Johnson v. C R Bard Incorporated et al

Filing 264

ORDER on Deposition Designations as to David Ciavarella. 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,

v.

ORDER
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.
DEPONENT

PL
AFFIRM

DEF
OBJECTIONS

PL RESPONSE TO
OBJECTIONS

Defendants’
object to this
testimony in its
entirety as it has
no relation to the
Meridian filter.
Dr. Ciavarella
testified that his
role as medical
director stopped
in 2008 when Dr.
Altonaga took
over (see, 44:2445:6). This
testimony has no
relevance to the
issues in this case.
Bard objects to
Plaintiff’s
references to
“Admitted in the

Testimony involves the
OVERRULED
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 []had
a defective design, Bard's
negligence and failure to
warn claims, which are
at issue. The
G2/G2X/Eclipse/Meridia
n and the Recovery filter
suffered similar rates of

1

COURT
RULING

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.

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,
David
11/12/2013

11:0911:11

Admitted in Peterson

Ciavarella,
David
11/12/2013

13:1213:19
beginning
with
"You've
been
with…"

Admitted in Peterson

Ciavarella,
David
11/12/2013

36:1437:03

Admitted in Peterson

2

Ciavarella,
David
11/12/2013

44:1344:18

Improper
designation. Lines
44:08-12 are an
answer, but no
question was
designated. Lines
14-18 are
cumulative of Dr.
Altonaga’s
testimony.

3

Admitted in Peterson
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).
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

OVERRULED

prejudice.
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,
David
11/12/2013

44:2445:06

Admitted in Peterson

Ciavarella,
David
11/12/2013

46:1446:23

Cumulative of Dr.
ALtonaga’s
testimony.

Admitted in Peterson
The testimony is not
cumulative and Plaintiff
is not "needless
presenting cumulative
evidence". The question
was never asked of Dr.
Altonaga.

OVERRULED

Ciavarella,
David
11/12/2013

70:0670:08
beginning
with "you
don't
have…"

Rules 401, 402
and 403. There is
no failure to recall
claim in this case.

Admitted in Peterson
The question and
answer do not discuss
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.

OVERRULED

4

Ciavarella,
David
11/12/2013

70:1170:13

Rules 401, 402
and 403. There is
no failure to recall
claim in this case.

Ciavarella,
David
11/12/2013

83:0683:08

Admitted in Peterson

Ciavarella,
David
11/12/2013

83:1183:16

Admitted in Peterson

Ciavarella,
David
11/12/2013

84:1084:15
beginning
with "a
medical
doctor,"

The counters at
pages 84-86 are
necessary for
completeness.

Admitted in Peterson
The question and
answer do not discuss
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.

Admitted in Peterson
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 164:24165:6. Testimony
designated by Bard

5

OVERRULED

OVERRULED

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,
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.

6

Ciavarella,
David
11/12/2013

84:1784:20

The counters at
pages 84-86 are
necessary for
completeness.

Admitted in Peterson
Warnings and what
medical professional
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 164:24165:6. 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,

7

OVERRULED

7/29/04 deposition at
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,
David
11/12/2013

90:1290:16

Admitted in Peterson

Ciavarella,
David
11/12/2013

90:2491:17
beginning
with "it has
to…"

Admitted in Peterson

8

Ciavarella,
David
11/12/2013

92:1892:24

The counters at
94-95 are
necessary for
completeness.

Admitted in Peterson

Ciavarella,
David
11/12/2013

104:16104:18
beginning
with "What
is
MAUDE?"

The counters at
104-106 are
necessary for
completeness and
will not make
sense out of
context.

Admitted in Peterson

Ciavarella,
David
11/12/2013

126:18127:01
beginning
with "the…"

Rules 401, 402,
403 – This case
does not involve a
fatal migration or
a Recovery Filter.
This testimony is
overly prejudicial
and has no
bearing on the
facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,
therefore, should
be excluded. (See
ECF No. 204, p.
3-5.)

Admitted in Peterson
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 []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,
David
11/12/2013

131:18131:23
beginning
with "one of
the…"

Counters at
131:6-12 are
necessary for
completeness and
will not make

Admitted in Peterson

9

OVERRULED

sense out of
context.
Ciavarella,
David
11/12/2013

154:11155:17
beginning
with "why
is a
perforation
…"

Admitted in Peterson

Ciavarella,
David
11/12/2013

156:24157:03
beginning
with "we do
know,…"

Admitted in Peterson

Ciavarella,
David
11/12/2013

157:04157:13

Testimony admitted at
Bard's request in
Peterson

Ciavarella,
David
11/12/2013

161:21162:05

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 G2
filter.

10

Admitted in Peterson
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 []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

OVERRULED

n. There is no unfair
prejudice.

Ciavarella,
David
11/12/2013

162:11162:17

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 G2
filter.

Admitted in Peterson
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
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.

OVERRULED

Ciavarella,
David
11/12/2013

168:02168:09

Rules 401, 402,
403 – This
testimony violates
the Court’s ruling
on the Motion in
Limine. This case
does not involve a
fatal migration or
a Recovery Filter.

Admitted in Peterson
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

SUSTAIN

11

This testimony is
overly prejudicial
and has no
bearing on the
facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,
therefore, should
be excluded. (See
ECF No. 204, p.
3-5.)

Ciavarella,
David
11/12/2013

176:04176:08
beginning
with "the
rates…"

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
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.

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 G2
filter, the
Recovery filter, or
the SNF filter.

Admitted in Peterson
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
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

12

OVERRULED

n. There is no unfair
prejudice.

Ciavarella,
David
11/12/2013

179:16179:25
beginning
with
"eventually
didn't…"

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 a fatal
migration or a
Recovery Filter.
This testimony is
overly prejudicial
and has no
bearing on the
facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,
therefore, should
be excluded. (See
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

13

Admitted in Peterson
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
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. Any prejudice is not
unfair.

OVERRULED

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,
David
11/12/2013

180:11180:25
beginning
with "I'm
asking…"

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 a fatal
migration or a
Recovery Filter.
This testimony is
overly prejudicial
and has no
bearing on the
facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,
therefore, should
be excluded. (See
ECF No. 204, p.
3-5.) Defendants
also object
because this
testimony violates
a protective order

14

Admitted in Peterson
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
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. Any prejudice is not
unfair.

OVERRULED

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.
Ciavarella,
David
11/12/2013

181:05181:08

Answer to which
no question is
designated. 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 a
fatal migration or
a Recovery Filter.
This testimony is
overly prejudicial
and has no
bearing on the
facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,

15

Admitted in Peterson
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 []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

OVERRULED

therefore, should
be excluded. (See
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,
David
11/12/2013

182:12182:21
beginning
with "you
had…"

n. Any prejudice is not
unfair.

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 a fatal
migration or a
Recovery Filter.
This testimony is
overly prejudicial
and has no
bearing on the

Admitted in Peterson
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
and Bard's negligence,
which are at issue. The

16

OVERRULED

facts of this case.
The Court has
ruled this
testimony is not
substantially
similar to the facts
in this case and,
therefore, should
be excluded. (See
ECF No. 204, p.
3-5.)

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. Any prejudice is not
unfair.

Ciavarella,
David
11/12/2013

186:05186:11
beginning
with " So,
you
know,…"

Rules 401, 402
and 403 – this
testimony all
relates to the
Recovery filter
and Dr.
Lehmann’s
analysis.

Admitted in Peterson

OVERRULED

Ciavarella,
David
11/12/2013

265:18265:21

Rules 401, 402
and 403.
Testimony does
not involve the
filter or failure
modes at issue.

Admitted in Peterson
Testimony does not
involve failure modes.
Testimony is only
describing the exhibit

OVERRULED

Ciavarella,
David
11/12/2013

266:13266:22

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony does not
involve failure modes.
Testimony is
establishing who Cindi
Walcott is and the
timeframe.

OVERRULED

Ciavarella,
David
11/12/2013

267:11269:04

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue. Rules
801/802
Testimony is
hearsay.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
the failure to warn and
Bard's negligence.
Defendants need to
identify which portion
of the testimony is

OVERRULED

17

thought to be hearsay.
The document is a Bard
business record and
statement of a party
opponent. FRE
801(d)(2) & 803(6).
Ciavarella,
David
11/12/2013

271:08271:21

Rules 401, 402,
403 – Testimony
relates to
irrelevant and
prejudicial
evidence regarding
Bard’s conduct
related to the
Recovery Filter.
Irrelevant and any
probative value
outweighed by
prejudicial effect.

Admitted in Peterson
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
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.

OVERRULED

Ciavarella,
David
11/12/2013

272:05272:15

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
the failure to warn,

OVERRULED

18

negligence and safer
alternative design.
Ciavarella,
David
11/12/2013

272:24273:09
ending at
"yes."

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
design defect, failure to
warn and negligence.

OVERRULED

Ciavarella,
David
11/12/2013

274:09275:06

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
design defect, failure to
warn and negligence.

OVERRULED

Ciavarella,
David
11/12/2013

275:19276:04

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
design defect, failure to
warn and negligence.

OVERRULED

Ciavarella,
David
11/12/2013

277:11277:23

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
medical community.
The testimony goes to
design defect, failure to
warn and negligence.

OVERRULED

19

Ciavarella,
David
11/12/2013

281:09281:15

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 G2
filter, failure
modes at issue, or
use of a
permanent filter.

Admitted in Peterson
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
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.

OVERRULED

Ciavarella,
David
11/12/2013

282:02282:08

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 G2
filter, failure
modes at issue, or
use of a
permanent filter.

Admitted in Peterson
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
and Bard's negligence,
which are at issue. The

OVERRULED

20

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,
David
11/12/2013

283:05283:14

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 G2
filter, failure
modes at issue, or
use of a
permanent filter.

21

Admitted in Peterson
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
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.

OVERRULED

Ciavarella,
David
11/12/2013

359:14359:20
beginning
with "on
this
team…"

Rules 401, 402,
403 – Testimony
relates to
irrelevant and
prejudicial
evidence regarding
Bard’s conduct
related to the
Recovery Filter.
Irrelevant and any
probative value
outweighed by
prejudicial effect.
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.

22

Admitted in Peterson
Testimony is not related
to a particular filter or
failure mode. The
testimony shows that
David Ciavarella was the
only medical doctor
evaluating filter failures
and catastrphic events
caused by Bard IVC
fitlers. 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 anchors of
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
n. There is no unfair
prejudice.

OVERRULED

Ciavarella,
David
11/12/2013

362:07362:24
beginning
with "you
wrote:…"

Rules 401, 402,
403 – Testimony
relates to
irrelevant and
prejudicial
evidence regarding
Bard’s conduct
related to the
Recovery Filter.
Irrelevant and any
probative value
outweighed by
prejudicial effect.
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.

Admitted in Peterson
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 anchors of
the Meridian. The
testimony establishes
that the witness
(medical director of
Bard at time of
Recovery) believes that
it is not possible to
predict which patients'
filters will fracture, but
that more frequent
monitoring could
prevent some adverse
events by discovery of
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.

OVERRULED

Ciavarella,
David
11/12/2013

363:08363:16

Rules 401, 402,
403 – Testimony
relates to
irrelevant and
prejudicial
evidence regarding
Bard’s conduct
related to the
Recovery Filter.
Irrelevant and any
probative value
outweighed by
prejudicial effect.

Admitted in Peterson
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 anchors of
the Meridian. The

OVERRULED

23

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.

testimony establishes
that the witness
(medical director of
Bard at time of
Recovery) believes that
it is not possible to
predict which patients'
filters will fracture, but
that more frequent
monitoring could
prevent some adverse
events by discovery of
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,
David
11/12/2013

364:04365:02

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
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.

OVERRULED

Ciavarella,
David
11/12/2013

366:01367:05

Rules 401, 402
and 403.
Testimony does
not involve filter

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the

OVERRULED

24

or failure modes
at issue.

medical community.
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,
David
11/12/2013

367:22368:05

Rules 401, 402
and 403.
Testimony does
not involve filter
or failure modes
at issue.

Admitted in Peterson
Testimony goes to a
failure mode known to
Bard but not shared
with consumers or the
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.

OVERRULED

DEPONENT

DEF
COUNTE
R

PL
OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

Ciavarella,
David
11/12/2013

43:1543:24

Ciavarella,
David
11/12/2013

57:0257:16

Ciavarella,
David
11/12/2013

58:2359:12

Ciavarella,
David
11/12/2013

60:0961:17

FRE 403; Rules
601/602 & 701.
Lacks foundation,
witness does not
have personal

Witness is a medical
doctor with years of
experience with IVC
filters. He has proper
foundation and personal

OVERRULED

25

knowledge of
subject matter;
witness not an
expert in this
subject matter.
Ciavarella,
David
11/12/2013

84:2285:03
subject to
objection

Ciavarella,
David
11/12/2013

86:0886:16

Ciavarella,
David
11/12/2013

89:2390:10

begin at
whenever

knowledge to provide
the designated
testimony.

FRE 403:
misleading and
optional
completeness:
need to add
witness answers to
this at 85:16 &
86:8-8 (Witness
says "I'm not
sure." and "I don't
know how to
answer that
question.")

The designation is not
misleading -- it is
disjointed because
Plaintiff's counsel
interrupted the witness
and then asked the
court reporter to reread
the question.

SUSTAIN

FRE 403:
misleading and
optional
completeness:
need to add
witness answers to
this at 85:16 &
86:8-8 (Witness
says "I'm not
sure." and "I don't
know how to
answer that
question.")

The designation is not
misleading -- it is
disjointed because
Plaintiff's counsel
interrupted the witness
and then asked the
court reporter to reread
the question.

SUSTAIN

Witness is merely
attempting to answer
the question posed by
Plaintiff's counsel, and
his answer specifically is
limited to the idea that
"Bard has no place in
that individual doctorpatient decision-making
process."

OVERRULED

Lack of
foundation. The
witness cannot
speak to what
other device
manufactures
should or should
not do.

26

Ciavarella,
David
11/12/2013

94:1195:01

Ciavarella,
David
11/12/2013

104:19105:10

Ciavarella,
David
11/12/2013

106:09106:12

Ciavarella,
David
11/12/2013

106:15106:25

Ciavarella,
David
11/12/2013

127:06127:08

Ciavarella,
David
11/12/2013

127:11127:14

Rules 601/602 &
701. Lacks
foundation,
witness does not
have personal
knowledge of
subject matter;
witness not an
expert in this
subject matter.
Witness
repeatedly
testified
"probably"
indicating lack of
knowledge.

106:24-25: FRE
802: hearsay;
Judge Campbell
sustained this
objection in the
MDL. Dkt. 10403
page 5.

subject to
objection

subject to
objection

27

Witness is asked by
Plaintiff's counsel
specifically for his
personal thoughts on
why the MAUDE
database exists and
various aspects of that
database. Plaintiff has
designated the witness'
testimony regarding
MAUDE, as well.

SUSTAIN

SUSTAIN

Ciavarella,
David
11/12/2013

131:06131:12

Ciavarella,
David
11/12/2013

155:18155:21

Ciavarella,
David
11/12/2013

159:09
subject to
objection

Ciavarella,
David
11/12/2013

186:17186:21

Ciavarella,
David
11/12/2013

186:23186:25

DEPONENT

PL
COUNTERS
TO
COUNTERS

Ciavarella,
David
11/12/2013

155:22156:02

Ciavarella,
David
11/12/2013

156:08156:14

subject to
objection

FRE 401, 402,
403: testimony
cut off in middle
of question;
improper
testimony

Testimony contains a
full question and a full
answer, and is the
continuation of
Plaintiff's counsel's own
questioning on potential
complications with IVC
filters, which is directly
relevant.

OVERRULED

Defedants have
not moved for
optional
completeness. Nor
would it be
approiate her.

No objection noted

STRIKE

DEF
OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Theoreticall
y

28

Ciavarella,
David
11/12/2013

273:15273:19

Rule 801 - calls
for hearsay

The question asks if the
witness agrees with
p[r]ior testimony and
does not call for hearsay.

OVERRULED

Ciavarella,
David
11/12/2013

276:05277:05

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 a G2 filter
or a Recovery
filter.

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 []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.

OVERRULED

Ciavarella,
David
11/12/2013

284:04284:16

beginning
with when
the

This question and
answer has nothing to
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

29

defect, negligence and
failure to warn.

Ciavarella,
David
11/12/2013

299:09300:07

Ciavarella,
David
11/12/2013

371:23372:03

Rules 601/602 &
612 Witness does
not have personal
knowledge of
document
Witness was
shown a
document, was
not familiar with
it and testified
that he/she does
not have personal
knowledge about
it or the
circumstances.

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). The
question is summing up
the prior testimony and
is not referencing any
specific document. .

RESERVE

Ciavarella,
David
11/12/2013

372:05

Rules 601/602 &
612 Witness does
not have personal
knowledge of
document
Witness was
shown a
document, was
not familiar with
it and testified
that he/she does
not have personal
knowledge about
it or the
circumstances.

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

RESERVE

30

are acceptable. Id., 459
(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

31