                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0516n.06

                                            No. 08-5630
                                                                                           FILED
                                                                                        Jul 27, 2009
                            UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


CLAY MASSI,                                               )
                                                          )
          Plaintiff-Appellant,                            )
                                                          )
v.                                                        )   ON APPEAL FROM THE
                                                          )   UNITED STATES DISTRICT
WALGREEN CO.,                                             )   COURT FOR THE EASTERN
                                                          )   DISTRICT OF TENNESSEE
          Defendant-Appellee.                             )
                                                          )




Before:          BOGGS, Chief Judge; and MOORE and SUTTON, Circuit Judges.

          PER CURIAM. Clay Massi appeals pro se a district court order denying his motion for relief

from judgment pursuant to Fed. R. Civ. P. 60(b). Massi brought a medical malpractice action

through counsel for damages he allegedly suffered because the defendant gave him the wrong

prescription drug. A trial was held in November 2006, and the jury found that Massi incurred

$25,000 in damages and that Walgreen was 55% at fault. Massi did not appeal this judgment, which

defendant paid and satisfied. Nearly a year later, Massi filed a motion for a new trial, alleging that

the defendant submitted fraudulent evidence that diminished the jury verdict. The district court

denied plaintiff’s motion and, upon review, we affirm the district court’s order.

                                                  I
No. 08-5630
Massi v. Walgreen Co.

       Massi had filled prescriptions for Ritalin on six previous occasions at the defendant’s

pharmacy. On his seventh visit, Walgreen mistakenly gave him Adderall, a different drug, in a bottle

marked as Ritalin. Massi took the drug for several weeks, thinking it was Ritalin. Walgreen then

discovered the mistake during a routine audit and alerted Massi to the error. Massi received the

correct prescription and ceased taking the Adderall. One week later, however, Massi says he

suffered a stroke and other health complications such as high blood pressure, loss of balance, loss

of vision, and memory loss, which he attributed to ingestion of the wrong medication. At trial, there

were several disputed issues: first, whether ingestion of Adderall, which is similar to Ritalin, caused

Massi’s injuries; second, whether Massi returned the Adderall to Walgreen after being informed of

the mistake; and third, whether Massi should have discovered on his own that he received the

incorrect drug.

       Although Walgreen conceded that it gave Massi the wrong medication and that the container

was mislabeled, it argued that Adderall was very similar to Ritalin and therefore could not have

caused Massi’s injuries.1 Walgreen also presented evidence to show Massi should have realized the

mistake from the appearance of the tablets. In particular, Walgreen noted that the generic Ritalin

prescribed to Massi was peach while the brand of generic Adderall he was accidentally given was

blue and that the pills had different writing on them.2 Walgreen also claimed that Massi was at fault


       1
        Both are amphetamines approved by the FDA for the treatment of Attention Deficit Disorder
and Attention Deficit Hyperactivity Disorder. There is disagreement about whether Adderall is
stronger than Ritalin when prescribed in the same dose.
       2
        The Ritalin was inscribed “DAN 20” on one side and “5884” on the other. The Adderall
was inscribed “F 20” on one side and there were two dashes on the other.

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No. 08-5630
Massi v. Walgreen Co.

for his own injuries in failing to read literature provided with his prescription and taking medication

that did not match the physical description given in these materials.

       At trial, Massi’s counsel sought to undercut Walgreen’s assertions about the comparative

fault of his client by soliciting testimony about why the change in the appearance of the drug would

not necessarily have alerted Massi to the error. In some respects, the pills were similar in

appearance: they were the same shape and each had the number 20 (the dose in mg) on one side.

Although Massi had only filled his Ritalin prescription at this particular Walgreen on six occasions,

he apparently had been taking the medication for many years. In the course of this period, the pill

had come in different colors, including blue. On cross examination, Walgreen pharmacists testified

there were several generic versions of Ritalin and Adderall available on the market when Massi

received the wrong medication and they came in a variety of colors. In eliciting this testimony,

plaintiff’s counsel implied that Massi believed he had simply been given a different brand and that

a reasonable person might not assume under these circumstances that an error was made.

