Johnson v. C R Bard Incorporated et al

Filing 262

ORDER on Deposition Designations as to Mickey Graves. Signed by District Judge William M. Conley on 6/4/2021. (rks)

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 Mickey Graves.
DEPONENT

PL AFFIRM

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Defendants object to
the playing of this
deposition under Rules
401, 402 and 403. Mr.
Graves provide no
testimony about the
Meridian filter and the
entirety of his
testimony is about
changes made from the
first generation filter the Recovery to the
second generation, the
G2, whoch took place
over 5 years before the
development of the
filter at issue which is
the fifth generation of
design of the filter. HIs

Mr. Graves was the
Senior Research and
Development Engineer
assigned to the G2
filter team by Bard.
The testimony
involves the G2 filter.
The Eclipse and the
Meridian have the
same filter design as
the G2 with the
exception of a removal
hook placed on the
G2X, electropolishing
on the Eclipse and
anchors on the
Meridian. Testimony
is relevant to whether
the filter had a

OVERRULED

1

testimony has no
relevance or probative
value to the issues in
this case.
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.

defective design, the
reasonableness of Bard
conduct in designing
the Meridian using the
G2 filter, and
ultimately the defects
in the design the
device and Bard’s
negligence. His
testimony is relevant
and any prejudice is
not unfair.

Graves,
Micky
02/27/2014

6:03-6:04

Admitted in Peterson

Graves,
Micky
02/27/2014

6:13-6:18

Testimony admitted at
Bard's request in
Peterson

Graves,
Micky
02/27/2014

6:19-6:22

Testimony admitted at
Bard's request in
Peterson

Graves,
Micky
02/27/2014

22:25-23:05

Admitted in Peterson

Graves,
Micky
02/27/2014

24:06-24:15

Admitted in Peterson

2

Graves,
Micky
02/27/2014

25:23-26:06

Admitted in Peterson

Graves,
Micky
02/27/2014

28:09-28:12

Admitted in Peterson

Graves,
Micky
02/27/2014

37:09-37:21

Admitted in Peterson

Graves,
Micky
02/27/2014

44:01-44:05

Admitted in Peterson

Graves,
Micky
02/27/2014

47:25-48:09

Rules 401, 402, 403.
Testimony does not
involve filter at issue
and/or failure modes at
issue; Irrelevant and
any probative value
outweighed by
prejudicial effect.

Admitted in Peterson
Design flaws in the
Recovery filter, upon
which the Meridian
and G2 filter family
was based, are relevant
to the existence of
warning and design
defect, Bard's
negligence, and to
design and testing of
the Meridian filter.

OVERRULED

Graves,
Micky
02/27/2014

59:15-59:25

Rules 401, 402, 403.
Testimony does not
involve filter at issue
and/or failure modes at
issue; Irrelevant and
any probative value
outweighed by
prejudicial effect.

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the G2 and
Meridian filter family
was based, are relevant
to the existence of
design defect, Bard's
negligence, In
particular, whether
Bard knew it failed to
catch a major design
flaw in the Recovery
filter as a result of

OVERRULED

3

inadequate testing, but
then failed to conduct
such testing in
connection with the
Meridian filter line, is
relevant to whether
Bard's design and
warnings were
adequate.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.
FRE 612: No
document was used to
refresh the witness's
recollection in
connection with the
testimony.
Graves,
Micky
02/27/2014

75:15-75:22

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, Bard's
negligence, and to the
design and testing and
warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,

4

Plaintiff’s
response
appears
unnecessary as
there is was no
objection to
this
designation.

Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Mrs.
Johnson. Whether
Bard knew it failed to
catch a major design
flaw in the Recovery
filter as a result of
inadequate testing, but
then failed to conduct
such testing in
connection with the
G2 filter line and warn
about the dangers of
the filter, is relevant to
all of Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.
FRE 612: No
document was used to
refresh the witness's
recollection in
connection with the
testimony.

5

Graves,
Micky
02/27/2014

77:15-78:03

Rules 401, 402 & 403.
Irrelevant and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Counsel is
asking about a
document that is not in
evidence.

6

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, to consumer
expectations, and to
the design and testing
and warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Berg.
Whether Bard knew it
failed to catch a major
design flaw in the
Recovery filter as a
result of inadequate
testing, but then failed
to conduct such
testing in connection
with the G2 filter line
and warn about the
dangers of the filter, is
relevant to all of
Plaintiff's claims.
FRE 601/602: As a
senior engineer

OVERRULE as
to 77:15-77:19.
SUSTAIN as
to remainder.

involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.
FRE 612: No
document was used to
refresh the witness's
recollection in
connection with the
testimony.
Graves,
Micky
02/27/2014

126:16126:23

Rule 611(a)(3)
questioning is
argumentative and
subjects witness to
harassment. Counsel is
making closing
argument. Rules 401,
402 & 403. Irrelevant
and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and
Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611

7

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, to consumer
expectations, and to
the design and testing
and warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Berg.
Whether Bard knew it

OVERRULED

assumes facts not in
evidence.

Graves,
Micky
02/27/2014

127:01127:03

failed to catch a major
design flaw in the
Recovery filter as a
result of inadequate
testing, but then failed
to conduct such
testing in connection
with the G2 filter line
and warn about the
dangers of the filter, is
relevant to all of
Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.

Rule 611(a)(3)
questioning is
argumentative and
subjects witness to
harassment. Counsel is
making closing
argument. Rules 401,
402 & 403. Irrelevant
and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, Bard's
negligence, and to the
design and testing and
warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify

8

OVERRULED

Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611
assumes facts not in
evidence.

9

the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Berg.
Whether Bard knew it
failed to catch a major
design flaw in the
Recovery filter as a
result of inadequate
testing, but then failed
to conduct such
testing in connection
with the G2 filter line
and warn about the
dangers of the filter, is
relevant to all of
Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.

Graves,
Micky
02/27/2014

127:06127:13

Rules 401, 402 & 403.
Irrelevant and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and
Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611
assumes facts not in
evidence. Rule
611(a)(3) questioning
is argumentative and
subjects witness to
harassment. Counsel is
making closing
argument.

10

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, Bard's
negligence, and to the
design and testing and
warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Mrs.
Johnson. Whether
Bard knew it failed to
catch a major design
flaw in the Recovery
filter as a result of
inadequate testing, but
then failed to conduct
such testing in
connection with the
G2 filter line and warn
about the dangers of
the filter, is relevant to
all of Plaintiff's claims.
FRE 601/602: As a
senior engineer

OVERRULED

involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.

Graves,
Micky
02/27/2014

127:15127:20

Rules 401, 402 & 403.
Irrelevant and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and
Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611
assumes facts not in
evidence. Rule
611(a)(3) questioning
is argumentative and
subjects witness to
harassment. Counsel is
making closing
argument.

11

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, to consumer
expectations, and to
the design and testing
and warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Berg.
Whether Bard knew it
failed to catch a major

OVERRULED

design flaw in the
Recovery filter as a
result of inadequate
testing, but then failed
to conduct such
testing in connection
with the G2 filter line
and warn about the
dangers of the filter, is
relevant to all of
Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.
Graves,
Micky
02/27/2014

127:22128:02

Rules 401, 402 & 403.
Irrelevant and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and
Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611

12

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, to consumer
expectations, and to
the design and testing
and warnings of the
Meridian filter. The
record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a

OVERRULED

assumes facts not in
evidence. Rule
611(a)(3) questioning
is argumentative and
subjects witness to
harassment. Counsel is
making closing
argument.

Graves,
Micky
02/27/2014

128:12129:09

separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Berg.
Whether Bard knew it
failed to catch a major
design flaw in the
Recovery filter as a
result of inadequate
testing, but then failed
to conduct such
testing in connection
with the G2 filter line
and warn about the
dangers of the filter, is
relevant to all of
Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.

Rules 401, 402 & 403.
Irrelevant and Unfairly
Prejudicial. Testimony
does not address injury
or failure mode at issue.
Rules 601/602 & 612.
Lacks foundation,
witness does not have
personal knowledge of
subject matter, calls for
speculation by the
witness. Rules 401, 402
& 403. Irrelevant and

Admitted in Peterson
FRE 402/403/404:
Design flaws in the
Recovery filter, upon
which the Meridian
filter family was based,
are relevant to the
existence of design
defect, Bard's
negligence, and to the
design and testing and
warnings of the
Meridian filter. The

13

OVERRULED

Unfairly Prejudicial.
Testimony implies that
Bard had a duty to
conduct additional
testing or studies when
no such duty exists.
Rule 611 compound
question. Rule 611
assumes facts not in
evidence. Rule
611(a)(3) questioning
is argumentative and
subjects witness to
harassment. Counsel is
making closing
argument.

DEPONENT

DEF
COUNTER

record demonstrates
that in attempting to
correct failures with
the Recovery Filter,
Bard failed to test the
redesigned filter
adequately to identify
the existence of a
separate problem with
the Meridian, which
led to migration as
well as tilt and
perforation in patients
including Mrs.
Johnson. Whether
Bard knew it failed to
catch a major design
flaw in the Recovery
filter as a result of
inadequate testing, but
then failed to conduct
such testing in
connection with the
G2 filter line and warn
about the dangers of
the filter, is relevant to
all of Plaintiff's claims.
FRE 601/602: As a
senior engineer
involved in the
development of the
G2 filter family (see,
e.g., 24:6-15), the
witness has ample
personal knowlege
from which to answer
the questions asked.

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

14

COURT
RULING

Graves,
Micky
02/27/2014

6:13-6:22

Graves,
Micky
02/27/2014

7:24-8:04

Graves,
Micky
02/27/2014

16:14-17:10

Graves,
Micky
02/27/2014

35:23-37:08

Graves,
Micky
02/27/2014

44:06-44:12

Graves,
Micky
02/27/2014

44:25-45:04

Graves,
Micky
02/27/2014

45:07

Graves,
Micky
02/27/2014

45:09-45:11

Graves,
Micky
02/27/2014

60:01-60:10

Graves,
Micky
02/27/2014

63:16-63:22

Graves,
Micky
02/27/2014

71:05-71:09

15

Graves,
Micky
02/27/2014

73:14-74:05

Graves,
Micky
02/27/2014

75:05-75:14
(start at
isn't)

Graves,
Micky
02/27/2014

75:23-75:25

Graves,
Micky
02/27/2014

76:02-76:06

Graves,
Micky
02/27/2014

78:12-78:25

Fre 106: optional
completeness - as
designated, the
question beginning at
line 14, following the
designation at 71:5-9,
creates confusion
regarding what filter is
being discussed ("it
failed, the test…"). The
beginning of the
exchange at lines 70:1271:1 should be included
so that it is apparent
what the witness is
talking about.

FRE 402/403:
Testimony beginning
regarding the FDA
510(k) clearance
process ought to be
excluded as discussed in
Plaintiff's Motion in
Limine on this topic.
FRE 602/702: The
witness has not been
designated as an expert
and is not qualified to
offer testimony
regarding the
requirements of, or the

16

SUSTAIN.
73:14-74:05 is
to be included
with the
addition of
70:12-71:1
(start at
“One”).

Bard incorporates
herein its arguments in
opposition to
Plaintiff's Motion in
Limine regarding
510(k) clearance.
Moreover, the witness
is merely answering
the questions posed by
Plaintiff's counsel, and
is being asked about,
and offering, his own
personal knowledge,

SUSTAIN

meaning of, the FDA
510K process.

Graves,
Micky
02/27/2014

160:24161:22

not any expert
opinion.

(161:19-22): FRE
402/403: Testimony
regarding whether Bard
warned is not relevant
to any matter at issue,
and the witness's
personal belief that
Bard warned of the
complications in
question is immaterial
to any matter at issue;
FRE 602/702: The
witness is not qualified
or designated to offer
opinion testimony
regarding the adequacy
of Bard's warnings.

Witness is offering his
own personal
knowledge, not any
expert opinion. Bard's
warnings are directly
relevant to plaintiff's
failure to warn claims.

OVERRULE

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

17