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`Dr. Paul McAfee - 12/6/2013
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` NUVASIVE, INC.
` Petitioner
` v.
` WARSAW ORTHOPEDIC, INC.
` Patent Owner
` Patent Number: 8,251,997 B2
` Issue Date: August 28, 2012
` Title: METHOD FOR INSERTING AN ARTIFICIAL
` IMPLANT BETWEEN TWO ADJACENT VERTEBRAE
` ALONG A CORONAL PLANE
` Case IPR2013-00206
` and
` Case IPR2013-00208
`
` The deposition of PAUL MCAFEE, M.D., M.B.A.
`was held on Friday, December 6, 2013, commencing at
`3:50 p.m., at 20 South Charles Street, Suite 901,
`Baltimore, Maryland 21201, before Ronald E. Bennett,
`Notary Public.
`Job No: 68459
`
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`NUVASIVE 1040
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`IPR2013-00206
`IPR2013-00208
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`Dr. Paul McAfee - 12/6/2013
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` NUVASIVE, INC.
` Petitioner
` v.
` WARSAW ORTHOPEDIC, INC.
` Patent Owner
` Patent Number: 8,251,997 B2
` Issue Date: August 28, 2012
` Title: METHOD FOR INSERTING AN ARTIFICIAL
` IMPLANT BETWEEN TWO ADJACENT VERTEBRAE
` ALONG A CORONAL PLANE
` Case IPR2013-00206
` and
` Case IPR2013-00208
`
` The deposition of PAUL MCAFEE, M.D., M.B.A.
`was held on Friday, December 6, 2013, commencing at
`3:50 p.m., at 20 South Charles Street, Suite 901,
`Baltimore, Maryland 21201, before Ronald E. Bennett,
`Notary Public.
`Job No: 68459
`
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`NUVASIVE 1040
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`IPR2013-00206
`IPR2013-00208
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`
`Dr. Paul McAfee - 12/6/2013
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`Page 2
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`APPEARANCES:
`
` ON BEHALF OF NUVASIVE, INC.:
` TODD MILLER, ESQUIRE
` Fish & Richardson
` 12390 El Camino Real
` San Diego, California 92130
`
` - AND -
`
` STEPHEN SCHAEFER, ESQUIRE
` Fish & Richardson
` 3200 RBC Plaza
` 60 South Sixth Street
` Minneapolis, Minnesota 55402
`
`APPEARANCES (Continued on the Next Page)
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` PAUL MCAFEE, M.D., M.B.A.
`
`APPEARANCES CONTINUED:
`
` ON BEHALF OF WARSAW ORTHOPEDIC, INC.:
` LUKE DAUCHOT, ESQUIRE
` STEVEN PAPAZIAN, ESQUIRE
` NIMALKA WICKRAMASEKERA, ESQUIRE
` Kirkland & Ellis
` 333 South Hope Street
` Los Angeles, California 90071
`
`ALSO PRESENT: James Garrett, Esquire, VP NuVasive
` Jonathan Spangler, Esquire, VP NuVasive
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`Dr. Paul McAfee - 12/6/2013
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` INDEX
` Deposition of PAUL McAFEE, M.D., M.B.A.
` December 6, 2013
`
`Examination By: Page
`Mr. Dauchot 5
`
`Exhibit No. Marked
`Exhibit 2028 Trial Testimony 46
`Exhibit 2029 Article 50
`Exhibit 2030 Article 50
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` PROCEEDINGS
`Whereupon,
` PAUL McAFEE, M.D., M.B.A.,
`called as a witness, having been first duly sworn to
`tell the truth, the whole truth, and nothing but the
`truth, was examined and testified as follows:
` EXAMINATION BY MR. DAUCHOT
`BY MR. DAUCHOT:
` Q. Good afternoon, Dr. McAfee. My name is
`Luke Dauchot and I represent Warsaw Orthopedic, Inc.,
`the patent owner, in two proceedings before the United
`States Patent and Trademark Office, which are captured
`IPR 2013 00206 and IPR 2013 00208.
