Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30399 Page 1 of
`15
`
`
`
`
`WILSON SONSINI GOODRICH & ROSATI P.C.
`PAUL D. TRIPODI II (SBN 162380)
`ptripodi@wsgr.com
`WENDY L. DEVINE (SBN 246337)
`wdevine@wsgr.com
`NATALIE J. MORGAN (SBN 211143)
`nmorgan@wsgr.com
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: 323-210-2900
`Fax: 866-974-7329
`
`Hilgers Graben PLLC
`MICHAEL T. HILGERS (Pro Hac Vice)
`mhilgers@hilgersgraben.com
`575 Fallbrook Blvd, Suite 202
`Lincoln, NE 68521
`Telephone: 402-218-2106
`Fax: 402-413-1880
`
`Attorneys for Plaintiff NuVasive, Inc.
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`
`NUVASIVE, INC., a Delaware
`)
`CASE NO.: 18-cv-00347-CAB-MDD
`corporation,
`)
`
`
`)
`
`PLAINTIFF NUVASIVE INC.’S
`)
`OBJECTIONS TO
`
`)
`DECLARATION OF SCOTT
`)
`ROBINSON IN SUPPORT OF
`
`)
`DEFENDANTS’ OPPOSITION TO
`)
`NUVASIVE, INC.’S MOTION
`ALPHATEC HOLDINGS, INC., a
`)
`FOR PARTIAL SUMMARY
`Delaware corporation, and ALPHATEC
`)
`JUDGMENT
`SPINE, INC., a California corporation,
`)
`(IMPLANT PATENTS)
`
`)
`Defendants.
`)
`
`)
`
`)
`Judge: Hon. Cathy Ann Bencivengo
`)
`Magistrate Judge: Mitchell D. Dembin
`
`Plaintiff,
`
`v.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Plaintiff NuVasive, Inc. (“NuVasive”) hereby objects to the Declaration of
`Scott Robinson in Support of Defendants’ Opposition to NuVasive, Inc.’s Motion
`for Partial Summary Judgment (Implant Patents). Doc. No. 306-17.
`
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR
`
`PARTIAL SUMMARY JUDGMENT
`
`- 1 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30400 Page 2 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`NuVasive’s Objections
`
`SPECIFIC EVIDENTIARY OBJECTIONS TO
`ROBINSON DECLARATION
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`¶ 1: “I make the following statements
`based on personal knowledge and if
`called to testify to them, could and
`would do so.”
`¶ 2: “I have been employed at
`Alphatec Spine, Inc. (“Alphatec’’)
`since March 2010. My current title is
`Engineering Manager. I have had this
`title since January 2018. Prior to that,
`my title was Project Engineer. I had
`that title for approximately three years.
`Prior to that, my title was Senior
`Design Engineer. I had that title for
`approximately three years. Prior to
`that, my title was Design Engineer. I
`had that title for approximately three
`years. Prior to that, I was an intern at
`Alphatec.”
`¶ 3: “Since I started at Alphatec, my
`role has been to design and develop
`products that meet clinical
`requirements. I was involved in the
`design and development of the
`Battalion™ product line, including the
`Battalion™ Lateral Spacer. As part of
`my engineering role, I have also been
`trained on the use of Battalion™
`products and lateral surgery generally.
`This includes working in the cadaver
`lab with surgeons and other Alphatec
`employees who are familiar with the
`lateral procedure. I have also watched
`surgeons performing live surgeries
`using Battalion™ products.”
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR
`
`PARTIAL SUMMARY JUDGMENT
`
`- 2 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30401 Page 3 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`¶ 4: “On November 4, 2020, I testified
`on behalf of Alphatec about the
`implant patents asserted in this matter.
`During the deposition, I testified about
`the structure and function of the anti-
`migration chevron tooth pattern on
`Alphatec's BattalionTM Lateral Spacer
`and TranscendTM LIF PEEK Spacer.
`The contents of this declaration are
`consistent with my sworn testimony.”
`¶ 5: “With regard to the BattalionTM
`Lateral Spacer, the implant includes a
`chevron tooth pattern on the upper and
`lower surfaces. The chevron tooth
`pattern is cut into the surface of the
`BattalionTM Lateral Spacer such that it
`is sub-flush to the surface. The
`chevron tooth pattern stops short of the
`leading and trailing ends of the
`implant. That is, the leading and
`trailing ends of the BattalionTM Lateral
`Spacer are smooth and do not have
`any anti-migration features.”
`¶ 6: “The chevron tooth pattern of the
`BattalionTM Lateral Spacer is designed
`so that it does not contact the adjacent
`vertebrae when the implant is
`positioned within the interbody space.
`When the BattalionTM Lateral Spacer
`is positioned within the interbody
`space, only the leading and trailing
`ends of the implant sit on the
`apophyseal ring of the vertebral
`endplate, which is harder bone located
`at the edges of the vertebral endplate.
`Only if the BattalionTM Lateral Spacer
`were to move out of position from the
`
`NuVasive’s Objections
`
`
`
`
`
`Impermissible opinion testimony by
`lay witness [FRE 701, 702].
`Mr. Robinson’s testimony regarding
`placement and positioning of the
`accused implants within the
`intervertebral space during and after
`surgery, and whether the implant’s
`anti-migration elements contact the
`vertebrae when positioned in that
`space is impermissible opinion
`testimony. Mr. Robinson is not a
`surgeon or other qualified expert – he
`is an “Engineering Manager.” Doc.
`No. 306-17 at 2 (¶ 2). His declaration
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 3 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30402 Page 4 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`interbody space would the chevron
`tooth pattern catch the apophyseal ring
`of the vertebral endplate.”
`
`¶ 7: “The BattalionTM Lateral Spacer is
`designed specifically to promote bone
`growth. To that end, the implant is
`packed on the top, bottom, and inside
`with graft (patient's bone, allograft, or
`other graft material). This means that
`the implant only contacts the bone
`at the leading and trailing ends,
`which are smooth, and the
`
`NuVasive’s Objections
`
`does not provide any of the necessary
`foundation to establish that these
`opinions are “rationally based on [his]
`perception.” FRE 701(a). Although
`Mr. Robinson asserts that he has “been
`trained on the use of” the accused
`implants, and has “watched surgeons
`performing live surgeries using” the
`accused implants, he provides no
`information about how much training
`he has received, who provided the
`training, what the training entailed,
`etc. See Doc. No. 306-17 at 2 (¶ 3). He
`also does not say how many surgeries
`he has observed, what he observed
`during these surgeries, who performed
`the surgeries, etc.
`
`Furthermore, on their face, these
`opinions clearly are “based on
`scientific, technical, or other
`specialized knowledge within the
`scope of Rule 702.” FRE 701(c).
`Alphatec has retained Dr. Sachs, a
`spine surgeon, as its technical expert.
`If Alphatec wished to put forward
`these opinions, it needed to do so
`through Dr. Sachs.
`
`Impermissible opinion testimony by
`lay witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion
`testimony by a lay witness. Mr.
`Robinson is not a surgeon or other
`qualified expert – he is an
`“Engineering Manager.” Doc. No.
`306-17 at 2 (¶ 2). His declaration does
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 4 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30403 Page 5 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`remainder of the contact, if any, is
`with the graft material. The contact
`with the graft material is necessary
`for the stem cells to create more
`bone cells, leading to more bone
`growth and fusion. Alphatec's goal in
`designing the implant was to
`maximize contact between the graft
`and the vertebrae and minimize
`contact between the inert PEEK
`material of the implant and the
`vertebrae because PEEK does not
`promote bone growth.”
`
`NuVasive’s Objections
`
`not provide any of the necessary
`foundation to establish that these
`opinions are “rationally based on [his]
`perception.” FRE 701(a). Although
`Mr. Robinson asserts that he has “been
`trained on the use of” the accused
`products, and has “watched surgeons
`performing live surgeries using”
`accused implants, he provides no
`information about how much training
`he has received, who provided the
`training, what the training entailed,
`etc. See Doc. No. 306-17 at 2 (¶ 3). He
`also does not say how many surgeries
`he has observed, what he observed
`during these surgeries, who performed
`the surgeries, etc.
`
`Furthermore, on their face, these
`opinions clearly are “based on
`scientific, technical, or other
`specialized knowledge within the
`scope of Rule 702.” FRE 701(c).
`Alphatec has retained Dr. Sachs, a
`spine surgeon, as its technical expert.
`If Alphatec wished to put forward
`these opinions, it needed to do so
`through Dr. Sachs. Alphatec has not
`disclosed Mr. Robinson as an expert
`witness under Federal Rule of Civil
`Procedure 26(a)(2)(C). So even if Mr.
`Robinson were qualified to offer these
`opinions, the opinions should be
`excluded as not properly disclosed.
`Fed. R. Civ. P. 37(c)(1). Alphatec has
`retained Dr. Sachs, a spine surgeon, as
`its technical expert. If Alphatec
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 5 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30404 Page 6 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`NuVasive’s Objections
`
`wished to put forward these opinions,
`it needed to do so through Dr. Sachs.
`
`Violation of sham affidavit doctrine
`[Kennedy v. Allied Mut. Ins. Co., 952
`F.2d 262, 266 (9th Cir. 1991)].
`In addition to being impermissible
`opinion testimony, Mr. Robinson’s
`statement that “the implant only
`contacts the bone at the leading and
`trailing ends, which are smooth”
`contradicts his prior sworn deposition
`testimony and should therefore be
`disregarded.
`
`Mr. Robinson does not claim that his
`prior sworn testimony was the result of
`confusion or mistake, or that his
`declaration is based on newly
`discovered evidence or intended merely
`to clarify his prior testimony. Instead,
`Alphatec submits the declaration solely
`to create an issue of fact in order to
`avoid summary judgment of
`infringement.
`
`See Doc. No. 303-8 at 10 (Robinson
`11/04/20 Tr. at 73:4-16):
`“Q. But in order to prevent migration,
`to actually function to prevent
`migration they would have to be in
`contact with the end plate, right?
`A. They would, but, I mean, the
`implant, once it would -- you know,
`let's say that the implant were to
`move, let's say it were to move
`laterally one direction toward the
`patient's -- one side to the other side,
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 6 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30405 Page 7 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`¶ 8: “Alphatec also purposefully
`designed the BattalionTM Lateral
`Spacer to be completely flat, as
`opposed to convex. Because the
`vertebral endplates are generally
`concave in shape, and the
`BattalionTM Lateral Spacer is not
`convex, the sub-flush chevron tooth
`pattern does not contact the
`adjacent vertebrae. Based on the
`studies Alphatec conducted, Alphatec's
`flat implants have a lower rate of
`subsidence compared to convex
`implants sold by competitors such as
`NuVasive.”
`
`NuVasive’s Objections
`
`side to side, those teeth would then
`come in contact with the ring
`apophysis, which is generally --
`generally there is some convexity to
`an end plate, to a vertical end plate,
`and so the loading is really only on the
`distal margins of that interbody
`device.”
`
`Impermissible opinion testimony by
`lay witness [FRE 701, 702].
`The bolded portion of this testimony
`presents impermissible opinion
`testimony by a lay witness. Mr.
`Robinson is not a surgeon or other
`qualified expert – he is an
`“Engineering Manager.” Doc. No.
`306-17 at 2 (¶ 2). His declaration does
`not provide any of the necessary
`foundation to establish that these
`opinions are “rationally based on [his]
`perception.” FRE 701(a). Although
`Mr. Robinson asserts that he has “been
`trained on the use of” the accused
`products, and has “watched surgeons
`performing live surgeries using”
`accused implants, he provides no
`information about how much training
`he has received, who provided the
`training, what the training entailed,
`etc. See Doc. No. 306-17 at 2 (¶ 3). He
`also does not say how many surgeries
`he has observed, what he observed
`during these surgeries, who performed
`the surgeries, etc.
`
`Furthermore, on their face, these
`opinions clearly are “based on
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 7 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30406 Page 8 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`NuVasive’s Objections
`
`scientific, technical, or other
`specialized knowledge within the
`scope of Rule 702.” FRE 701(c).
`Alphatec has not disclosed Mr.
`Robinson as an expert witness under
`Federal Rule of Civil Procedure
`26(a)(2)(C). So even if Mr. Robinson
`were qualified to offer these opinions,
`the opinions should be excluded as not
`properly disclosed. Fed. R. Civ. P.
`37(c)(1). Alphatec has retained Dr.
`Sachs, a spine surgeon, as its technical
`expert. If Alphatec wished to put
`forward these opinions, it needed to do
`so through Dr. Sachs.
`
`Violation of sham affidavit doctrine
`[Kennedy v. Allied Mut. Ins. Co., 952
`F.2d 262, 266 (9th Cir. 1991)].
`In addition to being impermissible
`opinion testimony, the bolded portion
`of Mr. Robinson’s declaration
`contradicts his prior sworn deposition
`testimony and should therefore be
`disregarded.
`
`Mr. Robinson does not claim that his
`prior sworn testimony was the result of
`confusion or mistake, or that his
`declaration is based on newly
`discovered evidence or intended merely
`to clarify his prior testimony. Instead,
`Alphatec submits the declaration solely
`to create an issue of fact in order to
`avoid summary judgment of
`infringement.
`
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 8 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30407 Page 9 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`¶ 9: “As I testified at my deposition,
`the chevron tooth pattern on the
`TranscendTM LIF PEEK Spacer is
`structured in the same way as the
`chevron tooth pattern on the
`BattalionTM Lateral Spacer. They also
`have the same function.”
`¶ 10: “Referring to the BattalionTM
`Lateral Spacer generally, it was
`important for Alphatec to consider the
`structural integrity of its device.
`Because the trailing end of the
`BattalionTM Lateral Spacer includes
`several cutouts to stabilize the inserter
`and deep guidance tracks, Alphatec
`strengthened other aspects of the
`implant by relocating the material that
`was removed from the trailing end.
`
`NuVasive’s Objections
`
`See Doc. No. 303-8 at 10 (Robinson
`11/04/20 Tr. at 73:4-16):
` “Q. But in order to prevent migration,
`to actually function to prevent
`migration they would have to be in
`contact with the end plate, right?
`A. They would, but, I mean, the
`implant, once it would -- you know,
`let's say that the implant were to move,
`let's say it were to move laterally one
`direction toward the patient's -- one side
`to the other side, side to side, those
`teeth would then come in contact with
`the ring apophysis, which is generally --
`generally there is some convexity to an
`end plate, to a vertical end plate, and so
`the loading is really only on the distal
`margins of that interbody device.”
`
`
`
`Lack of Foundation [FRE 602].
`There is no foundation for Mr.
`Robinson’s claims regarding the
`reasons Alphatec made design
`decisions affecting its Battalion
`implant.
`
`Impermissible Hearsay [FRE
`802].
`To the extent that Mr. Robinson derives
`his knowledge of Alphatec’s reasons
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 9 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30408 Page 10 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`NuVasive’s Objections
`
`for design decisions affecting the
`Battalion implant from conversations
`with other individuals at Alphatec,
`these are out of court statements offered
`to prove the truth of the matter asserted.
`
`Lack of Foundation [FRE 602].
`There is no foundation for Mr.
`Robinson’s claims regarding the
`reasons Alphatec made design
`decisions affecting its Battalion
`implant.
`
`Impermissible Hearsay [FRE
`802].
`To the extent that Mr. Robinson derives
`his knowledge of Alphatec’s reasons
`for design decisions affecting the
`Battalion implant from conversations
`with other individuals at Alphatec,
`these are out of court statements offered
`to prove the truth of the matter asserted.
`
`
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`For instance, Alphatec thickened the
`strut connecting the sidewalls of the
`BattalionTM Lateral Spacer and
`specifically located it off center so that
`the device could better withstand
`impaction forces.”
`¶ 11: “The design decisions were
`partially due to Alphatec's review of
`the FDA's Manufacturer and User
`Facility Device Experience
`(MAUDE) database to understand
`when and why competitor devices
`were failing. The MAUDE database
`includes reports of adverse events
`involving medical devices. For
`instance, a search for NuVasive's
`CoRoent implant showed instances
`where the implant had cracked or
`fractured during insertion. Seeing
`these structural issues in other
`implants, Alphatec optimized the
`design of its BattalionTM Lateral
`Spacer to survive impaction during
`insertion and load while the implant is
`positioned between two vertebral
`endplates.”
`¶ 12: “Alphatec performed impaction
`testing on implants having a design
`similar to NuVasive's CoRoent
`implant and on the design
`contemplated for the BattalionTM
`Lateral Spacer. Attached here as
`Exhibit A is a true and correct copy of
`the test results. I have described the
`results from some of these tests
`below.”
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 10 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30409 Page 11 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`¶ 13: “Specimen ID# 1-5 in the table
`below reflect the results from tests
`performed on Part No. P003132-08-
`07. This test implant has a design
`similar to NuVasive's CoRoent
`implant having the following
`configuration: 18 mm width x 60 mm
`length x 8 mm height. Attached here
`as Exhibit B is a true and correct copy
`of engineering drawings representative
`of Part No. P003132-08-07. As the
`table shows, during impaction
`testing, the Average (N) value was
`measured to be 2704.6 and every
`test resulted in a fracture. A higher
`Average (N) value would indicate an
`implant's ability to absorb a higher
`force without failure.”
`
`NuVasive’s Objections
`
`Impermissible opinion testimony by
`lay witness [FRE 701, 702].
`The bolded portion of this testimony
`presents impermissible opinion
`testimony by a lay witness. Mr.
`Robinson is not a surgeon or other
`qualified expert – he is an
`“Engineering Manager.” Doc. No.
`306-17 at 2 (¶ 2). His declaration does
`not provide any of the necessary
`foundation to establish that these
`opinions are “rationally based on [his]
`perception.” FRE 701(a). Although
`Mr. Robinson asserts that he has “been
`trained on the use of” the accused
`products, and has “watched surgeons
`performing live surgeries using”
`accused implants, he provides no
`information about how much training
`he has received, who provided the
`training, what the training entailed,
`etc. See Doc. No. 306-17 at 2 (¶ 3). He
`also does not say how many surgeries
`he has observed, what he observed
`during these surgeries, who performed
`the surgeries, etc.
`
`Furthermore, on their face, these
`opinions clearly are “based on
`scientific, technical, or other
`specialized knowledge within the
`scope of Rule 702.” FRE 701(c).
`Alphatec has not disclosed Mr.
`Robinson as an expert witness under
`Federal Rule of Civil Procedure
`26(a)(2)(C). So even if Mr. Robinson
`were qualified to offer these opinions,
`the opinions should be excluded as not
`properly disclosed. Fed. R. Civ. P.
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 11 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30410 Page 12 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`¶ 14: “Alphatec performed the same
`tests against its design for the
`BattalionTM Lateral Spacer having the
`same dimensions, but with a thicker
`and off-center strut connecting the
`sidewalls. Samples 11-20 in the in the
`table below reflect the results from a
`test performed on Part No. P100171-
`08-01. As the table shows, during
`impaction testing, the Average (N)
`value was measured to be 3348.4 and
`several tests resulted in no fractures or
`visible damage. The significantly
`higher Average (N) value for
`Alphatec's design compared to
`NuVasive's design demonstrated
`that Alphatec's design is more
`optimal.”
`
`NuVasive’s Objections
`
`37(c)(1). Alphatec has retained Dr.
`Sachs, a spine surgeon, as its technical
`expert. If Alphatec wished to put
`forward these opinions, it needed to do
`so through Dr. Sachs.
`
`Impermissible opinion testimony by
`lay witness [FRE 701, 702].
`The bolded portion of this testimony
`presents impermissible opinion
`testimony by a lay witness. Mr.
`Robinson is not a surgeon or other
`qualified expert – he is an
`“Engineering Manager.” Doc. No.
`306-17 at 2 (¶ 2). His declaration does
`not provide any of the necessary
`foundation to establish that these
`opinions are “rationally based on [his]
`perception.” FRE 701(a). Although
`Mr. Robinson asserts that he has “been
`trained on the use of” the accused
`products, and has “watched surgeons
`performing live surgeries using”
`accused implants, he provides no
`information about how much training
`he has received, who provided the
`training, what the training entailed,
`etc. See Doc. No. 306-17 at 2 (¶ 3). He
`also does not say how many surgeries
`he has observed, what he observed
`during these surgeries, who performed
`the surgeries, etc.
`
`Furthermore, on their face, these
`opinions clearly are “based on
`scientific, technical, or other
`specialized knowledge within the
`scope of Rule 702.” FRE 701(c).
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 12 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30411 Page 13 of
`15
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`NuVasive’s Objections
`
`Alphatec has not disclosed Mr.
`Robinson as an expert witness under
`Federal Rule of Civil Procedure
`26(a)(2)(C). So even if Mr. Robinson
`were qualified to offer these opinions,
`the opinions should be excluded as not
`properly disclosed. Fed. R. Civ. P.
`37(c)(1). Alphatec has retained Dr.
`Sachs, a spine surgeon, as its technical
`expert. If Alphatec wished to put
`forward these opinions, it needed to do
`so through Dr. Sachs.
`
`
`
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`
`¶ 15: “Part No. P100171-08-01 was
`Alphatec's prototype for the
`BattalionTM Lateral Spacer that is
`identical to the version it eventually
`commercialized. I have provided
`engineering drawings representative of
`Part No. P100171-08-01 below.”
`¶ 16: “I understand that NuVasive
`accuses the TiTec-coated implants of
`infringement. Alphatec created
`approximately 30 TiTec-coated
`non-lordotic implants having a 26 mm
`width, 65 mm length, and 20 mm
`height as prototypes for testing.
`Specifically, Alphatec used these
`implants for internal cleaning,
`packing, and sterilization validations.
`Implants of this configuration are not
`the same as BattalionTM Lateral Spacer
`and were not designed for use in a
`patient. The prototype was later
`abandoned. There were no production
`work orders for the TiTec-coated
`implant, and it was never sold.”
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 13 -
`
`18-cv-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30412 Page 14 of
`15
`
`Statement in
`Robinson Declaration
`(Doc. No. 306-17)
`¶ 17: “I declare under penalty of
`perjury under the laws of the State of
`California that the foregoing is true
`and correct.”
`
`
`
`NuVasive’s Objections
`
`Dated: February 26, 2021 WILSON SONSINI GOODRICH & ROSATI, P.C.
`
`By:
`Paul D. Tripodi II (SBN162380)
`Wendy L. Devine (SBN 246337)
`Natalie J. Morgan (SBN 211143)
`
`HILGERS GRABEN PLLC
`Michael T. Hilgers, pro hac vice
`
`Attorneys for Plaintiff NuVasive, Inc.
`
`
`
`
`
`NUVASIVE’S OBJECTIONS TO ROBINSON
`DECL. ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`- 14 -
`
`18-cv-00347-CAB-MDD
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-17 Filed 02/26/21 PageID.30413 Page 15 of
`15
`
`
`
`
`CERTIFICATE OF SERVICE
`The undersigned certifies that a true and correct copy of the foregoing
`document has been served on this date to all current and/or opposing counsel of
`record, if any to date, who are deemed to have consented to electronic service via
`the Court’s CM/ECF system per Civ.L.R. 5.4(d). Any other counsel of record will
`be served by electronic mail, facsimile and/or overnight delivery.
`I declare under penalty of perjury under the laws of the United States of
`America that the above is true and correct. Executed this 26th day of February
`2021 at San Diego, California.
`
`
`
`
`
`
`By: / s/ Arlene Apodaca
`ARLENE APODACA
`
`
`
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`CERTIFICATE OF SERVICE
`
`
`- 1 -
`
`18-cv-00347-CAB-MDD
`
`