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`

`Deposition of
`THOMAS ZDEBLICK, MD
`
`Date: October 27, 2010
`Volume: 1
`
`Case: WARSAW v. NUVASIVE
`
`SHARI MOSS & ASSOCIATES
`Phone: (650) 692-8900 (415) 402-0004
`Fax: (650) 692-8909
`Email: sharimoss@sharimoss.com
`Internet: www.iptranscripts.com
`
`

`

`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`
` UNITED STATES DISTRICT COURT
` SOUTHERN DISTRICT OF CALIFORNIA
`= = = = = = = = = = = = = = = = = = = = = = = = = = =
`WARSAW ORTHOPEDIC, INC.,
` Plaintiff,
` -vs- Case No. 3:08-CV-1512 MMA (AJB)
`NUVASIVE, INC.,
` Defendant.
`-----------------------------------------------------
`NUVASIVE, INC.,
` Counterclaimant,
` -vs-
`MEDTRONIC SOFAMOR DANEK USA, INC., et al.,
` Counterclaim Defendants.
`
`= = = = = = = = = = = = = = = = = = = = = = = = = = =
` CONFIDENTIAL
`
` Deposition of:
` THOMAS A. ZDEBLICK, M.D.
` Madison, Wisconsin
` October 27, 2010
`
` Reported by: Lisa L. Lafler, RPR, CRR
`
`

`

`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 114
`1
`Q. So the lateral implant on -- that you describe on
`2
` MNUV0278540 is an implant that would expand the
`3
` entire width of the vertebral body; is that right?
`4
` MR. DAUCHOT: Objection,
`5
` foundation. It mischaracterizes testimony.
`6
`A. No. That's not right.
`7
`Q. At what angle would the implant be put in relative
`8
` to the anterior direction of the spine?
`9
` MR. DAUCHOT: Objection,
`10
` foundation, mischaracterizes testimony,
`11
` assumes facts not in evidence.
`12
`A. I'm trying to characterize your question and see
`13
` if I can answer it in the way you posed it. It
`14
` doesn't specify an angle in this drawing or in the
`15
` description. It implies they're placed in from
`16
` the side of the spine by the nature of the
`17
` drawing; but, again, I don't specify the nature of
`18
` the approach, the anatomy of the approach, or the
`19
` angle of the approach. It's not addressed.
`20
`Q. Now, I think you said before that your idea for
`21
` the anterior implant was developed into the LT
`22
` Cage, but that you didn't think that the lateral
`23
` or posterior was developed; is that -- is that
`24
` correct?
`01:23
`25
`A. Well, I didn't develop it any further than this.
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 115
`Q. You didn't take any additional steps with respect
` to the lateral implant described on MNUV278540?
`A. Not that I recall.
`Q. Do you recall whether Danek took any further steps
` to develop the lateral implant that you described
` on MNUV278540?
`A. I don't know.
`Q. Do you recall communicating with Brad Estes in the
` February 1994 time frame about implants?
`A. I don't have any independent recollection of those
` conversations, no.
`Q. Do you recall any other efforts that you took or
` any other work that you did to develop a lateral
` implant besides what's on MNUV278540?
`A. No. I don't recall any others.
` (Exhibit No. 596 marked
` for identification)
`Q. I'm showing you what has been marked as
` Exhibit 596. Do you recognize that?
`A. I do.
`Q. What is it?
`A. It's a copy of a transcript of an operative note
` from surgery that I performed.
`Q. Now, this morning we talked about for Cervi-Lok
` procedures that you performed, there probably were
`
`01:22
`
`01:22
`
`01:23
`
`01:23
`
`01:23
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`01:24
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`01:24
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`01:26
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`01:26
`
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`01:26
`
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 116
`1
` dictated records of the surgery. Would this -- is
`2
` this what you're talking about when you say
`3
` there's dictated records of a surgery?
`4
`A. Yes.
`5
`Q. So there's probably a record similar to this for
`6
` the Cervi-Lok procedure that you performed; is
`7
` that right?
`8
`A. Probably is.
`9
`Q. And where would that be located?
`10
`A. At University Hospitals of Wisconsin.
`11
`Q. Do you recall anything about the procedure that
`12
` you performed in Exhibit 596?
`13
`A. Some. It's quite -- quite a while ago, but I
`14
` recall some of the details of it.
`15
`Q. And what do you recall about it?
`16
`A. Well, I recall that I had a patient that had a
`17
` problem at L2-3; and this was in the time frame
`18
` when we were doing quite a bit of laparoscopic
`19
` anterior spinal fusion, and I was working with one
`20
` of the general surgery partners that I had in
`21
` developing some endoscopic retroperitoneal
`22
` approaches that we had been toying with, and this
`23
` was a patient that we thought would be a good
`24
` candidate to try to use that approach to do a less
`01:28
`25
` invasive fusion at L2-3.
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 117
`
`01:26
`
`01:27
`
`01:27
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`1
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`
`Q. Can we take a break for a second?
`A. Sure.
` (Recess)
` (Exhibit No. 597 marked
` for identification)
`Q. And now I'm showing you what has been marked as
` Exhibit 597, and I'd just like to keep 596 so that
` we can talk about them together. Do you recognize
` Exhibit 597?
`A. I do.
`Q. And what is that?
`A. They're a number of images that I saved from the
` procedure that I did in December of 1997 to do a
` lateral cage placed endoscopically at L2-3.
`Q. And do you see on Zdeblick 279 in the upper
` left-hand corner there's a number? What is that
` number?
`A. Well, that's the patient identifier.
`Q. Is that the same patient identifier number on
` Zdeblick 280, Zdeblick 282, Zdeblick 287, and
` Zdeblick 290?
`A. It appears to be.
`Q. So all of those pages that I just mentioned would
` be for the same patient; is that right?
`A. That's correct.
`
`30 (Pages 114 to 117)
`
`01:30
`
`01:30
`
`01:30
`
`01:31
`
`01:31
`
`

`

`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 118
`1
`Q. And then if you turn back to Exhibit 596 --
`2
`A. Yes.
`3
`Q. -- do you see it has name and number?
`4
`A. Yes.
`5
`Q. And is that the same number 1584570 that was on
`6
` Zdeblick 279, 280, 282, 287, and 290?
`7
`A. It is.
`8
`Q. So does that mean that the pictures on those pages
`9
` of Exhibit 597 that have the number 1584570 relate
`10
` to the same patient that's described in
`11
` Exhibit 596?
`12
`A. They do.
`13
`Q. Do you remember anything about how you implanted
`14
` the intervertebral implant in the surgery
`15
` described in Exhibit 596?
`16
`A. I do.
`17
`Q. What do you remember?
`18
`A. I remember the entire operation.
`19
`Q. Can you tell me what you remember about the entire
`20
` operation?
`21
`A. Well, you can read it in the operative note that
`22
` describes it in the same detail that I remember it
`23
` in.
`24
` So we placed -- made a small incision in the
`01:33
`25
` patient's flank, and using just a finger we
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 119
` entered the retroperitoneal space and placed a
` balloon with a camera inside of it to expand that
` space, and then we could visualize through that
` retroperitoneal expanded space the lateral part of
` the spine. We used fluoroscopy to locate the
` correct disc space at L2-3, and then retracted the
` psoas muscle from anterior to posterior at that
` level to keep it out of the way. I affixed a pin
` into the vertebral body to hold the muscle back,
` and then we proceeded to engage the disc space at
` L2-3 from the side, from the lateral side, pass a
` reamer to remove disc material and a small amount
` of bone above and below, and then placed a
` threaded cylindrical cage that was filled with
` bone graft across the spine to affix the spine
` that way; and there's images that detail that
` position from a front and a side view.
`Q. When you say that you engaged the disc space, did
` that involve pushing the psoas muscle out of the
` way?
`A. The psoas was already retracted, as I mentioned,
` and held out of the way with a -- with a pin that
` I had driven into the vertebra.
`Q. Do you see in your clinical note the third
` sentence states, "Operative treatment has been
`
`01:31
`
`01:32
`
`01:32
`
`01:32
`
`01:33
`
`01:33
`
`01:34
`
`01:34
`
`01:34
`
`1
`2
`3
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`01:34
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`01:35
`
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 120
`1
` offered consisting of a lateral retroperitoneal
`2
` endoscopic interbody fusion using a custom lateral
`3
` threaded cage"?
`4
`A. That's correct.
`5
`Q. So did you testify earlier that you did not use an
`6
` implant in a lateral approach?
`7
`A. No. I testified in an anterolateral approach I
`8
` hadn't.
`9
`Q. Is this the only lateral approach that you've
`10
` performed where you've inserted an implant into a
`11
` spine?
`12
` MR. DAUCHOT: Just so we don't get
`13
` confused, I'll object. The prior testimony
`14
` was that he hadn't used it in a translateral
`15
` approach.
`16
` MR. MARTINI: Okay. Fair enough.
`17
`A. Okay. My recollection was I've never done a
`18
` translateral approach, so I couldn't have put an
`19
` implant in; and I'd said that an anterolateral
`20
` approach is I'd only put bone grafts in. Like I
`21
` said, the word "translateral" is a new name.
`22
` There were no such distinctions back in 1997.
`23
`Q. When is the --
`24
`A. But I'm not denying that I did this surgery. So
`01:35
`25
` I'm not sure what your question is. We've said
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 121
` all along that is this was a surgery I did in 1997
` and provided the records for it.
`Q. Right. When was the first time that you heard of
` the term "translateral"? Do you recall?
`A. I don't recall.
`Q. So this approach that's described in Exhibit 596
` and 597 is a lateral approach? Is that what
` you're saying?
`A. Yes.
`Q. And you inserted an implant laterally into the
` patient's spine?
`A. Yes, I did.
`Q. And is this the only lateral approach that you
` performed where you've inserted an implant into
` the spine?
`A. Again, you have to characterize that. So we're
` talking about lumbar spine and interbody fusion;
` is that correct?
`Q. Yes.
`A. And the answer would be yes. That's the only one
` I can remember.
`Q. Did you perform two lateral surgeries on this same
` day of December 18th, 1997, or was this the only
` surgical procedure where you did that?
`A. This was the only lateral one.
`31 (Pages 118 to 121)
`
`1
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`01:36
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`01:36
`
`01:37
`
`

`

`01:37
`
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 122
`1
`Q. Did you perform another surgery that same day?
`2
`A. I did, but I believe it was a laparoscopic
`3
` anterior fusion.
`4
`Q. And with that other procedure, the laparoscopic
`5
` anterior, were you still placing the
`6
` intervertebral insert laterally into the spine?
`7
`A. I'd have to go back and look at the operative
`8
` note. I don't believe so.
`9
`Q. Turning to -- well, before we turn to Exhibit 597,
`10
` do you see at the bottom of Exhibit 596 it states,
`11
` "Printed at 5-18-2010"?
`12
`A. I do see that, yes.
`13
`Q. Does that mean that you or someone under your
`14
` control printed this off on May 18th, 2010?
`15
`A. It appears that way. I don't really know.
`16
`Q. Do you have any idea why you would have printed
`17
` this off in May of 2010?
`18
`A. Yeah. I have -- and I don't have a specific
`19
` recollection, but I remember being contacted by --
`20
` MR. DAUCHOT: And if these are
`21
` discussions with your counsel, that's
`22
` privileged.
`23
` THE WITNESS: Okay.
`24
`A. I'll just say it was probably related to
`01:38
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` discussions with counsel.
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` MR. DAUCHOT: Okay.
`Q. Was counsel representing you at the time?
`A. No.
`Q. Okay.
`A. Well, I don't know what the word "represent"
` means. That's a good question. What does that
` mean?
`Q. Well, so like in this context you have counsel
` representing you, it's Luke, and he's provided --
` he's talked to you about this deposition process
` and, you know, you've had some communications
` about that; and he's been making objections during
` deposition.
` But back in May of 2010, it might be that,
` you know, you didn't have any attorneys that were
` representing you and attorneys might have
` contacted you and asked you for information; but
` unless there was some sort of relationship where
` they were representing your rights, then they're
` not providing advice to you.
` So, I guess, my question is back in May of
` 2010, were these attorneys that you're saying
` these communications are privileged, were they
` representing you?
`A. I don't actually recall.
`
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`1
`Q. Do you recall who the attorney was that contacted
`2
` you in May of 2010?
`3
`A. I don't.
`4
`Q. Do you recall if the attorney was with the law
`5
` firm of Kirkland & Ellis?
`6
`A. I don't.
`7
`Q. Do you recall having any agreements with attorneys
`8
` in this case prior to preparing for your testimony
`9
` about people representing you?
`10
` MR. DAUCHOT: Yeah. Let me
`11
` shortcut this. I'll withdraw my instruction.
`12
` MR. MARTINI: Okay.
`13
` MR. DAUCHOT: I'll withdraw my
`14
` instruction.
`15
` MR. MARTINI: Okay.
`16
` MR. DAUCHOT: If you remember,
`17
` Doctor, go ahead. If I could just have a
`18
` moment, I just want to make sure I'm not
`19
` missing something.
`20
` MR. MARTINI: Yeah. Sure. Off the
`21
` record.
`22
` (Discussion off the record)
`23
` MR. MARTINI: Back on.
`24
`Q. You understand you're still under oath?
`01:44
`25
`A. I do.
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 125
`Q. So before we went on the break, we were talking
` about May of 2010 when you printed off this --
` when you or somebody working for you printed off
` the report in Exhibit 596, and I had posed the
` question why had you printed off this report in
` May of 2010; and do you know?
`A. I do; and actually, I'm glad you mentioned that
` date because it jogged my memory about how this
` whole -- how I found this patient again.
` So we got a call, my office did, in May of
` 2010 from, my assistant said, a, quote, Medtronic
` attorney, end quote, and I really don't remember
` which firm or who it was, asking if I'd ever done
` a lateral -- if I remember doing a lateral cage
` implant because there's some lawsuit, and I
` responded, "Yeah, I do remember doing that." And
` they wanted to know if we could find the records
` from it. So I went back into my slide collection
` and actually found the set of slides that you have
` in front of us here that documented the procedure,
` found the patient's number on the slides, and used
` that number to retrieve this operative note.
` So now that I remember, it had nothing to do
` with looking in a database, because that would
` have been improbable to find, but I found it off
`32 (Pages 122 to 125)
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`Page 126
`1
` the slide and then dictated -- or not dictated,
`2
` but printed off this operative note; and somehow
`3
` that ended up with the attorneys at that point.
`4
`Q. Did the attorneys tell you why they wanted you to
`5
` print off this report or why they needed the
`6
` translateral -- excuse me, the lateral approach?
`7
` MR. DAUCHOT: Objection,
`8
` foundation.
`9
`A. I don't recall speaking to them directly. I think
`10
` my assistant dealt with them.
`11
`Q. Did your assistant find out why they needed that
`12
` information?
`13
`A. She said there was, quote, some lawsuit, end
`14
` quote, but I didn't know anything more than that
`15
` or may have even been potentially a lawsuit at
`16
` that point. I don't recall.
`17
`Q. Now, in your previous answer you mentioned
`18
` something about a slide collection. What is this
`19
` slide collection?
`20
`A. Back in the old days we used to take photographs
`21
` with cameras that produced slides, and for anybody
`22
` who's in academic medicine in the last 20 years,
`23
` we used to all give our lectures with huge
`24
` carousels of slides; so I would keep, I don't
`01:47
`25
` know, six file cabinets full of slides of cases
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 127
` that I'd done and photographs, and that if I had
` to put a lecture together, I could go back in and
` pull certain slides out to make up such a lecture.
` So I had that for many years; and then when we
` moved to our new office building, I actually got
` rid of it all because slides are out of date and
` all those cases were out of date. But I saved a
` few choice cases like this one that I knew were
` just unique, and for some reason, I don't recall
` why, when I was disposing of the -- most of that
` collection, this is one of the few things that I
` pulled out and saved and put in a drawer.
`Q. Did you save any other slides from that
` collection?
`A. Yes, a couple, less than a hundred; weird, you
` know, unique cases I've seen over two decades.
`Q. Did any of those cases involve anterior cervical
` plates?
`A. I don't recall.
`Q. Did any of those other cases involve inserting
` implants into spines?
`A. Very possibly, yeah. It's what I do.
`Q. Did you search any of those slides as part of your
` response to the subpoena other than to get these
` slides that you produced in Exhibit 597?
`
`01:49
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`Page 128
`1
`A. No. I searched it, and this is the only ones that
`2
` were appropriate to this -- to this subpoena.
`3
`Q. And how did you make the determination what was
`4
` appropriate in response to the subpoena?
`5
` MR. DAUCHOT: To the extent that
`6
` involves communications with counsel,
`7
` Dr. Zdeblick, I instruct you not to answer.
`8
`A. I used my intellect to read the questions and
`9
` interpret them.
`10
`Q. Did any of the slides that you kept from your
`11
` carousel of slides involve a Novus LC implant?
`12
`A. Not that I can recall.
`13
`Q. Did any of the slides involve implanting an
`14
` Interfix cage?
`15
`A. Not that I recall, other than this one that's in
`16
` front of us now.
`17
`Q. Is that the implant that you put in? Was it an
`18
` Interfix cage in Exhibit 597?
`19
`A. As I said before, I don't recall when the names
`20
` changed from TIBFD to Interfix to Novus LC. I
`21
` think they all refer to the same, but I may be
`22
` wrong on that. There may be subtle differences.
`23
` And I don't actually recall which this would fall
`24
` under, but it's a similar design to that.
`01:50
`25
`Q. So it's in that family?
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`Page 129
` MR. DAUCHOT: Objection. I don't
` know what "family" means; and assumes facts
` not in evidence.
`Q. It's one of those three though?
` MR. DAUCHOT: Objection.
`A. Yes.
`Q. Turning to Exhibit 597, what is shown in Zdeblick
` 279?
`A. That's a fluoroscopic image. It's an anterior
` posterior view, meaning from the front, and it
` looks like it's one of the final images we took
` once the cage implant was in place.
`Q. And can you tell how far the implant spans the
` vertebral -- or the spine, I guess? Is it all the
` way across?
`A. It appears to be.
`Q. And it looks like the implant in Zdeblick 279 is
` kind of at an angle, but that would be with
` respect to top to bottom of the spine; is that
` right?
`A. Yes. I guess if by an "angle" you mean tilted
` cephalad, or superiorly, yeah, that would be
` matching the disc space.
`Q. But that wouldn't be at an angle with respect to
` the approach from the side of the spine; is that
`33 (Pages 126 to 129)
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`01:52
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`1
` right?
`2
`A. I'm not quite sure what you're asking. We're
`3
` looking at the front of the spine.
`4
`Q. Yeah.
`5
`A. And if you're referring to an angle, you're
`6
` referring to a tilt that goes superiorly, meaning
`7
` from the foot towards the head, of a few degrees.
`8
`Q. Uh-huh.
`9
`A. Am I correct?
`10
`Q. Yes.
`11
`A. So that's what we're talking about. That's all I
`12
` can infer from that image.
`13
`Q. And what is shown in Zdeblick 280?
`14
`A. Again, it's a fluoroscopic image from the same
`15
` procedure but an earlier stage of the procedure.
`16
` It shows a few of the instruments placed in the
`17
` spine. It shows the pin that's driven into the
`18
` vertebra to hold the muscle back. It shows a
`19
` little retractor section device, and then it shows
`20
` the cannula that's being placed within the disc
`21
` space, initial trephine.
`22
`Q. So before we talked about the specific slides that
`23
` have 1584570 on it as being related to the case
`24
` described in Exhibit 596, but there are a few
`01:53
`25
` slides that don't have the number 1584570. Do
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 131
` those also relate to the same case though, those
` pages within Exhibit 597?
`A. Yes. Everything in this exhibit is from the same
` patient.
`Q. So what is shown in Zdeblick 281?
`A. 281 is an x-ray taken postoperatively of the
` implant in place, the same front view of the
` spine.
`Q. And what is in Zdeblick 282?
`A. 282 is a -- also a fluoroscopic image
` intraoperatively that shows a further step in the
` procedure where I'm distracting the disc space
` from the side of the spine.
`Q. And what about Zdeblick 285?
`A. 28 --
`Q. 5.
`A. 285 is the same x-ray view except less magnified
` than the previous one we looked at. Postoperative
` view of the spine from the front.
`Q. What is shown in Zdeblick 286?
`A. 286 is a preoperative x-ray of the side of the
` spine, a lateral x-ray. It shows the pathology
` that we were operating for.
`Q. And what is shown in Zdeblick 287?
`A. 287 is a fluoroscopic image on a lateral approach
`
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`Page 132
`1
` -- I mean, a lateral view, so we're looking at the
`2
` side of the spine and seeing the final position of
`3
` the implant as it looked from the side.
`4
`Q. So can you tell from Zdeblick 287 what angle the
`5
` implant has been put into the spine from the side?
`6
` Is it -- is it directly into the spine or is it at
`7
` an angle with respect to the vertebral bodies?
`8
`A. It's directly lateral.
`9
`Q. And what is Zdeblick 289?
`10
`A. Postoperative x-ray lateral view; not perfectly a
`11
` lateral, so it's a little bit oblique, but it
`12
` shows the implant placed in the spine from the
`13
` lateral view.
`14
`Q. Do you recall the length of the implant that you
`15
` put into the patient in Exhibits 596 and 597?
`16
`A. I don't have any independent recollection of that,
`17
` but I can read it from the operative note.
`18
`Q. And what can you read from the operative note is
`19
` the length?
`20
`A. The cage was 41 millimeters in length.
`21
`Q. And what does the 18 on MNUV1417826 refer to?
`22
`A. The diameter.
`23
`Q. And was it a circular cage so that the diameter
`24
` was the same throughout?
`01:56
`25
`A. Yes.
`CONFIDENTIAL - CONFIDENTIAL - CONFIDENTIAL
`Page 133
`Q. Had you performed any surgeries prior to this
` December 18th, 1997, surgery -- or 1997 surgery
` using a Novus LC implant?
`A. You know, I couldn't recall any that I'd ever
` used. The cylindrical cages I had used up to this
` point were the BAK cages. So I wasn't -- I wasn't
` routinely using the Novus LC Cage. And by this
` point in time -- let me just refresh my memory on
` the date. Yeah. By '97 I was only using the LT
` Cage by that point, so I was not using the LC
` Cage.
`Q. I think you said that you were -- the cylindrical
` cages that you were primarily using up to December
` 18th, 1997, were BAK cages. Were there any other
` cylindrical cages that you used?
` MR. DAUCHOT: Objection,
` mischaracterizes testimony. Go ahead.
`A. I used the threaded bone dowels, if you can
` consider that an implant. It was a machined piece
` of cadaver bone that was cylindrical, but that
` came from a bone bank; but no. I used the BAK
` from '93 to '95, and that turned out to be LT Cage
` from '95 onward; and somewhere in the middle there
` I did a few cases with the threaded bone dowels.
`Q. Before when we were talking about your slide
`
`01:55
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`34 (Pages 130 to 133)
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