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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.,
`)
`)
`)
`)
`) SEPTEMBER 1, 2011
`)
`) THURSDAY, 9:00 AM
`)
`) TRIAL - DAY THREE
`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
`
`1
`
`NUVASIVE 1044
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`IPR2013-00206
`IPR2013-00208
`
`

`

`
`THOSE?
`
`500
` 500
`
`MR. DAUCHOT: NO, YOUR HONOR.
`MR. DAUCHOT:
`NO, YOUR HONOR.
`
`
`
`
`
`THE COURT: ALL RIGHT. THANK YOU, SIR. YOU ARE
`THE COURT:
`ALL R:GHT.
`THANK YOU, S:
`
`
`
`
`
`
`ALL DON .
`YOU CAN STEP DOWN.
`ALL DONE. YOU CAN STEP DOWN.
`
`
`
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`
`
`H HAVH ANOTHHR W TNHSS RHADY?
`DO WE HAVE ANOTHER WITNESS READY?
`
`
`
`
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`
`
`MR. DAUCHOT: YES, YOUR HONOR. FOR THE NEXT
`R. DAUCHOT:
`YES, YOUR HONOR.
`FOR TH:
`
`
`
`
`
`
`L CALL MR. ALEX LUK"ANOV.
`WITNESS, WE CALL MR. ALEX LUKIANOV.
`
`
`
`
`
`
`
`
`HXAM NAT OK OP A'Hx S v. LUK:
`EXAMINATION OF ALEXIS V. LUKIANOV
`
`
`THE COURT: AL'
`THE COURT: ALL RIGHT.
`
`
`
`
`
`WHY DON'T WH TAK:
`“H BRHAK AND JUST COM
`:0
`WHY DON'T WE TAKE A 15 MINUTE BREAK AND JUST COME BACK
`10
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`
`11
`15 MINUTES FROM NOW, WHATEVER TIME THAT IS. OKAY?
`’1
`NUTHS PROM NOW, W
`T MH THAT :S.
`OKAY?
`
`(S
`HSS TAKE.
`(SHORT RECESS TAKEN)
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`T H CLHRK:
`RHMA _
`HATHD AN
`3 TO ORDER.
`THE CLERK: REMAIN SEATED AND COME TO ORDER.
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`T : COURT:
`OJR R:
`RD CAN
`HVHRYBODY "
`THE COURT: OUR RECORD CAN REFLECT EVERYBODY IS
`
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`
`BACK AND WH'RH NOW READY POR TH:
`HSS.
`BACK AND WE'RE NOW READY FOR THE NEXT WITNESS.
`
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`COME ON UP FORWARD, SIR. WHEN YOU GET UP HERE, WE'LL
`COM:
`ON JP FORWARD, S:R.
`W :_
`ET UP H:
`
`
`
`
`
`
`YOU RA SH YOUR R:GHT HAND AN
`EAR YOU :N.
`HAVE YOU RAISE YOUR RIGHT HAND AND SWEAR YOU IN.
`
`
`
`
`
`
`
`THH C HRK:
`PnHASH RA SH YOJR R:GHT HAND.
`THE CLERK: PLEASE RAISE YOUR RIGHT HAND.
`
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`
`
`19
`DO YOJ SOHEMNLY SWHAR THAT TH: Hv DHNCH YOU SHALL G
`19
`DO YOU SOLEMNLY SWEAR THAT THE EVIDENCE YOU SHALL GIVE
`
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`20
`IN THE CAUSE NOW BEFORE THE COURT IS THE TRUTH, THE WHOLE
`20
`H CAUS:
`NOW BHPORH THH COURT
`S THH TRUTH, THE WHOL:
`
`
`
`
`
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`TRUTH AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?
`AND NOTH:NG BUT THE TRUTH,
`SO HELP YOU GOD?
`
`
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`
`THE WITNESS: YES, I DO.
`T H W TNHSS:
`YHS,
`DO.
`
`
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`
`T H C HRK:
`P HASH
`H YOUR FULL NAM
`THE CLERK: PLEASE STATE YOUR FULL NAME FOR THE
`
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`RECORD AND SPELL IT, PLEASE.
`ECORD AND SP:
`T, P HAS
`.
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`
`THE WITNESS: ALEXIS V. LUKIANOV, ALEXIS, MIDDLE
`H W
`HSS:
`HX
`:ANOV, AL:
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`HL ZABHTH CHSHNA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHHRN D STR CT OP CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D HGO, CA 92170
`
`2
`
`

`

`501
` 501
`
`.4 COURT:
`
`
`
`
`
`
`
`'UKIANOV.
` 1
`INITIAL V, LUKIANOV.
`-—I
`GO AH
`THANK S.
`THE COURT: THANKS. GO AHEAD, MR. DAUCHOT.
`EAD, MR. DAUCHOT.
`
`
`
`
` fiXAM NAT ON
`D RfiCT
`DIRECT EXAMINATION
`
` 2
`
` 3
`
`BY MR. DAUCHOT:
`BY MR. DAUCHOT:
`
`GOOD MORNING, MR. LUKI
`GOOD MORNING, MR. LUKIANOV?
`
`
`
`GOOD MORNING.
`GOOD MORNING.
`
`
`
`fl HAVfi MfiT B
`
`
`WE HAVE MET BEFORE?
`
`YES.
`
`I I
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`WHfiN
`
`
`
` WHZ N THfi CAS:
` TOOK YO
`' ON
`
`JR D
`THAT IS WHEN I TOOK YOUR DEPOSITION IN THE CASE WHEN
`
`.
`
`
`
`
`
`
`SOM:
` IS THAT R"
` fiST MONY,
`R OATH AND GAVfi
`YOU WERE UNDER OATH AND GAVE SOME TESTIMONY, IS THAT RIGHT?
`
`ES.
`TiAT'S CORRECT.
`YES. THAT'S CORRECT.
`
`
`
`
`
`
` S TRU
`SN'T
`NOW AS OF ——
`T
`NOW AS OF -- IT IS TRUE, ISN'T IT NOT, THAT AS OF
`IT NOT, TiAT AS OF
`fl,
`
`
`
`
`
`
`
`, ON}
`YOUR CORPORATZ DfiVfiLOBMfiNT OBJ:
`EBRUARY 700'
`FEBRUARY 2001, ONE OF YOUR CORPORATE DEVELOPMENT OBJECTIVES
`
`
`
`
` FY NfiW BQODJCTS TO BROAD:
`QUOTZ
`DfiNT
`WAS TO, AND I QUOTE, IDENTIFY NEW PRODUCTS TO BROADEN THE
`WAS TO, AND I
`
`
`
`
`
`
`
`SYSTfiM
`'fiR NG AND
`OBTAIN A PRODU
`CT O?
`fiNHANCI NG
`OFFERING AND OBTAIN A PRODUCT OR SYSTEM ENHANCING THE FUSION
`
`
`{N
`fl?
`TECHNIQUE?
`
`
`
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`25
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`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`
`
`
`
`
`
`
`
`
`
`T
`
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`
`
`
`
`
`WHAT
`
`
`
`YOU AR:
`{APS.
`I'M NOT SURE
`PERHAPS. I'M NOT SURE WHAT YOU ARE REFERRING TO
`
`
`
`
`AR AS A DOCUMENT.
`EXACTLY, AS FAR AS A DOCUMENT.
`:XACTLY, AS F
`
`
`
`
`
`
` "CAL BROC
` "s,
`1, YOU HAD
`AS OF 200
`j FACT
`THE FACT IS, AS OF 2001, YOU HAD NO SURGICAL PROCEDURE
`
`
`
`
` CO
`THAT WAS TO Y
`THAT WAS TO YOUR SATISFACTION, AM I CORRECT?
`OUR SATISFACTION, AM :
`
`
`
`
`
`
`
`AT TiAT PO NT N T M1
` :N 2001,
`IN 2001, AT THAT POINT IN TIME, WE WERE REALLY IN THE
`A
`
`
` LL DfiVfiLOP NG XLIF.
` flSS OF ST
`
`PROCESS OF STILL DEVELOPING XLIF.
`
`
`
`TITI
`
` N H
`
`
`
`
`YOU WfiRfi ST
`IN 2001
`IN 2001 YOU WERE STILL IN THE PROCESS OF DEVELOPING
`
`Q
`Q
`
`Q
`
`
`
`
`
`
`IF?
`XLIF?
`
`A
`
`
`THAT'S RI
`THAT'S RIGHT.
`
` ABfiTH CfiSfiNA, CSR 12266,
`
`
`
`(619)
` I‘ll-III
`7|
`
`
`
`237—0100
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`
`
` fiRN D STR CT OF CA
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTH
`
`
` fiGO, CA 92170
`SAN D
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037,
`
`3
`
`

`

`Q
`Q
`
`502
` 502
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DO YOU KNOW THAT THfi XL F NAM: D D NOT COME UP JNTI
`DO YOU KNOW THAT THE XLIF NAME DID NOT COME UP UNTIL,
`
`
`
`
`
`
`
`
`
`IT CAME UP IN JANUARY 31, 2001 THEREABOUTS, YOU TRADEMARKED
`IT CAM:
`N JANUARY 31, 2001 TH: HABOUTS, YOU TRAD
`
`
`
`TH:
`THE NAME?
`
`
`
`YES.
`
`OKAY.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`A
`
`Q
`
`A
`
`Q
`
`A
`A
`
`
`
`
`
`
`
`
`
`BUT IT WAS NOT FULLY DEVELOPED UNTIL 2003, SO THERE
`IT WAS NOT FULLY DHVHLOPHD UNTIL 2003,
`SO T
`
`
`
`
`
`
`
`
`
`
`
`
`
`WERE ITERATIONS OF XLIF ALONG THE WAY, BUT FULL DEVELOPMENT
`HR:
`TfiRAT ONS OF XLIF ALONG THE WAY, BUT FULL DHVI'
`
`
`
`
`ND LAUNCH OF IT TOOK PLAC:
`N 7003.
`AND LAUNCH OF IT TOOK PLACE IN 2003.
`
`
`
`
`
`
`
`
`NOW YOU NEEDED, AGAIN JUST TO MAKE SURE WE'RE ALL CLEAR
`NOW YOU NlfiDfiD, AGAIN JUST TO MAKH SURH Wfi'Rfi ALL
`
`
`
`
`
`
`
`
`
`
`
`
`
`HERE, AS OF FEBRUARY 2001, ONE OF YOUR BUSINESS OBJECTIVES
`HRH, AS OF FEBRUARY 200', ONE OF YOUR BUS NHSS OBJHCT
`
`
`
`
`
`
`
`
`WAS TO OBTAIN A PRODJCT OR SYSTfiM fiNHANCING THfi FUS ON
`I1
`WAS TO OBTAIN A PRODUCT OR SYSTEM ENHANCING THE FUSION
`11
`
`
`
`
`
`12
`TECHNIQUE, AM I CORRECT?
`I?
`TfiCHN QUI, AM I CORRECT?
`
`
`
`
`
`
`
`
`
`
`
`
`
`AGAIN, I'M NOT SURE WHICH DOCUMENT YOU ARE REFERRING
`AGA N,
`'M NOT SURI
`CH DOCUMENT YOU AR:
`
`1
` 1
`
` 2
`2
`
`3
` 3
`
`4 5
`
` 4
`
` 5
`
` 6
`6
`
` 7
`7
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`8
` 8
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` 9
`9
`
`10
`I0
`
`13
`I3
`
`I4
`14
`
`15
`I5
`
`16
`I6
`
`17
`I7
`
`I8
`18
`
`19
`I9
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`20
`20
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`21
`21
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`22
`22
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`23
`23
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`24
`24
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`25
`25
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`
`
`
`
`TO.
`TO.
`
`
`
`
`
`
`
`
`ALL RIGHT. LET'S PUT UP PX 3002, PLEASE. PAGE 75,
`Q
`ALL RIGHT.
`LET'S PUT UP PX 3002, PLfiASI.
`
`
`
`
`
`PLEASE, DAVID? PX 3002-75. CAN YOU BLOW THAT UP.
`HASH, DAVID?
`PX 3002—75.
`CAN YOU BLOW TTAT UP.
`
`
`
`
`NOW, DAVE CAN YOU FLIP BACK TO THE FRONT PAGE,
`NOW, DAVE CAN YOU FLIP BACK TO THE FRONT PAG
`
`
`
`
`1
`1.
`BLOW THAT UP.
`PLEASE. BLOW THAT UP.
`
`
`
`
`
`
`
`
`
`THIS IS THE PRESENTATION YOU GAVE FEBRUARY 13,
`TH S
`S THfi PRfiS
`ON YOU GAVI
`'fiBRUARY 13,
`
`
`
`
`
`2001, RIGHT MR. LUKIANOV?
`2001, RIGHT MR. LUKIANOV?
`
`
`
`
`
`
`THAT'S WHAT IT LOOKS LIKE, YES.
`THAT'S WHAT IT LOOKS L Kfi,
`
`
`
`
`
`
`
`
`2001 STRATHG c D RHCT ON M1:
`2001 STRATEGIC DIRECTION MEETING?
`
`A
`A
`
`O
`Q
`
`A
`A
`
`Q
`O
`
`
`
`{AT'S WHAT IT SAYS.
`THAT'S WHAT IT SAYS.
`
`
`
`
`
`ALL RIGHT. NOW, PX 300-2-75, YOU HAVE CORPORATE
`"GHT.
`NOW, PX 300—2—75, YOU HAVE CORPORATE
`
`
`
`
`
`
`
`
`DEVELOPMENT OBJECTIVES, DO YOU SEE THAT?
`D
`HCT VHS, DO YOU Sfifi THAT?
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`fiL ZABHTH CfiSfiNA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHfiRN D STR CT OF CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D fiGO, CA 92170
`
`4
`
`

