               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3200
                        ___________________________

                 In re: Levaquin Products Liability Litigation

                             ------------------------------

                                   John Schedin

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                 Ortho-McNeil-Janssen Pharmaceuticals, Inc.

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                  Appeal from United States District Court
                 for the District of Minnesota - Minneapolis
                                ____________

                           Submitted: October 21, 2013
                              Filed: January 7, 2014
                                 ____________

Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
                              ____________

RILEY, Chief Judge.
      Ortho-McNeil-Janssen Pharmaceuticals, Inc. (OMJP)1 appeals from an opinion
and order of the district court2 denying OMJP’s motion for relief from judgment
under Federal Rule of Civil Procedure 60(b)(2) and (3). Having jurisdiction under
28 U.S.C. § 1291, we affirm.

I.    BACKGROUND
      This case returns to us. See In re Levaquin Prods. Liab. Litig., 700 F.3d 1161
(8th Cir. 2012) (Levaquin I). In Levaquin I, we upheld a jury award of $630,000 in
compensatory damages to John Schedin against OMJP for Achilles tendon injuries
Schedin suffered while taking OMJP’s prescription antibiotic Levaquin. See id. at
1163, 1165, 1170. We reversed the punitive damages award of $1,115,000 because
Schedin failed to present clear and convincing evidence OMJP deliberately
disregarded the safety of Levaquin users. See id. at 1170.

        While Levaquin I was pending on appeal, OMJP moved for relief from
judgment pursuant to Rule 60(b). OMJP asserted Schedin’s expert biostatistician,
Martin T. Wells, Ph.D., admitted after trial that he had not—as Schedin
represented—provided all the information OMJP repeatedly requested during
discovery regarding Dr. Wells’s relative-risk calculations and supporting data. OMJP
argued the calculations Schedin wrongfully withheld, if properly disclosed before
trial in Levaquin I, would have undermined Dr. Wells’s credibility and “the very
foundation of [Schedin’s] claim that levoflaxacin carries a greater risk of [Achilles
tendon rupture] than other fluoroquinolones.”

      In requesting relief, OMJP proposed that Dr. Wells’s withheld calculations
were “newly discovered evidence that entitle[d] [OMJP] to relief from the judgment

      1
          OMJP is now Janssen Pharmaceuticals, Inc.
      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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pursuant to Rule 60(b)(2).” OMJP also contended Schedin’s “serious misconduct in
failing to disclose” Dr. Wells’s calculations, including telling Dr. Wells he need not
disclose them, “independently” entitled OMJP to relief under Rule 60(b)(3). The
district court denied OMJP’s request for relief. OMJP timely appealed.

II.    DISCUSSION
       OMJP challenges the district court’s denial of OMJP’s request for relief from
judgment under Rule 60(b)(2) and (3). Rule 60(b)(2) permits a district court to
“relieve a party . . . from a final judgment” if the party presents “newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b).” Rule 60(b)(3) allows for relief in the event
of “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party.”

       “Rule 60(b) provides for ‘extraordinary relief which may be granted only upon
an adequate showing of exceptional circumstances.’” U.S. Xpress Enters., Inc. v. J.B.
Hunt Transp., Inc., 320 F.3d 809, 815 (8th Cir. 2003) (quoting United States v.
Young, 806 F.2d 805, 806 (8th Cir. 1987) (per curiam)). “A district court has wide
discretion in ruling on a Rule 60(b) motion and we will only reverse for a clear abuse
of discretion.” Jones v. Swanson, 512 F.3d 1045, 1049 (8th Cir. 2008). “An abuse
of discretion occurs where the district court fails to consider an important factor,
gives significant weight to an irrelevant or improper factor, or commits a clear error
of judgment in weighing those factors.” Gen. Motors Corp. v. Harry Brown’s, LLC,
563 F.3d 312, 316 (8th Cir. 2009).

      OMJP contends the district court abused its discretion in denying OMJP relief
from judgment under Rule 60(b)(2) based on “Schedin’s delinquent and belated . . .
disclosure of the calculation [Dr.] Wells performed while preparing Paragraph 32 of
his Report regarding the relative risk of Achilles tendon rupture” to certain patients.
To prevail on this “newly discovered evidence” claim under Rule 60(b)(2), OMJP

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must establish “(1) the evidence was discovered after trial; (2) due diligence was
exercised to discover the evidence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence is such that a new trial would
probably produce a different result.” Schwieger v. Farm Bureau Ins. Co. of Neb., 207
F.3d 480, 487 (8th Cir. 2000).

       Although unconvinced OMJP “was unable to recreate [Dr. Wells’s] calculation
before trial,” the district court assumed OMJP “exercised due diligence” in obtaining
the evidence. Yet the district court “den[ied] [OMJP]’s Rule 60(b)(2) motion because
the newly discovered evidence was merely cumulative or impeaching and [OMJP]
ha[d] not demonstrated that it was probable it would produce a different result.” The
district court reasoned Dr. Wells’s calculations, even if material, would not have
produced a different result because Dr. Wells’s testimony was not “wholly
undermined by the [new] calculation” and OMJP’s liability was based on the whole
record—not just Dr. Wells’s testimony about relative toxicity. Having thoroughly
reviewed the parties’ submissions, the record, and the district court’s well-reasoned
order, we conclude the district court did not abuse its discretion in denying relief
based on OMJP’s claim of “newly discovered evidence.”

       We reach the same conclusion with respect to OMJP’s misconduct claim under
Rule 60(b)(3). To prevail on its Rule 60(b)(3) claim, OMJP must show by clear and
convincing evidence that Schedin “‘engaged in fraud or other misconduct and that
this conduct prevented [OMJP] from fully and fairly presenting its case.’” E.F. Hutton
& Co. v. Berns, 757 F.2d 215, 216-17 (8th Cir. 1985) (quoting Stridiron v. Stridiron,
698 F.2d 204, 207 (3d Cir. 1983)). OMJP has not done that. We detect no abuse of
discretion in the district court’s finding that “the lack of [Dr. Well’s] calculation did
not prevent [OMJP] from mounting a vigorous . . . defense” and that “any misconduct
d[id] not warrant a new trial.”




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III.   CONCLUSION
       “A district court does not abuse its discretion in denying a Rule 60(b) motion
when the moving party fails to show that the alleged misrepresentations or newly
discovered evidence ‘would probably produce a different result.’” U.S. ex rel. Newell
v. City of St. Paul, Minn., 728 F.3d 791, 799 (8th Cir. 2013) (quoting McCormack v.
Citibank, N.A., 100 F.3d 532, 542 (8th Cir. 1996)). Finding no abuse of discretion,
we affirm the judgment of the district court.
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