`Page 1
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`WARSAW2020
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
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`

`

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` THE VIDEOGRAPHER:
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`This is the
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`videotaped deposition of Lawrence M. Boyd
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`taken by the defendant
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`in the matter of
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`Sofamor Danek Holdings,
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`Incorporated versus
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`United States Surgical Corporation and
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`Surgical Dynamics,
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`Incorporated in the United
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`States District Court, Western District of
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`Tennessee in the civil action number 98—2369
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`GAtJSG), held at the Crescent Building, 6075
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`Poplar Avenue, Memphis, Tennessee on
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`February 13th, 1999 at approximately 10:33
`a.m.
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`The court reporter's name is Sara
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`Rogan from the firm Daniel, Dillinger and
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`Dominski
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`located in Memphis, Tennessee.
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`The
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`videotape specialist is John Steele of the
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`Data Company of Memphis, Tennessee. Will the
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`counsel now introduce themselves?
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`HR. THOMAS: Yeah,
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`this is Dirk
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`Thomas on behalf of the plaintiff and the
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`witness.
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`HR. ALBRIGHT:
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`John Albright
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`also on behalf of the plaintiff and the
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`witness.
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`HR. LICHTMAN:
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`Jeffrey Lichtman
`
`
`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529-1999
`
`Confidential Information
`—
`— — --
`
`MSD 1317085
`\__.——~i
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`Page 2
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`Page 2
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`representing defendant U.s. Surgical and
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`Surgical Dynamics.
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`THE VIDEOGRAPHER: Are there any
`announcements or stipulations that need to be
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`put on the video record at this time?
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`HR. LICHTMAN:
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`I think counsel
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`usually adheres to making objections as to
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`form and all other objections are preserved.
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`And I believe that counsel has usually been
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`requesting the witness to read and sign, but
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`not necessarily sign in front of the notary
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`before whom the deposition is taken.
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`MR. THOMAS: That's correct.
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`THE VIDEDGRAPHER: Okay. Will
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`the court reporter now please swear in the
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`witness?
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`E
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`YDIr
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`having been first duly sworn, was examined
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`and testified as follows:
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`213§§2_EKAMLHAILQE
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`El_flli_Ll£flIMAEL
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`Q.
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`A.
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`Good morning, Mr. Boyd.
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`Good morning.
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`and address for the record?
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`
`
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`
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`24
`Q.
`Could you please state your full name
`
`
`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529—1999
`
`Confidenfimlnfonnafion
`u_._.
`W,
`_
`__-
`
`MSD 1317086
`
`Page3
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`Page 3
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`A.
`Lawrence Martin Boyd, 688 South
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`McLean, M C L E A N, Boulevard, Memphis,
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`Tennessee 33104.
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`Q.
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`A.
`
`Q.
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`Danek?
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`A.
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`Q.
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`And where do you work, sir?
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`Sofamor Danek.
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`And what's your position at Sofamor
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`I'm a group director of engineering.
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`How long have you been a group
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`director of engineering?
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`A.
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`Q.
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`For about
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`the past six months.
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`And do you understand, sir.
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`that you
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`are here to provide testimony in connection
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`with a lawsuit that’s been brought by Sofamor
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`Danek against United States Surgical and
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`Surgical Dynamics?
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`A.
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`Q.
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`I do.
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`And you also understand, sir,
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`that
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`this involves a patent involving methodology
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`for the placement of spinal fusion products?
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`A.
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`Q.
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`I do.
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`Just in terms of terminology,
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`the
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`patent at issue might be referred to as the
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`253 patent which are the last three numbers
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`of the patent that's the subject of the
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`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529-1999_
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`Confidenflalhfionnafion
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`«(1301317037
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`Page4
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`Page 4
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`115
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`1
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`let’s do the break now.
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`THE VIDEOGRAPHER: Going off the
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`record at approximately 1:03.
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`(Lunch break taken.)
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`THE VIDEOGRAPHER: Returning to
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`the record at approximately 2:05.
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`I
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`(whereupon, Exhibit
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`6 was
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`marked.)
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`Q.
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`(BY MR. LICHTMAN) Sir, we've marked
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`off the record what's now identified as Boyd
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`Exhibit 6.
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`Do you have that in front of you?
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`A.
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`Q.
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`A.
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`Q.
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`A.
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`I sure do.
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`Do you recognize that document?
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`Yes.
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`Describe it for me, please.
