Case 3:18-cv-00347-CAB-MDD Document 261-14 Filed 02/07/20 PageID.25123 Page 1 of
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`EXHIBIT 66
`
`TO DECLARATION OF WENDY L. DEVINE
`IN SUPPORT OF NUVASIVE, INC.’S
`OPPOSITION TO DEFENDANTS’ MOTION
`FOR SUMMARY JUDGMENT OR, IN THE
`ALTERNATIVE, SUMMARY
`ADJUDICATION
`
`

`

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`· · · · · · · · · ·UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
`
`· · · · · · · · ·SOUTHERN DISTRICT OF CALIFORNIA
`SOUTHERN DISTRICT OF CALIFORNIA
`
`· · · · · · · · · · · · SAN DIEGO DIVISION
`SAN DIEGO DIVISION
`
`·
`
`· · ·NUVASIVE, INC., a Delaware
`NUVASIVE, INC., a Delaware
`· · ·corporation,
`corporation,
`·
`· · · · · · · · ·Plaintiff,
`Plaintiff,
`·
`· · · · · · vs.· · · · · · · · · CASE NO. 18-cv-00347-CAB-MDD
`CASE NO. 18-cv-00347-CAB-MDD
`vs.
`·
`· · ·ALPHATEC HOLDINGS, INC., a
`ALPHATEC HOLDINGS, INC., a
`· · ·Delaware corporation, and
`Delaware corporation, and
`· · ·ALPHATEC SPINE, INC., a
`ALPHATEC SPINE, INC., a
`· · ·California corporation,
`California corporation,
`
`· · · · · · · · ·Defendants.
`Defendants.
`· · ·___________________________
`·
`
`·
`
`· · · · · · · · · · · ·HIGHLY CONFIDENTIAL
`HIGHLY CONFIDENTIAL
`
`· · · · · · VIDEOTAPED DEPOSITION OF PATRICK S. MILES
`VIDEOTAPED DEPOSITION OF PATRICK S. MILES
`
`·
`
`· · · · · · · · · · · · December 19, 2019
`December 19, 2019
`
`· · · · · · · · · · · · · · 9:06 a.m.
`9:06 a.m.
`
`·
`
`· · · · · · · · ·12235 El Camino Real, Suite 200
`12235 El Camino Real, Suite 200
`
`· · · · · · · · · · · San Diego, California
`San Diego, California
`
`·
`
`· · ·REPORTED BY:
`REPORTED BY:
`
`· · ·Colleen M. Peterman
`Colleen M. Peterman
`
`· · ·CSR No. 7882
`CSR No. 7882
`
`EXHIBIT 66
`PAGE 137
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`Page 38
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`·1· ·understand it, that would fall under the auspices of
`1 understand it, that would fall under the auspices of
`·2· ·"kluge" in my vernacular.
`2 "kluge" in my vernacular.
`·3· · · · ·Q.· Are there kluge retractors?
`Q. Are there kluge retractors?
`3
`·4· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague.
`MS. WICKRAMASEKERA: Objection. Vague.
`4
`·5· · · · · · ·THE WITNESS:· There's kluge everything.
`5
`THE WITNESS: There's kluge everything.
`·6· ·BY MR. TRIPODI:
`6 BY MR. TRIPODI:
`·7· · · · ·Q.· Did NuVasive have, at the time of your
`Q. Did NuVasive have, at the time of your
`7
`·8· ·departure, kluge retractors?
`8 departure, kluge retractors?
`·9· · · · ·A.· Yeah.
`9
`A. Yeah.
`10· · · · ·Q.· In what way?
`Q. In what way?
`10
`11· · · · ·A.· Oh.· You're talking about, you know, a volume
`A. Oh. You're talking about, you know, a volume
`11
`12· ·of different types of retractors.· If you want to get
`12 of different types of retractors. If you want to get
`13· ·very specific, I'm happy to talk spec- --
`13 very specific, I'm happy to talk spec- --
`14· · · · ·Q.· Let's talk about XLIF retractors --
`Q. Let's talk about XLIF retractors --
`14
`15· · · · ·A.· Okay.
`A. Okay.
`15
`16· · · · ·Q.· -- the MaXcess retractors.
`16
`Q. -- the MaXcess retractors.
`17· · · · ·A.· And so I want you to be very, very specific,
`17
`A. And so I want you to be very, very specific,
`18· ·because there were -- there were multiple iterations of
`18 because there were -- there were multiple iterations of
`19· ·MaXcess.· And so some of them were kluge and hence
`19 MaXcess. And so some of them were kluge and hence
`20· ·required additional engineering or additional work.
