Case 3:18-cv-00347-CAB-MDD Document 395-1 Filed 03/10/22 PageID.34794 Page 1 of 4
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`EXHIBIT 1 TO NUVASIVE, INC.’S
`NOTICE OF LODGMENT OF WITNESS
`DEPOSITION DESIGNATION CLIP REPORTS
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`Case 3:18-cv-00347-CAB-MDD Document 395-1 Filed 03/10/22 PageID.34795 Page 2 of 4
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`NuVasive v. Alphatec - Video
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`Howell, Kelli (Vol. 01) - 06/01/2018
`1 CLIP (RUNNING 00:08:27.112)
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`Good morning, Ms. Howell. ...
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`14 SEGMENTS (RUNNING 00:08:27.112)
`KH-ALL FINAL
`1. PAGE 6:09 TO 6:10 (RUNNING 00:00:01.916)
` 09 Q. Good morning, Ms. Howell.
` 10 A. Good morning.
`2. PAGE 14:01 TO 14:06 (RUNNING 00:00:13.725)
` 00014:01 When did you join NuVasive?
` 02 A. In November of 1999.
` 03 Q. And when did you meet Mr. Miles?
` 04 A. In December of 2000.
` 05 Q. When did Mr. Miles become employed by
` 06 NuVasive?
`3. PAGE 14:09 TO 15:11 (RUNNING 00:01:32.875)
` 09 THE WITNESS: I believe it was in January
` 10 of 2001.
` 11 BY MR. TRIPODI II:
` 12 Q. If you would, could you briefly describe
` 13 your role as an employee of NuVasive from the time
` 14 you arrived in 1991 until --
` 15 A. 1999.
` 16 Q. Excuse me. 1999. My mistake. From 1999
` 17 through September of 2016.
` 18 A. So I was hired in 1999 as a project
` 19 manager. I fairly quickly transitioned that
` 20 responsibility from project management to a
` 21 research-specific role, to a manager of clinical
` 22 research and education. So included surgeon
` 23 education and premarket and post-market research.
` 24 Through that role, evolved and was
` 25 promoted into successive titles within the same
` 00015:01 scope as director of research and education, senior
` 02 director of research, vice president of research
` 03 and education. I may not know the exact titles of
` 04 each of those, but successively through vice
` 05 president, most recently vice president of
` 06 clinical -- vice president of research and health
` 07 informatics was my last title.
` 08 Q. Over that period of time, you became very
` 09 familiar with NuVasive's products and procedures,
` 10 correct?
` 11 A. Yes.
`4. PAGE 21:08 TO 21:21 (RUNNING 00:00:41.849)
` 08 Q. Were you surprised that Pat Miles wanted
` 09 to go to Alphatec in September of 2016?
` 10 A. I was surprised.
` 11 Q. Why?
` 12 A. Because, leading up to that time,
` 13 Alphatec did not have a very good reputation in the
` 14 space. Again, products that were not very
` 15 competitive enough to pay attention to, they had a
` 16 negative reputation in the space for business
` 17 practices, for their sales structure.
` 18 I understood that they were having
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`NuVasive v. Alphatec - Video
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` 19 financial difficulties and were at the verge of
` 20 bankruptcy when they sold their international
` 21 business to Globus. It was a company in hardship.
`5. PAGE 32:09 TO 32:14 (RUNNING 00:00:24.626)
` 09 What was your understanding of Alphatec's
` 10 financial condition in March of 2017?
` 11 A. I would say none. I was aware in 2016 of
` 12 financial hardships where they were considering
` 13 going bankrupt. I was not -- it was not something
` 14 I was thinking about in 2017.
`6. PAGE 98:10 TO 98:22 (RUNNING 00:00:48.689)
` 10 Q. In your view, you're employed by
` 11 NuVasive. Did you come to a conclusion that
` 12 NuVasive had, in fact, the best clinical outcomes
` 13 because it had the best equipment and procedure?
` 14 A. I would say I definitely believed that it
` 15 had the best solution. And that is very much a
` 16 collective it is a best solution of the assembly of
` 17 the technologies, but also the research done to
` 18 make improvements to it, the way that we educated.
` 19 The full package of how we were able to get
` 20 reproducible results and make a very rote
` 21 procedure, I think that that was and still is the
` 22 best option on the market.