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`It's a memorandum from January 11th,
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`1994, and these are minutes or some notes
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`from the meeting with Doctor Michelson on
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`that date. January 11th.
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`Q.
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`And were these -- this was a document
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`that you authored, right?
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`A.
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`Q.
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`Yes.
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`And you circulated to other people at
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`Sofamor Danek?
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`A.
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`That's correct.
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`
`
`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529—1999
`
`Confidenfialhfionnafion
`i,
`
`J
`
`M80131?
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`195
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`Page 5
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`Q.
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`And you wrote this memorandum in the
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`2
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`ordinary course of your business as a Sofamor
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`116
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` 1
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`
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`Danek employee. right? A.
`Yes.
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`5
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`Q.
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`And part of this discusses on Pages 1
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` A.
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`Uh—huh, yes.
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`9
`Q.
`And for the record,
`the first page is
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`
`10
`Bates numbered SDG 34163.
`no you see that?
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`11
`A.
`Right.
` Q. So on the first page 163 and the next
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`
`
` 13
`page l64, we have these five steps. What do
`you understand those steps to be?
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`A.
`Says these are some of the
` step-by-step details of the surgical
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`
`
`6
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`and 2 five numbered paragraphs.
`those?
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`Do you see
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`
`
`17
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`procedure for a posterior approach.
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`
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`number four?
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`18
`Q.
`Now, can you just ~- do you see
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` A. Yes.
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`Q.
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`Is it fair to say, sir,
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`that this was
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`an accurate reflection of the discussion that
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`you had with Doctor Michelson to the best of
` your ability?
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`MR. THOMAS:
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`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529-1999
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`object to the form
`
`Confidential Information
`e-
`_——__—..—___,7_.J
`
`MSD 1317196
`
`
`Page 6
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` of the question.
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`2
`A.
`To the best of my ability. Doctor
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`117
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`These
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`Michelson might take issue with it.
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` 3
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`are my notes.
` 0.
`Okay. These are your notes of what
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` Doctor Michelson said?
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`A.
`Right.
` Q. Now. can you just read for the
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`
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`record, sir,
`the first sentence in the
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` 7
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`9
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`10
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`paragraph numbered four on Page 2 of your
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`January 11 memorandum regarding your meeting
`11
`
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`with Doctor Michelson?
` 12
` Item four:
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`
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`18
`19
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` This helps to
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`maintain distraction throughout the procedure
`along with the contralateral distractor."
`
`
`Now, do you see
`Thank you.
`okay.
`Q.
`20
`
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`the phrase working channel?
` A.
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`Yes.
` Q. Is that -- what does that refer to?
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`24
`A.
`That is the cannula,
`the tube,
`the
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`
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`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529-1999
`
`sleeve through which the procedure takes
`
`Confidential Information
`
`MSD 1317197
`
`~— - — -__‘ ,_ - .. _ -
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`r _
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`Page 7
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`Page 7
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`STATE OF TENNESSEE:
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`COUNTY OF SHELBY:
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`I, SARA R. ROGAN, Reporter and
`Notary Public, Shelby County, Tennessee,
`CERTIFY:
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`CD
`
`10
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`ll
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`12
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`The foregoing deposition was
`1.
`taken before me at the time and place stated
`in the foregoing styled cause with the
`appearances as noted;
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`then
`I
`2. Being a Court Reporter,
`reported the deposition in Stenotype to the
`best of my skill and ability, and the
`foregoing pages contain a full,
`true and
`correct transcript of my said Stenotype notes
`then and there taken;
`
`in the employ of and am
`am not
`I
`3;
`not related to any of the parties or their
`counsel, and I have no interest in the matter
`involved=
`
`M&
`WITNESS MY SIGNATURE,
`ad”? av of I’d/mam
`can’77
`.___ "l WV..
`U
`
`1
`
`this,
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`the
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`SARA R. ROGAN
`
`a
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`Court Reporter and
`Notary Public ***
`
`My commission
`February 27,
`
`DANIEL, DILLINGER, DOMINSKI, RICHBERGER, WEATHERFORD
`(901) 529-1999
`
`1.
`
`Confidential Information
`
`MSD 1317362
`
`
`Page 8
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`
`
`
`II r 9-841? Lontidential
`
`To:
`
`John Pafford
`David Brurnfield
`
`From /I__a_rry ggyd
`
`cc Ted Bird
`Reg! Picitard
`Alex Lukianov
`Rick Duer
`Brad Etes
`
`On Tuesday, January 11, Ron Pickard, Rick Duerr, Marl: Merrill, and I met with Dr.
`Michelson and his attorneys. While the attorneys worked out the details of the various
`agreements, Ron Pickard and I were able to meet with Dr. Michelson to review his various
`ideas on interbody fusion and spinal surgery. Dr. Michelson reviewed with us the many
`assorted prototype implann and inertia-tents covering a wide range of subjects.
`
`a
`Initially, Dr. Michelson pointed out thet there are generally three stefi pett‘med in
`in
`spinal surgery. These would be a discectomy, an interbody fusion vie either po
`tenor or
`anterior approach, and some form of instrumentation for additional stability. Dr.
`Michelson pointed out that the ideal case would be to eliminate the need for additional
`instrumentation. vie improving the hiemechanical performance or‘ the implant used for
`interbody fusion. This would appear to be the ultimate goal a! the various implant and
`instrumentation systems for interbody fusion that we were to discus with Dr. Michelson.
`
`Next. Dr. mom reviewed step-by-step some of the details of the surgical procedure for
`posterior inter-body fusion approach:
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`1.) The first step involved detailed pre-operative planning. This would be via templates of
`the various implant sizes that would be available in various magnification ranges. A
`lateral x-ray would be used to pre-operativeiy assa the anticipated implant depth and
`allow the surgeon to assess the anticipated implant height required in order to restore
`normal anatomy. An axial CT scan would be used to clarify the actual disc space available
`and the true anticipated implant depth to be used.
`
`wnrwr-NILAL
`anm——.-
`mm. CATEGORY!
`
`Sufi 34:63
`
`Confidential Information
`
`MSD 1316414
`
`Page 9
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`Page 9
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`2.) The second step would involve removing some small portion of disc after an exposure
`of the disc from a posterior approach. A simple curette or rongeur could be used to
`remove enough disc to allow for placement of the initial bullet-nosed long distractors.
`
`3.) The third portion of the procedure involves placement incrementally of various bullet-
`nose long distractors. These will indicate to the surgeon when the normal d3: height has
`been restored. The surgeon will be able to feel as the disc space becomes inaeasingly taut
`and stable. The lon- distractors also assure that a central axis parallel to the endplates is
`achieved prior to any drilling. Dr. Michelson pointa out that this predisn-ac‘cion phase is
`very critical.
`It is important that the patient be fused in the fully extended, distracted
`position, as opposed to some surgeons who have accidentally fused patients in a collapsed
`position resulting in eventual degeneration of adjacent disc levels. This predistraction is
`critical also to gisdng the necessary working space for insertion of the instrumentation and
`implant.
`
`tubular
`4.) The next phase involves impacting into the vertebral body an external
`distractor (with engagement teeth) which will be the working channel for the rest of the
`procedure. This helps to maintain distraction throughout the procedure, along with the
`contralateral distractor. At this point, Dr. Michelson pointed out that it will be necessary to
`lock the surgeon into a given depth and diameter instrumentation set. Dr. Michelson
`suggested that the various depths used be color coded end that Lite surgeon be lockm into
`using a given set for a predetermined diameter, also. At this point, the surgeon would
`then work with a spedfic set of reaming and tapping instrumentation, in order to avoid
`:3 I:IIII..-
`in
`'
`.or mixing of different sized instrumentation.
`
`5.) The next phase is the iriserdon o! the diameterereducing inner sleeve and the protected
`drilling of the disc and bone in preparation for the implant. Having gt _-- ease Ln. terms
`of the surgical procedure. Dr. Michelson discussed some of the more specific details of the
`design. He mentioned that cutting an arc is a means of increasing the surface area contact
`and therefore reducing the likelihood of subsidence. He mentioned some data and
`analysis via computer modeling that was performed that clearly shows the advantage of
`both the domed shape as well as a tooth thread engagement into the vertebral bodies as
`opposed to simply placing a flat member in contact with the vertebral bodies. We will
`need to examine this information, now that the agreement is in place.
`
`Dr. Michelson also mentioned that the device used to remove the disc and bone is not a
`typical sharpeminted drill, but a side-cutting reamer that actually draws the disc and bony
`debris into the internal diameter-reducing sleeve. This captures the debris which would
`otherwise migrate about the body and perhaps cause further littlammadon.
`
`,
`amnpanuL
`m 9.0. CATEGORY!
`
`SDG 34164
`
`Confidential Information
`
`MSD 1316415
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`Page 10
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`Page 10
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