Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34688 Page 1 of 42
`
`EXHIBIT 4
`
`
`
`EXHIBIT 4
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34689 Page 2 of 42
`
` UNITED STATES DISTRICT COURT
`
` SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO DIVISION
`
`Page 1
`
`NUVASIVE, INC., a Delaware )
`
`corporation, )
`
` Plaintiff, )
`
` vs. ) 3:18-CV-00347-CAB-MDD
`
`ALPHATEC HOLDINGS, INC., a )
`
`Delaware corporation and )
`
`ALPHATEC SPINE, INC., a )
`
`California corporation, )
`
` Defendants. )
`
`______________________________)
`
` HIGHLY CONFIDENTIAL
`
` VIDEO DEPOSITION OF PAUL McCLINTOCK
`
` DECEMBER 9, 2021
`
`Reported by: Rosalie A. Kramm, CSR No. 5469, RPR, CRR
`
`1
`
`2
`
`3 4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34690 Page 3 of 42
`
`Page 8
`
` MR. CARLSON: Eric Carlson, also from Wilson
`
`Sonsini on behalf of plaintiff, and with us today we have
`
`Mike Doyle and Kate Corlew from NuVasive, in-house.
`
` MR. LOMBARDI: George Lombardi from Winston &
`
`Strawn on behalf of Alphatec.
`
` THE VIDEOTAPE OPERATOR: Would the reporter
`
`please swear in the witness.
`
` * * *
`
` PAUL McCLINTOCK,
`
`having been first duly sworn, testified as follows:
`
` EXAMINATION
`
`BY MS. WICKRAMASEKERA:
`
` Q. Good morning, Mr. McClintock.
`
` A. Good morning.
`
` MR. FODEMAN: Before you start, just one thing
`
`I want to put on the record, and then I -- as I raised
`
`with Mr. Hunsaker before we started, I informed him that
`
`he had previously represented the witness in his personal
`
`individual capacity many, many years ago, 2008. I don't
`
`view it as a problem at all. I simply reminded him in
`
`case he had forgotten. I don't anticipate there will be
`
`questioning that implicates any privileged information
`
`related to that representation, but to the extent we
`
`stray into those topics, we can revisit the issue at that
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34691 Page 4 of 42
`
`Page 34
`
`BY MS. WICKRAMASEKERA:
`
` Q. At the time did you believe that was one of the
`
`reasons that they would want to purchase from you?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: At the time I am sure I would
`
`believe, yes, that was one of the reasons.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Did you see your relationship with these
`
`surgeons as critical to being -- to enabling you to sell
`
`products while you were at the distributorship?
`
` A. "Critical" meaning?
`
` Q. Critical to making the sale.
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I mean, again, I would say, like
`
`we said earlier, just a second ago, I think one of the
`
`reasons that it would potentially be critical, yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Do you think it was one of the more important
`
`reasons?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I think converting -- yes, if
`
`they were going to be things driving a surgeon to
`
`convert, I think the things that drive that are
`
`important, and one of the reasons is the relationship,
`
`and I would say, yes.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34692 Page 5 of 42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 35
`
`BY MS. WICKRAMASEKERA:
`
` Q. So is it your testimony that you do believe
`
`that the relationship with the surgeon is one of the
`
`important reasons that drives a surgeon to convert?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. In fact, you are aware that NuVasive is taking
`
`that identical position in other lawsuits today, correct?
`
` MR. FODEMAN: Objection.
`
` THE WITNESS: I'm sorry. What position?
`
`BY MS. WICKRAMASEKERA:
`
` Q. That relationships with surgeons drive sales.
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I don't think I can speak to
`
`NuVasive's motivation for a lawsuit.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Well, in fact you've testified in one of these
`
`lawsuits, correct?
`
` A. Right. I mean I -- I feel like it was a little
`
`bit open-ended. So I was answering generally speaking.
`
`And I -- I'm not aware of all of the lawsuits, I wouldn't
`
`be, that we have going on at any given time.
