Johnson v. C R Bard Incorporated ( 2021 )

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 Scott Trerotola. DEPON- DEF PL OBJECTIONS DEF RESPONSE TO COURT ENT AFFIRM OBJECTIONS RULING Running Objection to Bard’s response to RESERVE as Relevance & FRE 701: Plaintiffs “Running to any specific Plaintiff objects on Objection to Relevance & expert opinions grounds that this RE 701”: beyond the testimony is not relevant Plaintiff's running scope of Dr. to this case, that this objection was over-ruled Trerotola’s witness has no personal in the MDL, where the personal knowledge that is relevant Court stated: "The Court to this case, and that this overruled a number of knowledge, is an attempt to elicit objections to allegedly otherwise expert opinions from a non-disclosed expert OVERRULED witness not designated as opinions because the such in violation of FRE questions generally were 701. Plaintiff makes his about the doctor's own counter-designations in practice and personal the event the court experience using IVC overrules his objections. filters -- matters the Court regards as relevant factual evidence rather than expert opinion under Rule 702." Furthermore, Dr. Trerotola was deposed in the MDL because of his work, over many years, with IVC filters and his studies of IVC filters, including Bard filters and because of the work he did directly with Bard as a consultant to it on IVC filters. Dr. Trerotola is the Chief or Interventional radiology at the Hospital of the University of Pennsylvania. His testimony is relevant to steps Bard took to obtain medical expert input on the design, use and warnings relating to its filters, as well as to what medical doctors utilizing filters knew at various times about filter indications and contraindications, filter retrieval and other filter related information. His testimony is based on his own personal knowledge through his experience as a medical doctor as to the indications for, complications associated with, implantation and retrieval of IVC filters. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions rather he is a witness with fact information relevant to these cases. Trerotola, 5:24-6:04 Scott 01/20/2017 Trerotola, 6:07-6:16 Scott 01/20/2017 Trerotola, 9:24-10:03 (9:25) Relevance & FRE (9:25 – 10:03) The OVERRULED Scott 701 witness is simply 01/20/2017 (10:01-10:03) Relevance introducing himself and & FRE 701 describing his background, and completing his answer to questions designated by Plaintiff immediately above. He is not giving expert opinion testimony. Trerotola, 16:04-16:07 (16:04-16:07) Relevance SUSTAIN Scott 01/20/2017 Trerotola, 19:07-19:14 (19:07-19:14) OVERRULED Scott foundation, relevance & 01/20/2017 FRE 701 Trerotola, 20:06-20:09 (20:06-20:09) Relevance (20:06-20:14) Dr. OVERRULED Scott Trerotola was deposed at 01/20/2017 the insistence of Plaintiffs, in the MDL, because of his work over many years as a consultant to Bard on its IVC filters. This testimony involves his answering Plaintiff’s counsel’s question about the various IVC filters he has placed. The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. Trerotola, 22:24-23:06 (22:24) Relevance (22:24 – 23:06) Dr. OVERRULED Scott (23:01-23:06) Relevance Trerotola was deposed at 01/20/2017 the insistence of Plaintiffs, in the MDL, because of his work over many years as a consultant to Bard on its IVC filters. In this testimony, the witness answers a question by Plaintiff’s counsel about his experience and expectations relative to the use of IVC filters. The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. Trerotola, 23:14-23:22 (31:17-31:24) Relevance OVERRULED Scott 01/20/2017 Trerotola, 31:17-31:24 OVERRULED Scott (to the extent 01/20/2017 that plaintiff’s objection in the previous designation was actually intended to apply to this designation) Trerotola, 53:23-54:12 (54:06-54:12) Relevance (54:06-54:12) The OVERRULED Scott & FRE 701, hearsay, testimony is relevant to 01/20/2017 foundation his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 77:11-77:16 (77:11-77:16) Relevance The Plaintiff's object was OVERRULED Scott & FRE 701, foundation overruled in the MDL. 01/20/2017 The testimony was allowed. (77:11-77:23) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 78:08-80:10 (80:02-80:10) Relevance (78:08-78:20) The OVERRULED Scott & FRE 701, foundation testimony is relevant to 01/20/2017 his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 83:16-83:18 (83:16-83:18) Relevance (83:06-83:18) The OVERRULED Scott & FRE 701 testimony is relevant to 01/20/2017 his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 94:23-95:07 (94:23-94:24) relevance, The Plaintiff's objection OVERRULED Scott foundation, hearsay, FRE was overruled in the 01/20/2017 701 MDL. The testimony was allowed. (94:23-94:24) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 102:12- (102:12-102:18) OVERRULED Scott 102:18 Relevance & FRE 701 01/20/2017 Trerotola, 107:02- (102:12-102:18) OVERRULED Scott 107:08 Relevance & FRE 701 01/20/2017 Trerotola, 125:16- (125:16-125:22) (125:01 – 125:07) The SUSTAIN Scott 125:22 relevance, foundation, testimony is relevant to 01/20/2017 hearsay, FRE 701 his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. (125:16-125:24) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 125:24- (125:24-126:05) (125:16-125:24) The SUSTAIN Scott 126:05 relevance, foundation, testimony is relevant to 01/20/2017 hearsay, FRE 701 his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. (126:01-126:15) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 126:07- (126:01-126:15) (126:01-126:15) The SUSTAIN Scott 126:15 relevance, foundation, testimony is relevant to 01/20/2017 hearsay, FRE 701 his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 177:05- (177:05-177:23) The Plaintiff's object was OVERRULED Scott 177:23 relevance, foundation, overruled in the MDL. 01/20/2017 hearsay, FRE 701 The testimony was allowed. (177:05-177:23) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. Trerotola, 178:20- (178:20-178:24) The Plaintiff's object was OVERRULED Scott 179:03 relevance, foundation, overruled in the MDL. 01/20/2017 hearsay, FRE 701, The testimony was anecdotal/relevance allowed. (178:20-178:24) (179:01-179:03) The testimony is relevant relevance, foundation, to his experience as a hearsay, FRE 701, medical doctor in the use anecdotal/relevance of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. (179:01-179:03) The testimony is relevant to his experience as a medical doctor in the use of IVC filters, and goes to his credibility as a witness. His testimony, elicited principally through questions by plaintiff’s counsel, necessarily provides information based on his expertise with IVC filters but he is not a lay witness improperly offering expert opinions. The testimony is based on his own personal knowledge. DEPON- PL DEF OBJECTIONS PL RESPONSE TO COURT ENT COUNTER OBJECTIONS RULING S Trerotola, 8:03-9:23 This is not a proper Plaintiff does not OVERRULED Scott counter designation. It is understand the objection. 01/20/2017 not necessary for The Plaintiff is not completeness. Plaintiff making an affirmative should have designated offer of the witness’ the testimony testimony. He is a affirmatively. witness called at the insistence of Bard. The testimony is clearly relevant and admissible under FRE 611. The Plaintiff has not raised FRE 32(6) or FRE 106 as to optional completeness. The testimony is properly designated as cross or a counter designation in response to the testimony offered by Bard. Plaintiff will include the testimony in her cross/counter to the direct testimony offered by Bard at trial. Trerotola, 10:06-11:06 This is not a proper Plaintiff does not OVERRULED Scott counter designation. It is understand the objection. 01/20/2017 not necessary for The Plaintiff is not completeness. Plaintiff making an affirmative should have designated offer of the witness’ the testimony testimony. He is a affirmatively. witness called at the insistence of Bard. The testimony is clearly relevant and admissible under FRE 611. The Plaintiff has not raised FRE 32(6) or FRE 106 as to optional completeness. The testimony is properly designated as cross or a counter designation in response to the testimony offered by Bard. Plaintiff will include the testimony in her cross/counter to the direct testimony offered by Bard at trial. Trerotola, 12:16-12:19 Rules 601, 602, lack of Bard has consistently SUSTAIN Scott beginning foundation. The witness argued in support of the 01/20/2017 with "Do" states “I don’t think I am admissibility of this qualified to answer that witness’ testimony that question”. 12:21 – 22 he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The lack of knowledge by this witness is relevant and probative. Trerotola, 12:21-12:22 Scott 01/20/2017 Trerotola, 14:01-14:03 Rules 401 and 402 not Bard has consistently OVERRULED Scott relevant argued in support of the 01/20/2017 admissibility of this witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. This “fact witness’” contacts with Bard’s counsel before testifying is relevant to his bias and credibility. Trerotola, 19:23-20:05 Scott 01/20/2017 Trerotola, 21:17-21:22 Scott 01/20/2017 Trerotola, 22:03-22:06 Scott beginning 01/20/2017 with "I speak" Trerotola, 24:14-24:24 (24:14-24:19) Rules 601, Bard has consistently SUSTAIN Scott 602, lack of foundation. argued in support of the 01/20/2017 admissibility of this witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 25:19-25:21 Rules 401, 402, 403. Bard has consistently SUSTAIN Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 26:01-26:03 Rules 401, 402, 403. Bard has consistently SUSTAIN Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 26:05-26:06 Rules 601, 602, lack of Bard has consistently SUSTAIN Scott foundation. Rules 401, argued in support of the 01/20/2017 402, 403. Irrelevant and admissibility of this any probative value witness’ testimony that outweighed by prejudicial he is a medical doctor effect. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 26:13-26:22 (26:19 – 26:21) Rules Bard has consistently SUSTAIN Scott 601, 602, lack of argued in support of the 01/20/2017 foundation. Rules 401, admissibility of this 402, 403. Irrelevant and witness’ testimony that any probative value he is a medical doctor outweighed by prejudicial experienced in the use of effect. Not a counter to IVC filter and his testimony designated testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 27:02-27:04 Rules 401, 402, 403. Bard has consistently SUSTAIN Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 27:14-27:21 Rules 401, 402, and 403 Bard has consistently OVERRULED Scott – testimony concerns argued in support of the 01/20/2017 what physician would admissibility of this have wanted to know / witness’ testimony that would expect a he is a medical doctor manufacturer to tell experienced in the use of him/her. Not a counter to IVC filter and his testimony designated testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 28:10-28:19 Rules 401, 402, 403. Bard has consistently OVERRULED Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically addresses this issue at 1:17-31:24. Trerotola, 29:23-30:03 Rules 401, 402, 403. Bard has consistently OVERRULED Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically addresses this issue at 31:17-31:24. Trerotola, 35:13-35:19 Scott 01/20/2017 Trerotola, 36:04-37:04 Scott 01/20/2017 Trerotola, 37:09-38:10 Scott 01/20/2017 Trerotola, 40:16-41:11 Scott 01/20/2017 Trerotola, 41:24-42:05 Scott 01/20/2017 Trerotola, 42:19-43:08 Scott 01/20/2017 Trerotola, 45:12-45:22 Scott 01/20/2017 Trerotola, 46:09-46:11 Scott 01/20/2017 Trerotola, 48:14-48:23 Scott 01/20/2017 Trerotola, 49:20-50:03 Scott 01/20/2017 Trerotola, 52:07-52:11 Rules 401, 402, 403. Bard has consistently OVERRULED Scott Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically addresses this issue at 53:23-54:12. Trerotola, 52:21-53:01 Scott 01/20/2017 Trerotola, 55:22-55:24 Scott 01/20/2017 Trerotola, 57:06-57:14 Scott 01/20/2017 Trerotola, 58:10-58:17 Rules 401, 402 and 403 Bard has consistently OVERRULED Scott not relevant and not a argued in support of the 01/20/2017 counter to prior admissibility of this testimony witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. B Trerotola, 59:09-59:17 Rules 401, 402 and 403 Bard has consistently OVERRULED Scott not relevant and not a argued in support of the 01/20/2017 counter to prior admissibility of this testimony witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 63:18-63:24 Scott 01/20/2017 Trerotola, 74:24-76:05 Scott 01/20/2017 Trerotola, 79:10-79:17 Scott 01/20/2017 Trerotola, 80:11-80:22 Scott 01/20/2017 Trerotola, 84:21-85:19 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. Trerotola, 86:09-86:24 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 87:04-87:06 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 87:14-88:06 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 92:01-92:12 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 92:17-93:03 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Trerotola, 93:08-93:11 Rules 401 & 402 – Bard has consistently OVERRULED Scott Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the Recovery filter at 53:23-54:12, 125:16- 126:05. Trerotola, 98:16-99:07 Scott 01/20/2017 Trerotola, 99:15-99:21 Scott 01/20/2017 Trerotola, 103:18- Scott 104:03 01/20/2017 Trerotola, 105:12- Scott 105:17 01/20/2017 Trerotola, 107:13- Scott 108:02 01/20/2017 Trerotola, 108:10- Scott 108:12 01/20/2017 Trerotola, 108:18- Scott 108:23 01/20/2017 Trerotola, 121:20- Rules 601, 602, lack of Bard has consistently SUSTAIN Scott 122:04 foundation. argued in support of the 01/20/2017 admissibility of this witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. 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). Trerotola, 123:18- Scott 123:21 01/20/2017 beginning with "You" Trerotola, 124:07- Rules 401, 402 and 403. Bard has consistently OVERRULED Scott 124:17 Not relevant argued in support of the 01/20/2017 admissibility of this witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. The testimony is very relevant to the failure to warn issues and Bard negligence. Trerotola, 133:05- Scott 133:13 01/20/2017 Trerotola, 134:24- Scott 135:11 01/20/2017 Trerotola, 137:04- Rules 401 & 402 – Bard has consistently OVERRULED Scott 137:11 Irrelevant. Testimony argued in support of the 01/20/2017 does not involve admissibility of this filter/product at issue. witness’ testimony that he is a medical doctor experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the Recovery filter at 53:23-54:12, 125:16- 126:05 Trerotola, 138:07- Rules 401, 402, 403. Bard has consistently OVERRULED Scott 138:10 Irrelevant and any argued in support of the 01/20/2017 probative value admissibility of this outweighed by prejudicial witness’ testimony that effect. Not a counter to he is a medical doctor testimony designated. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the Recovery filter at 53:23-54:12, 125:16- 126:05 Trerotola, 141:20- Rules 401, 402, 403, Bard has consistently OVERRULED Scott 142:22 testimony does not relate argued in support of the 01/20/2017 to the filter at issue, admissibility of this probative value witness’ testimony that outweighed by prejudicial he is a medical doctor effect. experienced in the use of IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. Trerotola, 145:09- Rules 601, 602, lack of Bard has consistently OVERRULED Scott 145:12 foundation. Rules 401, argued in support of the 01/20/2017 402, 403, testimony does admissibility of this not relate to the filter at witness’ testimony that issue, probative value he is a medical doctor outweighed by prejudicial experienced in the use of effect. IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. Trerotola, 145:15- Rules 601, 602, lack of Bard has consistently OVERRULED Scott 145:17 foundation. Rules 401, argued in support of the 01/20/2017 402, 403, testimony does admissibility of this not relate to the filter at witness’ testimony that issue, probative value he is a medical doctor outweighed by prejudicial experienced in the use of effect. IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. Trerotola, 145:19- Rules 601, 602, lack of Bard has consistently OVERRULED Scott 145:24 foundation. Rules 401, argued in support of the 01/20/2017 402, 403, testimony does admissibility of this not relate to the filter at witness’ testimony that issue, probative value he is a medical doctor outweighed by prejudicial experienced in the use of effect. IVC filter and his testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. Trerotola, 147:14- Rules 401, 402, 403, Bard has consistently OVERRULED Scott 148:06 testimony does not relate argued in support of the 01/20/2017 to the filter at issue, admissibility of this probative value witness’ testimony that outweighed by prejudicial he is a medical doctor effect. Subject to experienced in the use of objection, Bard counters IVC filter and his 148: 14 – 19 testimony specifically addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. Trerotola, 153:17- Rules 401, 402, 403, Bard has consistently OVERRULED Scott 155:03 testimony does not relate argued in support of the 01/20/2017 to the filter at issue, admissibility of this probative value witness’ testimony that outweighed by prejudicial he is a medical doctor effect. Subject to experienced in the use of objection, Bard counters IVC filter and his 155:4 – 9, and 167: 15 – testimony specifically 22, 168: 1 – 16. addresses his work as a consultant with and for Bard with regard to its IVC filters. The Plaintiff is entitled to test the depth of that knowledge and to challenge his bias and credibility. The testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. The fact his is so close to Bard that he is privy to information that is not generally available to other physicians is relevant to his bias and credibility and the failure to warn issues. The testimony is not unfairly prejudicial. The added lines requested are not proper “optional completeness requests” Trerotola, 157:09- Scott 157:21 01/20/2017 Trerotola, 160:09- Scott 161:05 01/20/2017 Trerotola, 165:07- (165:17 – 165:20) Plaintiff will remove MOOT Scott 165:16 Attorney colloquy should 165:17-165:20 01/20/2017 be withdrawn. Trerotola, 165:21- (165:17 – 165:20) Plaintiff will remove MOOT Scott 167:14 Attorney colloquy should 165:17-165:20 01/20/2017 be withdrawn. Trerotola, 172:13- Rules 401, 402, the Bard has consistently OVERRULED Scott 174:11 document shown to the argued in support of the 01/20/2017 witness relates to a filter admissibility of this and/or complication mode witness’ testimony that not at issues in this case, he is a medical doctor probative value is experienced in the use of outweighed by prejudicial IVC filter and his effect. Rules 601, 602, testimony specifically lack of foundation. The addresses his work as a witness is shown a consultant with and for document he has never Bard with regard to its seen, he did not author, IVC filters. The Plaintiff he does not know the is entitled to test the author or recipient of the depth of that knowledge document and it asked to and to challenge his bias interpret what the author and credibility. The meant by the document. testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. In fact he is so close to Bard that he is privy to information that is not generally available to other physicians. This inquiry as to whether Bard shared negative information about it filters with him is relevant to his bias and credibility and the failure to warn issues. It also relates to Bard’s negligent conduct. The testimony is not unfairly prejudicial. 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). Trerotola, 174:13- Rules 401, 402, the Bard has consistently OVERRULED Scott 175:13 document shown to the argued in support of the 01/20/2017 witness relates to a filter admissibility of this and/or complication mode witness’ testimony that not at issues in this case, he is a medical doctor probative value is experienced in the use of outweighed by prejudicial IVC filter and his effect. Rules 601, 602, testimony specifically lack of foundation. The addresses his work as a witness is shown a consultant with and for document he has never Bard with regard to its seen, he did not author, IVC filters. The Plaintiff he does not know the is entitled to test the author or recipient of the depth of that knowledge document and it asked to and to challenge his bias interpret what the author and credibility. The meant by the document. testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. In fact he is so close to Bard that he is privy to information that is not generally available to other physicians. This inquiry as to whether Bard shared negative information about it filters with him is relevant to his bias and credibility and the failure to warn issues. It also relates to Bard’s negligent conduct. The testimony is not unfairly prejudicial. 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). Trerotola, 175:15- Rules 401, 402, the Bard has consistently OVERRULED Scott 175:24 document shown to the argued in support of the 01/20/2017 witness relates to a filter admissibility of this and/or complication mode witness’ testimony that not at issues in this case, he is a medical doctor probative value is experienced in the use of outweighed by prejudicial IVC filter and his effect. Rules 601, 602, testimony specifically lack of foundation. The addresses his work as a witness is shown a consultant with and for document he has never Bard with regard to its seen, he did not author, IVC filters. The Plaintiff he does not know the is entitled to test the author or recipient of the depth of that knowledge document and it asked to and to challenge his bias interpret what the author and credibility. The meant by the document. testimony is relevant and probative. Bard specifically references the witness’ knowledge and use of the G2 filter at 53:23-54:12, 95:18- 95:19, 125:16-126:05, 177:05-177:23. In fact he is so close to Bard that he is privy to information that is not generally available to other physicians. This inquiry as to whether Bard shared negative information about it filters with him is relevant to his bias and credibility and the failure to warn issues. It also relates to Bard’s negligent conduct. The testimony is not unfairly prejudicial. 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). Trerotola, 203:24- Scott 204:04 01/20/2017 Trerotola, 204:06- Scott 204:14 01/20/2017 Trerotola, 204:16- Scott 204:17 01/20/2017 DEPON- DEF PL OBJECTIONS DEF RESPONSE TO COURT ENT COUNTERS OBJECTIONS RULING TO COUNTERS Trerotola, 79:18-80:01 FRE 403 – this OVERRULED Scott testimony is in Bard’s 01/20/2017 direct examination of this from this witness and to relay it would be unnecessarily cumulative, misleading and unfairly prejudicial as it would be an attempt reinforce the testimony in the jurors’ minds. Trerotola, 132:16- FRE 401, 402, 403 & SUSTAIN Scott 132:22 611 – the testimony is 01/20/2017 completely out of context and is not relevant or probative. The testimony is confusing and likely to mislead. The testimony exceeds the scope of the Plaintiff’s cross.I Trerotola, 137:12- FRCP 32(6) and FRE OVERRULED Scott 137:18 106 – Optional 01/20/2017 completeness in fairness the remainder to the line of questioning should be included 137:19-138:01 as the Plaintiff will not be able to correct the omission on “re-cross”. Trerotola, 138:11- Scott 138:17 01/20/2017 Trerotola, 148:14- FRCP 32(6) and FRE OVERRULED Scott 148:19 106 – Optional 01/20/2017 completeness in fairness the remainder to the line of questioning should be included 148:20-149:15 as the Plaintiff will not be able to correct the omission on “re-cross”. Trerotola, 155:04- Scott 155:09 01/20/2017 Trerotola, 167:15- Scott 167:22 01/20/2017 Trerotola, 168:01- Scott 168:16 01/20/2017 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