[Cite as Ma v. Cincinnati Children's Hosp. Med. Ctr., 2024-Ohio-5079.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
JUN MA, PH.D., : APPEAL NO. C-240166 TRIAL NO. A-1606910 Plaintiff-Appellant, :
: VS. O P I N I O N. :
CINCINNATI CHILDREN’S : HOSPITAL MEDICAL CENTER, : Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 23, 2024
Mezibov Butler, Marc D. Mezibov, Brian Butler, and Dennis Gleason, for Plaintiff- Appellant,
Taft Stettinius & Hollister, LLP, Beth A. Bryan, Annie McClellan, and W. Stuart Dornette, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶ 1} This employment dispute spans almost eight years of litigation, three appeals,
and one trial. Without a formal written employment agreement, the parties dispute the
nature of the employment agreement between them, particularly what duties were bestowed
on each side. After two previous appeals, the parties finally proceeded to a six-day jury trial,
and the jury ultimately found for the defendant-employer in a 6-2 vote. The employee-
appellant, Jun Ma, Ph.D., now appeals to this court, presenting three assignments of error.
After a comprehensive review of the record, however, we uphold the jury’s verdict, overrule
all three assignments of error, and affirm the lower court’s judgment on all fronts.
I.
{¶ 2} The crux of this dispute concerns whether Dr. Ma, a professor and researcher
at defendant-appellee Cincinnati Children’s Hospital Medical Center (“CCHMC”), had to
maintain a specific funding level through outside sources to keep his job. Unfortunately, the
parties did not specify any such requirements at the outset of their relationship; hence their
litigation odyssey.
{¶ 3} In September 1992, Dr. Ma relocated to CCHMC, accepting a position in the
Department of Pediatrics as a researcher with professorship duties. He negotiated his
original contract with Dr. John Hutton, and during trial, Dr. Ma emphasized the significance
of this position because of the tenure-track opportunity it presented, which, in his opinion,
afforded him heightened job security. During trial, Dr. Ma testified that he understood his
original employment agreement to require him to obtain funding for his lab and the
associated costs for running it after several startup years, but he did not believe that he needed
to cover a portion of his own salary. He understood his salary as “hard money,” not requiring
outside funding.
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{¶ 4} Several years later, in 1997, Dr. Ma was promoted by the Reappointment,
Promotion, and Tenure (“RPT”) Committee to an Associate Professor for Pediatrics and was
granted tenure-affiliate status. With this status, CCHMC expected that Dr. Ma would begin
covering the costs of his lab and a portion of his own salary. However, CCHMC did not have
a written tenure policy in place that included important details like these. During trial, Dr.
Ma and other individuals employed by CCHMC offered their belief that, despite the lack of a
written policy, they understood tenure to mean that CCHMC was committed to that
individual’s research goals and provided job security, as those individuals could only be
terminated for “just cause.” But without a written policy regarding tenure, of course, we have
no elaboration on what the parties believed “just cause” meant. Additionally, the term was
never defined by any of the employment letter agreements signed by Dr. Ma, other hospital
policies, or anyone within the department. This lack of a written policy defining the tenure
policy, and consequently, what constituted “just cause,” would prove central to the trial down
the road.
{¶ 5} In 2007, the University of Houston Medical Center recruited Dr. Ma to join
their faculty. Seeing if he could enhance his current position, Dr. Ma informed CCHMC of
Houston’s offer, and it counteroffered with a raise, a full-time tenured professorship position,
and a transfer to the Division of Biomedical Informatics in order to keep him in Cincinnati.
Dr. Ma ultimately accepted CCHMC’s counteroffer and signed a new offer letter (another
letter, unfortunately, wanting in details on the concepts at issue in this litigation). As a
tenured employee, Dr. Ma was required to participate in annual reviews, as opposed to the
periodic reappointments he faced under his original contract. These annual reviews were
conducted by one of the higher-ups within Dr. Ma’s department. Around 2009, issues began
to arise between Dr. Ma and CCHMC, manifested in these reviews.
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{¶ 6} In Dr. Ma’s annual reviews from approximately 2009 to 2015, CCHMC and its
department chairs raised various concerns with his continuous lack of outside funding to
cover his lab costs and salary. Several individuals that conducted his annual reviews
throughout that period echoed the point—Dr. Ma was not doing enough to receive outside
funding grants, which inflicted significant annual costs on CCHMC. Despite this repeated
documentation of Dr. Ma’s failures and the conversations during his annual reviews, he never
questioned CCHMC’s concerns or refuted that this was a duty of his under the employment
contract.
