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 John DeFord. June 2, 2016, Deposition: DEPON- DEF AFFIRM PL OBJECTIONS DEF RESPONSE TO COURT ENT OBJECTIONS RULING If Plainitff is RESERVE as allowed to to defendants’ present use of testimony about affirmative the Recovery designation and the earlier from June 2, generation 2016, filters, Bard deposition. should be able to present testimony to put it in context. Dr. DeFord was disclosed on a non-retained expert on the issues about which he testifies.

DeFord, 10:04-10:05 John 06/02/2016 DeFord, 13:06-13:15 John 06/02/2016 DeFord, 14:21-15:20 John 06/02/2016 DeFord, 16:06-18:18 John 06/02/2016 DeFord, 20:22-21:05 John 06/02/2016 DeFord, 21:13-21:17 Objection Relevance Plaintiff objects to OVERRULED John 402/403: The clinical testimony regarding except add 06/02/2016 research and results of filters other than the 21:18-21:24 another product are not Meridian Filter at issue relevant, are a waste of in this case, but yet time, and will be designates testimony confusing or mislead from various Bard the jury. employees and former employees, including Mr. DeFord, regarding Bard IVC filters such as the Recovery and the G2 Filter, which preceded the Meridian Filter by several designs, and in the case of the Recovery, preceded the timeline of this case by a decade. If Plaintiff is permitted to designate such irrelevant testimony, Bard must be permitted to do so as well. DeFord, 22:01-23:18 Objection Relevance Plaintiff objects to OVERRULED John 402/403: The clinical testimony regarding 06/02/2016 research and results of filters other than the another product are not Meridian Filter at issue relevant, are a waste of in this case, but yet time, and will be designates testimony confusing or mislead from various Bard the jury. employees and former employees, including Mr. DeFord, regarding Bard IVC filters such as the Recovery and the G2 Filter, which preceded the Meridian Filter by several designs, and in the case of the Recovery, preceded the timeline of this case by a decade. If Plaintiff is permitted to designate such irrelevant testimony, Bard must be permitted to do so as well DeFord, 24:19-24:22 John 06/02/2016 DeFord, 78:12-78:16 John 06/02/2016 DeFord, 78:19-79:18 John 06/02/2016 DEPON- PL DEF OBJECTIONS PL RESPONSE TO COURT ENT COUNTERS OBJECTIONS RULING DeFord, 288:14-288:20 Bard chose to market the John Meridian filter using the 06/02/2016 510(k) process which relied upon the Recovery filter as the predicate. All G2 filter platform filters, including the Meridian trace their design history to the Recovery filter and the defects in the Meridian design only can be understood only in the context of the entire filter-line development. Testimony regarding the Recovery filter’s complications, testing and design is relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims DeFord, 288:23-289:12 Bard chose to market the John Meridian filter using the 06/02/2016 510(k) process which relied upon the Recovery filter as the predicate. All G2 filter platform filters, including the Meridian trace their design history to the Recovery filter and the defects in the Meridian design only can be understood only in the context of the entire filter-line development. Testimony regarding the Recovery filter’s complications, testing and design is relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims August 15, 2019, Deposition: DEPON- DEF PL OBJECTIONS DEF RESPONSE TO COURT ENT AFFIRM OBJECTIONS RULING Running Objection to FRE Plaintiff has designated OVERRULED 701 & Relevance: Plaintiff much testimony from objects to this deposition other of Bard's witnesses on the grounds that this regarding the testing, witness has not been development, marketing, designated as an expert and clearance of various witness and any testimony of Bard's filters not in violation of FRE 701, involved in Plaintiff's attempting to elicit expert case. If Plaintiff is able to opinions from a lay witness, designate this irrelevant should be stricken. testimony regarding Additionally, Plaintiff Bard's other filters, Bard objects to any testimony must be permitted to do regarding the Bard Denali so as well. Moreover, the