United States Court of Appeals 

for the Federal Circuit ______________________ 

REMBRANDT VISION TECHNOLOGIES, L.P.,

Plaintiff-Appellant

v.

JOHNSON & JOHNSON VISION CARE, INC.,

Defendant-Appellee

______________________ 

2015-1079

______________________ 

Appeal from the United States District Court for the 

Middle District of Florida in No. 3:11-cv-00819-TJC-JRK, 

Judge Timothy J. Corrigan.

______________________ 

Decided: April 7, 2016

______________________ 

ERIC JOHN MAGNUSON, Robins Kaplan LLP, Minneapolis, MN, argued for plaintiff-appellant. Also represented 

by RONALD JAMES SCHUTZ, JACOB M. HOLDREITH, BRENDA 

L. JOLY, JAMIE R. KURTZ, RYAN MICHAEL SCHULTZ. 

GREGORY DISKANT, Patterson Belknap Webb & Tyler 

LLP, New York, NY, argued for defendant-appellee. Also 

represented by EUGENE M. GELERNTER; TIMOTHY JOSEPH 

BARRON, SR., Jenner & Block LLP, Chicago, IL; CHARLES 

DAVISON HOFFMANN, Hoffmann Marshall Strong LLP, 

New York, NY. 

______________________ 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

2

Before DYK, MOORE, and STOLL, Circuit Judges.

Opinion for the court filed by Circuit Judge STOLL. 

Dissenting opinion filed by Circuit Judge DYK. 

STOLL, Circuit Judge. 

Rembrandt Vision Technologies, L.P. (“Rembrandt”) 

appeals from the district court’s denial of Rembrandt’s 

motion for a new trial under Federal Rules of Civil Procedure 60(b)(2) and (3). Because the district court abused 

its discretion in denying Rembrandt’s Rule 60(b)(3) motion, we reverse and remand for a new trial. 

BACKGROUND

This case returns to us following an unusual set of 

circumstances. Rembrandt sued Johnson & Johnson 

Vision Care, Inc. (“JJVC”), alleging that its Acuvue Advance® and Oasys® contact lenses infringed the asserted 

claim of U.S. Patent No. 5,712,327. At trial, the parties 

disputed whether JJVC’s accused lenses met the “surface 

layer” and “soft” limitations of the asserted claim. Following trial, the jury returned a verdict of noninfringement. 

The district court, in the alternative, granted judgment as 

a matter of law that Rembrandt failed to prove that the 

accused lenses were “soft.” Rembrandt Vision Techs., L.P. 

v. Johnson & Johnson Vision Care, Inc. (JMOL Order), 

282 F.R.D. 655, 668 (M.D. Fla. 2012). We affirmed the 

district court’s grant of JMOL. Rembrandt Vision Techs., 

L.P. v. Johnson & Johnson Vision Care, Inc. (Rembrandt I), 725 F.3d 1377 (Fed. Cir. 2013). 

At trial, Rembrandt relied on expert testimony from 

Dr. Thomas Beebe to prove that the accused lenses met 

both the “surface layer” and “soft” claim limitations. 

During his direct examination regarding the “soft” limitation, Dr. Beebe presented test results to show that the 

accused lenses met this limitation. During cross-
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

3

examination, however, Dr. Beebe drastically changed his 

testimony regarding the testing methodology he used. 

Because his testimony on cross-examination significantly

conflicted with both his testimony during his direct examination and the testing methodology disclosed in his 

expert report, the district court ultimately struck 

Dr. Beebe’s trial testimony regarding this testing. After 

noting that Dr. Beebe’s stricken testimony was the only 

evidence that Rembrandt advanced to prove the accused 

lenses were “soft” in opposing JJVC’s motion, the district 

court granted JMOL that JJVC did not infringe. JMOL 

Order, 282 F.R.D. at 668. 

In turn, JJVC relied on expert testimony from 

Dr. Christopher Bielawski to support its position that its 

accused lenses did not meet the “surface layer” limitation, 

but did not present expert testimony with respect to the 

“soft” limitation. During the course of his trial testimony, 

Dr. Bielawski took advantage of several opportunities to 

impugn Dr. Beebe’s credibility. For example, 

Dr. Bielawski described Dr. Beebe’s failure to correct 

allegedly incorrect data as “misleading and tantamount to 

dishonesty.” Joint Appendix (“J.A.”) 4683. JJVC also 

capitalized on Dr. Beebe’s changing testimony. During 

his closing argument, JJVC’s counsel urged that “[y]ou 

should not trust Dr. Beebe, and you should throw out his 

testimony, not in part, but in whole. You should not trust 

Dr. Beebe.” J.A. 5159. 

After trial, Rembrandt received information suggesting that Dr. Bielawski testified falsely at trial. Although 

the district court denied Rembrandt’s request for posttrial discovery, Rembrandt received much of the discovery 

it sought from Dr. Bielawski’s employer, the University of 

Texas, through an open records request and state court 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

4

litigation. In light of that discovery, the parties do not 

dispute that Dr. Bielawski testified falsely during trial.1 

Specifically, Dr. Bielawski repeatedly testified that he 

personally conducted X-ray photoelectron spectroscopy 

(“XPS”) and time-of-flight secondary ion mass spectrometry (“TOF-SIMS”) laboratory testing on JJVC’s accused 

lenses when, in fact, the testing was conducted by 

Dr. Bielawski’s graduate students and various lab supervisors. The post-trial discovery suggests that 

Dr. Bielawski was not even in the country when some of 

the testing was done. Moreover, the post-trial discovery 

suggests that Dr. Bielawski overstated his qualifications 

and experience with these testing methodologies. Whereas Dr. Bielawski was presented to the jury as an expert in 

TOF-SIMS testing, he actually “had no TOF-SIMS experience whatseover.” J.A. 5437. As such, for the purpose of 

considering the Rule 60(b) motions, the district court 

“assume[d] . . . that Dr. Bielawski testified falsely when 

he said that he personally performed . . . tests, and about 

his qualifications as an expert in performing those tests.” 

Rembrandt Vision Techs., L.P. v. Johnson & Johnson 

Vision Care, Inc. (Rule 60 Order), 300 F.R.D. 694, 698 

(M.D. Fla. 2014). 

In addition to showing Dr. Bielawski’s false testimony, the post-trial discovery revealed that Dr. Bielawski 

withheld test results and data analysis that would have 

undermined his opinions and trial testimony. In particular, Dr. Bielawski withheld data from tests conducted on 

third-party contact lenses previously found to infringe the 

 

1 Because perjury is a crime and Dr. Bielawski is 

not a party to this litigation, we express no opinion as to 

whether Dr. Bielawksi committed perjury. Instead, we 

accept, for the purpose of deciding this case, the parties’ 

and district court’s conclusion that Dr. Bielawski testified 

falsely at trial.
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

5

asserted claim. JJVC provided the samples of these 

lenses to Dr. Bielawski and requested that he perform 

“any initial setup experiments” on the third-party lenses 

in order to “satisfy[] himself with respect to the proper 

investigational techniques to be used on contact lenses.” 