{¶ 7} The same concerns haunted Dr. Ma until 2016, when the chair of his division,
Dr. Pete White, informed him that his employment was terminated with CCHMC. Dr. Ma
objected to CCHMC’s ability to terminate him because, as he understood his tenured position,
he could only be terminated for just cause. Initially, Dr. White insisted that he was actually
an at-will employee who could be fired at any time for almost any reason. However, after
going back-and-forth several times with Dr. Ma and other personnel at CCHMC, Dr. White
informed Dr. Ma that the decision was due to budgeting issues within the department,
exacerbated by his lack of funding. Although Dr. White gave Dr. Ma nine months to figure
out his next steps, Dr. Ma immediately filed suit against CCHMC, alleging fraudulent
inducement and promissory estoppel, and requesting declaratory and injunctive relief.
Several years of litigation and appeals ensued.
{¶ 8} Ma I. In the initial stages of this case, Dr. Ma moved for injunctive relief and
summary judgment on his claims, essentially asserting that he was not an at-will employee
and that CCHMC lacked just cause to terminate his employment. The trial court granted Dr.
Ma’s motion, holding that, as a tenured employee, he could only be fired for just cause and
that he was entitled to due-process-like procedural safeguards before he could be terminated,
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such as a meaningful opportunity to be heard. Unhappy with that decision, CCHMC
appealed. At that point, this Court reversed in part, finding that while Dr. Ma was a tenured
employee, he had no contractual basis for the procedural safeguards outlined by the trial
court. Ma v. Cincinnati Children’s Hosp. Med. Ctr., 2020-Ohio-1471, ¶ 38 (1st Dist.) (“Ma
I”). While the meaning of “tenure” under the agreement was ambiguous, this court held that
Dr. Ma supported his position that it entitled him to removal only for just cause with the
testimony of Dr. Sandra Degen, who was on the RPT Committee at the time he received
tenure-affiliate status, and that CCHMC failed to contest that evidence. Id. at ¶ 20-22.
Because of the lack of contradictory evidence, we saw no genuine dispute as to whether tenure
meant that Dr. Ma could only be terminated for just cause. Id. at ¶ 27. We accordingly
remanded for further proceedings.
{¶ 9} So far, so good. Dr. Ma is a tenured employee.
{¶ 10} Ma II. Following the first appeal, the trial court granted summary judgment in
favor of CCHMC, holding that CCHMC had just cause to terminate Dr. Ma. The exact
definition of “just cause” under the agreement, again, became an issue of interpretation based
on the series of documents that formed the agreement. In reversing the trial court’s grant of
summary judgment, we held that both parties presented conflicting evidence as to their
interpretation of “just cause” under the contract, and because of that, the trial court should
not have granted summary judgment at that juncture. Ma v. Cincinnati Children’s Hosp.
Med. Ctr., 2023-Ohio-1727, ¶ 24 (1st Dist.) (“Ma II”).
{¶ 11} Back to the drawing board for round three, and a trial.
{¶ 12} Ma III. After the second appeal, the case proceeded to a six-day jury trial,
where the jury ultimately found for CCHMC. The main issue presented to the jury was
whether CCHMC had just cause to terminate its relationship with Dr. Ma. Ultimately, the
5 OHIO FIRST DISTRICT COURT OF APPEALS
jury determined that CCHMC did have just cause to terminate Dr. Ma’s employment because
he failed to deliver “on expectations that were repeatedly addressed and unrefuted in annual
reviews, which were acknowledged by [Dr. Ma].” Dr. Ma now appeals again, presenting three
assignments of error regarding the jury instructions, the manifest weight of the evidence, and
evidence and testimony admitted regarding his Chinese heritage and his post-CCHMC
employment.
II.
{¶ 13} In his first assignment of error, Dr. Ma raises two issues with the jury
instructions. Whether a trial court gives a particular jury instruction generally rests within
its discretion, and as such, instructions “will not be disturbed upon appeal unless the record
reflects that the trial court abused its discretion.” State v. Houston, 2010-Ohio-2367, ¶ 20
(1st Dist.). An abuse of discretion occurs when the trial court “exercise[es] its judgment, in
an unwarranted way, in regard to a matter over which it has discretionary authority.”
Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. A particular “jury instruction must be viewed in
the context of the entire charge rather than in ‘artificial isolation.’” Houston at ¶ 20.
A.
{¶ 14} Dr. Ma first challenges how the trial court defined “just cause,” zeroing in on
what documents the jury could consider in determining the meaning of that concept.
{¶ 15} In defining just cause in the jury instructions, the trial court provided:
“Just cause” has no precise definition, but generally it refers to neglect of duty,
dishonesty, or unfaithfulness on the part of the employee. Therefore, what
constitutes “just cause” depends on the context and unique facts of each case .
. . In answering this question you may consider the testimony of the witnesses,
their credibility, and their ability to speak to this issue, the substance of any
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documents that formed the basis of the employment contract between Dr. Ma
and Children’s Hospital or explained that relationship, including the 1992 offer
letter, Dr. Ma’s acceptance, the 1997 tenure document, the 2007 retention
letter, and any other evidence you conclude forms the basis of the
contract . . .
(Emphases added.)
{¶ 16} Dr. Ma believes that this instruction, specifically the bolded portion, gave the
jury free reign to rewrite the contract as it wished, despite this Court’s previous holding that
four documents sat “at the heart” of this agreement—the 1992 offer letter, Dr. Ma’s
acceptance, the 1997 tenure documents, and the 2007 retention letter. See Ma II, 2023-Ohio-
1727, at ¶ 16 (1st Dist.). Therefore, Dr. Ma believes that this Court’s previous holding
essentially cabined the time period to which there is relevant evidence and limited what
documents could be considered part of the agreement, rendering this instruction prejudicial
and an abuse of the trial court’s discretion.
{¶ 17} To be sure, this court noted that the 1992 offer letter, Dr. Ma’s acceptance, the
1997 tenure document, and the 2007 retention letter sat “at the heart of” this contract, but we
did not go further than that because the parties did not have an integrated agreement, and we
were simply responding to the issues presented to us in those respective appeals. And given
the ambiguous nature of the concept of “tenure” in the agreement, the parties might have
found means of elucidating the nature of the contract elsewhere in the record after we set
forth the appropriate legal standard. After all, none of these documents explicitly defined
“just cause,” and similarly, CCHMC never “put forth any tenure policy or document defining
or otherwise explaining the term” as it was understood between 1992 and 1998. Id. at ¶ 16.
Since the term was left undefined by the relevant documents and policies, this court noted
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that it necessitated a consideration of extrinsic evidence in order to decipher the meaning of
“just cause” as it was understood by these parties. Id. at ¶ 20. After considering the ambiguity
of “just cause” in the contract and the competing evidence of what Dr. Ma’s obligations were,
this court made it clear that “a jury [would] ultimately” have to decide the facts and whether
CCHMC had just cause to terminate Dr. Ma. Id. at ¶ 24. We emphasized that our reversal
was “not to say that Dr. Ma’s ongoing failure to obtain sufficient funding is not just cause to
terminate his employment . . . [A] jury may well find that Children’s had just cause . . . ” Id.
at ¶ 25. In other words, all of this posed a jury question.
{¶ 18} Dr. Ma retorts, however, that the trial court asked the jury the wrong question,
enabling the jurors to engage in mischief and reframe the parties’ agreement. But we don’t
see it that way. First, although Dr. Ma takes issue with the documents the trial court included
in its “just cause” instruction, he does not attack how the trial court actually defined “just
cause.” Dr. Ma never contended that the definition—which was the heart of the case—itself
misled the jury, constituted an abuse of the trial court’s discretion, or was in any way
prejudicial to him. Nor could he—Dr. Ma himself proposed this definition of “just cause” in
his own proposed jury instructions. More importantly, he proposed the italicized language in
paragraph 15 above, which doesn’t seem too different from the bolded language about which
he complains. We fail to see a material difference between “any documents that formed the
basis of the employment contract between Dr. Ma and Children’s Hospital or explained that
relationship,” and “any other evidence you conclude forms the basis of the contract.” In other
words, by proposing the former, Dr. Ma cannot, at this point, claim any serious prejudice
from the latter, even if the trial court should have used different verbiage.
