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`EXHIBIT 13
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`DECLARATION OF TRENT D. TANNER
`IN SUPPORT OF
`NUVASIVE'S OPPOSITION TO
`DEFENDANTS' MOTIONS IN LIMINE NOS. 1-10
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`EXHIBIT 13
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`DECLARATION OF TRENT D. TANNER
`IN SUPPORT OF
`NUVASIVE'S OPPOSITION TO
`DEFENDANTS' MOTIONS IN LIMINE NOS. 1-10
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`ARBITRATION, VOLUME 1ARBITRATION, VOLUME 1
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`September 28, 2020September 28, 2020
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`· · · · · AMERICAN ARBITRATION ASSOCIATION
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`· · · · · · · · · · · · · · · · · · ·)
`· · ·
`NUVASIVE, INC.,· · · · · · · · · · · )
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`· · · · · · · · · · · · · · · · · · ·)
`· · ·
`· · · · · · · · · · · · · · · · · · ·)Case No. 01-19-0001
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`· · · · · · · ·Claimant,· · · · · · ·)3591
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`· · · · · · · · · · · · · · · · · · ·)
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`· · · · · vs.· · · · · · · · · · · · )
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`RIVAL MEDICAL, LLC,· · · · · · · · · )
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`· · · · · · · ·Respondent.· · · · · ·)
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`· · · · · · · · · ZOOM ARBITRATION
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`· · · · · · · · · · Volume 1 of 4
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`· · · · · · · · ·Pages 1 through 232
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`· · · · MONDAY, SEPTEMBER 28, 2020, 9:13 a.m.
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`· · · · · · · · SAN DIEGO, CALIFORNIA
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`· · · Reported by Armando Pineda, CSR No. 12670
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`· · · · · · · · · ·Job No. 131801
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`Case 3:18-cv-00347-CAB-MDD Document 350-14 Filed 11/06/21 PageID.32482 Page 3 of 9
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`hope -- the phone number or whatever you need to
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`contact our technician and make sure you do.
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`· · · · · Clay, does everybody have -- or have you
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`presented it.· I know we have it.
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`· · · · · EXHIBIT TECHNICIAN:· Yes, I sent it in the
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`email, but I'm putting in the chat right now for
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`everyone.
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`· · · · · MR. CARDWELL:· Thank you.
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`· · · · · THE ARBITRATOR:· We'll see everybody back
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`at 1:00.
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`· · · · · (Lunch recess taken.)
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`· · · · · THE ARBITRATOR:· Okay.· We have our first
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`witness on the stand and in front of all us.
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`· · · · · Mr. McClintock, I'm Judge Nugent.· I'm the
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`chair of this panel, and I would appreciate it if
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`you raise your right hand.
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`· · · · · · · ·PAUL DAVID MCCLINTOCK,
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`having been first duly sworn, testified as follows:
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`· · · · · THE ARBITRATOR:· Thank you.· All right.
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`Mr. Cardwell, proceed, please.
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`· · · · · MR. CARDWELL:· Thank you, your Honor.
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`/ / /
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`/ / /
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`Case 3:18-cv-00347-CAB-MDD Document 350-14 Filed 11/06/21 PageID.32483 Page 4 of 9
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`September 28, 2020September 28, 2020
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`· · · · · · · · ·DIRECT EXAMINATION
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`BY MR. CARDWELL:
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`· · ·Q.· ·Would you state your name for the record,
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`please.
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`· · ·A.· ·Sure.· Paul David McClintock.
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`· · ·Q.· ·All right Mr. McClintock, you're currently
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`employed by NuVasive, correct?
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`· · ·A.· ·Yes, I am.
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`· · ·Q.· ·What is your current position?
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`· · ·A.· ·I am a general manager for our western
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`U.S. business.
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`· · ·Q.· ·And how long have you been in the spine
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`business?· Let me ask you two questions at once.
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`· · · · · How long have you been in the spine
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`business?· How long have you been with NuVasive?
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`· · ·A.· ·I've been in the spine business since
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`November of 2000.· So coming up on 20 years, and
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`I've been with NuVasive -- affiliated with NuVasive
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`since March 1st, 2010.
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`· · · · · THE REPORTER:· I'm sorry, Mr. Cardwell.
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`This is the court reporter.· I'm having a hard time
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`hearing Mr. McClintock very well.· If he could get
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`close to a mike.· Thank you.
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`· · · · · THE ARBITRATOR:· Thanks.· I'm in the same
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`boat.· I appreciate it.
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`ARBITRATION, VOLUME 1ARBITRATION, VOLUME 1
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`September 28, 2020September 28, 2020
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`· · · · · THE WITNESS:· I will speak louder.
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`· · · · · THE ARBITRATOR:· That will be good.
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`BY MR. CARDWELL:
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`· · ·Q.· ·Are sales rep duties fairly uniformed
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`throughout the spine industry?
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`· · ·A.· ·I would say yes.
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`· · ·Q.· ·Would you just tell the panel what kind of
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`a -- what a sales rep does?· What their
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`responsibilities are?
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`· · ·A.· ·Sure.· Sure.· In the spine business --
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`I'll talk about it this way.
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`· · · · · There's an operational component -- a
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`burden to the job.· We try to bring in options for
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`surgeons that are somewhat customized and very vast.
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`So there's a big operational component.· There's the
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`whole dynamic of driving the business forward
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`through clinical adoptions.
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`· · · · · So there's sales effort required to
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`convert customers to our way of thinking and then
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`all of the dynamics dealing with the hospital and
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`then first and foremost there's the requirement to
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`have clinical expertise and hopefully become an
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`asset to the surgeon and his or her team.
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`· · ·Q.· ·Are educating customers about the benefits
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`of a particular product part of the sales process?
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`ARBITRATION, VOLUME 1ARBITRATION, VOLUME 1
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`September 28, 2020September 28, 2020
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`· · ·A.· ·Yes.
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`· · ·Q.· ·And what about training those customers
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`about how to utilize the product?· Is that part of
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`the sales process?
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`· · ·A.· ·It definitely is.
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`· · ·Q.· ·What about obtaining approval for those
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`products to be used in hospitals?
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`· · ·A.· ·Definitely, yes.
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`· · ·Q.· ·And in your relationship with NuVasive if
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`you would just describe your history with NuVasive
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`to the panel, please?
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`· · ·A.· ·Sure.· So in early 2010 I have been a
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`distributor selling multiple company's products for
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`almost two years.· I was approached by an executive
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`with NuVasive about partnering exclusively with
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`NuVasive, and I executed that agreement and became a
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`distributor for NuVasive in March of 2010 and I
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`stayed in that role until the end of 2015.
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`· · · · · At that point I was approached by another
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`executive with the company about stepping away from
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`that role and joining the leadership team
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`officially, which I did.· So in early 2016 I ran our
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`west coast business from a sales standpoint and then
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`in late 2017 -- August 1st of 2017 I took over and
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`ran sales for the domestic business for the United
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`ARBITRATION, VOLUME 1ARBITRATION, VOLUME 1
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`September 28, 2020September 28, 2020
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`States, and I did that to the end of 2019 when I
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`took this role as general manager, which is sales
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`responsibility and a pretty heavy operational
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`responsibility as well.
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`· · ·Q.· ·How much revenue is under your purview?
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`· · ·A.· ·Currently just $250 million per year.
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`· · ·Q.· ·Now, I want to go back to your time as a
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`distributor for NuVasive, and the distributor for
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`other companies.
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`· · · · · Did you ever lose any big customers?
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`· · ·A.· ·Unfortunately, yes.
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`· · ·Q.· ·When you were a distributor and you had
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`contractual obligation to represent a company's
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`products, what did you do when you lost a customer?
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`· · · · · MR. BUSCH:· Your Honor, that's a vague and
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`ambiguous question about the contracts that involve
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`other distributors or other designers of spine
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`products.· I'm not sure we can even begin to answer
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`that.
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`· · · · · THE ARBITRATOR:· I didn't hear the end of
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`the question, Mr. Cardwell.· Reframe it and try to
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`address Mr. Busch's concerns.
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`· · · · · MR. CARDWELL:· Sure.
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`BY MR. CARDWELL:
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`· · ·Q.· ·When you were a distributor -- let's focus
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`on your time with NuVasive.
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`· · · · · Did you lose any significant customers?
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`· · ·A.· ·Unfortunately, yes.
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`· · ·Q.· ·And what -- as a distributor who had an
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`obligation to sell NuVasive's products, what did
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`your distributorship do when you lost those
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`customers?
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`· · ·A.· ·Our mindset is we fought to get the
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`business back as best we could.· Definitely to
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`different degrees, different situations, but we
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`fought hard.· We took a lot of pride in what we sold
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`and still do.· So we fought hard.
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`· · ·Q.· ·Did you ever quit your job and go work for
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`the company that the customer started using?
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`· · ·A.· ·I did not.
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`· · ·Q.· ·I want to fast-forward to March or April
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`of 2019.
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`· · · · · What was your job at NuVasive at that
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`time?
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`· · ·A.· ·I was the head of U.S. sales or U.S.
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`commercial business.
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`· · ·Q.· ·What did that job entail?
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`· · ·A.· ·So the entire business in the U.S. rolled
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`up to me from a sale's responsibility.· I had
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`business partners to cover all of the other aspects
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`of the job.· The bulk of it was to run the sales
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`business.
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`· · ·Q.· ·Can I ask you a few questions just about
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`the spine industry and NuVasive in general.· The
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`spine of industry -- this is a competitive industry?
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`· · ·A.· ·It's very competitive, yes.
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`· · ·Q.· ·Does NuVasive in this competitive industry
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`share confidential information with its sales
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`professionals?
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`· · ·A.· ·We do.
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`· · ·Q.· ·What type of confidential information does
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`NuVasive share with its sale professionals?
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`· · ·A.· ·Obviously a lot of product based
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`information, design rationale product based
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`information.· We share and build with them pricing,
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`which is highly variable across the United States.
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`I would say those are the two main things.
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`· · ·Q.· ·What about knowledge of the custom
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`instruments that a surgeon might use?
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`· · ·A.· ·We do we make a lot of customs, and it's
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`actually a pretty small proportion of surgeons that
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`utilize them, but they -- our people are part of the
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`design process.· They have to be by default because
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`of the relationship with the surgeons.· So the
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`answer is yes.
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