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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 30, 2011
`)
`) TUESDAY, 8:30 AM
`)
`) TRIAL - DAY ONE
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`
`FOR THE DEFENDANT:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`WARSAW2008
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00206
`
`
`Page 1
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 30, 2011
`)
`) TUESDAY, 8:30 AM
`)
`) TRIAL - DAY ONE
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`
`FOR THE DEFENDANT:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`WARSAW2008
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00206
`
`
`Page 1
`
`
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` 2
`
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/30/11
`
`
`
`WITNESSES:
`
`DR. GARY CARLIN MICHELSON
`
`
`
`
`
`OPENING STATEMENTS BY MR. DAUCHOT
`
`OPENING STATEMENTS BY MR. SCHERKENBACH
`
`
`
`PAGE:
`
` 110
`
` 39
`
` 80
`
`COURT'S PRELIMINARY INSTRUCTIONS
`
` 30
`
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`
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`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 2
`
`
`
` 121
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`25
`
`Q
`
`A
`
`Q
`
`DR. MICHELSON, I DON'T SEE TRANSLATERAL UP THERE?
`
`THAT'S CORRECT.
`
`LET'S SPEAK ABOUT THE TERM TRANSLATERAL. THAT'S A TERM
`
`IN OPENING STATEMENT WE SAW IN THE CONTEXT OF YOUR '973
`
`PATENT.
`
`TO YOUR KNOWLEDGE, WAS THAT A TERM SPECIFICALLY IN
`
`THIS AREA THAT EXISTED BEFORE THE TIME THAT YOU INVENTED
`
`THIS IMPLANT?
`
`A
`
`WELL TO THE BEST OF MY KNOWLEDGE, I ACTUALLY CREATED
`
`THAT WORD. WITH THE IDEA OF THE TRANSCONTINENTAL RAILROAD
`
`IN MIND, THAT'S WHY I PICKED THE WORD TRANSLATERAL THAT
`
`TRANSCONTINENTAL RAILROAD CONNECTED THE ATLANTIC OCEAN TO
`
`THE PACIFIC OCEAN AND CROSSED THE ENTIRE CONTINENT AND MY
`
`CONCEPT OF A TRANSLATERAL IMPLANT WAS AN IMPLANT THAT WOULD
`
`ACTUALLY BE CAPABLE OF SITTING ON THIS APOPHYSEAL RING ON
`
`ONE SIDE AND GOING ALL THE WAY ACROSS AND SITTING ON THE
`
`APOPHYSEAL RING ON THE OPPOSITE SIDE.
`
`Q
`
`CAN WE PUT UP SLIDE FIVE, DAVE? CAN YOU PRESS.
`
`DOES THAT DEPICT TRANSLATERAL AS YOU USED IT IN
`
`YOUR '973 PATENT.
`
`A
`
`YES. AND ALSO ONE OTHER THING. IT'S COMING IN
`
`ESSENTIALLY PERPENDICULAR TO WHAT WE CALL THAT MID SAGITTAL
`
`LINE, SO WHILE THIS WAS THE FRONT AND THAT WAS THE BACK AND
`
`THINGS WENT IN FRONT TO BACK, THIS IS COMING IN AT 90 DEGREE
`
`ANGLE TO THE OLD TECHNOLOGY.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 3
`
`
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` 183
`
`NEVER OPERATED ON AN ANIMAL. I'M NOT A VETERINARIAN. I
`
`DON'T WHAT SPINAL DISORDERS THEY GET, IF ANY, THEY WALK ON
`
`ALL FOURS. NO. THESE ARE ALL FOR HUMANS.
`
`Q
`
`YOUR HONOR, THIS IS PROBABLY A GOOD TIME TO TAKE A
`
`BREAK IF IT'S OKAY.
`
`THE COURT: SURE. WE'RE CLOSE TO QUITTING TIME IF
`
`THIS IS A CONVENIENT TIME FOR YOU, WE'LL DO THAT. WE'LL
`
`TAKE OUR EVENING RECESS. PLEASE REMEMBER THE ADMONITION WE
`
`TALKED ABOUT. DON'T TALK TO ANYONE ABOUT THE CASE OR GET
`
`ANY INFORMATION FROM OUTSIDE. HAVE A NICE EVENING. SEE
`
`YOU BACK HERE AT 9:00 O'CLOCK TOMORROW. THANKS.
`
`(EVENING RECESS TAKEN)
`
`SAN DIEGO, CALIFORNIA
`
`COUNTY OF SAN DIEGO
`
`
`)
`) SS:
`)
`
`I, ELIZABETH M. CESENA, CSR 12266, AN OFFICIAL
`REPORTER OF THE UNITED STATES DISTRICT COURT, SOUTHERN
`DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY THAT I REPORTED IN
`SHORTHAND THE PROCEEDINGS, TO THE BEST OF MY ABILITY, IN THE
`ABOVE-ENTITLED CAUSE AND THAT THE FOREGOING TRANSCRIPT,
`NUMBERED FROM PAGES 1 TO 183 INCLUSIVE, IS A FULL, TRUE AND
`CORRECT TRANSCRIPT OF PROCEEDINGS HELD ON AUGUST 30, 2011.
`
`
`
`
`SAN DIEGO, CALIFORNIA, DATED THIS 31ST DAY OF
`
`
`AUGUST, 2011.
`
`
`
`
`
`/S/ ELIZABETH CESENA
`____________________________
`
`ELIZABETH M. CESENA, CSR 12266
`OFFICIAL COURT REPORTER
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 4
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`
`_____________________________
`)
`MEDTRONIC SOFAMOR DANEK, USA ) CASE NO. 08 CV 1512-MMA
`ET AL.,
`)
`)
`)
`)
`) AUGUST 31, 2011
`)
`) WEDNESDAY, 9:00 AM
`)
`) TRIAL - DAY TWO
`DEFENDANT.
`_____________________________)
`
`PLAINTIFF,
`
`VS.