{¶ 19} Second, this case presented an issue where extrinsic evidence was necessary to
elucidate the meaning of the contract. It is arguable that the trial court should have said
8 OHIO FIRST DISTRICT COURT OF APPEALS
something that rendered this instruction more precise and carefully focused the jury’s
attention on their duty in sifting through the extrinsic evidence. And while maybe that would
have made the lawyers happy, we doubt that a lay jury would appreciate the difference in the
nuance. On this record, in light of the entirety of the jury instructions and the language
proposed by Dr. Ma, we cannot say that the trial court abused its discretion in providing this
instruction.
B.
{¶ 20} In a related argument, Dr. Ma next takes issue with how the trial court framed
the burden of proof regarding “just cause” in the jury instructions. He maintains that “just
cause” constitutes an affirmative defense under Ohio law, and therefore, the trial court’s jury
instructions should have placed the burden of proving such on CCHMC, rather than himself.
{¶ 21} Dr. Ma argues that if such a burden is placed on plaintiffs in similar cases, it
would require them to prove both a positive and a negative. It would require plaintiffs to
prove that they fulfilled their explicit contractual duties while also negating that they didn’t
do anything that might warrant termination. To Dr. Ma, this burden shifting is incongruous
with one of the foundational concepts of contract law—that the plaintiff only needs to prove
that they performed under the contract.
{¶ 22} Although we understand the point, we do not agree on the present record for
several reasons. Initially, as even Dr. Ma acknowledges, whether “just cause” in employment
contract disputes constitutes an affirmative defense, which would require placing the burden
on the employer, has not been conclusively determined in Ohio. Case law is fairly sparse on
this point, which frankly should not come as much of a surprise, given our recognition in the
previous case that “just cause” does not have any ironclad definition in Ohio case law. Ma II,
2023-Ohio-1727, at ¶ 19 (1st Dist.). What constitutes “just cause” in each case may vary given
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the terms of the employment contract at issue, so the analysis of where the burden falls may
also differ in each case. See Beckman v. Garrett, 66 Ohio St. 136, 142 (1902) (even though
the Supreme Court initially held that it was “sufficient for the employer to show that the
employee was guilty of a default,” it ultimately held that the nature of the employee’s
misconduct did not require the employer to do anything more than refute that the employee
fulfilled their contractual duties); compare McElroy v. Snider Co., 2000 Ohio App. LEXIS
2918, *8 (8th Dist., June 29, 2000), quoting Beckman at syllabus (“‘[I]t is sufficient for the
employer to show that the employee was guilty of a default in duty . . . ’”).
{¶ 23} Second, in some circumstances, as in this case, the issue of whether an
employer has “just cause” to terminate an employee will just be the other side of the coin of
the employee’s performance of their duties under the contract. Reducing this case to its
simplest essence, Dr. Ma insists that he fully performed, whereas CCHMC claims he didn’t.
And there is no question that the employee carries the burden to prove that they performed
their duties under the contract in order to successfully assert a breach-of-contract claim. To
carry that burden in this case, Dr. Ma essentially needed to prove that CCHMC lacked just
cause in terminating his employment due to insufficient funding. Because of this overlap, it
could unduly confuse the jury to give two incongruous instructions about where the burden
falls for the same issue.
{¶ 24} A large portion of this case, including the evidence and witness testimony,
centered around whether Dr. Ma had a contractual duty to cover a portion of his salary and
his lab costs with outside grant funding, which the jury found that he did. Therefore, the
burden of proving a fulfillment of this duty fell on Dr. Ma per the agreed-upon aspects of the
jury instructions, which the jury determined he did not meet. Because Dr. Ma bore the burden
of proving that he fulfilled his contractual funding requirements, it was his burden to prove
10 OHIO FIRST DISTRICT COURT OF APPEALS
that CCHMC lacked just cause to fire him for this reason. Either way, as inferred from the
jury’s “just cause” interrogatory response, CCHMC provided sufficient evidence on its own
behalf that funding was a duty under Dr. Ma’s contract, and he continuously failed to meet
this duty for several consecutive years. We can, of course, appreciate that different flavors of
“just cause” might dictate different answers to this burden allocation question, but we resist
the temptation to speculate on those scenarios.
