united states district court middle district of florida ... · q: okay. and you did xps and...

United States District Court Middle District of Florida

Jacksonville Division

Rembrandt Vision Technologies, L.P.,

Plaintiff,

v. Johnson & Johnson Vision Care, Inc.,

Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 3:11–cv-819–J-32–JRK

ORAL ARGUMENT REQUESTED

REMBRANDT VISION TECHNOLOGIES, L.P.’S MOTION TO SET ASIDE THE JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(b)(2)

AND 60(b)(3)

Case 3:11-cv-00819-TJC-JRK Document 345 Filed 02/19/13 of 33 PageID 14778

TABLE OF CONTENTS

Page

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I. INTRODUCTION ....................................................................................................... 1

II. FACTUAL BACKGROUND ...................................................................................... 2

III. LEGAL STANDARD .................................................................................................. 6

IV. THE JUDGMENT IN THIS CASE HAS BEEN TAINTED BY DR. BIELAWSKI’S PERJURED TESTIMONY SUCH THAT THE JUDGMENT SHOULD BE SET ASIDE UNDER RULE 60(B)(3)........................... 8

A. Dr. Bielawski provided false testimony at trial and in his deposition regarding the TOF-SIMS testing described in his expert report ...................... 9

1. Dr. Dolocan performed all of the TOF-SIMS testing in July and August 2011, not Dr. Bielawski .................................................... 9

2. Mr. Jonathan Radcliffe performed the TOF-SIMS testing in September and October 2011, not Dr. Bielawski .............................. 11

B. Dr. Bielawski provided false testimony at trial and in his deposition regarding the XPS testing described in his expert report ............................... 12

C. Dr. Bielawski’s perjury prevented Rembrandt from fully and fairly presenting its case .......................................................................................... 14

D. Eleventh Circuit precedent requires a judgment to be set aside when an expert witness commits perjury ..................................................................... 15

V. THE JUDGMENT SHOULD BE SET ASIDE BECAUSE DR. BIELAWSKI LIED ABOUT HIS QUALIFICATIONS AS AN EXPERT IN PERFORMING TOF-SIMS AND XPS TESTING ................................................... 18

VI. THE JUDGMENT ALSO SHOULD BE SET ASIDE BECAUSE HIGHLY RELEVANT INFORMATION AND DATA WAS NOT PRODUCED AS REQUIRED UNDER RULE 26 ................................................................................ 20

VII. THE COURT’S RULINGS REGARDING DR. BEEBE’S SHORE D TESTING DOES NOT RENDER A NEW TRIAL MOOT ...................................... 24

VIII. CONCLUSION .......................................................................................................... 25


ii-

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988) ................................................................................................ 7

Bros. Inc. v. W.E. Grace Mfg. Co., 351 F.2d 208 (5th Cir. 1965), cert. denied, 383 U.S. 936 (1966) ................................................................................ 21, 23

Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993) ......................................................................................... 25

Conerly v. Flower, 410 F.2d 941 (8th Cir. 1969) ............................................................................................. 24

Fraige v. American-Nat’l Watermattress Corp., 996 F.2d 295 (Fed. Cir. 1993) ........................................................................................... 24

Grogan v. Garner, 498 U.S. 279 (1991) ............................................................................................................ 6

Habecker v. Clark Equip. Co., 36 F.3d 278 (3d Cir. 1994) ................................................................................................ 25

Harre v. A.H. Robins Co., 750 F.2d 1501 (11th Cir. 1985) ......................................................................... 6, 15, 16, 17

Hazel-Atlas Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) .......................................................................................................... 24

In re Vioxx Prods. Liab. Litig., 489 F. Supp. 2d 587 (E.D. La. 2007) ........................................................................... 19, 20

Jones v. Aero/Chem Corp., 921 F.2d 875 (9th Cir. 1990) ............................................................................................. 20

Mahone v. Ray, 326 F.3d 1176 (11th Cir. 2003) ........................................................................................... 6

Rally Mfg., Inc. v. Mr. Gasket Co., No. 87–1533, 1992 U.S. Dist. LEXIS 20681 (S.D. Fla. June 12, 1992) .............................. 6


TABLE OF AUTHORITIES (Continued)

Page

iii

Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) ......................................................................................... 23

Rozier v. Ford Motor Co., 573 F.2d 1332 (5th Cir. 1978) ......................................................................... 6, 7, 8, 14, 20

Sierra Club, Inc. v. Leavitt, No. 4:04cv120, 2005 U.S. Dist. LEXIS 35569 (N.D. Fla. Oct. 18, 2005) ............................ 7

United States v. Denham, 817 F.2d 1307 (8th Cir. 1987) ............................................................................................. 7

Waddell v. Hemerson, 329 F.3d 1300 (11th Cir. 2003) .......................................................................................... 7

Other Authorities

12 MOORE’S FEDERAL PRACTICE, § 60.43 (3rd Ed. 2012) ....................................................... 20

WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 2803 ................. 25

Rules

Federal Rule of Civil Procedure 26(a)(2)(ii) ............................................................................ 22

Federal Rules of Civil Procedure 60(b)(2) .................................................................. 2, 7, 23, 24

Federal Rules of Civil Procedure 60(b)(3) ........................................ 2, 6, 7, 8, 15, 17, 18, 20, 23


1

I. INTRODUCTION

Johnson & Johnson Vision Care’s key expert witness, Dr. Christopher Bielawski,

committed perjury and scientific fraud. In addition, misconduct occurred as information

considered by Dr. Bielawski in forming his opinions, including highly relevant, unfavorable

information, was not produced to Rembrandt.1

Dr. Bielawski insisted under oath that he personally performed the XPS testing of the

accused lenses that JJVC presented to the jury. The truth is that he did not.

Dr. Bielawski likewise insisted under oath that he personally performed the TOF-SIMS

testing of the accused lenses that JJVC presented to the jury. The truth is that he did not.

Rembrandt has obtained sworn testimony and documents from an open records request to

the University of Texas at Austin (“UT”) showing that lab managers and students at UT, not

Dr. Bielawski, performed the tests JJVC relied on in this case. Not only was Dr. Bielawski not

sitting at the XPS and TOF-SIMS machines when the experiments were done, he was not in the

lab. On at least one occasion, he was not even in the country; he was attending a dinner in

France. Dr. Bielawski’s own emails at the time confirm that he did not perform the tests.

Moreover, Dr. Bielawski lied about his qualifications as an expert on the subjects of

TOF-SIMS and XPS testing. Dr. Bielawski’s emails establish that, months after accepting the

engagement with JJVC, he needed training on the XPS and TOF-SIMS machines because he did

not how to operate the machines. And there are no documents showing that Dr. Bielawski ever

got the necessary training.

This is also a case of failure to comply with Rule 26 by not producing all information

considered by Dr. Bielawski, including highly relevant information contrary to Dr. Bielawski’s

opinions.

1 The evidence of perjury and misconduct is described in detail on pgs. 8-14,18-24 of this Motion.


2

Dr. Bielawski and JJVC insisted repeatedly that they had provided all of the facts and

data considered by Dr. Bielawski. In fact, they did not. For example, data from experiments on

admittedly infringing Bausch & Lomb and CIBA lenses showing a surface layer were never

produced. The reason that these data were never produced became obvious once Rembrandt

obtained the data from UT: the data contradict JJVC’s theory of the case regarding the alleged

absence of a “surface layer.” Numerous TOF-SIMS and XPS tests and analyses on JJVC’s lenses

were also not provided to Rembrandt, including graphs created by the people who actually

performed the tests showing infringement by the accused lenses.