`
`NUVASIVE, INC.,
`
`
`
`
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`
`
`
`FOR THE DEFENDANT:
`
`
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`FISH & RICHARDSON, P.C.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 5
`
`
`
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/31/11
`
` 185
`
`
`
`WITNESSES:
`
`DR. GARY KARLIN MICHELSON
`
`DIRECT BY MR. DAUCHOT
`
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`RECROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`PAGE:
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` 189
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` 233
`
` 282
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` 294
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` 304
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`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 6
`
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`25
`
`Q
`
`EXPLAIN TO US WHAT RETROPERITONEAL LATERAL APPROACH TO
`
`THE SPINE WAS?
`
`A
`
`YES. SO I HAD MENTIONED YESTERDAY THAT IN DAYS GONE
`
`BY, SURGEONS WOULD SOMETIMES MAKE AN INCISION RIGHT THERE IN
`
`THE MIDDLE OF THE ABDOMEN AND GO STRAIGHT THROUGH WHERE THE
`
`INTESTINES ARE AND EVERYTHING ELSE, MOVE THOSE OUT OF THE
`
`WAY, AND GET TO THE SPINE.
`
`BUT ALL THOSE ORGANS ARE SITTING IN WHAT LOOKS
`
`LIKE A DUFFEL BAG, AND WE CALL THAT THE "PERITONEAL CAVITY."
`
`SO AS SURGEONS WHO DID THE ACCESS, LIKE VASCULAR
`
`SURGEONS, GOT MORE SKILLFUL AND MORE FAMILIAR WITH DOING
`
`SURGERY FOR SPINE SURGEONS, THEY LEARNED TO GO AROUND THIS
`
`DUFFEL BAG AND SLIDE IT OVER.
`
`SO EVEN THOUGH THE INCISION WAS ON THE FRONT, THEY
`
`WERE KIND OF GOING TO THE SIDE AND GOING BEHIND THE DUFFEL
`
`BAG, MOVING IT OVER.
`
`SO RETRO JUST MEANS BEHIND. PERITONEAL MEANS THAT
`
`DUFFEL SAC. WE CALL IT THE "PERITONEUM."
`
`WHAT MR. BOYD IS SAYING IS VERY INTERESTING,
`
`BECAUSE THAT IS AN ANTERIOR RETROPERITONEAL APPROACH.
`
`ANTERIOR MEANS WE MADE THE INCISION IN THE FRONT, AND YET WE
`
`REACHED AROUND, MOVED THE DUFFEL BAG OVER, SO BEHIND -- WE
`
`MOVED IT TO THE SIDE, AND NOW WE DO THE SURGERY.
`
`THIS IS THE FIRST TIME HE'S EVER SEEN A LATERAL
`
`RETROPERITONEAL, WHERE YOU DON'T EVEN HAVE TO MOVE THE
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 7
`
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`PERITONEUM SAC. LEAVE IT ALONE. BUT YOU'RE SO FAR BEHIND
`
`IT, YOU JUST GO STRAIGHT IN.
`
`Q
`
`SO I UNDERSTAND, MAYBE I DON'T HAVE -- LET ME TRY THIS,
`
`DR. MICHELSON. WE DON'T HAVE A MODEL HERE. IF WE LOOK AT
`
`THE FRONT OF THE SPINE, RIGHT?
`
`A
`
`Q
`
`YES.
`
`OR ACTUALLY, LET'S LOOK AT THE SIDE OF THE SPINE.
`
`OKAY. WITH ME?
`
`A
`
`Q
`
`UH-HUH.
`
`WE'RE LOOKING AT THE SIDE HERE. SO THERE IS THE FRONT,
`
`ANTERIOR, THIS IS THE BACK. WE HAVE THESE BONY PROTRUSIONS
`
`OUT HERE, RIGHT?
`
`A
`
`Q
`
`YES.
`
`THE PERITONEAL SAC, JUST SO WE'RE CLEAR, DOES IT ATTACH
`
`ALONG THE SIDE LIKE THIS?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`NO. IT LAYS UP AGAINST THE FRONT.
`
`THIS IS THE FRONT OF THE SPINE?
`
`WELL, THE FRONT WAS TOWARDS YOU, YOU SAID.
`
`RIGHT.
`
`YES. SO THE SAC DOESN'T GO ONTO THE VERTEBRAL BODIES.
`
`IT JUST LAYS UP. IT'S SELF-CONTAINED.
`
`Q
`
`SO THE IDEA IS TO MOVE THE SAC OUT OF THE WAY AS YOU
`
`ARE APPROACHING INTO THE SPINE?
`
`A
`
`WHEN WE DID AN ANTERIOR, FROM THE FRONT,
`
`RETROPERITONEAL DISSECTION TO GET THE SPINE, WHAT WE WERE
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 8
`
`
`
`
`
`SAN DIEGO, CALIFORNIA
`
`COUNTY OF SAN DIEGO
`
`
`
`
`)
`) SS:
`)
`
`308/309
`
`I, ELIZABETH M. CESENA, CSR 12266, AN OFFICIAL
`
`REPORTER OF THE UNITED STATES DISTRICT COURT, SOUTHERN
`
`DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY THAT I REPORTED IN
`
`SHORTHAND THE PROCEEDINGS, TO THE BEST OF MY ABILITY, IN THE
`
`ABOVE-ENTITLED CAUSE AND THAT THE FOREGOING TRANSCRIPT,
`
`NUMBERED FROM PAGES 184 - 307/309, A FULL, TRUE AND CORRECT
`
`TRANSCRIPT OF PROCEEDINGS HELD IN THE AM OF AUGUST 31, 2011.
`
`
`
`
`
`
`SAN DIEGO, CALIFORNIA, DATED THIS 1ST DAY OF
`
`
`SEPTEMBER, 2011.
`
`
`
`
`
`/S/ ELIZABETH CESENA
`____________________________
`
`ELIZABETH M. CESENA, CSR 12266
`OFFICIAL COURT REPORTER
`
`
`
`
`(NO PAGES OMITTED - BLOCK NUMBERING)
`
`
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`ELIZABETH CESENA, CSR 12266, (619) 237-0100 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
`
`Page 9
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`MEDTRONIC SOFAMOR DANEK, USA, .
`ET AL., .CASE NO. 08-CV-1512-MMA
`.
`PLAINTIFF,
`.
`.
`V.
`. SEPTEMBER 1, 2011
`.
`NUVASIVE, INC.,
`. THURSDAY, 1:30 P.M.
`.
`DEFENDANT.
`. TRIAL - DAY THREE
`. . . . . . . . . . . . . . . . . ..
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANTS:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`JOHN M. FARRELL, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`
`COURT REPORTER:
`
`JULIET Y. EICHENLAUB, CSR
`USDC CLERK'S OFFICE
`880 FRONT STREET, ROOM 4290
`SAN DIEGO, CALIFORNIA 92101
`JULIET_EICHENLAUB@CASD.USCOURTS.GOV
`REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
`
`1 2 3 4 5 6 7 8 9
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`Page 10
`
`
`
`08-CV-1512
`
`INDEX - 08-CV-1512
`MEDTRONIC V. NUVASIVE, 9/1/11
`
`WITNESSES:
`
` DIRECT CROSS REDIRECT RECROSS
`
`ALEXIS LUKIANOV
`ANTHONY MELKENT
`DR. BARTON SACHS
`
` 592
` 652
`
`579
` 568
` 625 648
`
` 650
`
`
`
`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
`
`567
`
`Page 11
`
`
`
`08-CV-1512
`
`THE WITNESS: IS IT BETTER TO STAND HERE?
`THE COURT: PROBABLY, SO OUR COURT REPORTER CAN LOOK
`AT YOU AND LISTEN TO YOU AT THE SAME TIME, READ LIPS.
`BY MR. DAUCHOT:
`Q.
`DR. SACHS, WE SEEN REFERENCE -- I'LL STAND OVER HERE.
`WE SEEN A REFERENCE TO A -- SO WE HAVE THE TRANSLATERAL SPINAL
`FUSION IMPLANT OR SPINAL IMPLANT.
`HAVE YOU REVIEWED THE '973 PATENT TO DETERMINE WHAT
`"TRANSLATERAL" MEANS?
`A.
`YES, SIR, I HAVE.
`Q.
`ALL RIGHT.
`AND WE HAVE UP ON THE SCREEN SOME EXCERPTS FROM THE
`PATENT. CAN YOU WALK US THROUGH WHAT TRANSLATERAL MEANS AND
`WHY YOU CONCLUDED THAT THAT IS WHAT IT MEANS AS USED BY THE
`INVENTOR?
`A.
`YES, I CAN.
`Q.
`OKAY.
`A.
`I'LL WRITE AND DRAW. THIS IS THE TOP SECTION OF AN
`INTERVERTEBRAL DISC.
`Q.
`WHEN YOU SAY "TOP," WE'RE LOOKING TOP-DOWN?
`A.
`YES. WE'RE LOOKING TOP-DOWN AS IF -- IF YOU CAN
`INDULGE ME. IF WE COULD TAKE THE SPINE LIKE THIS, LAY IT DOWN
`AND CUT IT DOWN, WE'D BE LOOKING DIRECTLY DOWN ON TOP OF IT,
`AND WE'D SEE THE TOP OF ONE OF THESE VERTEBRAL BODIES WITH THE
`DISC SPACE.
`
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`08-CV-1512
`
`WHEN YOU SAY "DOWN," YOU DON'T MEAN DOWN THIS WAY;
`Q.
`YOU MEAN YOU WOULD BE LOOKING DOWN AT IT THIS WAY?
`A.
`THAT'S CORRECT; THAT VIEW.
`Q.
`OKAY.
`WHAT YOU'VE DRAWN UP THERE, YOU HAVE A LITTLE BUMP
`THERE IN THE BACK. WHAT IS THAT?
`A.
`THIS IS WHERE THE SPINAL CORD SITS BACK HERE.
`Q.
`WHEN WE'RE LOOKING AT THIS SPINE MODEL HERE, WHERE
`WOULD THESE BONY PROJECTIONS COME OUT OF?
`A.
`THESE WOULD BE THE AREA DOWN HERE, AND THIS IS WHERE
`THE SPINOUS PROCESS IS. SO THIS IS THE DORSAL, THE BACK SIDE
`OF THE SPINE. AND THIS IS THE FRONT SIDE OF THE SPINE. THE
`FRONT OF THE BODY IS OUT HERE.
`Q.
`NOW WE WERE DISCUSSING THE SUBJECT "TRANSLATERAL"?
`A.
`YES. AND MY UNDERSTANDING OF TRANSLATERAL, I'M
`DRAWING SOME DIMENSIONS ON THIS. IF WE MARK THIS SPOT TO THAT
`SPOT, AND THIS IS THE TRANSVERSE WIDTH OF THIS VERTEBRAL
`BODY.
`
`MR. DAUCHOT: YOUR HONOR, CAN YOU SEE WHAT THE
`WITNESS IS DRAWING?
`THE COURT: I CAN SEE ENOUGH. I WANT TO MAKE SURE
`THE JURORS CAN SEE. THAT'S FINE.
`THE WITNESS: DOES THAT HELP YOU?
`THE COURT: THAT'S FINE. THANKS.
`THE WITNESS: CAN EVERYONE SEE? PART OF WHAT I'M
`
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`08-CV-1512
`
`USED TO DOING IS TEACHING ANYWAY.
`SO I HAVE A LINE HERE AND A LINE HERE, AND THIS WOULD
`BE THE DEPTH. SO I'M GOING TO MARK THAT. I'LL JUST PUT "D"
`FOR "DEPTH" HERE. AND THIS IS CALLED THE TRANSVERSE WIDTH,
`"TW." TRANSVERSE WIDTH MEANING FROM ONE EDGE, ONE LATERAL SIDE
`OF THE VERTEBRAL BODY TO THE OTHER LATERAL SIDE OF THE
`VERTEBRAL BODY. SO I BELIEVE WHEN WE'RE TALKING ABOUT
`TRANSLATERAL SPINAL IMPLANT WE'RE TALKING ABOUT ONE LATERAL
`SIDE TO THE OPPOSITE LATERAL SIDE, AND THAT'S THE MEASUREMENT.
`SO BASICALLY, I THINK AS WE'VE HEARD, GOING FROM ONE EDGE TO
`THE OTHER, COAST TO COAST.
`Q.
`ALL RIGHT.
`NOW, LET'S TALK ABOUT ON THE TRANSLATERAL IMPLANT.
`PERHAPS YOU CAN USE A DIFFERENT COLOR AND EXPLAIN TO US WHAT
`THE TRANSLATERAL IMPLANT IS RELATIVE TO THOSE DIMENSIONS THAT
`YOU JUST DREW.
`A.
`SO THE TRANSLATERAL SPINAL IMPLANT WOULD BE AN
`IMPLANT THAT RESTS FROM ONE SIDE, ONE EDGE OF THE VERTEBRAL
`BODY TO THE OPPOSITE EDGE OF THE VERTEBRAL BODY COMING ACROSS
`LIKE THIS; AND THEREFORE, IT ENCOMPASSES SITTING ON THE LATERAL
`APOPHYSEAL. WHAT I'VE DONE -- THIS LINE HERE. THIS RING THAT
`I DREW HERE. IF EVERYBODY CAN APPRECIATE THAT, THAT'S
`REPRESENTING THE APOPHYSEAL RING OR THE HARD CORTICAL BONY
`SURFACE AROUND THE EDGE. IT HAPPENS TO GET THINNER IN THE BACK
`AND THICKER IN THE FRONT. THE TRANSLATERAL SPINAL IMPLANT
`
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`08-CV-1512
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`C-E-R-T-I-F-I-C-A-T-I-O-N
`
` I HEREBY CERTIFY THAT I AM A DULY APPOINTED, QUALIFIED
`AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED STATES
`DISTRICT COURT; THAT THE FOREGOING IS A TRUE AND CORRECT
`TRANSCRIPT OF THE PROCEEDINGS HAD IN THE AFOREMENTIONED CAUSE;
`THAT SAID TRANSCRIPT IS A TRUE AND CORRECT TRANSCRIPTION OF MY
`STENOGRAPHIC NOTES; AND THAT THE FORMAT USED HEREIN COMPLIES
`WITH THE RULES AND REQUIREMENTS OF THE UNITED STATES JUDICIAL
`CONFERENCE.
`
`DATED: SEPTEMBER 1, 2011, AT SAN DIEGO, CALIFORNIA.
`
`
`
`
`
`
`/S/ JULIET Y. EICHENLAUB
`JULIET Y. EICHENLAUB,
`OFFICIAL COURT REPORTER
`CSR NO. 12084
`
`1 2 3 4 5 6 7 8 9
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`Page 15
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`HONORABLE MICHAEL M. ANELLO, DISTRICT JUDGE
`MEDTRONIC SOFAMOR DANEK, USA, .
`ET AL., .CASE NO. 08-CV-1512-MMA
`.
`PLAINTIFF,
`.
`.
`V.
`. SEPTEMBER 8, 2011.
`.
`NUVASIVE, INC.,
`. THURSDAY, 9:00 A.M.
`.
`DEFENDANT.
`. TRIAL - DAY SEVEN
`. . . . . . . . . . . . . . . . . ..
`
`REPORTER'S TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANTS:
`
`LUKE L. DAUCHOT, ESQ.
`NIMALKA WICKRAMASEKERA, ESQ.
`SHARRE LOTFOLLAHI, ESQ.
`ALEXANDER F. MACKINNON, ESQ.
`MICHAEL DOBSZEWICZ, ESQ.
`KIRKLAND & ELLIS, LLP
`JEFF SCHWARTZ, ESQ.
`DEWEY & LEBOEUF
`
`FRANK SCHERKENBACH, ESQ.
`JOHN M. FARRELL, ESQ.
`TODD G. MILLER, ESQ.
`JONATHAN J. LAMBERSON, ESQ.
`NEIL WARREN, ESQ.
`KEELEY I. VEGA, ESQ.
`
`COURT REPORTER:
`
`JULIET Y. EICHENLAUB, CSR
`USDC CLERK'S OFFICE
`880 FRONT STREET, ROOM 4290
`SAN DIEGO, CALIFORNIA 92101
`JULIET_EICHENLAUB@CASD.USCOURTS.GOV
`REPORTED BY STENOTYPE, TRANSCRIBED BY COMPUTER
`
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`08-CV-1512
`
`INDEX - 08-CV-1512
`MEDTRONIC V. NUVASIVE, 9/8/11
`
`WITNESSES:
`
` DIRECT CROSS REDIRECT RECROSS
`
`DR. JOHN W. BRANTIGAN
`DR. PAUL C. MCAFEE
`
` 1478
` 1559
`
`1506 1542; 1556
`
` 1553
`
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`08-CV-1512
`
`A.
`
`HIS POINT IS THAT ANNULUS --
`MR. DAUCHOT: I JUST WANT TO PHRASE THE SAME
`OBJECTION I MADE YESTERDAY. IF THIS COMES FROM ACTUAL SURGICAL
`EXPERIENCE, FINE. BUT --
`THE COURT: YES. AGAIN, HE'S NOT HERE TO PROVIDE
`OPINIONS AS AN EXPERT. IT'S JUST TO TELL US ABOUT HIS OWN
`PRACTICE.
`BY MR. MILLER:
`Q.
`SO DOCTOR, BASED ON YOUR OWN PERSONAL EXPERIENCE, CAN
`AN IMPLANT SPAN THE WIDTH OF THE VERTEBRAL BODY WITHOUT
`REMOVING THE ANNULUS?
`A.
`NOT WITHOUT REMOVING THE ANNULUS, NO.
`Q.
`DOES YOUR PATENT TEACH REMOVING THE ANNULUS?
`A.
`NO.
`Q.
`WHY NOT?
`A.
`BECAUSE THE ANNULUS IS PART OF THE STABILITY OF THE
`SPINE; WHEN WE LOSE THE NUCLEAR HEIGHT, THE ANNULUS BECOMES LAX
`AND THAT ALLOWS THE BONES TO SHIFT. THAT'S WHY PEOPLE HAVE
`BACK PAIN. SO WE STRETCH THAT ANNULUS TO ITS NORMAL HEIGHT,
`MAKING IT VERY TENSE, AND WE HOLD THAT POSITION WITH THE
`IMPLANT AND THAT VERY TIGHT ANNULUS PROVIDES STABILITY FOR THE
`IMPLANT. SO IT'S VERY IMPORTANT TO MAINTAIN THE INTEGRITY OF
`THE ANNULUS.
`Q.
`SO DOCTOR, I NOW WANT TO MOVE TO A PORTION OF YOUR
`PATENT THAT SHOWS THIS INSERTION TOOL.
`
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`08-CV-1512
`
`BY MR. MILLER:
`Q.
`AND IS THE LENGTH OF YOUR IMPLANT IN YOUR '327 PATENT
`GREATER THAN HALF OF THE MEDIAL-LATERAL OR SIDE TO SIDE WIDTH
`OF THE VERTEBRA?
`A.
`WE TEACH THEM IT SHOULD BE SUBSTANTIAL OF THE ENTIRE
`LENGTH OF THE VERTEBRAE, YES.
`Q.
`AND BASED ON YOUR '327 PATENT, ARE THESE IMPLANTS
`WIDER THAN THEY ARE TALL?
`A.
`YES, THEY ARE.
`Q.
`NOW, I THINK WE'VE TALKED ABOUT THE FACT THAT YOUR
`IMPLANTS DON'T REST ON THE APOPHYSEAL RING; IS THAT TRUE?
`A.
`THAT'S CORRECT.
`Q.
`THAT'S BECAUSE THE ANNULUS BLOCKS THE RING?
`A.
`THE ANNULUS INSERTS ON THE APOPHYSEAL RING;
`THEREFORE, YOU CANNOT SEAT IT ON THE ANNULUS.
`Q.
`WITHOUT RESTING ON THE RING, WOULD YOUR '327 IMPLANT
`SUBSIDE?
`NO.
`A.
`HOW DO YOU KNOW THAT?
`Q.
`THE BONE OF THE END PLATE IS VERY STRONG. IN FACT,
`A.
`WE DID MECHANICAL STUDIES IN CADAVER SPINES IN WHICH WE SEATED
`THESE IMPLANTS ON THE END PLATE. IN FACT, WE CUT BELOW THE END
`PLATE, PUT THEM IN A TESTING MACHINE AND APPLIED A LOAD; AND
`THESE IMPLANTS SUPPORTED ESSENTIALLY THE SAME LOAD AS A NORMAL
`DISC SUPPORTED. SO BASED ON THAT, WE WERE CONFIDENT THAT THEY
`
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`08-CV-1512
`
`A POINT, BUT I'M HERE JUST TO GET INFORMATION. IF YOU
`COULD JUST ANSWER MY QUESTIONS. I'M NOT ASKING YOU ABOUT
`OTHER SURGERIES THAT I'M NOT SEEING HERE. I'M ASKING YOU
`ABOUT THIS SURGERY, DOCTOR. THIS SURGERY, THE APPROACH,
`THE INITIAL APPROACH WHERE YOU'RE PUTTING THE IMPLANT INTO
`THE INTERVERTEBRAL SPACE GIVEN THE CONNECTION BETWEEN THE
`INSERTION INSTRUMENT AND THE IMPLANT WAS ANTERIOR;
`CORRECT?
`ANSWER: IT'S INCORRECT. IT WAS ANTEROLATERAL.
`QUESTION: ANTEROLATERAL?"
`(VIDEO STOPPED.)
`BY MR. DAUCHOT:
`Q.
`CAN WE STOP THERE FOR A SECOND?
`DOCTOR, YOU'LL AGREE WITH US THAT THERE IS A
`DIFFERENCE BETWEEN ANTEROLATERAL AND DIRECT LATERAL; CORRECT?
`A.
`YES.
`MR. DAUCHOT: ALL RIGHT. CAN WE KEEP GOING, DAVID?
`(VIDEO PLAYED.)
`"QUESTION: YOU'LL AGREE WITH ME THAT THE INSERTION
`INSTRUMENT HERE -- STRIKE THE QUESTION.
`YOU'LL AGREE WITH ME THAT THE STRUCTURE ON THIS
`PARTICULAR DEVICE WOULD NOT ALLOW FOR A LATERAL INSERTION,
`CORRECT, GIVEN THE INSERTION END.
`ANSWER: THE INSERTION TOOL WOULD NOT HELP YOU PLACE
`THIS LATERALLY, NO.
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`08-CV-1512
`
`BY MR. DAUCHOT:
`Q.
`IT SAYS, "FIGURE 11 IS A SECTIONAL VIEW ALONG THE
`LINE XI-XI OF FIGURE 10;" DO YOU SEE THAT?
`A.
`YES.
`Q.
`THE LINE XI-XI IS RIGHT HERE; CORRECT?
`A.
`I CAN'T SEE WHERE YOU'RE POINTING.
`MR. DAUCHOT: DAVID, CAN YOU HIGHLIGHT "XI-XI" UP
`HERE PLEASE?
`BY MR. DAUCHOT:
`Q.
`DO YOU SEE THAT?
`A.
`YES.
`Q.
`NOW, LET'S SEE WHAT WE SHOW FIGURE 11.
`MR. DAUCHOT: DAVID, CAN YOU PUT FIGURE 11 UP? IT'S
`THE FOLLOWING PAGE, TOP LEFT-HAND CORNER.
`BY MR. DAUCHOT:
`Q.
`DO YOU SEE THAT?
`A.
`YES.
`Q.
`FIGURE 11 WAS NOT INSERTED TRANSLATERALLY; CORRECT?
`A.
`YEAH, I HAVE A HARD TIME UNDERSTANDING JUST WHAT THAT
`
`IS.
`
`IT'S YOUR PATENT?
`Q.
`WELL, THERE ARE DETAILS THAT I HAVE A HARD TIME
`A.
`UNDERSTANDING BECAUSE IN FIGURE 10 THE INSERTION TOOL HOLE IS
`LATERALLY, AND I AGREE WITH YOU IN THIS THE INSERTION HOLE IS
`ANTERIOR.
`
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`08-CV-1512
`
`YOUR PATENT IS SAYING THAT FIGURE 11 IS A VIEW OF
`Q.
`FIGURE 10, RIGHT?
`A.
`YES.
`Q.
`THAT'S WHAT THE PATENT SAYS?
`A.
`YES.
`Q.
`YOU UNDERSTAND THAT PATENTS ARE READ BY PERSONS OF
`ORDINARY SKILL IN THE ART; YOU UNDERSTAND?
`A.
`YES.
`Q.
`WHEN WE TALK ABOUT PRIOR ART ISSUES, THE PATENTS
`AREN'T READ THROUGH THE EYES OF THE INVENTOR AS HE TESTIFIES IN
`COURT. THE PATENT IS READ THROUGH A PERSON OF ORDINARY SKILL
`IN THE ART AS THAT PERSON, A NEUTRAL, READS THE LANGUAGE AND
`LOOKS AT THE FIGURES; OKAY?
`A.
`YES.
`MR. DAUCHOT: NOW, DAVID CAN YOU GO UP TO COLUMN SIX,
`LINE 23 PLEASE. DO YOU HAVE THE WHOLE THING THERE, DAVID?
`BY MR. DAUCHOT:
`Q.
`YOU EXPLAIN IN YOUR PATENT WHAT IS SHOWN IN FIGURES
`10 AND 11, CORRECT, YOU SPELL IT OUT?
`A.
`CORRECT.
`Q.
`AND YOU SAY, "AS SHOWN IN FIGURES 10 AND 11, A
`VERTEBRAL DISC FILLS THE DISC SPACE BETWEEN THE VERTEBRA AND A
`LOWER VERTEBRA OF THE VERTEBRAL COLUMN." THEN YOU SAY, "A 'Z'
`SHAPED CUT THROUGH THE TUBULAR FIBROSIS PORTION OF THE DISC
`PROVIDES ACCESS TO THE INTERIOR PULPOSUS PORTION OF THE DISC
`
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`08-CV-1512
`
`SURGICAL PROCEDURE, RIGHT?
`A.
`YES.
`Q.
`NOW A SURGICAL PROCEDURE IS WHERE A SURGEON GOES INTO
`THE SPACE, AND YOU ARE INVOLVED WITH THE PROCEDURE INSIDE THIS
`SPACE; CORRECT?
`A.
`YES.
`Q.
`AND YOU'RE SAYING THAT THE OVAL SHAPE SIMPLIFIES THE
`SURGICAL PROCEDURE SINCE THE DEVICE CAN BE ROTATED; OKAY? YOU
`CAN ROTATE IT AROUND OR REVERSE IT?
`A.
`NOT INSIDE THE DISC.
`Q.
`AND STILL FIT THE VERTEBRA?
`A.
`MANY IMPLANTS ARE INADVERTENTLY PLACED UPSIDE DOWN.
`IF THAT HAPPENS WITH THIS OVAL, IT'S STILL ACCEPTABLE.
`Q.
`WELL, I'M JUST READING THE LANGUAGE.
`A.
`THAT'S WHAT I'M SAYING.
`Q.
`I'M JUST READING THE LANGUAGE. YOUR OVAL SHAPE
`FACILITATES THE SURGICAL PROCEDURE BECAUSE IT CAN BE ROTATED
`WITHIN THE SPACE DURING THE SURGICAL PROCEDURE?
`A.
`NO. IT DOES NOT SAY THAT.
`Q.
`ALL RIGHT. NOW, DR. BRANTIGAN, YOU WILL AGREE WITH
`ME THAT THE BLOOD SUPPLY, THERE IS A BLOOD SUPPLY INSIDE THE
`VERTEBRAL SPACE; CORRECT?
`A.
`YES.
`Q.
`AND THE BLOOD SUPPLY -- AND THERE ARE LITTLE
`CAPILLARIES THAT PROVIDE THE BLOOD SUPPLY; CORRECT?
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`
`CORRECT.
`A.
`THOSE CAPILLARIES ARE CONTAINED JUST UNDERNEATH THE
`Q.
`HARD END PLATE IN THE MIDDLE OF THE VERTEBRAL SPACE; CORRECT?
`A.
`THEY ARE IN THE CANCELLOUS BONE OF THE VERTEBRAL END
`PLATE.
`ALL RIGHT. NOW YOU WILL AGREE WITH ME THAT
`Q.
`CAPILLARIES DO NOT GROW OUT OF THE HARD CORTICAL RING ON THE
`PERIPHERY OF THE VERTEBRAL BODY; CORRECT?
`A.
`THE CORTICAL BONE ON THE PERIPHERY IS THE APOPHYSEAL
`RING NOT THE END PLATE.
`Q.
`YOU'LL AGREE WITH ME -- JUST ANSWER MY QUESTION,
`DOCTOR.
`
`YOU'LL AGREE WITH ME THAT CAPILLARIES DO NOT GROW OUT
`OF THE APOPHYSEAL RING ALONG THE PERIMETER OF THE VERTEBRAL
`BODY; AM I CORRECT?
`A.
`YOU ARE CORRECT.
`Q.
`ALL RIGHT. NOW, DOCTOR, IF YOU COULD TURN TO --
`DAVID -- COLUMN TWO, LINES 14 THROUGH 16. IT STATES IN YOUR
`PATENT THAT THE PERIPHERY OF THE OVAL RING --
`MR. DAUCHOT: DAVE, CAN YOU BLOW UP FIGURE 1 OF THE
`PATENT? THERE WE GO. NOW -- BUT I NEED TO READ BOTH THE
`LANGUAGE AND SEE THE FIGURE, IF YOU CAN WORK THAT MAGIC.
`BY MR. DAUCHOT:
`Q.
`ALL RIGHT. THE PERIPHERY OF THE OVAL RING, THE OVAL
`RING IS YOUR IMPLANT; CORRECT?
`
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`08-CV-1512
`
`OUT OF THE APOPHYSEAL RING WHICH IS THE BOUNDARY ALONG THE
`PERIMETER OF THE DISC SPACE; AM I CORRECT?
`A.
`CORRECT.
`Q.
`CAPILLARIES DON'T GROW OUT OF THAT SPACE, AND THE
`GROOVE PERIMETER IS DESIGNED TO GET CAPILLARIES THAT GROW ONLY
`INSIDE THE SPACE; THAT RING IS DESIGNED TO FIT INSIDE THE RING
`WHERE YOU HAVE, INSIDE THE SPACE WHERE YOU HAVE CAPILLARIES;
`CORRECT?
`YOU ARE MISCHARACTERIZING IT.
`A.
`ALL RIGHT. NOW, DOCTOR, I WANT TO SHIFT GEARS FOR A
`Q.
`MOMENT AND FOCUS ON THE SUBJECT OF LATERAL.
`YOU TESTIFIED TO THE JURY THAT YOUR REFERENCES IN
`THIS PATENT TO LATERAL -- ACTUALLY, YOU TESTIFIED TO THE JURY
`THAT LATERAL TO YOU MEANS COMING IN FROM THIS DIRECTION?
`A.
`A DIRECT LATERAL APPROACH, YES.
`Q.
`I UNDERSTAND THAT IS A DIRECT LATERAL APPROACH. BUT
`IF I UNDERSTOOD YOUR TESTIMONY EARLIER, YOU TESTIFIED TO THIS
`JURY THAT LATERAL MEANS AN APPROACH FROM THIS SIDE COMING IN
`FROM THE SIDE?
`A.
`CORRECT.
`Q.
`ALL RIGHT. NOW, DR. BRANTIGAN, YOU DO KNOW THAT AS
`YOU USED THE TERM LATERAL, YOU'VE USED IT TO MEAN SOMETHING
`THAT IS TO THE SIDE OF THE MIDLINE OF THE VERTEBRAL BODY. SO
`IF WE TAKE THE VERTEBRAL BODY, AND WE LOOK AT IT TOP TO BOTTOM,
`THERE'S A MIDLINE, RIGHT?
`
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`
`YES.
`WE CALL THAT THE MID-SAGITTAL PLANE?
`YOU COULD.
`THAT'S WHAT -- I THINK THAT'S WHAT YOU ALL CALL IT,
`
`A.
`Q.
`A.
`Q.
`RIGHT?
`WE COULD.
`A.
`OKAY. THE MID-SAGITTAL PLANE. SO THAT'S SOMETHING
`Q.
`THAT CROSSES THE VERTEBRAL BODY LIKE THAT. NOW, YOU'VE DEFINED
`LATERAL TO MEAN TO THE SIDE OF THAT LINE; CORRECT?
`A.
`NO.
`Q.
`OKAY. CAN WE TURN TO THE '757 PATENT PLEASE?
`NOW THAT '757 PATENT DESCRIBES THE POSTERIORLY
`INSERTED -- I'M SORRY -- A POSTERIORLY INSERTED BRANTIGAN CAGE;
`CORRECT?
`A.
`Q.
`THAT?
`YES.
`A.
`NOW, TO ORIENT OUR JURORS, IF WE DREW THE
`Q.
`MID-SAGITTAL LINE, THAT'S IT RIGHT THERE, RIGHT? THAT'S THE
`MID-SAGITTAL LINE, DOCTOR?
`A.
`YES, IT IS.
`Q.
`SO THE QUESTION I ASKED YOU EARLIER WAS, YOU DEFINED
`LATERAL TO MEAN TO THE SIDE OF THE MID-SAGITTAL LINE; THAT WAS
`MY EARLIER QUESTION. DO YOU REMEMBER THAT QUESTION?
`
`CORRECT.
`CAN WE TURN TO FIGURE 3 OF THE '757 PATENT? SEE
`
`1 2 3 4 5 6 7 8 9
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`10
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`Page 26
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`
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`08-CV-1512
`
`MR. DAUCHOT: DAVID, CAN YOU TURN TO BR -- PAGE 81 OF
`THIS SET, BR0002901. ALL RIGHT. CAN YOU BLOW UP THE SECOND
`PARAGRAPH FOR ME, DAVID? THANKS.
`BY MR. DAUCHOT:
`Q.
`THAT'S YOUR HANDWRITING, DR. BRANTIGAN; CORRECT?
`A.
`YES, IT IS.
`Q.
`NOW WHAT YOU NOTE HERE IS, "DISC DISTRACTION IS
`ACHIEVED USING THE MODIFIED SYNTHES RETRACTOR. SPECIAL 25
`MILLIMETER VSP SCREWS ARE INSERTED," AND YOUR ORIGINAL TEXT
`SAID, "ONE EACH IN THE MIDLINE INTO THE VERTEBRAL BODY ABOVE
`AND BELOW THE AFFECTED DISC." DO YOU SEE THAT?
`A.
`YES, I DO.
`Q.
`THEN YOU SAID, "ONE EACH LATERALLY OR LATERAL TO THE
`MIDLINE;" CORRECT?
`A.
`CORRECT.
`Q.
`SO THIS IS ANOTHER EXAMPLE WHERE LATERAL TO YOU MEANS
`TO THE SIDE OF THE MID-SAGITTAL LINE; CORRECT?
`A.
`YES. I SAID SAGITTAL TO MIDLINE.
`Q.
`NOW CAN WE TURN TO YOUR TEXTBOOK, DR. BRANTIGAN?
`THAT HAS BEEN MARKED AS DTX 5153. THIS IS YOUR TEXTBOOK,
`CORRECT, DR. BRANTIGAN?
`A.
`YES, IT IS.
`MR. DAUCHOT: DAVID, CAN YOU TURN TO PAGE 3512 OF THE
`TEXTBOOK? OKAY. CAN YOU BLOW UP, IF MY MEMORY IS RIGHT, THE
`TOP FIGURE THERE?
`
`1 2 3 4 5 6 7 8 9
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`
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`08-CV-1512
`
`BY MR. DAUCHOT:
`Q.
`OKAY. NOW, YOU'VE DRAWN IN YOUR TEXTBOOK -- THERE'S
`A LITTLE AREA RIGHT HERE; DO YOU SEE THAT?
`A.
`YES.
`Q.
`ALL RIGHT. LATERAL TO THE SAGITTAL, TO THE
`MID-SAGITTAL LINE; CORRECT?
