Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30414 Page 1 of
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`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 MIKE
`)
`ALEALI 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.
`
`
`Plaintiff NuVasive, Inc. (“NuVasive”) hereby objects to the “Declaration of
`
`Mike Aleali in Support of Defendants’ Opposition to NuVasive, Inc.’s Motion for
`Partial Summary Judgment (Implant Patents). Doc. No. 306-16.
`
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-1-
`
`18-cv-00347-CAB-MDD
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`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`¶ 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”)
`as a Product Manager since May
`2018. My role is to manage the
`downstream and upstream
`marketing of Alphatec’s lateral and
`anterior portfolio, including
`Alphatec’s Battalion™ Lateral
`Spacer and Transcend™ LIF PEEK
`Spacer. I also work closely with
`Alphatec’s engineering team and
`consulting design surgeons to
`develop spinal surgery instruments
`and implants.”
`¶ 3: “On October 30, 2020, I
`testified on behalf of Alphatec
`about the implant patents asserted
`in this matter. During that
`deposition, I testified about the
`structure and function of the anti-
`migration chevron tooth pattern on
`Alphatec’s Battalion TM Lateral
`Spacer and TranscendTM LIF PEEK
`Spacer. The contents of this
`declaration are consistent with my
`sworn testimony.”
`¶ 4: “With respect to the
`BattalionTM Lateral Spacer, when
`the implant is positioned within the
`interbody space, it sits on the
`apophyseal ring, which is the
`hardest bone on the perimeter of the
`vertebral body. The portion of the
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`SPECIFIC EVIDENTIARY OBJECTIONS TO ALEALI DECLARATION
`
`
`NuVasive’s Objections
`
`
`
`
`
`
`
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`Mr. Aleali’s testimony regarding
`placement and positioning of the accused
`implants within the intervertebral space
`during and after surgery, and whether the
`implants’ anti-migration elements contact
`18-cv-00347-CAB-MDD
`-2-
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30416 Page 3 of
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`Statement in Aleali Declaration
`(Doc. No. 306-16)
`BattalionTM Lateral Spacer that
`contacts the apophyseal ring when
`the implant is positioned within the
`interbody space is the smooth
`portion of PEEK at the ends of the
`implant and does not include any
`anti-migration elements. The
`chevron tooth pattern on the
`BattalionTM Lateral Spacer does not
`reach the leading and trailing ends
`of the implant that contact the
`apophyseal ring.”
`
`¶ 5: “When the Battalion™ Lateral
`Spacer is positioned within the
`interbody space, the chevron tooth
`pattern does not touch the
`vertebra.”
`
`NuVasive’s Objections
`
`the vertebrae when positioned in that
`space, is impermissible opinion testimony
`by a lay witness.
`
`Mr. Aleali is not a surgeon or other
`qualified expert – he is a “Product
`Manager” in charge of marketing. Doc.
`No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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) (“The
`general rule in the Ninth Circuit is that
`a party cannot create an issue of fact
`by an affidavit contradicting his prior
`deposition testimony.”)].
`
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-3-
`
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30417 Page 4 of
`21
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`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`Mr. Aleali’s declaration directly
`contradicts his prior sworn deposition
`testimony.
`
`Additionally, Mr. Aleali 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. 303-7 at 9 (Aleali 10/30/20
`Tr.) at 90:2-14:
`“Q. Is that the point of the anti-migration
`teeth, to prevent the cage from sliding?
`A. Yes. [MS. RAGHAVAN: Objection to
`form.]
`Q. How exactly do the anti-migration teeth
`prevent the implant from sliding in the disc
`space?
`A. So ideally, it makes contact on the very
`ring of the end plate over there. And that
`essentially more or less -- friction keeps
`the cage from migrating.”;
`
`id. at 10 (91:20-25):
`“Q. Why is Alphatec highlighting this anti-
`migration chevron tooth pattern as a
`feature in the implant guide that is Exhibit
`5?
`A. I mean, you just need to show you have
`something that indicates it is not a smooth
`piece of PEEK that could slide around.”
`
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-4-
`
`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30418 Page 5 of
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`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`Ex. 30 (Aleali 10/30/20 Tr.) at 126:8-24:
`“Q. But, again, the intention is for the
`implants to touch the bone so that the anti-
`migration chevrons we were talking about
`can actually act to prevent migration,
`right?
`[MS. RAGHAVAN: Objection; asked and
`answered.]
`THE WITNESS: When you look at bone
`models and everything, you see these
`beautiful, perfect, completely flat end
`plates. That is just really not, in fact, the
`case. Everyone's anatomy is different, as I
`said. So with the implant, the goal is, we
`want our contacts to be on the outside, on
`the apophyseal ring. But if someone's
`anatomy is--you know, they have got these
`crazy convex end plates, then it is going to
`touch the middle of the center end plate
`area.”
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion testimony
`by a lay witness. Mr. Aleali is not a
`surgeon or other qualified expert – he is a
`“Product Manager” in charge of
`marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`18-cv-00347-CAB-MDD
`-5-
`
`¶ 6: “First, the goal of any spinal
`fusion implant is to achieve bone
`growth and fusion. To that end,
`the top, bottom, and inside
`apertures of the Battalion™ Lateral
`Spacer are packed with bone
`growth material, such that the
`implant is covered with the
`patient’s own bone, allograft, or
`other graft material. Alphatec’s
`goal is for the bone growth
`material, not the inert PEEK
`material of the implant, to contact
`the adjacent vertebrae. Having the
`chevron tooth pattern contact the
`adjacent vertebrae while the
`Battalion™ Lateral Spacer is
`positioned in the interbody space
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
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`Statement in Aleali Declaration
`(Doc. No. 306-16)
`would impede bone growth and
`fusion.”
`
`¶ 7: “Second, unlike many of
`Alphatec’s competitors’ implants,
`the Battalion™ Lateral Spacer is
`completely flat. It does not have a
`convexity that corresponds to the
`concavity of the adjacent
`vertebral endplates, which are
`dome shaped. Alphatec
`purposefully chose a flat design for
`its implant to reduce the risk of
`subsidence, which is the risk of the
`implant sinking or settling into the
`bone. Alphatec’s flat implant is
`also easier and safer to insert into
`the patient because a convex
`implant would rub against the
`bone as it is being inserted. Also,
`the chevron tooth pattern on the
`Battalion™ Lateral Spacer is cut
`below and into the flat surfaces of
`the implant.”
`
`NuVasive’s Objections
`
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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.
`
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion testimony
`by a lay witness. Mr. Aleali is not a
`surgeon or other qualified expert – he is a
`“Product Manager” in charge of
`marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-6-
`
`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30420 Page 7 of
`21
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`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`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. Aleali’s statement that
`vertebral endplates are “concave[e]” and
`“dome shaped” directly contradicts his
`prior sworn deposition testimony, in which
`he acknowledged that the shape of the
`vertebral endplates vary widely across
`patients and that some patients’ endplates
`are actually convex, not concave.
`
`Mr. Aleali 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 Ex. 30 (Aleali 10/30/20 Tr.) at 125:24-
`126:24:
`“Q. Do surgeons ever place the Battalion
`lateral or Transcend lateral implants in
`such a manner in which they would not
`contact the vertebral bone in the disc
`space?
`A. I mean, it has a lot to do -- I mean,
`everyone’s end plates are different,
`convex, concave. They’re different
`shapes. Everyone's anatomy differs, so it's
`really almost impossible to say that.
`18-cv-00347-CAB-MDD
`-7-
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30421 Page 8 of
`21
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`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`Q. But, again, the intention is for the
`implants to touch the bone so that the anti-
`migration chevrons we were talking about
`can actually act to prevent migration,
`right?
`[MS. RAGHAVAN: Objection; asked and
`answered.]
`THE WITNESS: When you look at bone
`models and everything, you see these
`beautiful, perfect, completely flat end
`plates. That is just really not, in fact, the
`case. Everyone’s anatomy is different, as I
`said. So with the implant, the goal is, we
`want our contacts to be on the outside, on
`the apophyseal ring. But if someone's
`anatomy is--you know, they have got
`these crazy convex end plates, then it is
`going to touch the middle of the center
`end plate area.”.
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`This testimony presents impermissible
`opinion testimony by a lay witness. Mr.
`Aleali is not a surgeon or other qualified
`expert – he is a “Product Manager” in
`charge of marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`18-cv-00347-CAB-MDD
`-8-
`
`¶ 8: “Third, the bone in the middle
`of the vertebral body, which sits
`over the chevron tooth pattern on
`the Battalion™ Lateral Spacer
`when the implant is positioned in
`the interbody space, is cancellous
`bone. This area of the vertebral
`endplate is softer and offers less
`support for keeping the Battalion™
`Lateral Spacer in position.
`Attempting to stop the Battalion™
`Lateral Spacer from migrating by
`creating contact between the
`chevron tooth pattern and the
`cancellous bone would be
`ineffective when the implant is
`positioned in the interbody space.”
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30422 Page 9 of
`21
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`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`¶ 9: “The chevron tooth pattern on
`the Battalion™ Lateral Spacer does
`not contact the bone when the
`implant is positioned within the
`interbody space. When the implant
`starts migrating, the chevron tooth
`pattern catches the apophyseal ring
`on the perimeter of the outside of
`the vertebral body. By specific
`design, this does not occur when
`the implant is positioned within the
`interbody space, but only when the
`implant is migrating out of
`position.”
`
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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.
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`This testimony presents impermissible
`opinion testimony by a lay witness. Mr.
`Aleali is not a surgeon or other qualified
`expert – he is a “Product Manager” in
`charge of marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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.
`
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-9-
`
`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30423 Page 10 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`Violation of sham affidavit doctrine
`[Kennedy v. Allied Mut. Ins. Co., 952
`F.2d 262, 266 (9th Cir. 1991)].
`
`Mr. Aleali’s declaration directly
`contradicts his prior sworn deposition
`testimony.
`
`Mr. Aleali 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. 303-7 at 9 (Aleali 10/30/20
`Tr.) at 90:2-14:
`“Q. Is that the point of the anti-migration
`teeth, to prevent the cage from sliding?
`A. Yes. [MS. RAGHAVAN: Objection to
`form.]
`Q. How exactly do the anti-migration teeth
`prevent the implant from sliding in the disc
`space?
`A. So ideally, it makes contact on the very
`ring of the end plate over there. And that
`essentially more or less -- friction keeps
`the cage from migrating.”
`
`id. at 10 (91:20-25):
`“Q. Why is Alphatec highlighting this anti-
`migration chevron tooth pattern as a
`feature in the implant guide that is Exhibit
`5?
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-10-
`
`18-cv-00347-CAB-MDD
`
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30424 Page 11 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`A.I mean, you just need to show you have
`something that indicates it is not a smooth
`piece of PEEK that could slide around.”
`
`Ex. 30 (Aleali 10/30/20 Tr.) at 126:8-24:
`“Q. But, again, the intention is for the
`implants to touch the bone so that the anti-
`migration chevrons we were talking about
`can actually act to prevent migration,
`right? [MS. RAGHAVAN: Objection;
`asked and answered.]
`THE WITNESS: When you look at bone
`models and everything, you see these
`beautiful, perfect, completely flat end
`plates. That is just really not, in fact, the
`case. Everyone’s anatomy is different, as I
`said. So with the implant, the goal is, we
`want our contacts to be on the outside, on
`the apophyseal ring. But if someone's
`anatomy is--you know, they have got these
`crazy convex end plates, then it is going to
`touch the middle of the center end plate
`area.”.
`
`
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion testimony
`by a lay witness. Mr. Aleali is not a
`surgeon or other qualified expert – he is a
`“Product Manager” in charge of
`18-cv-00347-CAB-MDD
`-11-
`
`¶ 10: “As I testified at my
`deposition, the chevron tooth
`pattern on the Transcend™ LIF
`PEEK Spacer are structured in the
`same way as the chevron tooth
`pattern on the Battalion™ Lateral
`Spacer. They also have the same
`function.”
`¶ 11: “I understand that NuVasive
`has stated that “Alphatec’s implant
`guides show that the accused anti-
`migration elements contact the first
`and second vertebrae,” referring to
`the Implant Guides for the
`Battalion™ Lateral Spacer and
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30425 Page 12 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`Transcend™ LIF PEEK Spacer.
`Doc. No. 303-1 at 20. The Implant
`Guides do not and cannot show that
`the chevron tooth pattern on either
`implant contacts the vertebrae when
`the implant is positioned within the
`interbody space. The images in the
`Implant Guides are artistic
`renderings of what the implants
`would look like in two X-ray
`views, anterior to posterior (A-P)
`and lateral. Because vertebral
`surfaces are not completely flat,
`but instead have varying degrees
`of dome-shaped concavity, the
`edges of the vertebral bodies
`above and below the implant will
`block from view in an X-ray (and
`in the artistic renderings) the
`middle of the dome of the
`vertebral body that sits above
`and below the chevron tooth
`pattern in the Battalion™ Lateral
`Spacer and Transcend™ LIF
`PEEK Spacer when the implants
`are positioned in the interbody
`space. For that reason, the
`Alphatec Implant Guides are not
`intended to and could not show the
`gap between the chevron tooth
`pattern on the implants and the
`vertebrae even though for the
`reasons I discussed above, such a
`gap exists.”
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
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`
`NuVasive’s Objections
`
`marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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, Mr. Aleali’s statement
`that vertebral endplates have “varying
`degrees of dome-shaped concavity”
`directly contradicts his prior sworn
`deposition testimony, in which he
`acknowledged that the shape of the
`verterbral endplates vary widely across
`patients and that some patients’ endplates
`are actually convex, not concave.
`
`Mr. Aleali does not claim that his prior
`sworn testimony was the result of
`18-cv-00347-CAB-MDD
`-12-
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30426 Page 13 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`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 Ex. 30 (Aleali 10/30/20 Tr.) at
`125:24-126:24:
`“Q. Do surgeons ever place the Battalion
`lateral or Transcend lateral implants in
`such a manner in which they would not
`contact the vertebral bone in the disc
`space?
`A. I mean, it has a lot to do -- I mean,
`everyone’s end plates are different,
`convex, concave. They're different
`shapes. Everyone's anatomy differs, so
`it's really almost impossible to say that.
`Q. But, again, the intention is for the
`implants to touch the bone so that the
`anti-migration chevrons we were talking
`about can actually act to prevent
`migration, right?
`[MS. RAGHAVAN: Objection; asked
`and answered.]
`THE WITNESS: When you look at bone
`models and everything, you see these
`beautiful, perfect, completely flat end
`plates. That is just really not, in fact, the
`case. Everyone’s anatomy is different, as
`I said. So with the implant, the goal is, we
`want our contacts to be on the outside, on
`the apophyseal ring. But if someone's
`anatomy is--you know, they have got
`these crazy convex end plates, then it is
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`-13-
`
`18-cv-00347-CAB-MDD
`
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30427 Page 14 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`¶ 12: “I also understand that
`NuVasive has stated that
`“Alphatec’s documentation shows
`‘[t]he implant system shall have
`unique geometric teeth on the
`superior and inferior surfaces’
`whose purpose is ‘to resist
`migration post-implantation’ [and
`that] this documentation makes
`clear, the upper and lower surfaces
`would not be able to ‘resist
`migration’ of the implant unless
`these were in contact with the
`vertebrae.” Doc. No. 303-1 at 21.
`This is wrong for the reasons I
`discussed above. To function, the
`chevron tooth pattern on the
`Battalion™ Lateral Spacer and
`Transcend™ LIF PEEK Spacer
`do not need to be and are not in
`contact with the vertebrae when
`the implants are positioned
`within the interbody space.
`Instead, to optimize the function of
`the implants when they are
`positioned in the interbody space,
`the implants are designed to be
`covered with the patient’s own
`bone, allograft, or other graft
`material to facilitate fusion and the
`only contact between the
`Battalion™ Lateral Spacer and
`Transcend™ LIF PEEK Spacer
`when they are positioned in the
`interbody space (even if the
`implants are not covered with
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
`going to touch the middle of the center
`end plate area.”
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion testimony
`by a lay witness. Mr. Aleali is not a
`surgeon or other qualified expert – he is a
`“Product Manager” in charge of
`marketing. Doc. No. 306-16 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).
`
`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. Aleali as
`an expert witness under Federal Rule of
`Civil Procedure 26(a)(2)(C). So even if
`Mr. Aleali 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)].
`
`Mr. Aleali’s declaration directly
`contradicts his prior sworn deposition
`testimony.
`-14-
`
`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30428 Page 15 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`graft material) occurs between
`the smooth PEEK leading and
`trailing ends of the implants and
`the apophyseal ring of adjacent
`vertebrae. The chevron tooth
`pattern catches the apophyseal
`ring only when the implant has
`migrated and is no longer
`positioned in the interbody
`space.”
`
`NUVASIVE’S OBJECTIONS TO ALEALI DECL.
`ISO DEFS’ OPP’N TO MOT. FOR PARTIAL
`
`SUMMARY JUDGMENT
`
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`
`NuVasive’s Objections
`
`
`Mr. Aleali 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. 303-7 at 9 (Aleali 10/30/20
`Tr.) at 90:2-14:
`“Q. Is that the point of the anti-migration
`teeth, to prevent the cage from sliding?
`A. Yes. [MS. RAGHAVAN: Objection to
`form.]
`Q. How exactly do the anti-migration teeth
`prevent the implant from sliding in the disc
`space?
`A. So ideally, it makes contact on the very
`ring of the end plate over there. And that
`essentially more or less -- friction keeps
`the cage from migrating.”
`
`id. at 10 (91:20-25):
`“Q. Why is Alphatec highlighting this anti-
`migration chevron tooth pattern as a
`feature in the implant guide that is Exhibit
`5?
`A.I mean, you just need to show you have
`something that indicates it is not a smooth
`piece of PEEK that could slide around.”;
`
`Ex. 30 (Aleali 10/30/20 Tr.) at 126:8-24:
`“Q. But, again, the intention is for the
`implants to touch the bone so that the anti-
`migration chevrons we were talking about
`18-cv-00347-CAB-MDD
`-15-
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 311-18 Filed 02/26/21 PageID.30429 Page 16 of
`21
`
`
`
`
`Statement in Aleali Declaration
`(Doc. No. 306-16)
`
`NuVasive’s Objections
`
`can actually act to prevent migration,
`right? [MS. RAGHAVAN: Objection;
`asked and answered.]
`THE WITNESS: When you look at bone
`models and everything, you see these
`beautiful, perfect, completely flat end
`plates. That is just really not, in fact, the
`case. Everyone's anatomy is different, as I
`said. So with the implant, the goal is, we
`want our contacts to be on the outside, on
`the apophyseal ring. But if someone's
`anatomy is--you know, they have got these
`crazy convex end plates, then it is going to
`touch the middle of the center end plate
`area.”.
`
`Impermissible opinion testimony by lay
`witness [FRE 701, 702].
`The bolded portions of this testimony
`present impermissible opinion te