Rembrandt Vision Technologies L P v. Johnson & Johnson Vision Care Inc

Filing 403

ORDER denying Plaintiff's Motion to Set Aside the Judgment 345 ; discharging the Order to Show Cause 393 ; vacating the award of costs in the Court's Order on costs 333 ; vacating the bill of costs taxed by the Clerk of Court in favor o f JJVC 334 ; denying Plaintiff's Second Motion to Reopen Discovery 396 ; denying any request for relief in JJVC's notice regarding the Texas litigation 401 ; requiring JJVC to pay Plaintiff $124,646.93 by December 1, 2014 and file a certificate with this Court acknowleding that it has done so. The Clerk should close the file. Signed by Judge Timothy J. Corrigan on 10/15/2014. (WG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
REMBRANDT VISION
TECHNOLOGIES L P,
Plaintiff,
v.

Case No: 3:11-cv-819-J-32JRK

JOHNSON & JOHNSON VISION
CARE, INC.,
Defendant.
ORDER
Still pending before the Court is Plaintiff’s Motion to Set Aside the Judgment
Pursuant to Federal Rule of Civil Procedure 60(b)(2) and 60(b)(3). (Doc. 345). The
Court previously informed the parties that it intended to deny that motion, but
ordered Defendant Johnson & Johnson Vision Care, Inc. to show cause why it should
not have to pay reasonable attorneys’ fees and costs associated with Plaintiff
Rembrandt Vision Technologies L.P.’s post-trial investigation of Dr. Bielawski. (Doc.
393). 1 The Court’s previous Order, 2014 WL 3385039 (M.D. Fla. July 10, 2014) (Doc.
393), is incorporated herein.

Rembrandt filed a protective notice of appeal of that Order, then moved to
dismiss its appeal as premature. (Doc. 402 at 1). On October 6, 2014, the Federal
Circuit granted the motion to dismiss, stating the matter remains pending in this
Court. (Doc. 402).
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JJVC responded to the Order, (Doc. 397), and Rembrandt filed a reply, (Doc.
400). Rembrandt also filed a motion asking the Court to reopen discovery to
investigate whether JJVC and its counsel knew about Dr. Bielawski’s false testimony,
(Doc. 396), which JJVC opposed, (Doc. 399). JJVC has also informed the Court that
Rembrandt has filed an open records request with the University of Texas to obtain
some of the same information it seeks through the reopening of discovery, and JJVC
asks protection from that records request. (Doc. 401).
In determining in its previous Order to deny Rembrandt’s Rule 60 motion, the
Court stated:
Though the judgment should not be set aside, it remains
that an expert witness for JJVC likely lied on the stand.
Even if unwittingly, JJVC sponsored this false testimony
and resisted initially when Rembrandt tried to expose Dr.
Bielawski’s untruthfulness. While denying Rule 60 relief,
the Court will separately consider whether other actions
vis-a-vis both Dr. Bielawski and JJVC should be
undertaken.
(Doc. 393 at 11). The Court thus directed JJVC “to show cause why it should not have
to pay reasonable attorneys’ fees and costs associated with Rembrandt’s post-trial
investigation of Dr. Bielawski and the motion practice occasioned thereby.” (Doc. 393
at 12).
Because JJVC was the prevailing party on the Rule 60 motion, the Court
questioned whether it had the authority to award fees against JJVC. As such, rather
than determining to award such fees sua sponte, the Court asked the parties to brief
the issue. In response, JJVC “found no support in the law for awarding fees in such
circumstances” (Doc. 397 at 3), but nevertheless acquiesced in an award of attorneys’

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fees and costs owing to the unusual circumstances. Rembrandt simply says, “By
consenting to pay whatever award the Court deems fair and just, JJVC has waived
any argument that the Court lacks the authority or power to award such fees and
costs.” (Doc. 400 at 5). Because of JJVC’s concession, the Court will not inquire further
into its authority and will award appropriate fees and costs.
The Court must now determine the amount of those fees and costs. That
Rembrandt says it has incurred almost $1 million ($939,159.55) in attorneys’ fees and
costs just in investigating and litigating this one post-trial issue is difficult to fathom.
While the Court might normally feel compelled to ask for more justification for this
amount, JJVC does not seriously challenge it. Rather, JJVC says the Court’s award
should focus on the investigation which led to the discovery of Dr. Bielawski’s false
testimony and not to the ultimately unsuccessful efforts to reopen discovery or for Rule
60 relief.
The Court, in its discretion, decides that it will award Rembrandt the
$313,219.82 the parties agree was incurred in investigating and proving Dr.
Bielawski’s misconduct. The Court also will exercise its discretion to vacate the cost
judgment of $188,572.89 entered in favor of JJVC as the prevailing party in the
underlying litigation (which amount has not yet been paid by Rembrandt). See Marx
v. Gen. Revenue Corp., 133 S.Ct. 1166, 1172 (2013); Chapman v. AI Transp., 229 F.3d
1012, 1039 (11th Cir. 2000). The Court will set off the amount of the unpaid cost
judgment from the fee award, leaving a balance of $124,646.93. The Court believes
this result strikes the proper balance.

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Having made this decision, the Court will deny Rembrandt’s renewed motion to
reopen discovery and deny JJVC’s request to get involved in the Texas litigation. Until
and unless further instructed by the Federal Circuit, this is the last Order this Court
intends to enter in this case.
Accordingly, it is hereby
ORDERED:
1.

Incorporating the Court’s previous Order, 2014 WL 3385039 (M.D. Fla.

July 10, 2014) (Doc. 393), Plaintiff’s Motion to Set Aside the Judgment Pursuant to
Federal Rule of Civil Procedure 60(b)(2) and 60(b)(3) (Doc. 345) is DENIED.
2.

The Order to Show Cause (Doc. 393) is DISCHARGED.

3.

No later than December 1, 2014, Defendant JJVC will remit to Plaintiff

Rembrandt $124,646.93 and will file a certificate with this Court acknowledging it has
done so. If there is an appeal of any part of this Order by either party, JJVC’s
obligation to pay this amount is stayed pending the outcome of the appeal.
3.

The Court’s Order on costs (Doc. 333) is amended insofar as the award of

costs is VACATED. The bill of costs taxed by the Clerk of Court in favor of JJVC in
the amount of $188,572.89 (Doc. 334) is therefore also VACATED.
4.

Plaintiff's Second and Renewed Motion to Reopen and Compel Discovery

(Doc. 396) is DENIED.
5.

To the extent that JJVC’s notice regarding the Texas litigation (Doc. 401)

seeks affirmative relief, that request is DENIED.

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6.

The Clerk should close the file.

DONE AND ORDERED in Jacksonville, Florida the 15th day of October, 2014.

w.
Copies to:
Counsel of record

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