`A.
`CORRECT.
`Q.
`AND YOU NOTE IN THE TEXTBOOK FIGURE 32-3, THE FAR
`LATERAL-UNILATERAL TLIF APPROACH. DO YOU SEE THAT?
`A.
`CORRECT.
`Q.
`AGAIN, AN EXAMPLE WHEREBY LATERAL YOU ARE TALKING
`ABOUT LATERAL TO THE MIDLINE; AM I CORRECT?
`A.
`NO.
`Q.
`THIS IS LATERAL TO THE MIDLINE; CORRECT?
`A.
`THE WORD LATERAL MODIFIES THE WORD TLIF.
`Q.
`ALL RIGHT. BUT YOU REMEMBER -- SO LATERAL TLIF
`APPROACH BECAUSE YOU PUT THE IMPLANT IN LATERAL TO THE
`MID-SAGITTAL LINE; CORRECT?
`A.
`TLIF DEFINES THE SPECIFIC PROCEDURE. LATERAL IS A
`REFERENCE TO TLIF.
`Q.
`I UNDERSTAND THAT. YOU'RE NOT GOING TO TELL THE
`JURORS THAT A TLIF PROCEDURE -- AND TLIF STANDS FOR
`TRANSFORAMINAL?
`A.
`TRANSFORAMINAL INTERBODY FUSION.
`Q.
`RIGHT. YOU'RE NOT GOING TO SAY THAT'S A DIRECT
`
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`08-CV-1512
`
`LATERAL?
`NO, IT'S NOT.
`A.
`SO LATERAL TLIF IS BASICALLY COMING IN THROUGH HERE,
`Q.
`AND YOU'RE INSERTING THE IMPLANT LATERAL OF THE MID-SAGITTAL
`LINE?
`LATERAL TLIF IS NOT A DIRECT LATERAL APPROACH. I
`A.
`THINK THAT'S WHAT YOU SAID.
`Q.
`NO. MY QUESTION WAS, WHEN YOU DO IT THROUGH A TLIF
`BACK HERE, THAT'S NOT A DIRECT LATERAL?
`A.
`CORRECT.
`Q.
`AND A FAR LATERAL TLIF IS WHERE YOU GO IN THROUGH THE
`BACK, AND YOU PLACE THE IMPLANT AS YOU'VE SHOWN UP HERE,
`ACTUALLY HERE, LATERAL TO THE MID-SAGITTAL LINE; CORRECT?
`A.
`YES.
`MR. DAUCHOT: OKAY. NOW CAN WE GO BACK TO THE '327
`PATENT PLEASE? AND CAN WE PUT UP FIGURE 12 PLEASE? CAN YOU
`BLOW THAT UP FOR US, DAVID?
`BY MR. DAUCHOT:
`Q.
`WHAT WE ARE LOOKING AT HERE ARE DEVICES THAT ARE
`PLACED LATERALLY TO THE MID-SAGITTAL LINE; CORRECT?
`A.
`THAT'S CORRECT.
`Q.
`IN FACT, THE INSERTION TOOL ARE ON THE ANTERIOR
`ASPECT; CORRECT?
`A.
`THAT'S CORRECT.
`Q.
`ALL RIGHT. NOW, DR. BRANTIGAN, YOU HAVE NEVER DONE A
`
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`08-CV-1512
`
`LATERAL INTERBODY FUSION PROCEDURE; AM I CORRECT?
`A.
`THAT'S NOT CORRECT.
`MR. DAUCHOT: CAN YOU, DAVID -- DEPOSITION
`TRANSCRIPT, PAGE 32 LINE 11 THROUGH 13. CAN YOU RUN CLIP 44,
`PLEASE?
`
`(VIDEO PLAYED.)
`"QUESTION: HAVE YOU EVER DONE A LATERAL INTERBODY
`FUSION SURGERY.
`ANSWER: NO I HAVE NOT."
`(VIDEO STOPPED.)
`MR. DAUCHOT: DAVID, CAN WE TURN TO -- LET ME FIND MY
`BEARINGS. WILL YOU TURN BACK TO YOUR BOOK, DR. BRANTIGAN AT
`PAGE 69? CAN YOU PUT THAT UP FOR US, DAVID? THERE WE GO. CAN
`YOU BLOW UP -- LET'S START WITH THE BOTTOM PART.
`BY MR. DAUCHOT:
`Q.
`NOW YOU STATE, "REQUIRED BIOMECHANICAL PROPERTIES OF
`INTERBODY FUSION DEVICES." BEFORE I GET TO THAT, LET ME TAKE A
`STEP BACK. THE BRANTIGAN CAGE SHOWN IN THE '327 PATENT WAS
`DESIGNED BY YOU FOR AN ANTERIOR LUMBAR INTERBODY FUSION
`PROCEDURE; CORRECT?
`A.
`THAT WAS THE COMMONEST INDICATION.
`Q.
`THE IMPLANT SHOWN IN THE '757 PATENT WHICH WE'VE ALSO
`LOOKED AT -- DID I GET THAT NUMBER RIGHT -- WAS DESIGNED FOR A
`POSTERIOR LUMBAR INTERBODY FUSION; AM I CORRECT?
`A.
`CORRECT.
`
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`08-CV-1512
`
`AND YOUR BRANTIGAN CAGES HAVE BEEN FDA APPROVED FOR
`Q.
`ANTERIOR; CORRECT?
`A.
`CORRECT.
`Q.
`POSTERIOR; CORRECT?
`A.
`CORRECT.
`Q.
`AND THEN CERVICAL AS WELL?
`A.
`YES.
`Q.
`ALL RIGHT. THAT'S IT, RIGHT?
`A.
`CORRECT.
`Q.
`NOW, YOU WILL AGREE WITH ME THAT THE DESIGN OF AN
`IMPLANT MUST ACCOMMODATE THE POSITIONING OF THAT IMPLANT IN THE
`VERTEBRAL COLUMN; CORRECT?
`A.
`YES.
`Q.
`SO AN IMPLANT THAT, SAY, HAS A DIMENSION THAT WILL IN
`THEORY FIT WIT
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