` You submitted one Declaration for each
`proceeding. Is that correct?
` A. Yes.
` Q. All right. The Declaration submitted in
`the 206 proceeding is marked NuVasive 1001. And I'm
`handing that to you, Dr. McAfee. And the Declaration
`submitted in the 208 proceeding --
` What you are saying we have NuVasive 1011,
`the same numbers for the different -- you okay with
`that?
` Off the record.
` (Discussion off the record.)
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`BY MR. DAUCHOT:
` Q. Back on the record. We sorted through some
`housekeeping here. We have two Declarations. You
`submitted one Declaration for each proceeding, right;
`the 206 proceeding and the 208 proceeding?
` A. I believe so. Can I take a look at them?
` Q. Sure. I'm going to hand you a document,
`which is NuVasive 1001, that was submitted in the 206
`proceeding. And I'll hand you NuVasive 1001, which was
`submitted in the 208 proceeding.
` Just for the record the Declaration
`submitted in the 206 proceeding consists of 38 pages
`and the one that you submitted in the 208 proceeding
`consists of 41 pages.
` MR. MILLER: For the record, I'm stating my
`appearance. My name is Todd Miller. I'm with the law
`firm of Fish & Richardson, on behalf of NuVasive and
`Dr. McAfee. With me is Steve Schaefer, also of Fish &
`Richardson, and John Spangler who is with NuVasive.
` THE WITNESS: Yes, I submitted these.
`BY MR. DAUCHOT:
` Q. On the exhibit that has the Declaration
`that has 38 pages, that is your signature that appears
`on Page 38?
` A. Yes, it is.
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` Q. And the one that was submitted in the 208
`proceeding, that is your signature that appears on Page
`41?
` A. I'm sorry, it wouldn't be Page 41.
` Q. My copy says Page 41 of 41.
` A. This is Page 38. That is my signature on
`Page 38 on Document 208.
` Q. No, no. Let's take a step back.
` A. 206. That's my signature on Page 38.
` Q. Right. So 206, that's your signature on
`Page 38. And for the 208 proceeding Declaration,
`that's your signature on Page 41, correct?
` A. On Page 38.
` Q. I really don't want there to be confusion
`here. Let's go off the record again.
` (Discussion off the record.)
`BY MR. DAUCHOT:
` Q. I want to make sure the record is clear.
`You have two exhibits there, Dr. McAfee, in front of
`you. Both are Declarations that you submitted,
`correct?
` A. Correct.
` Q. One of them was submitted in the 206
`proceeding, which consists of 38 pages, correct?
` A. Correct.
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` Q. And your signature appears on Page 38 of
`that exhibit, correct?
` A. Right.
` Q. And then there's a second Declaration that
`you submitted in the 208 proceeding, which consists of
`41 pages?
` A. Correct.
` Q. And your signature appears on Page 41 of
`that Declaration, correct?
` A. Correct.
` Q. Okay. You are being deposed, Dr. McAfee,
`because you submitted Declarations in these matters.
`And we'll be deposing you today with respect to those
`Declarations. Do you understand that?
` A. Yes.
` Q. All right. You understand that you are
`under oath?
` A. Yes, sir.
` Q. Okay. If you don't understand a question
`of mine, Dr. McAfee, you'll ask me to restate it or, if
`need be, rephrase it. But if you do answer a question
`of mine, can I assume that you understand it?
` A. Yes.
` Q. All right. Before answering my question,
`please let me finish my question. Sometimes in the
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`ordinary course of conversation we can get away with
`talking over each other, but that makes it tough on our
`Court Reporter here. And I'll extend you the same
`courtesy, I'll let you finish before I jump in and
`start asking another question. Fair enough?
` A. Yes, sir.
` Q. Please keep all of your responses both
`verbal and audible. I understand the nod of the head
`but our Court Reporter can't take that down. Fair
`enough?
` A. Yes, sir.
` Q. And if you do need a break, Dr. McAfee,
`please let me know. I'll be happy to accommodate you.
`All right?
` A. Yes, sir.
` Q. Now the patent or the rules pertaining to
`this procedure also require that once you are under
`oath and subject to my questioning that you are not to
`discuss the subject matter of my questions or answers
`past or expected off the record until my examination is
`concluded. Do you understand that?
` A. Yes, sir.
` Q. Okay. And you'll abide by those rules, I
`assume?
` A. Yes, sir.
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`Page 10
` Q. Okay. Dr. McAfee, when were you asked by
`NuVasive to become involved in these two IPR
`proceedings?
` A. In approximately February of 2013.
` Q. Do you recall if it was the beginning or
`the end of February?
` A. I do not.
` Q. Is there an engagement letter that covers
`your work in these IPRs?
` A. I believe there is, but I do not have it
`with me.
` Q. Are you being paid pursuant to the terms of
`that engagement agreement?
` A. Yes, sir.
` Q. How much are you being paid?
` A. I'm being paid $750 an hour.
` Q. Now, roughly, how much time did you spend
`on the engagement between the time that you were
`engaged and the time that you signed these two
`Declarations?
` A. I do not remember that.
` Q. Do you have any approximate time?
` A. I would approximate it to be around 20
`hours.
` Q. For both, Doctor?
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` A. Yes, sir.
` Q. Describe for me generally the work that you
`did over the course of the 20 hours to submit these two
`Declarations?
` A. I read various patents. I read various
`patents and articles as part of prior work. I
`formulated an opinion. I discussed the information
`with both Todd Miller and Steve, attorneys from Fish &
`Richardson.
` Q. Steve Schaefer?
` A. I'm sorry. Steve Schaefer. And formulated
`the substance of these two reports.
` Q. I take it you did not draft these reports?
` A. Well, I wrote the major parts of them, but
`I'm not an expert in the legal areas that were covered.
` Q. Okay. Which parts did you personally
`write?
` A. There wouldn't be any way for me to discern
`that, as I did not save any previous drafts.
` Q. Okay. So the drafting process was a
`combined effort between you and that of your attorneys.
`Is that a fair statement?
` A. Yes, sir.
` Q. Okay. And you don't remember exactly which
`parts you wrote versus which ones that the attorneys
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`wrote. Fair statement?
` A. That's correct.
` Q. Okay. But you do obviously stand by the
`substance of the reports, correct?
` A. Yes, I do.
` Q. Okay. In Paragraph 5 of each report, or I
`should say Declaration, you list documents that you
`reviewed. Do you see that?
` A. Yes.
` Q. So let's go to the 38-page Declaration that
`pertains to the 206 proceeding. Are those items listed
`in Paragraph 5 of the Declaration all of the materials
`that you reviewed --
` MR. MILLER: Objection, form.
`BY MR. DAUCHOT:
` Q. -- to prepare this Declaration?
` A. No.
` Q. In fact, as I read it, you do say in the
`last sentence there: I have also reviewed additional
`references cited in this Declaration, but not included
`in the list above. Right?
` A. Correct.
` Q. Okay. I'm just trying to capture the
`totality of items that you actually reviewed to
`specifically prepare yourself for this Declaration. We
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`Page 13
`say that that universe consists of the documents that
`are referenced in the Declaration, as well as those
`specifically listed in Paragraph 5 of the Declaration?
` A. Can you repeat the question.
` Q. Sure. Can we have the Court Reporter
`repeat it.
` (The reporter read back as requested.)
` MR. MILLER: I would interpose an objection
`to form.
` THE WITNESS: The answer to the question
`is, no.
`BY MR. DAUCHOT:
` Q. Okay. What additional documents or items
`did you review?
` A. Well, in order to formulate an opinion of
`the understanding of a person of ordinary skill in the
`art, I'm using my universe of information as a spine
`surgeon.
` Q. Okay. Beyond the information that you have
`accumulated as a result of your experience over the
`course of your years of work as an orthopedic surgeon,
`are -- strike the question. I think I understand where
`you are coming from.
` In addition to what is listed here in
`Paragraph 5 and specifically referenced in the
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`Declaration for the 206, you also bring to the table
`all of the knowledge that you have accumulated over
`your years of practice. Is that what you're saying?
` A. Yes, sir.
` Q. Okay. Does that represent the universe --
` MR. MILLER: Objection, form.
`BY MR. DAUCHOT:
` Q. -- of materials on which you have relied on
`for purposes of this Declaration?
` MR. MILLER: Objection, form.
` THE WITNESS: That's the major part of it,
`yes.
`BY MR. DAUCHOT:
` Q. Okay. Is there anything else?
` A. Well, I would also try to remember my own
`experiences at the time before, for example, 1995.
` Q. Okay.
` A. I'm able to recollect, as I read different
`reports from that time period.
` Q. Okay. Anything else?
` A. Nothing else that comes to mind.
` Q. All right. If we turn to the report for
`the 208 proceeding, would the same hold true, that the
`experience over the years of work that you bring to the
`table, in addition to the items specifically referenced
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`Page 15
`in the Declaration, as well as -- that that constitutes
`the body of art on which you relied in preparing the
`Declaration?
` A. Yes, sir.
` Q. Okay. Do you recall any articles that you
`read or relied on in preparing either of these two
`Declarations that are not specifically listed in the
`Declarations?
` A. No, sir.
` Q. Did you keep notes that reflect your work
`to prepare in the submission of these Declarations?
` A. In terms of a time log, yes. And I turned
`that into my secretary. In terms of other notes, it
`would be simply posted notes on the individual pieces
`of prior art, for example.
` Q. Okay. Any email communications with
`counsel?
` A. Nothing of substance, no.
` Q. Any other written communication with
`counsel?
` A. It would be different drafts and conference
`calls.
` Q. Okay. Any memos on your end that reflect
`conference calls with counsel?
` A. It would be a time log, but no specific
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`content. It's certainly nothing I have saved.
` Q. Okay. Did you have any conversations with
`anyone other than counsel to help you prepare these
`Declarations? And by counsel, I'm referring to
`Mr. Miller and Mr. Schaefer.
` A. Not with regard to the content, no.
` Q. Did you have conversations with anyone
`besides Mr. Miller or Mr. Schaefer with respect -- that
`is associated with these Declarations, beyond other
`than the content?
` A. Well, it would be a conversation with a
`member of the legal staff of NuVasive, such as Jonathan
`Spangler or James Garrett that I would be available to
`have a meeting. So there would be logistical
`conversations or memos. But nothing with significant
`content.
` Q. Okay. So I'm clear. With respect to the
`substance of the two Declarations that you submitted,
`you had no substantive conversations, other than with
`Mr. Miller and with Mr. Schaefer, is that correct?
` A. As far as I remember, that's correct.
` Q. Did you prepare specifically for your
`deposition here today?
` A. Yes.
` Q. What did you do to prepare for your
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`deposition?
` A. I reviewed my Declarations, as well as the
`prior art. I also had discussions with Attorney
`Schaefer and Miller.
` Q. And what was the substance of those
`discussions?
` A. It would be cross linking statements in the
`Declarations and reviewing the prior art that provided
`the background for the particular statements or
`figures.
` Q. What do you mean by "cross linking"?
` A. For example, we would look on Page 11 of
`the 208 and see a figure. And then go back to the '997
`Patent and put that in context. That's not a specific
`reference, but that would be the type of thing that was
`talked about and reviewed.
` Q. Roughly, how much time did you spend with
`attorneys preparing your Declarations?
` MR. MILLER: Objection, form.
` THE WITNESS: I already stated for the
`Declarations it was 20 hours. And I believe you just
`said "Declaration" again. Are you referring to
`preparing for the deposition?
`BY MR. DAUCHOT:
` Q. Yes. I'm including everything. I'm trying
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`Page 18
`to get a sense of how much time you spent with lawyers
`in association with the submission of the Declarations
`and the preparation of the depositions?
` A. I don't have a specific iron clad list, but
`I would give an estimate of an additional 25 hours
`spent between the time of submitting the Declaration to
`this current date.
` Q. Okay. And the bulk of that time was with
`attorneys?
` MR. MILLER: Objection, form.
` THE WITNESS: No, I would state that
`approximately half of the time might be reviewing the
`prior art and my Declarations on my own and
`approximately half was with the attorneys.
`BY MR. DAUCHOT:
` Q. Okay. Now you testified that you were
`compensated for your work in association with these
`IPRs in the amount of $750 per hour, correct?
` A. That's correct.
` Q. Do you know how much you have been
`compensated to date? I guess it's just math, right, 45
`times 750?
` A. That would be the best estimate I could
`give, yes.
` Q. Okay. Now I want to get a bigger, more
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`Dr. Paul McAfee - 12/6/2013
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`Page 19
`complete picture of your association with NuVasive. So
`do you hold any positions with NuVasive today?
` A. I'm a consultant for NuVasive involving the
`porous coated motion disc replacement, which is covered
`in my Declaration under Paragraph 3.
` Q. Are you being paid pursuant to that
`consultancy agreement?
` A. Yes, I'm being paid at the rate of $500 an
`hour.
` Q. And do you have an estimate of how much you
`have been paid to date under that consulting agreement?
` A. Since the purchase of ServiTech by NuVasive
`in 2009, I would estimate at approximately 20 hours per
`quarter or 80 hours per year. That would be my total
`consulting on all -- that's my total estimate of my
`consulting relationship.
` Q. By "total", you mean in conjunction with
`the porous coated motion device?
` A. Yes.
` Q. And in addition to your consulting
`compensation associated with that device, is NuVasive
`paying you anything else in conjunction with the
`device?
` A. Yes. I believe there's a royalty of
`1 percent per year on the net sales of the PCM.
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`Dr. Paul McAfee - 12/6/2013
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` Q. And roughly, how much have you been paid by
`NuVasive to date for those royalties?
` A. The total amount would be less than
`$20,000.
` Q. Okay.
` A. Since 2009.
` Q. Do you have, beyond the particular
`consulting agreement governing the IPRs and the
`consulting agreement pertaining to the PCM device that
`you just, to which you just testified, do you have any
`other financial relationship with NuVasive?
` A. No, sir. I was including XLIF and all
`other products within that $20,000, just to clarify.
` I'm sorry. I've got to back up. I
`included that with the 80 hours per year.
` Q. Okay. So you also have a consulting
`agreement with NuVasive in association with the
`NuVasive's XLIF procedure?
` A. That is the same consulting relationship.
` Q. So that one consulting relationship also
`covers the porous coated motion device?
` A. Yes, sir.
` Q. Okay. So all of your consulting work with
`NuVasive since 2009, has amounted to, roughly, 80 hours
`per year through today, right?
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` A. That's right. 80 hours on the products
`total and 45 hours on the IPR.
` Q. And then NuVasive hired you as well in
`connection with the litigation instituted by Medtronic,
`right, the District Court litigation?
` A. No.
` Q. Well, I took your deposition in the Warsaw
`versus NuVasive matter. Do you recall that?
` A. Yes, sir.
` Q. And you didn't testify -- at the time you
`were under a consulting agreement with NuVasive with
`respect to that litigation. Do you recall that?
` A. Yes, sir.
` Q. Okay. So is that a different consulting
`agreement than the one governing the IPR?
` A. Yes.
` Q. Okay. And that's a different consulting
`agreement than the one covering the porous coated
`motion and the XLIF, correct?
` A. Correct.
