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`EXHIBIT 1
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`EXHIBIT 1
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`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34550 Page 2 of 29
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`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34551 Page 3 of 29
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`·1· · · · · · · · ·UNITED STATES DISTRICT COURT
`· · · · · · · · · SOUTHERN DISTRICT OF CALIFORNIA
`·2· · · · · · · · · · · ·SAN DIEGO DIVISION
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`·3
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`·4· ·NUVASIVE, INC., a Delaware· · · · )
`· · ·corporation,· · · · · · · · · · · )
`·5· · · · · · · · · · · · · · · · · · ·)
`· · · · · · · · ·Plaintiff,· · · · · · )
`·6· · · · · · · · · · · · · · · · · · ·)
`· · · · · vs.· · · · · · · · · · · · · )· Case No.
`·7· · · · · · · · · · · · · · · · · · ·)· 3:18-CV-00347-
`· · ·ALPHATEC HOLDINGS, INC., a· · · · )· CAB-MDD
`·8· ·Delaware corporation and· · · · · )
`· · ·ALPHATEC SPINE, INC., a· · · · · ·)
`·9· ·California corporation,· · · · · ·)
`· · · · · · · · · · · · · · · · · · · ·)
`10· · · · · · · ·Defendants.· · · · · ·)
`· · ·__________________________________)
`11
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`12
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`13· · · · · ·HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY
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`14· · · · · · · · · ·VIDEOTAPED DEPOSITION OF
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`15· · · · · · · · · · · · ·NUVASIVE, INC.
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`16· · · · · · · · · · · · ·GREGORY LUCIER
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`17
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`18· · · · · · · · · · · · January 17, 2020
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`19· · · · · · · · · · · · · 9:06 a.m.
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`20
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`21· · · · · · · 3580 Carmel Mountain Road, Suite 300
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`22· · · · · · · · · · ·San Diego, California
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`23
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`24· · · · · · · · · ·Lorie Rhyne, CSR No. 12905
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`25
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`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34552 Page 4 of 29
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`·1· · · · · · · · APPEARANCES OF COUNSEL
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`Page 2
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`·2
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`·3· ·On Behalf of the Plaintiff:
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`·4· · · · PAUL D. TRIPODI II, ESQ.
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`·5· · · · Wilson Sonsini Goodrich & Rosati P.C.
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`·6· · · · 633 West Fifth Street, Suite 1550
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`·7· · · · Los Angeles, California 90071
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`·8· · · · (323) 210-2900
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`·9· · · · ptripodi@wsgr.com
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`10
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`11· ·On Behalf of the Defendants:
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`12· · · · NIMALKA R. WICKRAMASEKERA, ESQ.
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`13· · · · Winston & Strawn LLP
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`14· · · · 333 South Grand Avenue, Suite 3800
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`15· · · · Los Angeles, California 90071-1543
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`16· · · · (213) 615-1700
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`17· · · · nwickramasekera@winston.com
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`18
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`19· ·Videographer:· GIANNI ORTIZ
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`20· ·Also Present:· MICHAEL DOYLE, in-house counsel,
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`21· · · · · · · · · NuVasive
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`22· · · · · · · · · CRAIG HUNSAKER, Executive Vice
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`23· · · · · · · · · President and General Counsel
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`24· · · · · · · · · at Alphatec Spine
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`25· · · · · · · · · TYSON MARSHALL, Associate General
`· · · · · · · · · · Counsel, Alphatec Spine
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`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34553 Page 5 of 29
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`·1· · · · · · · · · · · INDEX OF EXAMINATION
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`·2· ·WITNESS:· GREGORY LUCIER
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`Page 3
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`·3· ·EXAMINATION· · · · · · · · · · · · · · · · · PAGE
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`·4· ·By Ms. Wickramasekera· · · · · · · · · · · · · 5
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`·5
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`·6· · · · · · · · · · · ·INDEX TO EXHIBITS
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`·7· ·DEFENDANTS· DESCRIPTION· · · · · · · · · · · PAGE
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`·8· ·Exhibit 1· ·E-mail dated 9/8/2016,
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`·9· · · · · · · ·NUVA_ATEC0318999· · · · · · · · ·145
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`10· ·Exhibit 2· ·Letter dated September 8, 2016,
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`11· · · · · · · ·NUVA_ATEC0319003 to
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`12· · · · · · · ·NUVA_ATEC0319004· · · · · · · · ·149
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`13· ·Exhibit 3· ·E-mail dated 9/7/2016, NUVA_ATEC0332186
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`14· · · · · · · ·to NUVA_ATEC0332187· · · · · · · 156
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`15· ·Exhibit 4· ·Project Titan, Management Presentation
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`16· · · · · · · ·for NuVasive, NUVA_ATEC0319062· ·205
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`17· ·Exhibit 5· ·Management Presentation, Alphatec Spine,
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`18· · · · · · · ·A Leading Provider of Advanced
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`19· · · · · · · ·Spinal Fusion Platforms and Systems,
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`20· · · · · · · ·NUVA_LLIF000854436 to
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`21· · · · · · · ·NUVA_LLIF000854524· · · · · · · ·205
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`22· ·Exhibit 6· ·E-mail dated 10/1/2017,
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`23· · · · · · · ·NUVA_ATEC0318549· · · · · · · · ·245
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`24· ·Exhibit 7· ·E-mail dated 10/2/2017,
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`25· · · · · · · ·NUVA_ATEC0318492· · · · · · · · ·263
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`·1· · · · · ·VIDEOTAPED DEPOSITION OF GREGORY LUCIER
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`Page 4
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`·2· · · · · · · · · · · ·JANUARY 17, 2020
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`·3
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`·4· · · · · · · THE VIDEOGRAPHER:· Good morning.· This is
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`·5· ·the beginning of media number 1 in the deposition of
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`·6· ·Gregory Lucier in the matter of NuVasive, Inc. versus
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`·7· ·Alphatec Holding, Inc., et al.· This deposition is
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`·8· ·taking place at 3580 Carmel Mountain Road, Suite 300,
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`·9· ·San Diego, California 92130.
