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In re Levaquin Products Liability Litigation

United States Court of Appeals, Eighth Circuit

January 7, 2014

In re LEVAQUIN PRODUCTS LIABILITY LITIGATION
v.
Ortho-McNeil-Janssen Pharmaceuticals, Inc., Defendant-Appellant. John Schedin, Plaintiff-Appellee

Submitted: Oct. 21, 2013.

Page 402

[Copyrighted Material Omitted]

Page 403

John Winter, argued, New York, NY, Tracy Joan Van Steenburgh, Peter D. Gray, Dana M. Lenahan, argued, Minneapolis, MN, for appellant.

Lewis Saul, Charles M. Wolfson, argued, New York, NY, for appellee.

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 court [2] 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. ยง 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 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 ...


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