Williams v. Coca Cola Co.

Filing 99

MEMORANDUM-DECISION AND ORDER denying Pltf's 95 Motion to Vacate Judgment. Signed by Magistrate Judge Christian F. Hummel on 5/3/19. (Attachments: # 1 Exhibits of Case Law) (Copy served via regular mail)(sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CEDRIC WILLIAMS,
Plaintiff,
v.

8:15-CV-1534
(CFH)

COCA COLA CO.,
Defendant.

APPEARANCES:

OF COUNSEL:

Cedric Williams
10-B-3467
Cayuga Correctional Facility
P.O. Box 1186
Moravia, New York 13118
Plaintiff pro se
Goldberg, Segalla Law Firm
11 Martine Avenue, Ste. 750
White Plains, New York 10606-1934
Attorneys for defendant

MICHAEL D. SHALHOUB, ESQ.
JONATHAN M. BERNSTEIN, ESQ.

CHRISTIAN F. HUMMEL
U.S. MAGISTRATE JUDGE
MEMORANDUM-DECISION & ORDER
Presently before the Court is plaintiff pro se Cedric Williams’ motion to vacate
the Court’s June 21, 2018, judgment granting defendant The Coca Cola Company’s
(“Coca Cola” or “defendant”) motion for summary judgment and dismissing plaintiff’s
complaint with prejudice. Dkt. Nos. 94, 95. Defendant filed a response in opposition to
plaintiff’s motion to vacate. Dkt. No. 97. For the reasons that follow, plaintiff’s motion to
vacate is denied.

I. Background
Plaintiff commenced this action on December 28, 2015. Dkt. No. 1 (“Compl.).
As relevant here, defendant filed a motion for summary judgment on January 16, 2018.
Dkt. No. 74. On January 31, 2018, plaintiff opposed the motion for summary judgment.
Dkt. No. 77. On February 16, 2018, defendant filed a reply. Dkt. No. 85. On March 21,
2019, plaintiff filed a letter dated March 8, 2018, which requested the status of a
determination on the motion for summary judgment. Dkt. No. 86. The letter also asked
“if the expert report that was sent by a Dr. Ralph Walton on my behalf was attached to
this case’s docket. [T]his expert report was not provided by myself with my expert
disclosure over one month ago (which was filed with my response to defendant’s
summary judgment motion) because of my current limitations.” Id. On March 19, 2018,
defendant filed a letter in response, indicating that defendant “ha[s] received no such
‘report’ by this purported ‘expert’ and that defendant “object[s] to its consideration at all
in connection with the defendant’s summary judgment motion[.]” Dkt. No. 87. On June
21, 2018, the Court granted defendant’s motion for summary judgment. Dkt. Nos. 93,
94. On October 17, 2018, plaintiff filed a motion to vacate judgment pursuant to
Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 60(b)(3). Dkt. No. 95. Defendant
opposed the motion to vacate. Dkt. No. 97

II. Arguments
Plaintiff argues that the June 21, 2018, judgment must be vacated because
defendant “successfully perpetrated fraud and deception on Plaintiff and the Federal
2

District Court itself in an effort to procure summary judgment relief.” Dkt. No. 95-2 at 3.
Plaintiff argues that defendant falsely informed the Court that it had not received a
report from plaintiff’s expert witness, Dr. Ralph Walton, but that Dr. Walton did send an
expert report to defendant on March 1, 2018. Id. at 6, 9. Plaintif f contends that he did
not learn about defendant’s fraud until August 28, 2018, when he was able to contact
Dr. Walton. Id. Plaintiff contends that Dr. Walton’s “sworn affidavit” “establishes clear
and convincing evidence that the Defendant deliberately engaged in fraud and
misconduct.” Id. at 6. Plaintiff further contends that, had the Court been able to
consider Dr. Walton’s report, the report “would have established a potentially
meritorious opposition to Defendant’s motion for summary judgment.” Id. at 10.
Plaintiff argues that defendant’s alleged conduct of informing the Court that it had not
received Dr. Walton’s expert report amounts to “a carefully planned scheme calculated
to deceive the District Court” which “warrants a vacatur of judgment.” Id. at 13. Plaintiff
also argues that “[t]here is no question that Coca Cola Co.’s attorneys successfully
perpetrated fraud upon the District Court thereby preventing the judicial machinery from
performing in the usual manner its impartial task of adjudging summary judgment
motions presented for adjudication.” Id.
In opposition, defendant contends that it never received a report from Dr.
Walton. Dkt. No. 97 at 2. Defendant also points to this Court’s Memorandum-Decision
& Order (“MDO”) noting that the Court has not been provided with a copy of the report.
Id. (citing Dkt. No. 93 at 6). Further, defendant objects to the Court’s consideration of
Dr. Walton’s report for reasons of (1) timeliness, (2) competence of the expert, (3) “lack