` Q. Okay. Do you have a memory of how much you
`were paid under that consulting agreement with respect
`to the litigation?
` A. Yes. I believe it was $28,000.
` Q. Total?
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` A. Yes, sir.
` Q. So you were paid no more than $28,000 for
`all of the investigational work you did in connection
`with -- I'll call it the Michelson translateral case --
`as well as the testimony you provided in Court, as well
`as your deposition. Is that correct?
` MR. MILLER: Objection, form.
` THE WITNESS: That's as best as I can
`recall.
`BY MR. DAUCHOT:
` Q. Has NuVasive engaged you to consult with it
`with respect to the existing District Court litigation
`between Warsaw and NuVasive?
` A. Not that I'm aware.
` Q. Do you teach any courses on behalf of
`NuVasive?
` A. I have not in the past year.
` Q. Have you taught courses for NuVasive before
`that?
` A. Yes, sir.
` Q. Did you get paid for that?
` A. Yes. And that's included in my consulting
`that we have already talked about.
` Q. So that's part of the 80 hours per year?
` A. Yes, sir.
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` Q. Okay. Other than the consulting
`relationship that you just testified to, do you hold
`any positions with NuVasive?
` A. No, sir, not that I can remember.
` Q. Okay. Do you own any stock in NuVasive?
` A. No, I do not.
` Q. Does any person -- by person, I'm talking
`about an individual or a company related to you, own
`any stock in NuVasive?
` A. Not that I'm aware.
` Q. Do you own any interest in NuVasive?
` A. No, sir, not beyond the 1 percent net sales
`of PCM sales.
` Q. Does any company in which you have any
`ownership interest own any interest in NuVasive?
` A. Not that I'm aware.
` Q. Have you ever owned stock in NuVasive?
` A. Not that I specifically remember. I don't
`remember owning it.
` Q. You don't recall ever holding any positions
`with NuVasive?
` MR. MILLER: Objection, form.
`BY MR. DAUCHOT:
` Q. Beyond that of a consultant, to which you
`testified earlier. Am I correct?
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`Dr. Paul McAfee - 12/6/2013
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` A. I don't remember, for example, being on a
`Board of Directors or -- not within the last five
`years, at least. I'll correct that. In the early
`forms of NuVasive, they had a meeting called Spine
`Evolution Nucleus, and I participated in those
`meetings, which I would describe as a think tank. But
`I don't regard that as being a formal position in the
`company.
` Q. When did that end?
` A. In the early 2000s.
` Q. I want to shift gears and touch on the
`subject of fusions in general. You'll agree with me
`that there are many types of spinal fusions?
` A. Yes.
` Q. And you will agree with me that a fusion is
`a procedure designed to correct a pathology with the
`vertebra or the intervertebral space?
` A. It can be.
` Q. What else can it be?
` A. It could correct a problem within the
`vertebrae itself.
` Q. And you're thinking about a corpectomy or
`partial corpectomy?
` A. Yes, sir.
` Q. Beyond what we have covered here, do you
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`see any other reasons for a spinal fusion?
` A. We actually haven't covered any ideologies.
` Q. My question was: Spinal fusion is a
`procedure designed to correct the pathology with the
`vertebra or the intervertebral space, right?
` A. Correct.
` Q. Okay. Is fusion designed to address any
`other pathologies -- spinal fusion?
` A. It involves the vertebrae and the disc
`material and disc spaces, correct.
` Q. Now you'll agree with me that fusion
`procedures can involve the fusion of various aspects of
`the vertebra?
` MR. MILLER: Objection, form.
` THE WITNESS: I would have to have a
`clarification of what you mean by the "aspects".
`BY MR. DAUCHOT:
` Q. Well, you understand that a vertebral body,
`there are different components to a vertebral body,
`right?
` A. Oh, yes.
` Q. Can you tell me what those components are?
` A. Well, there's anterior column, a middle
`column and posterior column, as outlined on Page 5 of
`my Declaration.
