and failure to seek an extension of time, we find that the trial court did not abuse its
discretion when it continued the trial date but did not extend the expert deadlines.
After reviewing the record, we find that the trial court acted within
the wide range of its discretion and was not unreasonable, arbitrary, or
unconscionable in striking 180’s untimely expert disclosure.
2. Limitation of Phillips’s Testimony
180 also argues that the trial court erred in preventing Phillips from
testifying about the contents of Dr. Ball’s expert report and in refusing to qualify
Phillips as an expert himself.
On January 28, 2020, Metron filed a motion in limine to prevent
Phillips from testifying about the contents of Dr. Ball’s report, citing to 180’s trial
brief in which 180 stated that “there is nothing that prevents Warren Phillips from
testifying to these facts [that CytoDetox lacked clinoptilolite].” The trial court
granted the motion, explaining that objections to Phillips’s testimony may be made
at trial but that Phillips “is precluded from testifying as to the data and opinions
contained in the report as he did not conduct the testing nor did he author the
report.” 180 first contends that the trial court abused its discretion in granting this
motion in limine because it was untimely. 180 also argues that the exclusion of
expert witnesses pursuant to a motion in limine can be reversible error, citing to
Brannon v. Austinburg Rehab. & Nursing Ctr., 190 Ohio App.3d 662, 2010-Ohio-
5396, 943 N.E.2d 1062 (11th Dist.2010), and Estate of Thompson v. Club Car, Inc.,
5th Dist. Richland No. 2009-CA-0120, 2010-Ohio-2593.
We disagree with these arguments. A trial court has discretion to
grant an untimely pretrial motion. McGowan v. Cuyahoga Metro. Hous. Auth., 8th
Dist. Cuyahoga No. 79137, 2001 Ohio App. LEXIS 3699, 4 (Aug. 23, 2001). And
Brannon and Estate of Thompson do not stand for the principle that it is reversible
error to exclude an expert witness via a motion in limine. In Brannon, the trial court
erred in granting a motion in limine to exclude an expert witness because the trial
court applied the wrong qualification standards. Id. at ¶ 19. In Estate of Thompson,
the trial court erred in granting a motion to exclude an expert witness because the
witness’s testimony complied with Evid.R. 702(C).
180 also argues that the trial court erred in not qualifying Phillips as
an expert. Evid.R. 702 states:
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the
knowledge or experience possessed by lay persons or dispels a
misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill,
experience, training, or education regarding the subject matter of the
testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or
other specialized information. To the extent that the testimony reports
the result of a procedure, test, or experiment, the testimony is reliable
only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is
based is objectively verifiable or is validly derived from widely
accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably
implements the theory;
(3) The particular procedure, test, or experiment was conducted
in a way that will yield an accurate result.
At trial, Phillips testified that he double majored in environmental
science and geology in college, he has a master’s degree in geology, and he pursued
a thesis in aqueous chemistry, which he described as “sediment interaction of heavy
metals and aqueous environment in the sediments in a coal mine pit lake.” He said
he spent time in a lab in the geology department analyzing “low level metal,” where
he conducted an “acqua regia microwave digestion” that would break down the
contents of a water sample to allow for measurement at “very low levels in the ICP
mass spectrophotometer.” He testified that he ran a microwave digestion over one
hundred times and spent over 500 hours running the ICP mass spectrophotometer
and analyzing water samples. He also worked “cleaning up the hazardous waste for
U.S. Forest Service, Army Corps of Engineers, Bureau of Land Management.” In
this role, he used mass spectrometry to analyze soil samples to “figure out how many
heavy metals were in the soil.”
At trial, after this testimony, 180’s counsel asked the trial court to
qualify Phillips as an expert in chemistry, “specifically the analysis of samples for the
presence of heavy metals using microwave digestion and ICP mass spectrometry.”
Metron’s counsel objected, and the parties presented argument out of the jury’s
presence about whether Phillips was qualified to testify regarding the results of the
microwave digestion tests that Dr. Ball designed to analyze the CytoDetox samples.
After considering extensive arguments that afternoon and the following morning,
the trial court declined to qualify Phillips as an expert. The trial court explained that
Phillips did not design or conduct the test and therefore could not be examined
about the test process and whether the test was conducted properly. The trial court
ordered that Phillips could not testify to the contents of Dr. Ball’s report but that he
could testify to his personal knowledge and how he reached the conclusion that he
believes CytoDetox is simply ionized water.
After reviewing the record, we find that the trial court’s decision to
limit Phillips’s testimony to his personal knowledge was not unreasonable,
arbitrary, or unconscionable. 180 cites to cases to show that relevant college
experience is sufficient to qualify someone as an expert witness. But the trial court
did not base its decision on Phillips’s lack of education. Rather, the problem was a
lack of foundation. Although Phillips spent time in graduate school running the
types of tests that Dr. Ball conducted, Phillips did not design or conduct the tests on
the CytoDetox samples. He could not be examined to establish the reliability of the
test design or whether the test “was conducted in a way that [would] yield accurate
results.” Evid.R. 702(C)(3). Accordingly, the trial court did not abuse its discretion
in refusing to qualify him as an expert and in prohibiting him from testifying about
the details of the test and the contents of Dr. Ball’s report.
C. Motions in Limine
Lastly, 180 argues that the trial court abused its discretion when it
denied 180’s motions in limine to exclude reference to Pompa and his criminal
record, to preclude testimony about 180’s lack of compliance with FDA regulations,
and to prevent Metron from arguing that 180 breached the distribution agreement
based on theories not included in Metron’s complaint.
1. FDA Regulations Violations and Unpled Bases for Breach of
Contract
180’s motions to exclude testimony about its failure to comply with
FDA regulations and to prevent Metron from arguing unpled bases for breach of
contract are based on related concepts, so we will address them together. In
December 2019, 180 filed its motion to exclude reference to alleged violations of
FDA regulations, arguing that the issue is irrelevant and calls for legal conclusions,
and such testimony would unfairly prejudice 180. The trial court denied the motion
before trial. During trial, 180 filed a motion to prevent Metron from arguing
“[unpled] breach of contract claims.” In this motion, 180 argued that Metron was
advancing a theory that 180 breached the distribution agreement because it violated
FDA regulations and was unqualified to sell CytoDetox, but Metron did not allege
this theory for breach of contract in its complaint. The parties presented argument
on this motion the next morning out of the presence of the jury, and the trial court
denied the motion. 180 contends that the trial court abused its discretion when it
denied both motions.
Ohio law is clear “that a ruling on a [pretrial] motion in limine may
not be appealed and that objections to the introduction of testimony or statements
of counsel must be made during the trial to preserve evidentiary rulings for appellate
review.” Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d
1049, ¶ 34; see also U.S. Bank v. Amir, 8th Dist. Cuyahoga No. 97438, 2012-Ohio-
2772, ¶ 26 (“[A] ruling on a motion in limine may not be appealed unless the claimed
error is preserved by an objection made during trial.”). This is because a “trial
court’s ruling on a motion in limine is tentative and precautionary in nature,” and
the trial court “is at liberty to change its ruling on the disputed evidence at trial.”
U.S. Bank at ¶ 26.
The record shows that 180 did not properly preserve its challenge to
the trial court’s denial of these motions in limine. During the presentation of
evidence at trial, 180 did not object to any of the testimony about whether 180
complied with FDA regulations. 180 has thus waived all but plain error. State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 133 (defense
waived all but plain error when it did not renew its objections at trial after its motion
in limine). Plain errors are those that prejudice the appellant and that “are clearly
apparent on the face of the record.” Wells Fargo Bank, N.A. v. Lundeen, 8th Dist.
Cuyahoga No. 107184, 2020-Ohio-28, ¶ 12. Courts reviewing plain error in civil
cases “must proceed with the utmost caution.” Risner v. Ohio Dept. of Natural
Resources, 144 Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 27.
As to the trial court’s denial of 180’s pretrial motion to exclude
testimony about alleged FDA violations, 180 argues that Dr. Tsirikos-Karapanos’s
opinions about 180’s lack of FDA compliance severely prejudiced 180 and were
improper because lay witnesses cannot testify to legal conclusions. Specifically, 180
challenges Dr. Tsirikos-Karapanos’s statement that he would not have entered the
distribution agreement with 180 if he knew 180 “did not have any FDA compliance
officers in their company or any affiliated company.” While we do not dispute the
principle that lay witnesses may not offer legal conclusions, the trial transcript
reflects that Dr. Tsirikos-Karapanos spoke generally about his impression of 180’s
operations based on his personal knowledge. 180 points to no testimony where a
witness specifically stated that 180 violated a particular FDA regulation. We can
identify no error clearly apparent on the face of the record.