J.A. 5576. The test results generated in response to 

JJVC’s request were not produced before trial, and JJVC 

claims that it was unaware that any data had been generated. Had these test results been produced to Rembrandt, they would have shown that the infringing lenses 

do not have a surface coating of about 20 nanometers, 

undermining Dr. Bielawski’s testimony at trial. Specifically, Dr. Bielawski testified at trial without contradiction 

about the differences between JJVC’s accused lenses and 

the infringing third-party lenses, explaining that the 

infringing lenses “have a surface coating that [is] about 20 

nanometers,” J.A. 4697, whereas JJVC’s accused lenses 

do not. JJVC’s counsel emphasized Dr. Bielawski’s testimony on this point as proof of noninfringement during 

closing argument: 

And guess what, this point 20 is not picked out of 

thin air. It’s exactly what happens when you look 

at the [infringing third-party] lens. 

J.A. 5142. 

In light of this post-trial discovery, Rembrandt moved 

for a new trial under Rules 60(b)(2) and (3), which state: 

On motion and just terms, the court may relieve a 

party . . . from a final judgment . . . for the following reasons: . . . (2) newly discovered evidence, 

that with reasonable diligence, could not have 

been discovered in time to move to a new trial under Rule 59(b); [or] (3) fraud (whether previously 

called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party. 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

6

Following a lengthy hearing on the issue, the district 

court denied Rembrandt’s motion. With little discussion, 

the district court dismissed Rembrandt’s argument that 

the withheld documents prevented it from fully and fairly 

presenting its case. The district court thus limited its 

analysis to Dr. Bielawski’s false testimony. The district 

court concluded that Rembrandt was not entitled to a new 

trial under Rule 60(b)(2) because Rembrandt had not 

satisfied the requirement in the Eleventh Circuit that a 

new trial would probably produce a new result. And it

concluded that Rembrandt was not entitled to a new trial 

under Rule 60(b)(3) because JJVC’s counsel was not 

complicit in the false testimony and because Rembrandt 

was not prevented from fully and fairly presenting its 

case. Rembrandt then renewed its motion to reopen

discovery into JJVC’s awareness of Dr. Bielawski’s misconduct, but the district court denied that motion too. 

Rembrandt appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(1).

DISCUSSION

We review procedural questions such as the district 

court’s denial of a Rule 60(b) motion under the law of the 

regional circuit, here the Eleventh Circuit. Amado v. 

Microsoft Corp., 517 F.3d 1353, 1357 (Fed. Cir. 2008). 

The Eleventh Circuit reviews district court decisions on 

Rule 60(b) motions for an abuse of discretion. Griffin v. 

Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). 

Under Eleventh Circuit law, the district court abuses its 

discretion if it: (1) applies an incorrect legal standard; (2) 

follows improper procedures in making the determination; 

or (3) makes findings of fact that are clearly erroneous. 

Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 

(11th Cir. 2008).

We first consider Rembrandt’s motion for a new trial 

under Rule 60(b)(3), which permits a district court to 

grant a new trial in cases involving “fraud (whether 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

7

previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 

60(b)(3). To prevail on a motion under Rule 60(b)(3) in 

the Eleventh Circuit, the movant must establish that: 

(1) the adverse party engaged in fraud or other misconduct; and (2) this conduct prevented the moving party 

from fully and fairly presenting its case. Harre v. A.H. 

Robins Co., 750 F.2d 1501, 1503 (11th Cir. 1985), vacated 

in part on other grounds, 866 F.2d 1303 (11th Cir. 1989). 

Proof that the result of the case would have been different 

but for the fraud or misconduct is not required; instead, 

Rule 60(b)(3) “is aimed at judgments which were unfairly 

obtained, not at those which are factually incorrect.” 

Rozier v. Ford Motor Co., 573 F.2d 1332, 1339 (5th Cir. 

1978) 2 (internal citations omitted); see also Wilson v. 

Thompson, 638 F.2d 801, 804 (5th Cir. 1981) (“We recognize that a party moving under Rule 60(b)(3) may prevail 

without showing that the alleged fraud affected the 

outcome of the prior trial.”). 

I.

We start with the easier question of whether Rembrandt had a full and fair opportunity to present its case

given Dr. Bielawski’s false testimony and withholding of 

relevant documents. In denying Rembrandt’s motion 

under Rule 60(b)(3), the district court concluded that 

“even accounting for Dr. Bielawski’s misconduct, Rembrandt was not prevented from making its case,” and 

explained that this holds true “even without considering 

that JJVC was entitled to judgment as a matter of law 

because Rembrandt failed to present evidence on an 

essential element of its case.” Rule 60 Order, 300 F.R.D.

at 701 & n.9. The district court also summarily dismissed 

 

2 Fifth Circuit precedent prior to September 30, 

1981 is binding on the Eleventh Circuit. Bonner v. City of 

Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981).
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

8

Rembrandt’s argument that it was prevented from fully 

and fairly presenting its case due to the withheld documents as “murky at best.” Id. at 697 n.1. We conclude 

that the district court clearly erred in finding that Rembrandt had a full and fair opportunity to present its 

infringement case. 

Dr. Bielawski testified on a central infringement issue 

at trial—whether JJVC’s accused lenses met the “surface 

layer” claim limitation. In doing so, he testified falsely 

about his personal involvement in the testing, as well as 

his experience with the relevant testing methodologies. 

[A8] He also withheld contradictory test results on thirdparty lenses known to infringe and generated at the 

request of JJVC’s counsel. Because these test results

were not produced, Dr. Bielawski testified without contradiction about alleged differences between the accused 

lenses and the third-party lenses to show that the accused 

lenses did not have the claimed surface layer. JJVC’s 

counsel emphasized these differences as proof of noninfringement in his closing argument. In addition, 

Dr. Bielawski and JJVC’s counsel seized several opportunities to impugn the credibility of Dr. Beebe, but the jury 

never heard that Dr. Bielawski had presented false testimony. Under these circumstances, we cannot agree with 

the district court that this conduct did not prevent Rembrandt from fully and fairly presenting its infringement 

case. The verdict was irretrievably tainted by 

Dr. Bielawski’s false testimony and Dr. Bielawski’s and 

JJVC’s withholding of relevant documents. While we do 

not know the exact impact the false testimony would have 

had on the jury, the false testimony may well have been 

critical to the noninfringement verdict and the jury may 

well have been impacted upon learning that Dr. Bielawski 

committed an act at least as egregious as Dr. Beebe’s. 