{¶ 25} On this record, we decline to recognize an inflexible rule of which side bears
the burden of proving just cause in an employment dispute. Other types of “just cause” and
other agreements may persuade us to do so, but we’ll wait and sort that out down the road.
All we decide here is that, given the fact-specific inquiry at hand, Dr. Ma failed to establish
that the trial court abused its discretion when it gave the “just cause” jury instruction. We
accordingly overrule his first assignment of error on both grounds.
III.
{¶ 26} In his second assignment of error, Dr. Ma challenges the trial court’s judgment
as against the manifest weight of the evidence presented at trial. Essentially, Dr. Ma revisits
his previous argument that the trial court’s lack of restriction in what the jury may consider
part of the contract (and the sprawling time period) resulted in a verdict and judgment that
ran counter to the manifest weight of evidence.
{¶ 27} When deciding whether a judgment entered by the trial court is against the
manifest weight of evidence, the appellate court “must always be mindful of the presumption
in favor of the finder of fact.” Eastley v. Volkman, 2012-Ohio-2179, ¶ 21. The manifest-
weight-of-evidence standard refers to whether there is a “‘greater amount of credible
evidence . . . to support one side of the issue rather than the other.’” (Emphasis in original.)
Id. at ¶ 12, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In doing so, “the
11 OHIO FIRST DISTRICT COURT OF APPEALS
appellate court sits as a ‘[thirteenth] juror.’” Id. at ¶ 13. The court must look to and weigh the
“‘evidence and all reasonable inferences, consider[ing] the credibility of witnesses and
determine[] whether . . . the [finder of fact] clearly lost its way and created such a manifest
miscarriage of justice’” so as to justify reversal. Id. at ¶ 20, quoting Tewarson v. Simon, 141
Ohio App.3d 103, 115 (9th Dist. 2001). Needless to say, this poses a considerable burden for
the party challenging the verdict to overcome, for obvious reasons. We have carefully
reviewed the transcript, and to be sure, this was a close case. While both sides scored ample
points, we are unable to say that the manifest weight of the evidence pointed the other
direction.
{¶ 28} Dr. Ma primarily leans on Dr. Degen’s testimony in asserting that the greater
weight of credible evidence supported his position that external funding to cover a portion of
his salary was not a contractual requirement of his. Again, Dr. Degen was the only individual
who testified during trial that played a role in Dr. Ma’s promotions at CCHMC, as she served
on the RPT Committee that granted him tenure-affiliate status in 1998. Therefore, he asserts
that she is the only witness capable of explicating his contractual obligations at the relevant
point in time. During her testimony, she explained that the evaluations were not a basis for
termination or alteration of employment contract terms, and because of this, Dr. Ma
maintains that the jury should not have factored them into its calculus. Therefore, his
reasoning goes, because CCHMC relied on the evaluations that noted Dr. Ma’s failures in
order to support its termination, he provided the greater weight of credible evidence.
Additionally, Dr. Ma features the testimony of Dr. White, who said that during his time there,
Dr. Ma was the only investigative faculty member he terminated for a lack of funding,
insinuating then that such funding was not really a contractual requirement. Dr. Ma packages
12 OHIO FIRST DISTRICT COURT OF APPEALS
all of this together to demonstrate that he provided the greater weight of credible evidence
and supported his position.
{¶ 29} The problem, of course, is that this tells only one side of the story. CCHMC is
quick to showcase its own evidence, highlighting testimony from Drs. Boat, Strauss, and
White, who were, at various times, in positions managing employee contracts and relations
like Dr. Ma’s. Dr. Boat began his career at CCHMC in 1993 as the chair of the Department of
Pediatrics and the Director for Research Foundation, and at trial, he shared his perspective
on the general expectations of faculty to fund their research and a portion of their own salary.
Dr. Strauss succeeded Dr. Boat and similarly testified regarding his understanding of faculty
funding expectations at the time he entered his role. In fairness, neither of these individuals
ever personally negotiated Dr. Ma’s employment contracts. But they spoke to Dr. Ma’s
repeated failures to obtain external funding to cover his research costs and salary, as noted in
his annual evaluations. At the time of Dr. Ma’s termination, Dr. White was his supervisor.
