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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

James R. Condo (#005867)

Amanda C. Sheridan (#027360)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren, Suite 1900

Phoenix, AZ 85004-2204

Telephone: (602) 382-6000

jcondo@swlaw.com

asheridan@swlaw.com

Richard B. North, Jr. (admitted pro hac vice)

Georgia Bar No. 545599

Matthew B. Lerner (admitted pro hac vice)

Georgia Bar No. 446986

NELSON MULLINS RILEY & SCARBOROUGH LLP

Atlantic Station

201 17th Street, NW, Suite 1700

Atlanta, GA 30363

Telephone: (404) 322-6000

richard.north@nelsonmullins.com 

matthew.lerner@nelsonmullins.com

Attorneys for Defendants

C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

IN RE: Bard IVC Filters Products Liability 

Litigation,

No. 2:15-MD-02641-DGC

DEFENDANTS’ MOTION AND 

MEMORANDUM IN SUPPORT OF 

MOTION IN LIMINE NO. 2 TO 

EXCLUDE IRRELEVANT AND 

PREJUDICIAL EVIDENCE 

REGARDING THE 

DEVELOPMENT OF THE 

RECOVERY® FILTER

(Assigned to the Honorable David G. 

Campbell)

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 1 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

Bard moves in limine to exclude certain irrelevant and unfairly prejudicial evidence 

regarding the development of the Recovery® Filter, a device Plaintiff did not receive, by 

respectfully showing the Court as follows1:

ARGUMENT AND CITATION OF AUTHORITY

A. Evidence Regarding the Development of the Recovery Filter is Irrelevant

Evidence is relevant when it has “any tendency to make a fact more or less 

probable than it would be without the evidence.” Fed. R. Evid. 401(a), 402; Lewy v. 

Remington Arms Co., 836 F.2d 1104, 1109 (8th Cir. 1988) (holding that trial court abused 

its discretion by admitting extensive evidence about prior model gun); Miller ex rel. 

Miller v. Ford Motor Co., No. 2:01CV545FTM-29DNF, 2004 WL 4054843, at *14 (M.D. 

Fla. July 22, 2004) (excluding “extended evidence of [first generation product’s] design, 

testing, or development history; or evidence of alleged defects in first generation 

[product], and the alleged rush to market the first generation [product]”); accord Bradley 

v. Cooper Tire & Rubber Co., No. 4:03CV00094DPJJCS, 2007 WL 4624613, at *4 (S.D. 

Miss. Aug. 3, 2007).

2 Furthermore, evidence of prior actions is inadmissible if relevant 

solely to prove bad character or propensity. See Fed. R. Evid. § 404(b); United States v. 

Bailleaux, 685 F.2d 1105, 1110 (9th Cir. 1982) (“[P]rior [acts] must not be too remote in 

time.”). Here, evidence regarding the development of the Recovery Filter occurring 

almost a decade or more before Plaintiff received her G2® Filter is irrelevant and far too 

remote in time to be admissible. 

For example, Plaintiff will likely seek to admit evidence regarding the informal, 

unsigned and unfinalized Recovery Filter migration test, which included only Recovery

Filters with a leg span of 30-31mm. This test of a specific subset of the Recovery Filter, 

 

1 Counsel for Defendants conferred with counsel for Plaintiffs and this motion is opposed.

2 Unlike in Hockensmith v. Ford Motor Co., No. CIV.A. 1:01-CV-3645G, 2003 WL 

25639639, at *6 (N.D. Ga. Apr. 17, 2003), Ms. Booker has not carried her burden of 

showing that the alleged defects at issue with the design of her G2 Filter are substantially 

similar to the same aspects of the Recovery Filter design. Nor could she, as Bard 

implemented important design changes to the G2 Filter that specifically addressed and 

improved the clinical performance of Plaintiff’s G2 Filter over the prior product. See, e.g.,

Bard’s Motion in Limine to Exclude Evidence of Recovery Filter Complications.

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 2 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

performed in April 2000, seven years before Plaintiff received her G2 Filter, has no 

bearing on whether her G2 Filter is defectively or negligently designed, or whether Bard 

provided a legally adequate warning regarding her G2 Filter. Indeed, the G2 Filter is 

designed to have a leg span of 38-42mm (approximately 25% wider than the Recovery

Filter (30-34mm)), making the results of the Recovery Filter’s migration studies irrelevant 

to determine whether the G2 Filter is defectively designed. Similarly, Plaintiff has already 

injected in this case evidence of Bard’s informal comparative migration resistance testing

of the Recovery Filter, not the G2 Filter, performed in March 2004, more than three years 

before Plaintiff received her G2 Filter. See Doc. 8163 at 3. For the same reasons, this 

evidence is irrelevant to show that the G2 Filter was defective or its warnings inadequate.

Additionally, Plaintiff has also introduced in this case the deposition testimony of 

Dr. Asch, who claimed he was somehow misled by Bard regarding the nature of and use 

of data from his clinical trial of the Recovery Filter. See Doc. 8163 at 19. But Dr. Asch’s 

personal feelings or opinions regarding information shared with him about the Recovery

Filter clinical trial, which are rebutted by Bard witnesses and fully unsubstantiated by any 

documentation whatsoever, have no impact on the design, manufacture, or warnings of an 

entirely different device: the G2 Filter, which Plaintiff received. 

Finally, Plaintiff has made clear she intends to seek to admit the testimony from 

Ms. Kay Fuller, who claims she did not sign the cover letter that accompanied Bard’s 

510(k) application for the Recovery Filter. See Doc. 9520 at 6. Plaintiff intends to argue 

that Ms. Fuller’s signature was “forged,” notwithstanding Ms. Carol Vierling’s testimony 

that she signed the cover letter on her behalf and on behalf of Ms. Fuller, as reflected in 

the version of the letter sent to the FDA. See Doc. 7950 at ¶¶ 186-90. Evidence regarding 

who signed the cover letter for the Recovery Filter 510(k) submission in 2002 is simply 

not relevant to the issues to be tried in this matter regarding the G2 Filter.3 Accordingly, 

 

3 Bard notes that the letter that Ms. Fuller claims she did not sign was actually the “library 

copy” of the letter, which always remained at Bard and was never sent to FDA. The 

version of the letter actually sent to FDA, which Bard obtained via a FOIA request, 

indicates on its face that Ms. Vierling was signing on behalf of Ms. Fuller. Also, the letter 

is merely a cover letter, containing no attestation or verification of the contents of Bard’s 

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 3 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

this evidence regarding the development of the Recovery Filter should be excluded as 

irrelevant under Fed. R. Evid. §§ 401, 402, and 404.

B. Evidence of the Recovery Filter Development Is Inadmissible Under Rule 403

Evidence regarding alleged “bad acts” by Bard (or by NMT prior to Bard’s 

acquisition of NMT’s line of filter products) concerning the development of the Recovery

Filter has absolutely no relevance to the issues in this case, as discussed above. Even if 

such evidence had some minimal probative value, that value would be substantially 

outweighed by the danger of unfair prejudice and misleading or confusing the jury. See 

Fed. R. Evid. 403; Baker v. Cty. of San Diego, No. 09-CV-1194 BEN WMC, 2012 WL 

1903899, at *3 (S.D. Cal. May 24, 2012) (“Bad act” evidence is inadmissible under Rule 

403 where it “may be used to impose liability for an improper basis.”). Allegations of 

“forgery” or “withholding information from a clinical investigator” regarding the 

Recovery Filter, a device that Plaintiff did not receive, and that occurred many years 

before Plaintiff received her G2 Filter, have a substantial risk of misleading or confusing 

the jury, and causing unfair prejudice to Bard. Plaintiff’s sole purpose in seeking to admit 

such evidence is to paint Bard in a “bad light” and to suggest to the jury that Bard had a 

propensity to act in the same manner regarding the development of the G2 Filter. 

Further, introduction of this evidence will necessarily result in a trial-within-a-trial 

on the Recovery Filter. This would waste significant judicial resources, prevent the parties 

from trying the issues presented by this particular case -- whether the design of Plaintiff’s 

G2 Filter (not the Recovery Filter) is defective and whether Bard provided legally 

adequate warnings regarding her G2 Filter (not the Recovery Filter) -- and ultimately 

result in unavoidable confusion, as well as add substantially to the length of the trial.

Therefore, this evidence should be excluded under Rule 403.

CONCLUSION

For these reasons, Bard respectfully requests that this Court grant Bard’s Motion.

 

510(k) submission. Thus, Plaintiff’s claim that the cover letter sent to FDA was somehow 

“forged” is false, and even if true, has no probative value on the issues in this case.

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 4 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

RESPECTFULLY SUBMITTED this 26th day of January, 2018.

s/ Richard B. North, Jr.

Richard B. North, Jr.

Georgia Bar No. 545599

Matthew B. Lerner

Georgia Bar No. 446986

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Atlantic Station

201 17th Street, NW / Suite 1700

Atlanta, GA 30363

PH: (404) 322-6000

FX: (404) 322-6050

richard.north@nelsonmullins.com

matthew.lerner@nelsonmullins.com

James R. Condo (#005867)

Amanda Sheridan (#027360)

SNELL & WILMER L.L.P.

One Arizona Center

400 E. Van Buren

Phoenix, AZ 85004-2204

PH: (602) 382-6000

jcondo@swlaw.com

asheridan@swlaw.com

Attorneys for Defendants C. R. Bard, Inc. and 

Bard Peripheral Vascular, Inc.

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 5 of 6
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

CERTIFICATE OF SERVICE

I hereby certify that on this 26th day of January, 2018, the foregoing was 

electronically filed with the Clerk of Court using the CM/ECF system which will 

automatically send email notification of such filing to all attorneys of record.

s/Richard B. North, Jr.

Richard B. North, Jr.

Case 2:15-md-02641-DGC Document 9863 Filed 01/26/18 Page 6 of 6