       The jury found in Massi’s favor, apportioning 55% of the fault to Walgreen and 45% to

Massi himself. Massi did not appeal the judgment of December 1, 2006. With Massi’s consent, his

counsel withdrew in July 2007. On September 11, 2007, Massi filed his first request for relief from

the judgment. Instead of filing this as a motion in the case in which he was seeking relief, Massi,

acting pro se, filed this Fed. R. Civ. P. 60(b) motion as a new complaint. The district court in turn

gave it a new case number. Since there was no judgment to set aside in this matter, the district court

ultimately dismissed the complaint under Rule 12(b)(6) for failure to state a claim and explicitly

granted Massi leave to file a second Rule 60(b) motion in the original case. Massi promptly filed

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No. 08-5630
Massi v. Walgreen Co.

a motion five days later, on January 16, 2008, putting forward the very same allegations for relief

from judgment that he stated in his September 11, 2007 filing. Defendant denied presenting any

false testimony or evidence in the original proceedings. The district court denied plaintiff’s motion,

and Massi now appeals.

                                                  II

       A district court’s denial of a motion for relief from judgment pursuant to Rule 60(b) is

reviewed only for an abuse of discretion. Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 133 (6th

Cir. 1990). To overcome this deferential standard of review, a party must demonstrate that the

district court committed “a clear error of judgment, such as applying the incorrect legal standard,

misapplying the correct legal standard, or relying upon clearly erroneous findings of fact.” In re

Ferro Corp. Derivative Litigation, 511 F.3d 611, 623 (6th Cir. 2008).

       “[R]elief under Rule 60(b) is ‘circumscribed by public policy favoring finality of judgments

and termination of litigation.’” Blue Diamond Coal Co. v. Trs. of UMWA Combined Benefit Fund,

249 F.3d 519, 524 (6th Cir. 2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d

290, 292 (6th Cir. 1992)). Rule 60(b)(1) through (5) provide relief under a variety of circumstances

including fraud, misconduct, and excusable neglect. Rule 60(b)(6) permits relief under other

circumstances not specifically envisioned by Rule 60(b), on an equitable basis, when the interests

of justice require vacating a court’s earlier judgment. Liljeberg v. Health Services Acquisition,

Corp., 486 U.S. 847, 863-64 (1988); see also Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th

Cir. 1990) (holding that Rule 60(b)(6) applies “only in exceptional or extraordinary circumstances

which are not addressed by the first five numbered clauses of the Rule”).

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No. 08-5630
Massi v. Walgreen Co.

       In this case, the relevant provisions of Rule 60(b) are those permitting relief when new

evidence is discovered after the judgment or when a final judgment rests on “fraud (whether

previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party[.]”

Fed. R. Civ. P. 60(b)(2)-(3). Except for those based on fraud on the court, Rule 60(b) motions “must

be made within a reasonable time [and] no more than a year after the entry of the judgment . . . .”

Fed. R. Civ. P. 60(c)(1). Massi brought his motion within a year of the judgment, which is necessary

but not sufficient with respect to his claims based on newly discovered evidence.3 If “a reasonable

time” happens to be less than a year in a given case, then a party must file the motion by that earlier

date. A party seeking relief from judgment on the basis of fraud must establish the existence of fraud

by clear and convincing evidence. Info-Hold, Inc. v. Sound Merchandising, Inc., 538 F.3d 448, 454

(6th Cir. 2008).

       The plaintiff’s motion for relief rests on four allegations: (1) a defense witness testified

falsely that Massi did not return the incorrect prescription medication; (2) the defendant fraudulently

reproduced the label to the incorrect prescription; (3) the defendant fraudulently presented

photographs of a different generic brand of Adderall than the one he was given; and (4) the

defendant’s response to the Rule 60(b) motion contained false and misleading materials. Upon

review of these allegations, we conclude that the district court did not abuse its discretion. Plaintiff




       3
          Although Massi’s first Rule 60(b) motion was filed on a timely basis, Massi’s corrected
motion was filed more than a year after entry of the verdict. Neither the district court or the parties
raised the issue of the one-year period, and we hold that the one-year time period was tolled while
the district court considered Massi’s timely-filed Rule 60(b) motion under the incorrect case number.

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No. 08-5630
Massi v. Walgreen Co.

had ample opportunity to discover the new evidence that he now cites. Alternatively, the evidence

of fraud is not clear and convincing and does not go to the grounds on which the case was decided.



