051408Brown 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR MIAMI PALM BEACH COUNTY, FLORIDA 2 CASE NO CA004357XXXXMB AJ

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1 1 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR MIAMI PALM BEACH COUNTY, FLORIDA 2 CASE NO CA004357XXXXMB AJ 3 GERDA SILIEN, 4 Plaintiff, -vs- 5 ARMCHEM INTERNATIONAL 6 CORPOORATION, a Florida corporation and ALFREDO ALEJANDRO PEREZ, 7 Defendant DEPOSITION OF JACQUELINE BROWN Wednesday, May 14, :10-11:50 a.m West Flagler Street 16 Suite 1200 Miami, Florida Reported By: Rick E. Levy, RPR, FPR 21 Notary Public, State of Florida Network Reporting Corporation 22 Phone: APPEARANCES: 2 On behalf of the Plaintiff: Page 1

2 3 STEVEN WOODS, ESQUIRE ROIG, KASPEROVICH, TUTAN & WOODS, P.A South Military Trail Suite Deerfield Beach, Florida On behalf of the Defendant: 7 JAMES COOKSEY, ESQUIRE (via phone) COOKSEY & COOKSEY, P.A Broadway Suite Deerfield Beach, Florida Also Present: 12 Theresa delanoval I N D E X WITNESS: DIRECT CROSS REDIRECT RECROSS 16 JACQUELINE BROWN BY MR. WOODS E X H I B I T S NUMBER PAGE DEPOSITION EX MR. WOODS: If you can't hear anything 2 we're saying on the phone let us know 3 otherwise we'll just keep going and assume you 4 can hear. 5 MR. COOKSEY: Okay. 6 Thereupon, 7 (JACQUELINE BROWN) Page 2

3 8 having been first duly sworn or 9 affirmed, was examined and testified as follows: 10 DIRECT EXAMINATION 11 BY MR. WOODS: 12 Q All right, good morning, ma'am. 13 A Good morning. 14 Q Would you state your name, please? 15 A Jacqueline Brown. 16 Q Ms. Brown, we're here on the Silien 17 versus Armchem case. You have a subpoena and 18 notice of taking your deposition and I'm 19 representing the defendants in this case. 20 This is a case that was brought by Gerda 21 Silien the plaintiff who had a car accident and is 22 claiming some injuries and damages which include 23 medical expense. Amongst her medical expenses are 24 $7,454 for Arthrocare SpineWand that was billed by 25 Arthrocare. A procedure percutaneous discectomy 4 1 was performed with a SpineWand apparently so 2 that's nucleoplasty or plasma disc decompression 3 according to Arthrocare. 4 I'm going to be asking you some 5 questions this morning to ascertain what you do or 6 don't know about Arthrocare and DiscoCare and 7 their bill and their coding. If I ask you any 8 questions and you don't understand them let me 9 know, I'll be glad to rephrase it for you, okay? 10 A Yes. 11 Q That was going to be my next thing to Page 3

4 12 tell you. As you're nodding your head it's fine 13 to nod your head up and down or side to side but 14 we need a verbal answer to go with it. It's 15 especially important because we're not on video. 16 Doubly important because the attorney on the other 17 side of the case is on the phone. 18 MR. COOKSEY: I need her to speak up 19 too. 20 THE WITNESS: I understand. 21 BY MR. WOODS: 22 Q So all right. So your name is 23 Jacqueline Brown? 24 A Yes. 25 Q Where do you live, ma'am? 5 1 A I live here in Miami, Florida. 2 Q How long have you lived here in Miami? 3 A I believe maybe 15 years. 4 Q What was your last education? Where did 5 you last go to school? 6 A I went to school at Florida State 7 University. 8 Q Seminoles. All right. Did you get a 9 Bachelor's Degree there? 10 A Yes. 11 Q In what? 12 A Social sciences, international affairs, 13 political science background. 14 Q Do you have any medical training at all? 15 A Medical training as in what exactly? 16 Q Do you have any formalized medical Page 4

5 17 training? 18 A Meaning? 19 Q Did you go to any educational 20 institution and take courses that dealt with 21 anything having to do with medicine? 22 A No. I guess are you referring to 23 working for pharmaceutical companies, going 24 through course study through the companies? 25 Q Good question and I'm breaking it down 6 1 into formalized or on the job training. First of 2 all, you didn't get any -- at an educational 3 institution you did not receive any medical 4 training like at Florida State you didn't get 5 medical training? 6 A Correct. 7 Q Did you receive some in-house training 8 from companies that you worked for? 9 A Yes. 10 Q Tell me about that. 11 A I was in pharmaceutical sales before for 12 I think how many years. Maybe 12 years in 13 pharmaceutical sales. 14 Q What company did you work for then or 15 companies? 16 A Pfizer. 17 Q Where did you go after Pfizer? 18 A I went to this company Arthrocare. 19 Q When did you start with Arthrocare? 20 A I started with them March 19th, Page 5

6 21 Q You started with Arthrocare on 22 March 19th You're no longer employed with 23 them I take it? 24 A No, I left with them I gave my notice in 25 July, two weeks after I left I started a new 7 1 company in August so I'm not sure the exact date I 2 resigned but I was only with them a short period 3 of time. 4 Q You resigned sometime in July or August? 5 A I gave two weeks and I left. I started 6 working for another company in August. August I 7 think the 6th. 8 Q What was your position at Arthrocare? 9 A I was a sales rep for Miami Dade County. 10 Q Were you geographically restricted for 11 the most part to Miami Dade? 12 A Yes, I only worked in Miami Dade. 13 Q Who did you report to? 14 A I reported to Chris Carew. 15 Q Can you spell that name? 16 A C-A-R-E-W. 17 Q C-A-R-E-W? Chris? 18 A Yes. 19 Q That's a male? 20 A Yes. 21 Q Where was he located? 22 A He's located in Austin, Texas. 23 Q What was his position? 24 A He was the regional manager. 25 Q Do you know the areas his region Page 6

7 8 1 encompassed other than your own of Miami Dade? 2 A Honestly I can't remember his exact 3 territory to tell you the truth. He did have 4 several states. 5 Q Was he a regional manager or a regional 6 business development manager or are they the same 7 thing? 8 A I believe it was regional manager. 9 Q Was he with a particular unit in 10 Arthrocare, you know that Arthrocare had several 11 different units? 12 A Right. We were the spine division. 13 Q Do you know who he reported to? 14 A He reported to Trey Bawman. 15 Q How do you spell Trey's name? 16 A T-R-E-Y Bawman. I believe it's just 17 B-A-W-M-A-N. I'm not sure. 18 Q What was Trey Bawman's position? 19 A He was the national sales manager. 20 Q Do you know who he reported to? 21 A I'm trying to think of his name. 22 Applegate but I don't remember his first name. 23 Q David Applegate? 24 A That's the name. 25 Q Vice president of the spine unit of 9 1 Arthrocare? 2 A Um-him. Page 7

8 3 Q That's a yes? 4 A Yes. 5 Q Do you know who any of the other sales 6 representatives for Arthrocare, do you know who 7 any of them were in Florida other than yourself? 8 A The only one I remember is Jackie Marsh. 9 That's it. 10 Q Do you know what her territory was? 11 A Her territory was Ft. Lauderdale north. 12 I'm not sure how far she went. Maybe Vero Beach. 13 I don't know her exact territory. 14 Q Was there a predecessor in your position 15 in Miami Dade County? 16 A Yes. She had the Miami Dade County 17 territory. 18 Q Jackie did? 19 A Yes, she did. It was her territory 20 before. 21 Q So until your position was formerly 22 filled by Jackie Marsh? 23 A Correct. 24 Q Then when you came on on March 19th you took on the territory of just Miami Dade 10 1 County? 2 A Uh-hum. 3 Q That's yes? 4 A Yes, for the four months, yes. 5 Q How did you learn of the position? 6 A I applied on line. I had wanted to get 7 into medical device sales. Page 8

9 8 Q Where did you see the ad or 9 advertisements? 10 A Honestly I don't know. 11 Q Do you have any idea where you became 12 aware of the job? 13 A I believe it was through a recruiter 14 called me about the position. 15 Q Do you know who the recruiter was? 16 A Honestly I don't remember his name. I 17 know that he was located somewhere in Texas and he 18 called me but I don't remember his name. 19 Q Did they contact you or did you respond 20 to an advertisement? 21 A I'm not sure. Could have been either 22 way. I was applying for many different positions 23 at that time so it's hard to say. 24 Q But you wanted to get into sales for 25 medical devices? 11 1 A Yes, I heard spine sales was the way to 2 go in medical devices. 3 Q Did you do any -- before you ultimately 4 accepted the job did you do any kind of 5 investigation or research or due diligence on 6 Arthrocare or anything like that? 7 A Unfortunately I asked doctors about 8 working for Arthrocare and they said oh, it's a 9 very good company. However I did not realize that 10 what they were speaking of was the sports medicine 11 side, not the spine side. I didn't realize there Page 9

10 12 was a difference between the two. 13 Q So you being in the business I guess and 14 you were already working down here in Miami Dade 15 County; right? 16 A Yes, in pharmaceutical sales. 17 Q So you knew doctors down here? 18 A Yes. 19 Q You're kind of involved in the medical 20 community as part of your career? 21 A Yes. 22 Q You called on some of those doctors to 23 ask them about Arthrocare? 24 A Uh-hum. 25 Q Yes? 12 1 A Yes. 2 Q And they told you about Arthrocare but 3 you said that you learned that they were talking 4 about the sports medicine division? 5 A After I had already accepted the 6 position. 7 Q How did you learn that the doctors that 8 you were asking about Arthrocare were talking 9 about the sports medicine division as opposed to 10 another division like the spine division? 11 A That was after I accepted the position 12 when I called on my spine surgeons they said oh, 13 you should have taken the sports medicine side. 14 Q Did they tell you why? 15 A Yes, because the product was very 16 difficult to sell. Page 10

11 17 Q When you say the product are you talking 18 about the Arthrocare SpineWand? 19 A Yes. 20 Q Did they say why the product was 21 difficult to sell? 22 A Insurances considered it just a -- I 23 can't think of the exact word but it has not been 24 medically proven. 25 Q Approximately how many spine surgeons 13 1 told you that? 2 A Two spine surgeons told me that. 3 Q Do you remember who they were? 4 A Dr. Jonathan Hyde. 5 Q Who else? 6 A And doctor -- also -- he's not really a 7 spine surgeon but he does spine, orthopedic spine. 8 The other one is Dr. Dennis Zaslow. 9 Q Did they tell you anything else about 10 Arthrocare, the SpineWand or the procedure? 11 A Well, I know Dr. Zaslow did use the 12 procedure. Dr. Jonathan Hyde did not. 13 Q Now, Hyde is located in Dade County? 14 A Yes. Very well respected spine surgeon. 15 One of the top spine surgeons. 16 Q And Zaslow is not -- is he located where is he located? 18 A He is located here in Coral Gables, 19 Florida. 20 Q Then he has a Broward County office too? Page 11

12 21 A I think so. 22 Q All right, but you talked to them after 23 you accepted the position? 24 A Yes. 25 Q When you accepted the position the 14 1 position was specifically for spine unit? 2 A Yes. 3 Q Your position was going to be sales for 4 the spine division? 5 A Right. 6 Q And specifically what were you going to 7 be selling, the SpineWand? 8 A The SpineWand. Actually there is two 9 different divisions of spine area. There's two 10 spine sides. I just forgot about the other side. 11 Q Tell me what the spine sides are. 12 A I honestly don't remember. That's the 13 thing. I don't really remember. I know they sold 14 other spine products but I don't even know what 15 they were. 16 Q Well, which A I think it was -- I don't remember 18 honestly. That's a sports -- I can't remember. 19 It was like a paralacks division but I don't know 20 what that is. 21 Q In any event your position was going to 22 be to sell the Arthrocare SpineWand? 23 A Right. 24 Q You interviewed for the job I take it? 25 A Yes. Page 12