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`10· · · · · · · Today's date is January 17th, 2020.· The
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`11· ·time is approximately 9:06 a.m.· The court reporter
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`12· ·today is Lorie Rhyne.· I'm Gianni Ortiz, the
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`13· ·videographer, an employee of Litigation Services.
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`14· · · · · · · This deposition is being videotaped at all
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`15· ·times unless specified to go off the video record.
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`16· · · · · · · Would all present please identify
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`17· ·themselves, beginning with the witness?
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`18· · · · · · · THE WITNESS:· Gregory T. Lucier.
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`19· · · · · · · MR. TRIPODI:· Paul Tripodi of Wilson Sonsini
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`20· ·Goodrich & Rosati on behalf of NuVasive, Inc.· With me
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`21· ·today is Mike Doyle of NuVasive, Inc.
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`22· · · · · · · MS. WICKRAMASEKERA:· Nimalka Wickramasekera
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`23· ·from Winston & Strawn on behalf of the Alphatec
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`24· ·defendants.· And with me is Craig Hunsaker and
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`25· ·Tyson Marshall from Alphatec.
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`Page 42
`·1· ·activities happened before October 2017 within NuVasive
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`·2· ·regarding Alphatec's lateral products.
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`·3· · · · · · · THE WITNESS:· Can you be more specific of
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`·4· ·what you mean by "activities"?
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`·5· ·BY MS. WICKRAMASEKERA:
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`·6· · · · ·Q.· ·Were there any reports about potentially
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`·7· ·losing surgeons because Alphatec had a competing
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`·8· ·lateral product before October 1st, 2017?
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`·9· · · · · · · MR. TRIPODI:· Objection to form.
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`10· · · · · · · THE WITNESS:· I don't recall if those
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`11· ·reports would happen before 2017.
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`12· ·BY MS. WICKRAMASEKERA:
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`13· · · · ·Q.· ·Okay.· Do you know how many blades the
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`14· ·Alphatec retractor has?
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`15· · · · ·A.· ·I do.
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`16· · · · ·Q.· ·How many?
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`17· · · · ·A.· ·Three.
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`18· · · · ·Q.· ·Okay.· Can you tell me what else -- do you
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`19· ·know anything about the Alphatec retractor other than
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`20· ·that?
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`21· · · · ·A.· ·At a cursory level.
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`22· · · · ·Q.· ·Okay.· Can you tell me what you know about
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`23· ·it?
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`24· · · · ·A.· ·That it infringes on the NuVasive retractor.
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`25· · · · ·Q.· ·What's the basis for your statement?
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`Page 68
`·1· ·CEO given his shortfalls -- his shortcomings; am I
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`·2· ·right?
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`·3· · · · ·A.· ·As I said, he was a very viable candidate to
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`·4· ·become the CEO with further development in other areas
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`·5· ·where he did not have that experience.
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`·6· · · · ·Q.· ·Okay.· Why -- if he has these shortcomings,
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`·7· ·in your view, that need to be further developed to
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`·8· ·become a CEO, why is he a bigger threat at Alphatec?
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`·9· · · · · · · MR. TRIPODI:· Objection to form.
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`10· · · · · · · THE WITNESS:· Mr. Miles, as I said in my
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`11· ·other testimony, is a very good innovator in this
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`12· ·industry.· He has lots of surgeon relationships.· And
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`13· ·so those expert -- areas of expertise make him a very
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`14· ·good executive.· It is one of the reasons why we
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`15· ·thought he was a viable candidate to be the CEO.
