Johnson v. C R Bard Incorporated et al

Filing 275

ORDER on Deposition Designations as to John DeFord 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 DeFord.
June 2, 2016, Deposition:
DEPONENT

DEF AFFIRM

PL OBJECTIONS

If Plainitff is
allowed to
present
testimony about
the Recovery
and the earlier
generation
filters, Bard
should be able
to present
testimony to
put it in
context. Dr.
DeFord was
disclosed on a
non-retained
expert on the
issues about

DEF RESPONSE TO
OBJECTIONS

COURT
RULING
RESERVE as
to defendants’
use of
affirmative
designation
from June 2,
2016,
deposition.

1

which he
testifies.

DeFord,
John
06/02/2016

10:04-10:05

DeFord,
John
06/02/2016

13:06-13:15

DeFord,
John
06/02/2016

14:21-15:20

DeFord,
John
06/02/2016

16:06-18:18

DeFord,
John
06/02/2016

20:22-21:05

DeFord,
John
06/02/2016

21:13-21:17

Objection Relevance
402/403: The clinical
research and results of
another product are not
relevant, are a waste of
time, and will be
confusing or mislead
the jury.

2

Plaintiff objects to
testimony regarding
filters other than the
Meridian Filter at issue
in this case, but yet
designates testimony
from various Bard
employees and former
employees, including Mr.
DeFord, regarding Bard
IVC filters such as the
Recovery and the G2
Filter, which preceded
the Meridian Filter by
several designs, and in
the case of the Recovery,
preceded the timeline of
this case by a decade. If

OVERRULED
except add
21:18-21:24

Plaintiff is permitted to
designate such irrelevant
testimony, Bard must be
permitted to do so as
well.

DeFord,
John
06/02/2016

22:01-23:18

DeFord,
John
06/02/2016

24:19-24:22

DeFord,
John
06/02/2016

78:12-78:16

DeFord,
John
06/02/2016

78:19-79:18

Objection Relevance
402/403: The clinical
research and results of
another product are not
relevant, are a waste of
time, and will be
confusing or mislead
the jury.

3

Plaintiff objects to
testimony regarding
filters other than the
Meridian Filter at issue
in this case, but yet
designates testimony
from various Bard
employees and former
employees, including Mr.
DeFord, regarding Bard
IVC filters such as the
Recovery and the G2
Filter, which preceded
the Meridian Filter by
several designs, and in
the case of the Recovery,
preceded the timeline of
this case by a decade. If
Plaintiff is permitted to
designate such irrelevant
testimony, Bard must be
permitted to do so as
well

OVERRULED

DEPONENT

PL
COUNTERS

DeFord,
John
06/02/2016

DEF OBJECTIONS

288:14-288:20

PL RESPONSE TO
OBJECTIONS
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
filter-line development.
Testimony regarding the
Recovery filter’s
complications, testing
and design is relevant
and is not outweighed by
any prejudicial effect.
Judge Campbell agreed
with this position in
Jones v. Bard. [MDL
Order No. 10819]. The
failure modes are
relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.
Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of
its IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims

4

COURT
RULING

DeFord,
John
06/02/2016

288:23-289:12

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
filter-line development.
Testimony regarding the
Recovery filter’s
complications, testing
and design is relevant
and is not outweighed by
any prejudicial effect.
Judge Campbell agreed
with this position in
Jones v. Bard. [MDL
Order No. 10819]. The
failure modes are
relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.
Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of
its IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims

5

August 15, 2019, Deposition:
DEPONENT

7:16-16:09

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

Running Objection to FRE
701 & Relevance: Plaintiff
objects to this deposition
on the grounds that this
witness has not been
designated as an expert
witness and any testimony
in violation of FRE 701,
attempting to elicit expert
opinions from a lay witness,
should be stricken.
Additionally, Plaintiff
objects to any testimony
regarding the Bard Denali
filters as they have no
relevance to Plaintiff's case.
Plaintiff makes his counterdesignations in the event
the court overrules his
objections.

DeFord,
John
08/15/2019

DEF
AFFIRM

Plaintiff has designated
much testimony from
other of Bard's witnesses
regarding the testing,
development, marketing,
and clearance of various
of Bard's filters not
involved in Plaintiff's
case. If Plaintiff is able to
designate this irrelevant
testimony regarding
Bard's other filters, Bard
must be permitted to do
so as well. Moreover, the
witness is not offering
expert testimony. He has
extensive personal
experience in the medical
device industry, with IVC
filters generally, and
specifically with Bard's
IVC filters, and his
testimony is based on
personal knowledge of
events in which he was
involved. Further, Dr.
DeFord was designated as
a non-retained expert in
this case.

OVERRULED

(11:17-16:09) FRE 401:
not relevant
(16:07-16:09) Lack of
foundation; FRE 602

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a

OVERRULED

6

witness with extensive
background and
experience with these
matters.

DeFord,
John
08/15/2019

16:12-21:11

DeFord,
John
08/15/2019

21:14-22:16

DeFord,
John
08/15/2019

22:19-24:01

DeFord,
John
08/15/2019

24:04-24:07

DeFord,
John
08/15/2019

24:09-24:18

DeFord,
John
08/15/2019

24:21-26:01

(16:12-16:24) Lack of
foundation; FRE 602
(16:25-17:07) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

7

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. Through the
course of his career, the
witness has had reason to
keep abreast of medical
literature and the medical
community's experience
as a whole with IVC
filters in general and
providing testimony
regarding that experience
and knowledge is directly
relevant.

SUSTAIN as
to 17:23-18:1
(beginning
with “And
so”), 18:1919:25.
Otherwise
OVERRULED

DeFord,
John
08/15/2019

26:04-26:12

DeFord,
John
08/15/2019

26:14-27:09

DeFord,
John
08/15/2019

27:12-28:18

(28:16-28:18) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness is entitled to
explain his answer. The
witness has previously
testified to his lengthy
experience in the medical
device industry and with
IVC filters in general. He
is speaking from personal
knowledge of events that
he was involved in.

OVERRULED

DeFord,
John
08/15/2019

28:21-30:18

(28:21-29:21) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The testimony is directly
responsive to the
question asked. The
wtiness is entitled to
explain his answer. The
witness has previously
testified to his lengthy
experience in the medical
device industry and with
IVC filters in general. He
is speaking from personal
knowledge of events that
he was involved in. The
witness is discussing facts
that are well-established
within the medical
community and to which
Plaintiff's own expert
witnesses agree.

OVERRULED

DeFord,
John
08/15/2019

30:20-30:25

OVERRULED

8

DeFord,
John
08/15/2019

31:23-32:10

(31:23-32:05) Lack of
personal knowledge; FRE
602. speculation. Opinion
testimony by a lay witness;
FRE 701.
(32:06-32:10) Lack of
personal knowledge; FRE
602. speculation. Opinion
testimony by a lay witness;
FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in.

OVERRULED

DeFord,
John
08/15/2019

32:13-32:20

(32:13-32:18) Lack of
personal knowledge; FRE
602. speculation. Opinion
testimony by a lay witness;
FRE 701.
(32:19-32:20) vague:
unclear as to what "evolved
over time" means.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The question
is not vague.

OVERRULED

DeFord,
John
08/15/2019

32:22-33:06

(32:22-32:24) vague:
unclear as to what "evolved
over time" means.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The question
is not vague.

OVERRULED

DeFord,
John
08/15/2019

33:11-33:25

(33:24-33:08) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in, as well as the
medical literature that he
is aware of on the topic
of central venous

OVERRULED

9

pressure, which the
Plaintiffs put directly at
issue in this litigation.

DeFord,
John
08/15/2019

34:02-34:08

(34:02-34:08) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in.

OVERRULED

DeFord,
John
08/15/2019

37:03-37:14

(37:03-37:14) Lack of
foundation; Lack of
personal knowledge; FRE
602. Speculation. Opinion
testimony by a lay witness;
FRE 701. No scientific
proof that filters including
the Recovery filters save
lives.

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

DeFord,
John
08/15/2019

38:14-39:17

(38:14-39:17) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

DeFord,
John
08/15/2019

39:19-40:20

(39:19-40:16) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
Speculation. Narrative.
(40:17-40:20) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

DeFord,
John
08/15/2019

40:23-42:16

(40:23-41:19) Lack of
foundation; FRE 602.
Speculation. Opinion
testimony by a lay witness;
FRE 701.
(42:14-42:16) Leading.

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

10

Lack of foundation;
Opinion testimony by a lay
witness; FRE 701.

DeFord,
John
08/15/2019

42:19-43:18

(42:19-42:21) Leading.
Lack of foundation;
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

DeFord,
John
08/15/2019

50:08-50:12

50:08-50:25) Lack of
foundation; Lack of
personal knowledge; FRE
602. Opinion testimony by
a lay witness; FRE 701.
Speculation.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

50:15-50:25

50:08-50:25) Lack of
foundation; Lack of
personal knowledge; FRE
602. Opinion testimony by
a lay witness; FRE 701.
Speculation.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

51:01-51:05

50:08-50:25) Lack of
foundation; Lack of
personal knowledge; FRE
602. Opinion testimony by
a lay witness; FRE 701.
Speculation.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

11

DeFord,
John
08/15/2019

51:08-51:16

(51:01-51:12) Lack of
foundation; Lack of
personal knowledge; FRE
602. Opinion testimony by
a lay witness; FRE 701.
Speculation.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

51:18-52:19

(51:18-51:20) Lack of
foundation; Lack of
personal knowledge; FRE
602. Opinion testimony by
a lay witness; FRE 701.
Speculation.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

54:11-54:16

(54:11-54:16) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The Plaintiff has put
these matters directly at
issue in this litigation.
Defendants are entitled
to respond with a witness
with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

54:19-55:06

(54:19-55:06) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this

OVERRULED

12

litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

DeFord,
John
08/15/2019

71:08-71:14

(71:08-71:14) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

71:16-72:02

(71:16-71:21) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(71:25-72:02) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

13

DeFord,
John
08/15/2019

72:04-72:22

(71:04-72:22) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

72:25-74:08

(72:25-73:10) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(73:18-73:24) Object to
FDA testimony based on
Plaintiff's 510k MIL. FRE
403- & 401
(74:06-74:08) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

Dr. DeFord was disclosed
as a non-retained expert.
The Court denied
Plainitff’s MIL on this
issue.

OVERRULED

DeFord,
John
08/15/2019

74:11-75:09

(74:11-74:16) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(75:06-75:09) Object to
FDA testimony based on
Plaintiff's 510k MIL. FRE
403- & 401

Dr. DeFord was disclosed
as a non-retained expert.
The Court denied
Plainitff’s MIL on this
issue.

OVERRULED

DeFord,
John
08/15/2019

75:11-75:12

(75:11-75:12) Object to
FDA testimony based on
Plaintiff's 510k MIL. FRE
403- & 401

The Court denied
Plaintiff’s MIL on this
issue.

OVERRULED

14

DeFord,
John
08/15/2019

75:14-81:10

(75:14) Object to FDA
testimony based on
Plaintiff's 510k MIL FRE
403- & 401
(77:10-77:15) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation
(77:16-77:24) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation
(77:25-78:06) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation
(80:20-80:25) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation

Dr. DeFord was disclosed
as a non-retained expert.
The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters. Defendants
incorporate by reference
their response to
Plaintiff's 510k motion in
limine.

SUSTAIN as
to 77:1078:12 and
80:17-80:25.
Otherwise
OVERRULED

DeFord,
John
08/15/2019

81:13-82:02

(81:13-82:02) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation

Dr. DeFord was disclosed
as a non-retained expert.

OVERRULED

DeFord,
John
08/15/2019

82:05-82:06

DeFord,
John
08/15/2019

82:10-82:25

15

DeFord,
John
08/15/2019

83:03-83:14

DeFord,
John
08/15/2019

83:19-84:21

DeFord,
John
08/15/2019

84:24-86:01

(87:10-87:11) Lack of
foundation; lack of personal
knowledge; FRE 602.
speculation.

DeFord,
John
08/15/2019

91:03-92:08

(91:02) Lack of foundation;
FRE 602.

DeFord,
John
08/15/2019

92:10-92:13

(92:12-92:13) Lack of
foundation; FRE 602.

16

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

SUSTAIN as
to 84:1784:21.
Otherwise
OVERRULED

OVERRULED

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

92:15-93:15

(92:15-92:25) Lack of
foundation;
(93) FRE 401/403,
testimony regarding the
Denali filter, which is not
at issue is not relevant.
(94:01-94:25) Object to
FDA testimony based on
Plaintiff's 510k MIL FRE
403- & 401, FRE 401/403,
testimony regarding the
Denali filter, which is not
at issue is not relevant.
(95:11-95:13) Lack of
foundation; lack of personal
knowledge; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
speculation. Misleading as
the study had not
concluded. FRE 403 FRE
401/403, testimony
regarding the Denali filter,
which is not at issue is not
relevant.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

97:18-97:23

(97:21-97:23) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

98:01-98:07

(98:01-98:04) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.

OVERRULED

17

(98:05-98:07) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

DeFord,
John
08/15/2019

98:10-99:01

(98:10-98:16) Lack of
foundation; FRE 602.
(98:24-99:01) Lack of
foundation; FRE 602.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

99:04-99:07

(99:04-99:07) Lack of
foundation; FRE 602.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

18

DeFord,
John
08/15/2019

99:09-99:13

(99:09-99:13) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DeFord,
John
08/15/2019

99:15100:06

(99:15-99:17) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(100:05-100:06) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

SUSTAIN as
to 100:05100:07.
Otherwise
OVERRULED

DeFord,
John
08/15/2019

100:08100:14

(100:08-100:09) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(100:10-100:14) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive

SUSTAIN as
to 100:08100:09.
Otherwise
OVERRULED

19

background and
experience with these
matters.

DeFord,
John
08/15/2019

100:16101:02

(100:16) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(100:17-100:23) Leading.
Counsel in testifying.
(100:24-101:02) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED
as to 100:16.
Otherwise
SUSTAIN

DeFord,
John
08/15/2019

101:04101:08

(101:04) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(101:05-101:08) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

SUSTAIN as
to 101:04.
Otherwise
OVERRULED

DeFord,
John
08/15/2019

101:10101:16

(101:10-101:16) Lack of
foundation; FRE 602.
Opinion testimony by a lay
witness; FRE 701.
(101:11-101:25) Relevance.
FRE 401

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters

OVERRULED

20

directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

DeFord,
John
08/15/2019

101:18101:25

(101:18-101:25) Relevance.
FRE 401

The witness has
previously testified to his
lengthy experience in the
medical device industry.
He is speaking from
personal knowledge of
events that he was
involved in. The Plaintiff
has put these matters
directly at issue in this
litigation. Defendants are
entitled to respond with a
witness with extensive
background and
experience with these
matters.

OVERRULED

DEPONENT

PL
COUNTERS

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

DeFord,
John
08/15/2019

102:20103:23

DeFord,
John
08/15/2019

104:20105:17

DeFord,
John
08/15/2019

106:04106:07

DeFord,
John
08/15/2019

106:09106:15

21

DeFord,
John
08/15/2019

106:17107:14

DeFord,
John
08/15/2019

108:05108:21
stopping at
Correct

Object to the introduction
of the article on the
grounds that it is hearsay.
Also – not a counter to any
testimony designated by
Defendants.

Use of the article is
appropriate under FRE
803(18), The article is
used a demonstrative
aide and Plaintiff’s will
not ask for admission as
an exhibit.

OVERRULED

DeFord,
John
08/15/2019

109:02109:21

Object to the introduction
of the article on the
grounds that it is hearsay.
Also – not a counter to any
testimony designated by
Defendants.

Use of the article is
appropriate under FRE
803(18), The article is
used a demonstrative
aide and Plaintiff’s will
not ask for admission as
an exhibit.

SUSTAIN

DeFord,
John
08/15/2019

109:23

Object to the introduction
of the article on the
grounds that it is hearsay.
Also – not a counter to any
testimony designated by
Defendants.

Use of the article is
appropriate under FRE
803(18), The article is
used a demonstrative
aide and Plaintiff’s will
not ask for admission as
an exhibit.

SUSTAIN

DeFord,
John
08/15/2019

110:04110:13

Object to the introduction
of the article on the
grounds that it is hearsay.
Also – not a counter to any
testimony designated by
Defendants.

Use of the article is
appropriate under FRE
803(18), The article is
used a demonstrative
aide and Plaintiff’s will
not ask for admission as
an exhibit.

OVERRULED

DeFord,
John
08/15/2019

110:15
"Yes"

Not a counter to any
testimony designated by
Defendants

OVERRULED

DeFord,
John
08/15/2019

110:21111:25

Not a counter to any
testimony designated by
Defendants

OVERRULED

DeFord,
John
08/15/2019

112:08115:21

22

DeFord,
John
08/15/2019

116:13117:19
stopping at
correctly

DeFord,
John
08/15/2019

127:02127:23

OVERRULED
except add the
rest of 117:19117:25.

Counsel is testifying – he is
reading from an article and
the only question is “did I
read it correctly?”

Rules 401, 402, 403 – This
violoates the Court’s Order
on Recovery migration
deaths. 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.)

23

Bard is presenting the
testimony of this witness
and he discusses the
Recovery filter
extensively. Plaintiff’s
cross is within the scope
of the direct. In addition,
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
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

OVERRULED

fracture. The Bard's
conduct with regard to
the design of its IVC
filters from the Recovery
filter to the Meridian is
relevant to the negligence
claims

DeFord,
John
08/15/2019

135:19136:08

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.
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 – 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. The
witness testified that he has
never seen the document
before. See 135:8-135:15.

24

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 witness has been
called by Bard as its
Executive VP and Chief
Technology officer with
over 15 and years of
experience with the
company and its IVC
filters. The information
discussed is or should be
within the scope of his

SUSTAIN

employment and
knowledge. Testimony
regarding the Recovery
filter’s complications,
testing and design is
relevant and is not
outweighed by any
prejudicial effect. Judge
Campbell agreed with
this position in Jones v.
Bard. [MDL Order No.
10819]. The failure
modes are relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.
Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of its
IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims.
The testimony is relevant
and not unfairly
prejudicial.

DeFord,
John
08/15/2019

155:12155:22

Rules 401, 402, 403 – This
violates the Court’ s ruling
on the MIL 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

25

The witness has been
called by Bard as its
Executive VP and Chief
Technology officer with
over 15 and years of
experience with the
company and its IVC
filters. The information
discussed is or should be
within the scope of his
employment and
knowledge. Testimony
regarding the Recovery
filter’s complications,
testing and design is
relevant and is not

SUSTAIN

excluded. (See ECF No.
204, p. 3-5.)

DeFord,
John
08/15/2019

156:04156:09
End at "to
be serious."

outweighed by any
prejudicial effect. Judge
Campbell agreed with
this position in Jones v.
Bard. [MDL Order No.
10819]. The failure
modes are relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.
Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of its
IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims.
The testimony is relevant
and not unfairly
prejudicial.

Rules 401, 402, 403 – This
violates the Court’ s ruling
on the MIL 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.)

The witness has been
called by Bard as its
Executive VP and Chief
Technology officer with
over 15 and years of
experience with the
company and its IVC
filters. The information
discussed is or should be
within the scope of his
employment and
knowledge. Testimony
regarding the Recovery
filter’s complications,
testing and design is
relevant and is not
outweighed by any
prejudicial effect. Judge
Campbell agreed with
this position in Jones v.
Bard. [MDL Order No.
10819]. The failure

26

OVERRULED

modes are relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.
Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of its
IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims.
The testimony is relevant
and not unfairly
prejudicial.

DeFord,
John
08/15/2019

156:11156:16
end at
"That's Fair"

Rules 401, 402, 403 – This
violates the Court’ s ruling
on the MIL 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.)

27

The witness has been
called by Bard as its
Executive VP and Chief
Technology officer with
over 15 and years of
experience with the
company and its IVC
filters. The information
discussed is or should be
within the scope of his
employment and
knowledge. Testimony
regarding the Recovery
filter’s complications,
testing and design is
relevant and is not
outweighed by any
prejudicial effect. Judge
Campbell agreed with
this position in Jones v.
Bard. [MDL Order No.
10819]. The failure
modes are relevant to the
assessment of the defects
in the design of the filter
whether a particular
failure mode has
occurred; however, Ms.

OVERRULED

Johnson has experienced
perforation, migration,
tilt, and fracture. The
Bard's conduct with
regard to the design of its
IVC filters from the
Recovery filter to the
Meridian is relevant to
the negligence claims.
The testimony is relevant
and not unfairly
prejudicial.

DeFord,
John
08/15/2019

160:07160:08
Stopping at
"G2"

DeFord,
John
08/15/2019

160:17161:01

DeFord,
John
08/15/2019

162:17162:19

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

DeFord,
John
08/15/2019

163:04163:07

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

DeFord,
John
08/15/2019

164:07164:09

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

DeFord,
John
08/15/2019

167:07167:10

DeFord,
John
08/15/2019

167:19168:04

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

28

DeFord,
John
08/15/2019

168:08

DeFord,
John
08/15/2019

168:13168:17

Stopping at
correctly

Starting at
He

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21.
Also cumulative of Dr.
Ciavarella’s testimony.

SUSTAIN

Rule 602 –this witness does
not have personal
knowledge of the
document. See, 162:20-21

SUSTAIN

DeFord,
John
08/15/2019

168:19168:25

DeFord,
John
08/15/2019

169:02169:04

DeFord,
John
08/15/2019

169:12169:19

DeFord,
John
08/15/2019

170:21172:05

DeFord,
John
08/15/2019

173:19174:06

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

175:04176:03

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

177:01177:23

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

29

DeFord,
John
08/15/2019

178:11178:15

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

178:22179:11

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

179:14180:02

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

180:06180:18

Rule 602 – the witness is
being asked about a
document he has never
seen before. See, 172:25173:3 and 173:9-11

OVERRULED

DeFord,
John
08/15/2019

181:02181:05

DeFord,
John
08/15/2019

181:07181:20

Rule 602 – the witness is
being asked about a
document he has never
seen. See, 182:2-3

OVERRULED

DeFord,
John
08/15/2019

182:09183:12

Rule 602 – the witness is
being asked about a
document he has never
seen. See, 182:2-3

OVERRULED

DeFord,
John
08/15/2019

183:16183:17

Rule 602 – the witness is
being asked about a
document he has never
seen. See, 182:2-3

OVERRULED

DeFord,
John
08/15/2019

183:19183:20

Rule 602 – the witness is
being asked about a
document he has never
seen. See, 182:2-3

OVERRULED

30

DeFord,
John
08/15/2019

202:19203:03

DEPONENT

DEF
COUNTERS
TO
COUNTERS

DeFord,
John
08/15/2019

105:18105:24

DeFord,
John
08/15/2019

107:13107:14

Plaintiff agrees to include
these lines in her cross.

MOOT

DeFord,
John
08/15/2019

119:01119:03

FRE 401,402 & 403. The
testimony identifies and
refences an exhibit that is
not discussed in the
Plaintiff’s cross. It is not
relevant and will cause
undue delay and confusion.
The testimony is outside
the scope of the cross
examination.

OVERRULED

DeFord,
John
08/15/2019

129:02129:07

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 127:24 to
134:21 The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

130:21130:24

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 127:24 to
134:21 The testimony
designated here is not
discussed in the Plaintiff’s

SUSTAIN

PL OBJECTIONS

31

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

DeFord,
John
08/15/2019

133:23–
134:10

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 127:24 to
134:21 The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

134:16134:17

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 127:24 to
134:21 The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

134:24

FRE 403. The Plaintiff
includes this line of
testimony in her cross and
so this is unnecessarily
cumulative and an undue
delay.

SUSTAIN

DeFord,
John
08/15/2019

135:10135:12

FRE 401, 402 & 403. The
testimony is of no or very
limited relevance and
results in undue delay.

SUSTAIN

DeFord,
John
08/15/2019

135:14135:15

FRE 401, 402 & 403. The
testimony is of no or very
limited relevance and
results in undue delay.

SUSTAIN

32

DeFord,
John
08/15/2019

136:09136:13

STRIKE

DeFord,
John
08/15/2019

138:09139:04

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 136:10 to
155:11. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

140:10140:15

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 136:10 to
155:11. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

151:05152:15

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 136:10 to
155:11. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

152:19152:21

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 136:10 to
155:11. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and

SUSTAIN

33

confusion. The testimony is
outside the scope of the
cross examination.

DeFord,
John
08/15/2019

154:10154:16

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 136:10 to
155:11. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

156:16156:20

FRE 401,402 & 403. The
added testimony is not
responsive to the question
asked and will require the
addition under FRCP 32(6)
and FRE 106 of 156:21157:23.

OVERRULED

DeFord,
John
08/15/2019

158:04–
158:13

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 157:24158:10 The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

SUSTAIN

DeFord,
John
08/15/2019

201:23–
202:18

FRE 401,402, 403 & 602
– the Plaintiff objects to
202:11-202:18 as the
witness specially states :I
am speculating here”
therefore he lacks the
proper foundation for his
testimony, speculations are
not relevant testimony,
they are unfairly prejudicial

SUSTAIN

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and likely to confuse or
mislead the jury.

DeFord,
John
08/15/2019

203:25–
204:05

FRE 401,402 & 403. The
Plaintiff has withdrawn
testimony from 203:03203:25. The testimony
designated here is not
discussed in the Plaintiff’s
cross. It is not relevant and
will cause undue delay and
confusion. The testimony is
outside the scope of the
cross examination.

OVERRULED

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

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