`20 required additional engineering or additional work.
`21· · · · ·Q.· What kind of engineering?
`21
`Q. What kind of engineering?
`22· · · · ·A.· There was a rack on some of them that were
`22
`A. There was a rack on some of them that were
`23· ·sticky.· And so just purely the process by which you
`23 sticky. And so just purely the process by which you
`24· ·open a retractor was underwhelming.· It was not
`24 open a retractor was underwhelming. It was not
`25· ·reflective of a precise medical tool.
`25 reflective of a precise medical tool.
`
`Page 40
`Page 40
`
`·1· ·Please continue.
`1 Please continue.
`·2· · · · ·A.· Okay.· I appreciate your interest, 'cause I'm
`2
`A. Okay. I appreciate your interest, 'cause I'm
`·3· ·telling you, it's fascinating.
`3 telling you, it's fascinating.
`·4· · · · ·Q.· I'm here to get your story, Mr. Miles --
`Q. I'm here to get your story, Mr. Miles --
`4
`·5· · · · ·A.· It's fascinating.· And I'm going to give
`A. It's fascinating. And I'm going to give
`5
`·6· ·you --
`6 you
`·7· · · · ·Q.· -- and I want you to tell it.
`Q. -- and I want you to tell it.
`7
`·8· · · · ·A.· They're great stories.
`A. They're great stories.
`8
`·9· · · · ·Q.· I'm here to find out why you left a company
`Q. I'm here to find out why you left a company
`9
`10· ·you spent 17 years with.
`10 you spent 17 years with.
`11· · · · ·A.· I thought -- I thought -- I thought you were
`A. I thought -- I thought -- I thought you were
`11
`12· ·supposed to enable me to talk and not interrupt me. I
`12 supposed to enable me to talk and not interrupt me. I
`13· ·thought that was part of the agreement.
`13 thought that was part of the agreement.
`14· · · · ·Q.· I want to hear your story.· Tell me.
`14
`Q. I want to hear your story. Tell me.
`15· · · · ·A.· You don't, because you're talking over me.
`A. You don't, because you're talking over me.
`15
`16· · · · ·Q.· Tell me.
`Q. Tell me.
`16
`17· · · · · · ·MS. WICKRAMASEKERA:· Is there a question?
`17
`MS. WICKRAMASEKERA: Is there a question?
`18· · · · · · ·Can you repeat the question.
`18
`Can you repeat the question.
`19· · · · · · ·What's the question?
`What's the question?
`19
`20· ·BY MR. TRIPODI:
`20 BY MR. TRIPOD':
`21· · · · ·Q.· Why did you leave for Alphatec?
`21
`Q. Why did you leave for Alphatec?
`22· · · · ·A.· Because the CEO had no idea what he was doing.
`22
`A. Because the CEO had no idea what he was doing.
`23· ·He created a terrible environment, that was the
`23 He created a terrible environment, that was the
`24· ·antithesis of what the company was founded upon.· That's
`24 antithesis of what the company was founded upon. That's
`25· ·why I left.
`25 why I left.
`
`Page 39
`Page 39
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`Page 41
`Page 41
`·1· · · · ·Q.· When did you come to that conclusion?
`·1· · · · ·Q.· And that was kluge.
`1
`Q. And that was kluge.
`1
`Q. When did you come to that conclusion?
`·2· · · · ·A.· I came to it on -- the first time I came to it
`·2· · · · ·A.· Well, you know, I don't know if I'd consider
`2
`2
`A. Well, you know, I don't know if I'd consider
`A. I came to it on -- the first time I came to it
`·3· ·was on April 2nd of 2015.
`·3· ·it kluge or, you know, less elegant function.
`3 was on April 2nd of 2015.
`3 it kluge or, you know, less elegant function.
`·4· · · · ·Q.· And why does that date stick in your mind?
`·4· · · · ·Q.· Anything else about -- you said that hence
`4
`Q. And why does that date stick in your mind?
`4
`Q. Anything else about -- you said that hence
`·5· · · · ·A.· It sticks in my mind because my best friend
`·5· ·required additional engineering or additional work.
`5
`A. It sticks in my mind because my best friend
`5 required additional engineering or additional work.
`·6· ·was fired, and he called him a predator.
`·6· · · · · · ·Besides what you already identified, anything
`Besides what you already identified, anything
`6 was fired, and he called him a predator.
`6
`·7· · · · ·Q.· And who was that?
`·7· ·else?
`Q. And who was that?
`7
`7 else?
`·8· · · · ·A.· Greg Lucier called my friend a predator.
`·8· · · · ·A.· If there's -- if there's specifics that you
`8
`A. Greg Lucier called my friend a predator.