`
` Q. Do you have a lot of lawsuits going on right
`
`now?
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`888-391-3376
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34693 Page 6 of 42
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: As I said, I don't know. So I
`
`Page 36
`
`can't answer that.
`
`BY MS. WICKRAMASEKERA:
`
` Q. You testified recently in a lawsuit between
`
`NuVasive and one of its distributors, correct?
`
` A. Yes.
`
` Q. And in that lawsuit NuVasive is taking the
`
`position that the relationship between the surgeon and
`
`the distributor is critical to the sale of products,
`
`correct?
`
` MR. FODEMAN: Objection. Sorry. Are you
`
`finished?
`
`BY MS. WICKRAMASEKERA:
`
` Q. Let me ask the question again. I was
`
`interrupted.
`
` You are aware of -- actually, withdrawn.
`
` You have testified in a lawsuit between
`
`NuVasive and a distributor, and you are aware that
`
`NuVasive is taking the position in that lawsuit that it's
`
`the relationship between the distributor and the surgeon
`
`that is critical to making sales of the NuVasive
`
`products, correct?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: So I'm definitely aware of my
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34694 Page 7 of 42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 37
`
`testimony that relationships are important. And I
`
`believe that's true. I -- I'm -- I can't -- I don't
`
`think I can speak to NuVasive's position in the lawsuit.
`
` MR. FODEMAN: And let me just -- maybe part of
`
`the problem is to the extent this doesn't infringe on any
`
`sort of attorney-client privilege discussions you may
`
`have had in the course of testifying in that case. So I
`
`probably should have said that at the beginning. So you
`
`can't talk about that.
`
`BY MS. WICKRAMASEKERA:
`
` Q. The lawsuit that you testified in is against
`
`which distributor?
`
` A. I'm not sure if I know the complete corporate
`
`name, but Rival, I believe Rival Medical.
`
` Q. And the issue there is that the individuals
`
`from that distributorship are now selling for Alphatec;
`
`is that right?
`
` MR. FODEMAN: Again, same admonition. Be
`
`careful when talking about the lawsuit.
`
` THE WITNESS: Can you repeat the question?
`
`Sorry.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Yes. The individuals from the distributorship
`
`in the lawsuit that you testified at are now selling
`
`products for Alphatec, correct?
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34695 Page 8 of 42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 47
`
` Q. And did Coalition Spine get acquired?
`
` A. No.
`
` Q. What happened in 2016 with respect to Coalition
`
`Spine?
`
` A. To the entity of Coalition Spine -- I mean
`
`nothing. Nothing happened to the entity.
`
` Q. Did NuVasive acquire -- did NuVasive acquire
`
`Coalition Spine in 2016?
`
` A. No.
`
` Q. Did NuVasive acquire rights in Coalition Spine
`
`in 2016?
`
` A. Rights? "Rights" meaning?
`
` Q. Rights to the territory and the business of
`
`Coalition Spine?
`
` A. Yes.
`
` Q. And this was in February of 2016?
`
` A. I believe it was March 31st, 2016.
`
` Q. And at that point did you become an employee of
`
`NuVasive?
`
` A. Yes. My employment began April 1st, 2016.
`
` Q. When you were an exclusive distributor for
`
`NuVasive, did you lose any significant customers?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I'm sure we did.
`
`//
`
`www.veritext.com
`
`Veritext Legal Solutions
`
`888-391-3376
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34696 Page 9 of 42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 48
`
`BY MS. WICKRAMASEKERA:
`
` Q. Which customers?
`
` A. I -- I don't remember.
`
` Q. And what did you do as a distributor when you
`
`lost those customers?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I can speak to my general
`
`practices when -- when we lose a customer. We, generally
`
`speaking, try to get them back.
`
`BY MS. WICKRAMASEKERA:
`
` Q. What do you do to try to get them back?
`
` A. We -- I guess the short answer would be we do
`
`our -- we do our job, that's how I view it, and we do our
`
`best to bring them back.
`
` Q. Can you be more specific?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: We would make a plan, we would
`
`try to communicate with them, and ask them to start using
`
`our products again.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Would you try to find out why the surgeon left?
`
` A. Yes. And I don't know if I did that every
`
`time, but, yes.
`
` Q. For any significant customers, would you try to
`
`find out why that surgeon left?
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34697 Page 10 of
`42
`
`Page 49
`
` A. Yes.
`
` Q. And how would you do that?
`
` A. Ask them.
`
` Q. Were you able to convince some customers to
`
`come back?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I don't -- I don't remember
`
`specifics. I don't remember.
`
`BY MS. WICKRAMASEKERA:
`
` Q. So beyond asking them why they left, what would
`
`you do to try to get those customers back?
`
` A. I -- I'm speaking in general terms about how we
`
`would try to bring a customer back, but we would talk to
`
`them about technology and sell to them. I mean I -- just
`
`kind of the basics of the sales process.
`
` Q. When you said you would talk to them about
`
`technology, the surgeon customer that you lost would
`
`already be aware of the technology that -- that NuVasive
`
`had, correct?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Again, I'd be -- I'd be
`
`speculating on what they knew or didn't know. But
`
`complete understanding of our portfolio, oftentimes not.
`
`BY MS. WICKRAMASEKERA:
`
` Q. During the arbitration that you testified at
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34698 Page 11 of
`42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 50
`
`recently for NuVasive, you testified that you had lost
`
`significant customers during the time you were an
`
`exclusive NuVasive distributor. Can you tell me what
`
`surgeon you had in mind when you provided that sworn
`
`testimony?
`
` MR. FODEMAN: Objection to form.
`
` THE WITNESS: I -- I don't remember.
`
` MR. FODEMAN: I'm going to ask, if you are
`
`going to ask him specific questions about testimony he
`
`gave, you give him a copy of the testimony so he can see
`
`it in context. That's all.
`
` MS. WICKRAMASEKERA: Sure.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Do you recall this testimony that you provided?
`
` A. The testimony overall?
`
` Q. No, the testimony that you provided elicited by
`
`NuVasive that you had lost significant customers during
`
`your time as an exclusive distributor for NuVasive.
`
` A. Yes.
`
` Q. Do you recall which surgeon you had in mind for
`
`that when you provided that testimony?
`
` MR. FODEMAN: Can he have a copy of the
`
`testimony?
`
` MS. WICKRAMASEKERA: Yes.
`
` MR. FODEMAN: Don't answer until you've had a
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34699 Page 12 of
`42
`
`Page 51
`
`chance to take a look at it.
`
` Do you have a page in mind?
`
` THE REPORTER: Exhibit 1.
`
` (Exhibit 1 was marked for identification.)
`
`BY MS. WICKRAMASEKERA:
`
` Q. Sorry. I've marked as Exhibit 1 the Zoom
`
`arbitration trial testimony from September 28th, 2020,
`
`between NuVasive and Rival Medical.
`
` Do you have that in front of you?
`
` A. Yes.
`
` Q. So I'd like to refer you to page 78 of the
`
`transcript. So the testimony I'm asking about is at page
`
`78 to 79 of the transcript where you testified that you
`
`had lost significant customers as an exclusive
`
`distributor of NuVasive.
`
` Please let me know when you're ready for my
`
`question.
`
` A. Okay. So I read part of page 78 and most of
`
`page 79.
`
` Q. And which surgeon customer did you have in mind
`
`when you testified that as an exclusive distributor of
`
`NuVasive, you had lost significant customers?
`
` A. I don't remember.
`
` Q. Did you lose many customers when you were an
`
`exclusive distributor of NuVasive?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34700 Page 13 of
`42
`
`Page 52
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: As I said earlier, I'm sure we
`
`did. I know we lost partial, complete, so it's -- it's
`
`vague. I don't remember specific names that we lost.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Would you try to put lost or at risk surgeons
`
`on development agreements with the manufacturer you
`
`represented?
`
` MR. FODEMAN: Objection to form. Are we
`
`talking about this? Are we talking about this time
`
`period or in general?
`
`BY MS. WICKRAMASEKERA:
`
` Q. During this time period or in general.
`
` A. I -- I didn't put anyone -- it wasn't my
`
`responsibility to put people on the design project, so,
`
`no.
`
` Q. During your time as an exclusive distributor.
`
` A. Correct.
`
` Q. Did you help facilitate that for NuVasive when
`
`you were an exclusive distributor?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: If surgeons were interested in
`
`potentially working with NuVasive when I was at Coalition
`
`Spine, I would have those -- certainly have those
`
`conversations with other NuVasive employees.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34701 Page 14 of
`42
`
`Page 66
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`BY MS. WICKRAMASEKERA:
`
` Q. Did he -- did he have a lot of
`
`responsibilities?
`
` MR. FODEMAN: Form.
`
` THE WITNESS: I believe so, yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. With what?
`
` A. So I want to be clear. I don't know the time
`
`period when his role changed from COO to vice-chairman.
`
`I -- I don't know how long that was, when it was, or
`
`necessarily what his responsibilities were.
`
` So to the best of my recollection, in the COO
`
`role, the chief operating officer role, his
`
`responsibilities were overseeing our product pipeline --
`
`our product portfolio and operations.
`
` Q. Did Patrick Miles have significant surgeon
`
`relationships during his time at NuVasive?
`
` MR. FODEMAN: Objection to form.
`
` THE WITNESS: "Significant" meaning?
`
`BY MS. WICKRAMASEKERA:
`
` Q. High volume surgeons, did he have relationships
`
`with surgeons who purchased a large amount of product
`
`from NuVasive?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Yes.
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34702 Page 15 of
`42
`
`Page 67
`
`BY MS. WICKRAMASEKERA:
`
` Q. Did he have a lot of relationships -- or sorry.
`
`Withdrawn.
`
` Did he have relationships with many surgeons
`
`who were high-volume customers of NuVasive?
`
` MR. FODEMAN: Same objections.
`
` THE WITNESS: Sorry. Did he have many?
`
`BY MS. WICKRAMASEKERA:
`
` Q. No. Did he have relationships with many
`
`surgeons who had a high volume of sales -- of purchases
`
`from NuVasive?
`
` MR. FODEMAN: Form.
`
` THE WITNESS: I don't know the -- the minute
`
`details of those relationships, but I would answer yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Was NuVasive concerned, when Mr. Miles resigned
`
`in October 2017, about the significant surgeon
`
`relationships he had?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Your question was -- I -- I can't
`
`speak to NuVasive's opinion. I -- I had concerns, yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. I mean you were -- you said you were part of
`
`the leadership at NuVasive at the time?
`
` A. Yes.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34703 Page 16 of
`42
`
`Page 68
`
` Q. And was it a big deal to NuVasive's leadership
`
`that Patrick Miles resigned in October 2017?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I'm going to -- I'm going to
`
`assume we're matching on what "big deal" means, you and
`
`me, so I would say, yes. Like I said earlier, when an
`
`executive -- when an executive leaves, generally
`
`speaking, that's a big deal. Yes.
`
`BY MS. WICKRAMASEKERA:
`
` Q. I mean would you consider it a big deal if
`
`NuVasive's CEO was sending emails at 6:00 a.m. about
`
`setting up a war room to crush Alphatec by 10:00 a.m. on
`
`the same day that Patrick Miles leaves?
`
` MR. FODEMAN: Objection. Form. Argumentative.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Is that what you would consider to be a big
`
`deal?
`
` A. Would I consider an email a big deal?
`
` Q. Would you consider it to be a big deal if
`
`NuVasive's CEO sent emails at 6:00 a.m., on the day that
`
`Patrick Miles resigns, for the purpose of setting up a
`
`war room to crush Alphatec the same day with NuVasive's
`
`leadership?
`
` MR. FODEMAN: Is there a document that you are
`
`referencing you want to show him?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34704 Page 17 of
`42
`
`Page 81
`
`BY MS. WICKRAMASEKERA:
`
` Q. Mr. Lucier also mentions in this email about
`
`setting up a war room for crushing Alphatec that you need
`
`to focus on retention of surgeons. How do you retain
`
`surgeons?
`
` A. Well, to the question earlier about, you know,
`
`how they get a customer back or what -- what those
`
`tactics are, I mean I think it's -- it's those things.
`
` Q. What are those things? Can you identify them
`
`for me in any more detail.
`
` A. Yes.
`
` Q. Okay. Please do.
`
` A. Communication. Given what we're allowed to
`
`share, awareness about company vision, strategy. And
`
`along with the communication I would say attention. So
`
`interaction.
`
` Q. And does interaction come in the form of
`
`development agreements with surgeons?
`
` A. Does interaction? No.
`
` Q. Does development -- does entering into
`
`development agreements with surgeons factor in at all to
`
`retaining surgeons as customers?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I think I'd have -- I think I'd
`
`have to speak to why the surgeon decided to continue on
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34705 Page 18 of
`42
`
`or -- or work with the company. So I can't do that. So
`
`Page 82
`
`I -- sorry, can you repeat?
`
`BY MS. WICKRAMASEKERA:
`
` Q. Are surgeons more likely to purchase products
`
`from NuVasive if they have a development agreement with
`
`NuVasive?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Yeah, I'm just struggling with
`
`understanding why they decide to use our products or not.
`
`I can't speak to why a surgeon or surgeons would do that,
`
`what the specific reason is.
`
`BY MS. WICKRAMASEKERA:
`
` Q. What was your title at this time in 2017? You
`
`were president of sales in 2017 for NuVasive?
`
` A. In part of '17, the last four months, five
`
`months.
`
` Q. And is it your testimony that as the president
`
`of sales for NuVasive, you did not know why a surgeon
`
`would purchase products from NuVasive?
`
` A. No, I --
`
` MR. FODEMAN: You are talking about a specific
`
`surgeon or are you talking about generally speaking?
`
` MS. WICKRAMASEKERA: I think that -- it is not
`
`time for you to testify.
`
` MR. FODEMAN: I'm not testifying. I'm trying
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34706 Page 19 of
`42
`
`Page 83
`
`to --
`
` MS. WICKRAMASEKERA: No, no, no.
`
` MR. FODEMAN: -- keep this moving so you can
`
`ask a question that someone could understand. That's
`
`all. If you don't want me to explain it, I won't.
`
` MS. WICKRAMASEKERA: With all due respect, I
`
`think you client -- I think your witness clearly
`
`understands my question.
`
` MR. FODEMAN: Exactly.
`
` MS. WICKRAMASEKERA: And is trying to avoid
`
`answering it. So let me get the testimony correct.
`
`BY MS. WICKRAMASEKERA:
`
` Q. As president of sales for NuVasive in part of
`
`2017, did you know why surgeons would have a tendency to
`
`purchase NuVasive's products? Did you know the reasons
`
`that would influence a surgeon to purchase NuVasive's
`
`products?
`
` A. Yes.
`
` Q. And was entering into or having development
`
`agreements one of those reasons?
`
` A. So when I say "yes," I'm speaking in general
`
`terms. The question earlier was taking obviously a
`
`specific population that, you know, I think we're -- by
`
`definition we're speculating -- that would have a
`
`development -- development agreement -- excuse me --
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34707 Page 20 of
`42
`
`Page 84
`
`development agreement with NuVasive, so that would be a
`
`specific surgeon or surgeons. I can't necessarily speak
`
`to why they would decide what products to use.
`
` Q. Okay. So as a general proposition, did
`
`surgeons who had development agreements with NuVasive,
`
`was that one of the factors that influenced their
`
`decision to purchase products from NuVasive?
`
` A. I'm sorry. You said as a general --
`
` Q. Yes.
`
` A. -- proposition?
`
` Q. Yes.
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: I'm confused by "proposition."
`
`What does that mean?
`
`BY MS. WICKRAMASEKERA:
`
` Q. Okay. Let me ask you a straight question and
`
`you tell me if you can't answer it. Okay?
`
` If a surgeon customer of NuVasive's has a
`
`development agreement with NuVasive, are they more likely
`
`to purchase product from NuVasive?
`
` MR. FODEMAN: Objection.
`
` THE WITNESS: There are surgeons that have
`
`development agreements with NuVasive that don't use our
`
`products, and there are surgeons that have development
`
`agreements with NuVasive that use our products.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34708 Page 21 of
`42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Page 85
`
`BY MS. WICKRAMASEKERA:
`
` Q. Okay.
`
` A. So unless it is someone specific and I would
`
`have intimate knowledge of the -- their opinion, I'm
`
`speculating.
`
` Q. Okay.
`
` A. I think by definition.
`
` Q. Were you president of sales at NuVasive at the
`
`time that this email was sent in October 2017?
`
` A. The Greg Lucier --
`
` Q. Yes.
`
` A. Exhibit 3?
`
` Q. Yes.
`
` A. Yes.
`
` Q. So as president of sales for NuVasive, in
`
`October 2017 when Exhibit 3 was sent, what did you
`
`understand was necessary to retain surgeons as Mr. Lucier
`
`is instructing here?
`
` A. We can't see who received the email. I was not
`
`copied, correct? We know that?
`
` Q. Yeah.
`
` A. Okay. I just don't -- I don't know. I can't
`
`tell from the email, and I can't remember.
`
` So, sorry, the question is, what do we do to
`
`retain surgeons?
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34709 Page 22 of
`42
`
`Page 86
`
` Q. Yes. So as president of sales for NuVasive, at
`
`this time when Greg Lucier is instructing certain members
`
`of his leadership team to focus on retention of surgeons,
`
`what do you understand that to require?
`
` A. My role was commercial sales, and as I
`
`referenced earlier, communication, plan. I don't know
`
`exactly what I did on October 2nd, 2017, but I -- I am
`
`sure it involved communicating with surgeons.
`
` Q. Did that involve communicating with surgeons
`
`about entering into development agreements?
`
` A. With me personally?
`
` Q. What do you mean with you personally?
`
` A. Did I have conversations about development
`
`agreements with surgeons?
`
` Q. No. Was your -- actually, let me take a step
`
`back.
`
` Was your knowledge at NuVasive at the time you
`
`were president of sales limited to what you yourself did,
`
`or were you responsible as a leader for what people below
`
`you were doing?
`
` A. I was responsible for my -- my direct reports
`
`and their teams, yes.
`
` Q. And you were part of the leadership team at
`
`NuVasive at this time, correct?
`
` A. Yes.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34710 Page 23 of
`42
`
`Page 87
`
` Q. So when discussions are occurring regarding,
`
`for example, an impact of Pat Miles' departure on sales,
`
`you would have been part of that discussion. Wouldn't
`
`you -- wouldn't you expect to be?
`
` A. I wouldn't expect to be a part of every
`
`discussion. I think it is fair to say some, yes.
`
` Q. Were you in the war room that day?
`
` A. I don't remember.
`
` And just one point of clarity on the -- my --
`
`my job responsibility was not to talk to -- to interact
`
`with surgeons around development agreements. I just
`
`didn't do that. So --
`
` Q. Did people working under you do that?
`
` A. No. It wasn't our responsibility. I certainly
`
`can't comment on what hundreds of people may have said.
`
` Q. So is it your testimony that as part of the
`
`president of sales, people would not have communicated
`
`with you -- actually, withdrawn.
`
` Is it your testimony that as president of sales
`
`for NuVasive at this time that Patrick Miles resigned,
`
`you did not have discussions with other NuVasive
`
`executive team members regarding development agreements
`
`with surgeons?
`
` A. I don't remember having conversations to that
`
`effect, and I know at the time that was not my job
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34711 Page 24 of
`42
`
`Page 88
`
`responsibility.
`
` MS. WICKRAMASEKERA: Okay. I'm handing you
`
`what has been marked as Exhibit 4, which is an email from
`
`Mr. Lucier sent on October 3rd, 2017, bearing Bates
`
`number NUVA-ATEC 317796.
`
` (Exhibit 4 was marked for identification.)
`
`BY MS. WICKRAMASEKERA:
`
` Q. Let me know when you have that in front of you.
`
` A. I have it in front of me.
`
` Q. Do you need to -- do you need a minute to look
`
`over the email?
`
` A. Sure, if you want me to.
`
` Q. Yes, I'm going to ask you questions about it.
`
` A. Yeah, I'll read the whole thing, sure. It is
`
`one email, front and back?
`
` Q. It is the entirety of that exhibit.
`
` A. Thanks.
`
` MR. FODEMAN: While we're waiting, it is a good
`
`time to designate the transcript as "HIGHLY
`
`CONFIDENTIAL"?
`
` MS. WICKRAMASEKERA: Sure, although I think all
`
`of the documents we have used so far are public record.
`
`So that's fine.
`
` THE REPORTER: Did you say just "CONFIDENTIAL"?
`
` MR. FODEMAN: "HIGHLY CONFIDENTIAL."
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34712 Page 25 of
`42
`
`Page 95
`
`relationships to -- it doesn't say drive business, but
`
`I'm going to assume he meant drive business and drive
`
`their stock price up.
`
` Q. And as a member of NuVasive's leadership team,
`
`were you concerned -- did you share the concern that
`
`NuVasive may lose sales to Alphatec because Pat Miles
`
`would take relationships to Alphatec, surgeon
`
`relationships to Alphatec?
`
` MR. FODEMAN: Objection. Form.
`
` THE WITNESS: Did I share that concern?
`
`BY MS. WICKRAMASEKERA:
`
` Q. Yes.
`
` A. I don't remember exactly. I was -- I would
`
`assume that I did.
`
` Q. Did you -- do you recall writing emails to that
`
`effect?
`
` A. Sorry. To what effect?
`
` Q. That you had some concern about losing sales or
`
`losing surgeons because Patrick Miles would take his
`
`relationships to Alphatec?
`
` A. I do not recall.
`
` Q. In the next paragraph Mr. Lucier refers to --
`
`he says, "And so this is what everyone gets for not
`
`giving him," Patrick Miles --
`
` A. Sorry. What -- what paragraph?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`www.veritext.com
`
`888-391-3376
`
`Veritext Legal Solutions
`
`
`
`Case 3:18-cv-00347-CAB-MDD Document 384-2 Filed 02/25/22 PageID.34713 Page 26 of
`42
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
` Q. Alphatec is much smaller than NuVasive at this
`
`Page 103
`
`time; is that right?
`
` A. Yes.
`
` Q. Do you --
`
` A. I mean assuming -- sorry. Assuming you define
`
`smaller as revenue.
`
` Q. Yes. Do you have any idea why Alphatec is even
`
`viewed as a threat at this time, then?
`
` MR. FODEMAN: Object to form.
`
` THE WITNESS: Viewed by Greg, who wrote the
`
`email, no.
`
`BY MS. WICKRAMASEKERA:
`
` Q. Did you write an email back saying you agree
`
`with everything Greg said?
`
` A. To this email?
`
` Q. Yes.
`
` A. I don't know. I don't remember. Excuse me. I
`
`don't remember.
`
` Q. All right. The next section says "Surgeon
`
`Relationships." Do you see that?
`
` A. Yes.
`
` Q. Why did you think surgeon relationships were
`
`important?
`
` A. Why did I?
`
` Q. Actually, let me ask the question mor
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