3

of an admissible scientific basis for its consideration and the failure at all for Walton to
opine on general or specific causation for the injuries alleged.” Id. More specifically as
to the timeliness argument, defendant contends that, even if the Court were to assume
that it was served on defendant on March 1, 2018, the report would not be timely as it
was submitted after the disclosure deadline. Id. at 3. As to the com petence of the
expert, defendant argues that Dr. Wilton is a psychiatrist and, thus, “is manifestly
unqualified to offer the expert opinions required to prove plaintiff’s claims.” Id. Further,
defendant contends that Dr. W alton’s report relies on outdated sources that do not
satisfy Fed. R. Civ. P. 26 or Daubert’s requirements nor do they provide causation to a
reasonable degree of medical or scientific certainty. Id. at 3-4. Further, defendant
argues that Dr. Walton’s report does not “offer scientifically reliable evidence to rebut
the scientifically reliable and admissible conclusions of the highly qualified defense
experts . . . .” Id. at 4.

III. Discussion
A. Legal Standard
Under Fed. R. Civ. P. 60(b)(3), which plaintiff cites as the basis for his motion,
On a motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . fraud (whether previously called
intrinsic or extrinsic, representation, or misconduct by an opposing party).” FED. R. CIV.
P. 60(b)(3). “A motion to vacate a judgment under Fed .R. Civ. P. 60(b) is addressed to
the sound discretion of the trial court.” Nat'l Petrochemical Co. of Iran v. M/T Stolt

4

Sheaf, 930 F.2d 240, 244 (2d Cir. 1991). “A Rule 60(b) m otion is granted only upon a
showing of exceptional circumstances, and cannot be used to relitigate the merits.” Liu
v. Kinokuniya Co., 161 F. App'x 119, *1 (2d Cir. 2005) (summary order) (Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986)). “A party seeking vacatur under Rule 60(b)(3)
must establish the opposing party's fraud by clear and convincing evidence.” Id. (citing
Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989)). “In addition to
demonstrating fraud or other misconduct by clear and convincing evidence, the movant
must also show that ‘this conduct prevented [the movant] from fully and fairly presenting
his case.’” Walther v. Maricopa Int'l Inv. Corp., No. 97 CIV. 4816 (HB), 2002 W L
31521078, at *3 (S.D.N.Y. Nov. 12, 2002). Further,
The strict requirements of Rule 60(b) are applicable to pro
se litigants notwithstanding the liberality that must be
afforded to them. Flaherty v. Hackeling, 221 F.R.D. 383, 386
(E.D.N.Y. 2004). Pro se plaintiffs are not excused from
producing highly convincing evidence in support of their
motion to vacate a final judgment. Fetik v. New York Law
School, No. 97 Civ. 7746, 1999 U.S. Dist. LEXIS 9755,
*10-11, 1999 WL 459805 (S.D.N.Y. June 29, 1999).
Keesh v. Smith, No. 904-CV-0779 (NAM/GJD), 2008 W L 2242618, at *2 (N.D.N.Y. May
29, 2008).