`7. PAGE 194:17 TO 194:19 (RUNNING 00:00:07.801)
` 17 Q. I would like to go ahead and mark as
` 18 Exhibit 5 a document entitled "Extreme Lateral
` 19 Interbody Fusion XLIF, Second Edition."
`8. PAGE 195:02 TO 195:03 (RUNNING 00:00:05.727)
` 02 THE WITNESS: I recognize this as a
` 03 chapter in the second edition of the book.
`9. PAGE 195:05 TO 195:16 (RUNNING 00:00:37.667)
` 05 Q. And what -- this book, "Extreme Lateral
` 06 Interbody Fusion," what is that, and who is
` 07 responsible for creating it?
` 08 A. There were several people responsible for
` 09 creating it. I was involved in its development.
` 10 This again is the second edition of the book.
` 11 There was a first edition that I was also involved
` 12 with, engaging surgeons to participate as authors
` 13 of each of the chapters.
` 14 Q. And, in fact, you are an author of
` 15 Chapter 1, correct?
` 16 A. I am.
`10. PAGE 195:23 TO 196:02 (RUNNING 00:00:23.004)
` 23 Q. Do you believe Chapter 1 to be accurate?
` 24 A. I will say that I must have at the time.
` 25 I have not re-read it in many years, with my
` 00196:01 current knowledge to be critical of it today. But
` 02 at the time of its writing, I did.
`11. PAGE 197:16 TO 198:10 (RUNNING 00:01:08.981)
` 16 Q. On the top of page 8, the paragraph
` 17 states, "Since that time, the MaXcess retractor
` 18 system for minimally disruptive spine surgery was
` 19 developed to overcome the disadvantages of working
` 20 through tubular portals, which in the lateral
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` 21 approach may also inadvertently put pressure on
` 22 nerves with the psoas -- within the psoas by
` 23 radially expanding the exposure."
` 24 Do you agree with that statement?
` 25 A. I do. The explanation of that is that --
` 00198:01 and particularly the use of the word "may" was
` 02 related to it depends on the size.
` 03 So with a tube, the only way to get
` 04 bigger is to put in a bigger tube. If you were
` 05 wanting to, say, increase your visualization or
` 06 provide a bigger exposure to put a spacer through
` 07 it, then you would need a bigger tube. And that is
` 08 where we get into that question of are you
` 09 unnecessarily making the exposure bigger from top
` 10 to bottom, when you don't really need that.
`12. PAGE 198:25 TO 200:02 (RUNNING 00:01:36.272)
` 25 Q. If you turn to page 9, the paragraph
` 00199:01 right before the references says, "The XLIF
` 02 procedure has revolutionized how interbody fusions
` 03 can be performed more safely and with significantly
` 04 less morbidity."
` 05 Do you agree with that statement?
` 06 A. Yes. In the context of in comparison to
` 07 other more traditional procedures, it was
` 08 definitely revolutionizing.
` 09 Q. And it says, "As other devices purported
` 10 to be designed for lateral approach surgery become
` 11 available, it is important to rely on the
` 12 experience that has carried this evolution and the
` 13 design features and technique details that
` 14 consistently result in superior safety and clinical
` 15 outcomes."
` 16 Do you agree with that?
` 17 A. I think that what we believed at the time
` 18 to be the first and only, let alone the optimal
` 19 procedure, was, again, getting back to the idea of
` 20 other companies needing -- or having the burden of
` 21 proof to compare themselves to this; that as early
` 22 entrants to this market, and really developers of
` 23 this market, that we believed we knew what was
` 24 important to the procedure, and if anyone was going
` 25 to dispute that or try to make things better, that
` 00200:01 they were going to need to prove that to be the
` 02 case.
`13. PAGE 200:03 TO 200:03 (RUNNING 00:00:01.330)
` 03 Q. Is that a "yes"?
`14. PAGE 200:06 TO 200:17 (RUNNING 00:00:42.650)
` 06 THE WITNESS: Not exactly. I think that,
` 07 you know, the statement, as reads outside of that
` 08 context, is very definitive. I think in -- given
` 09 the history since that time and the position of
` 10 XLIF lateral in that space, there have been other
` 11 examples where other companies' solutions have been
` 12 successful.
` 13 And so it is not as though it was
` 14 impossible, but there is the burden of proof. And
` 15 I think that what NuVasive did a great job of --
` 16 again, my own bias is associated with that -- but
` 17 was in validating it through clinical research.
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