Johnson v. C R Bard Incorporated

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

NATALIE JOHNSON,

Plaintiff, ORDER v. 19-cv-760-wmc C.R. BARD INC. and BARD PERIPHERAL VASCULAR INC.,

Defendants.

Before the court is the parties’ request for ruling on objections to certain deposition designations as to David Ciavarella. DEPON- PL DEF PL RESPONSE TO COURT ENT AFFIRM OBJECTIONS OBJECTIONS RULING Defendants’ Testimony involves the OVERRULED object to this Recovery, which is the testimony in its predicate filter to the entirety as it has G2. The G2, the G2x, no relation to the the Eclipse, and the Meridian filter. Meridian are the same Dr. Ciavarella filter with the exception testified that his of a removal hook on role as medical the G2X and director stopped electropolishing on the in 2008 when Dr. Eclipse and the anchors Altonaga took on the Meridian. over (see, 44:24- Testimony is relevant to 45:6). This whether the filter []had testimony has no a defective design, Bard's relevance to the negligence and failure to issues in this case. warn claims, which are Bard objects to at issue. The Plaintiff’s G2/G2X/Eclipse/Meridia references to n and the Recovery filter “Admitted in the suffered similar rates of a basis for discussing the failures of allowing a the Recovery is directly designation to related to the played, or G2/G2X/Eclipse/Meridia overruling an n. There is no unfair objection, and prejudice. submits that the testimony should be consider based on the facts and applicable law and rulings in this case. The Peterson case involved a different filter, different claims, and was decided under different state law. Ciavarella, 11:09- Admitted in Peterson David 11:11 11/12/2013 Ciavarella, 13:12- Admitted in Peterson David 13:19 11/12/2013 beginning with "You've been with…" Ciavarella, 36:14- Admitted in Peterson David 37:03 11/12/2013 David 44:18 designation. Lines The Federal Rules of 11/12/2013 44:08-12 are an Evidence do not answer, but no prohibit a party from question was questioning witnesses designated. Lines about admissible 14-18 are documents the witness cumulative of Dr. does not recall having Altonaga’s seen before. “Personal testimony. knowledge of a fact ‘is not an absolute’ to Rule 602's foundational requirement . . . .”, United States v. Cuti, 702 F.3d. 453, 459 (2nd Cir. 2013). . “What if you had known “ questions are acceptable. Id., 459 (2nd Cir. 2013). Testimony involves the Recovery, which is the predicate filter to the G2. The G2, the G2x, the Eclipse, and the Meridian are the same filter with the exception of a removal hook on the G2X and electropolishing on the Eclipse and the anchors on the Meridian. Testimony is relevant to whether the filter filter had a defective design, Bard's negligence and failure warn claims, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair Testimony is relevant because it establishes that the doctors evaluating adverse events and complications of the Recovery filter did not see patients regarding filters or for any other issues. Witness knew answer to question.