B. Analysis
Plaintiff rests his argument on a conversation he had with Dr. Walton on August
28, 2018, wherein he alleges to have learned for the first time that Dr. Walton had, in
fact, sent a copy of his report to defendant’s attorneys and to the Court on March 1,
2018. Dkt. No. 95-2 at 6. However, expert disclosure was due ninety days before the
5

extended March 2, 2018 discovery deadline. Dkt. No. 41, Dkt. No. 93 at 4. Plaintif f was
advised by the Court, during a June 2, 2017 conference, of his duty to file his expert
disclosure ninety days before the close of discovery, and plaintiff expressed to the
Court that he understood this obligation. Dkt. No. 93 at 4 (citing Dkt. No. 91 at 20-21).
The Court thereafter extended discovery until March 2, 2018, making plaintiff’s deadline
to serve expert disclosure ninety days before March 2, 2018, or by December 2017. Id.
(citing Dkt. No. 41). In a January 10, 2018, conference, the Court again advised
plaintiff that his expert disclosure had been due in December 2017, and “that defendant
would be making a motion for summary judgment on a number of grounds, one of
which was plaintiff’s failure to serve expert disclosure.” Id. at 5 (citing Dkt. No. 84).
On January 31, 2018 – after the deadline for expert disclosure – plaintiff filed a
“Notice of Service of Disclosure Information Fed. R. Civ. P. 26 (a) (1)” which identified
Dr. Ralph Walton as an expert witness. Dkt. No. 78. Plaintiff’s January 31, 2018, letter
also indicated that “ . . . A written report prepared and signed by him was submitted via
email and his reference as Exhibit A for completion of disclosure.” Id. As this Court
noted in its June 21, 2018, MDO, “[a] copy of that untimely served expert report has not
been provided to the Court.” Dkt. No. 93 at 6. On March 12, 2018, plaintif f filed a letter
inquiring whether Dr. Walton’s expert report was attached to the Court’s docket. Dkt.
No. 86. Defendant responded to the letter, indicating that it never received any expert
report and objected to its consideration. Dkt. No. 87. In a T ext Order dated March 23,
2018, the Court advised that it would “only consider those documents which have been
timely and properly filed.” Dkt. No. 88. As the Court explained in its June 21, 2018,

6

MDO, at the date of the filing of the MDO, “the Court has not received an expert report
from Dr. Walton or from any expert witness on behalf of plaintiff” and, thus, that “the
Court has not been able to consider a report authored by Dr. Walton in deciding the
pending motion for summary judgment.” Dkt. No. 93 at 6.
The Court concludes that plaintiff has failed to demonstrate, by clear and
convincing evidence, that defendant has committed fraud. The only evidence plaintiff
offers to support his claim that defendant had received the expert report and, thus,
deceived the Court is Dr. Walton’s letter dated October 4, 2018. Dkt. No. 95-2 at 16.
However, this letter does not suffice to meet plaintiff’s burden of demonstrating fraud for
several reasons. First, plaintiff does not submit an affidavit of service of the expert
report, nor any evidence that plaintiff – or Dr. Walton – submitted the report to
defendant or to the Court as alleged in his letter. Id. Second, Dr. W alton’s letter is also
entitled to less weight as, contrary to plaintiff’s allegation (Dkt. No. 95-2 at 6), it is not
sworn under penalty of perjury. Third, the letter indicates that Dr. W alton sent a copy of
his report and a “62 page document which I had initially prepared when interviewed by
Mike Wallace for a 60 Minutes story on my research on aspartame” on both defendant
and the Court. Id. However, as the Court stated in its June 21, 2018, MDO, the Court
never received anything from Dr. Walton, plaintiff, nor any other party. Dkt. No. 93 at 6.
As of the signature date of this MDO, the Court still has not received any
communication from Dr. Walton. Even if the Court assumes, arguendo, that Dr. Walton
truthfully mailed out the report on March 1, 2018, to both t he Court and defendant’s
attorneys, the Court is hard-pressed to conclude that def endant’s attorneys deceived

