1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`GREENEVILLE
`
`DENTSPLY INTERNATIONAL,
`INC. AND TULSA DENTAL
`PRODUCTS LLC D/B/A TULSA
`DENTAL SPECIALTIES,
`
`PLAINTIFFS,
`
`vs.
`
`US ENDODONTICS, LLC,
`
`DEFENDANT.
`
`DOCKET NO. CV-2-14-196
`
`GREENEVILLE, TN
`NOVEMBER 25, 2014
`9:05 A.M.
`VOLUME I
`
`TRANSCRIPT OF MOTION HEARING
`BEFORE THE HONORABLE J. RONNIE GREER
`UNITED STATES DISTRICT JUDGE
`
`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
`
`GOLD STANDARD
`2ND SUBSTITUTE EXHIBIT 2001
`US ENDODONTICS v. GOLD STANDARD
`CASE IPR2015-00632
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`GREENEVILLE
`
`DENTSPLY INTERNATIONAL,
`INC. AND TULSA DENTAL
`PRODUCTS LLC D/B/A TULSA
`DENTAL SPECIALTIES,
`
`PLAINTIFFS,
`
`vs.
`
`US ENDODONTICS, LLC,
`
`DEFENDANT.
`
`DOCKET NO. CV-2-14-196
`
`GREENEVILLE, TN
`NOVEMBER 25, 2014
`9:05 A.M.
`VOLUME I
`
`TRANSCRIPT OF MOTION HEARING
`BEFORE THE HONORABLE J. RONNIE GREER
`UNITED STATES DISTRICT JUDGE
`
`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
`
`GOLD STANDARD
`2ND SUBSTITUTE EXHIBIT 2001
`US ENDODONTICS v. GOLD STANDARD
`CASE IPR2015-00632
`
`
`
`2
`
`APPEARANCES:
`
`FOR THE PLAINTIFFS: ROTHWELL, FIGG, ERNST &
` MANBECK, P.C.
` STEVEN LIEBERMAN, ESQ.
` DEREK F. DAHLGREN, ESQ.
` R. ELIZABETH BRENNER-LEIFER, ESQ.
` 607 14TH STREET, N.W.
` SUITE 800
` WASHINGTON, D.C. 2005
` HUNTER, SMITH & DAVIS
` JIMMIE C. MILLER, ESQ.
` 1212 N. EASTMAN RD.
` P.O. BOX 3740
` KINGSPORT, TN 37664
`
`FOR THE DEFENDANT: KENYON & KENYON LLP
` JEFFREY S. GINSBERG, ESQ.
` MATTHEW G. BERKOWITZ, ESQ.
` ONE BROADWAY
` NEW YORK, NY 10004
` WILSON WORLEY MOORE GAMBLE &
` STOUT, PC
` ROBERT L. ARRINGTON, ESQ.
` P.O. BOX 88
` KINGSPORT, TN 37662
`
`COURT REPORTER: KAREN J. BRADLEY
` RPR-RMR
` U.S. COURTHOUSE
` 220 WEST DEPOT STREET
` GREENEVILLE, TN 37743
`PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
`PRODUCED BY COMPUTER.
`
`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
`
`
`
`3
`
`(CALL TO ORDER OF THE COURT AT 9:05 A.M.)
`THE COURT: GOOD MORNING.
`ALL RIGHT. MS. HOPSON, WOULD YOU CALL THIS
`CASE, PLEASE.
`THE CLERK: DENTSPLY INTERNATIONAL, INC. VERSUS
`US ENDODONTICS, LLC, CASE NUMBER 2-14-CV-196.
`THE COURT: ALL RIGHT. FIRST OF ALL, COULD I
`HAVE COUNSEL ANNOUNCE THEIR APPEARANCES FOR THE RECORD,
`PLEASE, BEGINNING WITH THE PLAINTIFFS; AND, MS. MILLER,
`YOU MAY PREFER TO INTRODUCE COUNSEL TO ME.
`MS. MILLER: LET ME INTRODUCE FIRST, YOUR
`HONOR, MR. STEVE LIEBERMAN.
`MR. LIEBERMAN: GOOD MORNING, YOUR HONOR.
`THE COURT: GOOD MORNING.
`MS. MILLER: HIS COLLEAGUE DEREK DAHLGREN.
`MR. DAHLGREN: GOOD MORNING.
`MS. MILLER: CHRISTY FROM MY OFFICE, PARALEGAL.
`THE COURT: YES.
`MS. MILLER: ELIZABETH BRENNER-LEIFER. AND
`ELIZABETH, DEREK AND STEVE PRACTICE WITH THE SAME PATENT
`FIRM IN D.C.
`THE COURT: ALL RIGHT.
`MS. MILLER: AND THEN WE HAVE THREE REPRESENTA-
`TIVES FROM DENTSPLY THAT ARE PRESENT. WE HAVE MR. DAN
`AMONS, WHO IS THE DIRECTOR OF RESEARCH AND DEVELOPMENT,
`
`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
`
`
`
`4
`
`AND THEN TWO IN-HOUSE LAWYERS FOR DENTSPLY, DAVID ZORIN
`AND LINDY BARTON HORTON.
`THE COURT: MS. MILLER, ARE YOU GOING TO TAKE
`THE LEAD FOR THE PLAINTIFFS?
`MS. MILLER: NO, I AM NOT. MR. LIEBERMAN HAS
`THAT HONOR.
`THE COURT: ALL RIGHT, AND, MR. LIEBERMAN, I
`ASSUME YOU'RE READY TO GO THIS MORNING?
`MR. LIEBERMAN: WE ARE, YOUR HONOR. WE HAVE
`THREE WITNESSES, AND THEY'RE ALL PRESENT IN THE
`COURTROOM.
`THE COURT: ALL RIGHT. THANK YOU.
`MR. ARRINGTON, YOU WANT TO DO THE SAME THING
`FOR THE DEFENDANT, PLEASE?
`MR. ARRINGTON: I WILL, YOUR HONOR.
`MR. JEFF GINSBERG, MR. MATT BERKOWITZ, BOTH OF
`KENYON & KENYON IN NEW YORK CITY.
`MR. GINSBERG: GOOD MORNING, YOUR HONOR.
`MR. BERKOWITZ: GOOD MORNING, YOUR HONOR.
`MR. ARRINGTON: THEIR COURTROOM PARALEGAL,
`MR. BERNIE POUND, IS ALSO HERE.
`MR. POUND: GOOD MORNING, YOUR HONOR.
`MR. ARRINGTON: AND THE CHIEF OPERATING OFFICER
`OF US ENDODONTICS, BOBBY BENNETT, WHO OVERSEES
`MANUFACTURING IN JOHNSON CITY, IS ALSO IN THE COURTROOM.
`
`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
`
`
`
`5
`
`THE COURT: ALL RIGHT, AND IS THE DEFENDANT
`
`READY?
`
`MR. GINSBERG: WE ARE, YOUR HONOR.
