`
`Transcript of John Jarosz
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`Date: November 11, 2022
`Case: Slayback Pharma LLC -v- Eye Therapies LLC (PTAB)
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`Planet Depos
`Phone: 888-433-3767
`Fax: 888-503-3767
`Email: transcripts@planetdepos.com
`www.planetdepos.com
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`WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY
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`Slayback Exhibit 1052, Page 1 of 60
`Slayback v. Eye Therapies - IPR2022-00142
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`Transcript of John Jarosz
`November 11, 2022
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` A P P E A R A N C E S
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`ON BEHALF OF THE PETITIONER, SLAYBACK PHARMA,
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`LLC:
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`ROBERT FREDERICKSON, ESQUIRE
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`CHRISTOPHER CASSELLA, ESQUIRE
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`GOODWIN PROCTER, LLP
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`100 Northern Avenue
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`Boston, Massachusetts 02210
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`617.570.1947
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` SLAYBACK PHARMA LLC,
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` Petitioner,
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` EYE THERAPIES, LLC,
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` Patent Owner.
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` Case IPR2022-00142
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` Patent 8,293,742
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`ON BEHALF OF THE PATENT OWNER, EYE THERAPIES,
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`LLC:
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` -------------------
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`JUSTIN J. HASFORD, ESQUIRE
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` Deposition of JOHN JAROSZ
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`FINNEGAN HENDERSON FARABOW GARRETT & DUNNER,
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` Conducted Remotely
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`LLP
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`Job No.: 468949
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`Pages: 1-111
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`ALSO PRESENT:
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`EMILY DUNN - REMOTE TECHNICIAN
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`KYLAN BARRY - VIDEOGRAPHER
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`Reported by: Matthew Goldstein, RMR, CRR
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` C O N T E N T S
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`EXAMINATION OF JOHN JAROSZ PAGE
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`By MR. FREDERICKSON 7
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`By MR. HASFORD 105
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` E X H I B I T S
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` (Attached)
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`JAROSZ DEPOSITION EXHIBIT PAGE
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` Exhibit 1001 United States Patent No. 27
` 8,293,742 B2
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` Exhibit 2023 Declaration of John Ferris 46
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` Exhibit 2024 Declaration of John C. Jarosz 9
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` Exhibit 2043 Measuring the Informative and 88
` Persuasive Roles of Detailing
` on Prescribing Decisions
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` Exhibit 2045 New Product Pacesetters 75
` Innovation Before the "New
` Normal" Slide Deck
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` Exhibit 2068 Bausch+Lomb 1Q22 Financial 52
` Results Slide Deck
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` Exhibit 2125 Nielsen's BASES Names LUMIFY® 93
` Eye Drops To 2020 U.S. BASES
` Top 25 Breakthrough Innovations
` List
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` Deposition of JOHN JAROSZ, conducted
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`Slayback Exhibit 1052, Page 2 of 60
`Slayback v. Eye Therapies - IPR2022-00142
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`

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`Transcript of John Jarosz
`November 11, 2022
`5
` THE REMOTE TECHNICIAN: Thank you to
`everyone for attending this proceeding remotely
`which we anticipate will run smoothly. And please
`remember to speak slowly and do your best not to
`talk over one another. And please be aware that
`we are recording this proceeding for backup
`purposes.
` Any off-the-record discussions should be
`had away from the computer. And please remember
`to mute your mic for those conversations. Please
`have your video enabled to help the reporter
`identify who is speaking. If you are unable to
`connect with video and are connecting via phone,
`please identify yourself each time before
`speaking.
` I apologize in advance for any
`technical-related interruptions.
` Thank you.
` THE VIDEOGRAPHER: Please stand by for
`video.
` Here begins Media No. 1 in the
`videotaped deposition of John C. Jarosz, in the
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` P R O C E E D I N G S
`Whereupon,
` JOHN JAROSZ,
`being first duly sworn or affirmed to testify to
`the truth, the whole truth, and nothing but the
`truth, was examined and testified as follows:
` EXAMINATION BY COUNSEL FOR THE PETITIONER
`BY MR. FREDERICKSON:
` Q. Thank you.
` Good morning, Mr. Jarosz.
` A. Good morning.
` Q. Have you been deposed before?
` A. In other matters, yes.
` Q. Approximately how many times?
` A. Approximately 300 times over the years.
` Q. Have you been deposed remotely before?
` A. Yes.
` Q. Okay. So you're familiar with the new
`normal in the remote deposition world. And I'm
`sure you're familiar with the ground rules of the
`deposition. But if you have any questions, please
`let me know, about the process or the procedure.
`
`8
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`6
`matter of Slayback Pharma LLC versus Eye Therapies
`LLC, Case No. IPR 2022-00142.
` Today's date is November 11th, 2022.
`The time on the video monitor is 9:06 a.m.
` The remote videographer today is Kylan
`Barry, representing Planet Depos.
` All parties of this video deposition are
`attending remotely.
` Would counsel please voice identify
`themselves and state whom they represent.
` MR. FREDERICKSON: Robert Frederickson
`from Goodwin Procter representing the petitioner,
`Slayback Pharma LLC. Also on the line is
`Christopher Cassella from Goodwin Procter, as
`well.
` MR. HASFORD: Justin Hasford of Finnegan
`on behalf of patent owner.
` THE VIDEOGRAPHER: The court reporter
`today is Matthew Goldstein, representing Planet
`Depos.
` Would the reporter please swear in the
`witness.
`
` A. I'm not sure if there's a question, but
`I think I understand the process.
` Q. Okay. Just because I'm not in the room
`with you, can you let me know who else is present
`in the room with you?
` A. Justin Hasford.
` Q. Anyone else?
` A. No.
` Q. I see you have a piece of paper in front
`of you. I think we discussed off the record that
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`that's a copy of your declaration in this
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`proceeding; is that correct?
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` A. Yes, except it's not one piece of paper.
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`It's a copy of my declaration and appendices.
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` Q. Okay. Is there any notations or marking
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`in that document?
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` A. You can see that I'm just looking at it
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`very quickly, but there do not appear to be any
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`notations.
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` Q. Great.
`20
` And can you confirm that what you're
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`looking at is Exhibit 2024, the declaration of
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`Slayback Exhibit 1052, Page 3 of 60
`Slayback v. Eye Therapies - IPR2022-00142
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`Transcript of John Jarosz
`November 11, 2022
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`John C. Jarosz?
` A. That appears to be the case, yes.
` (Jarosz Deposition Exhibit 2024 was
`marked for identification and attached to the
`transcript.)
`BY MR. FREDERICKSON:
` Q. You understand that during the course of
`the deposition, particularly when we're on the
`record, like the court reporter is transcribing
`and I'm asking questions, you're not to
`communicate by anyone through any means that
`wouldn't be perceivable to me.
` Do you understand that?
` A. Yes.
` Q. And if someone does try to communicate
`with you via in the room that I can't see or via
`any electronic messages, will you let me know?
` A. Yes.
` Q. Great.
` When were you first retained to submit
`an expert declaration in this matter?
` A. Our firm was first retained to do an
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`3 (9 to 12)
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`about March. It could have been earlier than
`that. It might have been later than that.
` Q. Who wrote Exhibit 2024?
` A. I did in the sense that I was
`supervising and responsible for everything in it.
`I worked with a colleague or two of mine in doing
`the prose of the report and the underlying
`analysis.
` Q. Who are those colleagues?
` A. The one that comes to mind right now is
`Yao Lu. I think also involved was Su Jin Kim.
`And it's possible Jonas Blomberger was involved.
` Q. What was Yao Lu's role in drafting
`Exhibit 2024?
` A. She had responsibility for undertaking
`the analysis here. So her role was to
`conceptualize and oversee all the analyses and
`summaries of our conclusions.
` Q. What was Su Jin Kim's role in preparing
`Exhibit 2024?
` A. She's less senior than Yao Lu is. And
`she was involved in looking at much of the
`
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`underlying information assisting with the report
`analysis on commercial success issues some number
`production and probably having more day-to-day
`of months ago. I've lost track of how many months
`responsibility for the construction of the
`ago, but my best current estimate was that it was
`appendices.
`six months ago, give or take two months. I could
` Q. I might have written down his last name
`be wrong, however.
`wrong, but what was Jonas Bloomberg's role?
` Q. Would you say that it could have been as
` A. Jonas Blomberger. His role was very
`early as March 2022 and as late as July of 2022?
`similar to Su Jin Kim's. I would probably use the
` MR. HASFORD: Object to the extent it
`same words to the extent that he was involved.
`mischaracterizes the witness' testimony.
`And I'm right now not clear who spent more time,
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` THE WITNESS: March 2022 is six months
`whether it was Su Jin Kim or Jonas Blomberger.
`11
`ago. It could have been more than that, in other
` Q. Other than those three people that
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`words, earlier than that in time.
`you -- those three people, are they all employees
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`BY MR. FREDERICKSON:
`of Analysis Group?
`14
` Q. If you look at the last page of your
` A. Yes.
`15
`declaration, page 66 of the text, you'll see that
` Q. Okay. Other than those three employees
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`it's dated August 26th, 2022.
`of Analysis Group, did anyone else contribute to
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` Do you see that?
`the drafting of Exhibit 2024?
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` A. Yes.
` A. Well, there were people that were
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` Q. How much in advance of August 26th,
`involved in constructing the appendices and doing
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`2022, were you retained to offer an expert
`checks of the prose of the report. I don't think
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`declaration in this matter?
`those people were as intimately involved in
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` A. As I said a few moments ago, it was in
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`Slayback Exhibit 1052, Page 4 of 60
`Slayback v. Eye Therapies - IPR2022-00142
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`Transcript of John Jarosz
`November 11, 2022
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`helping draft the prose of the report.
` Q. What about individuals not employed by
`Analysis Group, were there any individuals that
`contributed to the drafting of the declaration
`other than employees of Analysis Group?
` A. I think there were people at Finnegan
`Henderson who took a look at some drafts and
`helped us with understanding if there was a
`misunderstanding we had of any of the facts. It's
`possible that one or more people at Bausch+Lomb
`looked at it for similar reasons.
` Q. Other than attorneys employed by
`Finnegan and individuals employed by Analysis
`Group, did you speak with anyone else in the
`preparation of your declaration?
` A. Yes.
` Q. Who did you speak with?
` A. Ms. Kristi McIntyre.
` Q. Who is Kristi McIntyre?
` A. She's in-house counsel at Bausch+Lomb.
`I forget the precise entity. I don't know her
`precise title.
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` MR. HASFORD: Same caution.
` THE WITNESS: I don't have anything in
`particular in mind.
`BY MR. FREDERICKSON:
` Q. What about underlying data, what
`underlying data did you seek further understanding
`of?
` MR. HASFORD: Same caution.
` THE WITNESS: I think I can generally
`say it was sought to understand the IRI data and
`the difference between the point-of-sale and panel
`data. In the process of doing that, we might have
`had a conversation with somebody else at
`Bausch+Lomb to understand those data.
`BY MR. FREDERICKSON:
` Q. Do you know who that was?
` A. Sitting here right now, I don't recall.
`It's possible it was Mr. Ferris, but I'm not very
`confident of that. But it's possible.
` Q. Sitting here today, do you have a
`recollection of having a conversation with
`Mr. Ferris?
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` Q. And what was the subject matter of
`those -- how many conversations did you have with
`Kristi McIntyre?
` A. Something on the order of two or three.
` Q. How long were those conversations?
` A. I don't have a very sharp recollection
`of those, but my best guess is something on the
`order of half an hour to 45 minutes.
` Q. Each or in total?
` A. Each, although each one may have been
`appreciably shorter than that.
` Q. What was the subject matter of those
`conversations?
` MR. HASFORD: And I'll just caution you
`not to disclose any specific conversations that
`you may have had with Kristi McIntyre.
` THE WITNESS: The conversations were
`oriented to understanding some of the underlying
`facts and the underlying data.
`BY MR. FREDERICKSON:
` Q. What underlying facts did you seek to
`further understand from Kristi McIntyre?
`
` A. Not a very sharp recollection. I would
`only say with medium confidence that I had a
`conversation with him.
` Q. And just to make sure I have the name,
`that was Kristi McIntyre? Is that the attorney
`that you spoke with?
` A. Yes.
` Q. Other than Kristi McIntyre and possibly
`John Ferris, did you speak with anyone else to
`prepare your declaration?
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`been another person at Bausch+Lomb that we talked
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`to in the context of understanding the data. And
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`I'm not sure whether it was in the context of the
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`PTAB matter or the district court matter. So I'm
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`a little bit unclear -- or uncertain whether it
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`was specifically having to do with the PTAB
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`matter.
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` Q. In the course of preparing your
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`declaration, did you speak with anyone employed by
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`Eye Therapies?
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` A. I don't think so.
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`Slayback Exhibit 1052, Page 5 of 60
`Slayback v. Eye Therapies - IPR2022-00142
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`Transcript of John Jarosz
`November 11, 2022
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`did not, but I don't say that with great
`certainty.
` Q. Did you review the declarations of a
`Dr. Paul Laskar in forming your opinions in this
`case?
` A. Not to the best of my memory.
` Q. Did you review the declaration of a
`Dr. Neal Sher?
` A. Not to the best of my memory.
` Q. You referred to Appendix 2 a couple of
`times to your declaration. What is Appendix 2?
` A. It is a listing of materials considered.
` Q. Is it a listing of materials that you
`considered in the preparation of your declaration?
` A. Yes.
` Q. Are there any materials that you
`considered in forming your opinions in this case
`that you did not list in Appendix 2?
` A. I don't think so, although I've been
`involved in this kind of work for many years.
`There are things in my memory banks that I
`impliedly or subconsciously might have relied
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` Q. Have you reviewed any deposition
`testimony from this matter?
` A. Yes.
` Q. What deposition testimony have you
`reviewed?
` A. I reviewed the rough draft of
`Mr. Ferris' deposition testimony.
` Q. Any other deposition testimony?
` A. If you give me one moment, I will try to
`refresh my recollection by looking at Appendix 2.
` I don't think so, although of course my
`memory is not perfect.
` Q. In the course of preparing your
`declaration for this matter, did you speak with
`any of the other experts retained by Bausch and
`Eye Therapies?
` A. Not to the best of my memory.
` Q. I understand you reviewed a declaration
`from a Dr. Robert Noecker; is that correct?
` A. Yes.
` Q. Did you ever speak with Dr. Robert
`Noecker?
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`upon. But the things that are explicitly related
` A. I don't believe so.
`to this matter, we intended to identify entirely
` Q. Have you reviewed any deposition
`in Appendix 2.
`testimony from Dr. Noecker?
` A. I don't think so. I wasn't aware that
` Q. Why didn't you include the conversations
`his deposition had been taken in this matter.
`that you had with Kristi McIntyre in your
`Appendix 2?
` Q. Have you reviewed the declaration of a
` MR. HASFORD: Objection to the form of
`Dr. Robert Williams?
` A. I don't believe so, no.
`the question.
` THE WITNESS: I don't usually, and I
` Q. Have you reviewed the declaration of a
`don't recall having relied on anything that I
`Dr. Stephen Davies?
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` A. I don't think so, but for that question
`learned from those conversations that impacted the
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`and the prior, let me look at my Appendix 2 to
`substance of my work or conclusions.
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`refresh my memory.
` When I said "I don't usually," to be
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` I think the answer is no, I did not, to
`more specific, I don't usually cite conversations
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`the best of my memory.
`that I've had with counsel, whether internal or
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`external. It might be that they're covered by
` Q. In the course of forming your opinions
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`privilege. In many instances like this, I didn't
`in your declaration, did you review the petition
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`rely on those conversations for the substance of
`for inter partes review that was filed by Slayback
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`my work or opinions.
`in this matter?
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` A. I have a vague memory of having done
`BY MR. FREDERICKSON:
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`that, but it doesn't appear to be identified in my
` Q. Did Kristi McIntyre provide you any
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`Appendix 2, which makes me think that I probably
`factual information that was relevant to your
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`Slayback Exhibit 1052, Page 6 of 60
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`Transcript of John Jarosz
`November 11, 2022
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`opinions?
` MR. HASFORD: Object to the form of the
`question.
` THE WITNESS: There's nothing
`specifically that comes to mind.
`BY MR. FREDERICKSON:
` Q. Can we turn to paragraph 37 of your
`declaration, Exhibit 2024.
` A. I'm there.
` Q. Paragraph 37, the first sentence reads,
`"I understand that Lumify is a commercial
`embodiment of certain claims of the '742 patent."
` Do you see that?
` A. Yes.
` Q. Where did you receive that understanding
`from?
` A. Probably Exhibit 2020 at paragraphs 226,
`301, 311, and from patent owner's preliminary
`response at 31 and 32. Now, I do have to say if
`2020, Exhibit 2020, is the Noecker declaration, a
`large number of the paragraph numbers are slightly
`off in my final report versus his final
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`BY MR. FREDERICKSON:
` Q. The reason there are miscitations to the
`Noecker declaration is because you and your team
`were citing a draft declaration and those
`paragraph numbers changed by the time Dr. Noecker
`submitted his final declaration; is that right?
` MR. HASFORD: Same objections.
` THE WITNESS: I think that's right, but
`I don't have a perfect memory of what happened at
`the very end.
`BY MR. FREDERICKSON:
` Q. Now, and I think you said this in your
`declaration, you are not a medical doctor; is that
`right?
` A. That's correct.
` Q. And you've been retained to offer
`opinions related to the issues of commercial
`success; is that right?
` A. I missed a little bit of what you said
`before you said "commercial success."
` Q. You've been retained to offer opinions
`in this matter on the topic of commercial success;
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`declaration.
` Q. And have you prepared any errata or
`changes to those citations to update your
`declaration?
` A. I have not. I could do that. We
`learned that there was some discrepancy in what
`was cited versus what was in the final
`declaration, but I've not put together an errata.
` Q. Is that because when you were preparing
`the declaration, your declaration, you had a draft
`of Dr. Noecker's declaration?
` A. I think it's probably right that I had a
`near final but not final draft, correct, when I
`was writing my final declaration.
` Q. And the citations that may have been
`miscited was because you were citing to paragraphs
`in that draft that subsequently changed?
` MR. HASFORD: Object to the form of the
`question to the extent it mischaracterizes.
` THE WITNESS: Would you mind asking that
`again, please?
`
`
`is that right?
` A. Our firm was retained to do an analysis
`of commercial success issues, and I was asked to,
`if necessary, provide my opinions on the
`conclusions that we drew.
` Q. Are you offering opinions as --
`independent opinions that the product Lumify is
`embodied of certain claims of the '742 patent?
` A. No, I think that's a technical opinion.
`And that's outside my area of expertise.
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` Q. And for those technical opinions, are
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`you principally relying on the opinions of
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`Dr. Noecker?
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` A. Yes.
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` Q. In paragraph 37, you say, "I understand
`15
`that Lumify is a commercial embodiment of certain
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`claims of the '742 patent."
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` Do you see that?
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` A. Yes.
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` Q. When you say "certain claims," which
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` A. You'd have to ask Dr. Noecker.
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`Transcript of John Jarosz
`November 11, 2022
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`that Lumify is a commercial embodiment of certain
`claims of the '742 patent.
` MR. FREDERICKSON: Can we take a look
`at -- it's Exhibit 1001. It should be the '742
`patent. We can put that on the screen.
` (Jarosz Deposition Exhibit 1001 was
`marked for identification and attached to the
`transcript.)
` MR. FREDERICKSON: And if we could
`scroll to the last page where the claims are
`listed.
` It should be all the way at the end,
`last page, 20 out of 20. We can go ahead and
`maybe even zoom in a little bit just so the --
`yeah, the claims are showed there. Perfect.
`BY MR. FREDERICKSON:
` Q. And, Mr. Jarosz, can you see on the
`screen Exhibit 1001, the six claims of the '742
`patent?
` A. Yes.