Dr. White’s deposition was read into the record in which he stated that he repeatedly
communicated to his faculty that they had to reach certain levels of funding in order to
“sustain” their research and that in his experience, such expectations were also in employee
offer letters. Dr. White also recounted Dr. Ma’s repeated failures in obtaining sufficient
funding, even though such expectations were communicated in his annual evaluations over
several years. In addition to this testimony and the evaluations, CCHMC relied on the 1992
and 2007 offer letters, which it contended both contained Dr. Ma’s obligation to cover a
portion of his own salary with external grants.
{¶ 30} Importantly, Dr. Ma did not object to the pertinent testimony of either Dr.
Strauss or Dr. Boat. He objected to their ability to testify as to the terms of his contract
specifically, but he did not object to their overall ability to speak to the contractual
13 OHIO FIRST DISTRICT COURT OF APPEALS
expectations of faculty when they were supervisors. Dr. Ma filed a motion in limine shortly
before the start of trial in an attempt to exclude Dr. White’s testimony, arguing that his name
was not included on CCHMC’s witness list. But Dr. Ma made no objection that the contents
of Dr. White’s deposition were not relevant (nor does he advance any argument on appeal to
exclude that evidence). And while Dr. Ma takes issue with the jury’s ability to consider the
evaluations, he was actually the first to mention the documents at trial.
{¶ 31} Again, this was an extremely close case, as outlined by the evidence recounted
above. Both sides presented evidence that spoke to the main issue at hand. But ultimately
this was a question for the jury, and Dr. Ma failed to demonstrate to us that the jury’s
conclusion was contrary to the greater weight of credible evidence or that he was in any way
prejudiced by evidence that he originally brought attention to. He essentially asks us to hold
that his evidence was more persuasive. But courts should “always be mindful of the
presumption in favor of the finder of fact.” Eastley, 2012-Ohio-2179, at ¶ 21. Based on its
verdict, the jury assigned greater weight to CCHMC’s evidence and position, and Dr. Ma has
failed to show why we should reject the jury’s decision.
{¶ 32} We accordingly overrule Dr. Ma’s second assignment of error.
IV.
{¶ 33} In his third assignment of error, Dr. Ma contends that the trial court
improperly admitted testimony in the form of CCHMC’s repeated references to his Chinese
heritage and the Chinese government, which he believes was an attempt to stoke xenophobic
fears and biases in the minds of the jury.
{¶ 34} Relevant evidence is admissible unless “its probative value is substantially
outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the
jury.” Evid.R. 403. In deciding whether to admit evidence, the “trial court has broad
14 OHIO FIRST DISTRICT COURT OF APPEALS
discretion . . . and, absent an abuse of [that] discretion . . . [the appellate court] will not reverse
a trial court’s ruling on” the admissibility of a particular piece of evidence. Hounchell v.
Durrani, 2023-Ohio-2501, ¶ 34 (1st Dist.). An abuse of discretion occurs when the trial court
“exercise[es] its judgment, in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson, 2021-Ohio-3304, at ¶ 35. Trial courts may not admit
evidence or allow parties to make comments “that are not supported by the evidence and are
designed to arouse passion or prejudice, creating a substantial likelihood that the jury may be
misled.” Bender v. Durrani, 2024-Ohio-1258, ¶ 68 (1st Dist.), citing Roetenberger v. Christ
Hosp. & Anesthesia Assocs. of Cincinnati, 2005-Ohio-5205, ¶ 9 (1st Dist.). Such prejudicial
evidence “may be grounds for reversal.” Id., at ¶ 68, citing Wynn v. Gilbert, 2007-Ohio-2798,
¶ 34 (1st Dist.). After reviewing the examples cited by Dr. Ma in the trial transcript, we cannot
find that the trial court abused its discretion on these evidentiary decisions.
{¶ 35} After his termination from CCHMC, Dr. Ma began working and researching at
Zhejiang University in China with a grant from the Thousand Talents Program (“TTP”), which
is awarded by the government of the People’s Republic of China and was a prerequisite to
signing a contract with the University. During trial, CCHMC mentioned the TTP award’s ties
with the Chinese government and labeled Dr. Ma’s employment with the University as
“working for the Chinese government.” Dr. Ma alleges that the repeated mention of the
Chinese government, despite his corrections that the University was not affiliated with the
government, was an attempt by CCHMC to arouse xenophobic fears and biases among the
jury.