filters as they have no witness is not offering relevance to Plaintiff's case. expert testimony. He has Plaintiff makes his counter- extensive personal designations in the event experience in the medical the court overrules his device industry, with IVC objections. filters generally, and specifically with Bard's IVC filters, and his testimony is based on personal knowledge of events in which he was involved. Further, Dr. DeFord was designated as a non-retained expert in this case. DeFord, 7:16-16:09 (11:17-16:09) FRE 401: The witness has OVERRULED John not relevant previously testified to his 08/15/2019 (16:07-16:09) Lack of lengthy experience in the foundation; FRE 602 medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 16:12-21:11 (16:12-16:24) Lack of The witness has SUSTAIN as John foundation; FRE 602 previously testified to his to 17:23-18:1 08/15/2019 (16:25-17:07) Lack of lengthy experience in the (beginning foundation; FRE 602. medical device industry. with “And Opinion testimony by a lay He is speaking from so”), 18:19- witness; FRE 701. personal knowledge of 19:25. events that he was Otherwise involved in. Through the course of his career, the OVERRULED witness has had reason to keep abreast of medical literature and the medical community's experience as a whole with IVC filters in general and providing testimony regarding that experience and knowledge is directly relevant. DeFord, 21:14-22:16 John 08/15/2019 DeFord, 22:19-24:01 John 08/15/2019 DeFord, 24:04-24:07 John 08/15/2019 DeFord, 24:09-24:18 John 08/15/2019 DeFord, 24:21-26:01 John 08/15/2019 DeFord, 26:04-26:12 John 08/15/2019 DeFord, 26:14-27:09 John 08/15/2019 DeFord, 27:12-28:18 (28:16-28:18) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness is entitled to witness; FRE 701. explain his answer. The witness has previously testified to his lengthy experience in the medical device industry and with IVC filters in general. He is speaking from personal knowledge of events that he was involved in. DeFord, 28:21-30:18 (28:21-29:21) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The testimony is directly witness; FRE 701. responsive to the question asked. The wtiness is entitled to explain his answer. The witness has previously testified to his lengthy experience in the medical device industry and with IVC filters in general. He is speaking from personal knowledge of events that he was involved in. The witness is discussing facts that are well-established within the medical community and to which Plaintiff's own expert witnesses agree. DeFord, 30:20-30:25 OVERRULED John 08/15/2019 DeFord, 31:23-32:10 (31:23-32:05) Lack of Dr. DeFord was disclosed OVERRULED John personal knowledge; FRE as a non-retained expert. 08/15/2019 602. speculation. Opinion The witness has testimony by a lay witness; previously testified to his FRE 701. lengthy experience in the (32:06-32:10) Lack of medical device industry. personal knowledge; FRE He is speaking from 602. speculation. Opinion personal knowledge of testimony by a lay witness; events that he was FRE 701. involved in. DeFord, 32:13-32:20 (32:13-32:18) Lack of Dr. DeFord was disclosed OVERRULED John personal knowledge; FRE as a non-retained expert. 08/15/2019 602. speculation. Opinion The witness has testimony by a lay witness; previously testified to his FRE 701. lengthy experience in the (32:19-32:20) vague: medical device industry. unclear as to what "evolved He is speaking from over time" means. personal knowledge of events that he was involved in. The question is not vague. DeFord, 32:22-33:06 (32:22-32:24) vague: Dr. DeFord was disclosed OVERRULED John unclear as to what "evolved as a non-retained expert. 08/15/2019 over time" means. The witness has previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The question is not vague. DeFord, 33:11-33:25 (33:24-33:08) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in, as well as the medical literature that he is aware of on the topic of central venous pressure, which the Plaintiffs put directly at issue in this litigation. DeFord, 34:02-34:08 (34:02-34:08) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. DeFord, 37:03-37:14 (37:03-37:14) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE 602. Speculation. Opinion testimony by a lay witness; FRE 701. No scientific proof that filters including the Recovery filters save lives. DeFord, 38:14-39:17 (38:14-39:17) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay witness; FRE 701. DeFord, 39:19-40:20 (39:19-40:16) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay witness; FRE 701. Speculation. Narrative. (40:17-40:20) Lack of foundation; FRE 602. Opinion testimony by a lay witness; FRE 701. DeFord, 40:23-42:16 (40:23-41:19) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Speculation. Opinion testimony by a lay witness; FRE 701. (42:14-42:16) Leading. Lack of foundation; Opinion testimony by a lay witness; FRE 701. DeFord, 42:19-43:18 (42:19-42:21) Leading. Dr. DeFord was disclosed OVERRULED John Lack of foundation; as a non-retained expert. 08/15/2019 Opinion testimony by a lay witness; FRE 701. DeFord, 50:08-50:12 50:08-50:25) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE The Plaintiff has put 602. Opinion testimony by these matters directly at a lay witness; FRE 701. issue in this litigation. Speculation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 50:15-50:25 50:08-50:25) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE The Plaintiff has put 602. Opinion testimony by these matters directly at a lay witness; FRE 701. issue in this litigation. Speculation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 51:01-51:05 50:08-50:25) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE The Plaintiff has put 602. Opinion testimony by these matters directly at a lay witness; FRE 701. issue in this litigation. Speculation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 51:08-51:16 (51:01-51:12) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE The Plaintiff has put 602. Opinion testimony by these matters directly at a lay witness; FRE 701. issue in this litigation. Speculation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 51:18-52:19 (51:18-51:20) Lack of Dr. DeFord was disclosed OVERRULED John foundation; Lack of as a non-retained expert. 08/15/2019 personal knowledge; FRE The Plaintiff has put 602. Opinion testimony by these matters directly at a lay witness; FRE 701. issue in this litigation. Speculation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 54:11-54:16 (54:11-54:16) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The Plaintiff has put witness; FRE 701. these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 54:19-55:06 (54:19-55:06) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 71:08-71:14 (71:08-71:14) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 71:16-72:02 (71:16-71:21) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his (71:25-72:02) Lack of lengthy experience in the foundation; FRE 602. medical device industry. Opinion testimony by a lay He is speaking from witness; FRE 701. personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 72:04-72:22 (71:04-72:22) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The witness has witness; FRE 701. previously testified to his lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 72:25-74:08 (72:25-73:10) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The Court denied witness; FRE 701. Plainitff’s MIL on this (73:18-73:24) Object to issue. FDA testimony based on Plaintiff's 510k MIL. FRE 403- & 401 (74:06-74:08) Lack of foundation; FRE 602. Opinion testimony by a lay witness; FRE 701. DeFord, 74:11-75:09 (74:11-74:16) Lack of Dr. DeFord was disclosed OVERRULED John foundation; FRE 602. as a non-retained expert. 08/15/2019 Opinion testimony by a lay The Court denied witness; FRE 701. Plainitff’s MIL on this (75:06-75:09) Object to issue. FDA testimony based on Plaintiff's 510k MIL. FRE 403- & 401 DeFord, 75:11-75:12 (75:11-75:12) Object to The Court denied OVERRULED John FDA testimony based on Plaintiff’s MIL on this 08/15/2019 Plaintiff's 510k MIL. FRE issue. 403- & 401 DeFord, 75:14-81:10 (75:14) Object to FDA Dr. DeFord was disclosed SUSTAIN as John testimony based on as a non-retained expert. to 77:10- 08/15/2019 Plaintiff's 510k MIL FRE The witness has 78:12 and 403- & 401 previously testified to his 80:17-80:25. (77:10-77:15) Lack of lengthy experience in the Otherwise foundation; lack of personal medical device industry. OVERRULED knowledge; FRE 602. He is speaking from Opinion testimony by a lay personal knowledge of witness; FRE 701. events that he was speculation involved in. The Plaintiff (77:16-77:24) Lack of has put these matters foundation; lack of personal directly at issue in this knowledge; FRE 602. litigation. Defendants are Opinion testimony by a lay entitled to respond with a witness; FRE 701. witness with extensive speculation background and (77:25-78:06) Lack of experience with these foundation; lack of personal matters. Defendants knowledge; FRE 602. incorporate by reference Opinion testimony by a lay their response to witness; FRE 701. Plaintiff's 510k motion in speculation limine. (80:20-80:25) Lack of foundation; lack of personal knowledge; FRE 602. Opinion testimony by a lay witness; FRE 701. speculation DeFord, 81:13-82:02 (81:13-82:02) Lack of Dr. DeFord was disclosed OVERRULED John foundation; lack of personal as a non-retained expert. 08/15/2019 knowledge; FRE 602. Opinion testimony by a lay witness; FRE 701. speculation DeFord, 82:05-82:06 John 08/15/2019 DeFord, 82:10-82:25 John 08/15/2019 DeFord, 83:03-83:14 John 08/15/2019 DeFord, 83:19-84:21 John 08/15/2019 DeFord, 84:24-86:01 (87:10-87:11) Lack of The witness has SUSTAIN as John foundation; lack of personal previously testified to his to 84:17- 08/15/2019 knowledge; FRE 602. lengthy experience in the 84:21. speculation. medical device industry. Otherwise He is speaking from OVERRULED personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 91:03-92:08 (91:02) Lack of foundation; OVERRULED John FRE 602. 08/15/2019 DeFord, 92:10-92:13 (92:12-92:13) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 92:15-93:15 (92:15-92:25) Lack of The witness has OVERRULED John foundation; previously testified to his 08/15/2019 (93) FRE 401/403, lengthy experience in the testimony regarding the medical device industry. Denali filter, which is not He is speaking from at issue is not relevant. personal knowledge of (94:01-94:25) Object to events that he was FDA testimony based on involved in. The Plaintiff Plaintiff's 510k MIL FRE has put these matters 403- & 401, FRE 401/403, directly at issue in this testimony regarding the litigation. Defendants are Denali filter, which is not entitled to respond with a at issue is not relevant. witness with extensive (95:11-95:13) Lack of background and foundation; lack of personal experience with these knowledge; FRE 602. matters. Opinion testimony by a lay witness; FRE 701. speculation. Misleading as the study had not concluded. FRE 403 FRE 401/403, testimony regarding the Denali filter, which is not at issue is not relevant. DeFord, 97:18-97:23 (97:21-97:23) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 Opinion testimony by a lay lengthy experience in the witness; FRE 701. medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 98:01-98:07 (98:01-98:04) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 Opinion testimony by a lay lengthy experience in the witness; FRE 701. medical device industry. (98:05-98:07) Lack of He is speaking from foundation; FRE 602. personal knowledge of Opinion testimony by a lay events that he was witness; FRE 701. involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 98:10-99:01 (98:10-98:16) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 (98:24-99:01) Lack of lengthy experience in the foundation; FRE 602. medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 99:04-99:07 (99:04-99:07) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 99:09-99:13 (99:09-99:13) Lack of The witness has OVERRULED John foundation; FRE 602. previously testified to his 08/15/2019 Opinion testimony by a lay lengthy experience in the witness; FRE 701. medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 99:15- (99:15-99:17) Lack of The witness has SUSTAIN as John 100:06 foundation; FRE 602. previously testified to his to 100:05- 08/15/2019 Opinion testimony by a lay lengthy experience in the 100:07. witness; FRE 701. medical device industry. Otherwise (100:05-100:06) Lack of He is speaking from OVERRULED foundation; FRE 602. personal knowledge of Opinion testimony by a lay events that he was witness; FRE 701. involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 100:08- (100:08-100:09) Lack of The witness has SUSTAIN as John 100:14 foundation; FRE 602. previously testified to his to 100:08- 08/15/2019 Opinion testimony by a lay lengthy experience in the 100:09. witness; FRE 701. medical device industry. Otherwise (100:10-100:14) Lack of He is speaking from OVERRULED foundation; FRE 602. personal knowledge of Opinion testimony by a lay events that he was witness; FRE 701. involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 100:16- (100:16) Lack of The witness has OVERRULED John 101:02 foundation; FRE 602. previously testified to his as to 100:16. 08/15/2019 Opinion testimony by a lay lengthy experience in the Otherwise witness; FRE 701. medical device industry. SUSTAIN (100:17-100:23) Leading. He is speaking from Counsel in testifying. personal knowledge of (100:24-101:02) Lack of events that he was foundation; FRE 602. involved in. The Plaintiff Opinion testimony by a lay has put these matters witness; FRE 701. directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 101:04- (101:04) Lack of The witness has SUSTAIN as John 101:08 foundation; FRE 602. previously testified to his to 101:04. 08/15/2019 Opinion testimony by a lay lengthy experience in the Otherwise witness; FRE 701. medical device industry. OVERRULED (101:05-101:08) Lack of He is speaking from foundation; FRE 602. personal knowledge of Opinion testimony by a lay events that he was witness; FRE 701. involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 101:10- (101:10-101:16) Lack of The witness has OVERRULED John 101:16 foundation; FRE 602. previously testified to his 08/15/2019 Opinion testimony by a lay lengthy experience in the witness; FRE 701. medical device industry. (101:11-101:25) Relevance. He is speaking from FRE 401 personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters. DeFord, 101:18- (101:18-101:25) Relevance. The witness has OVERRULED John 101:25 FRE 401 previously testified to his 08/15/2019 lengthy experience in the medical device industry. He is speaking from personal knowledge of events that he was involved in. The Plaintiff has put these matters directly at issue in this litigation. Defendants are entitled to respond with a witness with extensive background and experience with these matters.

DEPON- PL DEF OBJECTIONS PL RESPONSE TO COURT ENT COUNTERS OBJECTIONS RULING DeFord, 102:20- John 103:23 08/15/2019 DeFord, 104:20- John 105:17 08/15/2019 DeFord, 106:04- John 106:07 08/15/2019 DeFord, 106:09- John 106:15 08/15/2019 DeFord, 106:17- John 107:14 08/15/2019 DeFord, 108:05- Object to the introduction Use of the article is OVERRULED John 108:21 of the article on the appropriate under FRE 08/15/2019 stopping at grounds that it is hearsay. 803(18), The article is Correct Also – not a counter to any used a demonstrative testimony designated by aide and Plaintiff’s will Defendants. not ask for admission as an exhibit. DeFord, 109:02- Object to the introduction Use of the article is SUSTAIN John 109:21 of the article on the appropriate under FRE 08/15/2019 grounds that it is hearsay. 803(18), The article is Also – not a counter to any used a demonstrative testimony designated by aide and Plaintiff’s will Defendants. not ask for admission as an exhibit. DeFord, 109:23 Object to the introduction Use of the article is SUSTAIN John of the article on the appropriate under FRE 08/15/2019 grounds that it is hearsay. 803(18), The article is Also – not a counter to any used a demonstrative testimony designated by aide and Plaintiff’s will Defendants. not ask for admission as an exhibit. DeFord, 110:04- Object to the introduction Use of the article is OVERRULED John 110:13 of the article on the appropriate under FRE 08/15/2019 grounds that it is hearsay. 803(18), The article is Also – not a counter to any used a demonstrative testimony designated by aide and Plaintiff’s will Defendants. not ask for admission as an exhibit. DeFord, 110:15 Not a counter to any OVERRULED John "Yes" testimony designated by 08/15/2019 Defendants DeFord, 110:21- Not a counter to any OVERRULED John 111:25 testimony designated by 08/15/2019 Defendants DeFord, 112:08- John 115:21 08/15/2019 DeFord, 116:13- Counsel is testifying – he is OVERRULED John 117:19 reading from an article and except add the 08/15/2019 the only question is “did I rest of 117:19- stopping at read it correctly?” 117:25. correctly DeFord, 127:02- Rules 401, 402, 403 – This Bard is presenting the OVERRULED John 127:23 violoates the Court’s Order testimony of this witness 08/15/2019 on Recovery migration and he discusses the deaths. This testimony is Recovery filter overly prejudicial and has extensively. Plaintiff’s no bearing on the facts of cross is within the scope this case. The Court has of the direct. In addition, ruled this testimony is not Bard chose to market the substantially similar to the Meridian filter using the facts in this case and, 510(k) process which therefore, should be relied upon the Recovery excluded. (See ECF No. filter as the predicate. All 204, p. 3-5.) G2 filter platform filters, including the Meridian trace their design history to the Recovery filter and the defects in the Meridian design only can be understood only in the context of the entire filter-line development. Testimony regarding the Recovery filter’s complications, testing and design is relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims

DeFord, 135:19- Rules 601/602 & 612. The Federal Rules of SUSTAIN John 136:08 Witness does not have Evidence do not prohibit 08/15/2019 personal knowledge of a party from questioning document. Witness was witnesses about shown a document, was not admissible documents the familiar with it and testified witness does not recall that he/she does not have having seen before. personal knowledge about “Personal knowledge of a it or the circumstances. fact ‘is not an absolute’ Rules 601/602 & 612. to Rule 602's Lacks foundation, witness foundational requirement does not have personal . . . .”, United States v. knowledge of subject Cuti, 702 F.3d. 453, 459 matter, calls for speculation (2nd Cir. 2013). . “What by the witness. Rules 401, if you had known “ 402, 403 – Testimony questions are acceptable. relates to irrelevant and Id., 459 (2nd Cir. 2013). prejudicial evidence The witness has been regarding Bard’s conduct called by Bard as its related to the Recovery Executive VP and Chief Filter. Irrelevant and any Technology officer with probative value outweighed over 15 and years of by prejudicial effect. The experience with the witness testified that he has company and its IVC never seen the document filters. The information before. See 135:8-135:15. discussed is or should be within the scope of his employment and knowledge. Testimony regarding the Recovery filter’s complications, testing and design is relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims. The testimony is relevant and not unfairly prejudicial. DeFord, 155:12- Rules 401, 402, 403 – This The witness has been SUSTAIN John 155:22 violates the Court’ s ruling called by Bard as its 08/15/2019 on the MIL on Recovery Executive VP and Chief migration deaths. This case Technology officer with does not involve a fatal over 15 and years of migration or a Recovery experience with the Filter. This testimony is company and its IVC overly prejudicial and has filters. The information no bearing on the facts of discussed is or should be this case. The Court has within the scope of his ruled this testimony is not employment and substantially similar to the knowledge. Testimony facts in this case and, regarding the Recovery therefore, should be filter’s complications, testing and design is relevant and is not excluded. (See ECF No. outweighed by any 204, p. 3-5.) prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims. The testimony is relevant and not unfairly prejudicial. DeFord, 156:04- Rules 401, 402, 403 – This The witness has been OVERRULED John 156:09 violates the Court’ s ruling called by Bard as its 08/15/2019 End at "to on the MIL on Recovery Executive VP and Chief be serious." migration deaths. This case Technology officer with does not involve a fatal over 15 and years of migration or a Recovery experience with the Filter. This testimony is company and its IVC overly prejudicial and has filters. The information no bearing on the facts of discussed is or should be this case. The Court has within the scope of his ruled this testimony is not employment and substantially similar to the knowledge. Testimony facts in this case and, regarding the Recovery therefore, should be filter’s complications, excluded. (See ECF No. testing and design is 204, p. 3-5.) relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims. The testimony is relevant and not unfairly prejudicial. DeFord, 156:11- Rules 401, 402, 403 – This The witness has been OVERRULED John 156:16 violates the Court’ s ruling called by Bard as its 08/15/2019 end at on the MIL on Recovery Executive VP and Chief "That's Fair" migration deaths. This case Technology officer with does not involve a fatal over 15 and years of migration or a Recovery experience with the Filter. This testimony is company and its IVC overly prejudicial and has filters. The information no bearing on the facts of discussed is or should be this case. The Court has within the scope of his ruled this testimony is not employment and substantially similar to the knowledge. Testimony facts in this case and, regarding the Recovery therefore, should be filter’s complications, excluded. (See ECF No. testing and design is 204, p. 3-5.) relevant and is not outweighed by any prejudicial effect. Judge Campbell agreed with this position in Jones v. Bard. [MDL Order No. 10819]. The failure modes are relevant to the assessment of the defects in the design of the filter whether a particular failure mode has occurred; however, Ms. Johnson has experienced perforation, migration, tilt, and fracture. The Bard's conduct with regard to the design of its IVC filters from the Recovery filter to the Meridian is relevant to the negligence claims. The testimony is relevant and not unfairly prejudicial. DeFord, 160:07- John 160:08 08/15/2019 Stopping at "G2" DeFord, 160:17- John 161:01 08/15/2019 DeFord, 162:17- Rule 602 –this witness does SUSTAIN John 162:19 not have personal 08/15/2019 knowledge of the document. See, 162:20-21 DeFord, 163:04- Rule 602 –this witness does SUSTAIN John 163:07 not have personal 08/15/2019 knowledge of the document. See, 162:20-21 DeFord, 164:07- Rule 602 –this witness does SUSTAIN John 164:09 not have personal 08/15/2019 knowledge of the document. See, 162:20-21 DeFord, 167:07- John 167:10 08/15/2019 DeFord, 167:19- Rule 602 –this witness does SUSTAIN John 168:04 not have personal 08/15/2019 knowledge of the document. See, 162:20-21 DeFord, 168:08 Rule 602 –this witness does SUSTAIN John not have personal 08/15/2019 Stopping at knowledge of the correctly document. See, 162:20-21 DeFord, 168:13- Rule 602 –this witness does SUSTAIN John 168:17 not have personal 08/15/2019 knowledge of the Starting at document. See, 162:20-21. Also cumulative of Dr. He Ciavarella’s testimony. DeFord, 168:19- Rule 602 –this witness does SUSTAIN John 168:25 not have personal 08/15/2019 knowledge of the document. See, 162:20-21 DeFord, 169:02- John 169:04 08/15/2019 DeFord, 169:12- John 169:19 08/15/2019 DeFord, 170:21- John 172:05 08/15/2019 DeFord, 173:19- Rule 602 – the witness is OVERRULED John 174:06 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 175:04- Rule 602 – the witness is OVERRULED John 176:03 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 177:01- Rule 602 – the witness is OVERRULED John 177:23 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 178:11- Rule 602 – the witness is OVERRULED John 178:15 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 178:22- Rule 602 – the witness is OVERRULED John 179:11 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 179:14- Rule 602 – the witness is OVERRULED John 180:02 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 180:06- Rule 602 – the witness is OVERRULED John 180:18 being asked about a 08/15/2019 document he has never seen before. See, 172:25- 173:3 and 173:9-11 DeFord, 181:02- John 181:05 08/15/2019 DeFord, 181:07- Rule 602 – the witness is OVERRULED John 181:20 being asked about a 08/15/2019 document he has never seen. See, 182:2-3 DeFord, 182:09- Rule 602 – the witness is OVERRULED John 183:12 being asked about a 08/15/2019 document he has never seen. See, 182:2-3 DeFord, 183:16- Rule 602 – the witness is OVERRULED John 183:17 being asked about a 08/15/2019 document he has never seen. See, 182:2-3 DeFord, 183:19- Rule 602 – the witness is OVERRULED John 183:20 being asked about a 08/15/2019 document he has never seen. See, 182:2-3 DeFord, 202:19- John 203:03 08/15/2019

DEPON- DEF PL OBJECTIONS DEF RESPONSE TO COURT ENT COUNTERS OBJECTIONS RULING TO COUNTERS DeFord, 105:18- John 105:24 08/15/2019 DeFord, 107:13- Plaintiff agrees to include MOOT John 107:14 these lines in her cross. 08/15/2019 DeFord, 119:01- FRE 401,402 & 403. The OVERRULED John 119:03 testimony identifies and 08/15/2019 refences an exhibit that is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 129:02- FRE 401,402 & 403. The SUSTAIN John 129:07 Plaintiff has withdrawn 08/15/2019 testimony from 127:24 to 134:21 The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 130:21- FRE 401,402 & 403. The SUSTAIN John 130:24 Plaintiff has withdrawn 08/15/2019 testimony from 127:24 to 134:21 The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 133:23– FRE 401,402 & 403. The SUSTAIN John 134:10 Plaintiff has withdrawn 08/15/2019 testimony from 127:24 to 134:21 The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 134:16- FRE 401,402 & 403. The SUSTAIN John 134:17 Plaintiff has withdrawn 08/15/2019 testimony from 127:24 to 134:21 The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 134:24 FRE 403. The Plaintiff SUSTAIN John includes this line of 08/15/2019 testimony in her cross and so this is unnecessarily cumulative and an undue delay. DeFord, 135:10- FRE 401, 402 & 403. The SUSTAIN John 135:12 testimony is of no or very 08/15/2019 limited relevance and results in undue delay. DeFord, 135:14- FRE 401, 402 & 403. The SUSTAIN John 135:15 testimony is of no or very 08/15/2019 limited relevance and results in undue delay. DeFord, 136:09- STRIKE John 136:13 08/15/2019 DeFord, 138:09- FRE 401,402 & 403. The SUSTAIN John 139:04 Plaintiff has withdrawn 08/15/2019 testimony from 136:10 to 155:11. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 140:10- FRE 401,402 & 403. The SUSTAIN John 140:15 Plaintiff has withdrawn 08/15/2019 testimony from 136:10 to 155:11. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 151:05- FRE 401,402 & 403. The SUSTAIN John 152:15 Plaintiff has withdrawn 08/15/2019 testimony from 136:10 to 155:11. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 152:19- FRE 401,402 & 403. The SUSTAIN John 152:21 Plaintiff has withdrawn 08/15/2019 testimony from 136:10 to 155:11. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 154:10- FRE 401,402 & 403. The SUSTAIN John 154:16 Plaintiff has withdrawn 08/15/2019 testimony from 136:10 to 155:11. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 156:16- FRE 401,402 & 403. The OVERRULED John 156:20 added testimony is not 08/15/2019 responsive to the question asked and will require the addition under FRCP 32(6) and FRE 106 of 156:21- 157:23. DeFord, 158:04– FRE 401,402 & 403. The SUSTAIN John 158:13 Plaintiff has withdrawn 08/15/2019 testimony from 157:24- 158:10 The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination. DeFord, 201:23– FRE 401,402, 403 & 602 SUSTAIN John 202:18 – the Plaintiff objects to 08/15/2019 202:11-202:18 as the witness specially states :I am speculating here” therefore he lacks the proper foundation for his testimony, speculations are not relevant testimony, they are unfairly prejudicial and likely to confuse or mislead the jury.

DeFord, 203:25– FRE 401,402 & 403. The OVERRULED John 204:05 Plaintiff has withdrawn 08/15/2019 testimony from 203:03- 203:25. The testimony designated here is not discussed in the Plaintiff’s cross. It is not relevant and will cause undue delay and confusion. The testimony is outside the scope of the cross examination.

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 5th day of June, 2021. BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge