throbber
1 UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` 3
` - - -
` 4
` BAXTER INTERNATIONAL, INC., )Case IPR2015-00883
` 5 )
` Petitioner, )Patent 8,374,887 B2
` 6 )
` vs. )
` 7 )
` BECTON, DICKINSON AND COMPANY, )
` 8 )
` Patent Owner. )
` 9
` - - -
`10
` Deposition of DIANE B. GINSBURG, Ph.D.
`11
` Wednesday, December 16, 2015
`12
` - - -
`13
` The deposition of DIANE B. GINSBURG, Ph.D.,
`14 called as a witness by the Petitioner, pursuant to
` notice and the Federal Rules of Civil Procedure,
`15 pertaining to the taking of depositions, taken before
` me, the undersigned, Melissa L. Fenster, a Notary
`16 Public in and for the Commonwealth of Pennsylvania, at
` the offices of The Webb Law Firm, One Gateway Center,
`17 420 Fort Duquesne Boulevard, Suite 1200, Pittsburgh,
` Pennsylvania 15222, commencing at 8:43 o'clock a.m.,
`18 the day and date above set forth.
`
`19 - - -
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`1
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 APPEARANCES:
`
` 2 On behalf of the Petitioner:
`
` 3 K&L Gates:
` Benjamin E. Weed, Esquire
` 4 Kacy L. Dicke, Esquire
` 70 West Madison Street, Suite 3100
` 5 Chicago, Illinois 60602
`
` 6 On behalf of the Patent Owner:
`
` 7 The Webb Law Firm:
` Christian D. Ehret, Esquire
` 8 Kirk M. Miles, Esquire
` One Gateway Center
` 9 Fort Duquesne Boulevard, Suite 1200
` Pittsburgh, Pennsylvania 15222
`10
` - - -
`11 INDEX
`
`12 EXAMINATION: PAGE:
`
`13 CROSS BY MR. WEED 3
` DIRECT BY MR. EHRET 152
`14 RECROSS BY MR. WEED 153
`
`15 (NO EXHIBITS WERE MARKED.)
`
`16 - - -
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`2
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 DIANE B. GINSBURG, Ph.D.
`
` 3 called as a witness by the Patent Owner, having been
`
` 4 first duly sworn, as hereinafter certified, was
`
` 5 deposed and said as follows:
`
` 6 CROSS-EXAMINATION
`
` 7 BY MR. WEED
`
` 8 Q Good morning, Dr. Ginsburg.
`
` 9 A Good morning.
`
`10 Q Thank you for being here and for being
`
`11 early. I think it will be a relatively short day, so
`
`12 hopefully, we can all get out of here.
`
`13 Have you ever been deposed before?
`
`14 A Yes.
`
`15 Q How many times?
`
`16 A I'm not sure of the number.
`
`17 Q Is it more than five?
`
`18 A Yes, sir.
`
`19 Q More than ten?
`
`20 A Possibly.
`
`21 Q More than 20?
`
`22 A I don't believe so.
`
`23 Q So you're seasoned at this, but I'll go
`
`24 over a few of the rules, and so we're on the same
`
`25 page.
`
`3
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 As you know, I'll be asking you questions
`
` 3 and you'll be answering the questions under oath,
`
` 4 correct?
`
` 5 A Correct.
`
` 6 Q And one important thing for that process is
`
` 7 that we can't talk over each other so the court
`
` 8 reporter can write down what we're saying, so I'll try
`
` 9 to let you finish if you try to let me finish.
`
`10 Is that fair?
`
`11 A That is fair.
`
`12 Q And obviously, as you know, your attorney
`
`13 can make objections from time to time, and I'm sure he
`
`14 will, so it may be wise to give him a beat or a second
`
`15 to make an objection after my questions. Okay?
`
`16 A Sounds good.
`
`17 Q This is not meant to be endurance test, so
`
`18 if at any point you want a break, please let me know,
`
`19 and we will take a break. Like I said, it won't be a
`
`20 full day, so I'm happy to take breaks as much as you
`
`21 like. The only thing I ask is if there's a question
`
`22 pending, please answer the question, and then we'll
`
`23 take a break. All right?
`
`24 A Sounds good.
`
`25 Q The other thing is if I ask you a question
`
`4
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 and you don't ask me to clarify it, I'll assume that
`
` 3 you understood it, so if I ask a question that you
`
` 4 don't understand, it's very important for you to let
`
` 5 me know that, and I'll try to rephrase it. Is that
`
` 6 fair?
`
` 7 A That's fair.
`
` 8 Q If you don't ask me that, again, the record
`
` 9 will reflect that you understood the question, so
`
`10 that's why it's important for you to do that. Okay?
`
`11 A Okay.
`
`12 Q So you said you were deposed between 10 and
`
`13 20 times before. Have you ever been deposed in
`
`14 connection with a patent case?
`
`15 A No, sir.
`
`16 Q Have you ever seen a U.S. Patent before?
`
`17 A Not until this case.
`
`18 Q Okay. But you have seen the patent that's
`
`19 at issue in this case?
`
`20 A Yes, sir.
`
`21 Q Okay. And just so the record is clear, I
`
`22 put a stack of documents in front of you that has your
`
`23 declaration, the revised declaration from November,
`
`24 and I believe all the documents that you looked at.
`
`25 If there's anything there -- that's not there that you
`
`5
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 think should be there, please let me know at any point
`
` 3 during the deposition. I also put them there so you
`
` 4 can look at them. This is not a memory test, so if
`
` 5 you want to look at the documents, please feel free to
`
` 6 do so. All right?
`
` 7 A That's fine.
`
` 8 Q Okay. Have you ever given a deposition as
`
` 9 an expert witness before?
`
`10 A Yes, sir.
`
`11 Q How many times?
`
`12 A Within that same number that I quoted you
`
`13 previously.
`
`14 Q So all of the depositions you have given
`
`15 are as an expert witness?
`
`16 A Yes, sir.
`
`17 Q And what is the nature of the expert
`
`18 testimony you have given in those cases if you can
`
`19 generalize it?
`
`20 A Things related to the standard of practice
`
`21 for pharmacists and pharmacies.
`
`22 Q And do you know in the cases -- in any of
`
`23 those cases, do you know if you submitted an expert
`
`24 report before giving a deposition?
`
`25 A I have.
`
`6
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Have you submitted an expert report in all
`
` 3 of those depositions?
`
` 4 A Not necessarily.
`
` 5 Q Do you know if those -- whatever the number
`
` 6 of depositions is between 10 and 20, do you know if
`
` 7 those all had their own separate case or were some
`
` 8 situations where you gave more than one deposition in
`
` 9 a single case?
`
`10 A I don't believe I gave more than one in
`
`11 a -- for a single case.
`
`12 Q And can you generalize who your clients
`
`13 were for those expert engagements? Were they
`
`14 hospitals, for example?
`
`15 A Hospitals, community pharmacies, patients,
`
`16 working with the Department of Justice, so it has been
`
`17 various different things.
`
`18 Q Okay. Were all of those depositions in the
`
`19 context of civil litigation?
`
`20 A Yes.
`
`21 Q Do you know if you ever were giving expert
`
`22 testimony on behalf of a plaintiff in any of the cases
`
`23 you worked on?
`
`24 A I have.
`
`25 Q And you have obviously also given testimony
`
`7
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 on behalf of defendants?
`
` 3 A That is correct.
`
` 4 Q Do you have any sense of what the breakdown
`
` 5 is between plaintiffs and defendants?
`
` 6 A I do not.
`
` 7 Q What is your rate in this case?
`
` 8 A $300 an hour.
`
` 9 Q Does that rate apply for all work you do in
`
`10 the case?
`
`11 A Yes, sir.
`
`12 Q Do you know if that same rate has been used
`
`13 for the other expert engagements that you have had?
`
`14 A Yes, for the past several years.
`
`15 I'm just grabbing a cough drop out of my
`
`16 purse.
`
`17 Q Can you recall when the first time that you
`
`18 gave testimony as an expert was?
`
`19 A I do not remember.
`
`20 Q Was it more than ten years ago?
`
`21 A Yes.
`
`22 Q Was it more than 20 years ago?
`
`23 A It is possible.
`
`24 Q Do you remember the most recent time that
`
`25 you gave testimony as an expert before you sat down
`
`8
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 today?
`
` 3 A It's been a while ago.
`
` 4 Q Several years ago?
`
` 5 A No. Probably in past probably two or
`
` 6 three.
`
` 7 Q Okay. Have you ever testified at any kind
`
` 8 of a trial or hearing in front of a judge?
`
` 9 A Yes.
`
`10 Q How many times?
`
`11 A Once.
`
`12 Q And do you remember when that occurred?
`
`13 A I think it was about two years ago.
`
`14 Q Do you remember where the courtroom was for
`
`15 that case?
`
`16 A It was in Austin, Texas.
`
`17 Q Was it Federal District Court in Austin?
`
`18 A No.
`
`19 Q Was it a Texas State Court?
`
`20 A It was in front of an administrative law
`
`21 judge, so I'm not sure exactly what court that was in.
`
`22 Q Fair enough. Do you remember in that case
`
`23 whether you were giving testimony on behalf of a
`
`24 plaintiff or a defendant?
`
`25 A Defendant.
`
`9
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q And that was expert testimony?
`
` 3 A Yes, sir.
`
` 4 Q Do you know whether you have ever had the
`
` 5 sufficiency of your qualifications as an expert
`
` 6 challenged in any of the cases you have worked on?
`
` 7 A I believe that, you know, they're to
`
` 8 review. I have never not been qualified as an expert.
`
` 9 Q Have you ever heard a -- have you ever
`
`10 heard the phrase Daubert, D-A-U-B-E-R-T?
`
`11 A No, sir.
`
`12 Q Okay. Are you presently employed?
`
`13 A I am.
`
`14 Q By who?
`
`15 A The University of Texas.
`
`16 Q And is that where you -- do you have an
`
`17 office in Austin?
`
`18 A Yes, sir.
`
`19 Q What is your current job title?
`
`20 A Clinical professor and the assistant dean
`
`21 of for student affairs in the College of Pharmacy.
`
`22 Q As a clinical professor and assistant dean,
`
`23 do you presently teach a slate of classes?
`
`24 A I do.
`
`25 Q And how many classes do you currently
`
`10
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 teach?
`
` 3 A I'm going to count them by semester, so
`
` 4 give me a second.
`
` 5 Q Sure.
`
` 6 A Fall -- three in the fall, four in the
`
` 7 spring. Sorry. I had to count them.
`
` 8 Q And I think your declaration says that at
`
` 9 least one of those classes relates to legal issues.
`
`10 Is that right?
`
`11 A That is correct.
`
`12 Q What is the name of that class?
`
`13 A Pharmacy law.
`
`14 Q And what is the purview of the pharmacy law
`
`15 class?
`
`16 A It covers federal and state pharmacy laws
`
`17 and rules. Those federal that are applicable, you
`
`18 know, in terms of -- within the State of Texas.
`
`19 Q Okay. So the class does focus on Texas --
`
`20 A Correct.
`
`21 Q -- law?
`
`22 A Sorry. I didn't mean to talk over you.
`
`23 Q No. No problem.
`
`24 As part of that pharmacy law class, do you
`
`25 teach about aspects of the Texas Administrative Code?
`
`11
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 A I do.
`
` 3 Q And do you teach aspects of Section 291 of
`
` 4 the Texas Administrative Code?
`
` 5 A I do.
`
` 6 Q Are there any other sections of the Texas
`
` 7 Administrative Code that are covered by your pharmacy
`
` 8 law class?
`
` 9 A Texas Pharmacy Act. I mean, all facets of
`
`10 federal into Texas and, you know, all sections.
`
`11 Q Okay. In your declaration, you offered
`
`12 some opinions about a document called USP. Do you
`
`13 remember that?
`
`14 A I do.
`
`15 Q Does your class cover the USP at all? The
`
`16 pharmacy law class? I'm sorry.
`
`17 A It covers those standards related to
`
`18 sterile product compounding and compounding of
`
`19 medications.
`
`20 Q Is there any historical component to the
`
`21 curriculum of the pharmacy law class? In other words,
`
`22 do you teach what the law used to be or what the law
`
`23 is today?
`
`24 A What the law is today. Sometimes some
`
`25 comments related to changes. Certainly when things
`
`12
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 are -- you know, when drugs change classes or things
`
` 3 like that, but it's pretty current.
`
` 4 Q Okay. Do you presently have any
`
` 5 professional role in the development or -- of changes
`
` 6 to the law of Texas?
`
` 7 MR. EHRET: Object to form.
`
` 8 A I do not.
`
` 9 Q Have you ever?
`
`10 A No, I have not.
`
`11 Q Have you ever been involved in petitions to
`
`12 modify sections of the Texas Administrative Code?
`
`13 A I have not.
`
`14 Q You said that your pharmacy law class
`
`15 touches on sterile compounds at least in the context
`
`16 of the USP; is that right?
`
`17 MR. EHRET: Objection. Mischaracterizes.
`
`18 A I'm going to ask you to rephrase the
`
`19 question, so if you don't mind --
`
`20 Q Well, so what -- maybe you can characterize
`
`21 it. How did you characterize the role of the UPS in
`
`22 your pharmacy law class?
`
`23 A The 797 guidelines are part of what's
`
`24 actually in the rule language related to compounding
`
`25 of sterile perennials.
`
`13
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Okay. So do you have any other classes
`
` 3 besides the pharmacy law class that teaches aspect of
`
` 4 the 797 related to the UPS?
`
` 5 A We do have a class. I'm not the one that
`
` 6 teaches it though.
`
` 7 Q Okay. Have you ever taught -- besides the
`
` 8 pharmacy law class we've been talking about, have you
`
` 9 ever taught a class on the 797 section of the UPS?
`
`10 A I do not.
`
`11 Q And you haven't in the past?
`
`12 A No. No, sir.
`
`13 Q How long have you taught that pharmacy law
`
`14 class for?
`
`15 A Oh, goodness. 20-plus years.
`
`16 Q Have you always taught that class at
`
`17 UT Austin?
`
`18 A It's been one of the classes I've taught
`
`19 during my tenure there.
`
`20 Q Were you teaching that class in 2005?
`
`21 A I was.
`
`22 Q Did you review any materials related to the
`
`23 curriculum of that class in preparation for your
`
`24 deposition today?
`
`25 A From my -- I want to make sure that I
`
`14
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 understand your question. Are you asking me did I
`
` 3 review current materials related to that?
`
` 4 Q Any materials that relate to the curriculum
`
` 5 of your pharmacy law class as opposed to materials
`
` 6 that are in front of you right now?
`
` 7 A No, sir.
`
` 8 Q As part of any of your work in this case,
`
` 9 did you go back and look at curriculum materials from
`
`10 the pharmacy law class in past years you have taught
`
`11 it?
`
`12 A I have not.
`
`13 Q How many hours have you spent on this case
`
`14 in total to date before the start of the deposition
`
`15 today?
`
`16 A I need to do some math, so give me a
`
`17 minute.
`
`18 Q Sure.
`
`19 A Approximately, 15 hours.
`
`20 Q And of those 15 hours, how much time was
`
`21 spent preparing -- well, let me lay a little bit of
`
`22 foundation.
`
`23 So you understand that there were
`
`24 two different declarations that you signed, right?
`
`25 A Correct.
`
`15
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q And so how much time was spent in the
`
` 3 preparation of that original declaration that you
`
` 4 sent, the first one?
`
` 5 A I don't know an exact number off the top of
`
` 6 my head. I don't break it down that finite.
`
` 7 Q Can you estimate whether it was about more
`
` 8 or less than half of the 15 total hours you spent?
`
` 9 A I would say that's a fair statement.
`
`10 Q Right around half?
`
`11 A Roughly, yes.
`
`12 Q Okay. And I assume it wasn't much time,
`
`13 but how much time did you spend preparing the second
`
`14 declaration from November 20th?
`
`15 A I can't give you an exact amount of time.
`
`16 Q Do you remember -- do you know how much
`
`17 time you spent preparing for the deposition
`
`18 specifically?
`
`19 A Not necessarily in terms of a finite amount
`
`20 of hours.
`
`21 Q Okay. Did you --
`
`22 A I'm not trying to be evasive. I just --
`
`23 Q No. That's fair.
`
`24 Did you meet with your lawyers to prepare
`
`25 for the deposition today?
`
`16
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 A I did.
`
` 3 Q When?
`
` 4 A Yesterday.
`
` 5 Q For how long?
`
` 6 A A couple of hours.
`
` 7 Q Is it, I mean, three hours?
`
` 8 A I didn't look at what time --
`
` 9 MR. EHRET: Object to form.
`
`10 A -- I left here yesterday to be honest.
`
`11 Q What time did you get here yesterday?
`
`12 A About 1:00.
`
`13 Q About 1:00 you say?
`
`14 A Yes, sir.
`
`15 Q Were you home for dinner?
`
`16 A Yes.
`
`17 Q Okay. So prior to meeting with the lawyers
`
`18 yesterday afternoon, did you do any other specific
`
`19 work to prepare for the deposition?
`
`20 A Yesterday?
`
`21 Q At all?
`
`22 A No, I haven't.
`
`23 Q So did you read your -- reread your
`
`24 declaration before you met with the lawyers yesterday?
`
`25 A No, I didn't.
`
`17
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Did you reread any of the materials that
`
` 3 were referenced in your declaration before you met
`
` 4 with the lawyers yesterday?
`
` 5 A I did not.
`
` 6 Q Okay. So would it be fair to say that the
`
` 7 time you spent yesterday with the lawyers constitutes
`
` 8 the entire time you spent preparing for the
`
` 9 deposition?
`
`10 A No. I would disagree with that.
`
`11 Q Why?
`
`12 A Because I -- preparing for a deposition,
`
`13 any involvement with the case, I usually have a pretty
`
`14 decent retention of information in the declaration.
`
`15 Q Okay. So you're -- so you're saying that
`
`16 the actual time you spent preparing the declaration
`
`17 was also time spent preparing for the deposition; is
`
`18 that right?
`
`19 A I characterize it as all.
`
`20 Q But just so I'm clear, is it your testimony
`
`21 that after you signed the second declaration you did
`
`22 not reread that declaration before you got here
`
`23 yesterday; is that right?
`
`24 A That is not correct. I have reviewed it
`
`25 but -- in putting my files together, but I have not,
`
`18
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 like, gone through page by page.
`
` 3 Q Okay. So let's go back in time a little
`
` 4 bit. When were you retained in this case?
`
` 5 A I think sometime early fall.
`
` 6 Q Do you remember if the original party that
`
` 7 retained was Becton Dickinson?
`
` 8 A I believe so on behalf of these attorneys,
`
` 9 yes.
`
`10 Q Do you have an understanding that at some
`
`11 point in the past this patent was owned by somebody
`
`12 else?
`
`13 A I do know that.
`
`14 Q So you weren't retained by the prior owner
`
`15 of the patent?
`
`16 A That is correct.
`
`17 Q Okay. Do you know who the person who
`
`18 previously owned the patent was?
`
`19 A Emily Alexander.
`
`20 Q And was this case the first time you heard
`
`21 Ms. Alexander's name?
`
`22 A No.
`
`23 Q How did you know her from before this case?
`
`24 A Through Texas pharmacy circles.
`
`25 Q Well, did you the lawyers, the Webb Firm
`
`19
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 lawyers reach out to you as part of the retention of
`
` 3 this case?
`
` 4 MR. EHRET: Objection to form. You can
`
` 5 answer.
`
` 6 A Yes.
`
` 7 Q So in other words, Becton Dickinson didn't
`
` 8 directly reach out to you?
`
` 9 A That is correct.
`
`10 Q Okay. Before the lawyers reached out to
`
`11 you, had you heard that this case was going on?
`
`12 A No, sir.
`
`13 Q Before the lawyers reached out to you, did
`
`14 you know that Ms. Alexander had a patent?
`
`15 A No, sir.
`
`16 Q Before the lawyers reached out to you, did
`
`17 you know that Ms. Alexander had been associated with a
`
`18 company called Ebar?
`
`19 A I didn't know the name of the company, that
`
`20 it was called Ebar.
`
`21 Q But you knew she had a company prior to the
`
`22 lawyers contacting you?
`
`23 A That is correct.
`
`24 Q And how did you know about that?
`
`25 A Through professional organization
`
`20
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 involvement interactions with her.
`
` 3 Q Did you have any direct interactions with
`
` 4 her company?
`
` 5 A No, sir.
`
` 6 Q When is the last time you spoke with her?
`
` 7 A Oddly enough, probably a week and a half
`
` 8 ago.
`
` 9 Q What did you talk to her about?
`
`10 A I saw her at a professional meeting in
`
`11 New Orleans, so she got a chance to meet my husband so
`
`12 that really was the context of our conversation.
`
`13 Q Did you tell her you were giving a
`
`14 deposition in this case?
`
`15 A Absolutely not.
`
`16 Q Did she ask you about the case?
`
`17 A She did not.
`
`18 Q Do you remember the last time that you were
`
`19 in touch with Ms. Alexander? I should call -- I'm
`
`20 sorry. I should call her Dr. Alexander.
`
`21 Do you know the last time you were in touch
`
`22 with Dr. Alexander prior to your meeting with her in
`
`23 New Orleans last -- a week and a half ago?
`
`24 A Over the summer.
`
`25 Q And what was the context of that meeting?
`
`21
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 A We had dinner.
`
` 3 Q Again, social? That was --
`
` 4 A It was completely social.
`
` 5 Q Have you had any professional interactions
`
` 6 with Dr. Alexander since being retained in the case?
`
` 7 A I did not.
`
` 8 Q Does she know that you were retained in
`
` 9 this case?
`
`10 A I don't know if she does or not.
`
`11 Q Did you tell her that you were retained in
`
`12 this case?
`
`13 A I did not.
`
`14 Q Do you know when the last time -- we've
`
`15 been talking in terms of you speaking with
`
`16 Dr. Alexander. Do you know the last time that you had
`
`17 written correspondence with her, email or otherwise?
`
`18 A It would have been over the summer.
`
`19 Q In connection with that social meeting you
`
`20 had?
`
`21 A That is correct.
`
`22 Q Other than that correspondence, have you
`
`23 had other correspondence with Dr. Alexander since
`
`24 being retained in this case?
`
`25 A I have not.
`
`22
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Do you have any -- you personally have any
`
` 3 professional relationships with Becton Dickinson?
`
` 4 A I do not.
`
` 5 Q Do you know if the University of Texas has
`
` 6 any relationships with BD?
`
` 7 A I do not.
`
` 8 MR. EHRET: Object to the form.
`
` 9 A I don't know.
`
`10 Q Have you ever had any professional
`
`11 association with BD?
`
`12 A I have not.
`
`13 Q Do you have any current professional
`
`14 association with Baxter?
`
`15 A I do not.
`
`16 Q Have you ever had a professional
`
`17 relationship or association with Baxter?
`
`18 A I have not.
`
`19 Q Do you have any understanding of what BD is
`
`20 accusing Baxter of doing to infringe Dr. Alexander's
`
`21 patent?
`
`22 MR. EHRET: Object to form.
`
`23 A Somewhat, yes.
`
`24 Q What is your understanding of that?
`
`25 A They feel that the patent is not a valid
`
`23
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 patent, in essence.
`
` 3 Q Right.
`
` 4 A I'm not a patent attorney, so.
`
` 5 Q Right. I totally -- I totally understand.
`
` 6 I totally understand.
`
` 7 Do you have any understanding about whether
`
` 8 BD believes that something Baxter is doing infringes
`
` 9 the patent?
`
`10 MR. EHRET: Object to form.
`
`11 A Sort of. Not -- I'm not as fluent, if you
`
`12 will, in all those nuances related to that.
`
`13 Q Okay. Are you aware of -- strike that.
`
`14 All right. Let's flip to your declaration
`
`15 if you would. I think it's on top of that stack.
`
`16 A Sure.
`
`17 Q But it's Exhibit No. 2001. All the
`
`18 exhibits are premarked just so you know. Again, feel
`
`19 free to take a look through this and make sure it is
`
`20 your declaration.
`
`21 A Okay.
`
`22 Q And when you're done, just flip to the last
`
`23 page.
`
`24 A Okay.
`
`25 Yes. That is my signature.
`
`24
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Okay. And the date on the Page 26 of
`
` 3 Exhibit No. 2001 is November 20th of '15, right?
`
` 4 A Correct.
`
` 5 Q Does that comport with your recollection
`
` 6 about when you signed at least a version of your
`
` 7 declaration?
`
` 8 A Yes.
`
` 9 Q And is it your belief that this is the most
`
`10 recent declaration you have signed in this case?
`
`11 A Yes.
`
`12 Q Do you know off the top of your head the
`
`13 differences between this version of the declaration
`
`14 and the prior version that you submitted?
`
`15 A I believe it's something related to maybe
`
`16 some exhibits or something that I made reference to.
`
`17 Q Okay. And I can direct you to at least
`
`18 what I understand the differences to be. If you go to
`
`19 Paragraph 76 and 77 on Page 20.
`
`20 A I'm getting there. Okay.
`
`21 Q All right. Again, this is my
`
`22 understanding. Just tell me if you have the same
`
`23 understanding. My understanding is Paragraph 76 was
`
`24 slightly changed so that the citation at the end of it
`
`25 is now different. Is that your understanding too?
`
`25
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 A If you don't mind, I'm going to read it.
`
` 3 Q Absolutely.
`
` 4 A I'll read it again.
`
` 5 Q Absolutely.
`
` 6 A Thank you.
`
` 7 Okay. That is my understanding. Thank
`
` 8 you.
`
` 9 Q Okay. And again, Exhibit 1017, which is
`
`10 referenced there, is also in that stack if you want to
`
`11 look at it, but I believe -- my understanding is that
`
`12 your -- the change to Paragraph 76 was a change to
`
`13 remove citation to a declaration of a gentleman by the
`
`14 name of Dr. Anderson. Is that your understanding too?
`
`15 A That is --
`
`16 MR. EHRET: Object to the form.
`
`17 A That is my understanding.
`
`18 Q Okay. Do you -- so Dr. Anderson, do you
`
`19 know his full name?
`
`20 A Roger Anderson.
`
`21 Q Do you know Dr. Anderson professionally
`
`22 outside of this case?
`
`23 A I do.
`
`24 Q Have you spoken with him about this case?
`
`25 A I have not.
`
`26
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 Q Okay. Paragraph 77, which is right below
`
` 3 the one you were looking at, again I understand that a
`
` 4 similar change here was made to the citation. Maybe
`
` 5 not to the citation, but my -- let me try it this way.
`
` 6 What is your understanding of the change
`
` 7 that was made in Paragraph 77?
`
` 8 A I believe it is the same as is referenced
`
` 9 up in Paragraph 76.
`
`10 Q And is it your understanding that in
`
`11 Paragraph 77 a prior reference to Dr. Anderson's
`
`12 declaration was removed?
`
`13 A That is correct.
`
`14 Q Okay. Did you look at Exhibit 1017 in
`
`15 preparation -- in your meeting with the lawyers
`
`16 yesterday?
`
`17 A I did not.
`
`18 Q When was the last time you looked at that
`
`19 document?
`
`20 A Probably when I was just originally
`
`21 starting to look at document for this file --
`
`22 Q Okay.
`
`23 A -- in the file for this case.
`
`24 Q What did you do when you signed the
`
`25 declaration on or around November 20th to verify that
`
`27
`
`DIANE B. GINSBURG, Ph.D.
`
`

`
` 1 Diane B. Ginsburg, Ph.D.
`
` 2 your opinions wouldn't change with the change to the
`
` 3 citations and reference removed to Dr. Anderson?
`
` 4 MR. EHRET: Objection. Form.
`
` 5 A I'm not sure I understand what you're
`
` 6 asking me, and I want to make sure I'm clear in terms
`
` 7 of what you're trying to --
`
` 8 Q Yeah.
`
` 9 A -- get at, so.
`
`10 Q Let me try it again.
`
`11 A Okay.
`
`12 Q So in Paragraph 76, there was previously a
`
`13 citation to some declaration testimony of
`
`14 Dr. Anderson, correct?
`
`15 A Correct.
`
`16 Q That citation is no longer there, right?
`
`17 A Correct.
`
`18 Q So you're -- now in Paragraph 76, you're
`
`19 citing to at least different portions of Exhibit 1017,
`
`20 right?
`
`21 MR. EHRET: Object

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