For each of these alternative, independent reasons, Rembrandt respectfully moves

pursuant to Federal Rules of Civil Procedure 60(b)(2) and/or 60(b)(3) for an order setting aside

the judgment.

II. FACTUAL BACKGROUND

Counsel for JJVC argued to the jury, as the centerpiece of its defense, that the accused

lenses do not have a “surface layer.” Expert witnesses for both parties relied on two types of

testing—XPS and TOF-SIMS—to show whether the surface layer is present in the accused

lenses. A majority of the expert testimony to the jury was about TOF-SIMS and XPS testing.

On November 3, 2011, JJVC’s counsel provided Dr. Bielawski’s signed expert report,

wherein he described the XPS and TOF-SIMS tests he allegedly performed. JJVC’s counsel

also produced raw data files for what they said were all of the tests he allegedly performed and

considered in support of his report. Rembrandt inquired on numerous occasions as to whether

all of the raw data files were produced with the expert report. To each request, JJVC’s counsel

stated that “all” of the raw data files were produced. Dkt. #310 at ¶23.

On December 1, 2011, Dr. Bielawski gave a deposition in this case regarding his expert

report. Throughout the deposition, Dr. Bielawski repeatedly testified that he personally


3

performed the XPS and TOF-SIMS testing described in his expert report, as shown in the chart

below. Ex. A, Bielawski 12/1/11 Depo.

Dr. Bielawski’s Deposition Testimony (emphases added)

Citation

Q: With the XPS and TOF-SIMS testing that’s reflected in your report, did you personally perform that testing?

A: Yes.

Q: So you ran the machine as well as did the analysis?

A: For both XPS and TOF-SIMS, that is correct.

95:14–21

Q: Okay. You did XPS testing in this case, correct?

A: I did.

60:11–13

Q: Does this accurately describe the way that you prepared the lenses for XPS testing?

A: If I may just reread this to remind myself, if you don’t mind. Yes.

109:10–14

Q: Did you do that with every lens that you tested?

A: I handled all of the lenses in a very similar manner.

111:23–112:1

Q: And that refers to the angle resolve XPS testing that you did, right?

A: That is correct.

117:17–19

At trial, JJVC offered Dr. Bielawski as an expert on XPS and TOF-SIMS testing, and

informed the jury that Dr. Bielawski would testify “about some testing that he did himself.” Tr.

Trans. Vol. VIII 66:2–6. Dr. Bielawski continued to lie under oath during direct examination:

Q: Okay. Now let’s go on to your testing. And, first, did you do testing?

A: Yes, I did do testing.

Tr. Trans. Vol. VIII 111:25–112:2 (emphasis added). Dr. Bielawski then testified about how he

allegedly performed the XPS and TOF-SIMS tests. Tr. Trans. Vol. VIII 114:25–118:8.

Dr. Bielawski repeated his false testimony during cross-examination:

Q: Okay. And you did XPS and TOF-SIMS testing on J&J’s lenses in this case?

A: I was given – I did TOF-SIMS testing and XPS testing on Oasys and Advance lenses that were given to me, yes.


4

….

Q: And did you personally do the test yourself?

A: Yes.

Q: And that’s true for all of the tests that went into those graphs on your report?

A: Correct.

….

Q: And then there’s a date. That means you did this test on July 7 of 2011?

A: Right.

Tr. Trans. Vol. VIII 139:24–140:2; 142:18–22; 146:2–4 (emphasis added).

Dr. Bielawski also point blank lied to the jury regarding whether Mr. Jonathan

Radcliffe performed some of the TOF-SIMS tests provided with his expert report:

Q: If you look at this exhibit [PTX713B], it says that Jonathan Radcliffe was the person that did this work?

A: That’s not correct.

Tr. Trans. Vol. VIII 150:3–13 (emphasis added). On redirect, Dr. Bielawski continued to offer

false testimony about the experiments:

Q: Did you describe your experiments accurately in your expert report?

A: Yes, I did.

Tr. Trans. Vol. VIII 164:7–9.

Dr. Bielawski’s testimony was false.

Rembrandt first learned of Dr. Bielawski’s fraud shortly after the Court entered

judgment. Dr. Holt Bui, then a graduate student of Rembrandt’s expert Dr. Thomas Beebe, was

at a conference related to TOF-SIMS. Dkt. #305 at Ex. C. At the conference, Dr. Bui

encountered Dr. Andrei Dolocan, a scientist affiliated with the Texas Materials Institute


5

(“TMI”) at UT, where Dr. Bielawski allegedly performed his XPS and TOF-SIMS testing. Tr.

Trans. Vol. VIII 74:7–12. Dr. Dolocan told Dr. Bui that he performed the TOF-SIMS testing

for Dr. Bielawski. Dr. Dolocan’s opinion was that Dr. Bielawski had no experience whatsoever

in TOF-SIMS. Dr. Dolocan stated that he believed the work he did was public information.

Dkt. #305 at Ex. C, ¶¶7–8,12.

Rembrandt sought to reopen discovery under Rules 26 and 27 to further inquire about

Dr. Dolocan’s statements. Dkt. ##305 and 335. The Court denied Rembrandt’s motions. Dkt.

##318 and 340. Rembrandt then filed an open records request with the UT seeking documents

related to TOF-SIMS and XPS testing of contact lenses done between June 2011 and

November 2011, including those done by Dr. Dolocan. Ex. B [Mr. Schultz’s letter to UT, dated

May 29, 2012].2 On August 20, 2012, the Texas Attorney General’s Office determined that

some of the requested documents were confidential under Texas state law and could not be

produced, but that other documents, particularly emails, were public documents and must be

produced. Rembrandt filed suit against UT regarding the confidential documents in Texas state

court (the “Texas Action”). On November 19, 2012, UT produced the public documents to

Rembrandt. In January 2013, after three motions to compel, Rembrandt took the depositions of

Dr. Dolocan, Dr. Hugo Celio (another scientist at TMI) and Dr. Bielawski regarding the work

performed for Dr. Bielawski on contact lenses. Just prior to these depositions, UT produced

additional documents and data it deemed were public.3 As Rembrandt only sought documents

related to testing on contact lenses during June and November 2011, UT only produced

documents satisfying this criterion.

2 Rembrandt informed JJVC that it was seeking documents from UT. Ex. C [Email correspondence from Mr. Holdreith to Mr. Barron, dated June 8, 2012]. Prior to the depositions, UT requested that JJVC intervene in the Texas Action. JJVC declined to intervene. Ex. D [Mr. Barron’s letter to Ms. Fuchs, dated Jan. 14, 2013]. 3 Rembrandt understands that all of the documents and data produced by UT have been or will shortly be provided to JJVC’s counsel by UT.


6

The documents and testimony show beyond any reasonable doubt that Dr. Bielawski’s

testimony was false, that Dr. Bielawski lied about his qualifications as an expert in performing

XPS and TOF-SIMS tests, and that data and other documents considered by Dr. Bielawski

were not produced to Rembrandt.

