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

IN THE COURT OF CLAIMS OF OHIO

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 

FREE STATE OF BAVARIA, 

REPRESENTED BY THE UNIVERSITY 

OF WURZBURG

 Plaintiff

 v. 

THE OHIO STATE UNIVERSITY

 Defendant

Case No. 2022-00495JD

Judge David E. Cain

DECISION
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 nonexclusive 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 forprofit, 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 InterInstitutional 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 textwriters 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 InterInstitutional 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 ZwirnerBaier 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-Ohio661, ¶ 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-ofcontract 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-forprofit 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 InterInstitutional 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-Ohio4868, ¶ 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 InterInstitutional 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.]

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

FREE STATE OF BAVARIA, 

REPRESENTED BY THE UNIVERSITY 

OF WURZBURG

 Plaintiff

 v. 

THE OHIO STATE UNIVERSITY

 Defendant

Case No. 2022-00495JD

Judge David E. Cain

JUDGMENT ENTRY