13 15 1 Q Where did you interview, in Austin? 2 A No, here in Miami. 3 Q Who interviewed you? 4 A Chris Carew and Trey Bawman. 5 Q What did they tell you about the 6 position and the interview? 7 A Really that it was a sales position, a 8 medical device position. To call on doctors to 9 get them to use the SpineWand for I guess 10 decompression. 11 Q Up until that point you hadn't had 12 medical device experience; correct? 13 A Correct. 14 Q What else did they tell you about what 15 you would be doing or how you would be doing it at 16 the time of the interview? 17 A No, just as a regular sales position, go 18 out and make calls, see if you can get them to use 19 the product for the doctors, that's it. Basically 20 cold calling accounts. 21 Q Did they tell you why the position was 22 being created down here? 23 A They said yes, because the business there was so much business for Jackie Marsh's 25 territory they needed to add one for Miami because 16 1 she wasn't able to cover the Miami territory. 2 Q They told you she was too busy? Page 13

14 3 A Right. 4 Q Did they ever suggest to you that you 5 meet her to see how she goes about doing her job? 6 A Yes, I had to spend one day with her. 7 Q That was early on in your employment I 8 take it? 9 A Correct. 10 Q And where did you do that? 11 A I went to Palm Beach Lakes Surgery 12 Center. 13 Q How was that arranged? 14 A I was to meet her up there to observe 15 cases. 16 Q So did you follow her around for a whole 17 day? 18 A No, actually we went there just to 19 observe cases and she left and left me there. So 20 I was only really a half day. She never showed 21 and she was supposed to work with me a second day 22 but she never showed either for the second day. 23 That was all my training. 24 Q Lucky you. You went to the Palm Beach 25 Lakes Surgical Center to observe some cases; 17 1 correct? 2 A Yes. 3 Q Your understanding when you went up 4 there is you were going to follow her around the 5 whole day but she didn't really complete that part 6 of it? 7 A Exactly. Page 14

15 8 Q You were supposed to follow her around 9 the second day and she didn't show for that? 10 A Exactly. 11 Q You got about a quarter of the time you 12 were expecting to get out of her? 13 A Right. 14 Q You observed some cases. What do you 15 mean by that? 16 A I watched a physician the -- watch them 17 do the procedure with spine wand. 18 Q We're talking about the procedure using 19 the SpineWand that's called the nucleoplasty? 20 A Correct. 21 Q The nucleoplasty is percutaneous disc 22 decompression using the Arthrocare SpineWand 23 that's your understanding; right? 24 A Yes. 25 Q Also generically percutaneous discectomy 18 1 but when using Arthrocare -- 2 A I believe so. 3 Q When we talk about percutaneous 4 discectomy or nucleoplasty I understand we're 5 talking about the procedure using the Arthrocare 6 SpineWand? 7 A I guess, yes. As you're saying I guess. 8 Q How many procedures did you watch? 9 A Honestly I don't remember. 10 Q At least one whole procedure? 11 A At least. Page 15

16 12 Q Were you in the procedure -- did you 13 watch from inside the procedure room? 14 A Yes. 15 Q Who else was in there with you? 16 A There were -- I don't know who there was 17 of course -- I don't know the names of the people. 18 I think one was Jane Biceline but I don't remember 19 who the other surgeon was that did a procedure. I 20 don't know. 21 Q Do you know if it was Dr. Jeffrey 22 Coogler? 23 A It may have been, I don't know. 24 Q Can you describe the surgeon? 25 A No Q But you know Dr. Biceline was in there? 2 A Yes. 3 Q Were you told anything about the 4 procedure before you watched it or did you just 5 stand there and watch it? 6 A No, she explained it but I couldn't 7 explain it to you today. I really don't know. 8 Q When you say "she" are you talking about 9 Dr. Biceline? 10 A Yes, Dr. Biceline. 11 Q So she explained to you what she was 12 going to do? 13 A Um-hum. 14 Q Yes? 15 A Yes. 16 Q Then she did it? Page 16

17 17 A Yes. 18 Q And you watched? 19 A Right. 20 Q Did another doctor come in and do 21 something after she had done something? 22 A Yes. 23 Q That's the one you don't know who it is 24 but another doctor did come in? 25 A Correct Q Just from your observation what did that 2 doctor do after Dr. Biceline was done with what 3 she was doing? 4 A Just placed the wand into a spinal 5 needle. 6 Q How long did that take that doctor? 7 A Honestly I don't remember. 8 Q Do you know how long the one whole 9 procedure with Dr. Biceline and the other doctor 10 took? 11 A Honestly I don't remember. It was so 12 long ago. I don't know. It would be based on 13 doctor's skill level. I don't remember. 14 Q Did Dr. Biceline do anything after the 15 other doctor came in and did what he was going to 16 do or did she leave and just stand back or what? 17 A Not that I'm aware of. I think she 18 stood back I believe because there was other 19 procedures after I think but I can't be clear on 20 that. Page 17

18 21 Q Did you meet anybody else at the surgery 22 center when you were there that day? 23 A That day. 24 Q You saw Jackie Marsh and you know you 25 saw Dr. Biceline. You saw A I saw Michael Denker. 2 Q Michael Denker? 3 A That's it. 4 Q Do you remember meeting anybody else? 5 A There were a few people in the office 6 but I don't remember meeting any of those people 7 in the office. 8 Q Was that the only time that you ever 9 went to the Palm Beach Lakes Surgical Center? 10 A I went there actually once before. I 11 remember when I was interviewing I went up there 12 one day. That was it. 13 Q What did you do the time before when you 14 went there for the interview? 15 A I actually had to meet with Mike Denker. 16 Q So as part of the interview process you 17 had to meet Mr. Denker in addition to the separate 18 interview that you had with the two other 19 gentlemen? 20 A Right, I just remembered that. 21 Q So when you went up to the Palm Beach you met Mr. Denker first? 23 A No. 24 Q You met the other two first? 25 A Correct. Page 18