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`16· ·BY MS. WICKRAMASEKERA:
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`17· · · · ·Q.· ·Do you think Mr. Miles was happy at NuVasive
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`18· ·before he left?
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`19· · · · · · · MR. TRIPODI:· Objection.· Form.
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`20· · · · · · · THE WITNESS:· You'd have to ask Mr. Miles.
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`21· ·BY MS. WICKRAMASEKERA:
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`22· · · · ·Q.· ·What was the nature of your relationship
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`23· ·before he left?
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`24· · · · ·A.· ·I was always very cordial with Mr. Miles. I
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`25· ·saw his abilities.· And as I said earlier, he was a
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`·1· ·Do you recall that?
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`·2· · · · ·A.· ·Repeat the question.
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`Page 96
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`·3· · · · ·Q.· ·You testified earlier that NuVasive
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`·4· ·considered purchasing Alphatec after October 1st, 2017.
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`·5· ·Do you recall that testimony?
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`·6· · · · ·A.· ·I do.
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`·7· · · · ·Q.· ·Okay.· Can you tell me when that occurred?
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`·8· · · · ·A.· ·When Mr. Miles departed for Alphatec the
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`·9· ·second time, we started to think about other things we
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`10· ·could do because of his presence at Alphatec being
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`11· ·something that warranted us to take Alphatec to a whole
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`12· ·new level of consideration.· One of those ideas was to
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`13· ·potentially acquire the company or some equity in the
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`14· ·company.
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`15· · · · ·Q.· ·Why was -- why was -- why would Mr. Miles'
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`16· ·presence at Alphatec be something that warranted you to
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`17· ·take a whole new -- that warranted you to reconsider
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`18· ·the purchase of Alphatec?
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`19· · · · ·A.· ·Mr. Miles was on the board of directors of
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`20· ·NuVasive, and he was privy to a lot of proprietary
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`21· ·information of our corporation, our future plans, all
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`22· ·of our technologies.· He intimately knew every surgeon
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`23· ·that NuVasive had and its relationship with those
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`24· ·individuals, and so him going to a competitor was
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`25· ·something that required us to take that very seriously.
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`Page 104
`·1· · · · ·Q.· ·Okay.· And what -- what would -- so in this
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`·2· ·case, we know that Pat's departure -- Mr. Miles'
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`·3· ·departure was what prompted you to want to crush
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`·4· ·Alphatec.· What prompted you to want to crush Globus?
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`·5· · · · ·A.· ·In that regard, it would probably have been
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`·6· ·in regard to their robot development, and we then
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`·7· ·launched our robot development.· We were hiring people.
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`·8· ·And so I may have said in that instance, Let's develop
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`·9· ·a robot that ultimately crushes the Globus robot.
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`10· · · · ·Q.· ·Did you talk about locking down surgeons in
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`11· ·that same communication regarding -- regarding Globus?
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`12· · · · ·A.· ·In that discussion I had with my members of
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`13· ·the management team, we wanted to make sure that in a
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`14· ·very compliant way that our surgeons knew about our
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`15· ·products, knew about our relationship and that we
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`16· ·wanted to make sure we solidified them.· And so the
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`17· ·language of "lock them down" was just merely doing it
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`18· ·in a compliant, professional way, that they stayed with
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`19· ·NuVasive.
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`20· · · · ·Q.· ·So you've written other e-mails about
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`21· ·locking down surgeons unrelated to Alphatec; is that
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`22· ·correct?
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`23· · · · ·A.· ·I can't recall if I've used that term in
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`24· ·other venues, but perhaps.
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`25· · · · ·Q.· ·Do you believe that your testimony right now
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`Page 107
`·1· ·room when we were acquiring Ellipse Technologies.· So
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`·2· ·that's an example of when we had a war room.
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`·3· · · · ·Q.· ·Do you have a Globus war room?
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`·4· · · · ·A.· ·I don't recall.
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`·5· · · · ·Q.· ·Stryker war room?
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`·6· · · · ·A.· ·I don't recall.
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`·7· · · · ·Q.· ·Do you still have an Alphatec war room?
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`·8· · · · ·A.· ·I don't know.· I haven't been part of the
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`·9· ·management team for 12, 14 months.
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`10· · · · ·Q.· ·How long -- so Mr. Miles resigned
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`11· ·October 1st, 2017; is that your recollection?
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`12· · · · ·A.· ·That's correct.
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`13· · · · ·Q.· ·And now -- and the morning after, so around
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`14· ·6:00 a.m., you send an e-mail to your -- your team,
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`15· ·saying, Let's start a war room for crushing Alphatec --
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`16· · · · · · · MR. TRIPODI:· Objection.· Form.
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`17· ·BY MS. WICKRAMASEKERA:
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`18· · · · ·Q.· ·-- correct?
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`19· · · · ·A.· ·And your question is?
