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Ramon Rossi Lopez – rlopez@lopezmchugh.com

(California Bar Number 86361; admitted pro hac vice) 

Lopez McHugh LLP 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

949-812-5771 

Mark S. O’Connor (011029) – mark.oconnor@gknet.com

Gallagher & Kennedy, P.A. 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

602-530-8000 

Co-Lead/Liaison Counsel for Plaintiffs 

UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

In Re Bard IVC Filters Products 

Liability Litigation 

No. MD-15-02641-PHX-DGC

SHERR-UNA BOOKER, an 

individual, 

Plaintiff, 

v. 

C.R. BARD, INC., a New Jersey 

corporation and BARD 

PERIPHERAL VASCULAR, an 

Arizona corporation, 

Defendants. 

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANTS’ 

MOTION IN LIMINE NO. 4 TO 

EXCLUDE TESTIMONY AND 

EVIDENCE REGARDING 

PHOTOGRAPH OF BARD 

EMPLOYEE MICHAEL RANDALL 

(The Honorable David G. Campbell) 

(Oral Argument Requested) 

Plaintiff hereby responds in opposition to Defendants’ Motion and Memorandum 

in Support of Motion in Limine No. 4 to Exclude Testimony and Evidence Regarding 

Photograph of Bard Employee Michael Randall. For reasons set forth below, Plaintiff 

respectfully requests that the Court deny Defendants’ Motion in Limine No. 4 in full. 

In context, Mr. Randall’s middle finger picture reflects Bard’s corporate culture of 

disregard for the seriousness of the problems with its IVC filters. The picture was not 

plucked from Mr. Randall’s personal photo album or Facebook page. It is the second 

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slide in a Bard internal PowerPoint presentation that is a key exhibit. See Exhibit “A”. 

Bard’s decision not to attach the picture and PowerPoint to its motion is telling. 

The PowerPoint is titled “Objective of Meeting” and describes a meeting whose 

purpose would be to “analyze EVEREST and MAUDE data and provide justifications for 

proposed changes to G2 filter.” Id. at 1. The PowerPoint goes on to describe the 

complications that Bard’s G2 filter was experiencing based on MAUDE reporting and 

EVEREST (a clinical study that produced data related to retrievability of the G2 filter), 

the goals of the proposed new and improved platform, the necessary design changes to 

achieve those goals, and the risks of the changes requiring Bard to conduct a long-term 

clinical trial to evaluate safety and efficacy of long-term use. Problems with the G2 and 

their causes were discussed. The G2 “often does not have the ability to prevent 

movement” and “Filter Design” was the top “potential cause of the complications . . . .” 

Id. at 15. Specifically, the G2 lacked sufficient caudal anchoring and “IVC wall 

apposition,” among other conclusions, which meant the filter could move caudally (away 

from the heart towards the feet). Id. And “caudal migration leads to tilts, perforations and 

fractures.” Id. at 16. Proposals to improve the G2 Platinum1

 included electropolishing to 

reduce fractures and unspecified “design changes” to reduce “tilt/penetration/migration.” 

Id. at 17. 

Bard’s response to the “complications” associated with the G2 was to attempt a 

redesign of the G2 “without [a] clinical trial.” Id. at 3. This would take a lot of time, and 

Bard was concerned about “timeline challenges based on changes.” Id. Bard’s goal was 

to make “design changes” to the G2 that might address its problems while avoiding too 

much FDA scrutiny. 

Although expressed in neutral corporate-speak, Bard’s admissions in the 

PowerPoint are shocking. IVC filters are sharp metallic objects marketed to doctors and 

patients as safe to be implanted permanently in the largest vein in the body, inches from 

 

1

 Just as the “G1A” and “Recovery G2” are known as the G2 filter, the G2 Platinum 

became known as the Eclipse filter. 

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the heart and surrounded by other vital organs. The benign term “complications” 

minimizes that G2 malfunctions/failures were damaging and scarring the IVC, moving 

throughout the recipient’s body cavity, and fracturing sharp pieces of metal to scatter 

throughout the most sensitive area of the body. The consequences of Bard’s design 

defects weren’t just numbers in a spreadsheet, but pain, permanent internal scarring and 

organ damage, additional medical procedures including open heart surgery, and death. Yet 

the internal conduct surrounding the treatment of such failures and resulting harm, the 

same sorts of failures that Ms. Booker endured, is not only relevant it reflects the exact 

purpose of conducting discovery; to discover how the manufacturer was conducting itself 

when no one was looking. This is particularly relevant to Plaintiff’s punitive damages 

claim. 

In the context of a project attempting to quietly fix a flawed Bard medical device 

injuring and killing patients while avoiding excessive FDA scrutiny and cost, Bard’s 

employees chose to introduce Mr. Randall in the PowerPoint as the project leader with a 

picture of him ‘giving the finger’ to the camera. Bard’s description in its motion of what 

this gesture means is accurate, but what we don’t know is to whom this gesture was 

directed. Was the message to the team intended to be that Mr. Randall and Bard were 

giving the finger to IVC filter competitors? The FDA? Patients injured by the G2? Bard 

and Mr. Randall characterize the picture as a “joke,” but that Bard would make a joke in a 

PowerPoint meant to be displayed to many as a representation of addressing such a 

serious issue is demonstrative of a corporate culture within Bard that trivialized design 

issues, FDA scrutiny, and patient safety. 

This demonstration of Bard’s cavalier attitude towards the flaws in its product and 

the harm it had caused is relevant to a host of issues in this case: the adequacy of Bard’s 

design, testing, and failure analysis processes; Bard’s compliance with FDA regulations; 

its failure to warn doctors, patients, and the public of the known risks of its filters both 

before and after putting them on the market; and punitive damages. As such, the middle 

finger picture is relevant and admissible under Fed. R. Evid. 401 and 402. 

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It is also admissible under Rule 403. Although the middle finger picture is indeed 

inflammatory as Bard concedes and thus prejudicial to Bard, there is nothing unfairly 

prejudicial about it. It was Bard that put such a vulgar photo into the middle of a critical 

internal document, one that could have been edited before it was shown. There is also no 

unfair prejudice when Bard will have the opportunity at trial to offer Mr. Randall’s 

explanation that the middle finger picture was a harmless joke. See United States v. 

Smith, 502 F.3d 680, 687 (7th Cir. 2007) (holding that district court’s admission of picture 

of defendant making obscene gesture was “well within its discretion” where defendant 

“had an opportunity to put the photograph into context for the jury, ameliorating any 

prejudicial effect”).2

 Even if there was any unfair prejudice to Bard from admitting the 

PowerPoint in full including the photo, such unfair prejudice does not “substantially 

outweigh” the picture’s probative value under Rule 403.3

Bard’s corporate culture of ignoring patient safety to focus on maximizing 

revenues is a direct cause of Bard’s failure to adequately design and test its products and 

its failure to properly warn patients and doctors about the risks of its products. The middle 

finger picture within a crucial Bard internal document addressing the defects in its G2 

filter is important evidence of that twisted corporate culture. As such its probative value 

far outweighs any risk of unfair prejudice, Exhibit A including the picture in slide 2 is 

admissible under Fed. R. Evid. 401-403, and Plaintiff respectfully requests that 

Defendants’ Motion in Limine No. 4 be denied in full. 

 

2

 Bard cites to Mems v. City of St. Paul Dep’t of Fire & Safety Svcs., 2001 WL 1640034 

(D. Minn. Nov. 12, 2001), but that case involved a Plaintiff argument that a picture of two 

of the defendants’ employees giving the finger to the camera communicated a racial 

epithet. Id. at *4. The district court properly excluded the picture because the plaintiff’s 

subjective perception of the picture was substantially outweighed by the “inflammatory 

racial invective” he felt the picture represented, not the picture itself. Id.

3

 Bard also argues Rule 404, but Mr. Randall is not on trial and Plaintiff does not intend to 

use the picture to attack his character. It is the placement of the picture of the “project 

leader” giving the finger in a PowerPoint on such a serious topic that is relevant and 

important, not that Mr. Randall posed for the picture. 

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RESPECTFULLY SUBMITTED this 1st day of February, 2018. 

GALLAGHER & KENNEDY, P.A. 

By: /s/ Mark S. O’Connor 

Mark S. O’Connor 

2575 East Camelback Road 

Phoenix, Arizona 85016-9225 

LOPEZ McHUGH LLP 

Ramon Rossi Lopez (CA Bar No. 86361) 

(admitted pro hac vice) 

100 Bayview Circle, Suite 5600 

Newport Beach, California 92660 

Co-Lead/Liaison Counsel for Plaintiffs 

CERTIFICATE OF SERVICE 

I hereby certify that on this 1st day of February, 2018, I electronically transmitted 

the attached document to the Clerk’s Office using the CM/ECF System for filing and 

transmittal of a Notice of Electronic Filing. 

/s/ Gay Mennuti 

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