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` Q. Right. Just for clarification let's look
`at Page 5 of 38, right, that Declaration? Is that
`where you are?
` A. Page 5 of 208.
` Q. Okay. So Page 5 of 41 submitted in the 208
`proceeding?
` A. Yes, sir.
` Q. Okay. And you'll agree with me that fusion
`procedures exist with respect to just the posterior
`part of the vertebral body, correct?
` A. They can do that, yes.
` Q. And that would, for example, be a fusion of
`the spinal processes, right?
` A. Yes.
` Q. And those fusions don't involve the
`implantation of an implant, correct?
` A. No.
` Q. Am I correct?
` A. No.
` Q. They do involve the implantation of an
`implant?
` A. They certainly could.
` Q. They could. But my question is, do they
`necessarily involve that?
` A. A spine fusion anywhere can be with or
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`without an implant.
` Q. Okay. I want to shift gears and focus for
`a minute on the anatomy of the nerves. If we look at
`the top part of the spinal column, we have a spinal
`cord that runs up and down the back of the vertebral
`column, right?
` A. No.
` Q. Okay. We do have a spinal cord, right?
` A. Yes.
` Q. Where does the spinal cord run?
` A. It runs within the spinal column. It runs
`directly posterior to the middle column.
` Q. Up and down, right?
` A. Correct.
` Q. Now at some point -- we call that,
`depending on what level, we call that the dural sac?
` MR. MILLER: Objection, form.
` THE WITNESS: No.
`BY MR. DAUCHOT:
` Q. Okay. What is the dural sac?
` A. The dural sac is the covering or menages
`around the spinal cord and around the nerve roots.
` Q. Okay. At some point the dural sac -- you
`don't have a dural sac around the spinal nerves that
`run up and down the column, correct?
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` A. Correct.
` Q. And the nerves within the dural sac are
`called the spinal nerves, correct?
` A. Yes.
` Q. And then at some point these spinal nerves
`become what we call -- we call them branches?
` A. No. We would call them nerve roots.
` Q. At what point does a spinal nerve
`transition into a nerve root?
` A. When it exits the spinal cord.
` Q. And the spinal cord is contained within the
`spinal column?
` MR. MILLER: I'm going to lodge an
`objection. I'm giving you some leeway here, but the
`deposition needs to be confined to the scope of the
`Declarations. And this is beyond the scope.
` If you can give us a citation where there's
`any discussion of spinal cord, I'll withdraw the
`objection. I'm not aware of it.
` MR. DAUCHOT: Okay. Can you read my last
`question.
` (The reporter read back as requested.)
` MR. MILLER: If you are not going to make a
`proffer, I'll instruct the witness not to answer, as
`this question is beyond the scope.
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` MR. DAUCHOT: And if you stand by that
`objection, we'll terminate and take it up with the
`Board.
` MR. MILLER: It's up to you.
` MR. DAUCHOT: If you are going to stand by
`the objection, you'll instruct him not to answer?
` MR. MILLER: If you are going to make a
`proffer as to what is --
` MR. DAUCHOT: I'm not going to play that
`game, Todd.
` MR. SCHAEFER: Wait. We are not
`terminating the deposition just on that question.
` MR. MILLER: We'll take it up with the
`Board and move for sanctions.
` MR. SCHAEFER: We need to call the Board
`then. We can call the Board right now.
` MR. DAUCHOT: I'm happy with the record.
`If the witness is going to be instructed not to answer
`the questions about where the spine -- related to the
`anatomy of spine, based on the fact that that's outside
`the scope of his report, I'm perfectly happy to take
`that with the Board.
` MR. SCHAEFER: Okay. Let's call the Board.
` (Brief Recess.)
` MR. DAUCHOT: Here's our position. I don't
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`want to get into a situation where I'm told what's
`within the scope and outside the scope of the report.
`And I don't want to get into a situation where I'm
`beholding to Counsel's instructions not to answer,
`instructions to the witness not to answer.
`
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