`8
`A. If there's -- if there's specifics that you
`·9· · · · ·Q.· Alex Lukianov?
`·9· ·want me to address, I'm happy to.· You know, I was there
`Q. Alex Lukianov?
`9 want me to address, I'm happy to. You know, I was there
`9
`10· · · · ·A.· Yes, Alex Lukianov.
`10· ·for 17 years.· And so I was there from zero dollars
`A. Yes, Alex Lukianov.
`10 for 17 years. And so I was there from zero dollars
`10
`11· · · · ·Q.· Was he a predator?
`11· ·and -- and exited around a billion.· So there was a lot
`11
`11 and -- and exited around a billion. So there was a lot
`Q. Was he a predator?
`12· · · · · · ·MS. WICKRAMASEKERA:· Objection.
`12· ·of stuff that went on through that entire period.· And
`MS. WICKRAMASEKERA: Objection.
`12
`12 of stuff that went on through that entire period. And
`13· · · · · · ·THE WITNESS:· This is the -- it's really
`13· ·so I'm doing my best to recollect the specifics --
`THE WITNESS: This is the -- it's really
`13
`13 so I'm doing my best to recollect the specifics --
`14· ·nonsense.· Really.
`14· · · · ·Q.· What --
`14 nonsense. Really.
`Q. What --
`14
`15· ·BY MR. TRIPODI:
`15· · · · ·A.· Don't interrupt me.
`15 BY MR. TRIPOD':
`A. Don't interrupt me.
`15
`16· · · · ·Q.· Well, you brought it up.
`16· · · · ·Q.· No.· Okay.
`16
`Q. No. Okay.
`16
`Q. Well, you brought it up.
`17· · · · ·A.· I'm -- no, I didn't.· I said this is what was
`17· · · · ·A.· And -- and -- however, you're asking for a lot
`17
`A. And -- and -- however, you're asking for a lot 17
`A. I'm -- no, I didn't. I said this is what was
`18· ·described to me from a -- from -- from the new guy who
`18· ·of information in ways that I can avoid.· And I'm doing
`18 of information in ways that I can avoid. And I'm doing
`18 described to me from a -- from -- from the new guy who
`19· ·was supposed to run the company, who I -- so let's take
`19· ·my best not to avoid, but I want you to be precise so
`19 was supposed to run the company, who I -- so let's take
`19 my best not to avoid, but I want you to be precise so
`20· ·this in the proper context.
`20· ·that I can --
`20 this in the proper context.
`20 that I can --
`21· · · · · · ·I work with somebody all the way back to
`21· · · · ·Q.· My question, Mr. Miles, was at the time of
`21
`21
`Q. My question, Mr. Miles, was at the time of
`I work with somebody all the way back to
`22· ·Memphis, Tennessee, in the -- in the -- in the '90s, and
`22· ·your departure.
`22 Memphis, Tennessee, in the -- in the -- in the '90s, and
`22 your departure.
`23· ·I work another 15 years with the guy.· And I got to tell
`23· · · · ·A.· Let me finish.· I'm not done yet.· I'm not
`A. Let me finish. I'm not done yet. I'm not
`23
`23 I work another 15 years with the guy. And I got to tell
`24· ·you.· Having 15 years with that person, or more, would
`24· ·done yet.· I'm not done yet.
`24 done yet. I'm not done yet.
`24 you. Having 15 years with that person, or more, would
`25· ·suggest I have a greater insight as to the -- the
`25· · · · ·Q.· My question was at the time of your departure.
`25
`Q. My question was at the time of your departure. 25 suggest I have a greater insight as to the -- the
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`·1· ·mistaken about.
`1 mistaken about.
`·2· · · · ·Q.· For example?
`Q. For example?
`2
`·3· · · · ·A.· Things that emanated through his management of
`A. Things that emanated through his management of
`3
`·4· ·the company.
`4 the company.
`·5· · · · ·Q.· What do you mean by that?
`5
`Q. What do you mean by that?
`·6· · · · ·A.· Oh, an example would be, you know, regarding
`A. Oh, an example would be, you know, regarding
`6
`·7· ·the -- here's an example.· Do you have consulting
`7 the -- here's an example. Do you have consulting
`·8· ·agreements with surgeons?· Yes.· You know, do the
`8 agreements with surgeons? Yes. You know, do the
`·9· ·surgeons who consult use our products?· Yes.· Why don't
`9 surgeons who consult use our products? Yes. Why don't
`10· ·you pay all the surgeons?
`10 you pay all the surgeons?
`11· · · · · · ·Like, nonsensical things that seemed to be odd
`Like, nonsensical things that seemed to be odd
`11
`12· ·to me of someone of his stature in terms of his stature
`12 to me of someone of his stature in terms of his stature
`13· ·within the community.· So there were oddities that would
`13 within the community. So there were oddities that would
`14· ·reflect in my thinking, what is with this guy?· He
`14 reflect in my thinking, what is with this guy? He
`15· ·presents himself as being a very assembled guy but
`15 presents himself as being a very assembled guy but
`16· ·doesn't understand the dynamics of the specific industry
`16 doesn't understand the dynamics of the specific industry
`17· ·that we're participating in.
`17 that we're participating in.
`18· · · · ·Q.· Did you explain that to him when he brought it
`Q. Did you explain that to him when he brought it
`18
`19· ·up?
`19 up?
`20· · · · ·A.· I clearly did, yes.
`A. I clearly did, yes.
`20
`21· · · · ·Q.· Okay.· Did you set him straight?
`21
`Q. Okay. Did you set him straight?
`22· · · · ·A.· I did my best to.
`A. I did my best to.
`22
`23· · · · · · ·MS. WICKRAMASEKERA:· Objection.
`MS. WICKRAMASEKERA: Objection.
`23
`24· ·BY MR. TRIPODI:
`24 BY MR. TRIPODI:
`25· · · · ·Q.· And do you think he listened?
`Q. And do you think he listened?
`25
`
`Page 48
`Page 48
`·1· · · · · · ·MR. TRIPODI:· -- objection to form will be
`1
`MR. TRIPODI: -- objection to form will be
`·2· ·fine.
`2 fine.
`·3· · · · · · ·MS. WICKRAMASEKERA:· Okay.· Thanks, Paul.
`MS. WICKRAMASEKERA: Okay. Thanks, Paul.
`3
`·4· ·It's vague.
`4 It's vague.
`·5· ·BY MR. TRIPODI:
`5 BY MR. TRIPODI:
`·6· · · · ·Q.· Okay.
`Q. Okay.
`6
`·7· · · · ·A.· So repeat the question.
`A. So repeat the question.
`7
`·8· · · · · · ·Are you asking me what his management style
`Are you asking me what his management style
`8
`·9· ·was?
`9 was?
`10· · · · ·Q.· Yeah.· What was his management style?
`Q. Yeah. What was his management style?
`10
`11· · · · · · ·MS. WICKRAMASEKERA:· Same objection.
`MS. WICKRAMASEKERA: Same objection.
`11
`12· · · · · · ·THE WITNESS:· I'd say inconsistent.
`THE WITNESS: I'd say inconsistent.
`12
`13· ·BY MR. TRIPODI:
`13 BY MR. TRIPODI:
`14· · · · ·Q.· So was he -- was he an operations guy?
`Q. So was he -- was he an operations guy?
`14
`15· · · · · · ·Does that term mean anything to you?
`Does that term mean anything to you?
`15
`16· · · · ·A.· He claimed to be.· He claimed to be.
`A. He claimed to be. He claimed to be.
`16
`17· · · · ·Q.· What does that mean, "operations"?
`Q. What does that mean, "operations"?
`17
`18· · · · ·A.· The way I understand it?
`A. The way I understand it?
`18
`19· · · · ·Q.· Yes.
`Q. Yes.
`19
`20· · · · ·A.· An operations guy to me would be someone who
`A. An operations guy to me would be someone who
`20
`21· ·understands the manufacturing of the product, that
`21 understands the manufacturing of the product, that
`22· ·understands the distribution of the product, understands
`22 understands the distribution of the product, understands
`23· ·the quality elements of the product, a myriad of
`23 the quality elements of the product, a myriad of
`24· ·operational related -- you know, what does it take to
`24 operational related -- you know, what does it take to
`25· ·get a product through a design process into a product
`25 get a product through a design process into a product
`
`Page 47
`Page 47
`·1· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Calls for
`1
`MS. WICKRAMASEKERA: Objection. Calls for
`·2· ·speculation.
`2 speculation.
`·3· · · · · · ·THE WITNESS:· Doubtfully.· But, you know,
`THE WITNESS: Doubtfully. But, you know,
`3
`·4· ·again, you and I are talking in generalities.· I didn't
`4 again, you and I are talking in generalities. I didn't
`·5· ·have the level of influence on Mr. Lucier that I would
`5 have the level of influence on Mr. Lucier that I would
`·6· ·have hoped in terms of somebody being a 25-year veteran
`6 have hoped in terms of somebody being a 25-year veteran
`·7· ·of the industry and him being a one-year or less than a
`7 of the industry and him being a one-year or less than a
`·8· ·one-year veteran of the industry.· I didn't have that
`8 one-year veteran of the industry. I didn't have that
`·9· ·level of influence on him that I hoped.
`9 level of influence on him that I hoped.
`10· ·BY MR. TRIPODI:
`10 BY MR. TRIPOD':
`11· · · · ·Q.· So he was relatively new to spine?
`11
`Q. So he was relatively new to spine?
`12· · · · ·A.· It wasn't relatively.· He was completely new.
`12
`A. It wasn't relatively. He was completely new.
`13· · · · ·Q.· Okay.· And was he reliant on you in any way
`Q. Okay. And was he reliant on you in any way
`13
`14· ·for his understanding moving forward?
`14 for his understanding moving forward?
`15· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague, calls
`MS. WICKRAMASEKERA: Objection. Vague, calls
`15
`16· ·for speculation.
`16 for speculation.
`17· · · · · · ·THE WITNESS:· Yeah.· The -- yeah.· I couldn't
`17
`THE WITNESS: Yeah. The -- yeah. I couldn't
`18· ·tell you what he was reliant upon.
`18 tell you what he was reliant upon.
`19· ·BY MR. TRIPODI:
`19 BY MR. TRIPODI:
`20· · · · ·Q.· If you had to describe his management style,
`20
`Q. If you had to describe his management style,
`21· ·what word or words would you use?
`21 what word or words would you use?
`22· · · · · · ·MS. WICKRAMASEKERA:· Objection.· This is
`MS. WICKRAMASEKERA: Objection. This is
`22
`23· ·vague.
`23 vague.
`24· · · · · · ·MR. TRIPODI:· Ms. Wickramasekera --
`24
`MR. TRIPODI: Ms. Wickramasekera --
`25· · · · · · ·MS. WICKRAMASEKERA:· Yes?
`MS. WICKRAMASEKERA: Yes?
`25
`
`Page 49
`Page 49
`·1· ·through the FDA, you know, out of the manufacturing
`1
`through the FDA, you know, out of the manufacturing
`·2· ·process, on a shelf, into the operating room, back from
`process, on a shelf, into the operating room, back from
`2
`·3· ·the operating room.· All of those elements that would
`the operating room. All of those elements that would
`3
`·4· ·suggest operations.
`4
`suggest operations.
`·5· · · · ·Q.· And is that something that you already
`Q. And is that something that you already
`5
`·6· ·understood, operations?
`understood, operations?
`6
`·7· · · · ·A.· I had a lot of experience there.
`A. I had a lot of experience there.
`7
`·8· · · · ·Q.· Can we contrast operations to, say, Alex
`8
`Q. Can we contrast operations to, say, Alex
`·9· ·Lukianov's management style?
`Lukianov's management style?
`9
`10· · · · · · ·What kind of style did Alex have?
`What kind of style did Alex have?
`10
`11· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague.
`MS. WICKRAMASEKERA: Objection. Vague.
`11
`12· · · · · · ·THE WITNESS:· Yeah.· I don't -- I guess I --
`THE WITNESS: Yeah. I don't -- I guess I --
`12
`13· ·I don't understand the characterization of operations
`13
`I don't understand the characterization of operations
`14· ·style.
`14
`style.
`15· · · · · · ·Is it -- you're saying that Lucier was a --
`Is it -- you're saying that Lucier was a --
`15
`16· ·was a sound operator?· Is that what you're --
`16
`was a sound operator? Is that what you're --
`17· ·BY MR. TRIPODI:
`BY MR. TRIPOD':
`17
`18· · · · ·Q.· No.· We just talked about what it meant to be
`Q. No. We just talked about what it meant to be
`18
`19· ·focused on operations.
`focused on operations.
`19
`20· · · · ·A.· Uh-huh.
`A. Uh-huh.
`20
`21· · · · ·Q.· How did that contrast with the way that
`21
`Q. How did that contrast with the way that
`22· ·Mr. Lukianov ran the company?
`Mr. Lukianov ran the company?
`22
`23· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague, calls
`MS. WICKRAMASEKERA: Objection. Vague, calls
`23
`24· ·for a narrative.
`24
`for a narrative.
`25· · · · · · ·THE WITNESS:· I would say there were similar
`THE WITNESS: I would say there were similar
`25
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`·1· ·problems under Mr. Lukianov as Mr. Lucier, which
`1 problems under Mr. Lukianov as Mr. Lucier, which
`·2· ·ultimately drove their style by which they approached
`2 ultimately drove their style by which they approached
`·3· ·operations, if that's what we're talking about,
`3 operations, if that's what we're talking about,
`·4· ·operations.
`4 operations.
`·5· ·BY MR. TRIPODI:
`5 BY MR. TRIPODI:
`·6· · · · ·Q.· Okay.· Thank you for clarifying.
`Q. Okay. Thank you for clarifying.
`6
`·7· · · · · · ·What was Alex Lukianov's approach to
`What was Alex Lukianov's approach to
`7
`·8· ·operations, and how did it differ from Mr. Lucier's?
`8 operations, and how did it differ from Mr. Lucier's?
`·9· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague.
`9
`MS. WICKRAMASEKERA: Objection. Vague.
`10· · · · · · ·THE WITNESS:· Not -- not profoundly different
`THE WITNESS: Not -- not profoundly different
`10
`11· ·in terms of just the specifics as it relates to
`11 in terms of just the specifics as it relates to
`12· ·operations.
`12 operations.
`13· ·BY MR. TRIPODI:
`13 BY MR. TRIPODI:
`14· · · · ·Q.· Anything else that was different?
`Q. Anything else that was different?
`14
`15· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Vague.
`MS. WICKRAMASEKERA: Objection. Vague.
`15
`16· · · · · · ·THE WITNESS:· Anything else that was --
`THE WITNESS: Anything else that was --
`16
`17· ·BY MR. TRIPODI:
`17 BY MR. TRIPODI:
`18· · · · ·Q.· About their management style.
`18
`Q. About their management style.
`19· · · · · · ·MS. WICKRAMASEKERA:· Vague.
`MS. WICKRAMASEKERA: Vague.
`19
`20· · · · · · ·THE WITNESS:· It's like asking if you and I
`THE WITNESS: It's like asking if you and I
`20
`21· ·have different personalities.· I -- I know we do.· And
`21 have different personalities. I -- I know we do. And
`22· ·so the dynamic becomes, what's the difference between
`22 so the dynamic becomes, what's the difference between
`23· ·Paul and Pat?· You know, it becomes a difficult one to
`23 Paul and Pat? You know, it becomes a difficult one to
`24· ·answer.· Like, if there's specifics that you're
`24 answer. Like, if there's specifics that you're
`25· ·interested in, I'm thrilled to tell you, but --
`25 interested in, I'm thrilled to tell you, but --
`
`Page 52
`Page 52
`
`·1· ·for me.
`1 for me.
`·2· · · · · · ·And it came in the form of small things, you
`2
`And it came in the form of small things, you
`·3· ·know, lying about -- for years in the company, a very
`3 know, lying about -- for years in the company, a very
`·4· ·cultural, very important element of our company was to
`4 cultural, very important element of our company was to
`·5· ·take a spine exam.· And so everybody in the entire
`5 take a spine exam. And so everybody in the entire
`·6· ·company had to take the spine exam.· And it was a
`6 company had to take the spine exam. And it was a
`·7· ·requirement to take the spine exam.· And everybody took
`7 requirement to take the spine exam. And everybody took
`·8· ·it.
`8 it.
`·9· · · · · · ·And, you know, he claimed to the company that
`9
`And, you know, he claimed to the company that
`10· ·he took it and got a hundred.· And everybody knew he
`10 he took it and got a hundred. And everybody knew he
`11· ·didn't take it.
`11 didn't take it.
`12· · · · · · ·And so there were dynamics like that, that
`12
`And so there were dynamics like that, that
`13· ·when you look at the lead of a company when there --
`13 when you look at the lead of a company when there --
`14· ·there becomes ridiculous incongruencies like that, what
`14 there becomes ridiculous incongruencies like that, what
`15· ·happens is -- is there appears to be more and more and
`15 happens is -- is there appears to be more and more and
`16· ·more.· And so there becomes the initiation of a lack of
`16 more. And so there becomes the initiation of a lack of
`17· ·trust.
`17 trust.
`18· ·BY MR. TRIPODI:
`18 BY MR. TRIPODI:
`19· · · · ·Q.· And so you had a developing lack of trust as
`Q. And so you had a developing lack of trust as
`19
`20· ·of the time that you spoke with him in April of 2015?
`20 of the time that you spoke with him in April of 2015?
`21· · · · ·A.· I just thought my initial interaction with
`21
`A. I just thought my initial interaction with
`22· ·him, independent of him being a board member, I thought
`22 him, independent of him being a board member, I thought
`23· ·him calling my friend a predator was out of bounds.· And
`23 him calling my friend a predator was out of bounds. And
`24· ·it was the first indication that I thought, you know
`24 it was the first indication that I thought, you know
`25· ·what?· We have -- we have trouble coming.· And so it
`25 what? We have -- we have trouble coming. And so it
`
`Page 51
`Page 51
`
`·1· ·BY MR. TRIPODI:
`BY MR. TRIPODI:
`1
`·2· · · · ·Q.· So you observed Mr. Lukianov for about
`2
`Q. So you observed Mr. Lukianov for about
`·3· ·17 years at NuVasive?
`17 years at NuVasive?
`3
`·4· · · · ·A.· Yeah, in that realm.
`A. Yeah, in that realm.
`4
`·5· · · · ·Q.· Okay.· And you told me that you did not think
`5
`Q. Okay. And you told me that you did not think
`·6· ·that Mr. Lucier had a very good management style; right?
`that Mr. Lucier had a very good management style; right?
`6
`·7· · · · · · ·You found fault with it; is that right?
`You found fault with it; is that right?
`7
`·8· · · · · · ·MS. WICKRAMASEKERA:· Objection.· Misstates his
`MS. WICKRAMASEKERA: Objection. Misstates his
`8
`·9· ·testimony.
`testimony.
`9
`10· · · · · · ·THE WITNESS:· Yeah.· You stated that, you
`THE WITNESS: Yeah. You stated that, you
`10
`11· ·know, whether it was --
`know, whether it was --
`11
`12· ·BY MR. TRIPODI:
`BY MR. TRIPODI:
`12
`13· · · · ·Q.· Did you find fault with it?
`Q. Did you find fault with it?
`13
`14· · · · ·A.· Did I find fault with his style?
`A. Did I find fault with his style?
`14
`15· · · · ·Q.· Yes.
`Q. Yes.
`15
`16· · · · ·A.· I found fault with his substance and his
`A. I found fault with his substance and his
`16
`17· ·style.
`style.
`17
`18· · · · ·Q.· Okay.· Let's be more specific.
`18
`Q. Okay. Let's be more specific.
`19· · · · · · ·In addition to what we've discussed on the
`In addition to what we've discussed on the
`19
`20· ·record, what else did you find fault with?
`20
`record, what else did you find fault with?
`21· · · · · · ·MS. WICKRAMASEKERA:· Objection to the form of
`21
`MS. WICKRAMASEKERA: Objection to the form of
`22· ·the question.
`22
`the question.
`23· · · · · · ·THE WITNESS:· One of the things that I found
`THE WITNESS: One of the things that I found
`23
`24· ·troubling was incongruence between -- between what he
`24
`troubling was incongruence between -- between what he
`25· ·stated and what he did.· And it was -- it was a problem
`stated and what he did. And it was -- it was a problem
`25
`
`Page 53
`Page 53
`
`·1· ·was -- it was me reading the tea leaves.
`1 was -- it was me reading the tea leaves.
`·2· · · · ·Q.· And just to be clear, but you didn't say
`2
`Q. And just to be clear, but you didn't say
`·3· ·anything to him about that comment at that time; right?
`3 anything to him about that comment at that time; right?
`·4· · · · ·A.· People say things all the time that I disagree
`A. People say things all the time that I disagree
`4
`·5· ·with.· And sometimes I feel the need to correct them,
`5 with. And sometimes I feel the need to correct them,
`·6· ·when I feel like I'm going to have some influence on
`6 when I feel like I'm going to have some influence on
`·7· ·their view.· Other people, when I know that I'm not
`7 their view. Other people, when I know that I'm not
`·8· ·going to have influence, I don't believe I'm going to
`8 going to have influence, I don't believe I'm going to
`·9· ·have influence, I don't.
`9 have influence, I don't.
`10· · · · · · ·In his case, I didn't expect to have a hell of
`In his case, I didn't expect to have a hell of
`10
`11· ·a lot of influence.· He just ran my best friend out of a
`11 a lot of influence. He just ran my best friend out of a
`12· ·company that we worked together for 17 years.· If you
`12 company that we worked together for 17 years. If you
`13· ·think I'm going to sit on the front lawn of the -- of
`13 think I'm going to sit on the front lawn of the -- of
`14· ·The Inn at Rancho Santa Fe and argue with him about what
`14 The Inn at Rancho Santa Fe and argue with him about what
`15· ·predator means, it just seems a little outlandish.
`15 predator means, it just seems a little outlandish.
`16· · · · ·Q.· So when Mr. Lukianov left, was Mr. Lucier
`16
`Q. So When Mr. Lukianov left, was Mr. Lucier
`17· ·appointed interim CEO?
`17 appointed interim CEO?
`18· · · · ·A.· He was.
`18
`A. He was.
`19· · · · ·Q.· By whom?
`Q. By whom?
`19
`20· · · · ·A.· The board.
`20
`A. The board.
`21· · · · ·Q.· And was he chairman of the board at the time,
`Q. And was he chairman of the board at the time,
`21
`22· ·or just a board member?
`22 or just a board member?
`23· · · · ·A.· I don't specifically recall.· You could look
`A. I don't specifically recall. You could look
`23
`24· ·back at the notes.· It -- you know, it didn't make any
`24 back at the notes. It -- you know, it didn't make any
`25· ·difference to me.
`25 difference to me.
`
`EXHIBIT 66
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`

`

`Case 3:18-cv-00347-CAB-MDD Document 261-14 Filed 02/07/20 PageID.25128 Page 6 of
` 30
`
`Page 58
`Page 58
`·1· · · · · · ·I got to tell you, you know, just as a
`1
`I got to tell you, you know, just as a
`·2· ·follow-up, that I think -- I would hope that you would
`2
`follow-up, that I think -- I would hope that you would
`·3· ·want to go here -- is when I saw the level of ineptitude
`3
`want to go here -- is when I saw the level of ineptitude
`·4· ·in running the company that Mr. Lucier brought to the
`in running the company that Mr. Lucier brought to the
`4
`·5· ·dance, I would say I was much more inspired to -- to be
`5
`dance, I would say I was much more inspired to -- to be
`·6· ·in that role, because I knew more than him.· And it was
`in that role, because I knew more than him. And it was
`6
`·7· ·problematic, the misdirection that he was creating.
`problematic, the misdirection that he was creating.
`7
`·8· · · · · · ·And so -- but at the beginning, I genuinely
`And so -- but at the beginning, I genuinely
`8
`·9· ·didn't really care.
`9
`didn't really care.
`10· · · · ·Q.· What do you mean by "misdirection"?
`10
`Q. What do you mean by "misdirection"?
`11· · · · ·A.· I thought that he undermined a culture of --
`A. I thought that he undermined a culture of --
`11
`12· ·the culture of the company.· And I think that when
`the culture of the company. And I think that when
`12
`13· ·you -- when you experience the 17 years and you're deep
`13
`you -- when you experience the 17 years and you're deep
`14· ·in a culture that ultimately was so profoundly
`14
`in a culture that ultimately was so profoundly
`15· ·clinically focused and you -- and you -- and you change
`clinically focused and you -- and you -- and you change
`15
`16· ·that to profoundly financially focused, you know, I
`16
`that to profoundly financially focused, you know, I
`17· ·think that there's a -- you know, there's a
`17
`think that there's a -- you know, there's a
`18· ·misdirection, you know, or there's an interruption of
`18
`misdirection, you know, or there's an interruption of
`19· ·a -- of a historical -- historically successful path.
`a -- of a historical -- historically successful path.
`19
`20· · · · · · ·So that's -- that's what I mean by
`So that's -- that's what I mean by
`20
`21· ·"misdirection."
`21
`"misdirection."
`22· · · · ·Q.· Did you ever talk to Mr. Lucier about that?
`22
`Did you ever talk to Mr. Lucier about that?
`Q.
`23· · · · ·A.· Yes.
`A.
`23
`Yes.
`24· · · · ·Q.· What did you say, and when?
`24
`What did you say, and when?
`Q.
`25· · · · ·A.· You know, me and Mr. Lucier talked
`You know, me and Mr. Lucier talked
`25
`A.
`
`Page 60
`Page 60
`·1· ·financials at the -- at the billion-dollar level?
`1
`financials at the -- at the billion-dollar level?
`·2· · · · ·A.· I think financials are important at any stage
`2
`A. I think financials are important at any stage
`·3· ·of the company.· Like, you know, I think the challenge
`of the company. Like, you know, I think the challenge
`3
`·4· ·becomes -- is in your interest to know the very company
`becomes -- is in your interest to know the very company
`4
`·5· ·with whom you've taken control over.· And the reality of
`with whom you've taken control over. And the reality of
`5
`·6· ·it is -- is what drives that company and are you -- are
`it is -- is what drives that company and are you -- are
`6
`·7· ·you interested enough to know the company well enough to
`you interested enough to know the company well enough to
`7
`·8· ·have influence over it.
`8
`have influence over it.
`·9· · · · · · ·And so you're asking me what I think is
`And so you're asking me what I think is
`9
`10· ·important, is financials more important at a big
`important, is financials more important at a big
`10
`11· ·company.· I don't think so.· I think it's important
`company. I don't think so. I think it's important
`11
`12· ·every step of the way.
`every step of the way.
`12
`13· · · · · · ·The problem becomes -- is it was not the
`13
`The problem becomes