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Massi v. Walgreen Co.

May 13, 2008

CLAY MASSI, PLAINTIFF,
v.
WALGREEN CO., DEFENDANT.



The opinion of the court was delivered by: Guyton

MEMORANDUM AND ORDER

This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 11].

This civil action is before the Court on pro se plaintiff Clay Massi's Motion for New Trial [Doc. 86]. The case was tried before a jury from November 28, 2006 to November 30, 2006, with the jury returning a verdict in favor of plaintiff [Doc. 76], with the Court entering judgment against defendant Walgreen Company ("Walgreen") on November 30, 2006 [Doc. 77]. Plaintiff has moved, pursuant to Fed.R.Civ.P. 60 for a new trial alleging Walgreen engaged in a concerted effort to perpetrate fraud upon the Court. Walgreen filed a response [Doc. 88]. Plaintiff filed a reply to Walgreen's response [Doc. 94], as well as supplemental information [Docs. 95; 97; and 98]. On April 4, 2008, this Court entered a Memorandum and Order advising the parties it considered the matter ripe for adjudication and would not entertain any subsequent filings [See Doc. 101]. Accordingly, plaintiff's pending motion is addressed herein, a hearing being unnecessary for its disposition.

I. Position of the Parties

Mr. Massi alleges that Walgreen initiated a scheme of fraud upon the Court by creating and presenting fraudulent documents, labels, and exhibits during the November 2006 trial in this matter.*fn1 Mr. Massi further alleges Walgreen committed fraud by: (1) having Davonna Foley, a Walgreen pharmacist, falsely claim that he never returned his incorrectly filled prescription bottle; and (2) withholding or destroying the incorrectly filled prescription bottle that he requested in an interrogatory. [Doc. 86]. Mr. Massi claims the fraud committed by Walgreen denied him his right to present his case to the jury and diminished the verdict the jury reached against Walgreen. Mr. Massi also attached an affidavit in support of his motion [Doc. 87].

In response, Walgreen argues Mr. Massi's case was tried before this Court on November 29, 2006 through November 30, 2006; that all the allegations in Mr. Massi's motion which relate to his cause of action were fully litigated at trial; that the jury returned a verdict in favor of Mr. Massi and assessed the comparative fault of Mr. Massi and Walgreen; that the Court, based upon the verdict, entered judgment for Mr. Massi; and that the judgment has been satisfied and the case was closed. In regard to Mr. Massi's allegations of fraud, Walgreen denies the allegations and submits affidavits from James W. Harrison, counsel for Walgreen in case no. 3:05-cv-425, Clay Massi v. Walgreen Co., [Doc. 88-2]; Robert Richesin, staff pharmacist for Walgreen [Doc. 88-5]; Davonna Foley, staff pharmacist for Walgreen [Doc. 88-3]; Scott Leslie, District Pharmacy Supervisor for Walgreen [Doc. 88-4]; and Jill Bosch, Supervisor of Custodian of Records for Walgreen [Doc. 88-6]. In regard to Mr. Massi's assertions that Walgreen fraudulently presented the Court with two photographs that were misrepresentations, Walgreen relies on its response to Mr. Massi's Motion to Disqualify Walgreen's Attorney [Doc. 15] in 3:07-cv-346. Finally, Walgreen argues the evidence Mr. Massi currently argues is fraudulent was presented at trial, at which time, Mr. Massi had sufficient opportunity to contest it.

Mr. Massi filed a reply to Walgreen's response [Doc. 94]. In his reply, Mr. Massi contends Walgreen committed further fraud against the Court in responding to his motion for a new trial. Mr. Massi argues Walgreen committed fraud in their response by attempting "to prove the false and fraudulent materials used" during trial were actually factual [Doc. 94 at 2]. Mr. Massi contends Walgreen filed false affidavits and made fraudulent claims and false statements in support of their response. Mr. Massi also attached an affidavit to his response [Doc. 94-2] as well as various exhibits alleging his injuries [Doc. 94-3]; alleging that he returned his incorrectly filled prescription bottle to Walgreen [Doc. 94-4]; and alleging that the labels and photographs introduced into evidence during trial were fraudulent [Doc. 94-5 and 94-6].

I. Relevant Facts

On November 30, 2006, a jury rendered a verdict in this matter in favor of Mr. Massi for $25,000, reduced by his percentage of fault (forty-five percent), for a jury verdict of $13,750 against Walgreen [See Docs. 76 and 77]. The jury heard evidence regarding the events in question beginning on or about November 18, 2004 and found that when Mr. Massi refilled a Ritalin prescription at a Walgreen's Pharmacy, on Lovell Road in West Knoxville, Tennessee, his Ritalin prescription was incorrectly filled. Instead of receiving his prescription for Ritalin, Mr. Massi received Adderall. The bottle he received had a Ritalin label on it. Mr. Massi consumed the Adderall, thinking it was his prescribed Ritalin. On or about December 12, 2004, Walgreen's Pharmacy called Mr. Massi and advised him he was given the wrong prescription drug. The pharmacy advised Mr. Massi he was given Adderall instead of his prescribed Ritalin. Mr. Massi was advised to bring the remainder of his prescription to the pharmacy and exchange it for the correct prescription. On or about December 13, 2004, Mr. Massi returned to Walgreen to exchange his prescription and pick up his correct prescription of Ritalin. Mr. Massi suffered injuries as a result of taking the incorrect medication.

II. Discussion

While Mr. Massi's motion is entitled "Motion for New Trial", it is plain that it is in fact a motion for relief from judgment made under Fed.R.Civ.P. 60(b). Mr. Massi refers to Rule 60 in his motion. Furthermore, more than ten days have passed since the Court awarded the judgment from which Mr. Massi seeks relief, so the motion cannot be considered as one for a new trial or to alter or amend the judgment under Fed.R.Civ.P. 59. The Court will consider this motion, then, as one under Rule 60(b).

Under Rule 60, a court has discretion to provide relief from a judgment or order upon a showing of cause within a reasonable time. Rule 60(a) addresses clerical errors. Rule 60(b) addresses all other bases for reconsideration:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representation from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise ...


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