UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: DAVOL, INC./C.R. BARD, 

INC., POLYPROPYLENE HERNIA 

MESH PRODUCTS LIABILITY 

LITIGATION

This document relates to:

Johns v. CR Bard et al, 

Case No. 2:18-cv-1509

Case No. 2:18-md-2846

 JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

 

CASE MANAGEMENT ORDER NO. 23-B

Pretrial and Trial Schedule for First Bellwether Trial Case 

On January 24, 2020, the Court selected Johns v. C.R. Bard et al., Case No. 2:18-cv-01509 

as the first Bellwether Trial Case that will be tried in this multidistrict litigation (“MDL”). Due 

to the impact of the coronavirus (COVID-19) outbreak, this trial has been rescheduled to Tuesday, 

September 29, 2020. This amended CMO supersedes the deadlines in CMOs 23 and 23-A as set 

forth below. The deadlines set forth in CMOs 28-A and 29 (related to Milanesi et al. v. C.R. Bard 

et al., Case No. 2:18-cv-01320) are hereby vacated and that trial will be rescheduled at a later 

date.

I. TRIAL AND FINAL PRETRIAL CONFERENCES

A. Trial

1. The first Bellwether Trial Case is scheduled for trial on Tuesday, 

September 29, 2020, at 9:00 a.m. in Courtroom 2.

2. Trial counsel shall meet in the chambers of Judge Sargus at 8:30 a.m. on

each day of the trial.

B. Final Pretrial Conferences

1. The first final pretrial conference shall be held on Wednesday, September

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9, 2020, at 9:00 a.m. in the chambers of Judge Sargus. All trial counsel must

appear.

2. The second final pretrial conference shall be held on Tuesday, 

September 15, 2020 and Wednesday, September 16, 2020, at 9:00 a.m. 

in the chambers of Judge Sargus.

a. The Court will resolve the objections to the deposition

designations and objections to the exhibits.

b. All trial counsel must appear.

c. Attached to this CMO is the Court's Final Pretrial Order 

(“CMO 29-A”). The parties shall jointly submit CMO 23-C

on or before Friday, September 18, 2020.

II. WITNESS LISTS

A. Deadlines

1. Plaintiff shall serve his/her witness list by February 24, 2020.

2. Defendant shall serve its witness list by March 2, 2020.

B. Procedures

1. Witnesses not included on a party’s witness list shall not be called at trial 

absent agreement by the parties or a showing of good cause as to why 

the witness was not included on the witness list. The parties will use 

good faith efforts to list persons whom they actually intend to call at trial 

(live or by deposition) based upon on a good faith best current 

intentions “will call” list, and persons whom they currently believe are 

unlikely to be called but may be called on a “may call” list. The parties 

shall also use good faith efforts to state whether each proposed witness 

will be called live, or by deposition.

III. DEPOSITION DESIGNATIONS

A. Deadlines

1. Plaintiff shall serve page/line designations of deposition testimony by March 

4, 2020.

2. Defendant shall serve (a) page/line counter-designations of deposition 

testimony; (b) objections to Plaintiff’s page/line deposition 

designations; and (c) affirmative page/line designations of deposition 

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testimony by March 27, 2020.

3. Plaintiff shall serve (a) page/line counter-designations of deposition 

testimony; (b) objections to Defendant’s page/line deposition counterdesignations; (c) objections to Defendant’s affirmative page/line 

designations; and (d) page/line counter-counter designations in support of 

his own designations by April 16, 2020.

4. Defendant shall serve (a) objections to Plaintiff’s page/line counterdesignations; (b) objections to Plaintiff’s counter-counter designations; 

and (c) page/line counter-counter designations in support of its own 

designations by May 11, 2020.

5. Plaintiff shall serve objections to Defendants’ counter-counter 

designations by May 25, 2020.

6. For depositions completed or to be completed1 after March 6, 2020, the 

parties shall follow the following protocol: (1) the parties shall order an 

expedited transcript; (2) A party wishing to designate from the transcript 

(“Designating Party”) shall serve page/line designations of deposition 

testimony 7 days after receipt of the transcript; (3) the NonDesignating Party shall serve (a) page/line counter-designations of 

deposition testimony; and (b) objections to the Designating Party’s 

page/line deposition designations 7 days after receipt of the Designating 

Party’s designations; (4) the Designating Party shall serve (a) objections 

to the Non-Designating Party’s page/line deposition counter

designations; and (b) page/line counter-counter designations in support 

of its own designations 3 days after receipt of the Non-Designating 

Party’s counter-designations; and (4) the Non-Designating Party 

objections to the Designating Party’s counter-counter designations 3 

days after receipt. If a deposition is not completed by August 10, 2020, 

then the parties will apply the Court’s rulings on other designations to 

narrow any objections.

7. All page/line designations, counter-designations, counter-counter 

designations, and objections shall be exchanged by the partiesin an Excel

format to be agreed on by the parties.

B. Due to Court

All unresolved objections must be submitted to the Court by September 1, 2020, at 

1 A deposition that has been adjourned is not deemed completed for purposes of this protocol.

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9:00 a.m., along with copies of the deposition transcripts to which there are unresolved 

objections. However, the parties will not be permitted to submit any counter-counter 

designations and objections to the Court without leave, and only then for good cause. 

IV. EXHIBIT LISTS

A. Deadlines

1. The parties shall mark their documentary or physical evidence in advance 

of trial. The exhibits shall comport with all of the requirements of Federal 

Rule of Civil Procedure 26(a)(3)(A).

2. Plaintiff shall serve its exhibit list in a format to be agreed by the parties, 

which shall include all document production numbers (i.e., all known bates 

numbers, if applicable) and/or a description of the document (if there is no 

bates number) by August 7, 2020. An electronic copy of the exhibits shall 

also be provided on or before August 10, 2020, in a format to be agreed by 

the parties. Demonstrative exhibits shall be shown to opposing counsel 

before being displayed to the jury.

3. Defendant shall serve its exhibit list in a format to be agreed by the parties, 

which shall include all document production numbers (i.e., all known bates 

numbers, if applicable) or a description of the document (if there is no bates 

number), by August 17, 2020. An electronic copy of the exhibits shall also 

be provided by August 19, 2020, in a format to be agreed by the parties. 

Defendant shall serve any objections to Plaintiff’s exhibit list by August 

17, 2020.

4. Plaintiff may serve any objections to Defendant’s exhibit list by August 26,

2020, at 9:00 a.m.

5. The parties shall have the right to supplement their exhibit list(s) in light 

of any and all ongoing discovery.

B. Due to Court

All unresolved objections must be submitted to the Court by September 1, 2020, at 9:00 

a.m., along with copies of the exhibits to which there are unresolved objections in a three-ringed, 

tabbed notebook.

The Court strongly encourages the parties to utilize the electronic courtroom technology 

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for presentation of evidence. The parties shall report to the Court, by joint submission, on or 

before the date of the first final pretrial conference, their intent to use the technology. If the 

parties are not utilizing the Court's complete electronic technology, they shall present their 

exhibits by using the document cameras (ELMOs) located at counsel tables. The parties shall 

provide copies of the exhibits to the Court as used during trial, and are not required to submit 

copies to the Court before trial, other than the exhibits to which there are unresolved objections.

V. MOTIONS IN LIMINE

A. Deadlines

1. Motions in limine shall be filed by July 31, 2020.2

2. Responses in opposition to motions in limine shall be filed by August 14,

2020.

3. No reply is permitted without leave of Court, and only then for good cause; 

leave to file a reply must be sought by August 17, 2020.

B. Procedures

1. The following apply to all in limine motions:

a. Index to motions in limine: If filing more than one in limine 

motion, the party shall submit to the Court and to the opposing 

party an “Index to Motions inLimine.”

b. Attachments to motions in limine: If filing an in limine motion 

seeking an evidentiary ruling on a category of documents, 

testimony, or argument the party shall attach to the in limine motion 

document(s) or testimony on which it seeks a pre-trial ruling. A

party responding shall attach any document or testimony that it 

deems is necessary for the Court to fully consider the evidentiary 

issue presented.

c. Page Limitation: Individual in limine motions and responses shall be 

limited to 10 double-spaced pages; replies shall be limited to 6 

2 Any motion in limine that specifically pertains to the usage of the AHSQC data shall be filed by June 30, 

2020, with a hearing on those specific motions, if necessary, to be determined by the Court on a separate 

schedule than those in Section V of this Order.

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double-spaced pages absent agreement of the parties or leave of 

Court.

2. The parties shall indicate in any in limine motion whether the Court ruled 

on the issue previously in this case or another case in this MDL, whether

they are moving to preserve, or whether they are asking for reconsideration

because of new or different circumstances or other good cause.

VI. VOIR DIRE

The parties shall exchange proposed voir dire questions on August 24, 2020. The 

parties shall submit their proposed voir dire questions to the Court by August 31, 2020.

The whole panel of prospective jurors (i.e. those in the jury box and those seated in

the rear of the courtroom) will be examined collectively. The Court will conduct some of the

voir dire examination.

After voir dire, the Court will consider challenges for cause and peremptory 

challenges. Each prospective juror is assigned a number by the Clerk’s Office. A list of the 

jurors’ names and numbers is available to counsel prior to the commencement of trial. When 

challenging a juror, counsel should refer to the juror by name and number.

Counsel will not be permitted to question jurors individually regarding background 

information. This information is contained in juror questionnaires which will be on file in 

the Clerk's Office. Counsel should examine these forms prior to the commencement of trial.

Counsel should contact the Court’s Law Clerk, Erika Prouty, who can be reached at (614) 

719-3253 or Erika_Prouty@ohsd.uscourts.gov, to arrange access to juror questionnaires.

Because of the length of the estimated length of this trial, the parties shall meet and 

confer and submit to the Court by June 10, 2020, an additional questionnaire to be sent to the 

jury pool. The main question in this questionnaire will be whether the juror can serve for the 

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length of the trial. The Court will entertain additional questions the parties propose to be in 

included in the questionnaire.

VII. JURY INSTRUCTIONS

A. Jury Instructions from the Court

The Court will prepare preliminary and general jury instructions. The parties may obtain 

an example of the Court's general instructions from the Court’s Law Clerk, Erika Prouty. The 

parties shall concentrate their efforts on the case-specific instructions.

B. Proposed Jury Instructions from the Parties

The parties shall submit jointly one set of proposed jury instructions which contains the 

parties agreed upon case-specific instructions, and, in the event the parties cannot agree on an 

instruction, each party’s own individual proposed case-specific instruction. To this end, counsel 

shall adhere to the following procedures:

1. The parties shall serve their proposed jury instructions on each other

on or before August 31, 2020.

2. Counsel then shall meet, confer and agree on proposed case-specific

jury instructions.

3. If, after concerted good faith effort, the parties are unable to agree upon a 

particular case-specific instruction, each party shall propose its own 

version. Plaintiff's version shall be presented first, immediately followed 

by Defendant's version of the jury instruction, complete with pinpoint 

citations to binding authority. Each version, Plaintiff's and Defendant's, 

shall appear together on one page for ready comparison. Versions of 

longer instructions (over one page) shall appear one after another. A party 

may indicate its general objection to the giving of the proposed instruction.

4. Proposed case-specific jury instructions shall be submitted to the Court

on or before September 9, 2020.

All instructions shall be concise, understandable and neutral. Further, counsel shall at 

a minimum agree on a common index and the proposed instructions from all parties shall 

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correspond to the index.

VIII. MODIFICATION

The parties may by agreement modify the dates within this CMO that affect only the parties. 

All deadlines established for submissions to the Court may only be modified for good cause and 

with the permission of the Court.

IX. ADDITIONAL GUIDELINES

A. Jury

Any prospective juror may be challenged for cause. Each party shall be entitled to three (3) 

peremptory challenges. 28 U.S.C. § 1870. The parties will exercise their peremptory challenges 

alternately with the plaintiff exercising the first challenge. If either party “passes,” that challenge 

will be counted as used.

In most civil cases the Court will seat a jury of eight (8) members. In accordance with 

Federal Rule of Civil Procedure 48, all jurors shall participate in the verdict unless excused pursuant 

to Rule 47(c). Unless the parties otherwise stipulate, the verdict shall be unanimous. 

B. Trial Procedure

Trial will commence every day at 9:00am. The Court will take one mid-morning break, one 

lunch break, and one mid-afternoon break each day. 

C. Disclosure of Live Witnesses

Unless the parties agree otherwise, given the nature of this trial, including the extraordinary

amount of documents and preparation, disclosure of live witnesses to be called to testify, and 

expected order, shall be made 24 hours in advance of the witness testifying. Any new witness for

a Monday shall be disclosed on Friday before 9:00 p.m. (Eastern Standard Time). The parties 

shall use good faith efforts to notify opposing counsel of witnesses to be presented by deposition 

designations 24 hours in advance of their use at trial, but the intent of this is not to preclude a party

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from utilizing a deposition designation if time allows for such use during the natural progression of 

the trial.

D. Other Matters 

This Order supersedes all previous orders in this case to the extent previous orders are 

inconsistent with this Order.

The parties shall address questions about this Order to the Court’s Law Clerk, Erika Prouty. 

When calling or emailing, please have counsel for all parties participating or with fewer than all 

counsel participating with express permission of non-participating counsel.

IT IS SO ORDERED.

5/5/2020 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

5/5/2020 s/Kimberly A. Jolson

DATE KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: DAVOL, INC./C.R. BARD, 

INC., POLYPROPYLENE HERNIA 

MESH PRODUCTS LIABILITY 

LITIGATION

This document relates to: 

ALL ACTIONS.

 Case No. 2:18-md-2846

 JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

CASE MANAGEMENT ORDER NO. 23-C

FINAL PRETRIAL ORDER

The Court held a final pretrial conference in this case on _______________ at ____ a.m., 

pursuant to Fed. R. Civ. P. 16.

I. APPEARANCES

For Plaintiff:

For Defendant:

II. NATURE OF ACTION

A. This is an action for:

B. The jurisdiction of the Court is invoked under Title ____, United States Code, 

Section _____.

C. The jurisdiction of the Court (is) (is not) disputed.

III. TRIAL LENGTH

 The estimated length of trial is:

IV. AGREED STATEMENTS AND LISTS

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A. General Nature of the Claims of the Parties

l. Plaintiffs' Claims: 

The parties shall set out brief summary without detail; an itemized statement 

of special damages should be included.

2. Defendants' Claims: 

The parties shall set out brief summary without detail.

B. Uncontroverted Facts

The parties shall set out uncontroverted or uncontested facts in chronological order. 

Suggested language: The following facts are established by admissions in the pleadings or 

by stipulations of counsel. 

C. Contested Issues of Fact and Law

1. Contested Issues of Fact. 

The parties shall set out a brief statement of the remaining contested issues of fact. 

Suggested language: The contested issues of fact remaining for decision are:

2. Contested Issues of Law. 

The parties shall set out a brief statement of the remaining contested issues of law. 

Suggested language: The contested issues of law in addition to those implicit in the 

foregoing issues of fact, are:

OR There are no special issues of law reserved other than those implicit in the foregoing 

issues of fact.

D. Witnesses

1. Suggested language: In the absence of reasonable notice to opposing counsel to the 

contrary, plaintiff will call, or will have available at the trial:

OR Plaintiff may call: (provide a brief synopsis of each witness' testimony.)

2. Suggested language: In the absence of reasonable notice to opposing counsel to the 

contrary, defendant will call, or will have available at the trial: 

OR Defendant may call: (provide a brief synopsis of each witness' testimony.)

3. Suggested language: In the absence of reasonable notice to opposing counsel to the 

contrary, _____________ will call: 

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OR ___________ may call: (provide a brief synopsis of each witness' testimony; use for 

third parties).

4. In the event other witnesses are to be called at the trial, a statement of their names 

and addresses and the general subject matter of their testimony will be served upon opposing 

counsel and filed with the Court at least five (5) days prior to trial.

5. There is reserved to each of the parties the right to call such rebuttal witnesses as may 

be necessary, without prior notice to the other party. Questions frequently arise as to 

whether a witness will offer rebuttal testimony or is more appropriately designated as part of 

the case-in-chief. If questions arise as to the nature of a witness= testimony, the Court will 

err on the side of required disclosure five (5) days prior to trial of rebuttal witnesses. If no 

disclosure is made, the Court shall not permit such witness to testify.

Note: Only witnesses listed in the Final Pretrial Order will be permitted to testify at the 

trial, except witnesses called solely for the purpose of impeachment or for good cause 

shown.

E. Expert Witnesses

Suggested language: Parties are limited to the following number of expert witnesses, 

including treating physicians, whose names have been disclosed to the other side.

 

1. Plaintiff: List all expert witnesses plaintiff intends to call at trial.

2. Defendant: List all expert witnesses defendant intends to call at trial.

Counsel have filed a resume or curriculum vitae of each expert’s qualifications that 

may be found on the docket at:______________. 

F. Depositions

During trial, reading of depositions frequently presents problems that can be 

eliminated by advance discussion and preparation. The pretrial order shall list depositions to 

be read into evidence and any objections thereto identifying the objecting party, portions 

objected to, and the basis for the objections. All irrelevant and redundant matter and all 

colloquy between counsel in the deposition must be eliminated when the deposition is read. 

See also the requirements of Fed. R. Civ. P. 26(a)(3)(B).

Suggested language: Testimony of the following witnesses will be offered by 

deposition/videotape. (List all witnesses whose testimony will be offered by deposition or 

videotape. If none, so state.)

G. Exhibits

The exhibit list should be prepared prior to trial and set forth in the pretrial order. 

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Exhibits that are to be admitted without objection should be listed first, then followed by a 

listing of exhibits to which there may be objections, noting by whom the objection is made 

(if there are multiple adverse parties), the nature of the objection, and the authority 

supporting the objection. 

Exhibit markers should be attached to all exhibits at the time they are shown to 

opposing counsel during the preparation of the pretrial order. A supply of marking tags for 

exhibits may be obtained from the courtroom deputy clerk. They should be attached to the 

lower right-hand corner whenever possible. See also the requirements of Fed. R. Civ. P. 

26(a)(3)(C).

Except for good cause shown, the Court will not permit the introduction of any 

exhibits unless they have been listed in the pretrial order, with the exception of exhibits to be 

used solely for the purpose of impeachment.

Exhibit lists should be attached as appendices to the pretrial order as follows:

Appendix B Joint Exhibits

Appendix C Plaintiff Exhibits

Appendix D Defendant Exhibits

Appendix E Third-Party Exhibits

H. Stipulations

Counsel have made any and all stipulations pursuant to the Federal Rules.

I. Completion of Discovery

Except for good cause, all discovery shall be completed before the Final Pretrial 

Order is signed by the Court. If discovery has not been completed, the proposed pretrial 

order shall state what discovery is yet to be done by each side, when it is scheduled, when it 

will be completed, and whether any problems (e.g., objections or motions) are likely with 

respect to the uncompleted discovery.

Suggested language: 

* Discovery has been completed.

* Discovery is to be completed by ______, 20__.

* Further discovery is limited to ________________________.

* The following provisions were made for discovery:

Specify all such provisions.

V. MODIFICATION

The Final Pretrial Order may be modified at or prior to the trial of this action to 

prevent manifest injustice. Such modification may be made by application of counsel or on 

motion of the Court.

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VI. REMAINING ISSUES AND OTHER MATTERS

The following legal issues must be resolved before the beginning of trial:

Counsel bring the following additional matters to the Court's attention:

______________________________________

EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

_________________________________

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

______________________________

Trial Counsel for Plaintiffs

______________________________

Trial Counsel for Defendants

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