`THE COURT: ALL RIGHT. COUNSEL, JUST A FEW
`QUICK THINGS BEFORE WE GET STARTED.
`THERE HAD BEEN A PLEADING FILED SUGGESTING A 45
`MINUTE TIME PERIOD FOR OPENING STATEMENTS. I TRUST THAT
`YOU UNDERSTOOD FROM MY ORDER THAT I DID NOT SEE THE NEED
`FOR OPENING STATEMENTS. I HAVE READ YOUR BRIEFS, I'VE
`LOOKED AT THE ATTACHED EXHIBITS. IF THERE'S SOMETHING YOU
`WANT TO TELL ME THAT'S NOT ALREADY STATED IN THESE BRIEFS,
`I'LL BE GLAD TO HEAR IT; BUT I'VE READ YOUR BRIEFS, SO I
`DON'T WANT SIMPLY A REPEAT OF WHAT YOU SAID IN YOUR BRIEF.
`BEYOND THAT, PLAINTIFFS HAVE THREE WITNESSES,
`ALL EXPERT WITNESSES? WHO ARE THE THREE PLAINTIFFS'
`WITNESSES?
`MR. LIEBERMAN: THE FIRST WITNESS, YOUR HONOR,
`IS DR. NEILL LUEBKE. DR. LUEBKE IS AN ENDODONTIST. HE'S
`THE INVENTOR ON THE TWO PATENTS IN SUIT.
`THE COURT: ALL RIGHT.
`MR. LIEBERMAN: HE'S ALSO SUBMITTED AN EXPERT
`REPORT, SO SOME OF HIS TESTIMONY WILL BE IN THE ROLE OF AN
`EXPERT.
`
`THERE'S DR. ROBERT SINCLAIR, WHO IS AN EXPERT
`WITNESS; AND DR. GERING, WHO IS AN ECONOMIST, WHOSE
`
`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
`
`
`
`6
`
`TESTIMONY WILL BE ON THE ISSUE OF THE ABILITY TO PAY, THE
`IRREPARABLE HARM PRONG.
`THE COURT: ALL RIGHT. THANK YOU.
`AND HOW MANY WITNESSES WILL BE CALLED BY THE
`DEFENDANT?
`MR. GINSBERG: YOUR HONOR, WE'LL BE CALLING TWO
`WITNESSES, BOTH EXPERT WITNESSES. WE HAVE DR. JONATHAN
`GOLDBERG. HE'S A PH.D. METALLURGICAL ENGINEER. HE'LL BE
`TESTIFYING ON THE ISSUES OF INFRINGEMENT, VALIDITY OF THE
`'773 PATENT; AND WE ALSO HAVE A PH.D. ECONOMIST,
`DR. JEFFREY STEC, WHO WILL BE TESTIFYING REGARDING ISSUES
`CONCERNING POTENTIAL DAMAGES AND IRREPARABLE HARM.
`THE COURT: ALL RIGHT. IT WAS SUGGESTED IN THE
`FILING THAT WAS MADE THAT THERE BE AN ORDER ESTABLISHED IN
`THE PRESENTATION OF THE EVIDENCE. THE SUGGESTION WAS THAT
`PLAINTIFFS PRESENT THEIR CASE ON ALL ISSUES OTHER THAN THE
`VALIDITY, THAT THE DEFENDANT THEN PRESENT ITS REBUTTAL
`CASE AND ITS CASE ON INVALIDITY, AND THAT PLAINTIFFS THEN
`REBUT THAT. IS EVERYBODY IN AGREEMENT THAT THAT'S AN
`APPROPRIATE WAY, OR CAN WE -- CAN YOU PRESENT ALL OF YOUR
`EVIDENCE IN ONE SITTING, ONE GO?
`MR. LIEBERMAN: THE ANSWER TO YOUR SECOND
`QUESTION, YOUR HONOR, IS YES.
`THE COURT: ALL RIGHT.
`MR. LIEBERMAN: OUR PLAN IS TO PRESENT ALL OF
`
`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
`
`
`
`7
`
`OUR EVIDENCE IN ONE SITTING. IT MAY BE IF THERE'S SOME
`NEW ISSUE THAT'S BROUGHT UP BY THE DEFENDANT ON THEIR
`CASE, WE MIGHT WANT TO CALL SOMEONE AS A REBUTTAL. WE
`DON'T CURRENTLY ANTICIPATE THAT, BUT WE WOULD PLAN ON
`PRESENTING ALL OF OUR EVIDENCE ON OUR CASE.
`AND, YOUR HONOR, THERE WAS -- THERE'S ONE
`ADDITIONAL, HESITATE TO CALL HIM A WITNESS, MR. BENNETT,
`WHO WAS THE CHIEF OPERATING OFFICER OF THE DEFENDANT, GAVE
`A DEPOSITION. WE'VE MARKED ABOUT 20 PAGES OR SO OF HIS
`TRANSCRIPT THAT WE THOUGHT MIGHT BE RELEVANT TO THE
`ISSUES. IF THE COURT WOULD DECIDE RATHER THAN WASTING THE
`TIME OF READING THE TESTIMONY IN, WE THOUGHT WE WOULD HAND
`THAT TO THE COURT AT THE APPROPRIATE TIME AND THE COURT
`COULD TAKE THAT TESTIMONY FOR WHATEVER THE COURT THOUGHT
`IT WAS WORTH.
`THE COURT: I WOULD MUCH PREFER THAT YOU FILE
`THE WRITTEN TRANSCRIPT.
`MR. LIEBERMAN: THANK YOU, YOUR HONOR.
`THE COURT: IS THERE ANY REASON NOT TO APPROACH
`THIS CASE THAT WAY? I UNDERSTAND THE RELEVANT BURDENS
`HERE, BUT --
`MR. GINSBERG: YOUR HONOR, IF THAT'S HOW THE
`COURT WISHES TO PROCEED, THAT'S FINE FOR THE DEFENDANT.
`WE PROPOSED A SCHEDULE, THEY DID NOT ACCEPT OUR PROPOSAL.
`IF YOU WANT TO PROCEED IN THAT MANNER, THAT'S FINE FOR
`
`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
`
`
`
`8
`
`US.
`
`THE COURT: WELL, I HAVE TWO DAYS FOR THIS.
`I'D PREFER TO USE ONLY A DAY AND A HALF, SO WE NEED TO GET
`IT ALL IN --
`MR. GINSBERG: ABSOLUTELY.
`THE COURT: -- SO EVERYTHING YOU CAN DO TO
`STREAMLINE THIS WOULD BE APPRECIATED, OKAY.
`MR. GINSBERG: YES, YOUR HONOR.
`THE COURT: OTHERWISE, YOU CAN MAKE YOUR OWN
`DECISIONS ABOUT THE ORDER OF THE EVIDENCE.
`MR. GINSBERG: THANK YOU, YOUR HONOR.
`THE COURT: ALL RIGHT. I UNDERSTAND THERE WAS
`AN ISSUE TO BE RAISED ABOUT THE EXHIBITS. WHAT IS THAT
`ISSUE?
`
`MR. LIEBERMAN: YOUR HONOR, ALSO WITH THE
`DESIRE TO TRY TO GET THE HEARING ACCOMPLISHED AS
`EXPEDITIOUSLY AS POSSIBLE, WHAT WE'VE DONE FOR OUR THREE
`WITNESSES IS WE PREPARED EXHIBIT BINDERS FOR THE
`WITNESSES, AND WE WOULD PROPOSE HANDING COPIES TO THE
`COURT, TO DEFENSE AND HAVE A COPY FOR THE WITNESS. MANY
`OF THE DOCUMENTS IN THE EXHIBIT BINDER HAVE ALREADY BEEN
`SUBMITTED TO THE COURT IN CONNECTION WITH THE VOLUMINOUS
`BRIEFING. WE'VE PUT EXHIBIT NUMBERS ON THEM, SIMPLY
`BECAUSE THAT MAKES IT EASIER TO REFER TO. WHEN I COME TO
`A DOCUMENT THAT WAS NOT ATTACHED TO THE PAPERS, I WOULD
`
`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
`
`
`
`9
`
`PROPOSE WITH YOUR HONOR'S PERMISSION TO ADVISE THE COURT
`OF THAT SO THAT WE CAN MOVE TO ADMIT THE DOCUMENT AND THE
`COURT CAN RULE ON THAT AS APPROPRIATE; BUT MOST OF THE
`DOCUMENTS, THE VAST MAJORITY, THE COURT ALREADY HAS.
`THE COURT: ALL RIGHT. BUT YOUR NOTEBOOKS HAVE
`THE UNIVERSAL DOCUMENTS YOU'RE GOING TO USE TODAY?
`MR. LIEBERMAN: THAT'S CORRECT.
`THE COURT: ALL RIGHT. AND I THINK THAT MAKES
`SENSE TO HANDLE IT THAT WAY.
`MR. LIEBERMAN: THANK YOU, YOUR HONOR.
`THE COURT: ALL RIGHT. ANYTHING ELSE BEFORE WE
`GET STARTED, ANY PRELIMINARY MATTERS AT ALL?
`MR. GINSBERG: YOUR HONOR, I DO HAVE ONE
`PRELIMINARY MATTER. THERE ARE GOING TO BE ISSUES THAT ARE
`GOING TO BE DISCUSSED, I DON'T BELIEVE WITH THE FIRST
`WITNESS OR SO, BUT REGARDING ISSUES OF IRREPARABLE HARM.
`I BELIEVE THAT THE PLAINTIFFS WILL BE INTRODUCING EVIDENCE
`CONCERNING CONFIDENTIAL FINANCIAL INFORMATION FROM
`US ENDODONTICS. I BELIEVE THAT THERE'S THREE DENTSPLY
`CORPORATE REPRESENTATIVES HERE, AND THE QUESTION THAT WE
`HAVE FOR YOUR HONOR IS WOULD YOU BE WILLING TO SEAL THE
`COURTROOM DURING THE LIMITED PERIOD OF TIME WHERE THOSE
`SENSITIVE DOCUMENTS ARE BEING DISCUSSED?
`THE COURT: ANY OBJECTION TO THAT?
`MR. LIEBERMAN: WE HAVE NO OBJECTIONS, YOUR
`
`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
`
`
`
`10
`
`HONOR, AND I SPOKE TO MR. GINSBERG ABOUT THIS BEFORE YOUR
`HONOR CAME IN. THERE ARE TWO CATEGORIES OF INFORMATION
`THAT FALL INTO THAT, THAT POT. ONE IS INFORMATION ABOUT
`THE FINANCIAL STATUS OF THE DEFENDANT; AND WHEN WE'RE --
`WHEN MR. GERING -- WHEN DR. GERING IS ON THE STAND, I WILL
`LET THE COURT KNOW IN ADVANCE WHEN I'M APPROACHING THAT
`AREA, AND THE COURT CAN DECIDE WHETHER IT WISHES TO CLOSE
`THE COURTROOM AT THAT TIME, WE HAVE NO OBJECTION TO THAT.
`THE SECOND IS THE TECHNICAL ISSUE HAVING TO DO
`WITH THE TEMPERATURE IN WHICH THE HEAT TREATMENT PROCESS
`OCCURS DURING THE DEFENDANT'S MANUFACTURING PROCESS. THE
`PARTIES HAVE, I BELIEVE, ESSENTIALLY STIPULATED TO THAT
`ISSUE AS TO WHAT THE TEMPERATURE IS; AND IF THE DEFENDANT
`HAS NO OBJECTION AND THE COURT HAS NO OBJECTION, SO THAT
`WE DON'T NEED TO KEEP SEALING THE COURTROOM DURING THE
`TECHNICAL TESTIMONY, I WOULD INTEND TO REFER TO THAT
`TEMPERATURE PERHAPS IN AN OBLIQUE WAY, LIKE, HAVE YOU
`EXAMINED THE, THE DOCUMENTS TO SHOW WHAT THE TEMPERATURE
`IS AND HAVE YOU CONCLUDED THAT IT'S WITHIN THE RANGE
`CLAIMED IN THE PATENT, SO WE DON'T SAY THAT NUMBER AND THE
`COURT DOESN'T HAVE TO DEAL WITH SEALING, IF THAT'S
`ACCEPTABLE TO YOUR HONOR.
`MR. GINSBERG: YOUR HONOR, IF I MAY. I THINK
`WE CAN SHORT CIRCUIT THIS ISSUE. WE HAVE NO OBJECTION TO
`THE TEMPERATURE COMING OUT IN THE OPEN COURTROOM.
`
`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
`
`
`
`11
`
`THE COURT: ALL RIGHT, THEN IT'S JUST THE
`FINANCIAL INFORMATION THAT'S AT ISSUE?
`MR. GINSBERG: THAT'S CORRECT, YOUR HONOR.
`THE COURT: I WOULD PREFER TO CLOSE THE
`COURTROOM ONLY ONE TIME AND LIMIT IT AS MUCH AS WE CAN.
`I GENERALLY HAVE A VERY STRONG BIAS IN FAVOR OF DOING THE
`PUBLIC'S BUSINESS IN THE PUBLIC EYE; BUT I UNDERSTAND THAT
`THERE IS A PROTECTIVE ORDER IN THIS CASE, I UNDERSTAND
`THAT SOME FINANCIAL INFORMATION MAY BE SENSITIVE, AND SO
`I'LL AGREE TO DO THAT TO A LIMITED BASIS; BUT -- AND YOU
`JUST NEED TO LET ME KNOW WHEN WE GET TO THAT POINT.
`MR. GINSBERG: THANK YOU, YOUR HONOR.