` Q. Do you see Claim 4, "The method of
`Claim 3 wherein said composition is topically
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` Q. If you go to paragraphs 38 and 39 of
`your expert declaration, Exhibit 2024, you refer
`to Claim 1 of the '742 patent.
` Do you see that?
` A. Yes.
` Q. Other than Claim 1 of the '742 patent,
`do you have an understanding if Lumify is a
`commercial embodiment of any other claims?
` A. Again, you'd have to ask Dr. Noecker on
`that. I believe it's a commercial embodiment of
`more than just Claim 1, but I'm just going off my
`memory of what's in the Noecker declaration.
` Q. When you formed your opinions and did
`your analysis of commercial success, did you make
`any effort to identify which specific claims are
`embodied by Lumify as a commercial -- let me try
`that again.
` In forming your opinions and doing your
`analysis in this case, did you undertake any
`effort to determine which specific claims Lumify
`is a commercial embodiment of?
` MR. HASFORD: Object to the form.
`
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` THE WITNESS: No, I'm relying on
`administered within about 24 hours after a LASIK
`Dr. Noecker for that expertise. That's beyond my
`surgery on said patient"?
`area of expertise.
` Do you see Claim 4?
` A. Yes.
`BY MR. FREDERICKSON:
` Q. And was it relevant to any of your
` Q. Did you undertake any analysis to
`opinions whether there were particular claims of
`determine how the frequency with which Lumify is
`the '742 patent that Lumify was not a commercial
`prescribed or administered within 24 hours after
`embodiment of?
`LASIK surgery?
` MR. HASFORD: Object to the form of the
` MR. HASFORD: Object to the form.
`question.
` THE WITNESS: No, I'm not aware that
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` THE WITNESS: I'm aware of what's in the
`there's data on that.
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`Noecker declaration.
`BY MR. FREDERICKSON:
`12
`BY MR. FREDERICKSON:
` Q. Did you look --
`13
` A. I understand it to be the case that
` Q. Did it matter for purposes of your
`14
`under the law the composition is equivalent to the
`opinions to have an understanding of which
`15
`advantages of the patent. And at least the first
`specific claims Lumify is a commercial embodiment
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`claim is an independent claim.
`of and which specific claims Lumify may not be a
`17
`commercial embodiment of?
` Q. My question was simply: Did you
`18
` MR. HASFORD: Object to form.
`undertake an analysis to determine the frequency
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` THE WITNESS: It's interesting to me,
`with which Lumify is administered to patients
`20
`but I'm not sure that it impacts the conclusions
`within an amount 24 hours after LASIK surgery?
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`that I drew. I'm relying on Dr. Noecker's opinion
` MR. HASFORD: Object to the form of the
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`8 (29 to 32)
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`Transcript of John Jarosz
`November 11, 2022
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`question.
` THE WITNESS: At the risk of repeating
`myself, no, I didn't undertake that particular
`analysis, and I'm not aware of whether there's
`data that would help one answer that question.
`BY MR. FREDERICKSON:
` Q. Do you know how many people undergo
`LASIK surgery on a monthly or yearly or quarterly
`basis in the United States?
` A. I don't. I may have seen that, a
`representation to that effect at some time over
`the last two decades, but I haven't committed that
`to memory.
` Q. And that's not something that you
`considered in forming your opinions in this case?
` A. You mean the rate at which LASIK surgery
`is performed?
` Q. Correct.
` A. No.
` Q. Do you know how many patients take eye
`drops following LASIK surgery?
` A. No, and I'm not aware that there are
`
`revenue associated with the use of Lumify
`following LASIK surgery?
` A. I don't believe I do, and I'm not aware
`of any existing.
` Q. Do you have any data or analysis of the
`market share of the use of Lumify following LASIK
`surgery?
` A. I don't believe so, and I'm not aware of
`the existence of any data on that.
` Q. Do you have any data or analysis of the
`number of units of Lumify that were sold for the
`purposes of being administered following LASIK
`surgery?
` A. I don't believe so, and I'm not aware of
`any data that would help answer that question.
` Q. Do you have any data or analysis that
`you conducted on the volume of Lumify sold
`following LASIK surgery?
` A. I don't believe so, and I'm not aware of
`any data that would help resolve that issue.
` Q. We can go back to Exhibit 1001 in that
`same section. Claim 6 reads, "A method according
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`data to answer that question.
`to Claim 3 wherein said ocular condition is
`chronic red eye."
` Q. Do you know what the available market
` Do you see that?
`for eye drops are to patients that -- following
` A. Yes, I do.
`LASIK surgery?
` Q. Do you have any data or conducted any
` MR. HASFORD: Object to the form of the
`analysis of how many patients suffering from
`question.
`chronic red eye take Lumify?
` THE WITNESS: What do you mean by the
` A. I don't believe so.
`term "available market"?
` Q. Okay. Do you have any data or have you
`BY MR. FREDERICKSON:
`conducted any analysis on the revenue associated
` Q. Do you know what options patients have
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`with Lumify used in the treatment of chronic red
`for eye drops following LASIK surgery?
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` A. I don't. I'm not a clinician. As an
`eye?
`12
` A. I don't think so.
`economist and one who has investigated this, I
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`would think some of the eye redness products that
` Q. Do you know what other eye drop products
`14
`I discuss in my report might be considered
`are approved or used in the treatment of chronic
`15
`options, but I certainly don't know that from the
`red eye?
`16
` A. Actually, I do not. I would expect that
`perspective of a clinician or a scientist.
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`some of the products that I've identified in my
` Q. And you didn't undertake that analysis
`18
`declaration might be candidates for that, but I
`for purposes of forming your opinions in this
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`don't know whether they meet your requirements.
`case?
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` A. That's correct.
` Q. And you haven't done any analysis in
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` Q. Do you have any data or analysis on the
`this matter to determine which of those products
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`Transcript of John Jarosz
`November 11, 2022
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`tolerability, safety, efficacy, and the lack of
`tachyphylaxis; is that correct?
` A. Yes, it's the combination of those
`things, I think.
` Q. Do you have any analysis or evidence
`that one of the differentiators of Lumify from
`other eye redness relievers is the pH of Lumify?
` A. You'd have to ask Dr. Noecker on that.
`I believe that pH may go to the issue of
`tolerability or safety or efficacy or lack of
`tachyphylaxis.
` Q. What about for purposes of forming your
`opinions in this case, did you consider the pH
`specifically of Lumify to be a differentiator from
`the other eye redness relievers?
` MR. HASFORD: Object to the form of the
`question.
` THE WITNESS: I wonder if you could ask
`that a little bit differently. I'm not quite sure
`I'm following it.
`BY MR. FREDERICKSON:
` Q. In forming the opinions -- you've
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`are actually used for the treatment of chronic red
`eye; is that right?
` A. I don't believe so. I'm not aware of
`data existing that would help answer that
`question.
` Q. Are you aware of any data or have you
`conducted any analysis on the number of Lumify
`units sold for the treatment of chronic red eye?
` A. No, I don't believe so.
` Q. And do you have any data or have you
`conducted any analysis of the volume of Lumify
`sold for the treatment of chronic red eye?
` A. No, I don't believe so.
` Q. Turn to paragraph 105 in your
`declaration, Exhibit 2024.
` A. Did you say 5?
` Q. 105, sorry.
` A. I'm there. Thank you.
` Q. The second sentence of paragraph 105
`starts, "I further understand that the attributes
`of Lumify that differentiate it from other eye
`redness relievers include..."
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` Do you see that sentence?
` A. Yes, I do.
` Q. And there's a cite at the end of that
`sentence to Exhibit 2020.
` Do you see that?
` A. Yes.
` Q. And I can flip it up on the screen or if
`you want to check your list of materials
`considered, but can you just confirm for me that
`you understand Exhibit 2020 to be the declaration
`of Robert Noecker?
` A. Yes, I'm looking at my Appendix 2, and
`that appears to be the case, yes.
` Q. And so is it fair to say that your
`understanding of the attributes of Lumify that
`differentiate it from other eye redness relievers
`is -- that comes from Dr. Noecker?
` A. Yes, from a technical or scientific or
`clinician perspective.
` Q. And then you listed the attributes that
`Dr. Noecke