Ciavarella, 44:24- Admitted in Peterson David 45:06 11/12/2013 Ciavarella, 46:14- Cumulative of Dr. Admitted in Peterson OVERRULED David 46:23 ALtonaga’s The testimony is not 11/12/2013 testimony. cumulative and Plaintiff is not "needless presenting cumulative evidence". The question was never asked of Dr. Altonaga. Ciavarella, 70:06- Rules 401, 402 Admitted in Peterson OVERRULED David 70:08 and 403. There is The question and 11/12/2013 beginning no failure to recall answer do not discuss with "you claim in this case. a[] "recall" it asks if Bard don't could withdraw a have…" product from the market voluntarily. The testimony is relev[a]nt to Ba[r]d's negligence and is not unfairly prejudicial. David 70:13 and 403. There is The question and 11/12/2013 no failure to recall answer do not discuss claim in this case. a[] "recall" it asks if Bard could withdraw a product from the market voluntarily. The testimony is relev[a]nt to Ba[r]d's negligence and is not unfairly prejudicial. Ciavarella, 83:06- Admitted in Peterson David 83:08 11/12/2013 Ciavarella, 83:11- Admitted in Peterson David 83:16 11/12/2013 Ciavarella, 84:10- The counters at Admitted in Peterson OVERRULED David 84:15 pages 84-86 are Witness's job 11/12/2013 beginning necessary for responsibility included with "a completeness. review of product medical labeling, so he had to doctor," have knowledge of this subject to do his job. See, e.g., 20:7-14. see also 91:13-17; 92:18-24. Witness's job also included assessing as part of health hazard evaluation whether the risk is obvious to the implanting physician. 8/29/12 deposition at 60:16-61:6. Witness made decisions and recommendations with respect to the Recovery regarding implanting physician's role in integrating risk information and making decisions. 7/29/14 deposition at 164:24- 165:6. Testimony designated by Bard knowledge of and was involved in warnings and the risk/benefit analysis of doctors related to same. E.g., 80:18-25. In fact, the witness conducted a focus group regarding how doctors evaluate the risk/benefit ratio with respect to the Recovery filter. See Bard's design[]ation, 7/29/04 deposition at 140:1-19. Thus, witness has knowledge of this subject matter. FCP 32(6) and FRE 106 only require completeness that "in fairness ought to be considered at the same time". Defendants have not demonstrated why this testimony, in the name of fairness, must be considered at the same time as Plaintiff's designation. David 84:20 pages 84-86 are Warnings and what 11/12/2013 necessary for medical professional completeness. knew or should have known directly relate to consumer expectation. Witness's job responsibility included review of product labeling, so he had to have knowledge of this subject to do his job. See, e.g., 20:7-14. see also 91:13-17; 92:18-24. Witness's job also included assessing as part of health hazard evaluation whether the risk is obvious to the implanting physician. 8/29/12 deposition at 60:16-61:6. Witness made decisions and recommendations with respect to the Recovery regarding implanting physician's role in integrating risk information and making decisions. 7/29/14 deposition at 164:24- 165:6. Testimony designated by Bard establishes witness had knowledge of and was involved in warnings and the risk/benefit analysis of doctors related to same. E.g., 80:18-25. In fact, the witness conducted a focus group regarding how doctors evaluate the risk/benefit ratio with respect to the Recovery filter. See Bard's design[]ation, 140:1-19. Thus, witness has knowledge of this subject matter. The witness answered the question. The Federal Rules of Evidence do not prohibit a party from questioning witnesses about admissible documents the witness does not recall having seen before. “Personal knowledge of a fact ‘is not an absolute’ to Rule 602's foundational requirement . . . .”, United States v. Cuti, 702 F.3d. 453, 459 (2nd Cir. 2013). . “What if you had known “ questions are acceptable. Id., 459 (2nd Cir. 2013). FCP 32(6) and FRE 106 only require completeness that "in fairness ought to be considered at the same time". Defendants have not demonstrated why this testimony, in the name of fairness, must be considered at the same time as Plaintiff's designation. Ciavarella, 90:12- Admitted in Peterson David 90:16 11/12/2013 Ciavarella, 90:24- Admitted in Peterson David 91:17 11/12/2013 beginning with "it has to…" David 92:24 94-95 are 11/12/2013 necessary for completeness. Ciavarella, 104:16- The counters at Admitted in Peterson David 104:18 104-106 are 11/12/2013 beginning necessary for with "What completeness and is will not make MAUDE?" sense out of context. Ciavarella, 126:18- Rules 401, 402, Admitted in Peterson OVERRULED David 127:01 403 – This case Testimony involves the 11/12/2013 beginning does not involve a Recovery, which is the with "the…" fatal migration or predicate filter to the a Recovery Filter. G2. The G2, the G2x, This testimony is the Eclipse, and the overly prejudicial Meridian are the same and has no filter with the exception bearing on the of a removal hook on facts of this case. the G2X and The Court has electropolishing on the ruled this Eclipse and the anchors testimony is not on the Meridian. substantially Testimony is relevant to similar to the facts whether the filter []had in this case and, a defective design and therefore, should Bard's negligence, which be excluded. (See are at issue. The ECF No. 204, p. G2/G2X/Eclipse/Meridia 3-5.) n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 131:18- Counters at Admitted in Peterson David 131:23 131:6-12 are 11/12/2013 beginning necessary for with "one of completeness and the…" will not make context. Ciavarella, 154:11- Admitted in Peterson David 155:17 11/12/2013 beginning with "why is a perforation …" Ciavarella, 156:24- Admitted in Peterson David 157:03 11/12/2013 beginning with "we do know,…" Ciavarella, 157:04- Testimony admitted at David 157:13 Bard's request in 11/12/2013 Peterson Ciavarella, 161:21- Rules 401, 402, Admitted in Peterson OVERRULED David 162:05 403 – Testimony Testimony involves the 11/12/2013 does not involve Recovery, which is the filter at issue predicate filter to the and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter. on the Meridian. Testimony is relevant to whether the filter []had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia prejudice.