Turning to the trial court’s denial of 180’s motion to prevent Metron
from arguing breach of contract based on 180’s supposed violations of FDA
regulations, we likewise find no plain error. Although the jury found that 180
breached the distribution agreement, the record does not reveal the specific basis
for this finding. We cannot determine from the record whether the jury concluded
that 180 breached the agreement because it found that 180 sold CytoDetox outside
the United States, that 180 did not obtain Metron’s approval for the contested
brochure, or that 180 violated FDA regulations. The jury could have relied on a
combination of these findings or another finding altogether, and the record does not
show that the jury found breach of contract because it found that 180 violated FDA
regulations. Accordingly, it is not apparent on the face of the record that Metron’s
argument that 180 breached the agreement because it violated FDA regulations
prejudiced 180. We therefore find no plain error.
2. Pompa Conviction
180 also argues that the trial court abused its discretion in denying its
motion in limine to exclude testimony about a criminal conviction of Phillips’s
business partner, Dan Pompa. At trial, Metron’s counsel elicited testimony from
Phillips that Pompa pleaded guilty to “stealing $1.4 million from orphans.” On
redirect examination, Phillips explained that Pompa and his wife adopted two
children of their close friends when the friends were killed. He said that the children
had a trust, and he agreed that the Pompas “accepted responsibility that what they
had done with the funds was wrong.” He stated that the Pompas are paying
restitution, and the children are still living with them. Dr. Tsirikos-Karapanos later
testified, twice, that he would not have trusted 180 if he knew that Pompa “stole
money from seven-year-old orphans.” 180 contends that this evidence is irrelevant
to the case and highly prejudicial, and Pompa was not a witness at trial.
Metron argues that 180 waived its challenge to the trial court’s denial
of this motion in limine because it did not object to Dr. Tsirikos-Karapanos’s
statements. However, the trial transcript reflects that 180’s counsel did object to the
introduction of evidence of Pompa’s conviction when Metron’s counsel first
introduced it:
Metron’s Counsel: In terms of credibility for the business and
helping sales, does pleading guilty to stealing
$1.4 million from orphans —
180’s Counsel: Objection. Sidebar, your Honor?
The Court: Overruled.
Metron’s Counsel: Does Dan Pompa pleading guilty to stealing
$1.4 million from orphan children affect your
sales or credibility?
Phillips: I can’t say sales, but credibility for sure.
Accordingly, 180 preserved its challenge to this evidence, and we review its
admission for abuse of discretion.
Pursuant to Evid.R. 402, “[e]vidence which is not relevant is not
admissible.” Evid.R. 403(A) states that, “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury.”
The relevancy of Pompa’s conviction is questionable. Metron
contends that Pompa’s conviction is relevant to the credibility of Phillips, who chose
to do business with Pompa, and to 180’s failure to have appropriate personnel. But
Pompa was not a party to this lawsuit and was not a witness at trial, so his credibility
was not at issue. And the characterization of “stealing from orphans” is certainly
highly prejudicial. We find that the danger of unfair prejudice substantially
outweighed the probative value of the evidence of Pompa’s conviction. We therefore
find that the trial court abused its discretion in allowing evidence of Pompa’s
criminal conviction.
However, this is the only error we have identified in the trial court’s
rulings. The cumulative error doctrine does not apply where, as here, “there have
not been multiple errors.” O’Malley v. O’Malley, 8th Dist. Cuyahoga No. 98708,
2013-Ohio-5238, ¶ 95; see also Snell v. Snell, 5th Dist. Richland No. 13CA80, 2014-
Ohio-3285, ¶ 64 (“[W]e do not find the [cumulative error] doctrine applicable here
where there have not been multiple errors.”).
Accordingly, we find that the cumulative error doctrine does not
apply here, and 180 is not entitled to a new trial on its claims against Metron. We
therefore overrule 180’s second assignment of error.
The trial court’s judgment on 180’s motion for judgment
notwithstanding the verdict is reversed and remanded with instructions for the trial
court to enter judgment in favor of 180 on Metron’s claim for breach of contract. As
Metron has not succeeded on any of its claims against 180, we also vacate Metron’s
awards of prejudgment interest and legal costs, expenses, and fees.
It is ordered that appellant recover from appellees the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR