Johnson v. C R Bard Incorporated et al

Filing 274

ORDER on Deposition Designations as to John McDermott. Signed by District Judge William M. Conley on 6/5/2021. (nks)

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 McDermott.
DEPONENT
McDermott,
John
02/05/2014

PL
AFFIRM

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Bard objects to the
playing of this deposition
under Rules 401, 402 and
403. Mr. McDermott left
BPV in 2007, before the
Meridian filter was
manufactured, and his
testimony relates to the
Recovery filter, which is
irrelevant in this case.
Further, much of this
testimony relates to
Recovery migration
deaths and actions taken
by Bard regarding the
Recovery filter.

Bard chose to market the
Meridian 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 filterline development. Testimony
regarding the Recovery, G2
and Eclipse filter’s
complications, testing,
warnings and design are
relevant and are not unfairly
prejudicial. Judge Campbell
agreed with this position in

OVERRULED

1

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,
Mrs. John has experienced
tilt, migration,perforation,
and fracture of her filter with
pieces of the device
embolizing to her heart. She
is still at risk fordeath or
serious injury in the future.

McDermott,
John
02/05/2014

9:12-9:17

McDermott,
John
02/05/2014

22:2423:10
beginning
with
"while
you
were…"

McDermott,
John
02/05/2014

24:0224:05

McDermott,
John
02/05/2014

24:07

McDermott,
John
02/05/2014

24:0924:14

McDermott,
John
02/05/2014

27:1427:18

McDermott,
John
02/05/2014

27:2127:23

2

McDermott,
John
02/05/2014

28:1028:13

McDermott,
John
02/05/2014

66:0366:05
beginning
with "did
you
ever…"

McDermott,
John
02/05/2014

66:0966:10

McDermott,
John
02/05/2014

66:1566:19

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. This testimony
relates to alleged “bad
acts” regarding the
Recovery that were
excluded by MIL.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

66:21

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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

66:2367:05

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. If allowed, the

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

3

counters are necessary for
completeness

McDermott,
John
02/05/2014

69:1469:15

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. Also, inclomplete
answer. The answer
continues on lines, 15,16,
19 and 21-22

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

78:2279:04
beginning
with "But
did
you…"
We are
Redacting
the word
Death
from
78:24.

Rules 401, 402, 403 –
This testimony violates
the Court’s ruling on
Recovery migration
deaths. 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.)

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

83:0583:06
beginning
with
"Exhibit
2…"

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
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

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

4

outweighed by prejudicial
effect.

McDermott,
John
02/05/2014

83:0984:03

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

87:0387:05

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

91:0191:13
beginning
with "this
is page…"

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
Counsel is reading from
the document. 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

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

5

outweighed by prejudicial
effect.

McDermott,
John
02/05/2014

91:1491:22

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
Rules 401, 402 & 403
(sustained by Judge
Campbell) . 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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

92:0392:18

Rule 602 – witness does
not have personal
knowledge of the
document. See, 84:4-9.
Rules 401, 402 & 403
(sustained by Judge
Campbell). 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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

93:18

Rules 401, 402 & 403
(sustained by Judge
Campbell). Rules 401,
402, 403 – Testimony
relates to irrelevant and
prejudicial evidence
regarding Bard’s conduct
related to the Recovery
Filter. Irrelevant and any

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

6

probative value
outweighed by prejudicial
effect.

McDermott,
John
02/05/2014

93:2594:01
beginning
with "So
we're
on…"

Rule 602 – there is no
indication that the
witness has personal
knowledge of the
document and counsel is
simply reading from it.
Rules 401, 402 & 403
(sustained by Judge
Campbell). 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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

94:1794:18
beginning
with "It's
Bates
No…"

Rule 602 – there is no
indication that the
witness has personal
knowledge of the
document and counsel is
simply reading from it.
Rules 401, 402 & 403
(sustained by Judge
Campbell). 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,
and 403 – testimony
concerns what physician
would have wanted to
know / would expect a

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

7

manufacturer to tell
him/her.

McDermott,
John
02/05/2014

94:2095:03

Rule 602 – there is no
indication that the
witness has personal
knowledge of the
document and counsel is
simply reading from it.
Rules 401, 402 & 403
(sustained by Judge
Campbell). 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.

McDermott,
John
02/05/2014

98:0698:10

Rules 401, 402 & 403.
(sustained by Judge
Campbell).

SUSTAIN

McDermott,
John
02/05/2014

98:1498:20
beginning
with
"Isn't
that…"

Rule 602 – witness has no
personal knowledge of the
document and is simply
agreing that counsel is
reading it correctly.

SUSTAIN

McDermott,
John
02/05/2014

101:10101:14

Rules 401, 402 & 403.
This is not a question.
Counsel is testifying.

SUSTAIN

McDermott,
John
02/05/2014

105:22106:01
beginning
with "this
was…"

Rules 401, 402, 403 –
Testimony relates to
irrelevant and prejudicial
evidence regarding Bard’s
conduct related to the

8

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

SUSTAIN

ending
with
"Yeah."

Recovery Filter. Irrelevant
and any probative value
outweighed by prejudicial
effect. Again, counsel is
testifying and the witness
is confirming what was
read.

McDermott,
John
02/05/2014

107:15108:14

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. Again, counsel is
testifying and the witness
is confirming what was
read.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

108:23109:05
beginning
with "is
there
any…"

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. Again, counsel is
testifying and the witness
is confirming what was
read.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

111:16111:20

This testimony relates to
the Reecovery filter and
alleged bad acts regarding
the Recovery filter. 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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

9

McDermott,
John
02/05/2014

111:23

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.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

112:01112:02

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. To the extent this
testimony is allowed the
counters are necessary for
completeness.

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

McDermott,
John
02/05/2014

112:12112:14
start at "it
became"
end at "in
2004"

Rules 401, 402, 403 –
This testimony violates
the Court’s ruling on
Recovery migration
deaths. 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. 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.)

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.
Plaintiff will redact "I
showed you that remedial
action plan where there was
that second reported death”
from 112:14-15 as indicated

OVERRULED

10

McDermott,
John
02/05/2014

112:15112:18
Start at
"that the"

Rules 401, 402, 403 –
This testimony violates
the Court’s ruling on
Recovery migration
deaths. 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. 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.)

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.
Plaintiff will redact "I
showed you that remedial
action plan where there was
that second reported death”
from 112:14-15 as indicated

OVERRULED

McDermott,
John
02/05/2014

112:20112:22

Rules 401, 402, 403 –
This testimony violates
the Court’s ruling on
Recovery migration
deaths. 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.)

See Plaintiff's response to
Bard's general objection
above. The testimony is
relevant and is not unfairly
prejudicial.

OVERRULED

11

McDermott,
John
02/05/2014

143:09144:01

No foundation, calls for
speculation.

McDermott,
John
02/05/2014

190:11190:16
beginning
with "I
marked…
"

Rules 601 & 602. The
witness testified he was
not involved in the
creation of this document
and has no personal
knowledge about it. See,
190:17-23

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

192:12192:14

Rules 601 & 602. See
192: 17-193:5. The
witness testified he was
not involved in the
creation of this document
and has no personal
knowledge about it. 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.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

194:17195:03

Rules 601, 602 & 612.
Document is after witness
left the company. He has
no personal knowledge.
(see 284:5) (Objection
sustained by Judge
Campbell). 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. Witness is simply
confirming what the

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

12

OVERRULED
but strike lines
143:15 and
143:25.

exhibit says. If testimony
is allowed, couters at 195196 are necessary for
completeness, and will
not make sense out of
context.

McDermott,
John
02/05/2014

196:12197:07

Rules 601, 602 & 612.
Document is after witness
left the company. He has
no personal knowledge.
(see 284:5) (Objection
sustained by Judge
Campbell). 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.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

228:17228:23

Rules 410, 402 and 403implies Bard has a duty to
patients when the law in
Wisconsin is that the
duty to warn is to the
physician.

No such implication. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

229:04229:08

McDermott,
John
02/05/2014

230:08

McDermott,
John
02/05/2014

284:02284:15
beginning
with
"Exhibit
15.."

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.
See, 284:5.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The

SUSTAIN

13

testimony is relevant and is
not unfairly prejudicial.

McDermott,
John
02/05/2014

285:01285:10
beginning
with
"And if
you…"

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

285:12

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard.

SUSTAIN

McDermott,
John
02/05/2014

285:14285:21

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

285:24285:25

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard.

SUSTAIN

14

McDermott,
John
02/05/2014

286:02286:04

McDermott,
John
02/05/2014

288:13289:03

McDermott,
John
02/05/2014

289:05289:07

McDermott,
John
02/05/2014

296:17296:22

McDermott,
John
02/05/2014

296:24

McDermott,
John
02/05/2014

297:01297:24
beginning
with
"Now,
one…"

McDermott,
John
02/05/2014

303:13303:23
beginning
with "in
some…"

Rules 601, 602 and 612.
Witness has no personal
knowledge of the
document that was
written 4 years after he
left the company, and
counsel is reading the
document into evidence.

see Plaintiff's response to
Bard's general objection
above. Further, the
testimony of the witness
esrablished his knowledge of
the subject matter and he is
also charged with such
knowledge by virtue of his
position at Bard. The
testimony is relevant and is
not unfairly prejudicial.

SUSTAIN

This violates the Court’s
ruling on Recovery
migration deaths. The
“reports” on line 13 refer
to reports of migration
deaths. Rules 401, 402,
403 – Testimony does not
involve filter at issue
and/or failure mode at
issue; Irrelevant and any
probative value

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial. It
does not violate the court's
ruling as it does not mention
a Recovery cephalad
migration death. It talks
about a physician's response
to one complaint of
migration. It is relevant to

OVERRULED

15

outweighed by prejudicial
effect.

the failure to warn and
negligence claims and is not
unfarily prejudical.

McDermott,
John
02/05/2014

307:01307:15

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. 307:14-15 is a
question without an
answer – calls for
speculation

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.
The answer to 307:14-15
begins at 307:19 and there is
no speculation.

OVERRULED

McDermott,
John
02/05/2014

307:19307:20

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.

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

307:22307:23

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.

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.

OVERRULED

McDermott,
John
02/05/2014

308:04308:08

This violates the Court’s
ruling recovery migration
deaths. 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

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.
The question and answer do
not violate the Court's MIL
ruling as the question and
answer do not mention a
Recovery Cephalad
migration death. They
reference the rising number

OVERRULED

16

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.)

of complications experienced
by the filter and known to
Bard and that evidence has
not been excluded.

McDermott,
John
02/05/2014

308:10

This violates the Court’s
ruling recovery migration
deaths. 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.

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.
The question and answer do
not violate the Court's MIL
ruling as the question and
answer do not mention a
Recovery Cephalad
migration death. They
reference the rising number
of complications experienced
by the filter and known to
Bard and that evidence has
not been excluded.

OVERRULED

McDermott,
John
02/05/2014

311:12312:08

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.

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.

SUSTAIN

McDermott,
John
02/05/2014

317:15317:21

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.

See Plaintiff's response above
to Bard's general FRE 402
and 403 objections. The
testimony is relevant and is
not unfairly prejudicial.

SUSTAIN

17

McDermott,
John
02/05/2014

320:21320:24
beginning
with "The
comparis
on…"

McDermott,
John
02/05/2014

321:01

McDermott,
John
02/05/2014

349:17349:21

McDermott,
John
02/05/2014

349:25

McDermott,
John
02/05/2014

350:02350:03

McDermott,
John
02/05/2014

350:06

DEPONENT

DEF
COUNTER

McDermott,
John
02/05/2014

65:1265:17

McDermott,
John
02/05/2014

65:19

McDermott,
John
02/05/2014

65:2166:03
(ends at
other)

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

(anybody
)

18

COURT
RULING

McDermott,
John
02/05/2014

66:07

McDermott,
John
02/05/2014

67:0667:07

STRIKE

McDermott,
John
02/05/2014

67:09

STRIKE

McDermott,
John
02/05/2014

69:1569:16

Non-responsive.
Objection located at
69:23.

Plaintiff may not appreciate
the witness' complete
answer, but that does not
mean that it is nonresponsive. The designated
testimony reflects the
witness' complete response
to Plaintiff's counsel
attempting to force the
witness into a yes or no
answer with which he is
uncomfortable, and to
explain his discomfort with
that answer.

OVERRULED

(They're)

McDermott,
John
02/05/2014

69:19

Non-responsive.
Objection located at
69:23.

Plaintiff may not appreciate
the witness' complete
answer, but that does not
mean that it is nonresponsive. The designated
testimony reflects the
witness' complete response
to Plaintiff's counsel
attempting to force the
witness into a yes or no
answer with which he is
uncomfortable, and to
explain his discomfort with
that answer.

OVERRULED

McDermott,
John
02/05/2014

69:2169:22

Non-responsive.
Objection located at
69:23.

Plaintiff may not appreciate
the witness' complete
answer, but that does not
mean that it is nonresponsive. The designated

OVERRULED

19

testimony reflects the
witness' complete response
to Plaintiff's counsel
attempting to force the
witness into a yes or no
answer with which he is
uncomfortable, and to
explain his discomfort with
that answer.

McDermott,
John
02/05/2014

78:1578:21
subject to
objection

McDermott,
John
02/05/2014

84:0484:09
subject to
objection

Plaintiff objects under
rules 401, 402 and 403.
Who exactly reviewed or
contributed to the
document is irrelevant to
the issues at hand.

This testimony is relevant to
establish that Plaintiff's
counsel is questioning the
witness on a document he
did not be involved in
creating, to establish who
created the document being
discussed (contrary to
Plaintiff's objection, this
testimony does not list
individuals who contributed
to this document), and to
establish the processes at
Bard, which Plaintiff
attempts to impugn through
various other deposition
testimony.

OVERRULED

McDermott,
John
02/05/2014

84:1484:16

Plaintiff objects under
rules 401, 402 and 403.
Who exactly reviewed or
contributed to the
document is irrelevant to
the issues at hand.

This testimony is relevant to
establish that Plaintiff's
counsel is questioning the
witness on a document he
did not be involved in
creating, to establish who
created the document being
discussed (contrary to
Plaintiff's objection, this
testimony does not list
individuals who contributed
to this document), and to
establish the processes at

OVERRULED

subject to
objection

20

Bard, which Plaintiff
attempts to impugn through
various other deposition
testimony.

McDermott,
John
02/05/2014

84:2184:23
subject to
objection

McDermott,
John
02/05/2014

95:1095:17

McDermott,
John
02/05/2014

Plaintiff objects under
rules 401, 402 and 403.
Who exactly reviewed or
contributed to the
document is irrelevant to
the issues at hand.

This testimony is relevant to
establish that Plaintiff's
counsel is questioning the
witness on a document he
did not be involved in
creating, to establish who
created the document being
discussed (contrary to
Plaintiff's objection, this
testimony does not list
individuals who contributed
to this document), and to
establish the processes at
Bard, which Plaintiff
attempts to impugn through
various other deposition
testimony.

OVERRULED

Plaintiff objects under
rules 401, 402 and 403.
Who exactly reviewed or
contributed to the
document is irrelevant to
the issues at hand.

This testimony is relevant to
establish that Plaintiff's
counsel is questioning the
witness on a document he
did not be involved in
creating, to establish who
created the document being
discussed (contrary to
Plaintiff's objection, this
testimony does not list
individuals who contributed
to this document), and to
establish the processes at
Bard, which Plaintiff
attempts to impugn through
various other deposition
testimony.

OVERRULED

105:16105:22

STRIKE

21

(end at
but)
McDermott,
John
02/05/2014

106:01106:07
(The --)

STRIKE

McDermott,
John
02/05/2014

107:10107:14

STRIKE

McDermott,
John
02/05/2014

112:05112:08

McDermott,
John
02/05/2014

127:10127:15

vague

Witness is simply attempting
to answer the question posed
by Plaintiff's own counsel.
Plaintiff fails to explain how
the testimony is vague.

OVERRULED

McDermott,
John
02/05/2014

127:17

vague

Witness is simply attempting
to answer the question posed
by Plaintiff's own counsel.
Plaintiff fails to explain how
the testimony is vague.

OVERRULED

McDermott,
John
02/05/2014

128:02128:07

vague

Witness is simply attempting
to answer the question posed
by Plaintiff's own counsel.
Plaintiff fails to explain how
the testimony is vague.

OVERRULED

McDermott,
John
02/05/2014

137:16137:20

McDermott,
John
02/05/2014

137:22137:23

non-responsive.

The witness responding that
he believes Bard was "always
very transparent" is
responsive to Plaintiff's
counsel's question as to what
might constitute
transparency.

OVERRULED

McDermott,
John
02/05/2014

190:17190:23

FRE 602

The witness is merely
attempting to respond to
Plaintiff's counsel's repeated

OVERRULED

22

subject to
objection

attempts to elicit an answer,
and is not offering anything
outside of his own personal
understanding and
recollection.

McDermott,
John
02/05/2014

192:17193:05
subject to
objection

leading;answer nonresponsive; calls for
speculation

Plaintiff objects here that her
own counsel is leading an
adverse witness, which he is
permitted to do on cross.
Moreover, the witness
provides a complete response
of what he personally
recollects regarding the
subject matter of Plaintiff's
counsel's question.

OVERRULED

McDermott,
John
02/05/2014

195:10195:13

non-responsive

The designated testimony is
the witness' complete answer
to the previous question. It is
directly responsive to the
previous question, and
provides an explanation of
his answer.

OVERRULED

Plaintiff objects under
rules 401, 402 and 403.
This is an unnecessary
and non-relevant
statement/sidebar. This
also is not a question.

Plaintiff's counsel's is
necessary to establish why
the witness' response, which
was designated by Plaintiff,
appears confused.

SUSTAIN

subject to
objection

McDermott,
John
02/05/2014

195:23196:11
subject to
objection

McDermott,
John
02/05/2014

199:24199:25
subject to
objection

McDermott,
John
02/05/2014

229:01

McDermott,
John
02/05/2014

291:06291:08
(end at
was:)

23

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

24