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`20· · · · ·Q.· ·My question is, the morning after Mr. Miles
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`21· ·resigned, at around 6:00 a.m., you sent a message to
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`22· ·your team, saying, Let's start a war room devoted to
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`23· ·crushing Alphatec.· Am I correct?
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`24· · · · · · · MR. TRIPODI:· Objection.· Form.· Calls for
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`25· ·speculation.
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`Page 108
`·1· · · · · · · THE WITNESS:· What I meant was let's form a
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`·2· ·war room to make sure that we have the collection of
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`·3· ·all information to better understand what just happened
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`·4· ·with Pat going to Alphatec, what information might Pat
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`·5· ·have taken to Alphatec, what surgeons might he have
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`·6· ·been talking to prior to leaving NuVasive.
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`·7· · · · · · · We just wanted to understand the
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`·8· ·implications of that decision by him to go to Alphatec.
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`·9· ·And a war room was our place to collect all of our
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`10· ·people, our information and have solid conversations.
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`11· ·BY MS. WICKRAMASEKERA:
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`12· · · · ·Q.· ·So what were the different options?· You
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`13· ·told me one option was to purchase Alphatec.· What were
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`14· ·the other options you discussed in this war room?
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`15· · · · · · · MR. TRIPODI:· Objection.· Calls for
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`16· ·speculation.· Form.
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`17· · · · · · · THE WITNESS:· I can't answer that question
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`18· ·because I was in conversations with lawyers.
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`19· ·BY MS. WICKRAMASEKERA:
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`20· · · · ·Q.· ·But you can give me some part of that
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`21· ·answer.
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`22· · · · · · · What -- what -- I believe you testified that
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`23· ·the purpose of the war room -- you had good -- good
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`24· ·intentions with the war room; right?· I think that was
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`25· ·your testimony, that it was a positive thing.
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`Page 109
`·1· · · · · · · What were those positive things that were
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`·2· ·discussed in the war room that you can tell me about?
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`·3· · · · ·A.· ·What I can tell you about that would be more
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`·4· ·business oriented was what type of communications
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`·5· ·should we have with our sales force, what type of
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`·6· ·communications should we have with some of our key
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`·7· ·design surgeons.· Those would be examples of
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`·8· ·conversations we would have inside the war room that
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`·9· ·were nonlegal oriented.
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`10· · · · ·Q.· ·Okay.· And what did you decide to do with
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`11· ·your surgeons?
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`12· · · · ·A.· ·In that regard, we were in the process
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`13· ·already -- and Jason Hannon had started it, and
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`14· ·Mr. Matt Link had continued it -- to make sure that our
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`15· ·agreements with our surgeons were better, even more
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`16· ·compliant and professional.· And so that's an example
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`17· ·of some of the discussions we had, was how do we
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`18· ·continue to accelerate that good work.
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`19· · · · ·Q.· ·Did you also discuss paying the surgeons
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`20· ·higher consulting fees?
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`21· · · · ·A.· ·I don't recall.
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`22· · · · ·Q.· ·Would you consider renegotiating a surgeon's
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`23· ·consulting rate to pay him eight times what he was
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`24· ·making under his prior consulting agreement to be
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`25· ·making that agreement more compliant?
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`Page 110
`·1· · · · · · · MR. TRIPODI:· Objection.· Form.· Lack of
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`·2· ·foundation.
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`·3· · · · · · · THE WITNESS:· All of the surgeon agreements
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`·4· ·NuVasive have have to pass an important test of kind of
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`·5· ·market rate.· You cannot pay more for services than
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`·6· ·they are worth.· And all of our agreements go through a
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`·7· ·very, I would say, rigorous process or review so that
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`·8· ·we're not in any way overpaying for their services.
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`·9· ·BY MS. WICKRAMASEKERA:
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`10· · · · ·Q.· ·Did you -- did you disclose these new
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`11· ·agreements that you entered into after October 2017
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`12· ·with -- with surgeons to the SEC?
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`13· · · · · · · MR. TRIPODI:· Objection.· Form.
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`14· · · · · · · THE WITNESS:· I don't know.
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`15· · · · · · · MR. TRIPODI:· Lack of foundation.
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`16· ·BY MS. WICKRAMASEKERA:
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`17· · · · ·Q.· ·Do you think the SEC would be interested in
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`18· ·seeing these agreements?
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`19· · · · · · · MR. TRIPODI:· Same objections.
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`20· · · · · · · THE WITNESS:· Speculative.
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`21· ·BY MS. WICKRAMASEKERA:
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`22· · · · ·Q.· ·And you said you were -- the one purpose of
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`23· ·the war room for crushing Alphatec was to make your
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`24· ·surgeon agreements more compliant.· Help me understand
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`25· ·that.· What does that mean?
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`·1· · · · ·A.· ·What I said was that there were
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`Page 111
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`·2· ·conversations just about how we continue the good work
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`·3· ·we were doing, to make our agreements with surgeons
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`·4· ·evermore professional, more compliant, and ultimately
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`·5· ·get even better consultancy work with them in a
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`·6· ·productive way.· That would have been some of the
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`·7· ·conversations we had.
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`·8· · · · ·Q.· ·What did that have to do with Alphatec, and
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`·9· ·why were you discussing that in a war room that was
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`10· ·devoted to Alphatec?
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`11· · · · ·A.· ·One of the threats that Mr. Miles made on
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`12· ·the phone call to me was that he was going to take a
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`13· ·number of the surgeons because they were, quote, his
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`14· ·surgeons.· And so, you know, accordingly, I wanted to
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`15· ·make sure that the contracts we had with these
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`16· ·individuals were signed, proper and that they would
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`17· ·remain part of the NuVasive innovation process.
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`18· · · · ·Q.· ·What's a NuVasive surgeon?· Have you heard
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`19· ·that term before?
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`20· · · · ·A.· ·It's a term that was used inside the
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`21· ·company.· And as I understand it, it's used fairly
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`22· ·commonly across the industry.· And the reason being is
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`23· ·that when surgeons start to use a particular company's
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`24· ·products, they tend to become evermore familial with
`
`25· ·the company itself, even beyond the products.
`
`
`
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`·1· · · · ·Q.· ·Why is that --
`
`Page 112
`
`·2· · · · ·A.· ·There's a lot of training involved.· There's
`
`·3· ·a lot of visits involved.· And so there's a real
`
`·4· ·affinity they develop with the corporation.
`
`·5· · · · ·Q.· ·And what does a surgeon's decision to use a
`
`·6· ·particular company's products have to do with their
`
`·7· ·consulting agreements?
`
`·8· · · · ·A.· ·Well, hopefully nothing.
`
`·9· · · · ·Q.· ·Yeah, well, what's the reality?
`
`10· · · · ·A.· ·As I say, I think we have to take things at
`
`11· ·face value, that surgeons use products because it makes
`
`12· ·their surgery better and that they also then, perhaps
`
`13· ·because they have a particular expertise in design,
`
`14· ·enter into consultancy agreements to help us design
`
`15· ·next generation technology.· And they're two separate
`
`16· ·things.
`
`17· · · · ·Q.· ·Which surgeons specifically did you discuss
`
`18· ·in the Alphatec war room that you started?
`
`19· · · · ·A.· ·I don't recall.
`
`20· · · · ·Q.· ·Did you discuss Dr. Youssef?
`
`21· · · · ·A.· ·I don't recall.
`
`22· · · · ·Q.· ·What about Dr. Haid?
`
`23· · · · ·A.· ·I don't recall.
`
`24· · · · ·Q.· ·Dr. Shaffrey?
`
`25· · · · ·A.· ·I don't recall.
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34565 Page 17 of
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`Page 113
`·1· · · · ·Q.· ·Why did you have an urgent need to have
`
`·2· ·surgeon agreements renegotiated before Thanksgiving of
`
`·3· ·2017?
`
`·4· · · · · · · MR. TRIPODI:· Objection.· Lack of
`
`·5· ·foundation.· Objection to form.
`
`·6· · · · · · · THE WITNESS:· I don't understand your
`
`·7· ·question.
`
`·8· ·BY MS. WICKRAMASEKERA:
`
`·9· · · · ·Q.· ·Did you -- well, you just told me that you
`
`10· ·started a war room immediately after Pat left.· And as
`
`11· ·part of that war room, you discussed surgeon consulting
`
`12· ·agreements.
`
`13· · · · · · · Why did you have an urgent need to get
`
`14· ·surgeon consulting agreements locked down before
`
`15· ·Thanksgiving of 2017?
`
`16· · · · ·A.· ·I'm not familiar with the Thanksgiving
`
`17· ·deadline, so perhaps you can give me more context.
`
`18· · · · ·Q.· ·You referred earlier to a -- a memo that you
`
`19· ·sent right after Mr. Miles left.· Do you recall that?
`
`20· · · · ·A.· ·Keep going.
`
`21· · · · ·Q.· ·Do you recall it?
`
`22· · · · ·A.· ·I do.
`
`23· · · · ·Q.· ·Okay.· And I believe you said you were
`
`24· ·emotional when you wrote the memo?
`
`25· · · · ·A.· ·Your words that were not my words.
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34566 Page 18 of
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`Page 114
`·1· · · · ·Q.· ·Okay.· Were you emotional when you wrote the
`
`·2· ·memo?
`
`·3· · · · ·A.· ·As I said, I was surprised by his call; I
`
`·4· ·was alarmed by it.· I did not use the word "emotional."
`
`·5· · · · ·Q.· ·When did -- and -- and did -- did you and
`
`·6· ·your -- your people, in fact, meet in a war room
`
`·7· ·immediately after Pat left?
`
`·8· · · · ·A.· ·I -- I don't know if we actually ever did
`
`·9· ·form the war room, but we certainly met on an ongoing
`
`10· ·basis.
`
`11· · · · ·Q.· ·Okay.· Tell me -- tell me everything you
`
`12· ·remember discussing in the war room or -- or as part of
`
`13· ·those ongoing conversations.
`
`14· · · · · · · MR. TRIPODI:· Okay.· And at this point, I
`
`15· ·need to caution the witness to the extent that those
`
`16· ·conversations involved attorney-client communications,
`
`17· ·you not disclose those.· If there were other
`
`18· ·business-specific discussions, you can testify to
`
`19· ·those.· If you have any questions about what you can
`
`20· ·and can't testify to, I instruct you not to answer.
`
`21· · · · · · · THE WITNESS:· We would have had business
`
`22· ·conversations about salespeople and could salespeople
`
`23· ·switch from NuVasive to Alphatec.· We might have had
`
`24· ·discussions about certain surgeons or surgeons, because
`
`25· ·of Pat's relationships with those surgeons, being prone
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34567 Page 19 of
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`
`Page 115
`·1· ·to want to flip to go work with Pat at Alphatec.
`
`·2· · · · · · · Those would have been some of the
`
`·3· ·conversations we would have had.
`
`·4· ·BY MS. WICKRAMASEKERA:
`
`·5· · · · ·Q.· ·And what was your plan for dealing with the
`
`·6· ·issue of salespeople going with Mr. Miles to Alphatec?
`
`·7· ·What did you decide to do about that?
`
`·8· · · · · · · MR. TRIPODI:· Objection.· Form.
`
`·9· · · · · · · THE WITNESS:· As I recall, we wanted just to
`
`10· ·make sure that if there were salespeople that
`
`11· ·had -- perhaps at a point in time they were
`
`12· ·dissatisfied for whatever reason -- maybe their
`
`13· ·business was getting tough -- and they also had a
`
`14· ·relationship with Pat, then we'd want to make sure that
`
`15· ·we had a conversation with them to hopefully make them
`
`16· ·stay with NuVasive, not hopefully take Mr. Miles' call,
`
`17· ·if he did call, to go switch to Alphatec.
`
`18· ·BY MS. WICKRAMASEKERA:
`
`19· · · · ·Q.· ·So what did you do to get them to stay?
`
`20· · · · ·A.· ·I don't recall.
`
`21· · · · ·Q.· ·It wasn't a big deal to figure out what
`
`22· ·happened afterwards, what you actually did to follow
`
`23· ·through on that concern that was raised regarding the
`
`24· ·salespeople leaving?
`
`25· · · · · · · MR. TRIPODI:· Objection.· Argumentative.
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34568 Page 20 of
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`
`Page 116
`·1· · · · · · · THE WITNESS:· Each -- each one of these
`
`·2· ·conversations with the salesperson would be a custom
`
`·3· ·type of engagement.· Some of them just might be a -- a
`
`·4· ·conversation with executives at the top so they felt
`
`·5· ·more connected with the company.· Others -- maybe there
`
`·6· ·was some desire for more territory, and so we could
`
`·7· ·adjust their territories.· I think we were just being
`
`·8· ·proactive to make sure that our sales force -- like all
`
`·9· ·companies do -- is completely aligned and motivated.
`
`10· ·BY MS. WICKRAMASEKERA:
`
`11· · · · ·Q.· ·What did you do about your concern regarding
`
`12· ·certain surgeons who had relationships with Mr. Miles
`
`13· ·and those surgeons being prone to want to, in your
`
`14· ·words, flip to go work with Pat at Alphatec?· What did
`
`15· ·you do about that?
`
`16· · · · · · · MR. TRIPODI:· Objection.· Form.
`
`17· · · · · · · THE WITNESS:· At that time, we were
`
`18· ·professionalizing, as I said, a lot of these surgeon
`
`19· ·agreements.· It's one of the elements of the spine
`
`20· ·business that has a number of surgeon consultants.· And
`
`21· ·so we were going through professionalization process to
`
`22· ·make these contracts more contemporary with where we
`
`23· ·were in that 2017 time frame.
`
`24· ·BY MS. WICKRAMASEKERA:
`
`25· · · · ·Q.· ·And this was triggered by Mr. Miles
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34569 Page 21 of
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`
`Page 128
`·1· · · · ·A.· ·Candidly, Mr. Miles, as I said, was a very
`
`·2· ·effective executive and was privy to a lot of
`
`·3· ·privileged information at the board level.· And what
`
`·4· ·alarmed me was when he threatened me in his resignation
`
`·5· ·that he was going to hurt NuVasive.· And so just
`
`·6· ·generally, I was concerned with what would happen with
`
`·7· ·Mr. Miles having all that information now at Alphatec.
`
`·8· · · · ·Q.· ·You were concerned with competition from
`
`·9· ·Mr. Miles?
`
`10· · · · ·A.· ·I was concerned with several or many
`
`11· ·different elements of competition that would include,
`
`12· ·as we've talked before, intellectual property,
`
`13· ·surgeons, salespeople, know-how that was perhaps at
`
`14· ·NuVasive.· I was concerned about all of it.
`
`15· · · · ·Q.· ·And so how did you -- how did you solve the
`
`16· ·problem regarding competition as it relates to
`
`17· ·surgeons --
`
`18· · · · · · · MR. TRIPODI:· Objection.· Form.· Foundation.
`
`19· ·BY MS. WICKRAMASEKERA:
`
`20· · · · ·Q.· ·-- in light of Mr. Miles leaving?
`
`21· · · · ·A.· ·I don't understand the question.
`
`22· · · · ·Q.· ·Well, I'm still trying to understand your
`
`23· ·testimony.· So you said that after Mr. Miles left, you
`
`24· ·started a war room regarding Alphatec; and as part of
`
`25· ·that war room discussion, you discussed
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34570 Page 22 of
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`
`Page 129
`·1· ·professionalizing your surgeon agreements.· And I'm
`
`·2· ·still trying to understand.
`
`·3· · · · · · · What is the relationship between those
`
`·4· ·surgeon agreements and your concern about Mr. Miles
`
`·5· ·being at Alphatec?
`
`·6· · · · · · · MR. TRIPODI:· Objection.· Form.· Foundation.
`
`·7· · · · · · · THE WITNESS:· As I said --
`
`·8· ·BY MS. WICKRAMASEKERA:
`
`·9· · · · ·Q.· ·Actually, let me -- let me cut this short.
`
`10· · · · · · · Were you concerned that if you did not lock
`
`11· ·down certain consulting agreements, you were going to
`
`12· ·lose business to Alphatec?
`
`13· · · · · · · MR. TRIPODI:· Objection.· Form.· Foundation.
`
`14· · · · · · · THE WITNESS:· I was more concerned that we
`
`15· ·were in a state of change of professionalizing these
`
`16· ·agreements and that we were going through a series of
`
`17· ·legal reviews to get them ultimately approved and
`
`18· ·ultimately signed by those surgeons.· And so when
`
`19· ·Mr. Miles resigned midway through that, somewhat
`
`20· ·through that, I just wanted to make sure the work got
`
`21· ·done in a timely fashion.
`
`22· ·BY MS. WICKRAMASEKERA:
`
`23· · · · ·Q.· ·And so your belief coming out of
`
`24· ·these -- this war room meeting was that paying a
`
`25· ·surgeon eight times what you were paying them under
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34571 Page 23 of
`29
`
`Page 130
`·1· ·their prior agreement would be professionalizing the
`
`·2· ·agreement?
`
`·3· · · · · · · MR. TRIPODI:· Objection.· Form.· Foundation.
`
`·4· ·Speculation.
`
`·5· ·BY MS. WICKRAMASEKERA:
`
`·6· · · · ·Q.· ·Actually, you know what?· Let me ask you a
`
`·7· ·question, Mr. Lucier.· Did you feel like the surgeons
`
`·8· ·weren't being paid enough under the prior agreements?
`
`·9· · · · ·A.· ·The question isn't actually appropriate at
`
`10· ·all.
`
`11· · · · ·Q.· ·Why not?
`
`12· · · · ·A.· ·And the reason is is that surgeons can only
`
`13· ·be paid, ever, what is a fair market rate for the value
`
`14· ·of their services.
`
`15· · · · ·Q.· ·Of the work actually done; right?
`
`16· · · · ·A.· ·So you can't overpay them, and you -- and we
`
`17· ·have detailed legal reviews to make sure that's proper.
`
`18· · · · ·Q.· ·So --
`
`19· · · · · · · MR. TRIPODI:· When you're at a good stopping
`
`20· ·point, I need a break, Counsel.
`
`21· · · · · · · MS. WICKRAMASEKERA:· We could probably take
`
`22· ·one now.
`
`23· · · · · · · THE VIDEOGRAPHER:· We're going off the
`
`24· ·record at 11:58 a.m.
`
`25· · · · · · ·(A lunch recess is taken.)
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34572 Page 24 of
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`
`Page 131
`·1· · · · · · · THE VIDEOGRAPHER:· We are back on the record
`
`·2· ·at 1:05 p.m.
`
`·3· ·BY MS. WICKRAMASEKERA:
`
`·4· · · · ·Q.· ·Mr. Lucier, did you discuss your testimony
`
`·5· ·with counsel during the break?
`
`·6· · · · ·A.· ·I did not.
`
`·7· · · · ·Q.· ·Okay.· Do you recall before the break we
`
`·8· ·were discussing pay- -- payments to surgeons?· Do you
`
`·9· ·recall that testimony?
`
`10· · · · ·A.· ·I recall we were talking about surgeon
`
`11· ·agreements.
`
`12· · · · ·Q.· ·Yes.· And before the break, you were telling
`
`13· ·me that surgeons can only be paid what is fair market
`
`14· ·rate value -- for the value of the services they
`
`15· ·actually provide; is that right?
`
`16· · · · ·A.· ·As I understand it.
`
`17· · · · ·Q.· ·So if you paid a surgeon, for example, a
`
`18· ·$62,500 quarterly payment and they hadn't actually
`
`19· ·provided any work up to that point, that would be
`
`20· ·improper; am I correct?
`
`21· · · · · · · MR. TRIPODI:· Objection.· Calls for legal
`
`22· ·conclusion.· Lack of foundation.· Improper
`
`23· ·hypothetical.
`
`24· · · · · · · THE WITNESS:· I can't speculate that.
`
`25· ·BY MS. WICKRAMASEKERA:
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34573 Page 25 of
`29
`
`·1· · · · ·Q.· ·Why not?
`
`·2· · · · ·A.· ·Not enough context.
`
`Page 132
`
`·3· · · · ·Q.· ·Okay.· Well, you just told me that it was
`
`·4· ·improper to pay surgeons except the fair market value
`
`·5· ·for their services?
`
`·6· · · · ·A.· ·But there's not enough information around
`
`·7· ·the question you posed for me to answer that.
`
`·8· · · · ·Q.· ·Okay.· Well, how about if I give you a
`
`·9· ·specific example?· So NuVasive entered into a revised
`
`10· ·new surgeon consulting agreement with Dr. Youssef in
`
`11· ·October of 2017.· Are you aware of that?
`
`12· · · · ·A.· ·I believe that's the case.
`
`13· · · · ·Q.· ·Okay.· And the agreement that he had in
`
`14· ·effect before that was entered into in March of 2017.
`
`15· ·Are you aware of that?
`
`16· · · · ·A.· ·I'm not aware of that.
`
`17· · · · ·Q.· ·Okay.· Dr. Youssef's October 2017 agreement
`
`18· ·increased his quarterly payments by a factor of eight.
`
`19· ·Are you aware of that?
`
`20· · · · ·A.· ·Not aware of that.
`
`21· · · · ·Q.· ·So his quarterly payments went from
`
`22· ·8,000 -- roughly $8,000 quarterly under his March 2017
`
`23· ·agreement to $62,500 quarterly under his October 2017
`
`24· ·agreement.· Are you aware of that?
`
`25· · · · ·A.· ·I'm not aware of that.
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34574 Page 26 of
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`
`Page 133
`·1· · · · ·Q.· ·Okay.· The first payment that was made to
`
`·2· ·Dr. Youssef under this October 2017 agreement was in
`
`·3· ·April of 2018.· Are you aware of that?
`
`·4· · · · ·A.· ·Not aware of that.
`
`·5· · · · ·Q.· ·He was paid $62,500 on roughly
`
`·6· ·August -- April 17th, 2018.· Are you aware of that?
`
`·7· · · · ·A.· ·Not aware of that.
`
`·8· · · · ·Q.· ·Okay.· I took his deposition 10 days later.
`
`·9· ·Were you aware of that?
`
`10· · · · ·A.· ·I'm not aware of that.
`
`11· · · · ·Q.· ·Okay.· During his deposition, he testified
`
`12· ·that he had no idea what work he needed to do for that
`
`13· ·new consulting agreement and that he had not, in fact,
`
`14· ·done any work.· Were you aware of that?
`
`15· · · · ·A.· ·I'm not aware of that.
`
`16· · · · ·Q.· ·If what I said was true, that would have
`
`17· ·been an improper payment; am I correct?
`
`18· · · · · · · MR. TRIPODI:· Objection.· Calls for a legal
`
`19· ·conclusion.· Lack of foundation.
`
`20· · · · · · · THE WITNESS:· That's speculation.
`
`21· ·BY MS. WICKRAMASEKERA:
`
`22· · · · ·Q.· ·No, you can't answer my question?
`
`23· · · · ·A.· ·No, I think what you said is speculation.
`
`24· · · · ·Q.· ·I said, if what I have asked you -- what
`
`25· ·I've represented to you just now in these
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 373-3 Filed 02/09/22 PageID.34575 Page 27 of
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`
`Page 197
`·1· · · · ·Q.· ·Okay.· So yes or no?· Were you aware of the
`
`·2· ·products that were presented to -- by Alphatec to
`
`·3· ·NuVasive in February 2016?
`
`·4· · · · ·A.· ·The way I would have gotten information
`
`·5· ·about the product lines would have been a dialogue with
`
`·6· ·our business development team or technical teams of how
`
`·7· ·did the meeting go; what type of things ar
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