`THE COURT: ALL RIGHT. ANYTHING ELSE AT ALL?
`ALL RIGHT. MR. LIEBERMAN, CALL YOUR FIRST
`WITNESS, DISTRIBUTE YOUR BINDERS, HOWEVER -- NOBODY
`REACTED TO WHAT I SAID ABOUT OPENING STATEMENT. IS THERE
`ANYTHING ELSE YOU NEED TO TELL ME THAT'S NOT IN THE
`PLEADINGS?
`
`MR. LIEBERMAN: NO, YOUR HONOR. WE, WE PUT
`EVERYTHING WE HAD IN THE PAPERS.
`THE COURT: ALL RIGHT.
`MR. GINSBERG: SAME FOR THE DEFENDANT.
`THE COURT: ALL RIGHT. ALL RIGHT. THEN LET'S
`GO STRAIGHT TO THE PROOF THEN.
`MR. LIEBERMAN: PLAINTIFFS CALL DR. NEILL
`
`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
`
`
`
`12
`
`LUEBKE TO THE STAND.
`NEILL LUEBKE, PLAINTIFFS' WITNESS, SWORN
`MR. LIEBERMAN: MAY I APPROACH WITH THE BINDERS
`FOR THE COURT, YOUR HONOR?
`THE COURT: YES, THE CLERK WILL GET THOSE JUST
`IN A MOMENT.
`YOU MAY PROCEED.
`MR. LIEBERMAN: THANK YOU, YOUR HONOR.
`DIRECT EXAMINATION
`BY MR. LIEBERMAN:
`Q.
`COULD YOU PLEASE TELL THE COURT WHO YOU ARE, DR.
`LUEBKE.
`A.
`MY NAME IS NEILL LUEBKE, AND I HAVE BEEN A DENTIST
`FOR 45 YEARS, AND I HAVE TWO PATENTS IN THIS SUIT.
`Q.
`AND WHERE DO YOU LIVE?
`A.
`I LIVE IN BROOKFIELD, WISCONSIN, A SMALL TOWN IN
`WISCONSIN; AND I LIVE THERE WITH MY FRIEND, AND WE'VE BEEN
`MARRIED 45 YEARS. WE HAVE TWO GROWN CHILDREN, JOHN AND
`MICHELLE.
`Q.
`COULD YOU TELL THE COURT A LITTLE BIT ABOUT YOUR
`PROFESSIONAL WORK OVER THE YEARS.
`A.
`WELL, I'VE BEEN A DENTIST SINCE 1969 AND PRACTICED
`DENTISTRY AND THEN BECAME AN ENDODONTIST IN 1980 AND
`BECAME A BOARD CERTIFIED DENTIST IN 1991.
`Q.
`AND HOW MANY YEARS HAVE YOU BEEN PRACTICING, DOCTOR,
`
`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
`
`
`
`13
`
`IN WISCONSIN?
`A.
`OVER, OVER 23 YEARS IN THE, IN THE AREA.
`Q.
`DO YOU STILL PRACTICE ENDODONTICS?
`A.
`I RETIRED IN MAY AND HAVE TAKEN UP A NEW AVOCATION.
`I'M NOW A VOLUNTEER DENTIST AT A LOCAL CLINIC, AND WE
`TREAT CHILDREN; AND TEETH THAT WERE EXTRACTED BEFORE,
`WE'RE NOW SAVING WITH ENDODONTICS.
`Q.
`AND COULD YOU TELL THE COURT BRIEFLY WHAT
`ENDODONTICS IS.
`A.
`WELL, ENDODONTICS IS THE BRANCH OF DENTISTRY THAT
`DIAGNOSES AND TREATS DISEASES OF THE PULP, ALSO KNOWN AS
`THE NERVE, ROOT CANALS, THAT SORT OF THING, SO.
`Q.
`OVER THE YEARS HOW MANY ENDODONTICS PROCEDURES WOULD
`YOU SAY HAVE YOU PERFORMED?
`A.
`DON'T SHUDDER, BUT APPROXIMATELY 40,000.
`Q.
`AND HOW MANY ENDODONTIC PROCEDURES HAVE YOU
`PERFORMED USING ENDODONTIC FILES?
`A.
`VIRTUALLY ALL OF THE SAME.
`Q.
`DR. LUEBKE, IF YOU COULD LOOK IN FRONT OF YOU AT
`PLAINTIFF'S EXHIBIT 5. IT'S A PHYSICAL EXHIBIT, AND
`THERE'S A LITTLE MARKER WE'VE PUT ON THAT. IT'S ONE OF
`THE FILES.
`A.
`OH. THANK YOU.
`MR. LIEBERMAN: AND, YOUR HONOR, THIS IS A
`PHYSICAL EXHIBIT, AND IT WAS OBVIOUSLY NOT ATTACHED TO THE
`
`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
`
`
`
`14
`
`PRELIMINARY INJUNCTION PAPERS, SO THIS IS A NEW DOCUMENT,
`OR A NEW ITEM.
`THE COURT: ALL RIGHT.
`MR. GINSBERG: THE ONLY POINT I HAVE, YOUR
`HONOR, I CAN'T SEE IT.
`A.
`IT'S AN ENDODONTIC FILE. IT'S A SIZE 25 NICKEL-
`TITANIUM ENDODONTIC FILE THAT'S NOT BEEN HEAT TREATED.
`THE COURT: WELL, MS. HOPSON, PASS IT BACK TO
`MR. GINSBERG, PLEASE.
`A.
`DON'T GRAB BY THE BOTTOM.
`OH, YOU KNOW, WHILE YOU'RE DOING IT, WHY DON'T
`YOU SHOW HIM THE OTHER ONE AS WELL. THAT ONE IS NOT AS
`SHARP.
`
`MR. GINSBERG: I HAVEN'T SEEN THESE BEFORE.
`I'M NOT SURE WHERE THEY CAME FROM.
`MR. LIEBERMAN: I'M GOING TO ESTABLISH THAT
`THROUGH THE WITNESS, YOUR HONOR.
`THE COURT: ALL RIGHT. GO AHEAD.
`DR. LUEBKE, YOU HAD JUST TALKED ABOUT THE NUMBER OF
`Q.
`PROCEDURES YOU HAD PERFORMED WITH ENDODONTIC FILES, COULD
`YOU TELL THE COURT WHAT EXHIBIT, PLAINTIFFS' EXHIBIT 5 FOR
`IDENTIFICATION IS?
`A.
`YES. THIS IS A HAND NICKEL-TITANIUM FILE, AND IT
`HAPPENS TO BE A SIZE 25.
`WOULD YOU LIKE TO -- YOUR HONOR.
`
`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
`
`
`
`15
`
`THE COURT: THAT'S ABOUT AS CLOSE AS I'D LIKE
`
`TO COME.
`Q.
`AND IS THAT A HEAT TREATED FILE OR A NON --
`A.
`NO, IT'S NOT. NO, IT'S NOT. IF I FLICK IT, YOU CAN
`SEE THAT IT GOES RIGHT BACK, SO THAT'S A SUPERELASTIC
`NICKEL-TITANIUM FILE.
`Q.
`AND ASK YOU TO LOOK AT PLAINTIFFS' EXHIBIT 6 FOR
`IDENTIFICATION.
`A.
`YES.
`Q.
`CAN YOU TELL THE COURT WHAT THAT IS?
`A.
`AND THIS IS -- THESE ARE THE FILES THAT I USED IN MY
`PRACTICE. THESE ARE NICKEL-TITANIUM, BUT I HAVE HEAT
`TREATED THESE; AND SO, YOUR HONOR, WHEN I BEND THESE, THEY
`DON'T GO BACK.
`MR. LIEBERMAN: YOUR HONOR, WE WOULD MOVE THE
`ADMISSION OF PLAINTIFF'S EXHIBITS 5 AND 6.
`THE COURT: THEY'RE ADMITTED.
`MR. GINSBERG: NO OBJECTION.
`NOW, THE PHOENIX FILES, EXHIBIT 6 THAT YOU
`Q.
`MENTIONED --
`A.
`EXCUSE ME.
`Q.
`-- DO YOU SELL THOSE PHOENIX FILES?
`A.
`NO.
`Q.
`AND WHAT DO YOU USE THEM FOR?
`A.
`THEY WERE MADE FOR ME SPECIFICALLY, SO THOSE ARE MY
`
`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
`
`
`
`16
`
`PERSONAL FILES.
`Q.
`COULD YOU PLEASE LOOK AT EXHIBIT 3 IN YOUR EXHIBIT
`BINDER.
`A.
`YES.
`Q.
`CAN YOU TELL ME WHAT EXHIBIT 3 IS, PLEASE.
`A.
`THAT'S MY CV.
`Q.
`AND DOES IT ACCURATELY AND COMPLETELY LIST YOUR
`PROFESSIONAL QUALIFICATIONS?
`A.
`YES, IT DOES.
`Q.
`COULD YOU DESCRIBE BRIEFLY YOUR EDUCATIONAL
`BACKGROUND AND TRAINING IN THIS FIELD TO THE COURT.
`A.
`I RECEIVED MY DENTAL DEGREE FROM THE UNIVERSITY OF
`IOWA COLLEGE OF DENTISTRY IN 1969. I WENT TO DENVER
`GENERAL HOSPITAL AS AN INTERN. I RETURNED TO THE
`UNIVERSITY OF IOWA AND GOT A MASTER'S DEGREE IN 1972.
`I LEFT IOWA, AND I WENT TO THE UNIVERSITY OF NEBRASKA-
`LINCOLN, AND I RECEIVED MY ENDODONTICS CERTIFICATE 1980,
`AND I BECAME A BOARD CERTIFIED ENDODONTIST FROM THE
`AMERICAN BOARD OF ENDODONTICS IN 1991.
`Q.
`AND HAVE YOU TAUGHT IN THE FIELDS OF DENTISTRY AND
`ENDODONTICS?
`A.
`YES, I DID. WHEN I RETURNED IN 1970 TO THE
`UNIVERSITY OF IOWA, I TAUGHT IN THE DEPARTMENT OF
`OPERATIVE DENTISTRY, WHAT YOU WOULD CALL, YOUR HONOR,
`DRILL AND FILL; AND I ALSO TAUGHT PHARMACOLOGY, AND I WAS
`
`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
`
`
`
`17
`
`IN CHARGE OF INSTITUTING A CLINICAL COMPUTING SYSTEM; AND
`THEN I WENT INTO PRIVATE PRACTICE AFTER MY ENDO RESIDENCY.
`IN 1987 I MOVED TO MARQUETTE. I WAS CHAIRMAN OF THE
`DEPARTMENT OF ENDODONTICS, AND I WAS THE -- IN CHARGE OF
`THE GRADUATE ENDO PROGRAM.
`Q.
`HOW LONG DID YOU REMAIN CHAIRMAN OF THAT
`DEPARTMENT?
`A.
`FOR FOUR YEARS.
`Q.
`AND ARE YOU A MEMBER OF ANY PROFESSIONAL
`ORGANIZATIONS IN THE FIELD OF ENDODONTICS?
`A.
`YES, THE ADA, AND WITH THE ADA I'M A CONSULTANT FOR
`THE COUNSEL ON SCIENTIFIC AFFAIRS; AND FOR THE AMERICAN
`ASSOCIATION OF ENDODONTICS, THE AAE, I'M A MEMBER AND I AM
`ALSO THE SOLE REPRESENTATIVE TO THE AMERICAN DENTAL
`ASSOCIATION SUBCOMMITTEE ON DENTAL PRODUCTS. AND WHAT
`THAT IS, I SIT AS ONE OF THE SPECIALISTS AT THAT TABLE,
`ALONG WITH THE FDA, THE RESEARCH PEOPLE AND THE DENTAL
`TRADE ALLIANCE, AND WE DISCUSS THE DENTAL PRODUCTS.
`Q.
`OKAY.
`A.
`AND IN ADDITION TO THAT, I -- WITH THE ISO, AND THE
`ISO IS THE INTERNATIONAL ORGANIZATION OF STANDARDIZATION;
`AND WITH THE ISO, I'M A CONVENER OF ENDODONTIC INSTRUMENTS
`AND ENDODONTIC MATERIALS.
`Q.
`WHAT DOES IT MEAN TO BE A CONVENER FOR THE ISO?
`A.
`WELL, A CONVENER MEANS YOU'RE A CHAIR OF MANU-
`
`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
`
`
`
`18
`
`FACTURERS AND USERS OF A DIVERSE GROUP INTERNATIONALLY.
`WE ATTEMPT TO CREATE HARMONY IN THE STANDARDS, SOMEWHAT
`LIKE HERDING CATS, BUT WE DO TRY TO GET HARMONY IN
`STANDARDS SO THAT EVERYBODY IS MANUFACTURING
`ACCORDINGLY.
`Q.
`AND HAVE YOU PUBLISHED IN THE FIELDS OF DENTISTRY
`AND ENDODONTICS?
`A.
`YES, I HAVE.
`Q.
`APPROXIMATELY HOW MANY ARTICLES?
`A.
`SIXTEEN, I BELIEVE.
`Q.
`ALL RIGHT. CAN YOU TELL US WHETHER ANY OF THOSE
`PUBLICATIONS RELATED TO INSTRUMENTS AND/OR MATERIALS USED
`IN THE PRACTICE OF ENDODONTICS?
`A.
`SEVEN.
`Q.
`AND DO ANY OF THOSE ARTICLES RELATE TO THE
`METALLURGICAL CHARACTERISTICS OF ENDODONTIC INSTRUMENTS?
`A.
`YES, I BELIEVE SIX OF THEM DO.
`Q.
`AND HAVE YOU GIVEN PROFESSIONAL PRESENTATIONS AT
`CONFERENCES REGARDING THE METALLURGICAL PROPERTIES OF
`ENDODONTIC INSTRUMENTS?
`A.
`YES, I HAVE.
`Q.
`AND ARE THOSE PRESENTATIONS LISTED ON YOUR CV?
`A.
`YES, THEY ARE.
`Q.
`AND ARE YOU THE INVENTOR OF ANY U.S. PATENTS?
`A.
`YES, SIR. I HAVE FIVE. TWO OF THEM WERE,
`
`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
`
`
`
`19
`
`ORIGINALLY THE FIRST ONES WE HAD WERE UNREACTIVE. THE TWO
`IN SUIT HERE ARE NOT IN ANY, IN ANY ATMOSPHERE; AND SINCE
`THIS SUIT HAS COME FORWARD, I HAD ANOTHER ONE JUST A
`COUPLE OF WEEKS WAS GRANTED AS WELL.
`Q.
`THANK YOU. AND SHOWING YOU WHAT HAS BEEN MARKED FOR
`IDENTIFICATION AS PLAINTIFF'S EXHIBIT 1 AND 2, COULD YOU
`TELL THE COURT WHAT THOSE TWO DOCUMENTS ARE.
`A.
`EXHIBIT 1 IS WHAT IS AFFECTIONATELY KNOWN IN THIS
`SUIT AS '773, AND IT'S A PATENT THAT WAS ISSUED IN MAY 20
`OF 2004; AND NUMBER 2 IS KNOWN AS '341, AND IT WAS ISSUED
`ON OCTOBER 22, 2013.
`Q.
`I'M SORRY, I MAY HAVE MISHEARD. THE ISSUE DATE FOR
`THE '773 PATENT IS?
`A.
`MAY 20, 2014.
`Q.
`AND WHEN DID YOU APPLY FOR THAT PATENT?
`A.
`IF IT GOES BACK, IT SHOULD BE JUNE 8 OF 2004, I
`BELIEVE. THAT'S MY ORIGINAL -- THAT'S WHEN I FIRST
`STARTED THIS GAME.
`Q.
`SO TEN YEARS APPROXIMATELY?
`A.
`TEN YEARS, VERY MUCH, VERY MUCH.
`Q.
`COULD YOU DESCRIBE FOR THE COURT THE PROCESS THAT
`YOU WENT THROUGH TO OBTAIN THESE TWO PATENTS?
`A.
`WELL, OBVIOUSLY IT TOOK TEN YEARS, IT TOOK A LOT OF
`TIME. I HIRED MY OWN LAWYER, I GUESS -- I HIRED MY OWN
`LAWYER. THE COST OF THE LAWYER FOR ME OVER THAT PERIOD OF
`
`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
`
`
`
`20
`
`TIME WAS NEARLY $170,000, AND IT WAS $14,000 JUST TO HEAT
`TREAT THE INSTRUMENTS I NEEDED TO DO FOR RESEARCH, SO.
`Q.
`COULD YOU TELL THE COURT A LITTLE BIT ABOUT WHAT YOU
`DO WHEN YOU'RE NOT PRACTICING ENDODONTICS?
`A.
`OH, OKAY. WELL, I'M AN EAGLE SCOUT. WHEN MY SON
`GOT INVOLVED WITH SCOUTS, I BECAME THE DISTRICT CHAIRMAN
`FOR THE BOY SCOUTS; AND I WAS CHAIRMAN OF THE ROTARY CLUB
`PROJECT TO RAISE MONEY FOR A CAMP THAT THE ROTARY HAD FOR
`DISADVANTAGED CHILDREN. I, I ALSO HAVE BEEN INVOLVED WITH
`SPECIAL OLYMPICS, I SAT ON THE BOARD OF SPECIAL OLYMPICS;
`AND I HAVE COACHED A VOLLEY BALL TEAM, AND I REFEREED AT
`THE SPECIAL OLYMPICS WORLD GAMES BOTH IN NORTH CAROLINA
`AND IN IRELAND. AND I'M THE FOUNDER OF THE BADGER REGION
`VOLLEY BALL, AND I'VE HELD SEVERAL POSITIONS IN THE BADGER
`REGION, AND HAD THE GOOD FORTUNE TO REFEREE IN TWO
`OLYMPICS IN VOLLEY BALL.
`Q.
`THANK YOU.
`YOUR HONOR, AT THIS TIME WE'D MOVE THAT DR.
`LUEBKE BE ACCEPTED AS AN EXPERT IN THE FIELDS OF
`ENDODONTICS AND ENDODONTIC EQUIPMENT AND MATERIALS.
`THE COURT: ANY OBJECTION?
`MR. GINSBERG: NO OBJECTION.
`DIRECTING YOUR ATTENTION TO EXHIBIT 4 IN YOUR
`Q.
`BINDER.
`
`AND, YOUR HONOR, THESE ARE DEMONSTRATIVES THAT
`
`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
`
`
`
`21
`
`DR. LUEBKE HAS HAD PREPARED THAT WILL HELP TO DESCRIBE
`SOME OF THE SCIENTIFIC BACKGROUND THAT'S RELEVANT TO THE
`PATENT ISSUES. THESE WERE NOT ATTACHED TO THE PAPERS, SO
`WITH YOUR HONOR'S PERMISSION I'LL HAVE DR. LUEBKE IDENTIFY
`THEM AND I'LL MOVE THEIR ADMISSION.
`THE COURT: MR. GINSBERG, IS THIS THE FIRST
`TIME YOU'VE SEEN THESE?
`MR. GINSBERG: YES, YOUR HONOR.
`THE COURT: DO YOU NEED A MOMENT TO LOOK AT
`
`THEM?
`
`MR. GINSBERG: YES.
`YES, YOUR HONOR, ONE POINT I WOULD MAKE IS
`THESE ARE DEMONSTRATIVES. I THINK I WOULD OBJECT TO THEM
`THEN MOVING THEM INTO EVIDENCE.
`COURT REPORTER: I'M SORRY, I CAN'T -- COULD
`YOU SPEAK UP.
`MR. GINSBERG: THESE ARE DEMONSTRATIVES. THEY
`COULD BE USED AS DEMONSTRATIVES, BUT I DON'T UNDERSTAND,
`IS WHAT YOU'RE PLANNING ON ACTUALLY INTRODUCING THESE
`DEMONSTRATIVES INTO EVIDENCE?
`MR. LIEBERMAN: GIVEN IT'S A BENCH HEARING,
`IT'S REALLY A QUESTION OF YOUR HONOR'S PREFERENCE.
`THE COURT: WHAT'S THE POINT?
`MR. GINSBERG: THEY'RE NOT ACTUALLY -- THESE
`ARE PREPARED BY, I GUESS THE WITNESS AS WELL AS COUNSEL,
`
`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
`
`
`
`22
`
`BUT THEY'RE JUST DEMONSTRATIVES. THEY'RE NOT ACTUAL
`PHYSICAL EXHIBITS, THEY'RE NOT EXHIBITS THAT HAVE BEEN
`PRODUCED IN THIS CASE.
`THE COURT: I UNDERSTAND THAT. WE DON'T HAVE A
`JURY HERE. THIS IS A BENCH MATTER. I'M NOT SURE WHAT
`DIFFERENCE IT MAKES WHETHER THEY'RE DEMONSTRATIVES OR NOT,
`DON'T -- EVEN WITH A JURY, IT WOULD ONLY BE A QUESTION OF
`WHETHER THE JURY TAKES THEM TO THE JURY ROOM OR NOT.
`MR. LIEBERMAN: WE, WE HAVE NO STRONG
`PREFERENCE EITHER WAY, YOUR HONOR. THESE ARE JUST TO HELP
`ILLUSTRATE THE UNDERLYING SCIENCE.
`THE COURT: IT WILL BE HELPFUL TO ME TO HAVE
`COPIES, SO LET'S MOVE ON.
`Q.
`DR. LUEBKE, COULD YOU EXPLAIN TO THE COURT THE SORTS
`OF DENTAL AND/OR ENDODONTICS CONDITIONS OR PROBLEMS FOR
`WHICH THE FILES IN THIS CASE ARE USED. AND YOU MAY WANT
`TO LOOK AT EXHIBIT 4A IN YOUR BINDER, WHICH IS ALSO UP ON
`THE COMPUTER SCREEN.
`A.
`YOU WANT ME TO SHOW YOU LIKE THIS?
`THE COURT: I SEE IT ON MY SCREEN RIGHT HERE.
`BUT I CAN'T POINT ON THE SCREEN --
`THE COURT: YES, YOU ACTUALLY CAN.
`OH, I CAN?
`THE COURT: WOULD YOU SHOW HIM HOW TO DO THAT,
`
`A.
`
`A.
`
`PLEASE.
`
`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
`
`
`
`23
`
`A.
`
`OH, OKAY.
`(CLERK SHOWS WITNESS HOW TO MARK SCREEN)
`BY THE WAY, DR. LUEBKE, HAVE YOU EVER TESTIFIED IN
`Q.
`COURT BEFORE?
`A.
`NO.
`Q.
`YOU A LITTLE NERVOUS?
`A.
`SURE.
`Q.
`OKAY. LOOKING AT EXHIBIT 4A, OR LOOKING AT
`PLAINTIFFS' EXHIBIT 4A FOR IDENTIFICATION, COULD YOU
`PLEASE EXPLAIN TO THE COURT THE SORTS OF DENTAL OR
`ENDODONTIC CONDITIONS OR PROBLEMS FOR WHICH THE FILES IN
`THIS CASE ARE USED?
`A.
`SO THIS IS A, THIS IS A MOLAR TOOTH. IT'S A
`POSTERIOR TOOTH. AS AN ENDODONTIST I SAW MOSTLY POSTERIOR
`TEETH. AS YOU CAN SEE, THERE'S ENAMEL AND DENTIN AND THEN
`THE PULP. IT'S ALSO LABELED AS PULP, YOU MIGHT KNOW IT AS
`NERVE; AND ON THE INSIDE HERE, THESE ARE NICE GENTLE
`CURVES FOR DOING ROOT CANALS.
`THE AREA THAT A DENTIST OR ENDODONTIST IS
`INTERESTED IN IS OBVIOUSLY THE INSIDE OF THE TOOTH, BUT
`ALSO -- AND IT'S NOT LOW ENOUGH FOR ME -- BUT THE
`PERIAPEX, OR THE BOTTOM OF THE TOOTH, THE APEX AS WELL; SO
`THAT'S REALLY WHAT WE DEAL WITH, AND THIS GIVES YOU AN
`IDEA, AT LEAST, OF WHAT WE'RE TALKING ABOUT WHEN WE'RE
`TALKING ABOUT GOING INSIDE THE TOOTH AND NOT OUTSIDE THE
`
`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
`
`
`
`24
`
`TOOTH.
`Q.
`IF YOU COULD TURN TO 4B AND DESCRIBE FOR THE COURT
`WHAT THAT SHOWS AND HOW IT RELATES TO ENDODONTIC
`PROCEDURES.
`THE COURT: THIS DOES MAKE ME SHUDDER. LET'S
`MOVE THROUGH THIS PRETTY QUICKLY.
`A.
`WELL, LET'S IGNORE THE LAST --
`MR. LIEBERMAN: YOUR HONOR, THERE ARE GOING TO
`BE SOME SLIDES IN HERE THAT ARE A LOT WORSE.
`THE COURT: I'M SURE.
`SO LET'S IGNORE THE BOTTOM TWO ON THE RIGHT; BUT
`A.
`THIS ONE, APPARENTLY SOMEBODY HAD DECAY, THEY WENT INTO
`THE INSIDE OF THE TOOTH, THEY CLEANED IT AND THEY FILLED
`IT; AND IF YOU NOTICE THE -- I'M GOING TO GO TO THIS ONE
`RIGHT HERE. I DON'T KNOW IF THAT'S DOING ANYTHING FOR
`YOU; BUT WE CAN SEE WHAT'S CALLED A RADIOLUCENCY. THERE
`IT IS. NOW IT'S GONE. WE'RE SEEING A RADIOLUCENCY; AND
`IF WE WERE TO SEE THAT ON X-RAY, IT WOULD JUST ACTUALLY BE
`A HOLE WE CAN SEE. AND THEN WE GO AHEAD AND WE FILL, AND
`IN THIS CASE WE FILL THE TOOTH COMPLETELY; AND THAT'S
`EXCEPTIONAL, AND THAT'S WHAT WE WANT. SO THAT'S A ROOT
`CANAL IN ULTRA SHORT.
`Q.
`COULD YOU TELL THE COURT WHAT EXHIBIT 4C SHOWS.
`A.
`SURE. THIS IS SOMETHING THAT I'M A LITTLE MORE
`INVOLVED IN BECAUSE NOW WE SEE A CURVE OF A TOOTH THAT IS
`
`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
`
`
`
`25
`
`MUCH MORE CURVED, A LITTLE MORE CHALLENGING. THIS IS
`THE -- THIS IS WHERE THE WHOLE GAME IS TO ATTEMPT TO GO
`FROM HERE ALL THE WAY TO THE APEX DOWN HERE; AND THAT'S,
`THAT'S WHAT THIS GAME IS ALL ABOUT.
`Q.
`WHEN YOU STARTED PRACTICING ENDODONTICS, WHAT SORTS
`OF INSTRUMENTS WERE USED IN ROOT CANAL PROCEDURES?
`A.
`WE USED STAINLESS STEEL, THAT WAS PREDOMINANT.
`Q.
`AND FOR HOW LONG HAD STAINLESS STEEL INSTRUMENTS
`BEEN USED IN ROOT CANAL PROCEDURES?
`A.
`WELL, IT WAS THERE WHEN I WENT TO SCHOOL, BUT I
`BELIEVE, DON'T QUOTE ME ON IT, IN THE '60'S THE ISO
`STANDARDIZED THE INSTRUMENTS; AND WHEN THEY STANDARDIZED
`THE INSTRUMENTS, IT BECAME MUCH MORE CLEAR AS TO WHAT WE
`WERE DOING, SO.
`Q.
`AND WERE THERE PROBLEMS USING STAINLESS STEEL FILES
`FOR ROOT CANALS?
`A.
`WELL, STAINLESS STEEL IS NOT TERRIBLY FLEXIBLE. THE
`REASON STAINLESS STEEL CAME IN ACTUALLY WAS IT WAS SOFTER
`THAN THE PREDECESSOR; BUT STILL IN SPITE OF THAT, IT WAS
`STIFF.
`Q.
`ALL RIGHT. IF YOU COULD LOOK AT EXHIBITS 4D THROUGH
`H AND EXPLAIN TO THE COURT WHAT IF ANY PROBLEMS RESULTED
`FROM USING THESE STAINLESS STEEL FILES DURING ROOT
`CANALS?
`A.
`SO, YOUR HONOR, WHEN WE'RE LOOKING AT THIS ONE, AND
`
`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
`
`
`
`26
`
`WE MAY REVISIT THIS ONE, IF YOU'LL NOTICE THAT THE THREE
`ARROWS HERE AND THE THREE ARROWS HERE, AND THAT'S JUST
`BECAUSE THIS, THIS ROOT IS CURVED, AND THE FILE WANTS TO
`BE STRAIGHT. IT'S GOING TO CLEAN ON THE INSIDE OF THIS
`ROOT -- WHOOPS -- AND IT'S GOING TO CLEAN ON THE OUTSIDE
`OF THAT ROOT; AND IF ONE IS NOT CAREFUL AND ONE DOESN'T
`WATCH WHAT THEY'RE DOING, THINGS CAN HAPPEN.
`Q.
`AND, DR. LUEBKE, YOU'VE JUST BEEN MAKING REFERENCE
`TO 4D; IS THAT CORRECT?
`A.
`4D, YES.
`Q.
`OKAY.
`A.
`AND SO IF WE MOVE ON TO THE NEXT ONE, 4E, ONE OF
`THE, ONE OF THE PROBLEMS ONE HAS IS IF YOU HAVE A STRAIGHT
`INSTRUMENT, AND YOU HAVE A CURVED CANAL, AND YOU'RE NOT
`CAREFUL WHAT YOU DO, YOU CAN FORM A LEDGE. AND WHAT I
`MEAN BY A LEDGE IS LITERALLY WHAT THIS SHOWS. WHAT THIS
`SHOWS, I'VE GONE STRAIGHT, AND I SHOULD HAVE GONE TO THE
`RIGHT. THIS IS KIND OF -- I MAKE THE ANALOGY THAT WHEN
`YOU DRILL A HOLE IN A DOWEL AND YOU WANTED TO GO STRAIGHT
`AND YOU DIDN'T AND NOW YOU'VE GOT TO REDRILL IT STRAIGHT,
`IT'S JUST TOUGHER THAN NAILS TO DO THAT. THIS BECOMES
`PROBLEMATIC TO GET AROUND THAT, SO THIS IS WHAT'S CALLED A
`LEDGE.
`
`WE ALL HAVE OUR TERMS OF ART, AS YOU MUST KNOW.
`THE NEXT ONE IS ZIPPING, AND BASICALLY WHAT
`
`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
`
`
`
`27
`
`THAT IS IS NOW WE'VE STRAIGHTENED IT OUT, AND WE'VE PULLED
`THE SIDE OF THAT ROOT. THIS IS ON 4F, YOUR HONOR. AND
`WE'VE PULLED THE SIDE OVER, AND NOW WE -- NOW IT'S BECOME
`PROBLEMATIC FOR FILLING.
`AND THEN THE NEXT ONE IS WHAT WE CALL TRANS-
`PORTATION, AND THE BASIC DIFFERENCE ON TRANSPORTATION IS
`IN FACT WE HAVE VIOLATED THE PERIAPEX, AND SO --
`Q.
`AND WHAT DOES THAT MEAN IN ENGLISH?
`A.
`I'M JUST GOING TO SHOW IT RIGHT HERE.
`THE PERIAPEX IS THIS AREA RIGHT AROUND THE
`BOTTOM, IT'S AT THE BOTTOM OF THE TOOTH; AND IF SOMEBODY
`DOES THAT, THIS IS WHERE YOU WOULD NOT BE HAPPY WHEN YOU
`WENT HOME AFTER SEEING ME, SO.
`AND WE CAN LOOK AT H, BUT THIS IS EVERYTHING
`THAT COULD POSSIBLY GO WRONG GOING WRONG. AND I KNOW THAT
`LOOKS UGLY, AND I KNOW YOU THINK THAT CAN'T HAPPEN, BUT I
`CAN'T TELL YOU HOW MANY TIMES I'VE HAD TO DEAL WITH THAT
`AS AN ENDODONTIST, SOMEBODY HAS PRESENTED THAT TO ME.
`Q.
`LET'S TAKE THAT TOOTH PICTURE OFF THE SCREEN.
`A.
`SO I THINK WE DON'T NEED ANY OF MORE OF THOSE
`DEMONSTRATIONS NOW. WE HAVE ANOTHER ONE, WE'LL LOOK AT
`THAT LATER, OKAY.
`Q.
`DR. LUEBKE, DID THERE COME A TIME WHEN THESE
`STAINLESS STEEL FILES WERE REPLACED BY ENDODONTIC FILES
`MADE WITH OTHER MATERIALS?
`
`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
`
`
`
`28
`
`YES, THAT'S WHEN NICKEL-TITANIUM WAS INTRODUCED IN
`A.
`THE EARLY '90'S.
`Q.
`AND HAVE YOU BROUGHT WITH YOU A SAMPLE OF NON-POST
`HEAT TREATED NICKEL-TITANIUM ENDODONTIC FILES?
`A.
`YES. WE SHOWED THAT AS EXHIBIT NUMBER 5, I BELIEVE,
`YOUR HONOR. I DON'T KNOW IF YOU WANT TO PLAY WITH IT OR
`NOT, BUT.
`Q.
`AND WHAT WAS THE REACTION IN THE ENDODONTIC
`PROFESSION TO THESE NICKEL-TITANIUM ENDODONTIC FILES AS
`OPPOSED TO THE STAINLESS STEEL FILES?
`A.
`WELL, I BELIEVE IT WAS ALMOST LIKE A REVOLUTION.
`EVERYBODY IS SAYING, WOW, THIS IS REALLY GREAT.
`M
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
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.
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.
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
