Johnson v. C R Bard Incorporated et al

Filing 278

ORDER on Deposition Designations as to Michael Randall. 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 Michael Randall.
January 18, 2017, Deposition:
DEPONENT
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

PL AFFIRM

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING
MOOT, also
ADD 19:14.

19:15-19:25

Incomplete question and
no answer designated.

Plain[ti]ff will include
19:17-19:25, as
indicated.

20:06-20:09

Partial answer without a
question.

Plaintiff will include
20:06-20:09 as indicated

MOOT

Counters are necessary for
completeness.

Plaintiff added line 19 to
accommodate defendant's
optional completeness
request.

MOOT
(counters have
been included)

20:09

22:04-22:06
Starting at
"What"
22:07-22:10
Starting at
"the initial"
22:14-22:19

1

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

23:16-23:24

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

47:09-47:13
Starting
"And"
47:15

24:02-24:05

24:08-24:11

25:08-25:17
Starting at
"And"
35:07-35:09

35:21-35:25
Starting at
"Tell"
37:17-38:11
Starting at
"So"
39:18-39:25
Starting at
"under"
40:01-40:04
Starting at
"And
40:11-40:15
Starting at
"And"

47:18

counters are necessary for
completeness and to put
question in context.
counters are necessary for
completeness and to put
question in context.
counters are necessary for
completeness and to put
question in context.
Incomplete answer.
Remainder of 40:15 needs
to be included. Moreover,
no question is being
asked. Counsel is merely
reading the document and
asking witness to confirm
that he is reading it
correctly.

counters are necessary for
completeness and to put
question in context.

2

Plaintiff will complete the
response on 40:15.

MOOT
(counters have
been included)
MOOT
(counters have
been included)
MOOT
(counters have
been included)
MOOT as to
40:15.
OVERRULED
as to
remainder.

MOOT
(counters have
been included)

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

48:09-48:22

counters are necessary for
completeness and to put
question in context.

49:07-49:11
Starting at
"So"
49:13-49:14

counters are necessary for
completeness and to put
question in context.

49:17-49:20

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

51:08-51:09

counters on page 50 are
necessary for
completeness and to put
question in context.
counters are necessary for
completeness and to put
question in context.

51:19-51:25
Starting at
"this"
53:15-53:20
Starting at
"there"
56:22-57:04
Starting at
"there's"
57:08

counters are necessary for
completeness and to put
question in context.

Randall,
Mike
01/18/2017

60:24:61:16

Counters on page 60 are
necessary for
completeness.

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

66:17

MOOT
(counters have
been included)
MOOT
(counters have
been included)

MOOT
(counters have
been included)
MOOT
(counters have
been included)
MOOT
(counters have
been included)

Incomplete answer - entire
answer is lines 5-11.
Complete answer should
be played.

70:02-70:05
Starting at
"Bard"
70:23-70:25

71:20-71:22

3

Plaintiff added line 60:24
-61:01 to accommodate
defendant's optional
completeness request.

SUSTAIN;
ADD entire
answer from
57:5-57:11.
MOOT

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

71:24

87:11-87:18

Objection. This testimony
mischaracterizes the
document and assumes
facts not in evidence.

Randall,
Mike
01/18/2017

88:21-89:07

Objection. This testimony
mischaracterizes the
document and assumes
facts not in evidence.

Randall,
Mike
01/18/2017

93:11-94:01

Objection. This
testimony, 93:21-94:1 was
mischaracterizes the
document. Also, asked
and answered.

72:01-72:11

82:17-82:20

OVERRULED

This testimony assumes
facts not in evidence.

83:05-83:22

86:22-87:08

4

FRCP 32(6) and FRE
106 only requires
completeness that "in
fairness ought to be
considered at the same
time". Defendants have
not designated any
specific testimony to
include nor demonstrated
why this testimony, in
the name of fairness,
must be considered at the
same time as Plaintiff's
designation.
FRCP 32(6) and FRE
106 only requires
completeness that "in
fairness ought to be
considered at the same
time". Defendants have
not designated any
specific testimony to
include nor demonstrated
why this testimony, in
the name of fairness,
must be considered at the
same time as Plaintiff's
designation.
The plaintiff does not
und[e]rstand the
objection. The
testi[]mony is relevant
and is not unnecessarily

OVERRULED

OVERRULED
except STRIKE
89:1.

SUSTAIN

cumulative of any prior
testimony.

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

Randall,
Mike
01/18/2017

Randall,
Mike
01/18/2017

100:17100:22
102:01103:03
125:04125:11
126:22127:06
128:14128:17
129:01129:04
start at
"Wouldn't
that"
129:05129:22

130:18130:24

Starts in the middle of a
question. Vague and
ambiguous.

Plaintiff has clarified the
start of the question as
indicated.

MOOT

Objection - incomplete
answer. This starts answer
in the middle of the
answer. Lines 5-8 are
necessary for
completeness and so the
answer is not out of
context. Counters at
129:23-130-17 are
necessary for
completeness.
Counters at 131-132 are
necessary f[or]
completeness and will not
make sense out of context.

No objection has been
stated. The added lines
have been Included as
optional completeness to
the Plaintiff's offer on
direct.

MOOT as to
lines 5-8 as
plaintiff has
included them;
MOOT as to
129:23-130:17
as the counters
have been
included.

FRCP 32(6) and FRE
106 only requires
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.

MOOT
(counters have
been included)

5

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

145:23146:06

Randall,
Mike
01/18/2017

182:06:182:
23
Start at "so:"

Randall,
Mike
01/18/2017

182:14182:23
Starting at
"We"

Randall,
Mike
01/18/2017

183:07183:12

181:15182:03
Start at "if"
and end at
"it"

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. Moreover, Rule
407, subsequent remedial
measure. Incomplete
answer - the entire answer
is necessary or it is out of
context and an attempt at
creating sound bites.
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. Moreover, Rule
407, subsequent remedial
measure. Incomplete
answer - the entire answer
is necessary or it is out of
context and an attempt at
creating sound bites.
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. Moreover, Rule
407, subsequent remedial
measure.
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. Moreover, Rule

6

The testimony shows that
Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with the
Meridian filter. Also
shows that Bard knew
there was issue with their
current line of filters. The
added lines have been
included as optional
completeness to the
Plaintiff's offer on direct.

OVERRULE as
to 401, 402,
and 403
objections.
RESERVE as
to 407
objection.

The testimony shows that
Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with the
Meridian filter. Also
shows that Bard knew
there was issue with their
current line of filters. The
added lines have been
included as optional
completeness to the
Plaintiff's offer on direct.

OVERRULE as
to 401, 402,
and 403
objections.
RESERVE as
to 407
objection.

The testimony shows that
Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with the
Meridian filter. Also
shows that Bard knew
there was issue with their
current line of filters.

OVERRULE as
to 401, 402,
and 403
objections.
RESERVE as
to 407
objection.

The testimony shows that
Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with the
Meridian filter. Also
shows that Bard knew
there was issue with their
current line of filters.

OVERRULE as
to 401, 402,
and 403
objections.
RESERVE as
to 407
objection.

407, subsequent remedial
measure.

DEPONENT
Randall,
Mike
01/18/2017

DEF
COUNTER

Randall,
Mike
01/18/2017

22:18-23:06
(starting at
"and")

Randall,
Mike
01/18/2017

PL OBJECTIONS

24:12-25:07

Unless specifically stated
otherwise for purposes of
optional completeness,
Plaintiff is not agreeing to
insert any of the
Defendants' counter
designations into her
presentation of the
witness' testimony. The
lack of specifi[c]
obj[e]ction simply means
the [p]laintiff doe[s ]not
object to the[ ]Defendants
offer of that testimony[]y
[]as cross/counter offer.

Plaintiff added line 19 to
accom[m]odate
defendant's optional
completeness. NO
objection to defendants[’]
designation of 22:2023:06

7

DEF RESPONSE TO
OBJECTIONS

COURT
RULING
RESERVE to
extent also
using
10/3/2018 trial
deposition.
Otherwise,
OVERRULED.
As the court
already ruled,
counter
designations
are to appear in
the initial
video, and not
as a separate
video to be
played
afterwards.
Thus, to the
extent allowed,
defendants’
counterdesignations
are to appear in
plaintiff’s
presentation of
Randall’s
testimony.
MOOT

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

36:10

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

39:25
("That's
what it says
here.")
40:04
"That's what
it says here "

Randall,
Mike
01/18/2017

40:06
("of all vena
cava filters")

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

40:07-40:10
(starting at
"And then")
40:15
("that's what
it says")

Randall,
Mike
01/18/2017

47:20-47:21

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

47:24-48:08

36:20-36:23
(starting at
"Is")
37:13-37:17
(starting at
"this")
(ending at
"anyway")

STRIKE

FRE 401, 402 & 403 37:15 - 37:17 ending at
"anyway" is a sidebar
comment by couns[el] and
is not a question or
testimony. It is not
relevant and could have
the potential to confuse or
mislead. It is unfairly
prejudicial.
Plaintiff added the rest of
30:25 to accommodate
defendant's optional
completeness request.

OVERRULED

Plaintiff added the rest of
40:04 to accommodate
defendant's optional
completeness request.
Plaintiff added the rest of
40:06 to accommodate
defendant's optional
completeness request.

MOOT

Plaintiff added the rest of
40:15 to accommodate
defendant's optional
completeness request.
FRE: 401,402 & 403. The
requested testimony is
non re[s]po[]nsive [to] the
question asked. An
objection was made at the
time of the deposition.

MOOT

48:23-49:06

8

MOOT

MOOT

OVERRULED

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

50:02-50:18

Randall,
Mike
01/18/2017

52:03-52:07

Randall,
Mike
01/18/2017

57:09-57:11

Randall,
Mike
01/18/2017

60:24-61:01
(starting at
"the way")
(ending at
"that")
70:15-70:16

Randall,
Mike
01/18/2017

51:10-51:19
(ending at
"and")

FRE 401, 402 - The
offered testimony is not
relevant and is not
responsive to the question
asked. Fairness does not
require its inclusion under
optional completeness.
FRE 401, 402 , 403 &
602 - The testimony is not
relevant and consists of
the witness speculating as
to whether additional
document may exist with
out such a question
pending. The witness
admits "I'm not sure". The
testimony is likely to
confuse or mislead and is
unfairly prejudicial.
FRE 401, 402 , 403, 405
& 802 - The testimony is
not relevant and consists
of the witness testifying
that unidentified third
parties have compliment
the design of the Bard
filter. The testimony is
offered for the truth of the
matter asserted and to
bolster the reputation of
the company. The
testimony is likely to
confuse or mislead and is
unfairly prejudicial.
Plaintiff added line 60:24
-61:01 to accommodate
defendant's optional
completeness request.

The testimony is
necessary to explainthe
document and avoid a
soundbite without proper
context.

OVERRULED

The testimony is
necessary to explainthe
document and avoid a
soundbite without proper
context. The witness was
handed a document that
is a draft or not complete
and is entitled to explain
that.

OVERRULED

The entire answer needs
to include all of line 61:1

MOOT

FRE 401, 402 & 403 The offered testimony is
not relevant and the
offereed testimnoy is
answer to q question that
was not included and
taken completely out of

The question and answer
are directly relevant to
the issues in this case
about the Meridian filter.
The witness directly
answers the question.

OVERRULED.
Also, ADD
70:06-70:22.

9

Plaintiff chooses to only
play the part of the
answer rather than the
entire anser. No objection
to the responsiveness of
the question was made at
the time.

OVERRULED

context. is not responsive
to the question asked.
Fairness does not require
its inclusion under
optional completeness.
The testimony is likely to
confuse or mislead and is
unfairly prejudicial.

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2018
Randall,
Mike
01/18/2019
Randall,
Mike
01/18/2020
Randall,
Mike
01/18/2021
Randall,
Mike
01/18/2022
Randall,
Mike
01/18/2023
Randall,
Mike
01/18/2024
Randall,
Mike
01/18/2025
Randall,
Mike
01/18/2026
Randall,
Mike
01/18/2027

71:04-71:12

71:15-71:16

87:19-87:24

88:01-88:02

88:06-88:12

88:14-88:20

89:08-89:20

89:23-89:24
(starting at
"yeah")
90:02-90:15

90:17-90:19

92:05-92:06

92:08-92:10

10

Randall,
Mike
01/18/2028
Randall,
Mike
01/18/2029
Randall,
Mike
01/18/2029
Randall,
Mike
01/18/2030
Randall,
Mike
01/18/2031
Randall,
Mike
01/18/2032
Randall,
Mike
01/18/2033

Randall,
Mike
01/18/2034
Randall,
Mike
01/18/2035
Randall,
Mike
01/18/2036
Randall,
Mike
01/18/2037
Randall,
Mike
01/18/2038

92:12-92:14

92:17-93:08

94:02-94:06

100:23101:21
101:24101:25
105:05105:07
105:13105:17
(starting at
"looking")
(ending with
"filter.")
107:20107:24
(starting
with "If")
108:03
("I think it's
150")
111:04111:08
(ending with
"model,")
111:11112:04
(ending with
"too")
112:15112:16
(starting
with "the")

11

Randall,
Mike
01/18/2039
Randall,
Mike
01/18/2040
Randall,
Mike
01/18/2041
Randall,
Mike
01/18/2042
Randall,
Mike
01/18/2017

112:18

112:20112:21
116:01116:08
(starting
with "you")
116:19116:20
(starting
with "the")
129:05129:08

Randall,
Mike
01/18/2017

129:23130:17

Randall,
Mike
01/18/2017

131:05132:09

The added lines have been
Included as optional
completeness to Plaintiffs
offer on direct.
Expert testimony by a lay
witness. Mr. Randall
admits in the designation
that he is not an expert in
endurance testing or
limits.

Expert testimony by a lay
witness. Mr. Randall
admits in the designation
that he is not an expert in
endurance testing or
limits.

12

MOOT

Witness' statement that
he is not an expert in
endurance limits does not
mean that he is
attempting to improperly
proffer expert testimony
and cannot testify
regarding testing that
Bard performed. Witness
indicated that his
testimony is from his
experience in the
industry, and what is well
known in the industry.
This is not expert
opinion, but testimony
from a lay witness.
Witness' statement that
he is not an expert in
endurance limits does not
mean that he is
attempting to improperly
proffer expert testimony
and cannot testify
regarding testing that
Bard performed. Witness
indicated that his
testimony is from his
experience in the
industry, and what is well
known in the industry.

OVERRULED

OVERRULED

This is not expert
opinion, but testimony
from a lay witness.

Randall,
Mike
01/18/2043
Randall,
Mike
01/18/2044
Randall,
Mike
01/18/2045
Randall,
Mike
01/18/2046
Randall,
Mike
01/18/2017

Randall,
Mike
01/18/2017

162:24163:04
(starting
with "this")
163:07163:10
165:09165:14
(starting at
"this")
166:11166:15
(staring at "I
think")
181:20182:06
(starting
with "and
with")
(ending with
"so")

182:11182:14
(beginning
with "so")

FRE 401, 402, 403,
801(a) & 802 -The
offered testimony at
182:03-182:06 - is
hearsay. It is a reference
to on verbal conduct as to
what other companies do
that is intended to prove
the truth of the matter
asserted. The referenced
conduct is not relevant
and it likely to confuse or
mislead and is unfairly
prejudical. Plaintiff cannot
cross examine "other
companies" about the
referenced conduct.
Plaintiff has added
182:03-182:06 and
182:11-182:14 to her
direct to accommodate
Bard's optional
completeness request.
Plaintiff has added
182:03-182:06 and
182:11-182:14 to her
direct to accommodate

13

There is no hearsay in his
answer. The witness is
explaining how the
testing process works
with later generations of
filters. This is directly
relevant to Plainitf's
claims in this case.

MOOT as to
181:20-182:03.
OVERRULED
as to 182:03182:06. In
other words,
181:20-182:06
is to be
included in its
entirety.

MOOT

(ending with
"platform")

Bard's optional
completeness request.

DEPONENT

PL
COUNTER
S TO
COUNTER
S
NONE

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

DEPONENT
Randall,
Mike
01/18/2017

DEF
AFFIRM

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING
Address
availability,
duplication,
and
participation of
plaintiff’s
counsel.

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

13:19-14:24
begin at
Why
19:14-19:22
Begin at You

Randall,
Mike
01/18/2017

22:20-23:14

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

38:23-39:03

Plaintiff Objects to the use
of formal trial testimony
of Mike Randall under
FRE 801(c) and FRE 804

20:09

22:04-22:10
begin at
What

40:01-40:04

FRE: 403- Cumulativethe testmony has been
presented in Plaintiffs's
direct examination of this
witness.
FRE: 403- Cumulativethe testmony has been
presented in Plaintiffs's
direct examination of this
witness.
FRE 611 - The testimony
is outside the scope of the
cross examination.
Hearsay FRE: 403Cumulative- the testmony
has been presented in
Plaintiffs's direct

14

OVERRULED

OVERRULED

OVERRULED

The witness is reading
from a regularly kept
business record of Bard
that was presented to

OVERRULED

examination of this
witness.

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

61:05-61:25

Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

152:20
begin at the
Meridian
152:23
begin at
August
153:05153:16

Lack of foundation. FRE:
403- Cumulative- the
testmony has been
presented in Plaintiffs's
direct examination of this
witness.
FRE: 403- Cumulativethe testmony has been
presented in Plaintiffs's
direct examination of this
witness.

The question lays the
foundation.

Lack of foundation,
hearsay,

-The witness is stating
why the company took
action. Rule 803(3)

SUSTAIN

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

40:06

Randall,
Mike
01/18/2017

him as an exhibit by
Plainitff's counsel

Randall,
Mike
01/18/2017
DEPONENT
Randall,
Mike
01/18/2017
Randall,
Mike
01/18/2017

60:24-61:03
begin at the
way

OVERRULED

OVERRULED

178:09178:12
begin at The
Meridian
178:24178:25

PL
COUNTERS

38:06-38:11
starting with
"So
essentially"
74:08-74:12

This is not a counter to
any testimony designated
by Defendants.

February 2, 2017, Deposition:

15

OVERRULED

DEPONENT

PL AFFIRM

Randall,
Mike
02/02/2017

7:04-7:08

Randall,
Mike
02/02/2017

7:12-7:17

Randall,
Mike
02/02/2017

10:01-10:13

Randall,
Mike
02/02/2017

11:04-11:10

Randall,
Mike
02/02/2017

12:03-12:07
begin at Are
there

Randall,
Mike
02/02/2017

25:03-25:20

Randall,
Mike
02/02/2017

45:11-45:15

Randall,
Mike
02/02/2017

47:24-48:06

Randall,
Mike
02/02/2017

48:08-48:10

Randall,
Mike
02/02/2017

DEF OBJECTIONS

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Mr. Randall is no longer
with Bard.

He was "currently" the
director of research and
development when the
deposition was taken.
His title and position
are relevant to his
testimony and go to
bais and credilblity.

OVERRULED

72:21-72:22

16

Randall,
Mike
02/02/2017

72:24-73:13

Randall,
Mike
02/02/2017

86:13-86:20
begin at Would
you

Randall,
Mike
02/02/2017

88:06-88:14
begin at would
you
end at by Bard

Randall,
Mike
02/02/2017

88:20-88:24

Randall,
Mike
02/02/2017

89:01-89:05

Randall,
Mike
02/02/2017

89:09-89:16

Randall,
Mike
02/02/2017

93:16-93:19
begin at One of
the

Randall,
Mike
02/02/2017

94:15-94:17

Counters at 73-74 are
necessary for completeness
and will not make ssense
out of context.

FRCP 32(6) and FRE
106 only requires
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.

MOOT
(counters have
been included)

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. There is no

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has

OVERRULED

17

evidence of migration to
the heart in this case

developed,
manufactured and sold.
See 92:3-92:8

Objection mischaracterizes the
testimony - full answer in
lines 4-5

Plaintiff will include
the entire response as
indicated.

MOOT

Randall,
Mike
02/02/2017

94:19-94:25

Randall,
Mike
02/02/2017

95:20-95:24

Randall,
Mike
02/02/2017

95:25-96:02
begin at Would
you

Randall,
Mike
02/02/2017

96:04-96:05

Randall,
Mike
02/02/2017

99:11-99:13

Randall,
Mike
02/02/2017

99:20-100:06

Randall,
Mike
02/02/2017

103:01-103:06

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:8

OVERRULED

Randall,
Mike
02/02/2017

105:06-105:12

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right

OVERRULED

18

ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:9

Randall,
Mike
02/02/2017

105:14-105:18

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:10

OVERRULED

Randall,
Mike
02/02/2017

112:15-112:19
begin at So the

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:11

OVERRULED

Randall,
Mike
02/02/2017

114:23-115:10

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:12

OVERRULED

19

Randall,
Mike
02/02/2017

115:15-115:22
begin at I've

Rule 401, 402 and 403.
There is no evidence of
migration more than 5 mm
in this case. Rules 801/802
hearsay

Migration is at issue in
this case as Ms.
Johnson's filter
migrated and fractured.
The fractured piece
embolized to her right
ventricle. The line of
questions is about all
filters that Bard has
developed,
manufactured and sold.
See 92:3-92:13

OVERRULED

Randall,
Mike
02/02/2017

204:09-204:23
begin at Mr.
Randall

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407 and
OVERRULED
as to all other
objections.

Randall,
Mike
02/02/2017

205:15-205:25
begin at And
what

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE

Randall,
Mike
02/02/2017

206:13-206:23
begin at This
Idea

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew

RESERVE

20

knowledge of the
document. See 205: 2-3

there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

207:07-207:08

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

207:10-207:11

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

207:16-207:24

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what

SUSTAIN as
to 207:16207:24.
RESERVE as
to 407, and
OVERRULE
as to all other
objections

21

this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

209:17-210:25
begin at the
complications

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN as
to 210:22210:25,
RESERVE as
to 407, and
OVERRULE
as to all other
objections

Randall,
Mike
02/02/2017

211:17-212:07
begin at So
you're

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

212:11-212:17

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

22

Randall,
Mike
02/02/2017

215:17-215:24
begin at But
my point

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

216:02-216:04

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

216:06-216:10

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

217:03-217:08
begin at So at
the time

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also

RESERVE as
to 407,
otherwise
OVERRULED

23

witness has personal
knowledge of the
document. See 205: 2-3

shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

219:11-219:24
begin at I want
to

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

220:18-220:21

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

220:23-220:25

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what

RESERVE as
to 407,
otherwise
OVERRULED

24

this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

221:10-221:12

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

225:24-226:08
begin at But if
it's

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

OVERRULED

Randall,
Mike
02/02/2017

227:17-227:20
begin at and
that is

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

OVERRULED

25

Randall,
Mike
02/02/2017

227:22-227:24

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

OVERRULED

Randall,
Mike
02/02/2017

228:07-228:25
begin at The
next

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

229:02-229:03

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

RESERVE as
to 407,
otherwise
OVERRULED

Randall,
Mike
02/02/2017

230:23-231:15
Starting at page

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also

SUSTAIN

26

witness has personal
knowledge of the
document. See 205: 2-3

shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

232:03-232:10
begin at The
next paragraph

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

233:14-234:01
begin at It says

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

234:03-234:04

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what

SUSTAIN

27

this document was at
205:15-205:25.

Randall,
Mike
02/02/2017

235:20-235:23

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

235:25-236:01

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Randall,
Mike
02/02/2017

236:17-236:25
begin at We
will

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

28

Randall,
Mike
02/02/2017

237:10-237:15
begin at But in

Randall,
Mike
02/02/2017

239:08-239:10
Starting at
"And"

Randall,
Mike
02/02/2017

239:12-239:13
Ending at
"know."

Randall,
Mike
02/02/2017

240:05-240:14

Randall,
Mike
02/02/2017

242:12-242:25

Randall,
Mike
02/02/2017

243:02

Randall,
Mike
02/02/2017

Rule 401, 402 and 403.
Does not involve the filter
and/or failure modes at
issue in this case. This case
does not involve the
Eclipse Filter. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

SUSTAIN

244:15-244:25

29

Randall,
Mike
02/02/2017

245:15-245:21
end at Correct

Randall,
Mike
02/02/2017

246:09-246:20

Randall,
Mike
02/02/2017

247:02-247:05
begin at So the
idea

Randall,
Mike
02/02/2017

247:17-247:21
begin at In
terms of

Randall,
Mike
02/02/2017

248:19-248:22
begin at
Penetration

Randall,
Mike
02/02/2017

249:23-250:25

Randall,
Mike
02/02/2017

251:24-252:03

Randall,
Mike
02/02/2017

252:05-252:13

Randall,
Mike
02/02/2017

260:25-261:01

Randall,
Mike
02/02/2017

261:03-261:10

Randall,
Mike
02/02/2017

261:12-261:18

Rule 901- Counsel is
testifying.

30

FRE 611 - The attorney
is asking leading
questions of an
employee of an adverse
party.

OVERRULED

Randall,
Mike
02/02/2017

261:20-261:22

Counters at 262 are
necessary for completeness
and to explain the
document.

FRCP 32(6) and FRE
106 only requires
completeness that "in
fairness ought to be
considered at the same
time". The testimony
designated by Bard is
for an entirely new line
of questioning and
fairness does not
require it be considered
contemporaneously
with the testimony
offered by Plaintiff.
The testimony can be
played as cross.

MOOT
(counters have
been included)

Randall,
Mike
02/02/2017

266:04-266:07

No question is being
asked. Counsel is reading
the document and asking
the witness to confirm that
she read it correctly.

FRE 611 - The attorney
is asking leading
questions of an
employee of an adverse
party. The question a
foundational and
establish a timeline for
the development of the
Meridian filter.

OVERRULED

Randall,
Mike
02/02/2017

267:02-267:06
Starting at "So"

Randall,
Mike
02/02/2017

267:08-267:14

Randall,
Mike
02/02/2017

268:17-269:02
Starting at "the
bottom"

Randall,
Mike
02/02/2017

269:04-269:08

Randall,
Mike
02/02/2017

269:19-269:23

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her

RESERVE as
to 407,
otherwise
OVERRULED

31

no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

Randall,
Mike
02/02/2017

269:25-270:01

Randall,
Mike
02/02/2017

294:13-295:03
begin at If you
look

Testimony explains
why Bard kept a
defective prodcut on
the market when they
knew it was defective

OVERRULED

293:18-293:25
Starting at "I
think"

Randall,
Mike
02/02/2017

Rule 401, 402 and 403 As trial in this case is
bifurcated, Bard's revenue

293:07-293:12
Starting at
"Were"

Randall,
Mike
02/02/2017

RESERVE as
to 407,
otherwise
OVERRULED

292:20-292:22

Randall,
Mike
02/02/2017

The testimony shows
that Bard knew ways to
improve their filter long
before Ms. Johnson was
implanted with her
Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

275:15-275:19

Randall,
Mike
02/02/2017

Rule 401, 402 and 403
and 407 This is about the
Denali filter - a subsequent
generation. Also Rule
601/602 and 612 - there is
no indication that the
witness has personal
knowledge of the
document. See 205: 2-3

275:04-275:09

Randall,
Mike
02/02/2017

Meridian filter. Also
shows that Bard knew
there was issue with
their current line of
filters. The witness
explained exactly what
this document was at
205:15-205:25.

32

is not at issue during this
phase of trial.

and they knew how to
address some of the
defects.

Randall,
Mike
02/02/2017

296:05-296:17
begin at If Bard
did

Rule 401, 402 and 403 As trial in this case is
bifurcated, Bard's revenue
is not at issue during this
phase of trial.

Testimony explains
why Bard kept a
defective prodcut on
the market when they
knew it was defective
and they knew how to
address some of the
defects.

OVERRULED

Randall,
Mike
02/02/2017

297:18-297:24

Rule 401, 402 and 403 As trial in this case is
bifurcated, Bard's revenue
is not at issue during this
phase of trial.

Testimony explains
why Bard kept a
defective prodcut on
the market when they
knew it was defective
and they knew how to
address some of the
defects.

OVERRULED

DEPONENT

DEF
COUNTER

PL OBJECTIONS

DEF RESPONSE
TO OBJECTIONS

COURT
RULING

Randall,
Mike
02/02/2017

73:14-74:04

Randall,
Mike
02/02/2017

87:01-87:02

Randall,
Mike
02/02/2017

87:04-87:06

Randall,
Mike
02/02/2017

87:11-88:02

Randall,
Mike
02/02/2017

95:12-95:16
(starting at
"So")

33

Randall,
Mike
02/02/2017

95:18-95:19

Randall,
Mike
02/02/2017

96:04
("I believe
hypothetically")

Randall,
Mike
02/02/2017

115:24-116:03
Subject to
objection

Randall,
Mike
02/02/2017

116:05-116:20

Randall,
Mike
02/02/2017

205:02-205:03

Randall,
Mike
02/02/2017

206:24-207:02

Randall,
Mike
02/02/2017

225:08-225:11

Randall,
Mike
02/02/2017

225:13-225:23

Randall,
Mike
02/02/2017

226:11-226:14

Subject to
objection
Answer without a question

Subject to
objection

Subject to
objection

Subject to
objection

Subject to
objection

Subject to
objection

34

This designation
provides necessary
context that the
document upon which
Plaintiff's counsel's
questions are based is
an initial draft
document, not a final
document.

OVERRULED

Randall,
Mike
02/02/2017

226:16-226:18

Randall,
Mike
02/02/2017

239:13-239:14
(starting at
"That's")
(ending at
"ago")

Randall,
Mike
02/02/2017

241:15-241:17
Subject to
objection

Randall,
Mike
02/02/2017

241:19-242:05
Subject to
objection

Randall,
Mike
02/02/2017

243:19-244:01
Subject to
objection

Randall,
Mike
02/02/2017

262:02-262:04
Subject to
objection

Randall,
Mike
02/02/2017

262:07-262:17
Subject to
objection

Randall,
Mike
02/02/2017

262:23-263:05
Subject to
objection

Randall,
Mike
02/02/2017

267:17-267:21

Randall,
Mike
02/02/2017

267:23-268:02

Randall,
Mike
02/02/2017

275:20-275:22

Subject to
objection

Speculation, lack of
foundation, hearsay

35

Witness is designated
as Bard's corporate
representative for this
deposition. It is not

OVERRULED

speculation for Bard's
corporate
representative to testify
about primary business
goals. Nothing in this
question identifies any
purported out of court
statement that could be
considered hearsay.

Randall,
Mike
02/02/2017

275:24-276:19

Speculation, lack of
foundation, hearsay

Witness is designated
as Bard's corporate
representative for this
deposition. It is not
speculation for Bard's
corporate
representative to testify
about primary business
goals and customer
reactions to product
change. Statements
regarding customer
preferences are not
offered to prove the
truth of the matters
asserted.

OVERRULED

October 13, 2018, Trial Testimony:
DEPONENT
Randall,
Mike
10/03/2018

DEF
AFFIRM

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

Plaintiff Objects to the use
of formal trial testimony of
Mike Randall under FRE
801(c) and FRE 804.
Plaintiff was not a party to
the Hyde case and was not
represented at the time the
testimony was obtained.
The Hyde plaintiff's were
not Mrs. Johnson
Predecessor in interest. The
depositions taken in the
course of the MDL were for
the purpose of developing

Bard is prepared to
address Mr. Randall’s
unavailability at trial and
why Plaintiff’s interests
were adequately
represented when the
testimony was given
before presenting it at
trial. As to Plaintiff’s
claim that the filter in
Hyde was not a
Meridian, almost all of
Plaintiff’s designations
relate to filters other

RESERVE as
to availability
and counterdesignations
from earlier
depositions

36

testimony for common
benefit. Individual trial
testimony ws for the benit
of the parties involved not
all Plaintiff's in the MDL.
The Hyde case did not
involve a Meridian filter and
so not testimony related to
that filter was developed at
the trial.

Randall,
Mike
10/03/2018

2716:032721:22

Randall,
Mike
10/03/2018

2716:14-2716:118: 403
2717:13-2717:24 Relevance
2719:10-2720:12 - Lack of
foundation. The foundation
for this witness to testify to
such matter has not been
established. Mr. Randall is
not a bio-medical engineer,
he is not a medical doctor,
he has offered no testimony
regarding training or
specialized knowledge in
anatomy, physiology,
hemodynamic, or fluid
dynamics.

This is all information
about the witness' work
and education history
and involvement with
IVC filters. The
objection was not raised
at the time of the
testimony.

2722:222723:08

Randall,
Mike
10/03/2018

than the Meridian.
During the pretrial
conference Plaintiff
made it clear that she
intends to offer
substantial testimony
about the prior filters
that were on the market
before the Meridian.
Mr. Randall’s testimony
is relevant to put those
designations in context,
explain the design
changes leading up to the
Meridian and to refute
Plaintiff’s claims.

2723:222724:12

37

SUSTAIN as to
2717:17-:24,
and 2718:72719:9,
otherwise
OVERRULED

Randall,
Mike
10/03/2018

2724:19–
2725:19

2725:8-2725:19 Lack of
foundation. The foundation
for this witness to testify to
such matter has not been
established. Mr. Randall is
not a bio-medical engineer,
he is not a medical doctor,
he has offer no testimony
regarding regarding training
or specialized knowledge in
anatomy, physiology,
hemodynamic, or fluid
dynamics. Additionally, Mr.
Randall has not
demonstrated that he is
qualified to opine on filters
from other manufacturers.
Not properly disclosed and
Plaintiff did not have proper
notice that this witness
would discuss filters from
other manufacturers.

The witness is explaining
a document he used,
understood and relied on
during his work at Bard
on IVC filters. The
objection was not made
at the time of the
testimony. Plaintiff's
counsel was present at
the time of the
testimony and conducted
the cross examination.
Plaintiff's counsel was
present at the time of the
testimony and conducted
the cross examination.

OVERRULED

Randall,
Mike
10/03/2018

2726:13–
2726:17
starting at
“This is the
G2 type
and ending
at “inverted
cone.”

2726:16-2726:17 - Mr.
Randall has not
demonstrated that he is
qualified to opine of filter
from other manufacturers.
Not properly disclosed and
Plaintiff did not have proper
notice that this witness
would discuss filters from
other manufacturers.

He is simply explaining
the shapes of filters that
he has reviewed and
examined during his
career at Bard. Plaintiff's
counsel was present at
the time of the
testimony and conducted
the cross examination.

RESERVE

Randall,
Mike
10/03/2018

2726:20–
2727:14

2725:8-2725:19 Lack of
foundation. The foundation
for this witness to testify to
such matter has not been
established. Mr. Randall is
not a bio-medical engineer,
he is not a medical doctor,
he has offer no testimony
regarding regarding training
or specialized knowledge in
anatomy, physiology,
hemodynamic, or fluid
dynamics. Additionally, Mr.

Again, Mr. Randall is
explaining information
he knows, leanred while
working on IVC filters
and used during the
course of his
employment. Plaintiff's
counsel was present at
the time of the
testimony and conducted
the cross examination.
No objection was made

RESERVE

38

Randall has not
demonstrated that he is
qualified to opine on filters
from other manufacturers.
Not properly disclosed and
Plaintiff did not have proper
notice that this witness
would discuss filters from
other manufacturers.

Randall,
Mike
10/03/2018

2727:162729:05

Randall,
Mike
10/03/2018

2727:16-2728:23 - Lack of
foundation. The foundation
for this witness to testify to
such matter has not been
established. Mr. Randall is
not a bio-medical engineer,
he is not a medical doctor,
he has offer no testimony
regarding regarding training
or specialized knowledge in
anatomy, physiology,
hemodynamic, or fluid
dynamics. Additionally, Mr.
Randall has not
demonstrated that he is
qualified to opine on filters
from other manufacturers.
Not properly disclosed and
Plaintiff did not have proper
notice that this witness
would discuss filters from
other manufacturers.

Again, Mr. Randall is
explaining information
he knows, leanred while
working on IVC filters
and used during the
course of his
employment. Plaintiff's
counsel was present at
the time of the
testimony and conducted
the cross examination.
No objection was made
at the time of the
testimony.

2729:06–
2929:19
starting
with “could
you”

Randall,
Mike
10/03/2018

at the time of the
testimony.

2729:20–
2730:01
starting
with “would
you”

39

RESERVE

Randall,
Mike
10/03/2018

2730:13–
2731:12
starting
with “based
on the”

Randall,
Mike
10/03/2018

2731:15
starting
with “can
you turn”

Randall,
Mike
10/03/2018

2731:182732:07

2731:21-2732:2 - Relevance

Randall,
Mike
10/03/2018

2732:08–
2732:11
starting
with “are
you aware”

FRE 106 - adding "As of
today, in October of 2018"

SUSTAIN, add
“As of today, in
October of
2018” (the full
line 2732:8).

Randall,
Mike
10/03/2018

2732:122732:15
starting
with “are
you aware”

FRE 106 - adding "As of
today, in October of 2018"

SUSTAIN, add
“As of today,
October of
2018” (the full
line 2732:12).

Randall,
Mike
10/03/2018

2732:16–
2732:18
starting
with “are
you aware”

FRE 106 - adding "As of
October 2018"

SUSTAIN, add
“My same
question: As of
October 2018”
(the full line
2732:16).

Randall,
Mike
10/03/2018

2832:19–
2832:21
starting
with “are
you aware”

Randall,
Mike
10/03/2018

2733:052733:07

40

This is relevant the
balancing test for design
defect.

OVERRULED

Randall,
Mike
10/03/2018

2733:252735:12

Randall,
Mike
10/03/2018

2735:13–
2736:02
starting
with “would
you"

Randall,
Mike
10/03/2018

2736:13
stopping at
“page”

Randall,
Mike
10/03/2018

2736:15–
2736:17
stopping at
“page”

Randall,
Mike
10/03/2018

2736:18–
2738:09

Randall,
Mike
10/03/2018

2738:10–
2738:23
starting
with
“would”

Randall,
Mike
10/03/2018

2739:06

Randall,
Mike
10/03/2018

2739:09–
2739:11

Randall,
Mike
10/03/2018

2739:12–
2740:01
starting
with ‘can
you”

2735:5-2735:12 - Relevance

41

Relevant to show the
nature of the test, that
the animals move and
are not static. Movement
impacts the activit of the
inferior vena cava.

OVERRULED

Randall,
Mike
10/03/2018

2740:022741:11
starting
with “could
you”

Randall,
Mike
10/03/2018

2741:122741:24
starting
with “could
you”

Randall,
Mike
10/03/2018

2742:152742:17

Randall,
Mike
10/03/2018

2742:23–
2743:01

Randall,
Mike
10/03/2018

2743:082744:16

Randall,
Mike
10/03/2018

2744:18–
2746:06

Randall,
Mike
10/03/2018

2746:14–
2747:05
starting
with “could
you”

Randall,
Mike
10/03/2018

2747:10–
2747:18

Randall,
Mike
10/03/2018

2747:19–
2748:01
starting
with “would
you”

42

Randall,
Mike
10/03/2018

2748:13–
2753:01

Randall,
Mike
10/03/2018

2753:052753:06

Randall,
Mike
10/03/2018

2753:07–
2753:24
starting
with “would
you”

Randall,
Mike
10/03/2018

2754:05
starting
with “could
you”

Randall,
Mike
10/03/2018

2754:11–
2755:11

Randall,
Mike
10/03/2018

2755:12–
2755:23
starting
with “can
we”

Randall,
Mike
10/03/2018

2756:02–
2756:11

Randall,
Mike
10/03/2018

2756:13–
2757:01
starting
with “could
you”

Randall,
Mike
10/03/2018

2757:10–
2758:13

2748:20-2752: - Relevance.
The two products discussed
were never put on the
market by Bard.

43

This is relevant the
balancing test for design
defect, and the ability to
create an alternative
design.

OVERRULED

Randall,
Mike
10/03/2018

2758:14–
2759:05
starting
with ‘Could
we”

Randall,
Mike
10/03/2018

2759:07–
2759:16
starting
with “can
you”

Randall,
Mike
10/03/2018

2759:25–
2760:02

Randall,
Mike
10/03/2018

2760:03–
2760:17
starting
with “could
you”

Randall,
Mike
10/03/2018

2760:18–
2761:06
starting
with “can
you”

Randall,
Mike
10/03/2018

2761:14–
2762:10
starting
with “If we
could”

Randall,
Mike
10/03/2018

2762:172766:02

Randall,
Mike
10/03/2018

2766:072767:02

2766:3-3766:12 Relevance. Testimony about
another Plaintiff is
confusing.
2766:17-2766:24 Foundation. The foundation
for this witness to testify to
such matter has not been

44

2766:03-2766:06
WITHDRAWN

MOOT in part
(2766:032766:06 is to
be excluded),
otherwise
OVERRULED

established. Mr. Randall is
not a bio-medical engineer,
he is not a medical doctor,
he has offer no testimony
regarding regarding training
or specialized knowledge in
anatomy, physiology,
hemodynamic, or fluid
dynamics.
2766:25-2767:2- Relevance.
Defendants are trying to
suggest that they are a
responsible company by
abandoning projects after

Randall,
Mike
10/03/2018

2793:23–
2794:05

Randall,
Mike
10/03/2018

2796:05–
2796:12

DEPONENT

PL
COUNTERS

Randall,
Mike
10/03/2018

2767:192768:07

Randall,
Mike
10/03/2018

2768:142769:18
Starting at
As you

Randall,
Mike
10/03/2018

2769:24
Stopping at
2010

Randall,
Mike
10/03/2018

2770:122770:15
Starting at
But as

DEF OBJECTIONS

45

PL RESPONSE TO
OBJECTIONS

COURT
RULING

Randall,
Mike
10/03/2018

2770:212771:01

Randall,
Mike
10/03/2018

2771:062771:12

Randall,
Mike
10/03/2018

2771:182771:24

Randall,
Mike
10/03/2018

2772:092772:11

Randall,
Mike
10/03/2018

2772:212773:23

Randall,
Mike
10/03/2018

2774:152775:22

Randall,
Mike
10/03/2018

2775:252776:03

Randall,
Mike
10/03/2018

2776:082776:11

Randall,
Mike
10/03/2018

2779:032779:05

Randall,
Mike
10/03/2018

2781:062781:21

Randall,
Mike
10/03/2018

2781:252782:06

46

Randall,
Mike
10/03/2018

2782:122782:15

Randall,
Mike
10/03/2018

2782:162782:21

Randall,
Mike
10/03/2018

2783:022783:18

Randall,
Mike
10/03/2018

2784:022784:08

Randall,
Mike
10/03/2018

2784:152784:25
Starting at
We just

Randall,
Mike
10/03/2018

2785:122786:25

Randall,
Mike
10/03/2018

2789:082789:19

Randall,
Mike
10/03/2018

2789:232790:17

Randall,
Mike
10/03/2018

2790:232791:10

Randall,
Mike
10/03/2018

2792:072792:10

Randall,
Mike
10/03/2018

2792:152792:19
Starting
with But
Bard

Starting with an answer to a
question that was not
designated.

47

Plaintiff will add the
question at 2782:122782:15

MOOT

DEPONENT

DEF
COUNTERS
TO
COUNTERS

PL OBJECTIONS

DEF RESPONSE TO
OBJECTIONS

COURT
RULING

Unless specifically stated
otherwise for purposes of
optional completeness,
Plaintiff is not agreeing to
insert any of the
Defendants' counter
designations into her
presentation of the witness'
testimony. The lack of
specific objection simply
means the laintiff doe snot
object to theDefendants
offer of that testimonmy as
as cross/counter offer.

Randall,
Mike
10/03/2018

2789:022789:07

Randall,
Mike
10/03/2018

2791:112791:13

Randall,
Mike
10/03/2018

2793:072973:09

Randall,
Mike
10/03/2018

2797:132798:15

OVERRULED

2779:062779:16

Randall,
Mike
10/03/2018

FRCPE 26(2)(B) and FRE
702 - The witness is offering
expert testimony and he has
not been properly
designated as retained

2776:042776:07

Randall,
Mike
10/03/2018

RESERVE as
to duplication

48

expert and has not provide
an expert report.

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 6th day of June, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

49