`

`A
`A
`
`YES.
`YES.
`
`503
` 503
`
` AND NOW AN OBJI
`
`
`
`
` S A GOAL, CORR
`AND NOW AN OBJECTIVE IS A GOAL, CORRECT?
`
`Q A
`
`Q
`
`A
`
`Q
`Q
`
`RI GHT.
`RIGHT.
`
`
`
`
`
`
`
`
`
`
`
` RD GOAL,
`AND YOU HAD IHfi Ii
`"OBTAIN A PRODUCT OR SYSIH
`AND YOU HAD THE THIRD GOAL, "OBTAIN A PRODUCT OR SYSTEM
`
`
`
`
`FUS ON IfiCHN QUfi?"
`
`ENHANCING THfi
`ENHANCING THE FUSION TECHNIQUE?"
`
`A
`A
`
`Q
`Q
`
`CORR CT.
`CORRECT.
`
`
`
`AND TAK:
`
`
` I IHAI AS OF IHAI I
`YOU DID NOT HAV
`AND I TAKE IT THAT AS OF THAT TIME, YOU DID NOT HAVE A
`Mfi,
`
`
`
`fiD THfi FUS ON T fiCHN QUfi,
`NC:
`
`PRODUCT OR SYSIEM IHAI ENHANC
`PRODUCT OR SYSTEM THAT ENHANCED THE FUSION TECHNIQUE, SINCE
`S
`
`
`
`THAT WAS AN OBdfiCI Vfi AS OF FEBRUARY 2001,
`THAT WAS AN OBJECTIVE AS OF FEBRUARY 2001, IS THAT A FAIR
`IS THAT A FAI
`
`
`
`
`
`
`
`
`
`
`
`
`POINT OR NOT?
`POINT OR NOT?
`
`
`
`
`Wfi
`D D HAVE
`
`MOSI C
`NO. WE DID HAVE A PRODUCT, MOST CERTAINLY.
`A PRODUCT,
`
`
` lfiD TO OBTAI
`
`SO WHY DO YOU HAVE AS AN OBdfiCI V1
`
`SO WHY DO YOU HAVE AS AN OBJECTIVE, THE NEED TO OBTAIN
`
`A
`A
`
`Q
`Q
`
`
`
`
`ONI.
`ONE?
`
`
`
`
`
`
` LRAI
`
` T.
`IT'S A PROCESS OF
`I
`I'S TO ADVANC:
`IT'S A PROCESS OF ITERATION, IT'S TO ADVANCE IT.
`ON,
`
` Kfi
`THfi
`
`
`CAN W
`QULST
`CAN WE GO TO PX 3002-101 -- WELL, STRIKE THE QUESTION.
`GO TO PX 3002—101 —— WELL,
`
` N I Mfi,
`
`
`
`AS OF TH S
`PO NI
`
`AS OF THIS POINT IN TIME, 2001, YOU DID SAY THAT NUVASIVE
`2001, YO DID SAY THAT NUVAS
`
`A
`A
`
`Q
`Q
`
`
`
`
`
`
`MUST GROW FASTER, AM I CORRECT?
`MUST GROW FASTER, AM I CORRECT?
`
`A
`A
`
`
`
`
`I ALWAYS SAY THAT.
`I'M SURE THAT'S TRU .
`I ALWAYS SAY THAT. I'M SURE THAT'S TRUE.
`
`
`
`
`
`
`
`
`AND YOUR QUfiSI ON WAS
`{OW CAN YOU GROW NUVAS
`AND YOUR QUESTION WAS HOW CAN YOU GROW NUVASIVE AT A
`Q
`
`
`
`
`
`
`
`
` "'|TI
`
`
`Q
`Q
`
`IGH
`ALL
`T.
`CAN WE
`BLOW THAT UP
`TURN TO PX 3002—106?
`ALL RIGHT. CAN WE TURN TO PX 3002-106? BLOW THAT UP
`
`
`(6L9)
`7|
`
`AB fiTH CfiS
`237—0100
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`fiNA, CSR 12266,
`
`
` fiRN D SIR CI OF CA
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTH
`
`
`
`SAN D
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037,
`fiGO, CA 92170
`
`
`
`
`
`
`
`
`
`
`
`
`AM I CORRECT?
`
`FASTER PACE, AM I CORRECT?
`
`
` _ WOUHD
`I WOULD ASSUME SO, YES.
`ASSJME SO, YES.
`
` ER PACE,
`
`
`
`
`
`A
`A
`
`Q N A
`
`Q
`
`A
`
`
`
`
`
`
`
`
`
`AND AS O
`fiD THAT NUVAS
`1, YOU B1
`F FEBRUARY 200
`AND AS OF FEBRUARY 2001, YOU BELIEVED THAT NUVASIVE
`
`
`
`r
`
`
`
`
`
`
`AIL
`
`AM I
`
` fiD TO CRfi
`
`A NfiW SOURCE OF
`CORR
`EC
`QfiV:
`fl,
`NEEDED TO CREATE A NEW SOURCE OF REVENUE, AM I CORRECT?
`
`RZ'ZQR
`NOT EXAC
`TLY SURE
`WHAT YOU ARfi
`NG TO.
`NOT EXACTLY SURE WHAT YOU ARE REFERRING TO.
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
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`11
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`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`5
`
`

