NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 11-4539 

___________ 

JEFFREY P. DATTO, Ph.D. 

v. 

BRIAN HARRISON; THOMAS LEWIS; 

THOMAS KLEIN, M.D.; MARK GRAHAM, M.D.; 

THOMAS JEFFERSON UNIVERSITY; THOMAS 

JEFFERSON UNIVERSITY HOSPITALS, INC.; 

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; 

JOHN DOE 4; JOHN DOE 5 

(2-09-cv-02064) 

_____________ 

JEFFREY P. DATTO, Ph.D. 

v. 

THOMAS JEFFERSON UNIVERSITY; 

DR. THOMAS KLEIN; DR. THOMAS NASCA; 

DR. JAMES FINK; DR. ARTHUR FELDMAN; 

DR. MARK GRAHAM; DR. NORA SANFORFI; 

DR. CHARLES POHL; DR. CLARA CALLAHAN; 

DR. GEORGE PEREIRA-OGAN; DR. JOHN CARUSO; 

DR. BRIAN HARRISON; DR. ROBERT BARCHI; JOHN DOES 1-5 

(2-09-cv-02549) 

Jeffrey P. Datto, Ph.D, 

Appellant 

____________________________________ 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. Nos. 09-cv-02064 and 09-cv-02549) 

District Judge: Honorable Mary A. McLaughlin 
2 

____________________________________ 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

December 3, 2012 

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed: December 7, 2012 ) 

___________ 

OPINION OF THE COURT 

___________ 

PER CURIAM. 

 Jeffrey P. Datto appeals an order of the United States District Court for the Eastern 

District of Pennsylvania denying his motion for relief under Federal Rule of Civil 

Procedure 60(b). For the reasons that follow, we will affirm. 

I. 

 Because we write primarily for the benefit of the parties, who in their briefing 

have displayed in-depth familiarity with the history of this case, we set forth only a brief 

summary of the relevant background. In 2005, appellee Thomas Jefferson University 

(“Jefferson”) dismissed Datto from its M.D./Ph.D. program during Datto’s final year of 

medical school, which prevented Datto from attaining an M.D. degree. The parties 

disputed the reasons why Jefferson dismissed Datto. In 2007, Datto filed three suits 

against Jefferson and other defendants in Pennsylvania state court, seeking, among other 

things, reinstatement to the M.D. program. Two of Datto’s suits were removed to federal 
3 

court, ultimately docketed as E.D. Pa. Civ. Nos. 09-cv-02549 and 09-cv-02064, and 

consolidated for all purposes. 

 The parties agreed to participate in settlement discussions, which were mediated 

by Magistrate Judge Elizabeth T. Hey. After lengthy negotiations, the parties reached an 

agreement calling for Datto to dismiss his three suits in exchange for a monetary payment 

from Jefferson. The agreement did not include any opportunity for Datto to gain 

readmission to Jefferson. On June 2, 2010, Datto signed the settlement agreement during 

a conference before Judge Hey, acknowledging on the record that he had reviewed the 

agreement and intended to be bound by it. Datto voluntarily dismissed with prejudice his 

suits against the defendants. 

Thereafter, on November 30, 2010, Datto submitted a letter to the District Court 

seeking to vacate the dismissal and reopen his cases. He argued that he had been unable 

to appreciate the binding nature of the settlement agreement because he was mentally 

impaired at the time of signing and hindered by his inability to discuss the settlement 

with his treating psychiatrists. Datto submitted a letter from a psychiatrist, Dr. Thase, 

who opined that, “on the basis of [Datto’s] description of the events that occurred on the 

day of signing the settlement agreement and the severity of the depression that has 

followed, ... he was in the midst of an episode of bipolar disorder and had diminished 

capacity to understand the binding nature of the settlement agreement.” Datto further 

argued that he was unduly pressured to settle due to several factors, including: Judge 

Hey’s assurances that the settlement was fair; an allegedly biased mediation process; the 
4 

District Court’s refusal to appoint counsel and address Datto’s request for preliminary 

injunctive relief; defendants’ alleged discovery abuses; and the financial hardship that 

Datto allegedly suffered following his dismissal from Jefferson. 

After holding an evidentiary hearing, which included testimony from Judge Hey as 

well as from Datto, the District Court rendered factual determinations and denied the 

Rule 60(b) motion. Applying Rule 60(b)(3), which affords relief due to fraud, 

misrepresentation, or misconduct by an opposing party, the District Court concluded that 

defendants did not misrepresent to Datto their position regarding his inability to gain 

readmission to Jefferson’s medical school.1

 

1

 Because Datto does not challenge the denial of Rule 60(b)(3) relief on this appeal, we 

deem that issue waived. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193, 202-

03 (3d Cir. 2004) (“[A]n issue is waived unless a party raises it in its opening brief, and 

for those purposes a passing reference to an issue will not suffice to bring that issue 

before this court.”). In addition, we note that, while the District Court did not specifically 

address Datto’s contention that Rule 60(b)(1) provides a basis for relief because Datto 

made a “mistake” in accepting the settlement, any such contention is without merit. See

Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 275 (3d Cir. 2002) (holding that, even if 

party’s decision to settle “was improvident in hindsight, the decision is made and cannot 

be revisited”). Likewise, Datto’s alleged mistaken belief that the law would allow him to 

unilaterally revoke the settlement agreement did not warrant Rule 60(b)(1) relief. 

 Applying the “catchall” provision of Rule 

60(b)(6), the District Court held that Datto’s communications with defendants leading up 

to his signing of the settlement, including his proposed amendments to the agreement, 

show that Datto understood the agreement’s terms and that the settlement would prevent 

him from further association with Jefferson. The District Court also found that Datto was 

not subjected to undue influence or pressure to settle, and that no extraordinary 
5 

circumstance warranted reopening the cases. After denying Datto’s motion for 

reconsideration (a ruling that Datto does not challenge), Datto timely filed this appeal. 

II. 

 We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a 

Rule 60(b) motion for abuse of discretion. Budget Blinds, Inc. v. White, 536 F.3d 244, 

251 (3d Cir. 2008). Because the District Court held an evidentiary hearing, its “exercise 

of discretion in light of supportable findings of fact will not be disturbed unless there was 

a clear abuse.” Inmates of Allegheny Cnty. Jail v. Wecht, 754 F.2d 120, 127 (3d Cir. 

1985). “An abuse of discretion may be found when the district court’s decision rests 

upon a clearly erroneous finding of fact, an errant conclusion of law or an improper 

application of law to fact.” Reform Party of Allegheny Cnty. v. Allegheny Cnty. Dep’t 

of Elections, 174 F.3d 305, 311 (3d Cir.1999) (quotation marks omitted). 

 The District Court considered Datto’s allegations of mental impairment and undue 

influence under Rule 60(b)(6), which permits relief from judgment only in “extraordinary 

circumstances.” Budget Blinds, 536 F.3d at 255. Extraordinary circumstances “rarely 

exist when a party seeks relief from a judgment that resulted from the party’s deliberate 

choices.” Id. Furthermore, Rule 60(b)(6) is not a means “to escape the effects of a 

bargain [the movant] regretted in hindsight.” Coltec Indus., 280 F.3d at 273. 

 After considering the testimony presented at the evidentiary hearing, the parties’ 

arguments and submissions, and Datto’s emails and other communications leading up to 

the settlement agreement, the District Court concluded that Datto was not incompetent, 
6 

that he was not subjected to undue influence when he agreed to the settlement, and that 

he was able to appreciate the binding nature of the agreement. In so holding, the District 

Court found it significant that: Judge Hey observed Datto on the day of the signing and 

concluded that he was capable of deciding whether to settle; Datto initiated sophisticated 

changes to the settlement terms, including on the day he entered into the agreement; 

Datto’s communications with defendants show that he understood the consequences of 

settling, including that he would be precluded from further association with Jefferson; 

Datto testified on the record that he made the decision to settle intending to be bound; 

Judge Hey reiterated to Datto throughout the process that he was free to discontinue 

negotiations and elect not to settle; and Datto had consulted with his psychiatrist, Dr. 

Thase, prior to accepting the settlement terms.2

 Under Pennsylvania law, which governs the issue of Datto’s capacity to enter into 

the settlement agreement, “it is presumed that an adult is competent to execute a release, 

and thus, a signed document yields the presumption that it accurately expresses the state 

of mind of the signing party.” Taylor v. Avi, 415 A.2d 894, 896 (Pa. Super. Ct. 1979). 

The party alleging incompetence has “the burden of showing the invalidity of the 

agreement by clear, precise, and indubitable evidence.” Id. at 898. “[M]ere weakness of 

 

 

2

 Dr. Thase had advised Datto not to enter into the settlement agreement – advice that 

Datto elected not to follow. While Datto now claims prejudice in the fact that he was 

prohibited from discussing the settlement terms with anyone other than his parents, his 

tax advisor, and Dr. Thase, there is no basis in the record to conclude that Datto would 

not have signed the agreement had he been permitted to consult others. 
7 

intellect resulting from sickness or old age is not legal grounds to set aside an executed 

contract if sufficient intelligence remains to comprehend the nature and character of the 

transaction, and no evidence of fraud, mutual mistake or undue influence is present.” Id.

at 897. In addition, “[t]he testimony of persons who observed the alleged incompetent on 

the date in question is generally superior to testimony as to observations made prior to 

and subsequent to that date.” Weir v. Estate of Ciao, 556 A.2d 819, 824 (Pa. 1989). 

 Applying these standards, we conclude that the record fully supports the 

determination that Datto knowingly and voluntarily entered into the settlement 

agreement. Although Dr. Thase opined that Datto was suffering from bipolar disorder 

and “had diminished capacity to understand the binding nature of the settlement 

agreement,” the District Court carefully considered the testimony of individuals who 

observed Datto when he signed the agreement, particularly Judge Hey, as well as Datto’s 

communications preceding the settlement. Given the nature of this evidence, Datto’s 

capacity to enter into the settlement agreement cannot reasonably be questioned, and we 

thus cannot say that the District Court committed a clear abuse of discretion by denying 

Rule 60(b) relief. 

 Datto raises several contentions on appeal, none of which warrant a different 

result. Datto contends that the District Court abused its discretion by not appointing an 

attorney to represent him in the proceedings prior to settlement.3

 

3

 Datto was represented by counsel at various times before the District Court. In 2008, 

prior to his counsel filing a motion to withdraw, Datto requested court-appointed counsel 

 Datto argues that the 
8 

District Court should have appointed counsel sua sponte under 28 U.S.C. § 1915(e)(1), 

which provides that “[t]he court may request an attorney to represent any person unable 

to afford counsel.” (Emphasis added.) Datto never demonstrated an inability to afford 

counsel, and there is no evidence that he qualified for counsel under § 1915(e)(1). See

Brightwell v. Lehman, 637 F.3d 187, 191-92 (3d Cir. 2011). Because the District Court 

was under no obligation to appoint counsel for Datto, its failure to do so provides no 

basis to relieve Datto from his decision to enter into the settlement agreement. 

 Datto also argues that the District Court erred by failing promptly to address his 

motion for preliminary injunctive relief.4

 Finally, Datto argues that the District Court’s evidentiary hearing on the Rule 

60(b) motion was improper because he was unprepared to question Judge Hey, he was 

 Any delay in addressing the preliminary 

injunction motion, however, does not amount to an extraordinary circumstance that 

would allow Datto to be relieved from his decision to settle and dismiss these cases. 

 

under 42 U.S.C. § 2000e-5. The District Court denied the request because Datto was still 

represented by counsel, Datto was not entitled to appointed counsel under Title VII, and 

no program existed to provide counsel for Datto. Datto’s counsel then withdrew, and 

Datto proceeded pro se until February 2010, when he obtained new counsel. After that 

lawyer was granted leave to withdraw, Datto again elected to proceed pro se. Datto did 

not request appointed counsel any time thereafter, and he does not argue that the District 

Court should have appointed counsel in connection with the Rule 60(b) proceeding. 

4

 In June 2009, Datto moved for a preliminary injunction, requesting that the District 

Court order Jefferson to reinstate him immediately to the M.D. program. The District 

Court scheduled an evidentiary hearing on that motion for January 2010, but due to 

scheduling issues, the parties’ desire for prehearing discovery, and the need for 

supplemental briefing, the preliminary injunction hearing was rescheduled several times. 

Ultimately, the parties settled before a hearing was held. 
9 

not permitted to review Judge Hey’s personal notes, and he did not have an opportunity 

to present testimony from other witnesses, including Judge Hey’s law clerk and court 

reporter. A district court has discretion to set parameters on the conduct of proceedings, 

and this Court “will not interfere ... except upon the clearest showing that the procedures 

have resulted in actual and substantial prejudice to the complaining litigant.” In re Fine 

Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982) (quotation marks omitted). Datto 

has made no showing of actual and substantial prejudice. He plainly had no entitlement 

to review Judge Hey’s personal notes, and he has demonstrated no prejudice from failing 

to present the law clerk or court reporter. Our review of the record reveals no reversible 

error in the District Court’s conduct of the evidentiary hearing. 

III. 

 We have carefully considered Datto’s remaining arguments, but we conclude that 

those arguments are without merit and warrant no separate discussion. We will affirm 

the District Court’s order denying the Rule 60(b) motion. Datto’s motion for 

reconsideration of the Clerk’s order granting appellees’ request to file a supplemental 

appendix is denied.