JJVC and the dissent nonetheless assert that the district court did not abuse its discretion, relying on a rationale different from that of the district court. 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

9

Specifically, JJVC argues that Rembrandt had a full and 

fair trial because Dr. Bielawski did not testify regarding 

the “soft” limitation and Rembrandt cannot show that the 

false testimony and improperly withheld documents 

resulted in substantial impairment of its ability to present its case on the “soft” limitation. We are not convinced by JJVC’s argument. 

The district court granted JMOL, not because of the 

merits of JJVC’s noninfringment position, but because its 

exclusion of Dr. Beebe’s unreliable testimony compelled 

that result. The district court judge acknowledged that he 

may well have responded differently had he been aware at 

the time of Dr. Bielawski’s false testimony. During the 

hearing regarding the Rule 60 motions, he explained: 

I guess my problem with it is – is that – or my 

query is that – I don’t think I – I'm not sure I 

would have gotten to that place [of granting 

judgment as a matter of law] – or I sure – I may 

have gotten to that place differently – or I may – 

something different may have happened if I had 

known at the time – Dr. Beebe’s shortcomings 

came out during the trial. 

And they were obvious and – and I made my ruling based on what I saw, noting, also, that as I recall it you were able to, with the jury, take great 

advantage of his implosion. 

And so you kind of got – you kind of got a double 

whammy. You got me ruling as a matter of law to 

strike his testimony. But you also got to argue to 

the jury that – that one of their experts had – was 

unworthy of any credence. And so you got to do 

all that because Dr. Beebe’s malfeasance came out 

during the trial.

August 2, 2013 Motion Hearing, J.A. 7440–41. In the 

order denying Rembrandt’s Rule 60(b)(3) motion, the 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

10

district court also acknowledged that Dr. Bielawski’s 

misconduct was at least as egregious as Dr. Beebe’s:

This was a serious and detrimental occurrence. It 

insulted the jury, violated the integrity of the judicial process, and interfered with the search for 

the truth that is the hallmark of our trial-by-jury 

system. Moreover, this false testimony was given 

in a highly contested patent case in which an expert for Rembrandt, Dr. Beebe, radically changed 

his expert testimony during the middle of his examination. As a result, the Court struck his testimony and entered an alternative Rule 50 

judgment against Rembrandt because it was unable to prove a required element of its case without 

Dr. Beebe’s testimony. . . . Now, having learned 

post-trial that JJVC’s expert likely lied on the 

stand, arguably committing an act at least as 

egregious as Dr. Beebe’s, it is a fair question to 

ask whether Rembrandt should be entitled to a 

new trial.

Rule 60 Order, 300 F.R.D. at 698. 

On this record, we cannot agree that Rembrandt had 

a full and fair trial on the “soft” limitation. We rejected 

an argument similar to JJVC’s in Fraige v. AmericanNational Watermattress Corp., 996 F.2d 295 (Fed. Cir. 

1993). In Fraige, the defendant forged a prior art document. Fraige, 996 F.2d at 296. Although the forged

document was not presented to the jury, several witnesses 

who testified at trial had reviewed the document. Id. at 

296, 298. We explained that we could not accurately 

determine the impact of the forged document on the jury, 

noting that “[w]hen it became known that the jury was 

presented testimony based on fraudulent documentation, 

where that testimony was relevant and material to the 

issue of patent validity, all of the jury’s invalidity findings 

became suspect.” Id. at 299 (emphasis added). Although 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

11

an arguably “independent” ground of invalidity existed in 

Fraige—invalidity under 35 U.S.C. § 112—we nevertheless reversed the district court’s denial of a new trial 

under Rule 60(b)(3).3 We concluded that where the impact of the tainted evidence on the allegedly “independent” ground of invalidity could not be ascertained, the 

independent ground was not a basis for denying the 

request for a new trial. Id. at 299–300. 

Similarly, here, we will not speculate as to what impact the fraud and misconduct had on the ultimate judgment of noninfringement where the false testimony and 

withheld documents were material to the issue of patent 

infringement and could well have impacted the jury’s 

verdict, as well as the district court’s decision to exclude 

Dr. Beebe’s testimony and consequently grant JMOL on 

the “soft” limitation. We agree with Rembrandt that it 

was prejudiced by the withholding of third-party test 

results and by the false testimony. As the Fifth Circuit 

held in Rozier, Rembrandt is not required to prove that 

the withheld documents were of such nature as to alter 

the result in the case. 573 F.2d at 1339. Instead, Rembrandt need only show that timely production of the 

documents would have made a difference in the way 

Rembrandt’s counsel approached the case or prepared for 

trial. Id. at 1342. Here, Rembrandt could have deposed 

 

3 The dissent asserts that Fraige is inapposite, contending that “our reasoning was that relief was available 

not under Rule 60(b)(3) but under the savings clause in 

Rule 60.” We disagree. The Court’s decision in Fraige

rested on Rule 60(b)(3). Indeed, the Court specifically 

stated that “[t]he effect of the tainted evidence on the 

section 112 defense, while less certain, cannot be ascertained and therefore is similarly not a basis for denying 

the Rule 60(b)(3) motion for relief from the patent invalidity judgment.” 996 F.3d at 299–300 (footnote omitted). 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

12

the individuals who actually conducted the testing for 

JJVC. JJVC based its noninfringement argument at trial 

nearly exclusively on the surface layer limitation. Knowing the weaknesses in JJVC’s evidence regarding the 

surface layer limitation could well have changed the 

nature of the entire proceedings. We cannot and will not 

speculate about the profound effects knowledge of the

withheld documents and falsified testimony of JJVC’s 

primary witness would have had on the proceedings and 

the district court’s JMOL. Suffice it to say that this raises 

a substantial question undermining the judgment of 

noninfringement. 

Finally, we note that Rembrandt presented additional 

evidence at trial to show that JJVC’s accused lenses

satisfied the “soft” limitation. For example, JJVC stipulated that the accused lenses are silicone hydrogel contact 

lenses, and the record contains evidence that suggests 

silicone hydrogel contact lenses yield a Shore D test result 

of zero. The dissent states that Rembrandt failed to raise

this evidence in response to JJVC’s JMOL motion. It is 

true, as we noted in our prior opinion, Rembrandt identified only Dr. Beebe’s testimony when responding to 

JJVC’s JMOL motion. Rembrandt I, 725 F.3d at 1383. 

Had Dr. Beebe’s testimony not been stricken, it certainly 

would have prevented the court from entering JMOL in 

favor of JJVC. In addition, although not relied on by 

Rembrandt in responding to JJVC’s JMOL motion, there 

was additional evidence in the trial record that the accused lenses met the “soft” limitation. In light of this 

record, we cannot conclude that Rembrandt had a full and 

fair trial on infringement. 

II.

We next look to whether Rembrandt established that 

“the adverse party engaged in fraud or other misconduct.” 

Harre, 750 F.3d at 1503 (citation omitted). We conclude 

that the district court abused its discretion in concluding 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

13

otherwise. Specifically, the district court erred by summarily dismissing Rembrandt’s allegations of misconduct 

and by requiring proof that JJVC or its counsel was

complicit in Dr. Bielawski’s false testimony. 

Rembrandt alleges fraud based on Dr. Bielawski’s 

false testimony and misconduct based on Dr. Bielawski 

and JJVC’s failure to produce the contradictory test 

results on third-party lenses. Each allegation forms an 

independent basis for a new trial under Rule 60(b)(3). 

JJVC does not dispute that Dr. Bielawski testified falsely 

and that it never produced the test results for the thirdparty lenses. Instead, JJVC argues that Rule 60(b)(3) 

cannot provide relief because JJVC was not complicit in 

the fraud or the misconduct. Considering only 

Dr. Bielawski’s false testimony, the district court held 

that Rembrandt was not entitled to a new trial under 

Rule 60(b)(3) because it had not shown that either JJVC 

or its counsel was complicit in any fraud or misconduct.

Turning first to Rembrandt’s allegations of misconduct, we agree with Rembrandt that the district court 

erred by failing to fully address Rembrandt’s allegations 

of misconduct and requiring proof of complicity. As used 

in Rule 60(b)(3), “‘[m]isconduct’ does not demand proof of 

nefarious intent or purpose as a prerequisite to redress. 

. . . The term can cover even accidental omissions—

elsewise it would be pleonastic, because ‘fraud’ and ‘misrepresentation’ would likely subsume it.” Anderson v. 

Cryovac, Inc., 862 F.2d 910, 923 (1st Cir. 1988) (emphasis 

added); see also Bros Inc. v. W.E. Grace Mfg. Co., 351 F.2d 

208, 211 (5th Cir. 1965) (“The effect [of misconduct] was 

the same whether there was evil, innocent or careless, 

purpose.”). 

JJVC admits that it provided samples of third-party 

lenses to Dr. Bielawski to conduct “initial set up experiments” on the lenses. The relevance of these tests to 

JJVC’s noninfringement defense cannot be disputed—
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

14

Dr. Bielawski testified about differences between JJVC’s 

accused lenses and the third-party lenses that were 

known to infringe and JJVC’s counsel emphasized these 

differences during his closing argument. 

JJVC argues that a new trial is not warranted because it “was unaware of any testing of these lenses.” 

Appellee Br. 28. JJVC’s argument strains credulity, given 

that it provided the lenses to Dr. Bielawski and talked 

about them during closing argument. But we need not 

determine whether JJVC’s failure to obtain and produce 

this data was intentional or merely accidental; as explained above, even an accidental omission qualifies as 

misconduct under Rule 60(b)(3). 

Turning next to Rembrandt’s allegations of fraud, the 

district court concluded that Rule 60(b)(3) requires proof 

of JJVC’s complicity in the false testimony, relying heavily on Harre, 750 F.2d 1501, as well as cases outside of the 

Eleventh Circuit. Rembrandt argues that the district 

court misinterpreted Eleventh Circuit precedent by 

requiring proof of complicity to satisfy Rule 60(b)(3). We 

agree. 

Although evidence of complicity was considered by the 

Eleventh Circuit in Harre, the court did not announce a 

rule requiring such evidence to prevail on a Rule 60(b)(3) 

motion. The district court in this case acknowledged as 

much, stating that “the Harre court did not expressly 

limit its holding to circumstances in which counsel is 

complicit with witness misconduct . . . .” Rule 60 Order, 

300 F.R.D. at 699. Instead, after concluding that the 

appellant had “presented sufficient evidence to support 

the allegation that [the expert] committed perjury,” the 

Harre court turned to the second inquiry under 

Rule 60(b)(3)—“whether the conduct complained of prevented Appellants from fully and fairly presenting their 

case.” Harre, 750 F.2d at 1504–05. Although the Harre

court also determined that counsel “must have been 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

15

aware” of the perjury and expressed deep concern in view 

of that determination, it did not suggest that relief under 

Rule 60(b)(3) would otherwise have been unavailable. See 

id. at 1505. Consistent with our understanding, a subsequent Eleventh Circuit case cited Harre for the proposition that mere “perjury constitutes fraud under [Rule] 

60(b)(3).” See Bonar v. Dean Witter Reynolds, Inc., 835 

F.2d 1378, 1383 n.7 (11th Cir. 1988). The Fifth Circuit

has also recognized that Rule 60(b)(3) is remedial and 

should be liberally construed. Rozier, 573 F.2d at 1346. 

Likewise, we have previously affirmed a grant of a 

new trial under Rule 60(b)(3) in view of an expert’s perjured testimony, even when it was undisputed that the 

party was unaware of the perjury. See Viskase Corp. v. 

Am. Nat’l Can Co., 261 F.3d 1316, 1324 (Fed. Cir. 2001). 

In Viskase, an expert witness lied about his personal 

involvement in laboratory testing concerning alleged 

infringement. Id. Although there was no evidence that 

the sponsoring party or its counsel was aware of the 

expert’s perjury, the district court had determined that 

the party’s counsel “surely knew there must have been 

additional documents and that there were additional tests 

conducted” that had not been produced, and, as a result,

“conclude[d] that [the party] cannot escape responsibility 

for [the expert’s] testimony.” Viskase Corp. v. Am. Nat’l 

Can Co., 979 F. Supp. 697, 705 (N.D. Ill. 1997). In affirming the district court’s grant of a new trial, we “agree[d]

with the district court that the jury verdict was irretrievably tainted and was properly set aside.” Viskase, 261 

F.3d at 1324. We are presented with very similar facts 

here. Although JJVC may have been unaware of 

Dr. Bielawski’s false testimony, JJVC should have known 

that additional tests were conducted and additional 

documents were generated. Indeed, it provided samples 

of the third-party lenses to Dr. Bielawski, requested that 

he conduct initial testing on those lenses, and questioned 

Dr. Bielawski on the same subject matter during trial. 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

16

At bottom, the district court erred by concluding that 

the Eleventh Circuit would require proof that JJVC or its 

counsel was complicit in Dr. Bielawski’s false testimony. 

In this most unusual case involving false testimony by 

both parties’ experts and misconduct, we cannot agree 

that the Eleventh Circuit would require complicity in 

Dr. Bielawski’s false testimony. While the district court 

gave thoughtful consideration to Rembrandt’s 

Rule 60(b)(3) motion and to the integrity of the judicial 

process, it erred in requiring complicity and summarily 

dismissing Rembrandt’s separate allegation of misconduct. We thus conclude that the district court abused its 

discretion in denying Rembrandt’s motion for a new trial 

under Rule 60(b)(3). 

III.

Because we reverse the district court’s denial of Rembrandt’s motion for a new trial under Rule 60(b)(3), we do 

not consider whether the district court abused its discretion in denying Rembrandt’s Rule 60(b)(2) and discovery 

motions. We also reject JJVC’s argument that the mandate rule precludes consideration of Rembrandt’s Rule 

60(b) motions. Our prior decision in this case did not 

address, explicitly or implicitly, Rembrandt’s request for a 

new trial under Rule 60(b). See Rembrandt I, 725 F.3d 

1377.

CONCLUSION

We hold that the district court abused its discretion in 

denying Rembrandt’s motion for a new trial under Rule 

60(b)(3). We therefore reverse and remand for a new 

trial.

REVERSED AND REMANDED
United States Court of Appeals 

for the Federal Circuit ______________________ 

REMBRANDT VISION TECHNOLOGIES, L.P.,

Plaintiff-Appellant

v.

JOHNSON & JOHNSON VISION CARE, INC.,

Defendant-Appellee

______________________ 

2015-1079

______________________ 

Appeal from the United States District Court for the 

Middle District of Florida in No. 3:11-cv-00819-TJC-JRK, 

Judge Timothy J. Corrigan.

______________________ 

DYK, Circuit Judge, dissenting. 

This case presents two important questions about the 

interpretation of Rule 60(b)(3) of the Federal Rules of 

Civil Procedure in the context of false testimony by an 

expert witness. The first is whether a showing by a 

movant that it lacked a “full and fair” opportunity to 

present its case requires some showing that the result 

could have been affected by the false testimony. The 

second is whether false testimony by an expert witness 

can be attributed “to the opposing party” (as required by 

the rule) without a showing of knowledge or reason to 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

2

know that the testimony was false. I respectfully suggest 

that the majority is wrong on both counts. 

I 

Relying on Rule 60(b)(3), Rembrandt sought to set 

aside a summary judgment of non-infringement of the 

asserted claim of U.S. Patent No. 5,712,327 (“the ’327 

patent”) based on false testimony of Johnson & Johnson 

Vision Care’s (JJVC’s) expert witness, Dr. Christopher 

Bielawski. The district court denied relief. 

To succeed on a motion under Rule 60(b)(3), it is not 

necessary to establish that the fraud “alter[ed] the result 

in the case.” Rozier v. Ford Motor Co., 573 F.2d 1332, 

1339 (5th Cir. 1978). But, the movant must demonstrate 

by clear and convincing evidence that the alleged fraud or 

misconduct prevented it “from fully and fairly presenting 

his case or defense.” Cox Nuclear Pharm., Inc. v. CTI, 

Inc., 478 F.3d 1303, 1305 (11th Cir. 2007); Harre v. A.H. 

Robins Co., 750 F.2d 1501, 1503 (11th Cir. 1985); see also 

11 Charles Alan Wright et al., Federal Practice and 

Procedure § 2860 & n.12 (3d ed. 2012) (noting that to 

qualify for relief under the rule, “the fraud must have 

prevented the moving party from fully and fairly presenting his case,” and citing cases). In other words, the 

moving party must demonstrate that the misconduct 

“substantially interfered with its ability fully and fairly to

prepare for, and proceed at, trial.” Anderson v. Cryovac, 

Inc., 862 F.2d 910, 926 (1st Cir. 1988). In my view, the 

majority’s decision effectively eliminates this requirement, and errs in reversing the district court’s determination that this standard was not met.

At the original trial, JJVC argued for a finding of noninfringement based on two limitations of asserted claim 1 

of the ’327 patent. The claim requires contact lenses that 

are both (1) “soft” and (2) have a “tear-wettable surface 

layer.” ’327 patent, col. 8 ll. 2–16. These are separate and 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

3

independent limitations. For example, both “hard” and 

“soft” contact lenses can be coated with a material to 

make the lenses more “tear-wettable.” Similarly, the 

patent itself describes prior art “soft” lenses that lack a 

surface layer. Thus, to prevail in its infringement case, 

Rembrandt had the burden of independently proving (1) 

that the accused contact lenses were “soft” and (2) that 

the accused lenses had a surface layer. In this case, two 

witnesses testified falsely, one for each side and one on 

each issue.

The district court construed “soft” to mean “having a 

Hardness (Shore D) of less than 5” on the Shore scale—an 

accepted standard for hardness. Rembrandt Vision 

Techs., L.P. v. Johnson & Johnson Vision Care, Inc., 282 

F.R.D. 655, 657 (M.D. Fla. 2012) (“JMOL Order”). In 

other words, to meet the claim limitation, the accused 

lenses had to have a value of less than five according to a 

commonly used testing and measurement method for 

hardness. 

Rembrandt’s expert witness, Dr. Thomas Beebe, Jr., 

testified that the accused contact lenses met the “soft” 

limitation of the patent claim. During his testimony 

about the “soft” limitation, “Dr. Beebe’s trial testimony 

did not match the opinions disclosed in his expert report.” 

Rembrandt Vision Techs. v. Johnson & Johnson Vision 

Care, Inc., 725 F.3d 1377, 1379 (Fed. Cir. 2013) (“Rembrandt I”). “In fact, the differences . . . [were] so substantial that Dr. Beebe essentially performed an entirely 

different test” than he had described in his expert report. 

JMOL Order, 282 F.R.D. at 663. During what the district 

court described as an “implosion” on the stand, Dr. Beebe 

“completely changed his testimony” during crossexamination. Id. at 668. Accordingly, after trial, the 

district court excluded Dr. Beebe’s testimony and, because 

“Dr. Beebe’s testimony was the only evidence presented at 

trial that showed that the accused lenses met the ‘soft’ 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

4

limitation,” the district court granted JJVC’s motion for 

judgment as a matter of law (“JMOL”) that the accused 

lenses did not infringe because they did not meet the 

“soft” limitation. Rembrandt I, 725 F.3d at 1383. On 

appeal, we affirmed the district court’s exclusion of Dr. 

Beebe’s testimony and the subsequent grant of JMOL. Id.

at 1378. 

A different scenario played out with respect to the 

“surface layer” limitation. The district court construed 

the “surface layer” limitation to mean “a layer beginning 

from and including the outermost surface and moving 

inward to an arbitrary depth of the lens and having a 

different composition from the ‘body’ portion of the lens.” 

Rembrandt Vision Techs. L.P. v. Johnson & Johnson 

Vision Care, Inc., No. 11-cv-0819, ECF No. 300 (Transcript of May 10, 2012), at 295. In other words, to infringe, contact lenses must contain an outer layer made 

up of a different material than the rest of the contact lens. 

JJVC’s expert witness, Dr. Bielawski, testified that the 

accused products did not meet the surface layer limitation.

After trial, Rembrandt discovered that Dr. Bielawski 

had falsely testified about his credentials and about who 

had performed the testing in his expert report. Rembrandt also discovered that data from Dr. Bielawski 

regarding surface-layer testing of third party lenses had 

been withheld. As the majority notes, Dr. Bielawski 

testified for JJVC “to support its position that its accused 

lenses did not meet the ‘surface layer’ limitation, but did 

not present expert testimony with respect to the ‘soft’ 

limitation.” Maj. Op. at 3. 

The question here is whether Dr. Bielawski’s laterdiscovered false testimony about the “surface layer” 

limitation should result in re-opening the district court’s 

JMOL of non-infringement based on the plaintiff’s failure
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

5

to produce any evidence in response to the JMOL motion 

(absent Dr. Beebe’s stricken testimony) that the accused 

lenses met the “soft” limitation. The district court correctly concluded that the JMOL should not be reopened

because Rembrandt was not deprived of a full and fair 

opportunity to present its case on the “soft” limitation—

an issue which was dispositive of non-infringement. 

I note at the outset that the majority incorrectly focuses on the jury verdict of non-infringement. See, e.g., 

Maj. Op. at 8 (“The verdict was irretrievably tainted by 

Dr. Bielawski’s false testimony and Dr. Bielawski’s and 

JJVC’s withholding of relevant documents. While we do 

not know the exact impact the false testimony would have 

had on the jury, the false testimony may well have been 

critical to the noninfringement verdict and the jury may 

well have been impacted upon learning that Dr. Bielawski 

committed an act at least as egregious as Dr. Beebe’s.”) 

Whether the jury verdict was tainted by Dr. Bielawski’s 

testimony about Dr. Beebe is not relevant. The jury 

verdict is not under review here; the district court’s grant 

of JMOL (on the “soft” limitation only) is, and the district 

court did not rely on Dr. Bielawski’s testimony in granting JMOL. 

In this respect, to succeed on the Rule 60(b)(3) motion 

for a new trial, Rembrandt was required to show that the 

false testimony resulted in a substantial impairment of its 

ability to present its case on the “soft” issue. “Substantial 

impairment may exist, for example, if a party shows that 

the [misconduct] precluded inquiry into a plausible theory 

of liability, denied it access to evidence that could well 

have been probative on an important issue, or closed off a 

potentially fruitful avenue of direct or cross examination.” 

Anderson, 862 F.2d at 925. But if the misconduct is 

related to evidence that is “cumulative, insignificant, or of 

marginal relevance,” “retrial would needlessly squander 

judicial resources.” Id. at 924.
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

6

Rembrandt’s only argument as to substantial impairment is that it “could have moved for summary judgment 

on the surface layer issue—or streamlined its trial evidence on the issue—and thus had more time to present 

additional evidence regarding the ‘soft’ nature of the 

accused lenses.” Reply Br. at 24. In other words, Rembrandt speculates that it would have spent more time 

preparing its case for the “soft” limitation and could have 

potentially prevented Dr. Beebe’s meltdown on the stand. 

And the majority asserts that the existence of such a 

possible reallocation of resources is sufficient, stating that 

“[k]nowing the weaknesses in JJVC’s evidence regarding 

the surface layer limitation could well have changed the 

nature of the entire proceedings. We cannot and will not 

speculate about the profound effects knowledge of the 

[alleged misconduct] would have had on the proceedings

and the district court’s JMOL.” Maj. Op. at 12. Under 

this standard, it is hard to see any case where, after a 

party proves misconduct of any kind, that party would not 

be afforded relief. In effect, the majority’s holding renders 

the “full and fair” requirement a nullity. Neither Rembrandt nor the majority can point to any case where Rule 

60(b)(3) relief has been granted based on such speculation.

The authority is uniformly to the contrary. The 

standard before Rule 60 was adopted was quite clear. 

“[T]o justify setting aside a decree for fraud whether 

extrinsic or intrinsic, it must appear that the fraud 

charged really prevented the party complaining from 

making a full and fair defense.” Toledo Scale Co. v. 

Computing Scale Co., 261 U.S. 399, 421 (1923) (emphasis 

added). “If it does not so appear, then proof of the ultimate fact, to wit, that the decree was obtained by fraud 

fails.” Id. This requires a showing of how “the complaining party was, without his fault, deprived of his opportunity to present his defense on the merits. . . . Chancery 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

7

will intervene, therefore, only when the complainant was 

prevented from presenting a meritorious defense by the 

inequitable conduct of his adversary unmixed with negligence or fault on his own part.” In re Innis, 140 F.2d 479, 

481 (7th Cir. 1944). “[I]t [is] an imperative condition of 

such relief that the party seeking it shall make it clearly 

appear that he had a good defense to the action, which, by 

fraud or accident, he was prevented from making, and 

also that there was neither fault nor negligence on his 

part.” Talbott v. Pickford, 36 App. D.C. 289, 298 (D.C. 

Cir. 1911), aff’d sub nom., 225 U.S. 651 (1912). This 

common law equity standard was incorporated into the 

Rule 60(b)(3) standard. Rozier, 573 F.2d at 1339 (citing 

Toledo Scale, 261 U.S. at 421). 

Under Rule 60(b)(3), when the alleged misconduct is 

related to issues that “are essentially irrelevant to the 

legal issues upon which the case turned,” relief from the 

judgment is not warranted. Simons v. Gorsuch, 715 F.2d 

1248, 1253 (7th Cir. 1983); see also PMC, Inc. v. Atomergic 

Chemetals Corp., No. 95-7509, 1995 WL 595557, at *1 (2d 

Cir. Sep. 25, 1995) (unpublished decision) (finding claim 

of lack of a full and fair opportunity “to be without merit” 

when an expert lied about his credentials because the 

misconduct “did not have ‘such a close nexus to the issues’” relevant in the case); Anderson, 862 F.2d at 931

(relief under Rule 60(b)(3) should not be granted where

the misconduct “would have had no effect on the result” of 

the case). 

A review of cases where Rule 60(b)(3) motions have 

been granted shows that relief is only granted when the 

misconduct involves material, relevant evidence; in other 

words, when knowing about the misconduct actually could 

have made a difference. See, e.g., Abrahamsen v. TransState Express., Inc., 92 F.3d 425, 430 (6th Cir. 1996)

(plaintiff in a tort action resulting from a car accident 

entitled to a new trial because defendant’s attorney 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

8

withheld evidence of a statement by defendant’s driver 

that he “dozed off” while driving, leading to the accident); 

Rozier, 573 F.2d at 1339, 1342–43 (defendant improperly 

withheld an internal cost/benefit report showing the 

defendant’s knowledge of the defect and rejecting a safer 

design; the report “would have” affected plaintiff’s approach to the design-defect tort case, and the plaintiff was 

“prejudiced”); Seaboldt v. Pa. R.R. Co., 290 F.2d 296, 299 

(3d Cir. 1961) (defendant entitled to a new trial in a 

personal injury case relating to a back injury because 

plaintiff’s counsel failed to supply information concerning 

a chiropractor who would have testified that he “had 

treated the plaintiff previously for a ‘chronic’ back ailment” before the alleged injury.). 

Fraige v. American-National Watermattress Corp., 

996 F.2d 295 (Fed. Cir. 1993), relied on by the majority, is 

not to the contrary. In that case, counsel for the accused 

infringer had submitted to the court “false and forged 

documentation” about a supposed prior art reference. Id.

at 296. The motion was made under Rule 60(b)(3), and we 

held that relief should have been granted under that rule. 

However, our reasoning was that relief was available not 

under Rule 60(b)(3) but under the savings clause in Rule 

60, which allows a court to “entertain an independent 

action for fraud on the court.” Fed. R. Civ. P. 60(d)(1); see 

also Fraige, 996 F.2d at 297 (citing the savings clause). 

As the Advisory Committee Note to the rule explains, “the 

rule expressly does not limit the power of the court, when 

fraud has been perpetrated upon it, to give relief under 

the saving clause. As an illustration of this situation, see 

Hazel-Atlas Glass Co. v. Hartford Empire Co.,” 322 U.S. 

238 (1944).1 Fed. R. Civ. P. 60(b) Advisory Committee 

 

1 Fraud on the court, not even alleged in this case, 

constitutes “an unconscionable plan or scheme which is 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

9

Note to the 1946 Amendments. We found in Fraige that 

“[l]ike Hazel-Atlas, [the defendant’s] fraudulent conduct 

was a wrong against the judicial system as well as against 

[the plaintiff.]” 996 F.2d at 299. Appropriately, we found 

that a new trial was necessary because for more serious 

“fraud on the court” (unlike Rule 60(b)(3)), the moving 

party need not demonstrate prejudice to receive relief 

from a judgment because “a decision produced by fraud on 

the court is not in essence a decision at all, and never 

becomes final.” Kenner v. Comm’r of Internal Revenue, 

387 F.2d 689, 691 (7th Cir. 1968). Fraige is not authority 

for the proposition that Rule 60(b)(3) does not require a 

showing of lack of full and fair opportunity.

Rembrandt has failed to show how knowledge of Dr. 

Bielawski’s misconduct would have changed its approach 

to the “soft” limitation. The JMOL was based entirely on 

the exclusion of Dr. Beebe’s testimony because of his 

“abrupt and still unexplained implosion” that “led to the 

derailment of the trial” on the softness issue. J.A. 7444.2 

 

designed to improperly influence the court,” and, unlike 

fraud referenced in Rule 60(b)(3), involves the “integrity 

of the court itself.” Charles Alan Wright, et al., Federal 

Practice and Procedure § 2870 (2012). In Hazel-Atlas, for 

example, the Supreme Court found that the patentholder’s “flagrant” and “deliberate” plan to deceive both 

the Patent Office and the district court “call[ed] for nothing less than a complete denial of relief [] for the claimed 

infringement of the patent thereby procured and enforced.” Hazel-Atlas, 322 U.S. at 250. 2 Although the district court deferred action on the 

JMOL until after the jury verdict, it could have granted 

the relief at the end of the presentation of Rembrandt’s 

case. If it had done so, Dr. Bielawski would never even

have testified. 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

10

The majority suggests that there was other evidence

in the trial record that the accused lenses met the “soft” 

limitation, but such evidence was not raised by Rembrandt in response to the JMOL motion. Maj. Op. at 12. 

In the first appeal, we held that Rembrandt had not 

preserved the right to argue this evidence in connection 

with the JMOL motion.3 I fail to see how the decision by 

Rembrandt not to raise this evidence could have even 

arguably been affected by Dr. Bielawski’s false testimony. 

In any event, Rembrandt’s decision not to raise this 

evidence represents a strategic litigation choice. Rule 

60(b)(3) cannot be used to allow a party to escape its own 

negligence in developing its case. Courts routinely deny 

Rule 60(b)(3) motions when a party loses not because of 

the alleged fraud but because of its own failings. “When a 

party is capable of fully and fairly preparing and presenting his case notwithstanding the adverse party’s arguable 

misconduct, the trial court is free to deny relief under 

Rule 60(b)(3).” Karak v. Bursaw Oil Corp., 288 F.3d 15, 

22 (1st Cir. 2002); see also Diaz v. Methodist Hosp., 46 

F.3d 492, 497 (5th Cir. 1995). Nothing about Dr. 

Bielawski’s misconduct regarding the “surface layer” 

limitation prevented Rembrandt from raising other evidence on the softness issue in response to the JMOL 

motion. 

 

3 Specifically, we found that “[i]n opposing JJVC’s 

motion for judgment as a matter of law, Rembrandt only 

pointed to Dr. Beebe’s trial testimony. Moreover, Rembrandt conceded at the post-trial hearing that Dr. Beebe’s 

testimony was the only evidence presented at trial that 

showed that the accused lenses met the ‘soft’ limitation. . . . We decline to upend the district court’s decision 

on a basis that was not raised below.” Rembrandt I, 725 

F.3d at 1383 (emphasis added).
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

11

Quintessentially, the resolution of a Rule 60(b)(3) motion is a matter of discretion for the district court judge, 

who sat during the entire trial and is most intimately 

familiar with the reasoning for his own statements and 

previous order. Here the district court concluded that no 

retrial was appropriate. In an effort to suggest that the 

district court would have reached a different result if it 

had applied a different standard, both Rembrandt and the 

majority point to ambiguous statements by the district 

court during the Rule 60 hearing when the trial judge, 

before reaching his final decision on the motion, speculated that the false testimony might have somehow affected 

the JMOL decision as to the soft limitation. But, as 

noted, Dr. Bielawski offered no testimony on the “soft” 

limitation, and the district court made no finding of any 

such relationship in its final decision.4 At best, the district court’s statements suggest that a remand to the 

district court might be appropriate to reconcile the final 

order and the court’s earlier statements. 

In short, the record here demonstrates that Rembrandt failed to produce any credible evidence on one 

element of its case. That failure had nothing to do with 

Dr. Bielawski’s false testimony. In the prior appeal, we 

affirmed that the district court acted properly in excluding Dr. Beebe’s testimony and in granting JMOL of non-

 

4 In the final order, the district court found that 

“[w]hat Rembrandt mainly lost here was an opportunity 

to discredit or eliminate an expert witness who . . . was 

not required for JJVC to win the case. When the trial is 

looked at in its totality, even accounting for Dr. 

Bielawski’s misconduct, Rembrandt was not prevented 

from making its case.” Rembrandt Vision Techs., L.P. v. 

Johnson & Johnson Vision Care, Inc., 300 F.R.D. 694, 701 

(M.D. Fla. 2014) (“Rule 60 Order”). 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

12

infringement based on the lack of evidence. That previous 

determination should not be disturbed by a subsequent 

discovery of false testimony about an entirely different 

issue. 

II

There is also, in my view, a second error in the majority opinion. Under Rule 60(b)(3), “the court may relieve a 

party or its legal representative from a final judgment, 

order, or proceeding” if there was “fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 

misconduct by an opposing party.” Fed. R. Civ. P. 

60(b)(3). I also disagree with the majority’s conclusion

(contrary to that of the district court) that the rule does 

not require any evidence that the misconduct was attributable to “the opposing party” as required by the text 

of Rule 60(b)(3). 

The majority finds that the district court erred in “requiring proof of [JJVC’s] complicity” in Dr. Bielawski’s 

false testimony. Maj. Op. at 13. According to the majority, “[i]n this most unusual case involving false testimony 

by both party experts, we cannot agree that the Eleventh 

Circuit would require complicity in Dr. Bielawski’s false 

testimony.” Id. at 15.

The two other circuits that have confronted the issue 

have reached the opposite conclusion. As the Seventh 

Circuit explained, “[e]xpert witnesses . . . are free agents. 

Parties and counsel have an obligation not to deceive the 

court about the witness and to correct statements they 

know to be false, but they are not responsible for the 

details of the witness’s testimony.” Metlyn Realty Corp. v. 

Esmark, Inc., 763 F.2d 826, 833 (7th Cir. 1985). Thus, the 

Seventh Circuit held that, absent evidence that “the 

adverse party procured or knew of any false testimony,” 

relief under Rule 60(b)(3) is not available. Id. at 832; see 

also Richardson v. Nat’l R.R. Passenger Corp., 49 F.3d 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

13

760, 765 (D.C. Cir. 1995) (declining to “substitute a less 

restrictive limitation” under Rule 60(b)(3) for attribution

to a party misconduct of another “for the one expressly 

adopted under the Rules”). The majority’s conclusion also 

conflicts with long-settled evidence and professional 

responsibility rules. See Fed. R. Evid. 607, Advisory 

Committee Notes to 1972 Proposed Rules (abandoning the 

“traditional rule against impeaching one’s own witness” 

because “[a] party does not hold out his witnesses as 

worthy of belief”); Model R. Prof. Resp. 3.3 and comments 

(a lawyer will only be responsible for false testimony if the 

lawyer knew or should have known the testimony was 

false). 

While the Eleventh Circuit has not expressed itself 

clearly on the issue here, there is no reason to think that

it would reach the opposite conclusion. In the Eleventh 

Circuit case granting Rule 60(b)(3) relief discussed by the 

majority, Harre, 750 F.2d at 1503, the court found “that 

the record support[ed] Appellants’ argument that a material expert witness testified falsely on the ultimate issue 

in the case, where the defense attorneys knew or should 

have known of the falsity of the testimony.” Id. at 1503 

(emphasis added). Nothing in Bonar v. Dean Witter 

Reynolds, Inc., 835 F.2d 1378 (11th Cir. 1988), is to the 

contrary. Bonar, a case involving vacation of an arbitrator’s punitive damages award, cites Harre for the proposition that “[t]here is no doubt that perjury constitutes 

fraud,” and that the perjury is material when it goes to a 

“central issue” in a case. Id. at 1383 n.7 & 1385. The 

Eleventh Circuit in Bonar did not discuss Harre in the 

context of party complicity under Rule 60(b)(3) because 

Bonar did not involve that issue (nor did it involve Rule 

60(b)(3) at all).

The majority points to Viskase Corporation v. American National Can Company, 261 F.3d 1316 (Fed. Cir. 

2001), as supporting its position. See Maj. Op. at 15. But 
 REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

14

Viskase arose in the Seventh Circuit, which explicitly 

requires evidence of complicity to attribute false testimony of an expert witness to a party under Rule 60(b)(3). 

Metlyn, 763 F.2d at 833. The district court in Viskase

specifically found that the plaintiff’s counsel “surely knew 

there were additional documents [that had been withheld] 

and that there were additional tests conducted” relying on 

evidence such as “invoices directed to [plaintiff’s] counsel 

and [the expert’s] notes document[ing] counsel’s 

knowledge.” Viskase Corp. v. Am. Nat. Can Co., 979 F. 

Supp. 697, 705 (N.D. Ill. 1997). There is no similar evidence or finding here.

The majority agrees that JJVC “may have been unaware of Dr. Bielawski’s false testimony” but suggests that 

JJVC may have been complicit in withholding Dr. 

Bielawski’s data from tests on third-party contact lenses. 

Maj. Op. at 15. According to the majority, “JJVC should 

have known that additional tests were conducted and 

additional documents were generated. Indeed, it provided 

samples of the third-party lenses to Dr. Bielawski, requested that he conduct initial testing on those lenses, 

and questioned Dr. Bielawski on the same subject matter 

during trial.” Id. 

While JJVC admitted that it did “suppl[y] [the third 

party lenses] to Dr. Bielawski,” it did so “only for use in 

setting up his equipment.” Appellee’s Br. at 28. According to JJVC, it “did not ask Dr. Bielawski to generate data 

on those lenses, and did not know that one of his assistants had (apparently) done so.” Id. In fact, JJVC asserts 

that “Dr. Bielawski repeatedly reassured JJVC’s counsel 

that he had given them all of the data he generated and 

all of the documents he relied upon.” Id. at 63. The 

district court did not resolve this factual dispute as to 

whether JJVC’s counsel should have known that additional evidence existed, finding instead that this “murky” 

assertion did not support a finding that Rembrandt was 
REMBRANDT VISION TECHS., L.P. v. JOHNSON & JOHNSON 

VISION CARE

15

prevented from fully and fairly presenting its case. Rembrandt, 300 F.R.D. at 697 n.1. 

The majority’s resolution of this factual dispute as to 

whether JJVC’s counsel should have known about the 

withheld documents is inconsistent with our role as a 

court of review and the deferential “abuse of discretion” 

standard of review. As we have found, when the lower 

tribunal has left a factual issue unresolved, “[w]e are 

unable to engage in such fact-finding in the first instance 

and must therefore remand for further proceedings.” 

Nike, Inc. v. Adidas AG, No. 2014-1719, 2016 WL 537609, 

at *14 (Fed. Cir. Feb. 11, 2016). This is a matter for the 

trial court and, at best, a remand for further fact-finding 

would be appropriate as to whether JJVC’s counsel should 

have known about the documents. 

I respectfully dissent.