`

` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
` Slfi
` R"GHT.
`
`504
` 504
`
`DAV:
`FOR US, DAVID.
`
`
`
`
`
`
`
`
`
`UNDfiR
` NNOVAT: ON?
` fiW SOURC
`THAT?
`SEE THAT? UNDER INNOVATION? "CREATE NEW SOURCE
`
`
`
`
`
`
`fl AS OF FEBRUARY 2001."
`OF REVENUE AS OF FEBRUARY 2001."
`
`ICT.
`CORRECT.
`
`
`
`
`
`ALL RIGHT. AND YOU SET OUT TO DO THAT, AM I CORRECT?
`AND YOU SET OUT TO DO THAT, AM I
`
`
`
`YES.
`
`
`
`
`
`
`
` fiURO MON
`NOW AS OF 2001, NUVAS
`NOW AS OF 2001, NUVASIVE DID HAVE NEURO MONITORING, AM
`
`
`E CORRECT?
`I CORRECT?
`
` AND TH:
`
`YES.
`YES.
`
`
`
` fiURO MON ”
`
`
`
`
`
`
`
`fl WAS CALL:
`1
`AND THE NEURO MONITORING DEVICE WAS CALLED INS 1, AM I
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`
`
`
`
` ECT?
`CORRECT?
`
`
` RfiL
`
` fiVfi
`I BELIEVE SO, YES.
`SO, Y
`
`
`
`
`
`
` DUAL RY TH:
`AND DO YOU RECA'
`AND DO YOU RECALL AN INDIVIDUAL BY THE NAME OF KEN
`
`A
`
`Q
`
`
`
`
`WARNER?
`
`
`
`
`
`
`
`I BELIEVE SO, YES.
`fl SO, YES.
`
`A
`
`
`3. KEN WARN R?
`WHO IS MR. KEN WARNER?
`
`
`
`
`
`
`{fl WAS A SAHfiS RfiFRI
`fiNTAT
`I THINK HE WAS A SALES REPRESENTATIVE.
`
`
`
`
`
`
`ON W TH NfiURO MON ”
`NG?
`WORKING ON WITH NEURO MONITORING?
`
` TH
`
`
`
`
`NK Hfi WAS A SAHfiS RfiFRI
`fiNTAT Vfi F
`QOM NEW YORK AND
`I THINK HE WAS A SALES REPRESENTATIVE FROM NEW YORK AND
`
`
`
`
`E MAY
`{AVE
`
`
`
`
`
`
`A) SOMZ
`NVOWVfiMfiNT
`N DfiVfiLOF
`HE MAY HAVE HAD SOME INVOLVEMENT IN DEVELOPMENT, AS WELL.
`
`
`
`
`
` MfiNT, AS WELL.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`Q
`
`
`
`
` JS '3 FOR P fiD CTI
` QfiW
`
`
`
`
`
`ATI-I R__
`G T.
`AND DO YOU RECAL
`YOUR
`ALL RIGHT. AND DO YOU RECALL THAT AS OF 2001, YOUR
`1 THAT AS OF 2001,
`
`
`
`
`
`
`SALfiS RfiBRfi
`SfiNTAT Vfi WAS FRUSTRATED THAT TH
`fl NfiURO
`SALES REPRESENTATIVE WAS FRUSTRATED THAT THE NEURO
`
`
`
`
`
`
`
`
`
`
`
`
`MON TOR
`NG SYSTEM YOJ WfiRfi US NG WAS R1 NG
`I.
`MONITORING SYSTEM YOU WERE USING WAS BEING USED FOR PEDICLE
`
`
`
`
`
`
`
`
`
`
`SCREW TRUST
`INC AND TiAT AS USED FOR P: CL:
`TfiSr
`SCREW TRUSTING AND THAT AS USED FOR PEDICLE SCREW TESTING,
`NG,
`
`
`
`
`
` :T WASN'T R
`EALLY SfiL' NG?
`IT WASN'T REALLY SELLING?
`
`
`
`
`
`
`
`
`237—0100
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`fiL ZARfiTH CfiSfiNA, CSR 12266,
`(619)
`
`
`
`
`
`CA
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHfiRN D STR CT OF
`
`
`
`2170
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D fiGO, CA 9
`
`6
`
`

`

`
`
`
`
`
`
`
`NO.
`I DON'T RECALL THAT SPfiC ' CALLY.
`NO. I DON'T RECALL THAT SPECIFICALLY.
`
`A
`A
`
`505
` 505
`
`Q
`Q
`
`
`
`
`
`OKAY.
`CAN WE PUT UP PX 2543?
`ALL RIGHT.
`CAN YOU BI
`OKAY. CAN WE PUT UP PX 2543? ALL RIGHT. CAN YOU BLOW
`
`
`
`
`
`
`
`UP THfi F RST?
`TH S
`S A —— CAN YOU BLOW JP THE BOTTOM ON:
`UP THE FIRST? THIS IS A -- CAN YOU BLOW UP THE BOTTOM ONE,
`
`
`
`
`
`
`DAVID. NO. NO. NO. THE TITLE, THE FRONT TWO.
`DAVID.
`NO.
`NO.
`NO.
`THfi T TLfi, THfi FRONT TWO.
`
`
`
`
`
`
`
`
`
`ALL RIGHT.
`TH S
`S A MEMORANDUM AND fi—MA L
`ALL RIGHT. THIS IS A MEMORANDUM AND E-MAIL
`
`
`
`OCTOBER 9, 2001 FROM MR. KEN WARNER TO ALEX LUKIANOV, DO YOU
`I
`2001 FROM MR. KEN WARNER TO ALEX LUKIANOV, DO YOU
`
`
`
`SEE THAT?
`
`
`
`
`
`
`
`
`
`NO.
`PX 2543?
`NO. PX 2543?
`
`
`
`
`
`
`IT'S UP ON THZ
`IT'S UP ON THE SCREEN?
`
`OKAY.
`OKAY.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`AND THE TITLE IS CALLED INS CHALLENGES, DO YOU SEE
`AND THZ
`1
`1
`NS CHALL:
`fiS, DO YOU S11
`
`A
`A
`
`Q
`Q
`
`A
`A
`
`Q
`Q
`
`THAT?
`THAT?
`
`A
`A
`
`Q
`Q
`
`
`
`Y1
`DO.
`YES, I DO.
`
`
`
`
`
`AH'
`I 4T.
`NOW IF YOU GO TO T
`1
`' RST PARAGRAPH I
`ALL RIGHT. NOW IF YOU GO TO THE FIRST PARAGRAPH IN
`
`
`
`BOLDFAC'.
`*l'S *lXPLA N NG TO YOU T AT "THE. SCR4'.W T4'.Sr
`BOLDFACED, HE'S EXPLAINING TO YOU THAT "THE SCREW TEST IS
`
`
`
`
`
`
`
`
`
`
`
`NOT SEXY IN THE EYES OF THE DISTRIBUTOR," DO YOU SEE THAT?
`NOT S1
`”
`1
`fiYfiS OF THfi D STR BSTOR," DO YOJ S11
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
` 1
`
`2
` 2
`
`3
` 3
`
` 4
`4
`
`5
` 5
`
` 6
`6
`
`7 8
`
` 7
`
` 8
`
`9
` 9
`
`I0
`10
`
`11
`I1
`
`I2
`12
`
`I3
`13
`
`I4
`14
`
`’5
`15
`
`16
`I6
`
`I7
`17
`
`I8
`18
`
`I9
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`A
`A
`
`
`I DO.
`
`
`
`
`
`
`
`
`NOW THfi SCRfiW TfiST THAT MR. WARN:
`NOW THE SCREW TEST THAT MR. WARNER IS REFERRING TO IS
`
`
`
`
`
`
`
`fl USfi OF NEURO MON TOR NG TO TEST T
`THE USE OF NEURO MONITORING TO TEST THE INTEGRITY OF A
`
`
`
`
`
`PEDICLE SCREW PLACEMENT, AM I CORRECT?
`1
`CLfi SCRfiW PLACfiMfiNT, AM I COAX
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`A
`A
`
`Q
`Q
`
`
`
`
`
`
`YES, I BELIEVE THAT'S WHAT HE IS REFERRING TO.
`YfiS,
`BZH fiVfi THAT'S WHAT {1
`S RfiFfiRR NG TO.
`
`
`
`
`
`
`
`
`
`SO THE JURORS UNDERSTAND, DR. MICHELSON TESTIFIED IN
`SO THE JJRORS UND RSTAND,
`R. M CHfiLSON TfiST F fiD
`N
`
`
`
`
`
`THIS CASE TO THREE PROCEDURES BEING DONE BY SURGEONS, ONE A
`T{IS CASE TO TiRifi PROCfiDJRZ
`1 NG DONE BY SUQGEONS, ONE A
`
`
`
`DECOMPRESSION, ANOTHER ONE A FUSION AND HE ALSO SPOKE OF AN
`DECOMPRfiSS ON, ANOTHfiR ONI
`'
`ION AND HE ALSO SPOKE OF AN
`
`
`
`
`
`
`
`
`
`
`INSTRUMfiNTAT ON PROCfiDJRZ
`1
`1 YOU HfiLP F X THfi SP Nfi SO
`INSTRUMENTATION PROCEDURE WHERE YOU HELP FIX THE SPINE SO IT
`
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`fiL ZABfiTH CfiSfiNA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHfiRN D STR CT OF CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D fiGO, CA 92170
`
`7
`
`

`

`506
` 506
`
`
`
`
`
`
`
`
`
`
`
`A
`A
`
`Q
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`
`DOES NOT MOVE PROM THE BACK.
`AR
`DOES NOT MOVE FROM THE BACK. ARE YOU FAMILIAR WITH THE
` 1
`
`
`
`
`
`P XAT ON OR INSTRUMENTAT ON PROC
` 2
`FIXATION OR INSTRUMENTATION PROCEDURE?
`
`
`
`REL *ZVE. SO .
`I BELIEVE SO.
`
`
`
`
`
`
`
`
`AND ON: NSTRUMI.” ” ON PROCI
`1
`S TO TAK
`AND ONE INSTRUMENTATION PROCEDURE IS TO TAKE A SCREW
`
`A
`
`
`
`
`
`
`ND PUT IT THROUGH T
`1
`fl THAT WE CALL THfi PfiD
`AND PUT IT THROUGH THE BONE THAT WE CALL THE PEDICLE,
`
`
`
`
`
`
`PEDICLE BACK HERE, CORRECT?
`fiD CLfi RACK HfiRfi, co.
`
`
`RIGHT.
`RIGHT.
`
`A
`
`Q
`
`A
`
`
`
`
`
`
`
`
`
`
`
`
`WHAT YOU HAVZ
`S YOU HAVfi A SfiR fiS OE SCREWS CONN:
`WHAT YOU HAVE IS YOU HAVE A SERIES OF SCREWS CONNECTED
`
`
`
`
`
`
`
`
`
`WITH A ROD AND THAT HELPS PROVIDE STABILITY, CORRECT?
`ITH A ROD AND THAT HELPS PROV Dfi STAR L TY, CORRECT?
`fl
`ES.
`YES.
`
`
` fl NfiURO MON TOR NG THAT INS 1 SYSTEM THAT YOU
`
`
`
`
`AND THE NEURO MONITORING THAT INS 1 SYSTEM THAT YOU
`
`
`
`
`
`131
`NG WAS R1 NG SOLD AS A WAY FOR SURGEONS TO KNOW I
`WERE USING WAS BEING SOLD AS A WAY FOR SURGEONS TO KNOW IF
`
`
`
`
`
`
`
`
`
`THE, AS THEY WERE DRILLING THE SCREW INTO THE SPACE, WHETHER
`T13,
`TifiY WfiRfi DR L] NG THfi SCRfiW NTO TiE SPACfi, WHfiTH:
`
`
`
`
`OR NOT THE SCREW HAD PfiNfiTRATfiD THQOUGH THE SPACE AND WAS
`OR NOT THE SCREW HAD PENETRATED THROUGH THE SPACE AND WAS
`
`
`
`
`CLOSE TO A NERVE, CORRECT?
`HOSE TO A NfiRVfi, CORRECT?
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`2O
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`A
`
`Q
`
` {fl CH 1'
`
`
`
`
`
`
`
`
`ES.
`T{AT WAS ONE OP THfi CH fiP APPL CAT ONS.
`YES. THAT WAS ONE OF THE CHIEF APPLICATIONS.
`
`
`
`
`
`THE CHIEF APPLICATIONS, CORRECT? AND WHAT YOU
`CAT ONS, CORRECT?
`AND WHAT YOU
`
`
`
`
`
`
`
`
`ERSTOOD I_
`IS THAT THAT CH fiE APPL CAT ON EOR N.
`UNDERSTOOD IN 2001, IS THAT THAT CHIEF APPLICATION FOR NEURO
`
`
`
`
`
`MONITORING WAS NOT DOING WELL, CORRECT?
`TOR NG WAS NOT DO NG WfiLL, CORRECT?
`
`A
`
`Q
`
`A
`
`
`
` WE'
`
`
`NO.
`I WOULDN'T SAY TiAT'S TRU .
`NO. I WOULDN'T SAY THAT'S TRUE.
`
`
`
`
`
`
`
`
`
`WELL, YOU DON'T, MR. WARNER SAID THERE WAS A CHALLENGE
`WEHH, YOU DON'T, MR. WARNER SA D THfiRfi WAS A CHALL:
`
`
`
`
`
`
`
`
`WITH SCREW TESTING, IN TERMS, "IT WAS NOT SEXY?"
`ITH SCREIW T*1ST NG,
`N TERMS,
`IT WAS NOT SEXY?"
`
`
`
`
`
`
`
`
`
`
`WELL THAT DOESN'T MEAN IT'S NOT WORKING, DOES IT?
`'. THAT DOESN'T M*'.AN T'S NOT WORKING, DO*'.S
`T?
`
`
`
`
`
`
`I DON'T KNOW WHAT HE MEANS BY, "IT'S NOT SEXY." I
`I DON'T KNOW WiAT Hfi M1 NS RY, "IT'S NOT SEXY.
`
`
`
`
`DON'T THINK ANY OF OJR PRODUCTS ARE SUPPOSED TO Rfi SfiXY.
`DON'T THINK ANY OF OUR PRODUCTS ARE SUPPOSED TO BE SEXY.
`
`
`
`
`
`
`
`
`
` fiL ZARfiTH CfiSfiNA, CSR 12266,
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHfiRN D STR CT OP CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D fiGO, CA 92170
`
`8
`
`

