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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. 4 TO 

EXCLUDE TESTIMONY AND

EVIDENCE REGARDING 

PHOTOGRAPH OF BARD 

EMPLOYEE MICHAEL RANDALL

(Assigned to the Honorable David G. 

Campbell)

Case 2:15-md-02641-DGC Document 9865 Filed 01/26/18 Page 1 of 5
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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 testimony and evidence related to a photograph of 

Bard employee Michael Randall that is irrelevant, unfairly prejudicial, and not properly 

admissible character evidence by respectfully showing the Court as follows1:

FACTUAL BACKGROUND

This is a product liability action in which the plaintiff asserts that she suffered 

personal injuries arising out of the implantation of Bard’s G2® Filter. The G2 Filter was 

designed and sold by Bard Peripheral Vascular, Inc., a division of Bard, headquartered in 

Arizona. Michael Randall (“Mr. Randall”) is a Bard employee who was deposed as a 

Federal Rule of Civil Procedure 30(b)(6) designated witness for Bard on January 18, 2017 

and deposed individually on February 2, 2017. During both depositions, Mr. Randall was 

questioned regarding a picture of him which was included in a draft copy of an internal 

Bard presentation.2(See January 18, 2017 Mike Randall Dep. Tr. at 287:6-288:20; and

February 2, 2017 Mike Randall Dep. Tr. at 171:2-174:5.) The picture depicts Mr. Randall 

extending his middle finger3to the camera. While perhaps originally intended as a bit of 

light-hearted fun, the photograph of Mr. Randall giving the finger carries a substantial and 

irreversible danger of prejudice if shown to the jury in this case. As a result, the 

photograph and any related testimony should be excluded as irrelevant, unfairly 

prejudicial, and not properly admissible character evidence.

ARGUMENT AND CITATION OF AUTHORITY

A. The Picture Of Mr. Randall Is Irrelevant And Should Be Excluded Under 

Rule 402

Relevant evidence is defined as having “any tendency to make a fact more or less 

 

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

2 Other Bard witnesses were also questioned regarding the picture of Mr. Randall 

including Roslyn Radee-Smith (April 5, 2017 R. Radee-Smith Dep. Tr. at 137:20-138:9), 

Erin Torres Coda (April 3, 2017 E. Coda Dep. Tr. at 162:13-163:8), and Scott Karch 

(March 20, 2017 S. Karch Dep. Tr. at 242:16-243:3).

3 As noted by the Second and Seventh Circuits, the depicted gesture is commonly referred 

to as “the finger” and it is widely regarded as an offensive insult. See Bad Frog Brewery, 

Inc. v. New York State Liquor Auth., 134 F.3d 87, 91, fn. 1 (2d Cir. 1998); see also Bagley 

v. Ameritech Corp., 220 F.3d 518, 520, fn. 1 (7th Cir. 2000) (indicating that the “proper 

name” for a gesture consisting of an extended middle finger is, simply, “the finger”). To 

avoid confusion, the gesture will be referred to as “the finger.”

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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

probable than it would be without the evidence ... and the fact is of consequence in 

determining the action.” Fed. R. Evid. 401. The determination of the present action turns 

on questions regarding alleged product defects and plaintiff’s alleged injuries. The picture

of Mr. Randall displaying the finger, however, has no effect on any facts bearing on these

determinative questions. As a result, testimony and evidence regarding the picture of Mr. 

Randall displaying the finger is irrelevant and should be excluded pursuant to Federal

Rule of Evidence 402, which provides that irrelevant evidence is not admissible.

B. The Probative Value Of The Picture Of Mr. Randall Is Substantially 

Outweighed By A Danger Of Unfair Prejudice And Should Be Excluded 

Under Rule 403

Giving the finger has a longstanding and widely recognized meaning 4as a 

“patently offensive” insult. See Bad Frog Brewery, 134 F.3d at 91 and fn. 1 (explaining 

the meaning of the gesture and dating an early recorded use to ancient Greece). As an 

insult – and a particularly vulgar one at that – the finger is manifestly inflammatory. 

Thus, it stands to reason that showing or describing to the jury the photograph of Mr. 

Randall – a Bard employee and witness – carries a substantial risk of unfairly prejudicing 

the jury against Bard. Considering the picture’s lack of relevance to the instant action, the 

probative value of the picture, if any, is far outweighed by the danger of unfair prejudice. 

Consequently, testimony and evidence regarding the picture of Mr. Randall giving the 

finger should be excluded pursuant to Federal Rule of Evidence 403. See Mems v. City of 

St. Paul Dep’t of Fire & Safety Servs., No. 01-1378 PAM/JGL, 2001 WL 1640034, at *4 

(D. Minn. Nov. 12, 2001) (excluding photograph of supervisor and coworker giving the 

finger in employment discrimination suit under Rule 403).

C. The Picture Of Mr. Randall Has No Bearing On His Propensity For 

Truthfulness And, Thus, Is Not Proper Character Evidence And Should Be 

Excluded Under Rule 404

Under Federal Rule of Evidence 404, introduction of character evidence to prove 

particular action of a witness in conformity therewith is prohibited unless the evidence 

 

4 For a thorough discussion of the finger’s history, usage, and treatment in American 

jurisprudence see Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 

U.C. Davis L. Rev. 1403 (2008).

Case 2:15-md-02641-DGC Document 9865 Filed 01/26/18 Page 3 of 5
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Nelson Mullins Riley & Scarborough

L.L.P.

201 17t h Street NW, Suite 1700

Atlanta, GA 30363

(404) 322-6000

bears on the witness’s credibility under Federal Rules of Evidence 607, 608, or 609. See 

Fed. R. Evid. 404(a)(3). Here, the picture of Mr. Randall giving the finger – while, 

perhaps, vulgar and offensive – does not impugn or have any bearing on Mr. Randall’s 

propensity for truthfulness. Consequently, testimony and evidence regarding the picture of 

Mr. Randall should be excluded under Rule 404.

CONCLUSION

For the foregoing reasons, Bard respectfully moves for an entry of an in limine 

order to exclude any testimony and evidence regarding the picture of Mr. Randall giving 

the finger.

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 9865 Filed 01/26/18 Page 4 of 5
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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 9865 Filed 01/26/18 Page 5 of 5