Free Redacted Document - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR

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EXHIBIT 22

Case 1:04-cv-01258-SLR
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Document 453-2
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INDEX
BY: MR. SITZMAN BY: MR. HENDERSHOT

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IN THE UNiTED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

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3 EXAMINATION
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4 MCKESSON iNFORMATION
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SOLUTIONS, LLC, ) ) PLAINTIFF, ) vs. ) Case No. 04-1258-SLR

PAGE 5, 292 277

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INDEX OF EXHIBITS

9 NTJMBER DESCRIPTION PAGE 10 MM-i Multi-page Expert Report of Mark 5
A. Musen, M.D., Ph.D.
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7 THE TRIZETTO GROUP, INC., )

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DEFENDANT.

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MM-2 Rebuttal Expert Report of Mark
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A. Musen, M.D., Ph.D.; 37 pages MIvI-3 United States Patent Number 5,253,164

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MM-4 Paper entitled 'An Access-oriented
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Negotiated Fee Schedule, The Caterpillar Experience," pages

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VIDEO DEPOSITION OF MARK MUSEN, M.D., PI-LD. Held at Skadden, Arps, Slate, Meagher & Flom 525 University Avenue, 11th Floor Palo Alto, California Tuesday, November 22, 2005, 9:11 a.m.

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349-357

17 MM-S Memorandum Order; 4 pages 18 MIvI-6 PEW Conference Presentation
Managing Physician Fees; 4 pages
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109 173

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MM-7 Vendor Comparison dated 1-18-88; 180 20 1 page 21 MM-8 Exhibit C, Materials Examined; 193
9 pages

22 23 24 REPORTED BY: CHRIS DE GEORGE, CSR. NO. 7069 25
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MM-9 Expert Report of Dr. Margaret
298

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L. Johnson, Ph.D; 30 pages

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APPEARANCES
For the Plaintiff:

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BE IT REMEMBERED that, pursuant to Notice, and 9:11 a.m. thereof, at the Law Offices of Skadden, Arps, Floor, Palo Alto, California, before me, Chris De

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2 on Tuesday, November 22, 2005, commencing at the hour of
Skadden, Arps, Slate, Meagher & Flom, LLP BY: MICHAEL HENDERSHOT and JON SWENSON, Attorneys at Law 525 University Avenue, 11th Floor Palo Alto, California 94301

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4 Slate, Meagher & Flom, LLP, 525 University Avenue, 11th 6 George, CSR #7069, State of California, there personally 7 appeared
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MARK MUSEN, M.D., PH.D., first duly sworn, was examined as is hereinafcer set forth. --oOo--

(650) 470-4500
For the Defendant: GIBSON, DUNN & CRUTCHER LLP BY: MICHAEL A. SITZMAN and DANIEL MUINO, Attorneys at Law One Montgomery Street San Francisco, California 94 104-4505
(415) 393-8221 msitzman).aibsondunn.com

9 called as a witness herein by Defendant, who, being
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02:27 08:39 09:10 09:10 09:10

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Also present: Michael Barber, Videographer

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THE VIDEOGRAPHER: Good morning. My name is Michael Barber. I am a videographer associated with 16 Barkley Court Reporters located at 222 Front Street, 09:11 17 Suite 600, San Francisco, California 94111. The date is 09:11 18 November 22nd, 2005. The time is 9:11 a.m. 09:11 19 This deposition is taking place at Skadden, 09:11 20 Arps, Slate, Meagher & Flom, LLP, 525 University Avenue, 09:11 21 Palo Alto, California 94301 in the matter of McKesson 09:11 22 Information Solutions, LLC, versus the TriZetto Group, 09:11 23 Inc., Case Number 04-l258-SLR. This is the videotape deposition of Mark 09:11 24 09:11 25 Musen, M.D., Ph.D. being taken on behalf of the defense.
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MARK MUSEN, M.D., PH.D.

