Clay Massi v. Walgreen Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0516n.06
No. 08-5630
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CLAY MASSI,
Plaintiff-Appellant,
v.
WALGREEN CO.,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
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

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Both are amphetamines approved by the FDA for the treatment of Attention Deficit Disorder1
and Attention Deficit Hyperactivity Disorder. There is disagreement about whether Adderall is
stronger than Ritalin when prescribed in the same dose.
The Ritalin was inscribed “DAN 20” on one side and “5884” on the other. The Adderall2
was inscribed “F 20” on one side and there were two dashes on the other.
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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. Walgreen also presented evidence to show Massi should have realized the1
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. Walgreen also claimed that Massi was at fault2

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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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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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Although Massi’s first Rule 60(b) motion was filed on a timely basis, Massi’s corrected3
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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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. If “a reasonable3
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

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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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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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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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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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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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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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