A. Walgreen’s Claim that Massi Never Returned his Incorrectly Filed Prescription Bottle

        At trial, the parties presented conflicting evidence about whether Massi returned the

remaining Adderall. Davonna Foley, the Walgreen pharmacist who informed Massi of the

prescription error, testified that she could not recall him returning the Adderall to her. Yet a report

prepared by Foley indicates Massi returned the remaining Adderall.              Asked to explain the

discrepancy, Foley testified that she filled out the report shortly after talking with Massi on the phone

and notifying him of the mistake. She adds, when Massi came to pick up the correct prescription,

he refused to produce the medication and she simply forgot to go back and revise the report in light

of supervening events. In his motion for relief from the judgment, Massi asserts that, in return for

a promotion and pay increase, Foley gave false testimony about whether he returned the incorrect

prescription. In response to Massi’s motion, Foley once again denied that he returned the

prescription for Adderall. Walgreen also submitted evidence contending that although Foley now

works at a different location, she did not receive a pay increase.

        Relief must be granted under circumstances where the court is “reasonably well satisfied that

the testimony given by a material witness is false; that, without it, a jury might have reached a

different conclusion; that the party seeking the new trial was taken by surprise when the false

testimony was given and was unable to meet it or did not know of its falsity until after the trial.”

Davis, 912 F.2d at 134 (internal quotations omitted). Foley was without a doubt a material witness,

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No. 08-5630
Massi v. Walgreen Co.

as she was the pharmacist who discovered the error, contacted Massi to inform him of the mistake,

and filled out a report documenting the incident. But the district court did not abuse its discretion

in denying relief on this ground, because there is absolutely no indication that Foley’s testimony

surprised the plaintiff or that Foley’s testimony was clearly false.

       All of the evidence cited by Massi was available during the original proceedings and

presented to the jury for consideration. Moreover, the discussion of whether Massi returned the

incorrect prescription was his own counsel’s creation. Plaintiff’s counsel called Foley as his first

witness and elicited extensive testimony about whether Massi returned the incorrect prescription,

even though Foley asserted in both her pre-trial affidavit and deposition that Massi had not returned

the incorrect prescription. Foley was less adamant in her trial testimony. Initially she said only that

she could not recall whether Massi returned the incorrect prescription to her, seemingly

acknowledging the possibility that Massi may have returned the incorrect prescription to another

employee. As she explained, “I don’t remember him handing it to me and taking it. It’s been a

couple of years.” In response to Foley’s testimony, plaintiff’s counsel introduced comments from

her deposition in which she declared adamantly that Massi never returned the incorrect prescription.

Plaintiff cannot seek relief under Rule 60(b)(3) based on supposedly false testimony that his own

counsel introduced to impeach more favorable testimony.

       The district court’s order may also be affirmed because the evidence of fraud is not clear and

convincing, and there is little, if any, reason to believe the jury’s calculation of comparative fault

would differ even if it were. Davis, 912 F.2d at 133-34. Foley continues to deny Massi’s

allegations, reiterating plausible reasons for the discrepancy between her testimony and the report

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No. 08-5630
Massi v. Walgreen Co.

she filed. And as the district court observed during the original trial, whether Massi returned the

incorrect prescription was of “very limited relevance.” Walgreen did not suggest at any point in the

proceedings that the plaintiff continued to take Adderall after being informed of the mistake, so it

is entirely unclear how the fact that Massi returned or did not return the incorrect prescription would

affect the jury’s verdict. At best, Massi’s allegations present a factual dispute in which neither

party’s view is clearly erroneous. Under these circumstances, the district court’s decision must be

affirmed. Info-Hold, 538 F.3d at 457.



B. The Reprinted Prescription Labels Offered into Evidence at the Original Trial

       Massi’s next allegation relates to the four prescription labels Walgreen reprinted and

presented at the original trial. Massi alleges that the labels were doctored in a variety of ways,

including the time in which the prescription was filled and the initials of the Walgreen pharmacist

who filled the prescription. Walgreen admits that the time listed on the reprinted label was an hour

off and also concedes that the original label had the initials “RAW” and “DKB” listed on it whereas

the reprinted label only had “DKF.” It was not an abuse of discretion for the district court to reject

Massi’s allegation that these slight differences amount to fraud, because Massi failed to establish that

the alterations were willful and there is no evidence that they are material to Walgreen’s liability or

comparative fault.

       Massi simply did not meet his burden of showing by clear and convincing evidence that

Walgreen presented intentionally false evidence, or that it engaged in conduct that could be described

as wilfully blind to the truth or evincing a reckless disregard for the truth. Info-Hold, 538 F.3d at

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No. 08-5630
Massi v. Walgreen Co.

456. In response to Massi’s allegations of fraud, Walgreen submitted an affidavit by Jill Bosch,

Walgreen’s Custodian of Records, offering reasonable explanations for the discrepancies. The one

hour time difference, Bosch explains, was due to daylight savings time. The original prescription

was filled on December 12, 2004, and the copy of the label offered into evidence was printed after

the time change in 2006. Walgreen also presents an innocuous explanation for the change in the

pharmacist’s initials: Foley married and took her husband’s name in between the time the

prescription was originally filled and the copies of the label were printed. Massi does not contest

these explanations, and nothing in the record appears to support a finding of fraud.

       We note separately the district court’s order may also be affirmed with respect to this ground

because the discrepancies on the reprinted label are not material to Walgreen’s liability or

comparative fault. The time the original prescription was filled and the initials of the pharmacist at

Walgreen who filled Massi’s prescription are irrelevant to the question of whether Massi should have

discovered that he was given the wrong medication. None of the supposed discrepancies relate to

the appearance of the generic Ritalin he was supposedly being given, and therefore there is

absolutely no basis for concluding that without the slight alterations to the labels, “a jury might have

reached a different conclusion.” Davis, 912 F.2d at 134. For these reasons, it was not an abuse of

discretion for the district court to deny Massi’s claim.



C. The Generic Brand and Appearance of Adderall Given to Massi

       Massi alleges that Walgreen introduced fraudulent photographic evidence comparing the

generic Ritalin he was prescribed with the Adderall the pharmacy incorrectly gave him. According

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No. 08-5630
Massi v. Walgreen Co.

to Massi, the photographs depict a different generic brand of Adderall that happens to be less similar

in appearance to Ritalin, thus misleading jurors. Massi also submitted records that supposedly

corroborate his claim that he received a different generic brand of Adderall that is closer in color to

the Ritalin defendant’s pharmacy had supplied on previous visits.

        Even if Massi is correct on the latter point, we hold that the district court did not abuse its

discretion because Massi has supplied no evidence that Walgreen willfully submitted false evidence

or recklessly disregarded the truth in offering the photographs. The same photographs were

presented to him during his deposition and he had prior notice of Walgreen’s intent to use the

photographs at trial. If the generic Adderall depicted in the photograph was markedly different from

the medication he received, one would expect Massi to say so when confronted with the photograph

or between his deposition and trial. Yet he said nothing of the differences he now alleges in his

motion for a new trial. Massi’s reliance on the “newly discovered” evidence prong of Fed. R. Civ.

P. 60(b) is equally misguided. The records, after all, were available at the time of his original trial.

        Rule 60(b) cannot undo plaintiff’s failure to challenge Walgreen’s assertions about the brand

and appearance of the generic Adderall that he accidentally received. “Inadequate presentation of

evidence is not an appropriate basis for relief under Rule 60(b).” Dobrowiak v. Convenient Family

Dentistry, Inc., Nos. 07-2373, 08-1241, 2009 WL 537674, at *5 (6th Cir. Mar. 4, 2009); see also

Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). To give Massi a second opportunity

to litigate these issues would destroy the near paramount interest our judicial system places on the

“finality of judgments and termination of litigation.” Blue Diamond, 249 F.3d at 524.



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No. 08-5630
Massi v. Walgreen Co.

D. Walgreen’s Response to Massi’s Motion for a New Trial

        Finally, Massi alleged that Walgreen’s response to his motion for a new trial contained false

and misleading evidence. Even if this were true, it would not entitle Massi to relief under Rule

60(b), as relief from an earlier judgment cannot be established on the basis of evidence submitted

in a later proceeding. The proper ground for any relief would be Rule 11, which Massi never

invoked in his motion for sanctions. By signing a “paper” filed with the court, a party certifies the

truth of the contents of that paper. Business Guides, Inc. v. Chromatic Commc’ns Enters., 498 U.S.

533, 551 (1991).

        A district court may grant sanctions only when it concludes a party did not have a reasonable

basis for believing the veracity of sworn statements or evidence it has submitted. Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 393 (1990). The district court’s denial of Massi’s motion was not

an abuse of discretion, because Walgreen denied Massi’s allegations and there is no actual evidence

from which to conclude that Walgreen’s affidavits were false or misleading let alone fraudulent. At

best, this is a he-said, he-said dispute, and it is not an abuse of discretion for the district court to deny

sanctions under such circumstances. As the Supreme Court has previously observed, “[w]here there

are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly

erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).

                                                     III

        For the foregoing reasons, the district court’s denial of post-judgment relief is AFFIRMED.




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