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10:13 1 database implementer has available a structure provided 10:15

A. It was interesting. I wasn't startled. I

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by the patent that allows mutual exclusivity among conditions to be represented in the database. It is really immaterial to the desi- -- to the entry of the codes into the database as to whether they are specifically medical or non-medical, but the developer can take advantage of both non-medical and medical relationships in building the database. Q. I think what you're saying is it doesn't matter what the definition is of medical/non-medical. It's -- frankly, it can be anything because it's really just a relationship of the codes that's important. MR. HENDERSHOT: Objection. Vague and ambiguous as to -- I think that misstates his testimony. I think he said in -- in developing a system, an automatic system. THE WITNESS: It certainly matters for reimbursement. It certainly matters in terms of building the database in terms of its logical content. From a computational perspective, it doesn't matter, is what I'm saying. BY MR. SITZMAN: Q. How do you distinguish between those products or methods that infringe this claim and those that don't if you don't have a definition of non-medical criteria
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10:15 2 would say that, again, you have to take the claims in
10:15 3 context, and I believe that the attorneys who wrote the 10:16 4 claims were trying to make a statement that the universe 10:16 5 of criteria, both non-medical and medical, applied in
10:16

6

this case. And so I was not startled that the inventors

10:16 7 may not have been completely clear about where the -10:16 8 the boundary line is, but I have a -- I mean I, and I'm 10:16 9 sure the inventors, have good intuition about what the
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differences are. Q. What about others, other people reading the patent and trying to figure out what medical and non-medical means? A. I guess as I read it in the context of the overall set of claims, I view this as a way of the author of the claims communicating that the universe of conditions is covered by the -- the criteria of which the database is capable of representing relationships. I did not read this as a way of necessarily defming rigid boundaries between what is medical and what is non-medical. Q. And I think you used the phrase for that reason, that last point, in terms of a functional perspective, it doesn't matter, then, what the definition or the boundary is between medical and
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10:17 1 in which to say, oh, that system infringes and this 10:17 2 system doesn't? A. Well, I -- I provided a definition which I 10:17 3 think is reasonable and I think is -- would be assumed 10:17 4 by -- by -- by most -- most people that a medical claim, 10:17 5 rather, a criterion which is medical deals with the 10:17 6 10:17 7 procedure applied to the patient as a -- and is a consequence of the medical condition of the patient as 10:17 8 opposed to a non-medical criterion which is a function 10:17 9 10:17 10 of the mechanics of setting up the procedure or of 10:17 11 billing. You had a chance to review the depositions of 10:17 12 Q. the inventors in this case. 10:17 13

non-medical.

MR. HENDERSHOT: Objection. Misstates his testimony as to -- and it's vague and ambiguous as to from a functional perspective. THE WITNESS: From a computational perspective, it doesn't make a difference. BY MR. SITZMAN: Q. And explain to me from the computational perspective. What do you mean when you say from a computational -- from a -- well, why don't you explain
computational? A. [Simultaneously] Okay. That the database that the McKesson product provides allows one to specifij relationships among claims that could be classified in a variety of ways, including medical and non-medical. And so in terms of the processing that's necessary to determine whether claims need to be excluded or edited or whatever, the computations are the same. Now, obviously, when you say functional, that has a legal implication, and whether one wants to include non-medical or medical claims in a particular system as implemented at the site of a particular payer is a matter of the policies of the organization that purchases a system and how it wants claims to be adjusted. So that -- that's -- those are -- those are
Page 56

A. Yes.
Q. Were you at all startled to find out that each of the inventors had no idea what non-medical criteria meant? MR. HENDERSHOT: Objection. Vague and ambiguous as to "startled" and misstates the testimony of the inventors. BY MR. SITZMAN: Q. Well, you read them. Please ascribe whatever adjective you want. But wasn't it interesting at all to you that each of the inventors had no idea what non-medical criteria meant?
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MARK MIJSEN, M.D., PH.D.

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State of CALIFORNIA

County of 3i C'

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I, the undersigned, declare under penalty of
that I have read the foregoing transcript, and I have

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made any corrections, additions or deletions that I was desirous of making; that the foregoing is a true and
correct transcript of my testimony therein.
EXECUTED this
2005, at __________________,

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day of _____________

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(City)
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(State)

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____ , pL
MARK MUSEN, M.D., PH.D.
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MARK MUSEN, M.D., PH.D.

Case 1:04-cv-01258-SLR

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EXHIBIT 23

Case 1:04-cv-01258-SLR
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Document 453-2
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PROCEEDINGS

2 VIDEO OPERATOR: This is the deposition of 3 Mr. George A. Goldberg, taken on behalf of Defendant

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4 in the matter of McKesson Information Systems LLC, 5 Plaintiff, versus Trizetto Group, Inc., Defendant, 6 Case Number 04-1258 SLR, for the U.S. District 7 Court, District of Delaware. 8 This deposition is being taken at the THE TRIZETTO GROUP, 9 offices of Gibson Dunn, 1050 Connecticut Avenue, Defendant. 10 Washington, D.C. The time is approximately 9:03 11 a.m. The date is September 13, 2005. 12 The court reporter is Carmen Smith, on 13 behalf of Barkley Court Reporters, 2040 Main Street, VIDEOTAPED DEPOSITION OF GEORGE A. GOLDBERG 14 Suite 250, Irvine, California. I am the video 15 operator, Larry Flowers, also on behalf of Barkley. 16 The reporter may now swear the witness.
x MC KESSON INFORMATION SYSTEMS,: : Case No. Plaintiff, vs. : 04-1258 SLR
Washington, D.C. Tuesday, September 13, 2005

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17 Whereupon,
GEORGE A. GOLDBERG 19 was called as a witness and, having first been duly 20 affirmed, was examined and testified as follows: 21 VIDEO OPERATOR: Will counsel identify 22 themselves and who they represent. 23 MR. SEGAL: David Segal of Gibson, Dunn & 24 Crutcher on behalf of the Trizetto Group, Inc. 25 MR. SHEK: Bernard Shek for Plaintiff,
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24 REPORTED BY:
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CARMEN SMITH
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Deposition of GEORGE A. GOLDBERG, called for Tuesday, September 13, 2005, in Washington, D.C. at Connecticut Avenue Northwest, at 9:03 a.m. before

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2 examination pursuant to notice of deposition, on
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4 the offices of Gibson, Dunn & Crutcher, 1050 6 CARMEN SMITH, a Notary Public within and for the 7 District of Columbia, when were present on behalf of 8 the respective parties: 9
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also representing the witness, Dr. Goldberg, at this deposition. EXAMINATION BY MR. SEGAL: Q Good morning.

A Good morning.

Q Can you please state your full name for
the record?

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14 IS 16 17 18 19

BERNARD SHEK, ESQ. Skadden, Arps, Slate, Meagher & Flom LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 650-470-4500 On behalf of Plaintiff and Witness DAVID A. SEGAL, ESQ. Gibson, Dunn & Crutcher LLP 4 Park Plaza, Suite 1400 Irvine, California 92614-8557 949-451-3973 On behalf of Defendant

A George Ansbach Goldberg. Q Can you spell the middle name for the
court reporter?

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A A-n-s-b-a-c-h. Q Have you ever had your deposition taken A Which deposition?

14 before, Dr. Goldberg?

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16 Q Any time, have you ever been deposed in a 17 deposition before? 18 A Yes. 19 Q How many times?

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22 before?
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A I believe once. Q And have you ever testified in court

24 Also present:
LARRY FLOWERS, Video Operator
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ANo.
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Q Now, you've had your deposition taken before, and we'll go back and visit about that

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GEORGE A. GOLDBERG

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Q During any part of the meeting, was any other individual present in the room besides you and Mr. Shek?
A Yesterday, no. And the previous meeting, I think also no. I'm only wondering if somebody came in to clear something away, but I think not.
No. Q I'm going to hand you a document which I'm going to ask the court reporter to mark as Exhibit 1 to your deposition. It is a multipage document, Bates stamped GG 0001 through 0005. (Deposition Exhibit 1 identified.) BY MR. SEGAL: Q Do you recognize this document?

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provide private consulting?

A Oh, my. Let's see. If we do it in

increments of hundreds of hours, approximately 100 4 to 150 hours per year. 5 Q Can you tell me the entities for whom you 6 provided private consulting in the past year?
7 8 9 10

A Yes.

Q And what are they?

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A Pfizer Health Solutions, Inc. P-f-i-z-e-r. Cerner, Inc., C-e-r-n-e-r. Pfizer and 11 Cerner. That's all I remember now. 12 Q Have you been asked to provide any private
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consulting to McKesson Solutions?

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A I just have to check the inner pages. I
do.
Q And is this a current copy of your CV?

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ANo.

Q Can you briefly describe the nature of your private consulting for Pfizer Health Solutions?

17 A Well, I don't know how current it is, but 18 it's a copy of my CV and -- it usually has a date at 19

A Yes.

Q Can you do that for me, please?

the end, but this one does not. So I would say it still looks pretty -- it seems to be within the last 22 year, because it says "part-time employee at 23 Ingenix." 24 Q And that is your position today -- your
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status today, I should say?

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A I helped them decide how to analyze claims data for their disease management programs, when requested, and similarly, when requested, I provide them with codes -- the procedure for diagnosis or -procedure, diagnosis or DME, durable medical equipment, codes for their analyses related to their disease management programs.
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A That is correct.

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2 Q And when did you first become a part-time 3 employee at Ingenix? 4 A The moment I was hired by Ingenix. 5 Q Was that going back to Ingenix's 6 predecessors in 1990 or-7 ANo.
Q Was it correct that in 2004 when the 9 company that you worked for became Ingenix, you 10 became a part-time employee? 11 A I was already a part-time -- yes, I was
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Q Are the -- is the disease management program a program for Pfizer Health Solutions employees? MR. SHEK: Object to the form of the question. BY MR. SEGAL: Q Let me rephrase the question.

A Please. It's not -Q Are the claims that you're analyzing

12 already a part-time employee.
Q Do you recall approximately what year you 14 first became a part-time employee?
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10 claims that are filed by Pfizer Health Solutions 11 employees in connection with health benefits 12 provided to them?

13 14 15 A Yes,Ido. 15 16 Q What year was that? 16 17 A Let's see. It was when my elderly ill 17 18 mother moved to Washington, D.C., so that was 18 19 probably 1997, give or take six months. That's when 19

ANo.

Q Okay. What are the claims that you analyze for Pfizer Health Solutions, Inc. related to?

A I do not analyze the claims. That's not what I said I did.

20 I became a part-time employee.
21 Q And it indicates on your CV that we've 22 marked as Exhibit 1 that you also do private

Q Okay. Let me try -- you provide codes for 20 certain claims? 21 A I provide codes that can be used in Pfizer

23 consulting? 24 A Yes, it indicates that.
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Q Approximately how many hours a year do you
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22 Health Solutions' analysis of claims for disease -23 their disease management program. 24 Q Okay. The claims that are used in the
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analysis, are those claims by Pfizer Health
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GEORGE A. GOLDBERG

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I IRE9 CERTIFY that I have read this
cranscipt of my deposition and that this transcript
accurately states the testimony given by me, with the changes or corrections, if any, as noted

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Io/f.oQç (j
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Subscr.bed and sworn to before me th.s

day of

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Notary Public

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My commission expires:

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GEORGE A. GOLDBERG

BARKL R.p.',.,.
C..,

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IN THE UNITED STATES DISTRJCT COURT FOR THE DISTRICT OF DELAWARE McKESSON INFORMATION SOLUTIONS, LLC, ) )
)

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PLAINTIFF, )
)

-vs-

) No. 04-1258 SLR

) THE TRIZETI'O GROUP, INC., 8 )

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DEFENDANT. )
9
10
11

DEPOSITION OF: ROBERT HERTENSTEIN, M.D.

12 13 The deposition of ROBERT HERTENSTEIN, M.D., 14 called as a witness pursuant to notice and pursuant to 15 the provisions of the Federal Rules of Civil Procedure; 16 taken before BRENDA KAY LAUNIUS, CSR, RPR, a Notaiy 17 Public in and for the County of LaSalle, State of 18 Illinois, at 1928 War Memorial Drive, Peoria, Illinois, 19 commencing at the hour of 9:45 a.m., on the 13th day of 20 September, 2005. 21

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EXHIBITS (Cont'd.) Exhibit No. 122 marked Exhibit No. 123 marked Exhibit No. 124 marked Exhibit No. 125 marked Exhibit No. 126 marked Exhibit No. 127 marked Exhibit No. 128 marked Exhibit No. 129 marked Exhibit No. 130 marked Exhibit No. 131 marked Exhibit No. 132 marked Exhibit No. 133 marked Exhibit No. 134 marked Exhibit No. 135 marked Exhibit No. 136 marked Exhibit No. 137 marked Exhibit No. 138 marked Exhibit No. 139 marked Exhibit No. 140 marked Exhibit No. 141 marked Exhibit No. 142 marked

106 110 116
121 123 125 128
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135 140 144 146 150 152 154 156

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I APPEARANCES: 2 SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP Attorneys at Law

3 BY: MR. DAVID W. HANSEN
525 University Avenue, Suite 1100

4 Palo Alto, California 94301
(650) 470-4500

5
appearing on behalf of the PlaintifI

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10

GIBSON, DUNN & CRUTCHER Attorneys at Law BY: MR. JEFFREY T. THOMAS 4 Park Plaza, Suite 1400 Irvine, California 92614-8557 (949) 451-3800
appearing on behalf of the Defendant.

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ALSO PRESENT: GREG CLEMONS, Videographer INDEX PAGE 14 WITNESS: 15 ROBERT HERTENSTEIN 16 Direct Examination by Mr. Thomas 4
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EXHEBITS:

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ExhibitNo. 115 marked Exhibit No. 116 marked Exhibit No. 117 marked Exhibit No. 118 marked Exhibit No. 119 marked Exhibit No. 120 marked Exhibit No. 121 marked
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THE VIDEOGRAPHER: All right. I'm Greg Clemons, videographer working for Barkley Court Reporters in California, Irvine, California. Today is September 13th, 2005. It is 9:45 in the morning. We are at the Marriott in Peoria, Illinois. This is McKesson Information Solutions, LLC, Plaintiff, versus The Trizetto Group, Incorporated, Defendant, Civil Action Number 04-1258 SLR, and this is the deposition of Dr. Robert Hertenstein. Present we have Jeffrey Thomas, Gibson, Dunn and Crutcher, and David Hansen with Skadden, Arps, Slate, Meagher & Flom, LLP. Our court reporter is Brenda Launius. And, Brenda, if you could swear in the witness. ROBERT HERTENSTEIN, called as a witness herein, upon being first duly sworn on oath, was examined and testified as follows: (Witness sworn.) DIRECT EXAMINATION BY MR. THOMAS: Q Good morning, Dr. Hertenstein.

A Morning.

65 68 77 80 84

22 Q My name is Jeff Thomas, and I represent The 23 Trizetto Group, who is the defendant in this lawsuit that 24 we are here to talk about today. You understand that the 25 lawsuit that you're here about today is a patent case
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ROBERT HERTENSTEIN, M.D.

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A They reported to me.

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necessary and paying claims for payment that came in from doctors and hospitals?

Q Did the clerks report to them?

A Yes. We, of course, had a large group of
clerks who originally took the claims as they came in, and then we had a system by which we evaluated the claims depending upon their level of expertise. Q That group who reviewed these claims, did it have a name of any kind?

A It was a rather loose arrangement. I'm not

4 sure they did. They weren't directly responsible to
5 them, but they cooperated with them, of course. 6 Q Now, did these surgical technicians have any 7 background with the CPT code system? 8 A They were trained mostly after they went to 9 work for Caterpillar. 10 Q What kind of training did they receive in that 11 area?

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10 13
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A Just the payment center, but I don't -- no, it

did not have a specific name, no. 11 Q Was there someone who was in charge of this 12 group?

A Iwas.

Q When you became medical director?

A Yes. The group was not present before I became 16 medical director. The level of payment of the claims, we 17 improved the quality of evaluation during that period of 18 time and the years after, too.
15 19

A Well, mostly this came from myself, and it was an informal training. It was not a rigid form of 14 training, but they were exposed every single day to 15 claims and CPT-4 codes until they became quite proficient 16 at them.
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20 21 22 23 24 25

Q When did this process to improve the processing of the claims begin?

A When I became medical director of the medical insurance. Q Thatwasinl98l?

A '82.

Q '82, okay. And when you took over in 1982, how
Page 17

Q And when you say they became quite proficient, do you mean they became quite proficient in determining whether the code or codes on the claim were appropriate 20 for the procedure that had been performed? 21 A That's correct. 22 Q And the training that they received in that 23 area was based on your background and experience with the 24 codes that you had received in private practice? 25 A Well, it was -- no, it was expanded far beyond
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many people -- how many Caterpillar employees were involved in reviewing claims, processing claims?

A Oh, I would guess -- I can't tell you the exact
Q And were these folks all clerks, or did any of

4 number, but we had a large section in a separate
building. There must have been at least 40.

7 them have any sort of medical training?
8 A When I arrived at Caterpillar, they were all 9 clerks, but I hired surgical technicians who had a direct 10 knowledge of surgery and the general medical care more
11 12 13

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what I knew in private practice. I became familiar with all the areas of the CPT codes. Q You mean outside the surgical area?

A Yes.
Q So you -- did you educate yourself in the CPT
coding for areas outside of surgery so that you understood those other areas like you already did for the surgical area?

A Yes.

Q And then you passed along that knowledge to the 11 technicians that you had hired? specifically than any of the clerks I had. And I hired them because of their knowledge and the fact that I could 12 A As they were able to be utilized in certain 13 specialized areas. There was usually always claims that train them. They understood the terminology. 14 14 they couldn't handle, too, and they were brought to me, Q And when did you start hiring these surgical 15 technicians? 15 so... 16 16 A In 1982. Q Now, did -- was there some process in place to 17 17 determine what claims the technicians would look at? Q How many technicians did you hire? 18 18 A Three. A Well, they -- they filtered from the most And what sort of background did these people 19 19 inexperienced payor to a more sophisticated to the Q 20 have? 20 supervisor, and then the supervisor would in turn, who 21 21 couldn't handle the claim or didn't understand the claim A They had all worked in the operating rooms for 22 at least ten years prior to their switching to doing what 22 completely or had questions about it, would refer it to 23 they did at Caterpillar. 23 the surgical technicians. And then after them, if they 24 24 had questions about it, then I reviewed them myself. And Q And when they were hired by Caterpillar, what 25 were their responsibilities? 25 I reviewed claims almost every day, so...
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

3
4 S 6

McKESSON INFORMATION SOLUTIONS, LLC,
Plaintiff,
vs.

) No. 04-1258-SLR
) )

7
8 9

THE TRIZETTO GROUP, INC.,
Deeendant.

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I

have read the foregoing

deposition, and the questions asked and the answers given are correct and accurate except as listed on the Statement of Change or Correction.

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ROBERT HERTENSTEIN, M.D.

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ROBERT IiERTENSTEIN, M.D. - VOLUME

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Case 1:04-cv-01258-SLR

Document 453-2

Filed 06/29/2006

Page 16 of 18

Case 1:04-cv-01258-SLR

Document 453-2

Filed 06/29/2006

Page 17 of 18

Case 1:04-cv-01258-SLR

Document 453-2

Filed 06/29/2006

Page 18 of 18