Free Redacted Document - District Court of Delaware - Delaware

Case 1:04-cv-01258-SLR

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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
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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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1 just those two codes that you identified? Are there 10:10 1 criterion is used between medical and non-medical, is 2 other codes on the claim? And you mentioned a system as 10:10 2 there anything in the patent that gives any guidance as 3 well. That's the fir st time I've sort of heard that in 10:10 3 to that? 10:10 4 4 hypothetical. A. The patent specification provides the basis by 5 BY MR. SITZMAN: 10:10 5 which one can implement the predetermined database that 6 10:10 6 contains the codes that are mutually exclusive. The Q. Well, is it possible for you to answer my

7 question? 10:08 8 A. It's -- it's hard because it depends on the 10:08 9 policies that are in place by a particular payer dealing 10:08 10 with that particular situation, and so I -- I can't tell
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you in a generic sense how that would be handled. In many situations, the code or the claim for the fray would be summarily rejected and then there would have to be an appeal on the part of the healthcare organization; in other cases there might be a way of

10:10 7 method provided by the patent is sufficiently broad and 10:10 8 general that it doesn't need to make a distinction 10:11 9 between medical or non-medical. That presumably is left
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as a distinction that the implementer of the database would make. Q. But someone reading a -- for instance, the claim -- what claim are we on? I think it may be Claim 2 in the patent. A. Let me see if I have the claims marked here. MR. HENDERSHOT: The last couple pages. THE WITNESS: Yeah. MR. HENDERSHOT: It would be all the way in the back. THE WITNESS: Here we go. BY MR. SITZMAN: Q. Yeah, it's Column 117.

providing documentation up front, but it's very situation-specific. Q. And I -- and I apologize for getting too far 10:08 19 upfield here. I guess I wanted to really focus in on -10:09 20 on where you were going with or your interpretation of 10:09 21 mutually exclusive due to non-medical criteria, and I 10:09 22 think your non-medical criteria has to do, in the 10:09 23 hypotheticals we've been talldng about, is really things 10:09 24 like procedural frays, and that's what would make it 10:09 25 mutually exclusive, the lumbar fray example that you
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A. Yep.
Q. Claim 2, in the step that says, "determining," "determining whether one of the medical service codes in
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10:09 1 gave us.

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the at least one claim is mutually exclusive due to

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MR. HENDERSHOT: rm going to object that 10:09 3 misstates his testimony. I think that was an example 10:09 4 that he gave but -10:09 5 THE WiTNESS: We can explore other examples, 10:09 6 if you think that would be better.

10:11 2 non-medical criteria with any other medical service code 10:12 3 in the at least one claim." 10:12 4 A. Okay. 10:12 5 Q. So someone reading that, how do they know, I
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6 think what you're telling me is that it's up to the

10:09 7 BY MR. S1TZMAN: 10:09 8 Q. No. I think we'll come back -- we'll come 10:09 9 back to it.
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10:12 7 database programmer, but somebody reading this claim 10:12 8 needs to understand the scope of the patent claim. What 10:12 9 is it that tells me what the non-medical criteria is?
MR. FIENDERSHOT: You mean outside of the ordinary meaning he identified earlier? MR. SITZIvEAN: Well, and -- and if that's what he wants to tell me, that non-medical criteria has ordinary meaning and that was the ordinary meaning that he gave it, that's fine. Q. But I need to either know whether or not that's your interpretation of ordinary meaning or if it's in the patent somewhere. A. Well, my -- my testimony was that it's not essential for the database implementer to make that distinction between medical and non-medical because the
framework provided by the patent is sufficiently general that it will apply to criteria of both kinds. Q. "Both kinds" being?

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10:12 10 10:12 11 10:12 12 patent, the '164 patent. A. Sure. 10:12 13 10:12 14 Q. Where in the patent have, returning back to the non-medical criteria, is non-medical criteria 10:12 15 defined as you have defined it? 10:12 16 A. Well, the narrative of the patent doesn't 10:12 17 actually use those terms. It does not make a 10:12 18 distinction here. The claims make a distinction between 10:12 19 medical and non-medical, and I believe in my 10:12 20 interpretation the claims are doing that so that they 10:12 21 can claim the universe of criteria. 10:12 22 And I under -- I understand where you are 10:12 23 Q. with -- with the claim, you know, the mutual 10:13 24 exclusivity, but in terms of trying to figure out what 10:13 25

A. Okay.

Q. Yeah. Where -- let's look real quickly at the

A. Medical and non-medical. That the data -Page 52

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13 (Pages 49 to 52) 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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