throbber
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
`
`
`
`
`
`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.,
`)
`)
`)
`)
`) DECEMBER 16, 2011
`)
`) FRIDAY, 9:00 AM
`)
`) BENCH TRIAL
`DEFENDANT.
`_____________________________) VOLUME 1
`
`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
`
`WARSAW2056
`NuVasive, Inc. v. Warsaw Orthopedic, Inc.
`Case IPR2013-00208
`
`Page 1
`
`

`

` 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
`
`
`
`INDEX - 08CV1512, 12/16/11
`
`WITNESSES:
`
`DR. BRUCE VAN DAM
`
`DIRECT BY MR. SCHERKENBACH
`
`CROSS BY MR. DAUCHOT
`
`REDIRECT BY MR. SCHERKENBACH
`
`RECROSS BY MR. DAUCHOT
`
`RE-REDIRECT BY MR. SCHERKENBACH
`
`DR. BARTON LEWIS SACHS
`
`DIRECT BY MS. WICKRAMASEKERA
`
`AFTERNOON PROCEEDINGS
`
`DR. GARY KARLIN MICHELSON
`
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`
`JAMES THOMAS CARMICHAEL
`
`
`
`DIRECT BY MR. MACKINNON
`
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. MACKINNON
`
`RECROSS BY MR. SCHERKENBACH
`
`PAGE:
`
` 5
`
` 34
`
` 79
`
` 93
`
` 96
`
` 98
`
`183
`
`184
`
`200
`
`202
`
`222
`
`245
`
`250
`
`DR. BRUCE VAN DAM
`
`
`
`REBUTTAL BY MR. SCHERKENBACH
`
`252
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 2
`
`

`

` 60
`
` 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
`
`WITH THE ANTEROLATERAL INCISION, THE BIG OPEN POSITION, PEEL
`
`BACK THE PSOAS MUSCLE AND THEN ENTER THE DISC SPACE
`
`COMPLETELY LATERAL. OKAY? THAT'S A FOR EXAMPLE AND THAT'S
`
`WHAT HE'S REFERRING TO. EXCUSE ME.
`
`Q
`
`SO HE WASN'T REFERRING TO APPROACHING -- AND WE'VE
`
`COVERED THAT. THAT'S FINE. MY ONLY POINT IS THIS. WHEN
`
`WE'RE TALKING ABOUT JUST BECAUSE YOU HAVE A PATIENT ON THE
`
`SIDE ON THE OPERATING TABLE AND YOU DECIDE TO CUT A PATIENT
`
`FROM THE SIDE, OKAY? DOESN'T MEAN THAT YOU'RE GOING TO BE
`
`PERFORMING A DIRECT LATERAL, AM I CORRECT?
`
`A
`
`WELL, YOU MIGHT END UP ANTEROLATERAL. IT JUST DEPENDS
`
`ON WHAT KIND OF ANATOMY YOU ARE TRYING TO APPROACH.
`
`Q
`
`THERE YOU GO. SO WHEN WE TALK ABOUT AND ANTEROLATERAL
`
`SO IN ANTEROLATERAL, I THINK THIS WAS YOUR TESTIMONY AT
`
`TRIAL IS BASICALLY --
`
`A
`
`YOU KNOW, YOU HAVE A MUCH BETTER MEMORY THAN I DO, BUT
`
`GO AHEAD.
`
`Q
`
`THAT'S ALL RIGHT. I'M YOUNGER. ANTEROLATERAL MEANS
`
`OBLIQUE TO THE CENTER?
`
`A
`
`WELL, TECHNICALLY ANTEROLATERAL WOULD MEAN ANY ANGLE
`
`OFF A DIRECT STRAIGHT MIDLINE 90-DEGREE APPROACH.
`
`Q
`
`SURE. BUT DURING TRIAL, WE WERE DISTINGUISHING BETWEEN
`
`THE ANTEROLATERAL AND THE DIRECT LATERAL?
`
`A
`
`CORRECT. THAT'S EXACTLY RIGHT. AS YOU ILLUSTRATE UP
`
`THERE, THAT'S CORRECT.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 3
`
`

`

` 61
`
` 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
`
`Q
`
`SURE. AND WHAT YOU WERE SAYING IS WHEN YOU WERE
`
`CUTTING THE PATIENT OR PUTTING THE PATIENT ON THE SIDE AND
`
`YOU ARE MAKING A LATERAL INCISION, OKAY? THE AIM VERY WELL
`
`COULD BE APPROACHING IT ANTERO LATERALLY AS OPPOSED TO
`
`DIRECT LATERAL?
`
`A
`
`FAIR POINT. AND COULD BE, IF I JUST BE SPECIFIC, AIM
`
`COULD BE TO INSERT THE IMPLANT ANTEROLATERAL OR DIRECT
`
`LATERAL.
`
`Q
`
`OKAY. WE'RE ON THE SAME PAGE. SO CAN WE TURN TO DX
`
`5885? PAGE EIGHT. CAN YOU BLOW UP FOR ME, DAVID, ON THE
`
`SECOND COLUMN, THE PARAGRAPH ENTITLED "POSITIONING".
`
`OKAY. NOW IT STATES IN THE SECOND SENTENCE OR
`
`FIRST SENTENCE, FOR APPROACHES TO THE LOWER THREE LUMBAR
`
`INTERVERTEBRAL DISCS, PATIENTS ARE PLACED SUPINE ON THE
`
`OPERATING TABLE, RIGHT?
`
`A
`
`Q
`
`THAT'S WHAT IT SAYS.
`
`AND YOU'VE TESTIFIED THAT LOWER THREE LUMBAR
`
`INTERVERTEBRAL DISCS MEANS TO YOU, THE L FOUR, L FIVE AND
`
`THE L FIVE S-1?
`
`A
`
`WELL, HE IS SAYING THE LOWER THREE LUMBER DISCS. THE
`
`LOWER THREE LUMBAR DISCS ARE NOT ONLY TO ME BUT EVERYBODY
`
`ELSE HOPEFULLY, L3-4, L4-5 AND L5 S1.
`
`Q
`
`A
`
`Q
`
`THAT'S WHAT I JUST SAID.
`
`NO. I THINK YOU SAID L FOUR AND L5 S-1.
`
`BUT YOU CONSIDER L3 AND L4 TO BE UPPER?
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 4
`
`

`

` 63
`
` 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
`
`Q
`
`OKAY. NOW CAN WE GO BACK TO DX 5885, PAGE EIGHT? THE
`
`POSITIONING PART.
`
`NOW ON THE SECOND SENTENCE HE STATES, FOR RARE
`
`UPPER LUMBAR FUSIONS, THEY, THEY BEING THE PATIENTS, ARE
`
`PLACED IN THE LATERAL POSITION WITH THE LEFT LOIN UPPERMOST.
`
`RIGHT?
`
`A
`
`Q
`
`YES.
`
`OKAY. NOW GIVEN YOUR PRIOR TESTIMONY, THAT STATEMENT
`
`DOES NOT TELL YOU HOW THE IMPLANT IS IMPLANTED IN THE
`
`VERTEBRAL SPACE, CORRECT?
`
`A
`
`CORRECT. IT WOULDN'T TELL YOU EXACTLY HOW THE IMPLANT
`
`IS PLACED IN THE DISC SPACE BUT IT CERTAINLY GIVING YOU THE
`
`ORIENTATION OF THE PATIENT, YES, FOR THE APPROACH, FOR THE
`
`ACCESS.
`
`Q
`
`ACCORDING TO YOUR PRIOR TESTIMONY, THAT STATEMENT IS
`
`COMPLETELY CONSISTENT WITH THE INSERTION OF AN IMPLANT FROM
`
`ANTEROLATERAL SO JUST OFF THE MIDLINE OF THE FRONT OF THE
`
`DISC SPACE. THAT WAS YOUR TESTIMONY HERE, CORRECT.
`
`A
`
`YES. AND I WOULD JUST AGAIN TO BE PRECISE, THE
`
`APPROACH TO THE LUMBAR SPINE WITH A PATIENT IN A LATERAL
`
`DECUBITUS OR A SIDE POSITION, WOULD PERMIT YOU TO, ACTUALLY
`
`YOU CAN GO STRAIGHT ANTERIORLY BUT NOT VERY CONVENIENTLY,
`
`WOULD PERMIT YOU FAIRLY CONVENIENTLY TO PUT AN IMPLANT IN
`
`ANTERO LATERALLY OR IF YOU PEEL BACK THE PSOAS MUSCLE
`
`DIRECTLY LATERALLY.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 5
`
`

`

` 76
`
` 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
`
`EXPLANATIONS AS YOU COULD AS TO WHY CROCK TAUGHT A LATERAL
`
`APPROACH, IS THAT FAIR TO SAY?
`
`A
`
`Q
`
`I DID.
`
`AND YOU STUDIED IT. YOU SPENT A LOT OF TIME THINKING
`
`ABOUT IT?
`
`A
`
`Q
`
`A
`
`I DID THINK ABOUT IT, YES.
`
`BUT YOU DIDN'T THINK ABOUT THIS, AT THAT POINT?
`
`WELL THERE'S CERTAIN THINGS THAT HAVE COME UP SINCE THE
`
`TRIAL IN SEPTEMBER THAT SEEM TO REQUIRE EMPHASIS THAT DIDN'T
`
`APPEAR TO REQUIRE EMPHASIS EARLIER, SO.
`
`Q
`
`FAIR ENOUGH. NOW DR. CROCK DOES SAY THAT, I THINK THIS
`
`WAS YOUR TESTIMONY AT TRIAL, THAT HE WAS -- YOUR TESTIMONY
`
`AT TRIAL, YOUR INTERPRETATION OF CROCK, DR. CROCK'S ARTICLE
`
`HERE WAS THAT HE TAUGHT A LATERAL APPROACH FOR UPPER LUMBAR
`
`PROCEDURES. THAT WAS YOUR TESTIMONY AT TRIAL.
`
`DO YOU REMEMBER THAT?
`
`A
`
`I BELIEVE THAT'S CORRECT. THAT'S WHAT I WOULD SAY
`
`TODAY, YES.
`
`Q
`
`A
`
`Q
`
`L 4, L 5 IS NOT UPPER LUMBAR?
`
`IT'S NOT.
`
`OKAY. AND PARTICULARLY, AT THAT POINT IN TIME, FAIR TO
`
`SAY THAT ACCESSING L FOUR, L FIVE AT THAT POINT IN TIME WAS
`
`A TRICKY THING IN PART BECAUSE YOU WERE ALSO DEALING WITH
`
`THE PELVIC BONE? THAT MADE IT MORE DIFFICULT THAN THE UPPER
`
`LUMBAR?
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 6
`
`

`

` 77
`
` 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
`
`A
`
`WELL THE ILIAC CREST IN 2011 CAN PRESENT A CHALLENGE AT
`
`L FOUR FIVE.
`
`Q
`
`OKAY. NOW WHEN WE'RE TALKING ABOUT SPONDYLOLISTHESIS,
`
`DO I HAVE THAT RIGHT?
`
`A
`
`Q
`
`A
`
`Q
`
`NO.
`
`NO. OKAY. BUT THAT'S A PRETTY GOOD TRY.
`
`OKAY.
`
`WE ARE BASICALLY TALKING, LET ME TRY TO DO THIS FROM
`
`THE LATERAL RESPECT. TRY IT AGAIN. WE ARE TALKING ABOUT
`
`YOU HAVE GOT A TOP VERTEBRAL BODY AND YOU HAVE A BOTTOM
`
`VERTEBRAL BODY AND THEY SLIP LIKE THAT, RIGHT?
`
`A
`
`Q
`
`THAT'S RIGHT.
`
`AND HE'S TRYING TO ADDRESS THE PROBLEM AND FUSE THESE
`
`TWO TOGETHER, CORRECT?
`
`A
`
`Q
`
`YES.
`
`AND WHAT HE NOTES IS THAT THERE ARE TWO, WELL AT LEAST
`
`TWO, INNER BODY GRAPH, PLURAL, THAT HAVE BEEN INSERTED
`
`TRANSVERSELY, RIGHT?
`
`A
`
`Q
`
`YES.
`
`AND IS IT YOUR TESTIMONY HERE THAT WHEN YOU ARE DEALING
`
`WITH THESE DISCS, LIKE THAT, THAT HE STUCK, THAT HE ACTUALLY
`
`STUCK TWO BONE DOWELS, SO CUT, HE CUT HERE AND HE CUT HERE
`
`AND IN THIS LIMITED SPACE FROM A DIRECT LATERAL APPROACH HE
`
`MANAGED TO SHOVE TWO PIECES OF BONE IN THERE.
`
`IS THAT YOUR TESTIMONY?
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 7
`
`

`

` 94
`
` 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
`
`BY MR. DAUCHOT:
`
`Q
`
`DAVID, CAN YOU PUT UP THE CROCK ARTICLE IF YOU WOULD,
`
`DX 5885, AND CAN YOU GO TO FIGURE SEVEN A.
`
`DO YOU MIND IF I USE YOUR POINTER?
`
`A
`
`Q
`
`YOU CAN BORROW IT. SURE.
`
`DOCTOR, WE'RE LOOKING AT SEVEN A OF THE CROCK ARTICLE
`
`AND DO YOU SEE THE SHADOW HERE, YOU SEE HOW IT'S LIGHTER UP
`
`HERE AND DARKER DOWN HERE. YOU SEE HOW THERE'S AN OUTLINE?
`
`A
`
`Q
`
`A
`
`Q
`
`YES. I SEE THE ILIAC CREST.
`
`THAT'S THE ILIAC CREST?
`
`SURE.
`
`RIGHT. AND THE AREA THAT'S BEING WORKED ON IS IT NEAR
`
`THE ILIAC CREST?
`
`A
`
`Q
`
`YES.
`
`IF YOU ARE GOING TO APPROACH IT DIRECT LATERAL, HOW ARE
`
`YOU GOING TO GET THROUGH THE ILIAC CREST TO GET AT THIS
`
`SPACE?
`
`A
`
`YOU'RE GOING TO PUT THE PERSON ON THE SIDE OR FLEX THE
`
`TABLE TO GET THE ILIAC CREST OUT OF THE WAY.
`
`Q
`
`FLEX THE TABLE, NOW THESE SPECIAL TABLES, I KNOW I'VE
`
`SEEN THIS IN NUVASIVE LITERATURE.
`
`A
`
`Q
`
`REQUIRES A SPECIAL TABLE.
`
`IS THERE ANY REFERENCE IN THE CROCK ARTICLE ABOUT
`
`HAVING TO ESPECIALLY CONTOUR THE PATIENT TO GET AT L FOUR L
`
`FIVE, WITH THE ILIAC CREST IN THE WAY? IS THERE ANYTHING IN
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 8
`
`

`

` 95
`
` 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
`
`THE ARTICLE ABOUT THAT IN THIS SURGICAL TECHNIQUE?
`
`A
`
`THERE ISN'T. AND THERE ISN'T ANY MENTION ABOUT WASH
`
`YOUR HANDS BEFORE SURGERY EITHER.
`
`Q
`
`NO. BUT THERE IS A -- WELL, STRIKE THE QUESTION. I
`
`JUST DO WANT TO, I KNOW YOU'RE BEING FLIP --
`
`A
`
`Q
`
`WELL, I'M BEING FLIP BECAUSE IT'S KIND OF A --
`
`DOCTOR, CAN I FINISH THE QUESTION. I KNOW YOU'RE BEING
`
`FLIP?
`
`A
`
`Q
`
`UH-HUH.
`
`BUT WE ALL AGREE THAT ESPECIALLY POSITIONING A PATIENT
`
`TO ENABLED SOMEONE TO GET AT THE L 4- L FIVE FROM A DIRECT
`
`LATERAL POSITION GIVEN THE FACT THAT THE ILIAC CREST IS IN
`
`THE WAY IS AN IMPORTANT PART OF A TECHNIQUE?
`
`A
`
`Q
`
`A
`
`IT IS.
`
`WOULD YOU AGREE WITH THAT?
`
`WELL, I WOULD AGREE WITH YOU THAT YOU DO HAVE TO TAKE
`
`INTO ACCOUNT THE ILIAC CREST AND WHEN YOU HAVE THE PERSON ON
`
`THEIR SIDE, YOU DO HAVE TO FLEX THE TABLE.
`
`Q
`
`IS THERE ANY REFERENCE ABOUT ANY OF THAT IN THE
`
`ARTICLE?
`
`A
`
`Q
`
`A
`
`THERE IS NOT A SPECIFIC REFERENCE.
`
`IS THERE A GENERAL REFERENCE?
`
`THERE IS NO REFERENCE THAT I KNOW OF IN THAT ARTICLE
`
`THAT SPECIFICALLY SPEAKS TO THAT ISSUE OF ILIAC CREST AND
`
`RELATIVE TO THE L FOUR FIVE DISC.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`
`Page 9
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket