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
`
` 443
`
`
`
`
`
`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
`
`A10443
`
`

`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`INDEX — 08 CV 1512
`INDEX - 08 CV 1512
`
`MEDTRONIC V. NUVASIVE, 8/31/11
`MEDTRONIC V. NUVASIVE, 8/31/11
`
`
`
`WITNESSES:
`WITNESSES:
`
`PATRICK MILES
`PATRICK MILES
`
`CROSS BY MR. SCHERKENBACH
`CROSS BY MR. SCHERKENBACH
`
`REDIRECT BY MR. DAUCHOT
`REDIRECT BY MR. DAUCHOT
`
`RECROSS BY MR. SCHERKENBACH
`RECROSS BY MR. SCHERKENBACH
`
`
`
`ALEXIS V. LUKIANOV
`ALEXIS V. LUKIANOV
`
`DIRECT BY MR. DAUCHOT
`DIRECT BY MR. DAUCHOT
`
`CROSS BY MR. SCHERKENBACH
`CROSS BY MR. SCHERKENBACH
`
`444
` 444
`
`PAGE:
`
` 445
`
` 472
`
` 496
`
` 501
`
` 548
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`ELIZABETH CESENA, C SR 12266,
`(619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037,
`SAN DIEGO, CA 92170
`
`A1 0444
`
`A10444
`
`

`
`470
` 470
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`NERVES BUT ALSO TO IDENTIFY WHICH DIRECTION THEY WERE
`NERVES BUT ALSO TO IDENTIFY WHICH DIRECTION THEY WERE
`
`LOCATED IN FROM WHERE THE SURGEON WAS?
`LOCATED IN FROM WHERE THE SURGEON WAS?
`
`A
`A
`
`IT FOUND THE NERVE, BUT IT DIDN'T HAVE THE CAPACITY TO
`IT FOUND THE NERVE, BUT IT DIDN'T HAVE THE CAPACITY TO
`
`TELL DIRECTIONALLY, YOU KNOW, WHERE THE NERVE WAS.
`TELL DIRECTIONALLY, YOU KNOW, WHERE THE NERVE WAS.
`
`Q
`
`A
`
`Q
`
`A
`
`IS DIRECTIONALITY SOMETHING ADDED LATER?
`IS DIRECTIONALITY SOMETHING ADDED LATER?
`
`YES.
`YES.
`
`AND IS THAT IN NEUROVISION TODAY?
`AND IS THAT IN NEUROVISION TODAY?
`
`YES. BUT FUNDAMENTALLY, IT GOES BACK TO, HOW DO YOU
`YES.
`BUT FUNDAMENTALLY,
`IT GOES BACK TO, HOW DO YOU
`
`CONTINUE TO IMPROVE AND CREATE RESOLUTION SO YOU CREATE
`CONTINUE TO IMPROVE AND CREATE RESOLUTION SO YOU CREATE
`
`SAFETY AND REPRODUCIBILITY.
`SAFETY AND REPRODUCIBILITY.
`
`Q
`Q
`
`WOULD YOU SAY THE USE OF NEUROVISION, NERVE MONITORING
`WOULD YOU SAY THE USE OF NEUROVISION, NERVE MONITORING
`
`TECHNOLOGY HAS BEEN IMPORTANT TO THE SUCCESS OF XLIF?
`TECHNOLOGY HAS BEEN IMPORTANT TO THE SUCCESS OF XLIF?
`
`A
`A
`
`Q
`Q
`
`YES.
`YES.
`
`I THINK YOU TOLD US THAT DR. PIMENTA, WHEN HE WAS FIRST
`I THINK YOU TOLD US THAT DR. PIMENTA, WHEN HE WAS FIRST
`
`DOING HIS DIRECT LATERAL APPROACHES, HE WASN'T USING NERVE
`DOING HIS DIRECT LATERAL APPROACHES, HE WASN'T USING NERVE
`
`MONITORING, RIGHT?
`MONITORING, RIGHT?
`
`A
`A
`
`Q
`Q
`
`HE WAS NOT.
`HE WAS NOT.
`
`SO YOU CAN DO THESE PROCEDURES WITHOUT NERVE
`SO YOU CAN DO THESE PROCEDURES WITHOUT NERVE
`
`MONITORING?
`MONITORING?
`
`A
`A
`
`BECAUSE YOU CAN DOESN'T MEAN YOU SHOULD AND WHAT HAPPEN
`BECAUSE YOU CAN DOESN'T MEAN YOU SHOULD AND WHAT HAPPEN
`
`IS THERE ARE ANATOMIC SAFE ZONES.
`THERE ARE PLACES IN THE
`IS THERE ARE ANATOMIC SAFE ZONES. THERE ARE PLACES IN THE
`
`PSOAS WHERE THE NERVES AREN'T SUPPOSED TO BE, BUT ALL OF US
`PSOAS WHERE THE NERVES AREN'T SUPPOSED TO BE, BUT ALL OF US
`
`ARE ANATOMICALLY DIFFERENT SO MY PREFERENCE, IF I HAD THE
`ARE ANATOMICALLY DIFFERENT SO MY PREFERENCE,
`IF I HAD THE
`
`SURGERY IS TO KNOW WHERE THE NEURO ELEMENTS ARE.
`SURGERY IS TO KNOW WHERE THE NEURO ELEMENTS ARE.
`
`Q
`Q
`
`HAVE YOU HAD REQUESTS FROM HOSPITALS OR CUSTOMERS TO
`HAVE YOU HAD REQUESTS FROM HOSPITALS OR CUSTOMERS TO
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`ELIZABETH CESENA, CSR 12266,
`(619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN DIEGO, CA 92170
`
`A10470
`
`A10470
`
`

`
`471
` 471
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`SELL THEM IMPLANTS COROENT, ETC, TO DO DIRECT LATERAL
`SELL THEM IMPLANTS COROENT, ETC, TO DO DIRECT LATERAL
`
`SURGERY, BUT THEY SAY, "WE DON'T WANT TO USE NEUROVISION"?
`SURGERY, BUT THEY SAY,
`"WE DON'T WANT TO USE NEUROVISION"?
`
`A
`A
`
`Q
`Q
`
`A
`A
`
`YES.
`YES.
`
`HOW DO YOU RESPOND TO THOSE REQUESTS?
`HOW DO YOU RESPOND TO THOSE REQUESTS?
`
`WE HAVE SUCH A CONFIDENCE IN THE VERIFICATION IN THE
`WE HAVE SUCH A CONFIDENCE IN THE VERIFICATION IN THE
`
`SAFETY AND REPRODUCIBILITY, A VERY ROTE, STEP ONE, STEP TWO,
`SAFETY AND REPRODUCIBILITY, A VERY ROTE, STEP ONE, STEP TWO,
`
`STEP THREE, TECHNIQUE THAT WHEN WE DO IT, IS WE DRIVE THEM
`STEP THREE, TECHNIQUE THAT WHEN WE DO IT,
`IS WE DRIVE THEM
`
`TO SELL THE PROCEDURE, NOT SPECIFIC ELEMENTS OF THE
`TO SELL THE PROCEDURE, NOT SPECIFIC ELEMENTS OF THE
`
`PROCEDURE.
`PROCEDURE.
`
`Q
`Q
`
`A
`A
`
`Q
`Q
`
`SO YOU SAY NO TO SOME CUSTOMERS?
`SO YOU SAY NO TO SOME CUSTOMERS?
`
`ABSOLUTELY.
`ABSOLUTELY.
`
`EVEN THOUGH YOU COULD MAKE MORE MONEY IF YOU JUST SOLD
`EVEN THOUGH YOU COULD MAKE MORE MONEY IF YOU JUST SOLD
`
`THEM THE IMPLANTS?
`THEM THE IMPLANTS?
`
`A
`A
`
`YOU CAN DO SHORT TERM PHENOMENA.
`OUR VISION IS WE
`YOU CAN DO SHORT TERM PHENOMENA. OUR VISION IS WE
`
`CREATE VALUE.
`WE GET PAID REFLECTIVE OF THE VALUE AND THE
`CREATE VALUE. WE GET PAID REFLECTIVE OF THE VALUE AND THE
`
`VALUE IS ONLY DONE WHEN YOU DO GOOD WORK AND YOU CREATE
`VALUE IS ONLY DONE WHEN YOU DO GOOD WORK AND YOU CREATE
`
`SAFETY AND REPRODUCIBILITY.
`TO MAKE A LITTLE MONEY ON A
`SAFETY AND REPRODUCIBILITY. TO MAKE A LITTLE MONEY ON A
`
`SINGLE EXPERIENCE IS NOT A BUSINESS.
`SINGLE EXPERIENCE IS NOT A BUSINESS.
`
`Q
`Q
`
`IS NUVASIVE OR DOCTORS WHO USED NUVASIVE TECHNOLOGY
`IS NUVASIVE OR DOCTORS WHO USED NUVASIVE TECHNOLOGY
`
`DONE STUDIES OF HOW OFTEN IT IS THEY ENCOUNTER A NERVE USING
`DONE STUDIES OF HOW OFTEN IT IS THEY ENCOUNTER A NERVE USING
`
`THE NEURO VISION TECHNOLOGY?
`THE NEURO VISION TECHNOLOGY?
`
`A
`
`Q
`
`A
`
`ABSOLUTELY.
`ABSOLUTELY.
`
`WHAT ARE THOSE NUMBERS LIKE?
`WHAT ARE THOSE NUMBERS LIKE?
`
`IT'S IN THE 80 TO 90 PERCENT RANGE.
`IT'S IN THE 80 TO 90 PERCENT RANGE.
`
`SO IT'S NICE TO KNOW WHEN SOMETHING IS THERE AND
`SO IT'S NICE TO KNOW WHEN SOMETHING IS THERE AND
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`ELIZABETH CESENA, CSR 12266,
`(619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN DIEGO, CA 92170
`
`A10471
`
`A10471
`
`

`
`527
` 527
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`10
`
`11
`11
`
`12
`12
`
`13
`13
`
`14
`14
`
`15
`15
`
`16
`16
`
`17
`17
`
`18
`18
`
`19
`19
`
`20
`20
`
`21
`21
`
`22
`22
`
`23
`23
`
`24
`24
`
`25
`25
`
`SINCE YOU ARE DEALING WITH FEWER NERVES IN THE ANTERIOR SIDE
`SINCE YOU ARE DEALING WITH FEWER NERVES IN THE ANTERIOR SIDE
`
`OF THE PSOAS THAN IN THE POSTERIOR, YOU KNOW THAT A NUMBER
`OF THE PSOAS THAN IN THE POSTERIOR, YOU KNOW THAT A NUMBER
`
`OF SURGEONS USED FREEHAND TO WORM THEIR WAY OR VISUALIZE
`OF SURGEONS USED FREEHAND TO WORM THEIR WAY OR VISUALIZE
`
`THEIR WAY THROUGH THE PSOAS TO GET TO THE DISC SPACE.
`YOU
`THEIR WAY THROUGH THE PSOAS TO GET TO THE DISC SPACE. YOU
`
`KNOW THAT?
`KNOW THAT?
`
`A
`A
`
`Q
`Q
`
`YES, A LONG TIME AGO. WELL, BEFORE THIS, ACTUALLY.
`YES, A LONG TIME AGO. WELL, BEFORE THIS, ACTUALLY.
`
`AND MARRYING NEUROVISION WITH DR. PIMENTA'S SURGICAL
`AND MARRYING NEUROVISION WITH DR. PIMENTA'S SURGICAL
`
`APPROACH WAS GOOD MARKETING?
`APPROACH WAS GOOD MARKETING?
`
`A
`A
`
`WELL, THE WHOLE POINT OF THIS SLIDE IS THAT WE PUT
`WELL, THE WHOLE POINT OF THIS SLIDE IS THAT WE PUT
`
`TOGETHER THE COMPLETE STRATEGY.
`TOGETHER THE COMPLETE STRATEGY.
`
`YOU ASKED ME BEFORE IF DR. PIMENTA HAD DISCOVERED
`YOU ASKED ME BEFORE IF DR. PIMENTA HAD DISCOVERED
`
`XLIF PRIOR, AND I SAID NO, BECAUSE HE WAS DOING A
`XLIF PRIOR, AND I SAID NO, BECAUSE HE WAS DOING A
`
`RETROPERITONEAL APPROACH AT 90 DEGREES, BUT WE HADN'T PUT
`RETROPERITONEAL APPROACH AT 90 DEGREES, BUT WE HADN'T PUT
`
`THE WHOLE THING TOGETHER OF MAXCESS IMPLANTS, THE ENTIRE
`THE WHOLE THING TOGETHER OF MAXCESS IMPLANTS, THE ENTIRE
`
`PACKAGE WITH ADVANCED NEURO MONITORING.
`PACKAGE WITH ADVANCED NEURO MONITORING.
`
`Q
`Q
`
`CAN WE GO TO PX0121, PLEASE? CAN YOU BLOW THAT UP,
`CAN YOU BLOW THAT UP,
`CAN WE GO TO PXO121, PLEASE?
`
`JUST THE TOP PART?
`JUST THE TOP PART?
`
`WE SAW THIS DOCUMENT YESTERDAY, MR. LUKIANOV, IN
`WE SAW THIS DOCUMENT YESTERDAY, MR. LUKIANOV,
`IN
`
`THE COURTROOM.
`IT'S A DOCUMENT DATED MAY 6TH --
`THE COURTROOM. IT'S A DOCUMENT DATED MAY 6TH --
`
`A
`A
`
`Q
`Q
`
`I WASN'T IN THE COURTROOM YESTERDAY.
`I WASN'T IN THE COURTROOM YESTERDAY.
`
`NO, I KNOW. I DIDN'T SAY YOU. I SAID, "WE SAW THIS
`NO,
`I KNOW.
`I DIDN'T SAY YOU.
`I SAID,
`"WE SAW THIS
`
`DOCUMENT YESTERDAY."
`DOCUMENT YESTERDAY."
`
`A
`A
`
`Q
`Q
`
`I THOUGHT YOU SAID I SAW IT.
`I THOUGHT YOU SAID I SAW IT.
`
`WE ALL HAVE, THE JURORS HAVE.
`WE ALL HAVE, THE JURORS HAVE.
`
`SO IT'S A DOCUMENT DATED JUNE 6, 2008.
`SO IT'S A DOCUMENT DATED JUNE 6, 2008.
`
`ELIZABETH CESENA, CSR 12266, (619) 237-0100
`ELIZABETH CESENA, CSR 12266,
`(619) 237-0100
`USDC, SOUTHERN DISTRICT OF CA
`USDC, SOUTHERN DISTRICT OF CA
`PO BOX 131037, SAN DIEGO, CA 92170
`PO BOX 131037, SAN DIEGO, CA 92170
`
`A10527
`
`A10527