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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 1 of 88
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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 5 of 88
Do Not Disclose - Subject to Further Confidentiality Review

Golkow Technologies, Inc. Page 1

 1 UNITED STATES DISTRICT COURT

 2 DISTRICT OF ARIZONA

 3

 4

 IN RE: BARD IVC FILTERS ) Case No.

 5 PRODUCTS LIABILITY ) MD-15-02641-PHX-DGC

 LITIGATION )

 6 )

 7 DO NOT DISCLOSE

 SUBJECT TO FURTHER CONFIDENTIALITY REVIEW

 8

 VIDEOTAPED DEPOSITION OF .

 9 April 3, 2017

 Lincoln, Nebraska

 10 1:55 p.m.

 11

 12

 13

 14

 15 Reported by: Lori J. McGowan, RDR, CRR

 16

 17

 18

 19

 20 GOLKOW TECHNOLOGIES, INC.

 877.370.3377 ph | 917.591.5672 fax

 21 deps@golkow.com

 22

 23

 24

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 6 of 88
Do Not Disclose - Subject to Further Confidentiality Review

Golkow Technologies, Inc. Page 67

 1

.

 12 Q. Okay.

 13 A.

.

 15 Q.

 18 A.

 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 7 of 88
Do Not Disclose - Subject to Further Confidentiality Review

Golkow Technologies, Inc. Page 68

 1

 

 

 23 MS. HELM: Object to the form.

 24 A.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 8 of 88
Do Not Disclose - Subject to Further Confidentiality Review

Golkow Technologies, Inc. Page 69

 1

 2 Q. (BY MR. MARTIN) Yes, sir.

 3 A.

 

 7 A. Uh-huh.

 8 Q. -- 

 10 A. Uh-huh.

 11 Q. -- what did you mean by that statement?

 12 A.

 

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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 10 of 88
Page 1

 IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS NO. MD-15-02641-PHX-DGC

PRODUCTS LIABILITY

LITIGATION.

 VIDEOTAPE DEPOSITION OF CAROL KRUSE, taken

before Mary Lou Harmon, RPR, CRR, CSR(IA), General

Notary Public within and for the State of Nebraska,

beginning at 12:58 p.m., on the 20th day of

February, 2017, at The Lincoln Marriott Cornhusker

Hotel, 333 South 13th Street, Lincoln, Nebraska.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 11 of 88
Page 14

1 sometime this year?

2 A. If not this year, real close to the end of

3 last year, yes.

4 Q. Before that conversation with your

5 daughter, had you spoken with your daughter about

6 your lawsuit against Bard regarding your IVC filter?

7 A. The only thing I had visited with her

8 about was way back when I, you know, called a number

9 that was on TV that said if you've had, you know, a

10 clot filter put in, call this number.

11 Q. So you saw that TV advertisement, and you

12 spoke -- you then spoke with your daughter?

13 A. I'm sure I didn't call her that day, you

14 know.

15 Q. But near that time you spoke with your

16 daughter about --

17 A. Yes.

18 Q. -- the advertisement you saw?

19 A. Yes.

20 Q. In any of the -- strike that.

21 With the discussion you had with your

22 daughter recently about the fact that she was going

23 to be deposed and you were going to be deposed, did

24 you at any point talk with her about the questions

25 that you might get asked?

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 12 of 88
Page 45

1 after you got the box?

2 A. Probably.

3 Q. And you filed your lawsuit on April 6,

4 2015; right? Does that sound right?

5 A. I don't know.

6 Q. Okay. Let's go back to Page-- to

7 Exhibit 5 for a moment, please.

8 And if you would look at Page 5, please.

9 At the top on question No. 14, it asks,

10 "Before contacting an attorney regarding this

11 lawsuit or claim, had you ever seen a television or

12 print advertisement regarding possible claims

13 against Inferior Vena Cava Filter manufacturers,"

14 and you marked "yes."

15 A. Yes, uh-huh.

16 Q. Read for me the response. It asks for the

17 approximate date and nature of the advertisement.

18 What is your response there?

19 A. "I remember seeing the ad on TV about

20 people having IVC filters, and there was a telephone

21 number to call."

22 As far as approximate date, it would have

23 to be maybe 2010, 2009, somewhere in there.

24 Q. Do you know approximately between the time

25 that you saw the TV advertisement and when you

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 13 of 88
Page 48

1 are not going to discuss any communications you had

2 with him or any letters or what was the content of

3 any of those letters. That's attorney/client

4 privilege.

5 I just wanted to make sure we're talking

6 about what I thought we were talking about.

7 MR. NASH: And I didn't know. I

8 certainly don't want to --

9 MR. ARBON: I'm not saying you did

10 anything wrong. Until we established where we were

11 headed with that, I didn't want to interject, but

12 now I'm interjecting.

13 BY MR. NASH:

14 Q. And, Ms. Kruse, let me make sure it's

15 clear.

16 When I ask a question about anyone you've

17 talked with, if you've talked with an attorney, I'm

18 not interested -- well, I am interested, but I don't

19 want you to answer that.

20 A. Right. I did not actually talk to him. I

21 did not actually talk to anybody there. All I got

22 was letters.

23 Q. Do you remember seeing that TV

24 advertisement before you had your procedure to

25 remove your filter?

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 14 of 88
Page 49

1 A. Yes.

2 Q. Do you remember the content or substance

3 of that TV advertisement?

4 A. It was just a general -- you know, didn't

5 have any pictures or anything like that. Just, you

6 know, if you've had an IVC filter placed and have

7 had, you know, problems, please call this number.

8 Q. I'm going to mark -- or ask you to mark

9 for Exhibit 7, please.

10 (Exhibit No. 7

11 marked for identification.)

12 MR. NASH: Tom, this is just the

13 notice or amended notice.

14 BY MR. NASH:

15 Q. Ms. Kruse, I've -- you've been handed

16 Exhibit No. 7, and it -- if you read the title, it

17 says, "Amended Notice of Videotape Deposition Duces

18 Tecum of Carol Kruse."

19 Do you see that?

20 A. No, I do not.

21 Q. I'm sorry, flip to the first page of

22 what -- I'm sorry.

23 A. I was going to say, "No, I don't see

24 that."

25 Q. You are on the first page.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 15 of 88
Page 111

1

5 A. Yes.

6 Q.

 

 

21 A. Correct.

22 Q.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 16 of 88
Page 112

1 A. Evidently, yes.

2 Q.

7 MR. ARBON: Objection. Form.

8 THE WITNESS: 

10 BY MR. NASH:

11 Q.

14 A. Yes.

15 Q.

19 A. Yes.

20 Q.

22 A. Yes.

23 Q.

25 MR. ARBON: Go ahead.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 17 of 88
Page 121

1 A.

 yes.

6 Q.

22 (Exhibit No. 12

23 marked for identification.)

24 MR. NASH: Tom, this is 12.

25

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 18 of 88
Page 124

1

5 BY MR. NASH:

6 Q.

9 A. Okay.

10 Q.

 

15 Q.

17 A. Yes.

18 Q.

22 MR. ARBON: Objection to form.

23 THE WITNESS: 

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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 20 of 88
Page 141

1

 

 

 

 

17 A. No, I do not know.

18 Q.

 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 21 of 88
Page 142

1

.

7 (Exhibit No. 15

8 marked for identification.)

9 BY MR. NASH:

10 Q. Ms. Kruse, you've been handed Exhibit 15.

11

13 A. Yes.

14 Q. And do you see at the bottom your name is

15 there, "Carol Kruse"?

16 A. Yes.

17 Q.

18 A. Yes.

19 Q. In the top corner?

20 A. Yes.

21 Q.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 22 of 88
Page 186

1 texted anyone else or at any other time sent a text

2 message about your IVC filter?

3 A. If I did, it would have been Diane, my

4 daughter, you know.

5 Q. But you don't have any recollection as you

6 sit here today of any such text messages about your

7 IVC filter?

8 A. No. In fact, when I texted her, I said

9 come a little bit early and we'll chat while we have

10 time before the filter deposition. So is that about

11 the filter, not really, but it sort of is, kind of.

12 Q. Ms. Kruse, have you ever been convicted or

13 pled guilty to any felony or crime of fraud or

14 dishonesty?

15 A. No.

16 Q. Have you ever been arrested for a crime --

17 for a felony or a crime of fraud or dishonesty?

18 A. No.

19 Q. Do you keep a journal?

20 A. No.

21 Q. Do you keep a diary?

22 A. No.

23 Q. Do you have any place where you like to

24 write down your thoughts?

25 A. No.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 23 of 88
Page 187

1 Q. Have you ever spoken to anyone at C.R.

2 Bard or Bard Peripheral Vascular?

3 A. No.

4 (Exhibit No. 16

5 marked for identification.)

6 MR. NASH: This is 16.

7 BY MR. NASH:

8 Q. Ms. Kruse, I've handed you Exhibit 16.

9 A. Yes.

10 Q. Do you recognize this document?

11 A. Yes.

12 Q. I just want to confirm, this is you at the

13 top, Carol D. Kruse; correct?

14 A. Correct.

15 Q. Dated February 5, 2013?

16 A. Yes.

17 Q. Is this a -- appear to you to be a true

18 and correct copy of the bankruptcy petition that was

19 filed on your behalf back in 2013?

20 A. Yes.

21 (Exhibit No. 17

22 marked for identification.)

23 BY MR. NASH:

24 Q. And, Ms. Kruse, you've been handed Exhibit

25 No. 17. Do you recognize this document?

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 24 of 88
Page 188

1 A. Yes.

2 Q. At the top it's dated -- filed June 6 --

3 I'm sorry, June 3rd, 2013. Do you see that?

4 A. Yes.

5 Q. And you see it says, "Discharge of

6 debtor"?

7 A. Yes.

8 Q. Do you understand -- I'm sorry, strike

9 that.

10 Towards the top you see where your name is

11 listed, "Carol D. Kruse"?

12 A. Yes.

13 Q. Do you understand this document to be a

14 true and correct copy of the discharge order related

15 to the bankruptcy filing we just looked at?

16 A. Yes.

17 MR. NASH: I don't have any further

18 questions.

19 CROSS-EXAMINATION

20 BY MR. ARBON:

21 Q. Let me ask you a quick question.

22 You just said have you ever contacted

23 Bard, counsel asked you that.

24 A. Right.

25 Q. Just to be clear, have you ever had any

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 25 of 88
Page 189

1 reason to believe you've met anyone from Bard?

2 A. No.

3 Q. Or been introduced to anyone from Bard?

4 COURT REPORTER: Excuse me, ma'am,

5 you need to answer out loud.

6 THE WITNESS: No.

7 BY MR. ARBON:

8 Q.

11 A. There was --

12 MR. NASH: Objection. Leading.

13 THE WITNESS: -- a person that

14 introduced me to. And it's my

15 recollection that he was a representative from Bard.

16 I do not know his name. I do not know what he

17 looked like, because I was under the, you know, blue

18 drape. I could hear him and visiting.

19 BY MR. ARBON:

20 Q. So when you talked about 

21 visiting with someone about -- I think you said,

22 "let's try a different size"?

23 A. Yes.

24 Q. Was it your belief or understanding that

25 was someone from Bard?

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 26 of 88
Page 190

1 A. Yes. I'm assuming it was the same person

2 that, you know, he said we also have this person in

3 the room and he's a representative of Bard -- or

4 representative from the or

5 something like that.

6 MR. ARBON: I'm wondering -- I didn't

7 write down page and line, I apologize. Can you go

8 to -- if I give you a time reference, can you find

9 it?

10 COURT REPORTER: Do you want to go

11 off the record?

12 MR. ARBON: Yeah, let's go off the

13 record.

14 VIDEOGRAPHER: Off the record at

15 6 p.m.

16 (Discussion off the record.)

17 VIDEOGRAPHER: Back on the record at

18 6:02 p.m.

19 BY MR. ARBON:

20 Q. We just took a quick break to look at a

21 question and answer from the deposition. And on the

22 rough, it would have been Page 146, Lines 12 through

23 22. And it was back when you were discussing a

24 conversation you had with 

25 .

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 27 of 88
Page 195

1 BY MR. ARBON:

2 Q. Did you know or have reason to know that

3 that ?

4 A. No.

5 Q. When was the first time that you had any

6 reason to believe your filter was -- there is

7 anything wrong with your filter?

8 A. When the 

11 MR. ARBON: I'll reserve the rest of

12 my questions.

13 MR. NASH: I have no further

14 questions.

15 VIDEOGRAPHER: This is the end of

16 media No. 4. End of deposition. Off the record at

17 6:09 p.m.

18 MR. ARBON: We'll read and sign.

19 COURT REPORTER: (Requests transcript

20 orders.)

21 MR. ARBON: An E-file with exhibits.

22 MR. NASH: E-Tran with exhibits.

23 (Whereupon, the deposition was

 concluded at 6:09 p.m.)

24

25 **   ** 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 28 of 88
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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 29 of 88
UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

IN RE: BARD IVC FILTERS PRODUCTS 

LIABILITY LITIGATION 

No. 2:15-md-02641-DGC 

This Document Relates to: 

No. 2:15-cv-01634-DGC 

CAROL KRUSE 

 v. 

C.R. BARD, INC. AND BARD 

PERIPHERAL VASCULAR, INC 

DECLARATION OF CAROL D. KRUSE 

My name is Carol Kruse. I am over the age of 19 and competent to make this declaration. 

I have personal knowledge of the facts stated herein. 

I was first implanted with a Bard G2 IVC filter on July 8, 2009. The filter was placed by 

Shanon Smith, M.D. 

On the day the filter was implanted and prior to undergoing the procedure to implant the 

IVC filter, I signed a consent form that listed the general risks attendant to any invasive surgical 

procedure. Prior the implantation of the Bard G2 filter, I was not informed of any risks that were 

specific to the IVC filter itself. 

On July 8, 2009, prior to having the filter implanted, the only thing that Dr. Smith said 

about the filter was that it was a removable device and could be retrieved if and when I wanted it 

taken out. I was never informed that there were any time limits by which the filter should be 

removed or that the risks of the filter migrating, tilting, perforating the wall of the vena cava, 

becoming embedded, or fracturing increased the longer the filter remained implanted in my 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 30 of 88
2

body. I was not informed that there was any risk of caudal migration of the filter or that the filter 

could tilt, perforate my vena cava, or fracture. Had I been told that the Bard G2 filter had a 

higher risk of caudal migration than other IVC filters or that filter presented higher risk of 

perforating my inferior vena cava than other filters, I would have asked that 

without placement of an IVC filter. 

In 2009 or 2010, I saw an advertisement on TV that mentioned some people who had 

been implanted with IVC filters might have a claim against the manufacturer. I called the 

number from the television advertisement, not because I was experiencing pain or suspected that 

I was having any problems with my filter, but simply because I knew I had an IVC filter, and 

because this commercial encouraged people who had an IVC filter to call for more information. 

I just wanted to know what the commercial was all about. The person I spoke with took my 

name and number, but several years passed before I was actually informed that a claim might 

exist. That information came from an attorney named Russell Button with the Law Offices of 

Ben C. Martin. My first contact with that law firm occurred in July 2013. It would be more than 

a year later before I was informed that my case had been investigated and that a claim was going 

to be made on my behalf. 

In late 2010 to early 2011, I recall having a conversation with 

 When I mentioned that I still 

had the Bard G2 IVC filter implanted, . My 

reason for scheduling the removal procedure was not because I knew or believed at that time that 

the filter was causing any but simply because it had been brought to my attention that the 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 31 of 88
3

filter was no longer needed and it was a convenient time for me to have the procedure. I then 

spoke with Dr. Smith by telephone about scheduling the removal of the filter and he set the 

retrieval for April 7, 2011. 

I underwent a 

 but I did not know, or even suspect, that the IVC filter had 

tilted, migrated, perforated my IVC, or fractured. I thought 

the filter was no longer needed and because April 2011 was a convenient time for me to have the 

procedure

The first time that I knew or had a reasonable basis for knowing that the Bard G2 filter 

implanted in my body had caused any injury was after Dr. Smith attempted to remove the filter 

on April 7, 2011. Prior to April 7, 2011, I did not know that the filter had migrated downward in 

my inferior vena cava, that the filter was tilted, that the filter may have fractured, or that I had 

suffered any injury or damage to my inferior vena cava. 

Approximately two years after this failed filter retrieval attempt, I filed for Chapter 7 

bankruptcy. At the time the bankruptcy proceeding began in February of 2013 and continuing 

until the proceedings were closed by an order entered in June 2013, I was not aware and had not 

been told that I had any valid claim against any person or company arising from the implantation 

of the Bard G2 filter in my body. I did not know that I had a legal right to make claim against 

any person or company with regard to the Bard G2 filter until after my bankruptcy had been 

closed in June 2013. I did not know there was even a potential claim that deserved further 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 32 of 88
4

investigation until I spoke with Russell Button in July 2013. I most certainly did not intend to 

conceal any unliquidated claims which were unknown to me during the period the bankruptcy 

was pending, and I had no motive to do so. I was simply not aware that my right to pursue such 

a claim existed during that time period. 

I have requested that the bankruptcy proceeding be reopened so that the trustee can 

evaluate whether the existence of this claim has any effect on the result. 

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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 35 of 88
Page 1

 IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS NO. MD-15-02641-PHX-DGC

PRODUCTS LIABILITY

LITIGATION.

 VIDEOTAPE DEPOSITION OF DIANE BIERE, taken

before Mary Lou Harmon, RPR, CRR, CSR(IA), General

Notary Public within and for the State of Nebraska,

beginning at 9:54 a.m., on the 20th day of February,

2017, at The Lincoln Marriott Cornhusker Hotel, 333

South 13th Street, Lincoln, Nebraska.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 36 of 88
Page 55

1 what you're asking?

2 Q. Yes, ma'am.

3 A. She may have mentioned something, but it

4 wasn't -- it wasn't anything that was, like, a red

5 flag or anything. It was --

6 Q. Let me ask very generally.

7

?

9 And just to be clear, I'm not asking just

10 sort of how you're doing today, but about any

11 specifics --

12 A.

13 Q. -- 

14 A. She will -- when I ask, she will give me

15 updates. She's a very private person, so a lot of

16 times I don't know if I hear everything.

17 Q. How frequently do you ask?

18 A. Oh, when we talk on the phone, we'll talk

19 about it, or when she says, "I'm going to go to the

20 doctor," I will say, "Well, tell me how that was,

21 or, you know, tell me what they say," things like

22 that.

23 Q. Would you say you have conversations like

24 that on a weekly basis?

25 A. No, I wouldn't say that much.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 37 of 88
Page 56

1 Q. Would you say you have those kind of

2 conversations on a monthly basis?

3 A. Maybe once a month.

4 Q.

?

8 Strike that.

9

?

11 A. ?

12 Q. .

13 A. ?

14 Q.

15 A. I don't -- I don't think -- I don't think

16 .

17 Q.

20 A. .

21 Q.

22 A. No.

23 Q.

25 MR. ARBON: Objection to form.

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 38 of 88
EXHIBIT 6 

'*-&% 3&%"$5&%

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RELATED TO DOCKET 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 39 of 88
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: Bard IVC Filters Products No. 2:15-MD-02641-DGC

Liability Litigation,

EXPERT REPORT OF CHRISTOPHER S MORRIS, MD

 Carol Kruse

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EXHIBIT 7 

),/(' 5('$&7('

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RELATED TO DOCKET 

Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 54 of 88
Do Not Disclose - Subject to Further Confidentiality Review

Golkow Technologies, Inc. - 1.877.370.DEPS

Page 1

 UNITED STATES DISTRICT COURT

 FOR THE

 DISTRICT OF ARIZONA

* * * * * * * * * * * * * * * * * * * * * * * * * * *

In Re BARD IVC FILTERS PRODUCTS

LIABILITY LITIGATION

 No. MD-15-02641-PHX-DGC

* * * * * * * * * * * * * * * * * * * * * * * * * * *

and

* * * * * * * * * * * * * * * * * * * * * * * * * * *

CAROL KRUSE )MDL No. 2641

 )

 Plaintiff,)

 )

 vs. )

 )

C.R. BARD AND BARD )

PERIPHERAL VASCULAR, INC., )

 )

 Defendant.)

* * * * * * * * * * * * * * * * * * * * * * * * * * *

 DO NOT DISCLOSE - SUBJECT TO FURTHER

 CONFIDENTIALITY REVIEW

VIDEOTAPED DEPOSITION OF: SHANON SMITH, M.D.

DATE: April 4, 2017

TIME: 2:00 p.m.

PLACE: Mary Lanning Memorial Hospital, 15 North St.

Joseph Avenue, Hastings, Nebraska

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1 Q. (BY MR. ARBON) So as a doctor do you think it

2 would be appropriate for the manufacturer to use

3 patients as beta test grounds for the products?

4 MS. HELM: Object to the form.

5 It's argumentative.

6 A. I would expect it to be a safe product and that

7 they would know -- they would know the anatomy and it

8 would function like it's -- should. I mean, I assume

9 they went through clinical trials with test patients

10 as well, I would assume that's the process.

11 Q. (BY MR. ARBON) If there were no clinical trials

12 to establish the long-term safety and efficacy of

13 the -- their optional filters, would that be

14 information that you as a physician would like to

15 know when you're making a decision as to whether to

16 use the product or not?

17 A. I think I remember you mentioned that, that

18 they -- they used other data from a different filter.

19 I would -- I would rely on that, that it's safe if

20 it's on the market.

21 Q. But you -- but if you were told -- if you had

22 available to you information that demonst -- that No.

23 1, that long-term clinical trials had not been

24 performed to establish the long-term safety and

25 efficacy of the filter system, is that information

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1 you would like to have?

2 MS. HELM: Object to the form.

3 A. I would -- as much information as how dangerous

4 a product is, that would be good to have.

5 Q. (BY MR. ARBON) All right.

6 (Exhibit No. 2112, marked for identification.)

7 Q. Hand you what I've marked now as Exhibit 2112 to

8 your deposition. Which begins with the Bates No.

9 BPVE010101982, a health hazard evaluation from

10 December 17th, of 2004.

11 Again, I'll tell you this is a document that

12 Bard has produced to us in this litigation. And it

13 relates to the Recovery filter. And again, that

14 Recovery filter is the filter that was used as the

15 predicate for the G2.

16 If you look at Page 2, Doctor, the first

17 paragraph under 2A. There's a statement that,

18 "Reports of death, filter migration, movement, IVC

19 perforation and filter fracture associated with

20 Recovery filter we're seeing in the MAUDE database,

21 at reporting rates that were 4.6, 4.4, 4.1 and 5.3

22 higher respectively than the reporting rates for all

23 other filters."

24 Is that the type of information that you as a

25 physician would like to know and have available to

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1 you when you're making a risk benefit analysis as to

2 which filter you would like to place in one of your

3 patients?

4 MS. HELM: Object to the form.

5 A. The more information about the risks and the

6 higher risk, if this statement is true, that would be

7 helpful.

8 Q. (BY MR. ARBON) And if you had been told that the

9 G -- or a Recovery filter in this case, had -- was

10 associated with reported deaths at a rate of 4.6

11 higher than the other filters, would you think you

12 would want to use that filter or another filter?

13 MS. HELM: Object to the form.

14 A. You would have to decide which filter, yes, you

15 would want to use, Recovery or G2 if this is based on

16 Recovery data.

17 Q. (BY MR. ARBON) Okay. And if you were told that

18 the data held by Bard indicated that the Recovery

19 filter was more prone to perforate, fracture, migrate

20 than other filters, is that information you would

21 like to have had available to you when making your

22 determination as to what filters to utilize?

23 MS. HELM: Object to the form.

24 A. As much information on the safety of the product

25 and the patient would be helpful.

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1 Q. (BY MR. ARBON) And in doing a true risk benefit

2 analysis, your ability to perform a risk benefit

3 analysis is based upon the information available to

4 you; is that correct?

5 A. That's correct.

6 Q. So if manufacturers have information that would

7 directly effect or could have a direct effect on a

8 risk benefit analysis, did you as a physician using

9 Bard products have an expectation that Bard would

10 make that information available to you?

11 MS. HELM: Object to the form.

12 A. I would expect that Bard would produce a safe

13 filter and if there were problems, they would notify

14 the physician.

15 Q. (BY MR. ARBON) That seems reasonable to you as a

16 physician?

17 MS. HELM: Object to the form.

18 Move --

19 Q. (BY MR. ARBON) Is that a reasonable thing to a

20 physician to expect?

21 A. I would -- I would think so.

22 (Exhibit No. 2113, marked for identification.)

23 Q. Hand you what's been marked as 211 -- Exhibit

24 2113 to your deposition. It is a Bard document

25 beginning with Bates No. BPVE0101752806; do you see

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1 that document, sir?

2 A. Yes.

3 Q. If you would turn to Page 18.

4 (Witness complies.)

5 Q. Are you familiar with trending studies, where

6 you look for trends in products?

7 A. Okay.

8 Q. Okay.

9 A. I'm not an expert.

10 Q. All right. But you understand the concept of

11 comparing products together to see if there are any

12 trends that develop?

13 A. That sounds reasonable.

14 Q. Do you see where this is a G2 trend relative to

15 the RNF? I will tell you RNF stands for the Recovery

16 filter.

17 A. Okay.

18 Q. And you're familiar with the G2, you've been

19 placing -- you've been putting them in, right?

20 A. Correct.

21 Q. Did Bard at any time let you know that the G2

22 presented more caudal migration or caused more caudal

23 migration than the Recovery filter?

24 A. They never specifically told me those exact

25 words.

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1 Q. Did they ever discuss the degree of migration

2 with you, their representatives?

3 A. It's difficult to recall. I know that filters

4 have problems in general, but I don't recall any rep

5 saying that this is -- this has more problems than

6 another filter.

7 Q. All right. And as a physician that's being

8 asked to use the G2 filter and put it in patient's

9 bodies, would it be beneficial to you that if Bard

10 had the data that demonstrated that caudal migration

11 occurred 4.7 times more often with the G2 than with

12 their Recovery filter; is that the type of

13 information that would be beneficial to you in trying

14 to decide if this is the best product for your

15 patient?

16 MS. HELM: Object to the form.

17 A. More information's always better. If the --

18 Q. (BY MR. ARBON) Okay. And more information

19 regarding an increased risk of caudal migration would

20 have an impact on you, wouldn't it?

21 MS. HELM: Object to the form.

22 A. Possibly.

23 Q. (BY MR. ARBON) Okay. What is caudal migration?

24 A. Where the filter moves toward the, toward the --

25 away from the heart.

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1 Q. Down towards the feet?

2 A. Toward the -- correct.

3 Q. Okay. 

5 A. 

6 Q. Okay. Now, there's soufflot migration is on

7 that list and what would that be --

8 A. Toward the head.

9 Q. And no difference in rate of soufflot migration

10 between the Recovery and the G2 according to Bard's

11 data, correct?

12 MS. HELM: Object to the form.

13 A. According to this chart.

14 Q. (BY MR. ARBON) And then tilt, what is tilt?

15 A. Where the filter leans toward the IVC wall.

16 Q. And according to the Bard data compiled in this

17 chart, the G2 had more tilt than the Recovery; is

18 that right?

19 MS. HELM: Object to the form.

20 A. According to this chart, the percentage is

21 higher.

22 Q. (BY MR. ARBON) And perforation is what?

23 A. Perforation to me would mean that the limbs

24 penetrate through the wall of the IVC.

25 Q. And what did Bard say about the G2 in comparison

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1 to its Recovery filter with perforation?

2 A. That these percentages are higher. As a doctor

3 I would want to know the number they're based on, but

4 still, this number is higher.

5 Q. Well, and what I would like to talk to you about

6 there, is: Doctor, is there a number that's

7 acceptable to you?

8 A. Unfortunately there's not a absolute number,

9 but --

10 Q. Yeah.

11 A. -- definitely would have to figure out the risk.

12 Q. So in figuring out the risk, wouldn't you look

13 to something like this, the trend?

14 A. That data would be helpful.

15 Q. When you're trying to pick a product for a

16 patient, an IVC filter for a patient that you're

17 going to use, are you looking for the safest product

18 available for your patient?

19 A. I think that would be true.

20 Q. So if a known data shows that there's a product

21 such as the G2 that is proven to be, you know, over

22 four times more likely to cause caudal migration or

23 two times more likely to tilt and four times more

24 likely to perforate than the predicate device it's

25 based upon, the RNF, would that be valuable

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1 information to you?

2 A. More information about the product is definitely

3 better.

4 Q. Doctor, have you ever seen any of the

5 advertising related to the G2 filters or their

6 informational brochures?

7 A. Possibly.

8 (Exhibit No. 2114, marked for identification.)

9 Q. I'm going to kind of take a side trip. 

13 A. .

14 Q. 

16 A. 

17 Q. 

 

 

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1 filter had more of a tendency to cause complications

2 than its -- than its Recovery filter?

3 MS. HELM: Object to the form.

4 A. Say that one more time.

5 Q. (BY MR. ARBON) Yeah. Does it surprise you to

6 see that Bard had data that demonstrated the G2

7 filter had more --

8 higher complication rate concerning migration, tilt

9 and perforation, than its predecessor the Recovery

10 filter?

11 MS. HELM: Object to the form.

12 A. I wouldn't have known what they had at the time.

13 Q. (BY MR. ARBON) And I'm not asking you about at

14 the time, because I know you didn't have that

15 information. You had no such information --

16 A. No.

17 Q. -- when you chose the G2, did you?

18 A. Right, correct.

19 Q. If you had that information when you were making

20 decisions as to what to implant, do you know if you

21 would have chosen that G2?

22 MS. HELM: Object to the form.

23 A. I would have definitely looked at the risk and

24 benefits if there was more information.

25 Q. (BY MR. ARBON) And if Bard's data is correct

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1 that the G2 prevented a higher risk of migration, a

2 higher risk of perforation and a higher risk of tilt,

3 do you think you would have chosen that if that

4 information would have been available to you?

5 MS. HELM: Objection to the form.

6 A. Now, you made a big claim, so I assume that

7 claim is correct, you know, of these higher

8 percentages. And that would be true in every case.

9 So, assuming that's a correct statement, the -- yeah,

10 I would want to know if one product had different

11 numbers relative to another product.

12 Q. (BY MR. ARBON) Well, specific to the G2 numbers

13 that I've shown you. If, assume for me those that,

14 that data that Bard gave us is accurate --

15 A. Okay.

16 Q. -- and you had that information back in --

17 A. Right.

18 Q. -- 

, would that type of data

20 affected that decision?

21 MS. HELM: Object to the form.

22 A. I would have definitely used that information

23 and whatever else to make a decision.

24 Q. (BY MR. ARBON) Okay. And had you had the

25 benefit of that information, you may have chosen a

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1 device other than a G2; is that true?

2 MS. HELM: Object to the form.

3 A. It's possible.

4 Q. (BY MR. ARBON) Let's go to the implant, Doctor.

5 A. Because then I wouldn't be meeting with you.

6 MS. HELM: I got to move to strike

7 that off the record.

8 THE WITNESS: That's fine. I'm

9 not sure how to answer that.

10 (Discussion off the record.)

11 (Exhibit No. 2115, marked for identification.)

12 Q. (BY MR. ARBON) I'm going to hand you what I've

13 marked as 2115, Doctor, and ask you if you recognize

14 that document?

15 A. Yes, 2115.

16 Q. And is there a Bates number at the bottom of

17 that page?

18 A. There's a number.

19 Q. Okay. Can you read that for me.

20 MS. HELM: You can just read --

21 A. 00288.

22 MS. HELM: That's fine.

23 Q. (BY MR. ARBON) Okay.

24 A. Okay.

25 Q. And do you recognize that document, sir?

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1 responsiveness.

2 Q. (BY MS. HELM) Have you seen commercials on

3 television placed by plaintiff's attorneys

4 advertising about IVC filters?

5 MR. ARBON: Objection to form.

6 A. I have.

7 Q. (BY MS. HELM) Do you have a filter? If you have

8 a filter, you might be entitled to compensation.

9 Call this number. Have you seen those kind of adds?

10 A. I think I have.

11 MR. ARBON: Objection to form.

12 Q. (BY MS. HELM) Okay. Are you aware that dozens

13 of Bard witnesses have had their depositions taken

14 about Bard's documents and actions they took relating

15 to their IVC filters?

16 A. I don't know what's happened outside this room.

17 Q. Okay. Plaintiff's counsel didn't show you any

18 of that testimony today, did he?

19 A. I didn't -- I haven't seen anything other than

20 what's presented so far.

21 Q. Okay. And when it comes to making decisions for

22 your patients and weighing the risks and benefits of

23 medical devices that you use with your patients, you

24 rely on a number of sources, don't you?

25 A. Yes.

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1 Q. You rely on your training and experience?

2 MR. ARBON: Objection, form.

3 A. Yes.

4 Q. (BY MS. HELM) You rely on your colleague's

5 experiences with certain products?

6 MR. ARBON: Objection, form.

7 A. Yes.

8 Q. (BY MS. HELM) You rely on available medical

9 literature; is that right?

10 MR. ARBON: Objection, form.

11 A. I rely my decision based on multiple sources and

12 journal articles is one.

13 Q. (BY MS. HELM) Okay. And you're not interested

14 in getting unreliable information or data?

15 A. Not usually.

16 Q. Okay. Because getting unreliable information or

17 data could adversely impact your risk benefit

18 analysis; is that right?

19 A. Good data is the best data.

20 Q. And in making your treatment decisions for your

21 patients, you don't rely on internal information from

22 internal documents of manufacturers of medical

23 devices, do you?

24 MR. ARBON: Objection, form.

25 A. That's not a common process.

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1 do whatever is appropriate --

2 Q. (BY MS. HELM) Okay.

3 A. -- to figure out effectiveness and safetyness

4 (sic).

5 Q. Are you familiar with what is called the 510K

6 process for clearance of a product?

7 A. Not, not well.

8 Q. Okay. But are you familiar that there's a

9 process where a product such as a Bard filter is

10 cleared for use without going through randomized

11 clinical studies.

12 A. I wouldn't know that.

13 Q. Okay. Do you rely on information from the FDA

14 in making a risk benefit analysis to -- regarding

15 products you're going to use with your patients?

16 A. Well --

17 MR. ARBON: Objection, form.

18 A. -- if medication has a black box FDA warning,

19 that would affect my treatment and I'm assuming for

20 other products as well.

21 Q. (BY MS. HELM) Okay. Is it fair to say that

22 those first four exhibits that came from Bard were

23 represented to you as Bard documents, you can't

24 comment as to whether -- 

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1

2 MR. ARBON: Objection, form.

3 A. Those are the first time I seen the documents.

4 I wouldn't want to say how they would influence me

5 without knowing what they say in detail.

6 Q. (BY MS. HELM) And the context in which they were

7 created?

8 A. I'm sure my opinion would need to be based on a

9 lot of things.

10 Q. Okay. Fair.

11 A. Sorry for being vague on that.

12 Q. No, that's quite all right. It's quite all

13 right.

14 You would expect companies such as Bard to

15 continue to assess their products by looking at

16 complications and how the product's performing once

17 it's in the market; would you not?

18 MR. ARBON: Objection, form.

19 A. I would assume there's some post market process.

20 Q. (BY MS. HELM) Okay. And would you also assume

21 that Bard would undertake some sort of a formal

22 process to evaluate those complications or events

23 that occur once it's in the market?

24 MR. ARBON: Objection, form.

25 A. I wouldn't know what Bard would do in the normal

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1 right?

2 MS. HELM: Object to the form.

3 A. I'm the doctor, correct.

4 Q. (BY MR. HELM) You as the doctor who is utilizing

5 these instructions and utilized instructions like

6 this for 

 are relying on this information to be

8 accurate, correct?

9 MS. HELM: Object to the form.

10 A. The package insert should be correct.

11 Q. (BY MR. HELM) When there's a reference in the

12 package insert that says, filter fracture is a known

13 complication but most cases, however, have been

14 reported without -- without any adverse clinical

15 sequella; does that to you as a doctor give you some

16 degree of severity that is being associated to

17 fracture?

18 MS. HELM: Object to the form.

19 A. Fix -- I'm not an expert, but filter fracture

20 sounds bad to me.

21 Q. (BY MR. ARBON) Okay. But if that's modified by

22 saying the patient doesn't suffer any adverse

23 sequella, does that have any affect on your view of

24 that warning?

25 MS. HELM: Object to the form.

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1 Q. Okay. Now, this is a 2005 memorandum --

2 December 23rd, 2005 memorandum?

3 A. December 27, 2005.

4 MS. HELM: The top.

5 A. At the top. If I read that -- well, no, it

6 looks like it's some kind of forwarded -- there's

7 multiple dates on this piece of paper.

8 Q. (BY MR. ARBON) Okay. December of 2005?

9 A. I don't -- 2005, that's -- it looks like it's

10 made within the year 2005.

11 Q. And so what the purpose of showing this to you,

12 Doctor, my question is: Has any Bard sales rep or

13 anyone with Bard ever associated with told you that

14 as early as December of 2005, they were concerned

15 about the rate of caudal migration and tilt related

16 to the G2 filter?

17 MS. HELM: Object to the form.

18 A. Don't recall any Bard representative telling me

19 that in 2005 there were -- there was a company

20 concern for tilting.

21 Q. (BY MR. ARBON) Do you recall how long your

22 retrieval procedure lasted?

23 A. Long enough to decide not to retrieve it and

24 come up with an alternate plan.

25 MS. HELM: Let me just -- I may

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Case 2:15-md-02641-DGC Document 8385-3 Filed 10/24/17 Page 74 of 88
1

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

IN RE: BARD IVC FILTERS

PRODUCTS LIABILITY NO. MD-15-20641-PHX-DC

LITIGATION.

Deposition of DARREN ROBERT HURST, M.D.,

Witness herein, called by the Defendants for

cross-examination pursuant to the Rules of Civil

Procedure, taken before me, Lisa M. Conley

Yungblut, a Notary Public within and for the State

of Ohio, at the offices of Mike Mobley Reporting,

312 Walnut Street, Suite 1600, Cincinnati, on

Friday, the 21st of July, 2017, at 8:01 a.m.

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150

1 A. Ms. Kruse, thank you.

2 THE WITNESS: Bless you.

3 MR. O'CONNOR: Bless you.

4 BY MR. NORTH:

5 Q. 

7 A. 

8 Q. 

10 A. .

11 Q. 

?

13 A. .

14 Q. 

16 A. .

17 Q. 

18 A. .

19 Q. 

21 MR. O'CONNOR: Are you looking at her

22 report?

23 THE WITNESS: 

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151

1

11 BY MR. NORTH:

12 Q. 

13 A. Oh,

15 Q. 

17 A. .

18 Q. 

20 A. .

21 Q. 

24 A. 

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157

1 MR. O'CONNOR: Form.

2 BY MR. NORTH:

3 Q. 

5 A. Correct.

6 Q. 

8 A. No. 

11 Q. 

14 A. I do.

15 Q. Do you think one of those or both of

16 those?

17 A. I think both of them.

18 Q. 

19 A. 

24 Q. Scientific answer.

25 A. Yeah. It's this, it's right here.

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159

1 Q. 

 

 

7 MR. O'CONNOR: Form.

8 THE WITNESS: 

12 BY MR. NORTH:

13 Q. Do you, yourself, specialize in

14 complex retrievals?

15 A. I do complex retrievals, yes.

16 Q. Who do you consider the -- besides

17 yourself, the leading practitioners in this area

18 of complex retrievals?

19 A. I would say that you've actually

20 already said who they are, Kuo, Lynch, Trerotola,

21 they're kind of the leaders.

22 Q. 

25 MR. O'CONNOR: Objection, form.

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Page 1

 IN THE UNITED STATES DISTRICT COURT

 FOR THE DISTRICT OF ARIZONA

 NO. MD-15-92641-PHX-DGC

In re Bard IVC Filters Products

Liability Litigation

 Videotaped Deposition of DEREK D. MUEHRCKE, M.D.,

taken on behalf of defendant herein, pursuant to Notice

of Taking Deposition, at 32 Avienda Menendez St., St.

Augustine, St. Johns County, Florida, on July 24, 2017,

at 9:00 a.m., before Terry T. Hurley, Registered

Professional Reporter, and Notary Public in and for the

State of Florida at Large.

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1 wrong.

2 .

3 Q Again, you've never spoken 

4

5 A No, sir.

6 Q And you've never seen his deposition, or read

7 his deposition?

8 A Correct.

9 Q And ;

10 correct?

11 A That's correct.

12 Q And ?

13 A Correct.

14 Q

17 A

19 MR. O'CONNOR: Form.

20 A

21 Q

22

23 A I disagree. I mean, I know Dr. -- 

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1

.

10 Q

 

 

15 A Yes, sir.

16 Q Do you have experience yourself in complex

17 filter retrieval?

18 A The only thing -- no. The only thing I do is

19 I'll try and put a balloon in to move the cap away from

20 the wall, but I -- I don't have experience, no.

21 Q Do you know whether Dr. Hurst has experience in

22 complex removal?

23 A I don't know.

24 Q

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1 Q You think the odds are more than 50 percent

2 that

3 A I think so.

4 Q And is that the reason that you believe that

5

6

7 A Yes, 

8 .

9 Q

.

11 A Yes, sir.

12 Q

14 A I do not.

15 Q

16 A I do not.

17 Q

19 A Just like BARD's expert witness Dr. Morris, I

20

 I agree with Dr. Morris.

22 Q

24 A Well, I -- I don't know. I mean, I -- 

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1

 

 It's possible.

9 Q

12 MR. O'CONNOR: Form and foundation.

13 A

18 Q

20 A I

 

 

 

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1

2 Q

 

 

 

 

 

21 MR. NORTH: Who just joined?

22 (David DeGreeff rejoined the deposition.)

23 Q

 

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1 like all the other Bellwethers, did you follow a

2 methodology that you would follow in your field and

3 exercise the same level of intellectual rigor that you

4 would in your clinical practice as well as in developing

5 peer-review studies?

6 A Yes, sir.

7 MR. NORTH: Objection. Leading.

8 Q And if you would, tell me what opinions you

9 arrived at regarding the injuries, conditions that Mrs.

10 -- Miss Kruse sustained as a result of the BARD filter.

11 A

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1

 

5 Q Are patients who undergo a percutaneous -- a

6 complex percutaneous removal exposed to risks because of

7 that procedure?

8 A Oh, yes.

9 Q And what kind of complications and risks are

10 they exposed to?

11 A Well, specifically the -- let's see which one

12 it was.

13

.

17 But in general, there's a risk of injury to the

18 inferior vena cava the more manipulations you have to

19 do. To do a complex retrieval oftentimes they'll have

20 to put a wire down by the tip of the filter and put a

21 balloon in to try to pry it away from the wall in the

22 vena cava. You can tear it then. Or else they'll grasp

23 it with biopsy forceps to try to control the head and

24 bring it into a larger side sheath. And those are all

25 risks for injury when you take these filters out.

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