GORDON KEENE VELLA. - On Point News

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Q. . . . [defendant’s] lawyer they said, “Are you board certified, sir”? You answered, “Yes. I passed boards in internal medicine and cardiovascular disease.” That wasn’t true, was it? A. Well, actually, I wouldn’t put a period after the yes, I made it very clear I passed my boards [in] internal medicine and cardiovascular disease, I did. Q. But the question is: “Are you board certified, sir”? And you told a jury under oath, yes, and you are not board certified. A. I absolutely in no way intended to misrepresent the currency of my certification, absolutely not. Q. But you may not have intended it, but it was wrong, and you told a jury it was wrong. A. No, sir, I did not intend to represent that I wasn’t lapsed or expired at all. Q. Are you board certified or not? A. My boards have lapsed. I’m not currently board certified. I have been very clear about that. Q. So you think that was clear to the jury in New Orleans? A. Yes, I believe so. Id. at 593. The Vioxx court summarily rejected that rationale in granting the plaintiff’s subsequent rule 60(b)(3) motion. Despite the expert’s protestations, the court had no difficulty finding that the subsequent testimony constituted clear and convincing evidence that the expert had misrepresented his qualifications to the court and to the jury. Moreover, the testimony revealed that the expert “sought to avoid admitting that he was no longer board certified by adding a caveat to his answer.” Id. Additionally, the court found that the misrepresentation had, in fact, prevented the Plaintiff from fully and fairly presenting her case to the jury. As justification for its findings, the court noted that the witness “was a central witness in this case, and he offered expert opinions on specific causation, arguably the central issue in this entire litigation.” Id. at 594. Furthermore, the court stated that the misrepresentation called into question the court’s acceptance of him as an expert and called into question his propensity for truthfulness. Id. Accordingly, the original judgment was vacated and a new trial ordered. - 6 -
Significantly, the court so held even though the plaintiff had ample opportunity at trial to cross-examine the doctor concerning the certification and did not do so. Id. Also of significance, the court did not require or seek to find evidence of actual prejudice to the plaintiff. Nor did the court seek to determine whether the outcome would have been different but for the misrepresentation. It was enough to conclude that his testimony was central to the case and that it falsely represented evidence relevant to the admissibility and credibility of that testimony. As will become apparent from the evidence offered in support of the instant motion, the “misstatement” in Vioxx pales in significance to the varied and numerous misrepresentations and material omissions that were advanced by Dr. Brown in the trial before this Court last April. The Defendant has provided compelling evidence of Dr. Brown’s misrepresentations. In the alternative, relief may be granted in this case under Rule 60(b)(6). Even if the Court does not conclude that the testimony in this case satisfied the requirements of subsection (b)(3), the Defendant has shown “exceptional circumstances that have denied [him] a full and fair opportunity to litigate his claim and have prevented [him] from receiving adequate redress.” Harley v. Minnesota Mining & Mfg. Co., 413 F.3d 866 (8th Cir. 2005). Under this portion of the Rule, the Court has discretion to enter such relief for “any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b)(6). Indeed, Rule 60(b)(6) provides a grand reservoir of equitable power to afford justice where relief is not warranted by the preceding causes. As noted by the Fifth Circuit, the “broad language of clause (6) gives the court ample power to vacate judgment whenever such action is appropriate to accomplish justice.” Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458 (5th Cir. 1992). - 7 -
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: eviews, and 7 books on different ar
Page 5: new trial under Rule 60(b)(3) upon
Page 9 and 10: is presumed to have been aware of t
Page 11 and 12: [S]etting aside the question of whe
Page 13 and 14: Dr. Barden, “As a national expert
Page 15 and 16: subjects are asked if they recall h
Page 17 and 18: of “complete forgetting.” Nonet
Page 19 and 20: And the list continues. Dr. Brown m
Page 21 and 22: accurately it is akin to a land war
Page 23 and 24: which is mentioned by Dr. Brown in
Page 25 and 26: when many of those publications eit

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