III. LEGAL STANDARD

The Court has jurisdiction to hear and decide this Motion.4 Mahone v. Ray, 326 F.3d

1176, 1180 (11th Cir. 2003) (“Accordingly, a district court presented with a Rule 60(b) motion

after a notice of appeal has been filed should consider the motion and assess its merits.”).

Federal Rule of Civil Procedure 60(b)(3) allows a party to obtain relief from a final judgment

upon a showing of “fraud (whether previously called intrinsic or extrinsic), misrepresentation,

or other misconduct by an opposing party.” Although relief is within the discretion of the

district court, the Rule “is remedial and should be liberally construed.” Rozier v. Ford Motor

Co., 573 F.2d 1332, 1346 (5th Cir. 1978) (citation omitted). To prevail on a Rule 60(b)(3)

motion in this circuit, the movant must establish by clear and convincing evidence “that the

adverse party engaged in fraud or other misconduct, and that this conduct prevented the

moving party from fully and fairly presenting his case.” Harre v. A.H. Robins Co., 750 F.2d

1501, 1503 (11th Cir. 1985). See also Rally Mfg., Inc. v. Mr. Gasket Co., No. 87–1533, 1992

U.S. Dist. LEXIS 20681, at *15–16 (S.D. Fla. June 12, 1992) (citation omitted).

This is a case where the evidence proves beyond a reasonable doubt, a standard

greater than clear and convincing, that fraud and misconduct occurred. Nevertheless,

Rembrandt asserts that the correct evidentiary standard for a Rule 60(b)(3) motion is

preponderance of the evidence. The Supreme Court emphasized in Grogan v. Garner that

most federal fraud laws do not require proof by clear and convincing evidence, but only by a

preponderance of the evidence. 498 U.S. 279, 288–89 (1991). Therefore, absent a clear

4 Rembrandt has filed contemporaneously a Motion to Stay with the Federal Circuit based on this Motion.


7

statement from Congress or the Supreme Court, the correct evidentiary standard for Rule

60(b)(3) should be preponderance of the evidence.

Rule 60(b)(3) does not require that the moving party show that the result in the case

would have been different absent the fraud or misconduct. See Rozier, 573 F.2d at 1339

(stating, “[t]his subsection of the Rule is aimed at judgments which were unfairly obtained, not

at those which are factually incorrect.”); Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1st Cir.

1988) (The misconduct of the adverse party “need not be result-altering in order to merit Rule

60(b)(3) redress.”). The moving party need only show that the fraud or misconduct prevented

the movant from fully and fairly presenting its case, or that if it had known of the fraud or

misconduct, it would “have made a difference in the way [they] approached the case or

prepared for trial.” Rozier, 573 F.2d at 1342 (quotations omitted).

This Court may also grant Rembrandt relief under Rule 60(b)(2). In order to grant

relief under Rule 60(b)(2), Rembrandt must show that: “(1) the evidence must be newly

discovered since the trial; (2) due diligence on the part of the movant to discover the new

evidence must be shown; (3) the evidence must not be merely cumulative or impeaching;

(4) the evidence must be material; and (5) the evidence must be such that a new trial would

probably produce a new result.” Waddell v. Hemerson, 329 F.3d 1300, 1309 (11th Cir.

2003)(citation omitted).

“When ruling on a Rule 60(b) motion, this Court takes as true the movant’s factual

assertions.” Sierra Club, Inc. v. Leavitt, No. 4:04cv120, 2005 U.S. Dist. LEXIS 35569, at *4

(N.D. Fla. Oct. 18, 2005). See also United States v. Denham, 817 F.2d 1307, 1309 (8th Cir.

1987) (reversing the district court’s denial of a Rule 60(b) motion, stating that in considering a

Rule 60(b) motion, the court is “entitled to assume that the movant’s factual allegations are

true, as on a motion to dismiss.”).


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IV. THE JUDGMENT IN THIS CASE HAS BEEN TAINTED BY DR. BIELAWSKI’S PERJURED TESTIMONY SUCH THAT THE JUDGMENT SHOULD BE SET ASIDE UNDER RULE 60(b)(3).

Contemporaneous documents and sworn testimony demonstrate beyond a reasonable

doubt that others, not Dr. Bielawski, performed all of the XPS and TOF-SIMS tests discussed

in and provided with Dr. Bielawski’s report, in direct contradiction to Dr. Bielawski’s sworn

testimony. This testing related to one of the most important, highly contested issues in the case:

whether the accused lenses had the claimed higher ratio of HAM-to-silicon in the surface layer

as compared to the lens body. The evidence also shows that Dr. Bielawski lied about his

qualifications as an expert in TOF-SIMS and XPS testing because he did not even know how

to operate the machines.

Dr. Bielawski’s false testimony “prevented [Rembrandt] from fully and fairly

presenting [its] case” because it was not able to examine the people who actually performed the

tests. Rozier, 573 F.2d at 1339. Rembrandt would have obtained admissions from the people

who conducted the tests regarding concerns and problems with the experiments, like charging

problems. Moreover, JJVC set up a credibility battle between the experts and used

Dr. Bielawski to attack Dr. Beebe’s integrity. Rembrandt was unable to fully and fairly present

its case because it could not rebut JJVC’s attack on Dr. Beebe by showing the jury

Dr. Bielawski’s lack of integrity, trustworthiness, or qualifications. If the jury had known that

Dr. Bielawski was lying the whole time, JJVC’s strategy would have back-fired.

JJVC is currently urging that the Federal Circuit affirm the judgment based in part on

the jury’s verdict. But the judgment and verdict have been tainted by Dr. Bielawski’s perjury.

Thus, the Court must set aside the judgment under Rule 60(b)(3).


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A. Dr. Bielawski provided false testimony at trial and in his deposition regarding the TOF-SIMS testing described in his expert report.

Counsel for JJVC specifically identified the following dates as the ones on which

Dr. Bielawski allegedly performed the TOF-SIMS tests in support of his report: July 4, July 7,

July 13, August 5, September 13, September 14, September 16, and October 8. Dkt. #310

¶¶13–15 referring to Ex. F of the declaration; Ex. E [Mr. Barron’s letter to Mr. Schultz, dated

Dec. 16, 2011] (stating that “the file names themselves contain the date the tests were

performed.”). Dr. Bielawski testified under oath at trial and at deposition that he performed the

TOF-SIMS testing described in and provided with his expert report. Supra Sec. I. The

evidence, however, proves beyond a reasonable doubt that Dr. Bielawski’s testimony was false

as he did not perform any of the TOF-SIMS testing. Dr. Bielawski was not even present at any

of the TOF-SIMS testing, as Dr. Dolocan testified that only himself and/or a graduate student

were present for all of the TOF-SIMS testing on contact lenses. Ex. F, Dolocan 1/23/13 Depo.

26:5–10 (cited portions have been highlighted).

1. Dr. Dolocan performed all of the TOF-SIMS testing in July and August 2011, not Dr. Bielawski.

Email correspondence and deposition testimony confirm without doubt that

Dr. Dolocan performed the TOF-SIMS tests on July 4, July 7, July 13, and August 5.

Dr. Dolocan is the lab manager at TMI responsible for the TOF-SIMS machine, including

“handling all user training, scheduling and billing.” Ex. G [Document titled “TOF-SIMS

Facility Presentation”], first paragraph. On July 28, 2011, Dr. Dolocan sent Dr. Bielawski a

breakdown of charges for TOF-SIMS testing on contact lenses done in July 2011. Ex. H [Email

correspondence between Dr. Dolocan and Dr. Bielawski, dated July 28, 2011, stamped as Ex.

21 to Dolocan’s 1/23/13 deposition]. In this email, Dr. Dolocan specifically states that he

conducted the tests on July 4, July 7, July 8, July 13, and July 14. Dr. Dolocan explained to

Dr. Bielawski that he can only perform one TOF-SIMS test per day. Id. At his deposition,


10

Dr. Dolocan confirmed under oath that he performed the TOF-SIMS tests on contact lenses in

July 2011 for Dr. Bielawski. Ex. F, Dolocan 1/23/13 Depo. 39:25–40:18. In addition to the

testing, Dr. Dolocan charged Dr. Bielawski three hours for “data analysis.” Dr. Dolocan then

told Dr. Bielawski that the analysis “was more than 5 hours to be completely honest and this

time I had to take from my free time.” Ex. H at pg. 2.

Dr. Bielawski’s false testimony to the Court is highlighted by the July 13, 2011 test.

The truth is that Dr. Bielawski was not even in the United States on July 13, 2011.

Dr. Bielawski attended the International Symposium on Olefin Metathesis in Rennes, France

held on July 11 through July 15, 2011. Dr. Bielawski’s resume confirms that he attended the

symposium. See DTX0004 at 0019. The symposium’s publicly available web site,

http://isom19.univ-rennes1.fr/, contains a photo gallery of photographs taken at the symposium

on each date. See http://isom19.univ-rennes1.fr/photogallery.html, last visited February 19,

2013. In the photo gallery for July 13, 2011, there is a picture of Dr. Bielawski at the

symposium. Ex. I [Photograph dated July 13, 2011]. The photo even includes a date code

embedded in the photo file showing that it was indeed taken on July 13, 2011.

The August 5, 2011 test was also done by Dr. Dolocan. There are no fewer than three

independent sources of proof. First, on October 13, 2011, Dr. Dolocan wrote an email with

another breakdown for the TOF-SIMS testing on contact lenses done in August 2011, wherein

he identifies August 5 as a date he did testing for Dr. Bielawski. Ex. J [Email correspondence

from Dr. Dolocan and Dr. Bielawski, dated Oct. 13, 2011, marked as Ex. 23 to Dolocan’s

1/23/13 deposition]. Second, Dr. Dolocan testified at his recent deposition that he was the

operator of the TOF-SIMS machine for the tests in August 2011, including August 5th. Ex. F,

Dolocan 1/23/13 Depo. 25:3–18; 50:13–15. Third, Dr. Bielawski’s own email at the time

confirms as much. On July 29, 2011, Dr. Bielawski said that “it may be more efficient if you

[Dr. Dolocan] analyzed the next two samples” and requests that Dr. Dolocan reserve the TOF-


11

SIMS machine on August 5th. Ex. K [Email correspondence from Dr. Dolocan and

Dr. Bielawski, dated July 29, 2011, pg. 1–2, marked as Ex. 24 to Dolocan’s 1/23/13

deposition].

JJVC’s reliance on the TMI calendar as proof that Dr. Bielawski did the August 5th test

is directly refuted by Dr. Dolocan’s testimony. Dkt. #310 at ¶13. Dr. Dolocan testified that he

signed Dr. Bielawski up on the TMI calendar, but that he, Dr. Dolocan, was the one who

actually performed the tests on August 5. Ex. F, Dolocan 1/23/13 Depo. 50:25–52:4. This

evidence leaves no doubt that Dr. Dolocan performed the July and August 2011 TOF-SIMS

tests for Dr. Bielawski.

2. Mr. Jonathan Radcliffe performed the TOF-SIMS testing in September and October 2011, not Dr. Bielawski.

All of the September and October 2011 TOF-SIMS tests were performed by

Mr. Jonathan Radcliffe, not Dr. Bielawski. Mr. Radcliffe was a former graduate student of

Dr. Bielawski. Dkt. #310 at ¶12. Dr. Bielawski explicitly denied at trial that Mr. Radcliffe did

any TOF-SIMS tests for him, and instead testified that Mr. Radcliffe “helped with getting the

instrument settled….” Tr. Trans. Vol. VIII 150:3–24. Mr. Radcliffe, however, did more than

get the TOF-SIMS machine “settled;” he actually performed the TOF-SIMS tests in September

and October 2011 that Dr. Bielawski claimed as his own.

At his deposition, Dr. Dolocan testified that a graduate student, not Dr. Bielawski,

performed the tests in September 2011. Ex. F, Dolocan 1/23/13 Depo. 25:3–18; 50:16–20. The

TMI calendar shows that Mr. Radcliffe reserved the TOF-SIMS machine on September 2 and

September 12 through 18. Dkt. #310 at ¶¶12, 14 (citing Dkt. #310–6 at 15). Dr. Dolocan states

“[f]or September you need to ask [REDACTED] about the data he collected.”5 Ex. J, pg. 2.

5 UT redacted only student names from the documents it produced under the Federal Educational Rights Privacy Act. UT did not redact names of employees, like Dr. Bielawski.


12

Similar documents and testimony prove that the October 8, 2011 test was done by

Mr. Radcliffe. Mr. Radcliffe is signed up on the TMI calendar for this date. Dkt. #310 at ¶14

(citing Dkt. #310–6 at 18). Again, Dr. Dolocan’s testified that only Dr. Dolocan and a graduate

student, Mr. Radcliffe, performed the TOF-SIMS testing on contact lenses. Ex. F, Dolocan

Depo. 25:12–18.

Below is a table summarizing who performed the TOF-SIMS tests that Dr. Bielawski

falsely claimed to have performed:

Dates of TOF-SIMS Tests

(Dkt.#310 at ¶¶12–15, citing Ex. F; Ex. F, Barron 12–16–11 letter)

Person Who Actually Performed the TOF-SIMS Test

July 4 Dr. Andrei Dolocan



August 5 Dr. Andrei Dolocan

September 13 Mr. Jonathan Radcliffe



October 8 Mr. Jonathan Radcliffe

It is clear that Dr. Bielawski intended to and did provide false testimony to Rembrandt,

the jury, and the Court when he testified that he personally performed all of the TOF-SIMS

tests in his report.

B. Dr. Bielawski provided false testimony at trial and in his deposition regarding the XPS testing described in his expert report.

A similar chain of evidence shows that Dr. Bielawski did not perform any of the XPS

testing he claimed. According to the file names JJVC’s counsel provided for Dr. Bielawski’s

XPS testing, the XPS tests that Dr. Bielawski relied upon were performed on July 1, 2011 and


13

August 23, 2011. Ex. L [Screenshot of XPS files provided with Dr. Bielawski’s expert report,

file names include “082311” and “07012011”, marked as Ex. 3 to Celio’s 1/22/13 deposition];

Ex. F (“The file names themselves contain the date the tests were performed.”). The evidence,

demonstrates beyond a reasonable doubt that Dr. Hugo Celio and two students performed this

XPS testing. Indeed, Dr. Bielawski was not even present when the tests occurred. Ex. M, Celio

1/22/13 Depo. 48:1–16 (citations are highlighted). Dr. Celio, the lab manager responsible for

the XPS machine at TMI, was not aware of any document created by Dr. Bielawski recording

any XPS test on contact lenses. Ex. M, Celio 1/22/13 Depo. 68:4–11; 69:22–70:1.

Dr. Celio testified that he and two students performed the XPS tests on July 1 and

August 23. Ex. M, Celio 1/22/13 Depo. 30:7–11 and Ex. L. An intern at TMI, Mr. Justin

Johnson, performed the July 1, 2011 test. On June 30, 2011, Mr. Johnson sent an email to

Dr. Bielawski that the earliest Mr. Johnson would be able to perform the XPS tests was

“tomorrow afternoon,” or July 1. Ex. N [Email correspondence between Dr. Dolocan,

Dr. Bielawski and Dr. Celio, marked as Ex. 5 to Celio 1/22/13 Depo], pg. 6 (relevant portion

highlighted). On July 6, 2011, Mr. Johnson provided three spreadsheets containing analyses of

the XPS tests he performed on July 1. Id. at pg. 5 (relevant portion highlighted). Dr. Celio

provided Dr. Bielawski a breakdown of XPS usage in July 2011. Ex. O [Email correspondence

between Dr. Celio and Dr. Bielawski, dated July 14, 2011, marked as Ex. 4 to Celio’s 1/22/13

Depo.] The details regarding the XPS usage in July match the work performed by Mr. Johnson,

such as performing angle resolved XPS. Thus, Dr. Celio’s testimony and the documents show

that Mr. Johnson, not Dr. Bielawski, performed the XPS tests on July 1, 2011.

Dr. Celio and/or Mr. Radcliffe performed the August 23rd XPS tests. On August 10,

2011, Dr. Bielawski confirmed with Dr. Celio that XPS tests would be performed on August

23 and that his student will get trained on and “help with the XPS analysis” planned for August

23. Ex. P [Email correspondence between Dr. Bielawski and Drs. Celio and Dolocan, dated


14

August 10, 2011]. The documents are consistent with Dr. Celio’s testimony that he and two

students performed the XPS tests on July 1 and August 23. Ex. M, Celio 1/22/13 Depo. 30:7–

11.

C. Dr. Bielawski’s perjury prevented Rembrandt from fully and fairly presenting its case.

It is self-evident that had Rembrandt known the truth prior to trial, it would have had an

impact on Rembrandt’s presentation and surely would have “made a difference in the way

plaintiff’s counsel approached the case or prepared for trial.” Rozier, 573 F.2d at 1342 (internal

quotation omitted). For example, Rembrandt would have been able to exclude Dr. Bielawski’s

testimony under Daubert or would have demonstrated to the jury that Dr. Bielawski had lied

under oath. Thus, Rembrandt has been prejudiced by Dr. Bielawski’s false testimony.

Dr. Bielawski’s false testimony was more than harmless lies. During the trial, the

reliability of the test method used by all experts for all tests was hotly contested, such as room

temperature or frozen temperature, hydrated or dehydrated samples, and microtome or depth

profiling and contamination during sample handling. Indeed, whether the tests were performed

consistently and correctly was as important as the results of the tests. It would not necessarily

have been improper for Dr. Bielawski to rely on competent graduate students if he had

provided close and qualified supervision; here, Dr. Bielawski was not qualified to supervise,

did not supervise, and did not disclose who actually did the tests or their qualifications (or lack

thereof). Instead, he simply lied about it.

Moreover, JJVC’s trial strategy was to contrast the supposed integrity and competence

of Dr. Bielawski with Dr. Beebe. Counsel for JJVC asked each of its experts if they would

consider Dr. Beebe’s work suitable for publication to demonstrate Dr. Beebe’s alleged

incompetence. Tr. Trans. Vol. VII 252:15–21; Vol. VIII 128:18–21 and 239:15–20. With

Dr. Bielawski, counsel went further:


15

Q. Was [Dr. Beebe] dishonest?

A. I believe he was, yes.

Tr. Trans. Vol. VIII 165:4–5. Mr. Diskant then urged in his closing the jury to “[t]hink about

the experts, whether you credit their testimony. And in particular, think about Dr. Beebe.

Dr. Beebe came into this courtroom and I think to your face and did not tell the truth. Why on

earth would you trust a guy who doesn’t tell the truth in court?” Tr. Trans. Vol. IX 267:4–8

(emphasis added). Had Rembrandt been aware that Dr. Bielawski lied repeatedly and was not

even qualified to offer the opinion he offered, the entire trial would have been different.

Rembrandt’s inability to inform the jury of Dr. Bielawski’s dishonesty without a doubt

precluded Rembrandt from fully and fairly presenting its case.

D. Eleventh Circuit precedent requires a judgment to be set aside when an expert witness commits perjury.

A judgment resting on perjured testimony of an expert, in which the expert claimed to

have done experiments that he did not do, should be set aside under Rule 60(b)(3). Harre, 750

F.2d at 1503. In Harre, the Eleventh Circuit reversed the district court’s denial of a Rule

60(b)(3) motion when a defense expert testified falsely on direct examination that he had lead

various studies on which his opinion was founded, which was related to an important issue at

trial. Id. at 1502–03. The same expert admitted in a later case that he did not lead the studies,

but rather had some conversations with the scientists who actually did the study, and conducted

a brief review of the laboratory notebooks. Id. The district court denied the Rule 60(b)(3)

motion because it determined that plaintiffs’ counsel could have uncovered the fraud in cross-

examination such that plaintiff was not prevented from fully and fairly presenting its case. Id.

at 1503. The Eleventh Circuit reversed the district court, finding that the two elements for Rule

60(b)(3) relief were present, and that uncovering the fraud in cross-examination was

unnecessary. Id. at 1504–05.


16

Dr. Bielawski committed the same type of fraud as the expert in Harre, and worse.

Dr. Bielawski provided false testimony by testifying that he personally performed all of the

XPS and TOF-SIMS tests in his report, when, in fact, he did not. See supra III. A and B. This

false testimony was directed to one of the most important issues at trial, the “surface layer”

limitation. The majority of testimony from all witnesses was directed at this limitation, and this

limitation was a major contention all the way through jury instructions. Dkt. #328. The false

testimony precluded Rembrandt from fully and fairly presenting its case because Rembrandt

would have shown that Dr. Bielawski was untrustworthy.

During the course of the trial, the Court made it abundantly clear that it would not

tolerate witnesses who made up testimony or lied under oath. Tr. Trans. Vol. III 66:6–22;

69:1–19; 70:8–15; 72:12–15. Dr. Bielawski was present during the Court’s admonitions.

Despite this clear warning, Dr. Bielawski took the witness stand and lied to Rembrandt, the

jury, and the Court. Dr. Bielawski’s actions showed a complete disregard for the integrity of

the Court and the judicial system. It is unthinkable that one would commit perjury, but it is

completely incredible to think that one would commit perjury after witnessing the proceedings

in this case, as Mr. Diskant acknowledged. Dkt. #309 at ¶4.

Dr. Bielawski’s misconduct is in stark contrast to the circumstances of Dr. Beebe’s

testimony about Shore D testing. Dr. Beebe acknowledged the error in his report during cross-

examination. Following trial, counsel for Rembrandt required Dr. Beebe to demonstrate the

Shore D testing by both the method in his report and the method he testified to on cross-

examination, and videotaped the demonstration. The video submitted to the Court shows that

Dr. Beebe can perform both methods of Shore D testing competently and they both lead to the

same result: a Shore D value of zero. Dkt. #329 at Ex. 1.

In contrast, Dr. Bielawski did not acknowledge the truth when directly asked during

cross-examination. Rather, he expressly denied that the testing was done by others. Tr. Trans.


17

Vol. VIII 150:11–13. To this day, Dr. Bielawski continues to repeat the lies in his report and

testimony. Ex. Q, Bielawski 1/30/13 Depo. 81:25–82:15; 141:19–142:17 (citations

highlighted).

Rembrandt is entitled to the requested relief regardless of whether JJVC or its attorneys

knew or should have known of Dr. Bielawski’s fraud. In Harre, the Eleventh Circuit reversed

the district court in part because plaintiff’s evidence showed that “the defense attorneys knew

or should have known of the falsity of the testimony.” 750 F.2d at 1503. The Eleventh Circuit,

however, did not hold that a moving party under Rule 60(b)(3) must demonstrate that opposing

counsel “knew or should have known” of the perjury in order to obtain relief under Rule

60(b)(3). Indeed, as the essential question is whether Rembrandt was deprived of the

opportunity to fairly present its case, JJVC’s counsel’s knowledge is irrelevant. The Court has

ample power to vindicate its highest duty of providing a fair trial by setting aside the judgment

because Dr. Bielawski’s undeniable perjury precluded Rembrandt from fully and fairly

presenting its case.

At this time, the Court need not make any finding on whether JJVC’s counsel knew or

should have known about the fraud. However, if the Court determines that Rembrandt must

show that JJVC’s counsel knew or should have known of the fraud, there is a sufficient basis to

determine that JJVC’s counsel should have known about Dr. Bielawski’s fraud. First, JJVC’s

counsel apparently put great weight on whether the experts personally performed their

experiments, by asking Dr. Beebe repeatedly about whether he personally performed the XPS

and TOF-SIMS tests done in support of his expert report. Ex. R, Beebe 11/22/11 Depo. 89:3–

94:25; 195:10–198:10. A similar examination of Dr. Bielawski during the drafting of his report

or at least in preparation for his deposition or trial would have uncovered the truth.

Second, Dr. Bielawski testified that he has never submitted an invoice to Jenner &

Block for his services as an expert. Ex. Q, Bielawski 1/30/13 Depo 41:1–13. Counsel should


18

have inquired during its numerous discussions as to why he had not submitted any invoices for

work he was allegedly performing. Id.; Dkt. #310 at ¶¶16–23.

Third, after JJVC’s counsel was confronted with evidence that Mr. Radcliffe was listed

as the machine operator for a September 2011 TOF-SIMS test (PTX713B), JJVC’s counsel

could and should have inquired with Mr. Radcliffe. Thus, JJVC’s counsel should have known

about the fraud because it had numerous reasons and occasions to have investigated the

matter.6

The unique facts of this case require that the judgment be set aside under Rule 60(b)(3)

based on Dr. Bielawski’s perjury.

V. THE JUDGMENT SHOULD BE SET ASIDE BECAUSE DR. BIELAWSKI LIED ABOUT HIS QUALIFICATIONS AS AN EXPERT IN PERFORMING TOF-SIMS AND XPS TESTING.

As a separate and alternative ground for relief, the evidence demonstrates beyond

reasonable doubt that Dr. Bielawski lied about his qualifications as an expert in performing

XPS and TOF-SIMS tests. Months after undertaking the engagement for JJVC and during the

time the experiments were in progress, Dr. Bielawski was not capable of operating the XPS

and TOF-SIMS machines at TMI. For the XPS machine, Dr. Bielawski asked Dr. Celio if he

“can get trained on how to use the [XPS] instrument.” Ex. S [Email correspondence between

Dr. Bielawski and Drs. Celio and Dolocan, dated June 28, 2011, marked as Ex. 8 to Celio

1/22/13 depo.] (emphasis added). There are no documents showing that Dr. Bielawski ever got

trained on the XPS machine. Ex. M, Celio 1/22/13 Depo. 68:4–11.

Likewise, Dr. Bielawski needed to be trained on the TOF-SIMS machine. In late July

2011, Dr. Bielawski asked Dr. Dolocan if “you can train me?” Ex. T [Email correspondence

6 Should the Court find that it must determine whether JJVC or its attorneys knew or should have known of the perjury, Rembrandt would request that the Court reopen discovery on this issue under Rule 27 and permit supplementation of this Motion’s record.


19

between Dr. Dolocan and Dr. Bielawski, dated July 29, 2011], pg. 2 (emphasis added) (cited

portions highlighted). Dr. Dolocan responded to this request by stating that “this experiment

[on contact lenses] is the worst experiment you could possibly imagine to train somebody on

TOF-SIMS” and proposed that it would be better for Dr. Dolocan to perform the tests. Ex. T,

pg. 1, ¶1 (emphasis added). Dr. Bielawski responded by describing Dr. Dolocan’s work as a

“godsend” and then decided against getting trained as “it may be more efficient if you

[Dr. Dolocan] analyzed the next two samples.” Ex. U [Email correspondence between

Dr. Bielawski and Dr. Dolocan, dated July 29, 2011] (emphasis added). This request to be

trained came after three of the TOF-SIMS experiments relied upon by Dr. Bielawski had been

performed, July 4, July 7 and July 13. Dkt. #310 at ¶¶13–15. Although there is documentation

that Dr. Dolocan trained Dr. Bielawski’s student, there is no record of Dr. Bielawski getting

trained on the TOF-SIMS machine. Ex. F, Dolocan 1/23/13 Depo. 53:18–54:2; 81:9–22; Ex. J.

Dr. Bielawski’s lack of qualifications is highlighted by the fact that three days before

his deposition in this case—weeks after signing his report—he emailed Dr. Dolocan asking to

be reminded of why he could ignore the first few nanometers of data in the TOF-SIMS tests:

“could you please explain again to me why it is appropriate to discount the first few

nanometers of TOF-SIMS data when sputtering?” Ex. V [Email correspondence between

Dr. Dolocan and Dr. Bielawski, dated Nov. 30, 2011], pg. 2 (relevant portion highlighted).

Dr. Bielawski’s non-infringement opinion rested entirely on ignoring this data because this data

shows there is a higher HAM-to-silicon ratio in the surface layer than the lens body. Yet, after

signing his report, Dr. Bielawski did not have even a basic understanding of one of the most

critical components of his non-infringement opinion.

Rule 60 relief is appropriate when an expert provides false testimony about his

qualifications to be an expert. In re Vioxx Prods. Liab. Litig., 489 F. Supp. 2d 587, 594–95

(E.D. La. 2007) (granting a Rule 60(b)(3) motion where a defense expert lied about his


20

qualifications of being an expert). This type of misrepresentation also “sheds an unfavorable

light upon [the expert’s] propensity for truthfulness.” Id. at 594. Of note, the court granted

relief under Rule 60(b)(3) even though defense counsel did not know it had elicited false

testimony about the expert’s qualifications. Id. at 594 n.6. Thus, Dr. Bielawski’s false

testimony regarding his qualifications as an expert provides an additional ground for setting

aside the judgment under Rule 60(b)(3), regardless of whether JJVC or its attorneys knew or

should have known about it.

VI. THE JUDGMENT ALSO SHOULD BE SET ASIDE BECAUSE HIGHLY RELEVANT INFORMATION AND DATA WAS NOT PRODUCED AS REQUIRED UNDER RULE 26.

The discovery from UT also establishes that Rembrandt was not provided with all of

the facts and data considered by Dr. Bielawski in reaching his opinions as required under Rule

26. For example, data and graphs from testing on admitted infringing Bausch & Lomb

(“B&L”) and CIBA lenses were not produced to Rembrandt, even though Dr. Bielawski

referred to them in his direct examination and JJVC’s counsel acknowledges asking him to

consider them. Tr. Trans. Vol. VIII 120:24–121:5, Vol. IX 244:21–245:9; Dkt. #310 at ¶18.

Also, data and graphs from undisclosed tests on the accused lenses were not produced.

“Failure to disclose or produce materials requested in discovery can constitute

‘misconduct’ within the purview of [Rule 60(b)(3)].” Jones v. Aero/Chem Corp., 921 F.2d 875,

878–79 (9th Cir. 1990) (reversing denial of Rule 60(b)(3) motion as abuse of

discretion)(quotation omitted). See also Rozier, 573 F.2d at 1346 (defendants failure to respond

to discovery warranted a new trial under Rule 60(b)(3)). When granting relief under this

section, “both intentional and unintentional misrepresentations and failures to disclose are a

sufficient basis for relief.” 12 MOORE’S FEDERAL PRACTICE, § 60.43 (3rd Ed. 2012). Relief

under this rule may be granted regardless of “whether [the adverse party acted with] evil,

innocent or careless, purpose.” Bros. Inc. v. W.E. Grace Mfg. Co., 351 F.2d 208, 211 (5th Cir.


21

1965), cert. denied, 383 U.S. 936 (1966). Thus, granting relief based upon this alternative

ground does not depend on whether counsel knew or should have known about the incomplete

disclosure or if the failure to disclose was intentional or not.

After being served with Dr. Bielawski’s expert report and the raw data files generated

by his tests, Rembrandt had numerous communications with JJVC inquiring whether all of the

raw data files had been produced. Dkt. #310 at ¶23. JJVC continued to state that all of the raw

data files had been produced. Id. At trial, Dr. Bielawski testified that he gave all of his data to

Rembrandt. Tr. Trans. Vol. VIII 123:21–25. This was untrue.

In the documents obtained from UT, it is clear that additional XPS and TOF-SIMS tests

were conducted for Dr. Bielawski. In particular, TOF-SIMS tests were conducted on B&L and

CIBA lenses, and these data were not provided to Rembrandt. At trial, Dr. Bielawski testified

about this testing in support of his opinion of non-infringement. Tr. Trans. Vol. VIII 120:16–

121:8. Mr. Diskant, in closing, emphasized this testing on B&L lenses as support for a finding

of non-infringement because of the supposed difference in these curves as compared to the

accused lenses. Tr. Trans. Vol. IX 244:12–245:9.

As discovered from UT, Dr. Dolocan performed a TOF-SIMS test on a “Type L,”

likely a B&L contact lens, and then provided a report to Dr. Bielawski on his results. Ex. W

[Email correspondence between Dr. Dolocan and Dr. Bielawski, dated July 4, 2011]. Likewise,

someone at UT created graphs based on TOF-SIMS tests done on a “Type F” lens, likely a

CIBA Focus Night & Day lens. Ex. X [Screenshot of a graph with file name “Type F2

OH_Si”]; Dkt. 310 at ¶17 (indicating that B&L and CIBA Focus Night & Day lenses were sent

to Dr. Bielawski by JJVC’s counsel). Despite the reliance by JJVC and Dr. Bielawski on these

tests, the raw data and analyses considered by Dr. Bielawski were never produced to

Rembrandt. Indeed, JJVC never once mentioned these tests or analyses before trial, and instead

ambushed Rembrandt at trial. At trial, it was not clear if Dr. Bielawski and JJVC were relying


22

on actual tests or just conjecture as to what the results would look like. It is now clear that

actual tests had been performed, and never produced.

In addition to these tests, raw data files for XPS and TOF-SIMS tests done on the

accused lenses for Dr. Bielawski, along with analyses considered by Dr. Bielawski, were not

produced. Dr. Dolocan provided Dr. Bielawski usage reports identifying the dates of TOF-

SIMS tests done for Dr. Bielawski, including tests done on contact lenses. The reports identify

at least nine tests that were performed for Dr. Bielawski for which raw data files were not

produced: July 8, July 14, August 7, August 8, September 12, September 15, September 17,

September 18 and September 19. Ex. F, Dolocan Depo. 39:25–40:18 referring to Ex. H; 47:19–

48:21 referring to Ex. J. Likewise, the XPS usage report from TMI on usage for Dr. Bielawski

related to testing on contact lenses shows that a student for Dr. Bielawski conducted at least six

XPS tests for which the raw data files were not produced: June 14, June, 24, August 24,

September 22, September 23, and October 20. Ex. Y [XPS usage spreadsheet for Dr. Bielawski

from June through October 2011].

At the request of Dr. Bielawski, Dr. Dolocan created several graphs of the data he

collected for Dr. Bielawski. See, e.g., Ex. Z [Email correspondence between Dr. Dolocan and

Dr. Bielawski, dated August 11, 2011]; Ex. AA [Screenshot of a graph with file name

“20110707_ContLens_TypeA_neg_5_OH_Si_Ratio”]; Ex. BB [Screenshot of a graph with file

name “20110713_ContLens_TypeO_CHO_Si_ratio”]. Graphs showing a surface layer in the

accused lenses, even after ignoring the first few nanometers of data, were likewise not

produced. Ex. CC [Screenshot of a graph with file name “Type A LT OH_Si”]; Ex. DD

[Screenshot of graph with file name “Type O LT OH_Si”].7 These documents and many others

were not produced to Rembrandt as required under Rule 26(a)(2)(ii).

7 Ex. EE and FF are graphs as produced by UT with the addition of a horizontal line inserted by Rembrandt’s counsel at the value of “1.0” to make more easily visible the change in the HAM-to-silicon ratio (represented by OH:Si) at the surface as compared to the body.


23

Rembrandt was severely prejudiced because it was unable to “prepare effective cross-

examination” of Dr. Bielawski based on this undisclosed data. Reese v. Herbert, 527 F.3d

1253, 1265 (11th Cir. 2008)(quotation omitted). Rembrandt would have demonstrated that the

results of the infringing B&L and CIBA tests look almost, if not completely, identical to the

results of testing on the accused lenses. Compare Ex. GG [Screenshot of graph with file name

“Type L1 OH_Si”] and Ex. X with Ex. AA and Ex. BB. Likewise, undisclosed graphs from

testing on the accused lenses prove that the accused lenses had a higher HAM-to-silicon ratio

in the surface layer than in the lens body, contrary to Dr. Bielawski’s trial testimony. Exs. CC

and DD. Rembrandt was precluded from examining at least fifteen undisclosed tests on the

accused lenses to see if Rembrandt was only provided cherry-picked tests. Lastly, Rembrandt

was unable to cross-examine Dr. Bielawski on why he chose to ignore results that were

favorable to Rembrandt.

Knowledge or intent of JJVC’s counsel is irrelevant to grant the requested relief based

on this misconduct. Eleventh Circuit precedent is clear that relief must be granted for this type

of misconduct regardless of whether JJVC’s acts were with “evil, innocent or careless,

purpose” or if the failure to disclose was done intentionally or not. Bros. Inc., 351 F.2d at 211.

The misconduct of failing to produce the data and analyses required by Rule 26 provides an

alternative, independent ground for setting aside the judgment under Rule 60(b)(3).

This undisclosed information also supports setting aside the judgment under Rule

60(b)(2). As discussed above, Rembrandt did not discover this material until after trial.

Rembrandt acted with due diligence in seeking the documents from UT, including the filing of

a lawsuit to obtain the documents. This undisclosed information is material as it shows

infringement by JJVC from tests conducted for its own expert. The evidence is not cumulative

as Rembrandt was not provided any analyses done for Dr. Bielawski that showed infringement,

and he denied that Dr. Beebe’s replots of his data were accurate. Lastly, this newly discovered


24

evidence would likely have resulted in a different outcome because the new evidence supports

Rembrandt’s claim of infringement. Thus, Rule 60(b)(2) requires the judgment to be set aside.

VII. THE COURT’S RULINGS REGARDING DR. BEEBE’S SHORE D TESTING DOES NOT RENDER A NEW TRIAL MOOT.

For the reasons discussed above, the tainted judgment cannot be permitted to stand and

be adopted in any fashion by the Federal Circuit. Therefore, the judgment must be set aside.

The Court’s ruling on Dr. Beebe’s Shore D does not preclude granting this Motion

because Supreme Court and Federal Circuit precedent require that a judgment tainted by fraud,

even if supportable on other untainted grounds, be set aside. The Supreme Court and Federal

Circuit have both set aside judgments under Rule 60(b) even though the tainted judgment could

have been supported by untainted grounds. See Hazel-Atlas Co. v. Hartford-Empire Co., 322

U.S. 238, 246–47 (1944); Fraige v. American-Nat’l Watermattress Corp., 996 F.2d 295, 299–

300 (Fed. Cir. 1993). The Federal Circuit, relying on Hazel, rejected the district court’s

rationale that the tainted verdict should stand because it could be supported on other allegedly

untainted grounds because a litigant should “not be permitted the benefit of calculation, which

can be little better than speculation, as to the extent of the wrong inflicted upon his opponent.”

Id. at 299 (quotation omitted).

Upon setting aside the judgment, the Court has broad discretion to fashion the

appropriate remedy under Rule 60(b). See FED. R. CIV. P. 60(b) (stating that the court may

grant relief upon “just terms”); Conerly v. Flower, 410 F.2d 941, 944 (8th Cir. 1969) (“A court

in granting relief under Rule 60(b) is given broad discretion as to the type of relief it might

grant. And a Court acting under 60(b) is given express authority to impose just terms.”). The

Court could properly deem the fraud and misconduct discussed above to be so egregious that

the appropriate remedy would be entry of judgment on liability in favor of Rembrandt. Such a

finding would be supported by the record and would negate the Shore D issue.


25

But even if the Court is not inclined to grant such relief, at a minimum, the Court must

set aside the judgment and order a new trial. The Court’s rulings on Shore D do not preclude a

second trial because the Court has broad discretion as to how a new trial will proceed,

including revisiting previous rulings and allowing for the introduction of new evidence. See,

e.g., Cleveland v. Piper Aircraft Corp., 985 F.2d 1438 (10th Cir. 1993); Habecker v. Clark

Equip. Co., 36 F.3d 278, 288 (3d Cir. 1994); WRIGHT, MILLER & KANE, FEDERAL PRACTICE

AND PROCEDURE: Civil 2d § 2803. Rembrandt will seek reconsideration of the Court’s rulings

regarding Dr. Beebe’s Shore D testing in light of its post-trial submissions. The Court may also

consider re-opening expert discovery on liability to allow both parties to supplement one expert

report. Such proposal would be equitable for both parties as JJVC, absent Dr. Bielawski, does

not currently have an expert who performed XPS and TOF-SIMS testing on the accused lenses.

This proposal would allow the trial to be conducted on the true dispute in the case, namely the

“surface layer” limitation. These suggestions and others can be more fully briefed following an

order setting aside the judgment.

VIII. CONCLUSION

Dr. Bielawski committed perjury. His perjury was directed at one of the most important

issues at trial. JJVC relied on his perjured testimony and urged the jury to discount Dr. Beebe’s

opinions and Rembrandt’s entire case based on the supposed integrity of Dr. Bielawski.

Moreover, highly relevant data and documents considered by Dr. Bielawski were not

produced; the production of which would have called Dr. Bielawski’s opinions further into

question. This fraud and misconduct precluded Rembrandt from fully and fairly presenting its

case to the jury. For these reasons, Rembrandt respectfully requests that the Court set aside the

judgment (Dkt. #320).


26

Respectfully submitted, this 19th day of February, 2013.

By: _/s/Jake Holdreith_______________ ROBINS, KAPLAN, MILLER & CIRESI L.L.P. Ronald J. Schutz (MN Bar No. 130849) (Pro hac vice) (Trial Counsel) Jake M. Holdreith (MN Bar No. 211011) (Pro hac vice) Cole M. Fauver (MN Bar No. 243139) (Pro hac vice) Diane L. Simerson (MN Bar No. 0270702) (Pro hac vice) Ryan M. Schultz (MN Bar No. 0392648) (Pro hac vice) 800 LaSalle Avenue, Suite 2800 Minneapolis, Minnesota 55402 Telephone: (612) 349–8500 Facsimile: (612) 339–4181 Email: [email protected]

[email protected] [email protected] [email protected] [email protected]

BEDELL, DITTMAR, DEVAULT, PILLANS & COXE, P.A. John A. DeVault, III Florida Bar No. 103979 Courtney K. Grimm Florida Bar No. 953740 The Bedell Building 101 East Adams Street Jacksonville, FL 32202 Telephone: (904) 353–0211 Facsimile: (904) 353–9307 Email: [email protected]

[email protected] Attorneys for Rembrandt Vision Technologies


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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 19th day of February, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all CM/ECF participants.

_/s/Ryan M. Schultz _ Ryan M. Schultz Minnesota Bar No. 0392648 E-mail: [email protected] Robins, Kaplan, Miller, & Ciresi L.L.P. 800 LaSalle Avenue, Suite 2800 Minneapolis, Minnesota 55402 Telephone: (612) 349–8500 Facsimile: (612) 339–4181 Attorney for Plaintiff


28

Local Rule 3.01(g) Certificate

Pursuant to Local Rule 3.01(g), Rembrandt’s counsel has conferred with JJVC’s

counsel regarding this motion, and JJVC opposes this motion.


29

REQUEST FOR ORAL ARGUMENT

Pursuant to Local Rule 3.01(j), Plaintiff Rembrandt Vision Technologies, LP

respectfully requests oral argument on the MOTION TO SET ASIDE THE JUDGMENT

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60(b)(2) AND 60(b)(3) in order

to assist the Court in deciding the pending motion.

Plaintiff estimates that a total hearing time of one hour will be sufficient.


united states district court middle district of florida ... · q: okay. and you did xps and...

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