7

the Court by saying they had not received the report when, in fact, the Court itself had
also not received the report Dr. Walton purports to have sent to defendant and the
Court on March 1, 2018. 1 Finally, even if the Court were to assume, for sake of
argument, that Dr. Walton sent defendant and the Court his expert report on March 1,
2018, it would have been untimely, as plaintiff was repeatedly informed of his duty to
submit an expert disclosure ninety days before the March 2, 2018, close of discovery.
For all of these reasons, the Court finds plaintiff has not met his “extremely high”
burden of proving, by clear and convincing evidence, that defendant committed fraud
upon the Court by stating that it had not received a copy of the Dr. Walton’s report.2 Dr.
Walton’s October 4, 2018, letter does not am ount to “highly convincing evidence” that
defendant defrauded plaintiff and the Court by lying to the Court by stating it had not
received Dr. Walton’s report.
The Court is mindful of the fact that plaintiff, as an incarcerated pro se civil
litigant may have greater difficulty in contacting Dr. Walton or other potential expert
witnesses than a plaintiff who is not incarcerated. However, the issue before the Court
is not whether plaintiff was provided sufficient time to obtain an expert witness and
submit a report, but whether plaintiff has demonstrated that defendant commit fraud by
contending it had not received the expert report. However, even if the Court were to
address whether plaintiff had sufficient time to obtain an expert, the Court notes that, as

1

The Court has, in fact, had never seen Dr. Walton’s until plaintiff filed the report as an exhibit to
his Motion to Vacate. Dkt. No. 95-2 at 17.
2

As the Court finds that plaintiff has failed to meet his burden of establishing fraud, the Court
does not reach a discussion of whether Dr. Walton’s expert report would pass muster under Daubert.

8

discussed in detail above, plaintiff’s discovery deadline was extended, plaintiff was
repeatedly advised of his duty to obtain an expert and submit an expert report that was
due ninety days before the close of discovery, that defendant was planning to file a
motion for summary judgment seeking dismissal, in part, on the ground that plaintiff did
not timely disclose an expert or submit an expert report, and that plaintiff expressed that
he understood this duty and that he would comply. Plaintiff did not request further
extensions nor did he indicate that he was having difficulty obtaining Dr. Walton’s
report. Indeed, when plaintiff filed a letter dated March 12, 2018, asking whether the
Court had received Dr. Walton’s report, and the Court responded by text order dated
March 23, 2018, that it had not received a copy of the Report, plaintiff did not, again,
seek further assistance at that time. Dkt. Nos. 86, 88. Further, on March 19, 2018,
defendant filed a letter in response, indicating that defendant “ha[s] received no such
‘report’ by this purported ‘expert’ and that defendant “object[s] to its consideration at all
in connection with the defendant’s summary judgment motion[.]” Dkt. No. 87. Although
plaintiff was advised, at least as of the Court’s March 23, 2018, Text Order, that the
Court did not have the expert report and that it could consider only those documents
filed in support or opposition that were timely, it was not until nearly seven months later,
when plaintiff filed his Motion to Vacate the Court’s Judgment, that plaintiff provided the
Court with a copy of the expert report. Dkt. No. 95. Plaintiff’s pro se or incarcerated
statuses do not absolve plaintiff of his duty to timely comply with discovery obligations
especially where, as here, plaintiff was given sufficient time and multiple reminders of
this requirement. Accordingly, as plaintiff failed to meet his burden of demonstrating

9

fraud warranting a vacatur of this Court’s judgment, pursuant to Fed. R. Civ. P. 60(b)(3),
plaintiff’s Motion to Vacate is denied.

IV. Conclusion
WHEREFORE, for the reasons stated herein, it is hereby
ORDERED, that plaintiff’s Motion to Vacate Judgment (Dkt. No. 95) pursuant to
Fed. R. Civ. P. 60(b)(3) is DENIED, and it is further
ORDERED, that the Clerk of the Court serve this Memorandum-Decision &
Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 3, 2019
Albany, New York

10