Johnson v. C R Bard Incorporated et al

Filing 260

ORDER on Deposition Designations as to Bill Altonaga. Signed by District Judge William M. Conley on 6/4/2021. (kwf)

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 Bill Altonaga.
DEPONENT

PL AFFIRM

DEF OBJECTIONS
Bard objects to
Plaintiff’s references to
“Admitted in the
Peterson case” as a basis
for allowing a
designation to played, or
overruling an objection,
and 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.

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

6:18-6:22

7:06-8:04

8:11-8:16

1

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

9:11-9:13
Start at
"CETEC"
10:08-10:13
Start at "I
guess".
14:04-14:09

Altonaga,
Bill
10/22/2013

72:08-72:10

Altonaga,
Bill
10/22/2013

72:11-73:23

33:17-34:10

71:24-72:10

There is no allegation of
misbranding in this case.
Rules 401, 402 And
403. Further to the
extent the designation is
allowed the counters are
necessary for
completeness

(73:9-73:24) Rules 401,
402, 403 – Testimony
does not involve filter at
issue and/or failure mode
at issue; Irrelevant and
any probative value
outweighed by
prejudicial effect. This
case does not involve the
Recovery filter. There is
no allegation of
misbranding in this case.
Rules 401, 402 And
403. Further to the
extent the designation is

2

Admitted in the
Peterson Case
The testimony is
relev[a]nt to the
Plaintiff's failure to
warn and negligence
claims. The allegation
of misbranding appears
in MDL ECF Doc. 364
- Master Complaint for
Damages at ¶ 231(a).
All allegations plead in
the Master Complaint
were deemed plead in
any Second Amended
Short Form Complaint
by MDL ECF Doc.
1485 -Second
Amended Case
Management Order at
pp. 2-3.
No objection - we will
add to Plaintiff's
submission as
indicated.
Admitted in the
Peterson Case
Bard chose to market
the Eclipse filter using
the 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

OVERRULED

SUSTAIN

allowed the counters are
necessary for
completeness.

Altonaga,
Bill
10/22/2013

87:02-87:04

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

87:06

87:18-87:22

Nonsensical designation.
Vague and ambiguous

Rule 403 – there is no
failure to recall claim in
this case

3

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.
Admitted in the
Peterson Case
The testi[mo]ny is far
from "Nonsensical"
vague or ambiguous[s]
and is to be considered
in context with 71:24 73:23.
Admitted in the
Peterson Case
Admitted in the
Peterson Case
The issue of recall is
disc[u]ssed
ex[]tensively in the
Master Complaint.
MDL ECF Doc. 364 The Master Complaint
for Damages discusses
recall in multiple
para[]graphs such as ¶¶
77, 132, 135, 143, 146
(Meridian specific),
and 202-209. All
allegations plead in the
Master Complaint were
deemed plead in any

SUSTAIN

SUSTAIN

OVERRULED

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

Second Amended Short
Form Complaint by
MDL ECF Doc. 1485 Second Amended Case
Management Order at
pp. 2-3. Placed in
context this testimony
does not relate
specifically to the need
to recall the Mer[i]dian
but is a more generally
discussion of the
options open to Bard
once it learned its
retr[ie]vable filters were
experiencing serious
complications. [I]t is
directly relevant to the
design defect claims as
well as Bard's
negligence and its
failure to warn.
Admitted in the
Peterson Case

90:23-91:06

92:18-92:24

Admitted in the
Peterson Case

96:17-96:23

Admitted in the
Peterson Case

99:11-99:19

Admitted in the
Peterson Case

103:06103:19

Admitted in the
Peterson Case

103:22104:20

Admitted in the
Peterson Case

105:05105:10

Admitted in the
Peterson Case

107:06107:10

Admitted in the
Peterson Case

109:19110:05

Cumulative of prior
testimony

113:02113:06

Admitted in the
Peterson Case
Admitted in the
Peterson Case

4

OVERRULED

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

116:20116:23
Starting at
"We talked"
117:08117:13

Admitted in the
Peterson Case

118:17118:22

Admitted in the
Peterson Case

124:18125:18

Admitted in the
Peterson Case

125:22126:03

Admitted in the
Peterson Case

Rules 401, 402, 403 –
Testimony does not
involve filter at issue
and/or failure mode at
issue; Irrelevant and any
probative value
outweighed by
prejudicial effect. This
case does not involve
perforation of the filter
into the aorta, nor does
it involve a fatal event.
This testimony is overly
prejudicial and has no
bearing on the facts of
this case.

5

Admitted in the
Peterson Case
Bard chose to market
the Eclipse filter using
the 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.

SUSTAIN

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

135:20136:18
137:02137:22

Admitted in the
Peterson Case
Rules 401, 402, 403
(137:12-137:22) –
Testimony does not
involve filter at issue
and/or failure mode at
issue; Irrelevant and any
probative value
outweighed by
prejudicial effect. There
is no evidence (or claim)
of perforation of the
filter into other organs in
this case.

6

Admitted in the
Peterson Case
Bard chose to market
the Eclipse filter using
the 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.

OVERRULED

Altonaga,
Bill
10/22/2013

138:04138:21

Rules 401, 402 & 403.
Irrelevant and Unfairly
prejudicial. There is no
evidence of caval
penetration into other
organs in this case.

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

142:10142:17

Admitted in the
Peterson Case
Bard chose to market
the Eclipse filter using
the 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.
Admitted in the
Peterson Case

149:08150:11

Admitted in the
Peterson Case

152:06152:14

Admitted in the
Peterson Case

152:16152:20

Admitted in the
Peterson Case

7

OVERRULED

Altonaga,
Bill
10/22/2013

152:24153:07

Designation ends in a
question.

Altonaga,
Bill
10/22/2013

153:08153:11

Answer to a question
that is not designated.
Vague and ambiguous.

Altonaga,
Bill
10/22/2013

153:17153:20

Answer to a question
that is not designated.
Vague and ambiguous.

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

OVERRULED

157:19158:06

Admitted in the
Peterson Case
153:03 -153:07 is an
answer.
Admitted in the
Peterson Case
Transcription error by
Plainitff's counsel - as
indicated herein the
queston and 153:08153:11 should be
included. The
testimony is relevent to
Plaintiff's claims of
design defect,
negligence and failure
to warn and is not
unfairly prejudicial.
Admitted in the
Peterson Case
Transcription error by
Plainitff's counsel - as
indicated herein the
queston and 153:08153:11 should be
included. The
testimony is relevent to
Plaintiff's claims of
design defect,
negligence and failure
to warn and is not
unfairly prejudicial.
Admitted in the
Peterson Case

158:10158:21

Admitted in the
Peterson Case

REMOVE
158:16

158:23159:03

Admitted in the
Peterson Case

160:23161:06
Start at "I
never"
168:05168:09
starting at
"you're a"
168:12168:13

Admitted in the
Peterson Case

Admitted in the
Peterson Case

Admitted in the
Peterson Case

8

SUSTAIN AS
TO
QUESTION
AND
ANSWER AT
153:17-20

SUSTAIN

Altonaga,
Bill
10/22/2013

169:21170:04

Rules 401, 402 and 403.
Recovery “bad acts”
were excluded by
Motion in Limine.
Rules 401, 402 and 403.
Recovery “bad acts”
were excluded by
Motion in Limine.
Rules 401, 402 and 403.
Recovery “bad acts”
were excluded by
Motion in Limine.
Rules 401, 402 and 403.
Recovery “bad acts”
were excluded by
Motion in Limine.
Rules 401, 402 and 403.
Recovery “bad acts”
were excluded by
Motion in Limine.
Improper question.
Further question related
to Recovery filter. See,
243:11-13. Rules 401,
402 and 403

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013

170:07170:10

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013

170:12170:13

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013

179:07179:13

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013

179:20180:07

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013

243:16243:18

Admitted in the
Peterson Case

OVERRULED

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

243:20244:01

Admitted in the
Peterson Case

251:03251:06

Admitted in the
Peterson Case

DEPONENT
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

DEF
COUNTER
90:15-90:22

Altonaga,
Bill
10/22/2013

126:01126:03

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

FRE 403: testimony is
already contained in
Plaintiff's affirmatives so
results in undue delay,
waste of time and
needless presentation of
cumulative evidence
FRE 403: testimony is
already contained in
Plaintiff's affirmatives so
results in undue delay,
waste of time and

If Plaintiff does not
withdraw this
designation, Bard will
withdraw it.

MOOT

If Plaintiff does not
withdraw this
designation, Bard will
withdraw it.

MOOT

91:13-91:16

124:18–
125:14

9

needless presentation of
cumulative evidence
Altonaga,
Bill
10/22/2013

154:05154:12

FRE 403: The answer to
the question posed is not
designated.
Accor[ding]ly, the
question is not rel[ev]ant
and is misleading.

Plaintiff's counsel
repeated the same
question, and the
witness is responding
to it, and explaining
why he cannot answer
it the way Plaintiff's
counsel wants.
Plaintiff's counsel
repeated the same
question, and the
witness is responding
to it, and explaining
why he cannot answer
it the way Plaintiff's
counsel wants.

Altonaga,
Bill
10/22/2013

155:04155:10

FRE 403: The question
answered by the witness
is not designated.
Accor[ding]ly, the
question is not rel[ev]ant
and is misleading.

Altonaga,
Bill
10/22/2013
Altonaga,
Bill
10/22/2013

180:21180:22

STRIKE

182:04182:06

STRIKE

DEPONENT

PL
COUNTERS
TO
COUNTERS

DEF OBJECTIONS

Altonaga,
Bill
10/22/2013

180:23181:06

Rule 602, Witness does
not have personal
knowledge of the
document. See 180:2122.

PL RESPONSE TO
OBJECTIONS

OVERRULED

OVERRULED

COURT
RULING
STRIKE

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
10