Ciavarella, 162:11- Rules 401, 402, Admitted in Peterson OVERRULED David 162:17 403 – Testimony Testimony involves the 11/12/2013 does not involve Recovery, which is the filter at issue predicate filter to the and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter. on the Meridian. Testimony is relevant to whether the filter filter had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 168:02- Rules 401, 402, Admitted in Peterson SUSTAIN David 168:09 403 – This Testimony involves the 11/12/2013 testimony violates Recovery, which is the the Court’s ruling predicate filter to the on the Motion in G2. The G2, the G2x, Limine. This case the Eclipse, and the does not involve a Meridian are the same fatal migration or filter with the exception a Recovery Filter. of a removal hook on overly prejudicial electropolishing on the and has no Eclipse and the anchors bearing on the on the Meridian. facts of this case. Testimony is relevant to The Court has whether the filter filter ruled this had a defective design testimony is not and Bard's negligence, substantially which are at issue. The similar to the facts G2/G2X/Eclipse/Meridia in this case and, n and the Recovery filter therefore, should suffered similar rates of be excluded. (See various failures and ECF No. 204, p. discussing the failures of 3-5.) the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 176:04- Rules 401, 402, Admitted in Peterson OVERRULED David 176:08 403 – Testimony Testimony involves the 11/12/2013 beginning does not involve Recovery, which is the with "the filter at issue predicate filter to the rates…" and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter, the on the Meridian. Recovery filter, or Testimony is relevant to the SNF filter. whether the filter filter had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia prejudice.

Ciavarella, 179:16- Rules 401, 402, Admitted in Peterson OVERRULED David 179:25 403 – Testimony Testimony involves the 11/12/2013 beginning does not involve Recovery, which is the with filter at issue predicate filter to the "eventually and/or failure G2. The G2, the G2x, didn't…" mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve a fatal Eclipse and the anchors migration or a on the Meridian. Recovery Filter. Testimony is relevant to This testimony is whether the filter filter overly prejudicial had a defective design and has no and Bard's negligence bearing on the which are at issue. The facts of this case. G2/G2X/Eclipse/Meridia The Court has n and the Recovery filter ruled this suffered similar rates of testimony is not various failures and substantially discussing the failures of similar to the facts the Recovery is directly in this case and, related to the therefore, should G2/G2X/Eclipse/Meridia be excluded. (See n. Any prejudice is not ECF No. 204, p. unfair. 3-5.) Defendants also object because this testimony violates a protective order on the Lehmann Report. This testimony violates Judge Campbell's ruling the consultant's report product. See, MDL docket 699. It would be highly prejudicial for this witness to testify about the consultant's report when Bard has no way to respond without waiving the work product privilege. Ciavarella, 180:11- Rules 401, 402, Admitted in Peterson OVERRULED David 180:25 403 – Testimony Testimony involves the 11/12/2013 beginning does not involve Recovery, which is the with "I'm filter at issue predicate filter to the asking…" and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve a fatal Eclipse and the anchors migration or a on the Meridian. Recovery Filter. Testimony is relevant to This testimony is whether the filter filter overly prejudicial had a defective design and has no and Bard's negligence bearing on the which are at issue. The facts of this case. G2/G2X/Eclipse/Meridia The Court has n and the Recovery filter ruled this suffered similar rates of testimony is not various failures and substantially discussing the failures of similar to the facts the Recovery is directly in this case and, related to the therefore, should G2/G2X/Eclipse/Meridia be excluded. (See n. Any prejudice is not ECF No. 204, p. unfair. 3-5.) Defendants also object because this testimony violates a protective order Report. This testimony violates Judge Campbell's ruling the consultant's report is protected work product. See, MDL docket 699. It would be highly prejudicial for this witness to testify about the consultant's report when Bard has no way to respond without waiving the work product privilege. Ciavarella, 181:05- Answer to which Admitted in Peterson OVERRULED David 181:08 no question is Testimony involves the 11/12/2013 designated. Rules Recovery, which is the 401, 402, 403 – predicate filter to the Testimony does G2. The G2, the G2x, not involve filter the Eclipse, and the at issue and/or Meridian are the same failure mode at filter with the exception issue; Irrelevant of a removal hook on and any probative the G2X and value outweighed electropolishing on the by prejudicial Eclipse and the anchors effect. This case on the Meridian. does not involve a Testimony is relevant to fatal migration or whether the filter []had a Recovery Filter. a defective design and This testimony is Bard's negligence, which overly prejudicial are at issue. The and has no G2/G2X/Eclipse/Meridia bearing on the n and the Recovery filter facts of this case. suffered similar rates of The Court has various failures and ruled this discussing the failures of testimony is not the Recovery is directly substantially related to the similar to the facts G2/G2X/Eclipse/Meridia in this case and, be excluded. (See unfair. ECF No. 204, p. 3-5.) Defendants also object because this testimony violates a protective order on the Lehmann Report. This testimony violates Judge Campbell's ruling the consultant's report is protected work product. See, MDL docket 699. It would be highly prejudicial for this witness to testify about the consultant's report when Bard has no way to respond without waiving the work product privilege. (See 181:9-25) Ciavarella, 182:12- Rules 401, 402, Admitted in Peterson OVERRULED David 182:21 403 – Testimony Testimony involves the 11/12/2013 beginning does not involve Recovery, which is the with "you filter at issue predicate filter to the had…" and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve a fatal Eclipse and the anchors migration or a on the Meridian. Recovery Filter. Testimony is relevant to This testimony is whether the filter filter overly prejudicial had a defective design and has no and Bard's negligence, bearing on the which are at issue. The The Court has n and the Recovery filter ruled this suffered similar rates of testimony is not various failures and substantially discussing the failures of similar to the facts the Recovery is directly in this case and, related to the therefore, should G2/G2X/Eclipse/Meridia be excluded. (See n. Any prejudice is not ECF No. 204, p. unfair. 3-5.) Ciavarella, 186:05- Rules 401, 402 Admitted in Peterson OVERRULED David 186:11 and 403 – this 11/12/2013 beginning testimony all with " So, relates to the you Recovery filter know,…" and Dr. Lehmann’s analysis. Ciavarella, 265:18- Rules 401, 402 Admitted in Peterson OVERRULED David 265:21 and 403. Testimony does not 11/12/2013 Testimony does involve failure modes. not involve the Testimony is only filter or failure describing the exhibit modes at issue. Ciavarella, 266:13- Rules 401, 402 Admitted in Peterson OVERRULED David 266:22 and 403. Testimony does not 11/12/2013 Testimony does involve failure modes. not involve filter Testimony is or failure modes establishing who Cindi at issue. Walcott is and the timeframe. Ciavarella, 267:11- Rules 401, 402 Admitted in Peterson OVERRULED David 269:04 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. Rules medical community. 801/802 The testimony goes to Testimony is the failure to warn and hearsay. Bard's negligence. Defendants need to identify which portion of the testimony is The document is a Bard business record and statement of a party opponent. FRE 801(d)(2) & 803(6). Ciavarella, 271:08- Rules 401, 402, Admitted in Peterson OVERRULED David 271:21 403 – Testimony Testimony involves the 11/12/2013 relates to Recovery, which is the irrelevant and predicate filter to the prejudicial G2. The G2, the G2x, evidence regarding the Eclipse, and the Bard’s conduct Meridian are the same related to the filter with the exception Recovery Filter. of a removal hook on Irrelevant and any the G2X and probative value electropolishing on the outweighed by Eclipse and the anchors prejudicial effect. on the Meridian. Testimony is relevant to whether the filter filter had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. The testimony also concerns a safer alternative design, the SNF. Ciavarella, 272:05- Rules 401, 402 Admitted in Peterson OVERRULED David 272:15 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to the failure to warn, alternative design.

Ciavarella, 272:24- Rules 401, 402 Admitted in Peterson OVERRULED David 273:09 and 403. Testimony goes to a 11/12/2013 ending at Testimony does failure mode known to "yes." not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to design defect, failure to warn and negligence. Ciavarella, 274:09- Rules 401, 402 Admitted in Peterson OVERRULED David 275:06 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to design defect, failure to warn and negligence. Ciavarella, 275:19- Rules 401, 402 Admitted in Peterson OVERRULED David 276:04 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to design defect, failure to warn and negligence. Ciavarella, 277:11- Rules 401, 402 Admitted in Peterson OVERRULED David 277:23 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to design defect, failure to warn and negligence. David 281:15 403 – Testimony Testimony involves the 11/12/2013 does not involve Recovery, which is the filter at issue predicate filter to the and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter, failure on the Meridian. modes at issue, or Testimony is relevant to use of a whether the filter filter permanent filter. had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 282:02- Rules 401, 402, Admitted in Peterson OVERRULED David 282:08 403 – Testimony Testimony involves the 11/12/2013 does not involve Recovery, which is the filter at issue predicate filter to the and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter, failure on the Meridian. modes at issue, or Testimony is relevant to use of a whether the filter filter permanent filter. had a defective design and Bard's negligence, which are at issue. The n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 283:05- Rules 401, 402, Admitted in Peterson OVERRULED David 283:14 403 – Testimony Testimony involves the 11/12/2013 does not involve Recovery, which is the filter at issue predicate filter to the and/or failure G2. The G2, the G2x, mode at issue; the Eclipse, and the Irrelevant and any Meridian are the same probative value filter with the exception outweighed by of a removal hook on prejudicial effect. the G2X and This case does not electropolishing on the involve the G2 Eclipse and the anchors filter, failure on the Meridian. modes at issue, or Testimony is relevant to use of a whether the filter filter permanent filter. had a defective design and Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. David 359:20 403 – Testimony Testimony is not related 11/12/2013 beginning relates to to a particular filter or with "on irrelevant and failure mode. The this prejudicial testimony shows that team…" evidence regarding David Ciavarella was the Bard’s conduct only medical doctor related to the evaluating filter failures Recovery Filter. and catastrphic events Irrelevant and any caused by Bard IVC probative value fitlers. Testimony outweighed by involves the Recovery, prejudicial effect. which is the predicate Rules 401, 402, filter to the G2. The G2, 403 – Testimony the G2x, the Eclipse, does not involve and the Meridian are filter at issue the same filter with the and/or failure exception of a removal mode at issue; hook on the G2X and Irrelevant and any electropolishing on the probative value Eclipse and anchors of outweighed by the Meridian. prejudicial effect. Testimony is relevant to This case does not whether the filter had a involve the defective design and Recovery filter. Bard's negligence, which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. David 362:24 403 – Testimony Testimony involves the 11/12/2013 beginning relates to Recovery, which is the with "you irrelevant and predicate filter to the wrote:…" prejudicial G2. The G2, the G2x, evidence regarding the Eclipse, and the Bard’s conduct Meridian are the same related to the filter with the exception Recovery Filter. of a removal hook on Irrelevant and any the G2X and probative value electropolishing on the outweighed by Eclipse and anchors of prejudicial effect. the Meridian. The Rules 401, 402, testimony establishes 403 – Testimony that the witness does not involve (medical director of filter at issue Bard at time of and/or failure Recovery) believes that mode at issue; it is not possible to Irrelevant and any predict which patients' probative value filters will fracture, but outweighed by that more frequent prejudicial effect. monitoring could This case does not prevent some adverse involve the events by discovery of Recovery filter. abnormal placements and/or of fractures. Despite witness's conveyance of this opinion to Bard, Bard has not communicated this to physicians, to the witness's knowledge. Ciavarella, 363:08- Rules 401, 402, Admitted in Peterson OVERRULED David 363:16 403 – Testimony Testimony involves the 11/12/2013 relates to Recovery, which is the irrelevant and predicate filter to the prejudicial G2. The G2, the G2x, evidence regarding the Eclipse, and the Bard’s conduct Meridian are the same related to the filter with the exception Recovery Filter. of a removal hook on Irrelevant and any the G2X and probative value electropolishing on the outweighed by Eclipse and anchors of prejudicial effect. the Meridian. The 403 – Testimony that the witness does not involve (medical director of filter at issue Bard at time of and/or failure Recovery) believes that mode at issue; it is not possible to Irrelevant and any predict which patients' probative value filters will fracture, but outweighed by that more frequent prejudicial effect. monitoring could This case does not prevent some adverse involve the events by discovery of Recovery filter. abnormal placements and/or of fractures. Despite witness's conveyance of this opinion to Bard, Bard has not communicated this to physicians, to the witness's knowledge. The testimony is relevant to Bard's negligence and the failure to warn claims. There is no unfair prejudice. Ciavarella, 364:04- Rules 401, 402 Admitted in Peterson OVERRULED David 365:02 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to consumer expectation. Furthermore the testimony involves migration which is the failure more in question. There is no unfair prejudice. Ciavarella, 366:01- Rules 401, 402 Admitted in Peterson OVERRULED David 367:05 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared with consumers or the at issue. The testimony goes to consumer expectation. Furthermore the testimony involves migration and tilt which are the failure modes in question. There is no unfair prejudice. Ciavarella, 367:22- Rules 401, 402 Admitted in Peterson OVERRULED David 368:05 and 403. Testimony goes to a 11/12/2013 Testimony does failure mode known to not involve filter Bard but not shared or failure modes with consumers or the at issue. medical community. The testimony goes to consumer expectation. Furthermore the testimony involves perforation which is the failure more in question. There is no unfair prejudice.

DEPON- DEF PL DEF RESPONSE TO COURT ENT COUNTE OBJECTIONS OBJECTIONS RULING R Ciavarella, 43:15- David 43:24 11/12/2013 Ciavarella, 57:02- David 57:16 11/12/2013 Ciavarella, 58:23- David 59:12 11/12/2013 Ciavarella, 60:09- FRE 403; Rules Witness is a medical OVERRULED David 61:17 601/602 & 701. doctor with years of 11/12/2013 Lacks foundation, experience with IVC witness does not filters. He has proper have personal foundation and personal subject matter; the designated witness not an testimony. expert in this subject matter. Ciavarella, 84:22- FRE 403: The designation is not SUSTAIN David 85:03 misleading and misleading -- it is 11/12/2013 optional disjointed because subject to completeness: Plaintiff's counsel objection need to add interrupted the witness witness answers to and then asked the this at 85:16 & court reporter to reread 86:8-8 (Witness the question. says "I'm not sure." and "I don't know how to answer that question.") Ciavarella, 86:08- FRE 403: The designation is not SUSTAIN David 86:16 misleading and misleading -- it is 11/12/2013 optional disjointed because begin at completeness: Plaintiff's counsel whenever need to add interrupted the witness witness answers to and then asked the this at 85:16 & court reporter to reread 86:8-8 (Witness the question. says "I'm not sure." and "I don't know how to answer that question.") Ciavarella, 89:23- Witness is merely OVERRULED David 90:10 Lack of attempting to answer 11/12/2013 foundation. The the question posed by witness cannot Plaintiff's counsel, and speak to what his answer specifically is other device limited to the idea that manufactures "Bard has no place in should or should that individual doctor- not do. patient decision-making process." David 95:01 11/12/2013 Ciavarella, 104:19- Rules 601/602 & Witness is asked by SUSTAIN David 105:10 701. Lacks Plaintiff's counsel 11/12/2013 foundation, specifically for his witness does not personal thoughts on have personal why the MAUDE knowledge of database exists and subject matter; various aspects of that witness not an database. Plaintiff has expert in this designated the witness' subject matter. testimony regarding Witness MAUDE, as well. repeatedly testified "probably" indicating lack of knowledge. Ciavarella, 106:09- David 106:12 11/12/2013 Ciavarella, 106:15- 106:24-25: FRE SUSTAIN David 106:25 802: hearsay; 11/12/2013 Judge Campbell sustained this objection in the MDL. Dkt. 10403 page 5. Ciavarella, 127:06- David 127:08 11/12/2013 subject to objection Ciavarella, 127:11- David 127:14 11/12/2013 subject to objection David 131:12 11/12/2013 Ciavarella, 155:18- FRE 401, 402, Testimony contains a OVERRULED David 155:21 403: testimony full question and a full 11/12/2013 cut off in middle answer, and is the subject to of question; continuation of objection improper Plaintiff's counsel's own testimony questioning on potential complications with IVC filters, which is directly relevant. Ciavarella, 159:09 Defedants have No objection noted STRIKE David subject to not moved for 11/12/2013 objection optional completeness. Nor would it be approiate her. Ciavarella, 186:17- David 186:21 11/12/2013 Ciavarella, 186:23- David 186:25 11/12/2013

DEPON- PL DEF PL RESPONSE TO COURT ENT COUNTERS OBJECTIONS OBJECTIONS RULING TO COUNTERS Ciavarella, 155:22- David 156:02 11/12/2013 Ciavarella, 156:08- David 156:14 11/12/2013 Theoreticall y David 273:19 for hearsay witness agrees with 11/12/2013 p[r]ior testimony and does not call for hearsay. Ciavarella, 276:05- Rules 401, 402, Testimony involves the OVERRULED David 277:05 403 – Testimony Recovery, which is the 11/12/2013 does not involve predicate filter to the beginning filter at issue G2. The G2, the G2x, with when and/or failure the Eclipse, and the the mode at issue; Meridian are the same Irrelevant and any filter with the exception probative value of a removal hook on outweighed by the G2X and prejudicial effect. electropolishing on the This case does not Eclipse and the anchors involve a G2 filter on the Meridian. or a Recovery Testimony is relevant to filter. whether the filter []had a defective design and Bard's negligence which are at issue. The G2/G2X/Eclipse/Meridia n and the Recovery filter suffered similar rates of various failures and discussing the failures of the Recovery is directly related to the G2/G2X/Eclipse/Meridia n. There is no unfair prejudice. Ciavarella, 284:04- This question and David 284:16 answer has nothing to 11/12/2013 do with other lawsuit but is a refer[e]nce to Dr. Ciavarella's 12/27/2005 email questioning why the G2 was being sold given its early failures when the SNF was available and did not present such issues. The testimony is relevant to design failure to warn.

Ciavarella, 299:09- David 300:07 11/12/2013 Ciavarella, 371:23- Rules 601/602 & The Federal Rules of RESERVE David 372:03 612 Witness does Evidence do not 11/12/2013 not have personal prohibit a party from knowledge of questioning witnesses document about admissible Witness was documents the witness shown a does not recall having document, was seen before. “Personal not familiar with knowledge of a fact ‘is it and testified not an absolute’ to Rule that he/she does 602's foundational not have personal requirement . . . .”, knowledge about United States v. Cuti, 702 it or the F.3d. 453, 459 (2nd Cir. circumstances. 2013). . “What if you had known “ questions are acceptable. Id., 459 (2nd Cir. 2013). The question is summing up the prior testimony and is not referencing any specific document. . Ciavarella, 372:05 Rules 601/602 & The Federal Rules of RESERVE David 612 Witness does Evidence do not 11/12/2013 not have personal prohibit a party from knowledge of questioning witnesses document about admissible Witness was documents the witness shown a does not recall having document, was seen before. “Personal not familiar with knowledge of a fact ‘is it and testified not an absolute’ to Rule that he/she does 602's foundational not have personal requirement . . . .”, knowledge about United States v. Cuti, 702 it or the F.3d. 453, 459 (2nd Cir. circumstances. 2013). . “What if you had known “ questions (2nd Cir. 2013). The question is summing up the prior testimony and is not referencing any specific document.

Accordingly, IT IS ORDERED that the parties’ request for rulings on objections to certain designations is GRANTED, and the objections are sustained in part and overruled in part as provided above. Entered this 4th day of June, 2021. BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge