Steven M. Zager, a partner in Akin Gump Strauss Hauer & Feld's New York, Houston and Longview offices
Steven M. Zager, a partner in Akin Gump Strauss Hauer & Feld’s New York, Houston and Longview offices (Gittings)

A medical device, allegedly developed using misappropriated trade secrets, was at issue in a jury trial. To help jurors understand how the device worked, Steve Zager asked his client, neurosurgeon Sabitino Bianco, to perform a mock spinal surgery in front of the jury.

On Jan. 21, the East Texas federal jury awarded Bianco $4.295 million in past damages in Sabitino Bianco v. Globus Medical, Inc.

“It made him into a teacher for the jury, which is always good,” Zager said about his client. Longtime Texan Zager, a partner in Akin Gump Strauss Hauer & Feld with offices in New York and Longview, said he thought such a demonstration may work because most jurors these days are “visual learners.” The neurosurgeon demonstrated with a model of the human spine, an implant and his instruments.

In an amended complaint filed Sept. 30, 2013, in the U.S. District Court for the Eastern District of Texas in Marshall, Bianco alleged that he had entered into a confidentiality agreement with Globus. Then, in 2007, he conceived of an idea and a product design for an expandable intervertebral fusion device for use in minimally invasive spinal surgeries.

Despite a Globus representative telling him the company wasn’t interested in the idea, Bianco’s complaint alleges Globus in 2011 launched a product that incorporated his designs. His complaint cites among its causes of action breach of contract and misappropriation of trade secrets.

In answer filed the same day as the amended complaint, Globus denied the allegations. As an affirmative defense, it argued that Bianco’s claims for misappropriation of trade secrets and other claims were barred because Globus “has not committed any acts that would constitute misappropriation of such information.”

Thomas Sankey, a partner in Duane Morris in Houston and head of the firm’s IP division who represents Globus, did not return a call seeking comment.

During the one-week trial, Zager shared the plaintiff table with four other Akin Gump lawyers. One was Chad Everingham IV, a Longview Akin Gump partner and former U.S. magistrate judge who was trying his first case since leaving the bench. Zager, who handled the opening and closing statements, said Everingham “did a great job” conducting the direct examination of the neurosurgeon.

After less than half a day of deliberations, the jury issued its verdict. The panel agreed that the defendant had misappropriated a trade secret belonging to Bianco.

Zager said the jury sent a note asking about future damages, and the judge wrote back, telling them he would determine those. Zager noted that future damages may ultimately dwarf the current award.