`

`
`
`
`
`
`
`
`
`OKAY. CAN WE GO TO THE NEXT PARAGRAPH, TWO? YOU WERE
`Q
` 1
`OKAY.
`CAN W3
`EXT PARAGRAPH, TWO?
`YOU W:
`1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`7
`_EPORTED TO I.
`E SCREW TEST
`S S:EN TO R1
` 2
`BEING REPORTED TO IN 2001, "THE SCREW TEST IS SEEN TO BE NOT
`
`
`
`
`
`
`
`VE AS OTHER PRODUCTS."
`DO YO
`S:E THAT?
`AS LUCRATIVE AS OTHER PRODUCTS." DO YOU SEE THAT?
`
`
`
`DO.
`YES, I DO.
`
`507
` 507
`
`
`
`
`
`
`
`
`A
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`AND THE CONCERN WAS THAT SIMPLY SELLING IT, YOUR NEURO
`AND TH: CONCERN WAS THAT S MPLY SELL NG
`T, YOJR NEURO
`
`
`
`
`
`MONITORING AS PART OF A SCREW TEST, WAS NOT DOING WHAT YOU
`_
`R NG AS PART OF A SCREW TEST, WAS NOT DOING WEAT YOU
`
`
`
`
`
`
`
`
`
`
`
`
`NEEDED IN TERMS OF GENERATING REVENUE, IS THAT CORRECT?
`::
`:
`N TERMS OF G: ERAT NG REVENUE,
`S THAT CORRECT?
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`EL ZARETH CESENA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN D STR CT OF CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D EGO, CA 92170
`
`3
` 3
`
`4
` 4
`
` 5
`5
`
` 6
`6
`
` 7
`7
`
`8 9
`
` 8
`
` 9
`
`IO
`10
`
`11
`11
`
`:2
`12
`
`I3
`13
`
`I4
`14
`
`:5
`15
`
`I6
`16
`
`I7
`17
`
`:8
`18
`
`:9
`19
`
`20
`20
`
`21
`21
`
`77
`22
`
`25
`25
`
`NO.
`
`AT'S INCORR
`THAT'S INCORRECT?
`
`
`
`
`
`
`
`
`
`A
`
`Q
`
`A
`
`Q
`
`
`
`A
`
`
`
`
`
`
`
`AT'S INCORR
`THAT'S INCORRECT.
`
`
`
`
`
`
`
`
`
`
`SO YOUR 90$ '1'
`ERE TODAY IS T
`SO YOUR POSITION HERE TODAY IS THAT THE NEURO
`
`
`
`
`
`
`
`
`
`
`
`TOR NG SYSTEM SOLD AS PART OF A P:
`MONITORING SYSTEM SOLD AS PART OF A PEDICLE SCREW SYSTEM WAS
`
`
`
`.Y S:1L NG VERY WELH?
`ACTUALLY SELLING VERY WELL?
`
`
`
`
`
`
`
`
`
`WE W:RE SELL NG
`T AND IT WAS PART OF OUR RR DG
`WE WERE SELLING IT AND IT WAS PART OF OUR BRIDGING
`
`
`
`
`
`
`
`
`
`ESS TO RU 1D NG OUT TEE COMPANY AND
`TE NK WHAT
`PROCESS TO BUILDING OUT THE COMPANY AND I THINK WHAT HE'S
`
`
`
`
`
`
`
`
`
`
`':RR NG TO HER:
`S THAT IT'S NOT ENOUGH REVENJ:
`REFERRING TO HERE IS THAT IT'S NOT ENOUGH REVENUE WITH WHICH
`
`
`
`
`
`
`
`
`STR RUTOR.
`A D STR RJTOR WOULD N:
`TO ENGAGE A DISTRIBUTOR. A DISTRIBUTOR WOULD NEED MUCH MORE
`
`
`
`
`
`
`
`
`
`ER TO BE ABLE TO SWITCH TO NUVAS V:
`REVENUE IN ORDER TO BE ABLE TO SWITCH TO NUVASIVE. SINCE
`
`
`
`
`
`
`Ln VERY YOUNG AND VERY FORMAT
`THE COMPANY WAS STILL VERY YOUNG AND VERY FORMATIVE, WE
`
`
`
`
`
`
`
`
`
`COJLDN'T
`1E TO SW TCH ENT RELY OVER TO JS W“
`COULDN'T EXPECT PEOPLE TO SWITCH ENTIRELY OVER TO US WITHOUT
`
`
`
`
`
`
`
`TEEM HAVING A FULL PORTFO' O OF PRODUCTS.
`TEAT'S WHAT
`THEM HAVING A FULL PORTFOLIO OF PRODUCTS. THAT'S WHAT WE'VE
`
`
`
`
`
`R:EN RU L3 NG OUT FOR WELH OVER A DECADE NOW.
`A FULL
`BEEN BUILDING OUT FOR WELL OVER A DECADE NOW. A FULL
`
`
`
`
`
`
`PORTFOLIO OF PRODUCTS AND AHLOWED US TO ULT MATELY GO
`23
`PORTFOLIO OF PRODUCTS AND ALLOWED US TO ULTIMATELY GO
`23
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`74
`EXCLUS VE W TH OUR SALES FORCE.
`TH S
`S A VERY RUD M:
`24
`EXCLUSIVE WITH OUR SALES FORCE. THIS IS A VERY RUDIMENTARY
`
`
`
`
`
`
`
`
`
`PER OD
`N
`E COMPANY'S DEVELOPMENT.
`PERIOD IN THE COMPANY'S DEVELOPMENT.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`9
`
`

`

`1
` 1
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`2
` 2
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`3
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`5
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`6
` 6
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`9
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`10
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`11
`11
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`12
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`13
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`14
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`16
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`17
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`18
`18
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`19
`19
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`20
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`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`Q
`
`AS OF 2001?
`AS OF 2001?
`
`508
` 508
`
`
`YES.
`YES.
`
`
`
`
`
`
`
`
`OKAY. NOW THE THIRD POINT, CAN YOU GO TO THE THIRD
`OKAY.
`NOW THfi TH RD POTNT, CAN YOU GO TO THfi TH
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`POINT.
`YOUR D STR BUTOR
`S TfiLL NG YOU Wfi PAC: WTfiNS:
`POINT. YOUR DISTRIBUTOR IS TELLING YOU WE FACE INTENSE
`
`
`
`
`
`
`
`
`
`
`
`
`COMPETITION FROM THE NEURO PHYSIOLOGIST, DO YOU SEE THAT?
`COMP?
`T ON PROM THfi NfiURO PHYS OLOG ST,
`30 YO
`Slfi
`r
`
`
`I DO.
`
`
`
`
`
`
`
`
`
`EURO PHYS OLOG
`”
`ERSON WHO D
`AND A NEURO PHYSIOLOGIST IS A PERSON WHO DEALS WITH
`
`A
`
`Q
`
`A
`A
`
`Q
`Q
`
`
`
`
`
`NEURO MONITORING, CORRECT?
`NZ
`R NG, CORRECT?
`
`
`
`
`YES.
`
`
`
`
`
`
`
`
`N THAT AREA?
`CORR
`A SPECIALIST IN THAT AREA? CORRECT?
`
`YES.
`
`
`
`
`
`
`
`
`
`
`
`
`AND WHAT IS BEING REPORTED TO YOU IN 2001, DO YOU HAVE
`AT
`S B1 NG RfiPORTfiD TO YOJ
`:N 2001, DO YOU HAV
`
`
`
`
`
`
`
`
`
`A MI
`AT TH: NfiUROPiYS 030G ST WfiRfi WfiLL fiNTRfiNCHfiD AND
`A MEMORY THAT THE NEUROPHYSIOLOGIST WERE WELL ENTRENCHED AND
`
`
`
`
`
`
`
`
`
`_
`_fiURO MON TOR NG POR PERCUTANfiOJS
`NWfiR BODY WORK.
`USING NEURO MONITORING FOR PERCUTANEOUS INNER BODY WORK.
`
`
`
`DO YOU RECALL TiAT?
`DO YOU RECALL THAT?
`
`
`ERCUTANfiOUS
`NTfiRBODY WORK.
`FOR PERCUTANEOUS INTERBODY WORK.
`
`
`
`
`1
`S R?
`YES, SIR?
`
`
`
`.
`I DON'T RECALL THAT.
`NO. I DON'T RECALL THAT.
`
`
`
`
`
`
`
`
`
`
`
`
`
`A
`A
`
`Q
`Q
`
`A
`A
`
`Q
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`YOU UNDERSTAND THAT BY PERCUTANEOUS INTERBODY, WE'RE
`YOU UNDERSTAND THAT BY PERCUTANfiOUS NTfiRBODY, W1
`
`
`
`
`
`
`
`
`
`
`
`ENG ABOJT A M N MALLY
`NVAS Vfi TO GET TO THfi
`NNfi
`TALKING ABOUT A MINIMALLY INVASIVE TO GET TO THE INNER BODY
`
`
`I
`RECT?
`SPACE, CORRECT?
`
`
`
`
`
`
`
`
`
`
`
`YOU'Rfi SAY
`fiURO PHYS
`YOU'RE SAYING NEURO PHYSIOLOGISTS WERE MONITORING THAT
`
`
`
`AT THAT T W1
`AT THAT TIME?
`
`A
`
`
`
`
`
`
`
`
`
`
`
`
`NO.
`I
`_
`'M TRY__NG TO G*'.T TH*'. WORDS SO W*'.'R'.
`NO. I'M SAYING I'M TRYING TO GET THE WORDS SO WE'RE ON
`
`
`
`
`
`
`
`THE SAME PAGE. WHEN WE'RE TALKING ABOUT PERCUTANEOUS,
`THfi SAM:
`1.
`1
`fi'Rfi TALK NG ABOUT PERCUTANEOUS,
`
`O
`Q
`
`
`
`
`
`
`
`
`
`
`
`
` fiL ZABfiT
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`CfiSfiNA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHfiRN D STR CT OP CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D fiGO, CA 92170
`
`
`
`10
`
`10
`
`

`

`
`
` GHT?
`THAT'S M N MAHLY NVAS V1
`THAT'S MINIMALLY INVASIVE, RIGHT?
`
`
`
`
`
`A
`
`
`
`
`
`
`THAT _EALLY JUST MEANS GOING THROUGH TH
`PERCUTANEOUS, THAT REALLY JUST MEANS GOING THROUGH THE
`ERCUTANEOUS,
`
`509
` 509
`
`
`SKIN.
`
`Q
`
`
`
`
`
`
`
`AND WH AN W1
`SK N.
`GOING THROJGH THA
`ALL RIGHT. GOING THROUGH THE SKIN. AND WHEN WE ARE
`
`
`
`
`
`
`
`
`
`
`TALKING ABOUT INTER BODY, WE ARE TAKE ABOUT THE SPACE
`NTAR BODY, WA ARA TARA ABOUT THE SRAC:
`
`
`
`
`
`
`: ~ABRAL BODY?
`BETWEEN THE VERTEBRAL BODY?
`
`
`
`
`
`
`
`
`YES.
`
`A
`
`
`
`
`
`
`
`
`
`NOW AS BEING REPORTED TO YOU IN 2001, DO YOU RECALL
`Q
`NOW AS B: NG RARORTAD TO YOU :N 2001, DO YOU RECALL
`
`
`
`
`
`
`
`
`
`
`
`
` STS OUr
`: NC RARORT:3 TO YOU THAT THARA WARA NAURORHYS OLOG
`BEING REPORTED TO YOU THAT THERE WERE NEUROPHYSIOLOGISTS OUT
`
`
`
`
`
`
`
`
`
`
`
`:RA WAO W:RA JS NG NAURO MON TOR NG TO HELR ACCASS THE
`THERE WHO WERE USING NEURO MONITORING TO HELP ACCESS THE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 'M?
`
`
`
`
`
`ELL
`NN:R BODY SPAC: AND :F YOJ D:DN'T REACT AND DO TAAT AS W:
`INNER BODY SPACE AND IF YOU DIDN'T REACT AND DO THAT AS WELL
`
`
`
` L
`
`
`
`
`
`
`AND STUCK WITH PEDICLE SCREW SYSTEMS, YOU'D HAVE A PROBLEM?
`AN) STUCK W TH RAD C'A SCRAW SYSTEMS, YOU'D HAVE A RROBL
`
`
`
`
`
`DO YOU RECALL TAAT B: NG RARORTAD TO YOU?
`DO YOU RECALL THAT BEING REPORTED TO YOU?
`
`
`
`
`
`
`
`
`
`
`
`NO.
`TH NK YOJ ARA M SSTAT NG T.
`NO. I THINK YOU ARE MISSTATING IT.
`
`
`
`
`
`
`
`
`
`
`
`NO. MY QUESTION IS, DO YOU RECALL THAT BEING REPORTED
`NO.
`MY OUAST ON
`S,
`30 YOU RECALL THAT B:
`
`A
`A
`
`Q
`O
`
`
`
`
`
`
`
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`5
`
`6
` 6
`
`7
` 7
`
` 8
`8
`
`9
` 9
`
`10
`10
`
`’1
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`’8
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`TO YOU?
`TO YOU?
`
`
`
`
`
`
`
`
`
`
`
`
`
`ALL
`N THAT CAS:
`NK YOU M:
`WELL IN THAT CASE, NO. BECAUSE I THINK YOU MISSTATED
`
`A
`
`
`IT.
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ALL RIGHT. NOW, IF WE READ ALONG, IT STATES "THE NEURO
`"GHT.
`A RAAJ ALONG,
`:T STATES "T
`
`
`
`
`
`
`
`
`
`
`
`
`
`PHYSIOLOGISTS ARE WELL ENTRENCHED IN THE NORTHEAST, EVEN THE
`RHYS O'
`STS AR:
`: “RANCHAD
`N THA NORTAEAST,
`
`
`
`
`
`DOCTORS :N SMAHL
`AOSP:TALS OFTEN AAVA NAURO
`DOCTORS IN SMALL ISOLATED HOSPITALS OFTEN HAVE NEURO
`
`
`
`
`
`
`
`
`
`
`P
`HOGY TECAS COM:
`N HOR CASES.
`THA NAURORHYS O'
`PHYSIOLOGY TECHS COME IN FOR CASES. THE NEUROPHYSIOLOGISTS
`
`
`
`
`
`
`ARE SELLING MORE THAN JUST SCREW TESTING, THEY ARE SELLING
`:nL NG MORE THAN UJST SCRAW TAST NG, THAY ARA S
`
`
`
`
`
`
`
`
`
`
`
`NERVE MONITORING, THEY PROMOTE THEMSELVES AS PROTECTING THE
`A MON TOR NG, THEY RROMOTA THAMSALVAS AS RROTACT
`
`
`
`
`
`
`
`
`
`
`
`NERVES FROM START TO FINISH. FROM POSITIONING, PAREN, THEY
`AS HROM START TO H N SH.
`HROM ROS T ON NG, RAR:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`AL ZABATH CASANA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHARN D STR CT OH CA
`
`
`
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN D AGO, CA 92170
`
`M
`
`11
`
`

`

`510
` 510
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`OFT:
`ERVES HOR ROS T ON NG OH TH:
`OFTEN MONITOR CERVICAL NERVES FOR POSITIONING OF THE HEAD TO
`
`
`
`
`
`
`
`
`
`
`
`
`EXPOSURE TO SCREW PLACEMENT, TO INTERBODY PLACEMENT, TO
`EXROSU_J
`ENT, TO NTERRODY RLACEMENT,
`
`
`
`
`
`
`CLOSUR .
`CLOSURE."
`
`
`
`
`
`
`
`
`
`AND HE IS STATING, "WE MONITOR ONLY SCREW
`S STAT:NG,
`"WE MON TOR ONLY SCR
`
`
`
`
`
`
`
`
`ENT AND
`EARD ONE SURGEON REHER TO US AS TH
`PLACEMENT AND HEARD ONE SURGEON REFER TO US AS THE POOR
`
`
`
`_EURO PHstoLOGY."
`DO YOU S:E THAT?
`MAN'S NEURO PHYSIOLOGY." DO YOU SEE THAT?
`
`
`YES, I DO.
`ES,
`DO.
`
`A
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` NNfiR
`
`A
`A
`
`
`
`
`
`
`
`
`NO.
`i DON'T T :NK THAT'S CORRECT.
`NK THAT TH
`NO. I DON'T THINK THAT'S CORRECT. I THINK THAT THE
`
`
`
`
`
`
`NEURO RHYS OLOG STS AT THAT T M:.
`NEURO PHYSIOLOGISTS AT THAT TIME.
`
`
`
`
`
`
`
`
`
`
` W *ZR '.
`DOES THAT REFRESH YOUR MEMORY AS OF 2001, THERE WERE
`Q
`ES THAT REHRESE YOUR MEMORY AS OF 2001, THERE
`
`
`
`
`-—I4
`
`
`
`
`
`
`
`
`
`
`
`
`
`OF
`JALS "N YOUR ORGAN
`' ON T AT V EWED YOUR SA'
`INDIVIDUALS IN YOUR ORGANIZATION THAT VIEWED YOUR SALE OF
`
`
`
`
`
`
`
`A MAN'S
`EURO MON TOR NG TO R: v EWED
`N T E MARKET AS A P00
`10
`NEURO MONITORING TO BE VIEWED IN THE MARKET AS A POOR MAN'S
`10
`
`
`
`
`
`
`
`NG WAS
`’1
`ECHNOLOGY BECAUSE TEE NEJRO MON TOR NG YOU WER:
`11
`TECHNOLOGY BECAUSE THE NEURO MONITORING YOU WERE SELLING WAS
`
`
`
`
`
`
`BEING USED FOR PEDICLE SCREWS TESTING, AS OPPOSED TO INNER
`: NG USED HOR R23 C1E SCREWS TEST NG, AS OPPOS
`
`
`
`BODY WORK.
`DO YOJ
`AVE A MEMORY OF THAT?
`BODY WORK. DO YOU HAVE A MEMORY OF THAT?
`
`
`
`1
` 1
`
` 2
`2
`
`3
` 3
`
` 4
`4
`
`5
` 5
`
`6
` 6
`
` 7
`7
`
` 8
`8
`
`9
` 9
`
`12
`’2
`
`13
`13
`
`:4
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`
`
`
`
`
`
`
`
`
`ERMS OF WHAZ
`THOUGHT YOU WANTED TO KNOW T:
`A
`19
`I THOUGHT YOU WANTED TO KNOW THE TRUTH IN TERMS OF WHAT
`A
`19
`
`
`
`
`20
`E TO SAY.
`20
`I HAVE TO SAY.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`AM NTERESTED N “ E TRUTH RJT
`I AM INTERESTED IN THE TRUTH BUT I'M ALSO INTERESTED IN
`
`
`
`
`
`
`
`
`
`ENOUGH T ME AT T
`:
`E CAS:
`HAVING ENOUGH TIME AT THE END OF THE CASE TO BE ABLE TO
`
`
`
`
`
`
`
`
`
`
`
`
`:R A CLOS:NG ARGUM _
`EST ON
`DELIVER A CLOSING ARGUMENT, MY QUESTION IS WHAT I SAID WAS
`
`
`
`
`
`
`
`
`INCORRECT. YOU A DISAGREE WITH IT? YES, YOU DISAGREE?
`_ECT.
`YOU A D
`ES, YOU
`
`
`
`
`
`
`
`EE WEOL:
`3 EH:
`: WAS THAT :T WAS SURG
`THE WHOLE DIFFERENCE WAS THAT IT WAS SURGEON --
`
`
`MR. LUK:ANOV?
`MR. LUKIANOV?
`
`
`:'M SORRY.
`I'M SORRY.
`
`O
`Q
`
`A
`A
`
`O
`Q
`
`
`
`
`THAT'S OKAY?
`RART OR THE RROR':
`THAT'S OKAY? PART OF THE PROBLEM --
`
`
`
`
`
`Q
`
`
`
`A
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`En ZARETH CESENA, CSR 12266,
`(619) 237—0100
`
`
`
`
`
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN D STR CT OH CA
`
`
`SAN D
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037,
`EGO, CA 92170
`
`12
`
`12
`
`

`

`
`
`
`
` 3 AN ANSWER TO MY
`
`MR. LUKIANOV, IF I CAN JUST HAVE AN ANSWER TO MY
`
`
`
`
`
`
` SAGRZ:
` TH WHAr
`
`
`QUESTION. MY QUESTION IS, "YES, YOU DISAGREE WITH WHAT I
`
`Q
`
`
`
`
`
`511
` 511
`
`A
`
`) 2
`
`
`SAID?"
`
`
`
`
`
`
`
` TOR
`ESS YOU
`T WAS A POOR MAN'S MON
`I DISAGREE IT WAS A POOR MAN'S MONITORING UNLESS YOU
`
`
`
`
`
`
`1 THZ
`
`EONS TO BE
`CONSIDER SURGEONS TO BE POOR MEN, BECAUSE THEY ARE THE ONES
`9003 MfiN, RfiCAUS:
`
`
` % DO MG SfiLE—D RfiCTiD
`
`
`
`
`
`MON TOR NG.
`{AT WAS rifl
`THAT WERE DOING SELF-DIRECTED MONITORING. THAT WAS THE
`
`
`
`
`
`
`
` Vfi R*'.ACr
`
`
`
`WAS A COMPfiT T
`fl AND TiAT'S WHY TifiRfi
`DIFFERENCE AND THAT'S WHY THERE WAS A COMPETITIVE REACTION
`
`
`
`
`EUROPHYS
` NN NG OE A PARA)“ GM
`"T WAS RfiG
`FROM NEUROPHYSIOLOGIST. IT WAS BEGINNING OF A PARADIGM
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`SHIFT.
`
`Q
`
`
`
`
`
`
`
`
`
`
`
`
`
` P Wfi COULD GO UP TO YOUR R
`ALL RIGHT. NOW, IF WE COULD GO UP TO YOUR RESPONSE.
`
`
`M
` fiSPOMSE.
`R.
`YOU SAID MR. MILES' RESPONSE.
`
`
`
`
`
` fiMRfiR T
`
`
`
`
`1:)le
`
`DO YOU .'
`11L
`DO YOU REMEMBER TELLING MR. MILES, "PAT, PLEASE
`NG MR. M n+3,
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