19 22 1 Q Then you met Mr. Denker? 2 A Correct. 3 Q After you got the job that's when you're 4 talking about going up with Jackie Marsh to watch 5 the procedure? 6 A Correct. 7 Q Was there anybody else other than those 8 three gentlemen that you interviewed with prior to 9 getting the job? 10 A No. 11 Q All right, you met with Mr. Denker at 12 the Palm Beach Lakes Surgical Center? 13 A Correct. 14 Q What was his position? 15 A I was told that he was the -- one of the 16 national sales managers for Arthrocare. I don't 17 remember his title actually. Maybe it wasn't maybe -- I don't remember his actual title to tell 19 you the truth. 20 Q Did he meet with you in an office at the 21 surgery center? 22 A Yes. 23 Q Does it appear to be his office? 24 A It was more of a conference room. 25 Q Do you know if he was typically there or 23 1 he came up there just to see you or what? 2 A I have no idea. Page 19

20 3 Q What did he tell you about the position 4 that you were interviewing for? 5 A No, that it was a sales position, 6 calling on doctors to sell the SpineWand. 7 Q Did he tell you anything else about the 8 position that you can recall? 9 A No. I know he had talked something 10 about the DiscoCare model but of course at that 11 time I didn't understand what that was as today I 12 really don't understand what it is. 13 Q But he mentioned the DiscoCare model to 14 you? 15 A Um-hum. 16 Q That's a yes? 17 A Yes. 18 Q At that time did he give you any 19 description of what the DiscoCare model entailed? 20 A No. 21 Q Did he tell you that you would need to 22 implement the DiscoCare model as a part of your 23 job to sell the device though? 24 A No, I didn't have to in my position at 25 that time. I don't know if things have changed 24 1 with the company but at that time I worked there. 2 Q I want to see if I can understand 3 correctly though. You interviewed with Mr. Denker 4 about the position for Miami Dade County to sell 5 the SpineWand? 6 A I actually already received the 7 position. They wanted me to meet with him. So it Page 20

21 8 wasn't really an official interview. I had 9 already received the position. They wanted me to 10 meet him as well. 11 Q Thank you for clarifying that. I 12 thought it was an interview. To me A Interview process. I already accepted 14 the position. They wanted me to go there and meet 15 with him as well. 16 Q So scratch the part about the interview 17 but they wanted you to go meet with him and so you 18 did? 19 A Uh-hum. 20 Q Correct? 21 A Yes. 22 Q And then in talking with him he talked 23 to you about selling the SpineWand? 24 A Correct. 25 Q Was he of the same understanding you 25 1 were going to have Miami Dade County and Jackie 2 Marsh was going to retain everything north of 3 Miami Dade County in Florida? 4 A Yes. 5 Q Then he mentioned to you the DiscoCare 6 model at some point? 7 A Yes. 8 Q And in what context, what else do you 9 recall him mentioning about that? 10 A New third party billing they had 11 implemented at that particular surgery center they Page 21

22 12 were using. 13 Q So he was conveying to you that at that 14 surgery center they had a new billing model that 15 he called the Discocare model? 16 A Correct. 17 Q But you also mentioned that it was your 18 understanding you were not going to be 19 implementing it down here; is that correct? 20 A You didn't have to. I guess if you were 21 to sell the product direct you can sell the 22 product directly to the company or you could go 23 through a third party billing if it was not 24 approved to go through the company. The product 25 was very hard to sell because it wasn't approved 26 1 most of the time. 2 Q You mentioned that he said the DiscoCare 3 model was a new third party billing model that 4 they were implementing at the Palm Beach Lakes 5 Surgical Center for third party billing. I 6 probably know what you mean by that and you 7 probably do and Mr. Cooksey probably does what do 8 you mean by third party billing? 9 A Well, as far as being in pharmaceutical 10 we would consider third party billing to be you 11 have your national companies and then you have a 12 third party billing company. That's how I 13 understood it. I don't understand what they were 14 calling it as a third party billing. That's how I 15 understood it third party meaning a separate type 16 of billing company. That's all I know. Page 22

23 17 Q What else did he tell you about the 18 DiscoCare model, Mr. Denker? 19 A He really didn't say much to tell you 20 the truth about the billing company. They just 21 had it. They could help you get -- have 22 physicians send their business that way. If you 23 were unable to have them approved that's all that 24 I know. 25 Q But did you leave with the impression 27 1 that the DiscoCare model is something that you 2 could either use or not use? 3 A Correct. 4 Q So you weren't ordered to use it, you 5 were told it was available to you if you wanted to 6 use it? 7 A Correct. 8 Q Did you ever follow up to find out any 9 more about what it entailed to see whether you 10 would want to use it to try to sell SpineWands? 11 A Well, here in Dade County when I would 12 call my physicians and my doctors third party 13 billing was not acceptable at all the hospitals 14 and at surgery centers you were unable to use they weren't able to get it approved so you can 16 only do the surgery procedure in hospitals 17 therefore you could not use DiscoCare billing and 18 I never used DiscoCare billing. 19 Q So when you say third party billing 20 wasn't approved down here what do you mean? Page 23

24 21 A The hospitals just said they didn't like 22 to use third party billing. They wouldn't go 23 through third party billing. That's all I know. 24 Q If I understand correctly then the 25 hospitals or whoever down in Dade County was not 28 1 going to agree at least or to participate in 2 having some other party billing and medical device 3 they used? 4 A Correct. 5 Q So in other words down in Dade County 6 people wanted to buy the device and roll it into 7 their fee or how were they saying this they were 8 going to bill it? 9 A I would charge the company directly 10 which is how I billed for everything. You charge 11 the company directly. 12 Q So in other words, down in Dade County 13 Arthrocare would directly sell to a hospital or 14 some kind of provider and that provider would get 15 a bill from Arthrocare for certain amount? 16 A Correct. 17 Q Do you know anything about how they 18 would turn around and whether they would bill it 19 or roll it into their fee or what? 20 A No, I don't know what you're talking 21 about. Let me clarify something. I didn't have 22 any business down here in Dade County for the few 23 months I worked. You just stood and observed 24 cases that already had bills so I didn't have any 25 business going through hospitals. I went to Page 24

25 29 1 hospitals and talked to them to set up when you 2 start a new position you go in, you give them your 3 information, fill forms out, your card and all of 4 that so the company you find out what the rules 5 and policies are of the company. That's how I 6 know that information and I never did any surgery 7 cases in any hospitals. 8 Q That kind of cut a little bit out? 9 A Yes. 10 Q Basically you didn't complete any sales 11 of SpineWand down here? 12 A No, nothing. 13 Q No, is that correct? 14 A I didn't have any cases down here. 15 Q But your understanding was going to be 16 that the way it was going to happen is you were 17 going to sell from Arthrocare to a hospital or a 18 surgeon and they were going to pay Arthrocare a 19 fee for the SpineWand? 20 A Yes. 21 Q Did you ever propose to any hospitals, 22 physicians or surgery centers to do third party 23 billing and then they rejected it? 24 A No, I didn't propose. 25 Q Did they tell you in advance they 30 1 wouldn't do it or that the only way they would do 2 it is a direct bill? Page 25

26 3 A Yes, I said -- I showed them these are 4 the forms I received from the company because I 5 did not know -- this is what I was received being 6 new to spine device or device sales they gave me 7 those forms you could use and we cannot use the 8 third party billing I said fine. Well, we just do 9 this do everything direct. That's how it was set 10 up. 11 Q So then when you would go to hospitals, 12 surgeons or surgery centers in Dade County and 13 talk to them or try to make a sales call you would 14 present certain forms to them that entailed third 15 party billing and you were uniformly told they 16 weren't going to do that; is that fair to say? 17 They weren't going to participate in third party 18 billing? 19 A I didn't know when I first started when 20 I handed everything out I didn't know they were 21 not going to start that until after. 22 Q Ultimately you learned that nobody that 23 you tried to sell to in Dade County was going to 24 agree to the third party billing system? 25 A Exactly. There was no one that did 31 1 participate in that. 2 Q So in Dade County nobody agreed to 3 pay -- participate in the third party billing 4 system known as the DiscoCare model? 5 A Correct. 6 Q So consequently you were not going to be 7 able to sell anything in that fashion? Page 26

27 8 A No, actually no thinking back I may have 9 had two surgery cases that's all but of those 10 cases they were not DiscoCare cases. 11 Q They were direct bills? 12 A They were direct only. 13 Q And what were -- when you would -- those 14 cases, you would directly sell an Arthrocare 15 SpineWand to a medical provider; correct, you 16 would sell A No, you have the equipment and that gets 18 sold to the hospital. The hospital purchased that 19 equipment for the doctor and that gets sent 20 through however it is. 21 Q So then you would sell an Arthrocare 22 SpineWand to a hospital; right? 23 A Yes. 24 Q Then the hospital would receive a bill 25 from Arthrocare? 32 1 A Correct. 2 Q Would it be generated out of your office 3 or Texas or where? 4 A I believe it was out of Texas. 5 Q You were selling this so you know I 6 assume how much they were going to cost when they 7 were direct billed by Arthrocare? 8 A Yes. 9 Q How much were they going to cost when 10 they were direct billed by Arthrocare? 11 A I believe $1,400 I think. Page 27

28 12 Q Do you know anything about how the 13 hospitals whether -- how the hospitals would bill 14 their procedures? 15 A No. 16 Q So you only know the part about you 17 would sell a SpineWand to a hospital, they would 18 be charged $1,400 by Arthrocare? 19 A Right. That's all I know. I believe 20 that was charged for that. I don't know. 21 Q Well, it was your understanding that it 22 was about $1,400? 23 A Yes. 24 Q Did you ever talk to Chris Carew about 25 the Discocare model? 33 1 A Yes. 2 Q Did you ever talk to Trey Bawman about 3 the Discocare model? 4 A No, briefly, no. He tried to explain it 5 to me but he didn't explain anything. Actually 6 Chris Carew could not explain it to me either. I 7 was never trained on the procedure. I was never 8 trained on the Discocare model. 9 Q You did observe a procedure or a couple 10 procedures up at the surgery center; right? 11 A Yes. 12 Q And was that the only time you ever 13 observed any procedures? 14 A No, I observed procedures with 15 Dr. Dennis Zaslow. 16 Q Did you ever sell him a SpineWand? Page 28

29 17 A No, everything was purchased through a 18 surgery center in Palm Beach somewhere. 19 Q So he already had it? 20 A Correct. 21 Q Why did you go watch a procedure with 22 Dr. Zaslow, what precipitated that? 23 A Because I was new and I didn't 24 understand what the procedure was exactly so it 25 was helpful to get a better understanding and 34 1 learn the procedure. 2 Q Did you feel like you were getting 3 inadequate training? 4 A No. 5 Q Did you feel like your training thus far 6 had been inadequate? 7 A Of course. I had no training. 8 Q You mentioned also that when you were 9 told you were going to be able to use the 10 DiscoCare model if you wanted to, that you would 11 take the -- some forms you mentioned to hospitals. 12 Later you learned they wouldn't participate in 13 that. What kind of forms or documents or 14 materials did you give to hospitals that pertained 15 to this third party billing model, do you 16 remember? 17 A No, they were not any forms. When you 18 go to a hospital you have to fill your name out 19 and your information. That's all and I told them 20 about there was also third party billing but I Page 29

30 21 don't believe I left anything from Discocare at 22 those offices. I left information in doctor's 23 offices. That's all. 24 Q So then in the hospitals then you would 25 call on them in order to try to sell the 35 1 SpineWand. You would tell them about the third 2 party billing what you knew about the third party 3 billing model that ultimately everybody said they 4 weren't going to do that? 5 A Well, I did not get any physicians to 6 even speak to me. Everything was just left at the 7 front door except for the few I had called on 8 previously that's it. The few there is. 9 Q Nobody ever accepted any attempts at any 10 kind of third party billing model down here? 11 A Correct. 12 Q Only the thing ever accepted was a 13 couple direct sales? 14 A Right. 15 Q Now, did Chris Carew when you 16 interviewed with Chris Carew and Trey is it Bowen? 17 A Bawman. 18 Q You know you were interviewing for a 19 position to sell SpineWands. Did they tell you 20 anything about how you could go about it or how 21 the company might support you or help you succeed? 22 A No. 23 Q Did anybody from Arthrocare ever talk to 24 you about how you might go about selling the 25 SpineWand to help you succeed? Page 30

31 36 1 A No. 2 Q Did Arthrocare ever give you any 3 materials for you to review that would give you 4 any ideas on how to go about selling the 5 SpineWand? 6 A There was information on their internet 7 but that is all for you to pull down information 8 on how to sell. 9 Q Now, when you say on the internet 10 there's the internet A The company information, their system. 12 Their internet system. 13 Q So then there's the internet that is out 14 there for everybody to see, company can have a Web 15 site and you or I without any kind of password 16 would look up their Web site. Did Arthrocare have 17 more of an internal intranet however? 18 A I believe everything was publicly out 19 there that they had. As far as I recall. 20 Q Did you ever get any kind of log in or 21 password or I.D. to get into anything electronic 22 with Arthrocare? 23 A Yes, I had a company laptop. 24 Q Did you have any kind of an I.D. or 25 password that would get you on to the Arthrocare 37 1 computer network system? 2 A Yes. Page 31

32 3 Q What was that called, that internal 4 system that you could access with a password? 5 A I have no idea. 6 Q What kind of information did you see on 7 it? 8 A They had of course information about -- 9 there's DiscoCare forms that you could find. 10 There was information about spine. I guess the 11 model of the bones, anatomy. I don't remember. 12 That's about it. I don't remember what else was 13 on there. 14 Q So if you would log in and use a 15 password you would have access to some DiscoCare 16 forms and whatnot, none of which you were ever 17 able to ultimately utilize though? 18 A Correct. 19 Q That's correct; is that correct? 20 A Yes. 21 Q Do you know if the forms described in 22 any way any kind of process for this DiscoCare 23 model? 24 A They had processes on there I guess how 25 to go about filling forms out and who to contact 38 1 at DiscoCare but as far as knowing exactly how to 2 do that, no. 3 Q They had information on there that 4 pertained to DiscoCare billing model? 5 A Correct. 6 Q Which you ultimately were never able to 7 successfully use? Page 32

33 8 A Right. 9 Q What did Mr. Carew tell you about the 10 DiscoCare model? 11 A He told me he was new to this division 12 and he didn't really quite understand it himself. 13 Q Was that it? 14 A That was it. We never discussed it 15 because again it was something I was not using in 16 my territory. 17 Q What about Mr. Bawman, did he ever 18 discuss the Discocare model with you? 19 A No. Never discussed it. 20 Q Did you ever discuss it with anybody 21 else at Arthrocare? 22 A No. 23 Q Not Mr. Applegate? 24 A No, never talked to him. 25 Q You never talked to him period; is that 39 1 correct? 2 A No. 3 Q No, it's not correct? 4 A No, I have never talked to him. I think 5 he called me to say welcome aboard when I first 6 started and that was the only time I spoke with 7 him. 8 Q Then was it your understanding when you 9 talked to Mr. Denker that he was an Arthrocare 10 employee? 11 A Yes. Page 33

34 12 Q Do you know whether or not he was a 13 DiscoCare employee? 14 A I don't know what his role was. I 15 didn't figure that out while I worked there. I 16 know he participated with Discocare but he was an 17 Arthrocare employee. 18 Q Did he indicate to you that he had 19 something to do with implementing the DiscoCare 20 model up there at that surgery center in Palm 21 Beach? 22 A Yes. 23 Q On behalf of Arthrocare? 24 A I guess. 25 Q Well, you knew him to be an Arthrocare 40 1 employee? 2 A Right. 3 Q You don't know one way or another 4 whether he had any kind of employment relationship 5 or contract relationship with DiscoCare? 6 A No. 7 Q So if he did that's just unknown to you? 8 A Right. 9 Q But you did ascertain from your 10 discussion with him that he was in business even 11 if it was on behalf of Arthrocare implementing the 12 DiscoCare billing model for that Palm Beach Lakes 13 Surgical Center; is that correct? 14 A I guess. 15 Q Go ahead. 16 A I don't understand what you're saying. Page 34

35 17 Can you go back again, please? 18 Q If you don't understand the question say 19 so. He indicated to you that he was the one that 20 told you about the DiscoCare model; right, that 21 was a third party billing model? 22 A Yes. 23 Q And that they were implementing it up 24 there at that surgical center; correct? 25 A Correct Q And did he indicate to you that he had a 2 role in implementing that model? 3 A I don't think he ever said he had a role 4 in implementing it. I knew he was a part of that. 5 Q Did he talk to you about what, if any, 6 role Jackie Marsh had in implementing that third 7 party DiscoCare model? 8 A No, all I know she was a sales rep in 9 that area and that she was using the model in her 10 territory and that's all I know. 11 Q So Mr. Denker told you she was the sales 12 rep and she was using the DiscoCare model in that 13 territory? 14 A Correct. 15 Q Did they indicate whether that was the 16 only way they were doing business up there or not? 17 Did they indicate whether in that surgery center 18 that was the way they were now doing business, 19 that it had sort of been adopted? 20 A It seemed to be. Page 35

36 21 Q He talked about it as if that was just 22 the way they were doing business at the surgery 23 center? 24 A It seemed but that is just an opinion 25 and I can't state whether or not that would be 42 1 true or not. I don't have actual fact on that. 2 Q He did indicate they were using it 3 there? 4 A Yes, they were using it there I know. I 5 don't know if it was solely what they were using I 6 can't say that. 7 Q That was my next question. He didn't 8 say one way or another whether it was exclusive 9 but made the statement we're using the model here? 10 A Correct. 11 Q Not followed by and nothing else period 12 just we're using the model here? 13 A Correct. I can't say. 14 Q Did he give you any further description 15 of what the DiscoCare model was, he told you it 16 was a third party billing model, called it the 17 DiscoCare model. Did he say anything else about 18 what it entailed or how you could do it? 19 A I just know this was a third party 20 billing company. If you were not able to get the 21 product approved they would try to get the product 22 approved for your doctors to approve the sale of 23 it. 24 Q Do you know what kind of cases it was 25 being used on in terms of who the anticipated Page 36

37 43 1 payor was going to be? 2 A Uh-hum. I know that it was used for 3 cases where there is not insurance, some personal 4 injury cases. Insurance that did not go through. 5 Let me clarify. Insurances not being approved 6 regularly. Had to go through there or some 7 personal injury cases. 8 Q So it was explained -- Mr. Denker 9 explained to you they would use it on personal 10 injury cases or cases which did not get approved 11 for payment could try the DiscoCare model? 12 A Correct. 13 Q Did they indicate to you anything about 14 what percentages those were as far as in terms of 15 what percentage were personal injury cases and 16 what percentage were some sort of managed care? 17 A No, I do not know. 18 Q Did you ever learn anything about what 19 percentage of -- proportion of cases up there in 20 Palm Beach County were personal injury cases? 21 A No. 22 Q I mean you have experience in selling 23 medical products, pharmaceutical, now a little bit 24 of experience which you've described not being too 25 much but a little bit in selling medical devices? 44 1 A Yes. 2 Q You know what a preapproval is in Page 37

38 3 managed care of an expense or a device or 4 something like that? 5 A Prior authorization? 6 Q Yes. 7 A Yes. 8 Q So in the case of managed care be it 9 like worker's compensation or health insurance or 10 an HMO there could be preauthorization for a 11 procedure and the expense; correct? 12 A Yes. 13 Q Do you have any experience in selling 14 products, medical products or devices as it 15 pertains to personal injury litigation cases? 16 A No, because none of my physicians in 17 Dade County participated in personal injury. The 18 only doctor that did was Dr. Zaslow but again I 19 didn't have any of his cases. I just observed 20 cases. I didn't put any of the paperwork through 21 for any of that stuff. I don't know how it 22 worked. None of the doctors would participate. 23 Q Are you aware of there being any -- in 24 whatever experience you have in selling medical 25 supplies, devices or products are you aware of any 45 1 preauthorization procedure in a personal injury 2 case? 3 A Preauthorization? 4 Q Yes. I mean who would -- 5 A I don't know. I'm not sure about that. 6 Q Did you ever have any conversations with 7 anybody else at Arthrocare about the DiscoCare Page 38

39 8 model other than your conversation with 9 Mr. Denker, Mr. Carew telling you he was new to 10 the division and didn't know much about it. 11 Anybody else from Arthrocare ever talk to you 12 about the DiscoCare model? 13 A No, not that I Q Did you ever talk to anybody that you 15 knew to be from DiscoCare? Did you understand 16 that to be a separate business entity or 17 something? 18 A I did call the office because I was 19 asking questions about when doctors asked me about 20 the DiscoCare model I was calling just to try to 21 figure out what it was. I did call and speak to 22 the ladies that were the secretaries there but I 23 don't even remember who they were. That's all. 24 Q Do you know who you talked to about A No, I don't remember. Such a short 46 1 period of time. 2 Q Were any of them -- so you were calling 3 DiscoCare to learn a little bit more about the 4 DiscoCare model, you got a hold of some people on 5 the phone. Were they able to give you any more 6 information about what the DiscoCare model 7 entailed? 8 A Just that it was again a third party 9 billing company. If you were unable to get the 10 procedure approved they would try to get the 11 procedure approved for you. That was it. Again I Page 39

40 12 don't know much more. 13 Q Did you ever talk to anybody else from 14 DiscoCare or employed by DiscoCare? 15 A No, I don't remember meeting anybody 16 else. 17 Q I'm going to ask you names see if you 18 remember in any context you remember these names 19 or ring a bell. Do you know whether you ever met 20 Dr. Jeffrey Coogler? 21 A I'm not sure. 22 Q Do you know you've ever talked to him? 23 A I don't know. I don't think so. 24 Q You don't know one way or another 25 whether he was the surgeon that came in to do that 47 1 procedure? 2 A He could have been. I don't know. 3 Q If you saw him you weren't able to 4 identify him? 5 A I wouldn't recognize him if I saw him 6 today, no. 7 Q Do you know who Jonathan Cutler is? 8 A No. I've heard the name but again I 9 don't know who he is either. I wouldn't recognize 10 him if I saw him. 11 Q Do you know whether he was the owner of 12 DiscoCare? 13 A I knew he was the owner of Palm Beach 14 Lakes Surgery Center. 15 Q Do you know who the other owners were? 16 A No. Page 40

41 17 Q Where did you learn he was an owner of 18 that? 19 A I guess when I was there at the surgery 20 center they told me he was the owner of the 21 surgery center. 22 Q Are you aware even as you sit here today 23 that Jonathan Cutler was the owner of DiscoCare? 24 A Am I aware? 25 Q Yes. Even like as of today have you 48 1 ever learned that Jonathan Cutler owned DiscoCare? 2 A I've heard after the fact that he was 3 the owner because there was a Web site posting. I 4 was on Medzilla and when you're on Medzilla you 5 can go in there and it says something about 6 Arthrocare reps write in about companies. Should 7 we go work for this company. Let me tell you 8 about this company go to 9 always depositions, everything with the company. 10 Everything that was going on so if you need to 11 find any information out it's all there. 12 Everything that was used. 13 Q While you were employed with Arthrocare 14 you didn't know Dr. Cutler owned DiscoCare? 15 A No, did not know. 16 Q Do you know or do you know who Jackie 17 Walker is? 18 A Jackie Walker that name sounds familiar. 19 Q Do you know if you ever dealt with her 20 either at the surgery center or at DiscoCare? Page 41

42 21 A She would have been one of the ladies at 22 Discocare. 23 Q Do you know what her role was? 24 A I think one of the ladies that must have 25 processed the DiscoCare forms Q Did you ever meet any lawyers up in Palm 2 Beach County? 3 A No. 4 Q Did you ever meet with Jackie Marsh 5 other than that one day she stuck around to watch 6 a procedure or two and left? 7 A I talked to her on the phone after that 8 maybe once. I had to cover some cases for her. 9 That was it. 10 Q What do you mean by cover cases for her? 11 A She was out of town and needed someone 12 to come somewhere. I don't remember where it was. 13 Q What did covering a case A Just go watch. Stand there and watch 15 the case. I had to bring the SpineWands to that 16 surgery center. 17 Q Was in the Palm Beach Lakes Surgery 18 Center again? 19 A No. 20 Q Where was this then? 21 A I don't remember. Somewhere in 22 Ft. Lauderdale area. I don't remember. 23 Q Was it required by Arthrocare that some 24 representative of Arthrocare be present at 25 procedures? Page 42

43 50 1 A I don't believe so. I think they needed 2 the SpineWands. That's why I had to go for the 3 case. 4 Q I was just your -- about your 5 terminology of covering the case? 6 A Covering the case would mean I guess 7 just going to bring -- need to bring the 8 SpineWands and stand there. Of course I wasn't 9 trained so I didn't really know much to say during 10 the case to help the doctor. I really just had to 11 stand there because I had no training. 12 Q Did Jackie Marsh call you to ask you to 13 do it for her as a favor? 14 A Yes. 15 Q Did she tell you what she needed you to 16 do other than bring a SpineWand? 17 A No. 18 Q She just said bring a spine wand? 19 A All the paperwork was done just to bring 20 those there. That was it. 21 Q So you were bringing a SpineWand that I 22 guess apparently whoever was going to do this 23 procedure didn't already possess because you were 24 bringing it for them to use it that day; correct? 25 A Correct Q Did you have some SpineWands in stock 2 down here somewhere? Page 43

44 3 A They gave you a trunk stock. 4 Q Arthrocare gave you a trunk stock? 5 A Um-hum. 6 Q That's a yes? 7 A Yes, correct. 8 Q How large was your trunk stock down 9 here? 10 A I honestly don't remember. 11 Q Is it like a suitcase or is it like a 12 crate or are we talking a couple or a couple dozen 13 or maybe couple hundred? 14 A Maybe a couple dozen, that's all. 15 Q What was your understanding of how it 16 was supposed to work as far as delivery of a 17 SpineWand and the billing of the SpineWand? 18 A How was it supposed to work? 19 Q You brought these people a SpineWand. 20 Did you bring them a bill too? 21 A No, I did not. For Jackie Marsh's case 22 I left my instrument there. The lot number that 23 was used and she was to handle the rest of it. 24 That just came out of my trunk stock lot number 25 was deducted from my stock. It went into her so 52 1 she billed it however she billed it for that 2 physician. 3 Q It's a medical device so all these 4 devices are individually packaged; correct? 5 A Yes. 6 Q What kind of identifying information 7 would they have? Page 44

45 8 A They all have lot numbers. 9 Q Lot number? 10 A Yes. 11 Q Anything else? 12 A Expiration date. 13 Q Anything else on the outside, outer 14 package? 15 A That would be it. I think that's it. 16 Q Now, you knew that when a SpineWand was 17 going to be sold directly by you if you were going 18 to call on someone and say Arthrocare would like 19 to sell you a SpineWand for your procedures or 20 whatever you were able to tell them Arthrocare 21 would directly bill them approximately $1,400? 22 A I would never tell them the price of how 23 much they were being billed for. 24 Q Well, did they not want to know? Did 25 they already know or how did that work? 53 1 A Again I didn't do any of the cases and 2 that was the understanding the price was. The 3 doctor had already received before because these 4 are doctors that had already done the case before 5 with Jackie Marsh before so it was not new 6 business. 7 Q I understand. So none of the two 8 procedures you had down here were people who 9 hadn't bought them before so you didn't have to 10 tell them what they cost? 11 A Right. They had already used it before Page 45

46 12 and that was the price they had used before. 13 Q You knew that for a direct sale the 14 price would be $1,400? 15 A That's what they were charged before. 16 Q Did you ever learn while you were 17 employed by Arthrocare of any difference being 18 charged under the DiscoCare model? 19 A I know catalog price for the product was 20 $7,500 that's what I knew the catalog price. 21 Q What do you mean by catalog price? 22 A I guess the list price of the product. 23 That's what was stated in their catalog. 24 Q In the DiscoCare catalog? 25 A No, the company catalog, Arthrocare 54 1 company catalog. 2 Q Was that a hard copy document or was it 3 on the -- on their internet or both? 4 A I believe -- I only had access to the 5 internet to pull information off the print. 6 That's all I had. 7 Q So you knew that a SpineWand that was 8 going to be sold direct would be $1,400; right? 9 A Yes. 10 Q And you knew that A Actually I didn't know that. That was 12 the set price. Everyone had different prices that 13 were set for their products so $1,400 is what it 14 was sold for that's what I knew it was sold for in 15 my territory. That's all I know. 16 Q So you knew that $1,400 was the price in Page 46

47 17 your territory but you also saw that there was a 18 catalog price of $7,500 if it was a DiscoCare 19 sale? 20 A No, I didn't say that. 21 Q What do you mean? 22 A That was the list price of the product 23 was $7, Q Okay, I don't understand -- can you tell 25 me A I don't understand myself to be honest 2 with you. I don't understand myself. The product 3 I was told when I started the job was $1,400 was 4 the price that it was -- I was to sell the wands 5 for. 6 However there was catalog price on the 7 internet that showed it $7,500. That's all I 8 know. I don't know one way or another about it 9 which he thought in my opinion of mine seemed just -- I couldn't understand it. That's Q Fair enough? 12 A That's all I know. 13 Q That's what you observe you couldn't 14 understand the differential? 15 A Exactly. That's all I know. 16 Q Did you ever have the opportunity to 17 talk to somebody at Arthrocare about the 18 differential, you know the difference between 19 $1,400 that some entities could buy them for and 20 that catalog price of $7,500? Page 47