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: 

Milanesi v. C.R. Bard, 

Case No. 2:18-cv-01320

 Case No. 2:18-md-2846

 JUDGE EDMUND A. SARGUS, JR.

 Magistrate Judge Kimberly A. Jolson

MOTIONS IN LIMINE OPINION & ORDER NO. 29

Defendants’ Motion in Limine (“MIL”) No. 18

Defendants C.R. Bard, Inc. and Davol, Inc. filed a Motion in Limine to Exclude Evidence 

and Argument Concerning Corporate Intent, Motives, or Ethics (Defendants’ MIL No. 18, ECF 

No. 185), which is opposed by Plaintiffs Antonio Milanesi and Alicia Morz de Milanesi (ECF No. 

232). For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART

Defendants’ MIL No. 18.

I. Background1

The Milanesis’ case will be tried as the second bellwether selected from thousands of cases 

in this multidistrict litigation (“MDL”) titled In Re: Davol, Inc./C.R. Bard, Inc., Polypropylene 

Hernia Mesh Products Liability Litigation, 2:18-md-2846. The Judicial Panel on Multidistrict

Litigation described the cases in this MDL as “shar[ing] common factual questions arising out of 

1 For a more complete factual background, the reader is directed to the Court’s 

summary judgment opinion and order in this case Milanesi v. C.R. Bard, Case No. 2:18-

cv-01320. (ECF No. 167.) All docket citations are to the Milanesi case, 2:18-cv-1320, 

unless otherwise noted.

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allegations that defects in defendants’ polypropylene hernia mesh products can lead to 

complications when implanted in patients, including adhesions, damage to organs, inflammatory 

and allergic responses, foreign body rejection, migration of the mesh, and infections.” (Case No. 

2:18-md-02846, ECF No. 1 at PageID #1–2.) 

Plaintiffs bring this action to recover for injuries sustained as a result of the implantation 

of the Ventralex Large Hernia Patch, alleging that Defendants knew of the risks presented by the 

device but marketed and sold it despite these risks and without appropriate warnings. After 

summary judgment, the following claims remain for trial: defective design (strict liability), failure 

to warn (strict liability), negligence, gross negligence, negligent misrepresentation, fraud and 

fraudulent misrepresentation, fraudulent concealment, loss of consortium, and punitive damages. 

The relevant facts here are that Mr. Milanesi underwent surgery to repair what appeared to 

be a recurrent hernia but was revealed to be a bowel erosion with a fistula and adhesions, which 

required a bowel resection. Shortly thereafter, Mr. Milanesi suffered a high-grade post-operative 

small bowel obstruction that required emergency surgery. Mr. Milanesi had the Ventralex Large 

Hernia Patch implanted ten years earlier to repair a hernia. 

In Defendants’ MIL No. 18, they move to exclude under Federal Rules of Evidence 401, 

402, 403, 602, and 702 evidence and argument concerning corporate intent, motives, or ethics

(Defs’ MIL No. 18, ECF No. 185.)

II. Standards

“Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure explicitly 

authorize a court to rule on an evidentiary motion in limine.” In re E.I. du Pont de Nemours & Co. 

C-8 Pers. Injury Litig., 348 F. Supp. 3d 698, 721 (S.D. Ohio 2016). The practice of ruling on such 

motions “has developed pursuant to the district court’s inherent authority to manage the course of 

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trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). “The purpose of a motion in limine is 

to allow a court to rule on issues pertaining to evidence prior to trial to avoid delay and ensure an 

evenhanded and expedient trial.” In re E.I. du Pont, 348 F. Supp. 3d at 721 (citing Ind. Ins. Co. v. 

Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004)). However, courts are generally 

reluctant to grant broad exclusions of evidence before trial because “a court is almost always better 

situated during the actual trial to assess the value and utility of evidence.” Koch v. Koch Indus., 

Inc., 2 F. Supp. 2d 1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire & Rubber Co., 

519 F.2d 708, 712 (6th Cir. 1975). Unless a party proves that the evidence is clearly inadmissible 

on all potential grounds—a demanding requirement—“evidentiary rulings should be deferred until 

trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper 

context.” Ind. Ins. Co., 326 F. Supp. 2d at 846; see also Koch, 2 F. Supp. 2d at 1388 (“[A] court 

is almost always better situated during the actual trial to assess the value and utility of evidence.”). 

The denial, in whole or in part, of a motion in limine does not give a party license to admit all 

evidence contemplated by the motion; it simply means that the Court cannot adjudicate the motion 

outside of the trial context. Ind. Ins Co., 326 F. Supp. 2d at 846.

Relevant evidence is “evidence having any tendency to make the existence of any fact that 

is of consequence to the determination of the action more probable or less probable than it would 

be without the evidence.” Fed. R. Evid. 401. “Irrelevant evidence is” inadmissible. Fed. R. Evid. 

402. A court may exclude relevant evidence under Federal Rule of Evidence 403 “if its probative 

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 

Fed. R. Evid. 403. Evidentiary rulings are made subject to the district court’s sound discretion. 

Frye v. CSX Trans., Inc., 933 F.3d 591, 598 (6th Cir. 2019); see also Paschal v. Flagstar Bank, 

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295 F.3d 565, 576 (6th Cir. 2002) (“In reviewing the trial court’s decision for an abuse of 

discretion, the appellate court must view the evidence in the light most favorable to its proponent, 

giving the evidence its maximum reasonable probative force and its minimum reasonable 

prejudicial value.”). Rule 602 provides that “[a] witness may testify to a matter only if evidence 

is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” 

Fed. R. Evid. 602.

III. Analysis

Both parties agree that similar issues were before this Court in the first bellwether case, 

Johns v. C. R. Bard, Inc., et al., Case No 2:18-cv-01509. The Court granted in part and denied in 

part Defendants’ motion to exclude evidence and argument concerning corporate intent, motives, 

or ethics. (Case No 2:18-cv-01509, MIL Order No. 6, ECF No. 366 at PageID #18931–32.) At 

the October 28, 2020 MIL hearing in Johns, the plaintiff agreed that expert witnesses may not 

offer testimony on Defendants’ corporate intent and motives. (Id.; Case No 2:18-cv-01509, ECF 

No. 360 at PageID #18839–40.) As to corporate fact witnesses, the Court stated that “[i]f it’s some 

low level person trying to infer what the company meant,” it would be inappropriate for the witness 

to try to testify to the corporation’s intent; however, “if someone is a decision maker [within the 

company],” the Court would address the personal knowledge issues “question by question.” (Id.

at PageID #18840.) The Court ruled that “if a corporate witness had personal knowledge of the 

Defendant corporations’ intent or motive,” and the corporate witness was a decision-maker within 

the corporation, “such questioning may be permissible. In the event that a witness testifies on this 

subject matter, the Court will resolve any personal-knowledge issues during trial.” (Id.; Case No 

2:18-cv-01509, MIL Order No. 6, ECF No. 366 at PageID #18931–32.)

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A. Expert Witnesses

Defendants argue that Plaintiffs’ expert witnesses lack the requisite knowledge to establish 

a proper foundation for evidence of corporate intent or motive. (Defs’ MIL No. 18, ECF No. 185 

at PageID #13972.) This Court agrees. Plaintiffs argue that their claims are “highly technical and 

scientific, and the jury would benefit from expert opinion and testimony discussing Defendants’ 

internal documents.” (Pls’ Mem. in Opp., ECF No. 232 at PageID #15295.) As this Court has 

previously stated:

Experts are often permitted to consider “internal documents, and other medical and 

scientific literature.” Trevino v. Bos. Sci. Corp., No. 2:13-cv-01617, 2016 WL 

2939521, at *19 (S.D.W. Va. May 19, 2016); see, e.g., Hosp. Auth. of Metro. Gov’t 

of Nashville & Davidson Cnty. v. Momenta Pharms., Inc., 333 F.R.D. 390, 402 

(M.D. Tenn. 2019). And as this Court has explained, “an expert may testify about 

his or her review of internal corporate documents solely for the purpose of 

explaining the basis for his or her opinions—assuming the opinions are otherwise 

admissible.” In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. 

Liab. Litig., Nos. 2:18-cv-01509, 2:18-md-2846, 2020 WL 6605542, at *11 (S.D. 

Ohio Sept. 1, 2020) (quoting Sanchez v. Bos. Sci. Corp., No. 2:12-cv-05762, 2014 

WL 4851989, at *4 (S.D.W. Va. Sept. 29, 2014)) (Evidentiary Motions Order 

(“EMO”) No. 5).

(Evidentiary Motions Order No. 17, ECF No. 166 at PageID #13595.) Courts have typically barred 

expert opinions or testimony concerning a corporation’s state of mind, subjective motivation, or 

intent. See, e.g., In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531 (S.D. N.Y. 2004). Although 

witnesses may discuss certain subjects about which they possess specialized knowledge, this does 

not mean that they may speculate regarding corporate intent, state of mind, and/or motivations. 

See id. at 546 (“[T]he opinions of these witnesses on the intent, motives or states of mind of 

corporations . . . have no basis in any relevant body of knowledge or expertise.”)

B. Corporate Witnesses 

Defendants argue that none of Plaintiffs’ fact witnesses have the requisite knowledge to 

establish a proper foundation to testify to Defendants’ corporate intent, motives, or ethics. On this 

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issue, the Court adopts its previous ruling in Johns. If a corporate witness has personal knowledge 

of the Defendant corporations’ intent or motive, such questioning may be permissible. In the event 

that a witness testifies on this subject matter, the Court will resolve any personal-knowledge issues 

during trial.

IV. Conclusion

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART

Defendants’ MIL No. 18 (ECF No. 185). 

As with all in limine decisions, this ruling is subject to modification should the facts or 

circumstances at trial differ from that which has been presented in the pre-trial motion and 

memoranda.

IT IS SO ORDERED.

12/9/2021 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE

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