{¶ 36} Importantly, these comments surfaced during a line of questioning by CCHMC
attempting to explore potential mitigation of damages. The handful of references to the
Chinese government were asking whether the University was connected to the government,
15 OHIO FIRST DISTRICT COURT OF APPEALS
and if Dr. Ma reflected such a relationship on his tax returns regarding his income. After all,
if Dr. Ma found suitable employment immediately after his termination for the same
compensation, he might have been unable to establish the damages element of his claim.
Even if it were a lesser amount, if, as CCHMC expected, this money came from the Chinese
government as a portion of Dr. Ma’s income, it would decrease the potential amount of
damages. Therefore, this information was certainly relevant as it pertained to damages.
{¶ 37} Additionally, Dr. Ma claims that CCHMC attempted to draw comparisons
between himself and a former CCHMC employee, Dr. Lu, another researcher for CCHMC who
was fired after CCHMC found that he violated restrictions on external income. Dr. Ma himself
prepared a list of comparators for trial in an apparent attempt to demonstrate that other
researchers were not fired for the same funding shortcomings as Dr. Ma. He actually included
Dr. Lu on this list (for reasons that are not immediately apparent) and, in addressing Dr. Ma’s
argument as to the comparators, CCHMC inquired about the reasons each person was or was
not fired for their alleged shortcomings. When it came to Dr. Lu, CCHMC asked about his
termination and asked the witness if the TTP award that Dr. Lu improperly received while
working at CCHMC was the same one that Dr. Ma later received. Dr. Ma believes that the
mention of this sought to conflate his situation with Dr. Lu’s improprieties.
{¶ 38} But that seems like a risk Dr. Ma undertook when he drew up the list, added
Dr. Lu, and directed the jury’s attention to others’ situations. CCHMC, not surprisingly,
walked through other comparators on the list and discussed their current status, which
included an exploration of Dr. Lu’s termination. Therefore, while CCHMC did discuss Dr.
Lu’s involvement with the TTP award and related its source to the discussion of Dr. Ma’s
acceptance of the award, it responded to Dr. Ma’s own argument.
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶ 39} Similarly, Dr. Ma claims that CCHMC inappropriately attempted to incite
xenophobic fears and biases among the jury when its damages expert, Mr. Klenk, mentioned
that, as part of his evaluation of Dr. Ma’s financial records, he read articles about other
researchers who took money from various foreign governments while working in the United
States. Dr. Ma claims that Mr. Klenk’s investigation into and testimony about journal articles
pertaining to other researchers, coupled with the several mentions of the Chinese government
and Dr. Lu, clearly aroused biases among the jury. However, Dr. Ma was the first party to
bring attention to these articles at trial. Mr. Klenk explained that part of his investigation into
Dr. Ma’s potential damages necessitated an inquiry into whether Dr. Ma might have
(improperly) earned additional income while still researching at CCHMC. Mr. Klenk
emphasized that he did this research in order to “foreclose the possibility” of Dr. Ma’s
potential to have additional earnings, which was directly related to his evaluation of damages.
{¶ 40} Although this might seem of tenuous relevance to the case at hand, it was
actually Dr. Ma that attempted to push a nefarious narrative on CCHMC and Mr. Klenk
regarding these issues. Dr. Ma probed whether Mr. Klenk thought he was a fraud because he
took an award from the Chinese government and inquired if that’s why Mr. Klenk went down
the research path that he did. Dr. Ma brought this issue and this narrative to the forefront.
He cannot now say that it was prejudicial to allow such discussions.
{¶ 41} We obviously would not condone any deliberate effort by either side to promote
racial or xenophobic fears in a trial—the courtroom has no place for such antics. But that
does not bar any mention of some connection with a foreign government or heritage. The
propriety of such will depend on the record at hand and the purpose for which such evidence
is offered. After carefully reviewing the passages highlighted by Dr. Ma, we are not convinced
that they crossed the line (particularly since he bears at least some responsibility for
17 OHIO FIRST DISTRICT COURT OF APPEALS
introducing the topics in the first place). At the end of the day, we cannot say that the trial
court abused its discretion in the challenged evidentiary rulings, and we overrule Dr. Ma’s
third assignment of error.
* * *
{¶ 42} Based on the foregoing reasons, we overrule all three of Dr. Ma’s assignments
of error. We affirm the trial court’s judgment on all grounds.
Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.