EXHIBIT E

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 1 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

1

Plaintiff Class’s Designations 

Testifying Witness: Kizior, Eric

Date of Testimony: June 7, 2019 (Di Donato Matter)

Plaintiff 

Class’s 

Designations

Defendants’

Objections1

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

10:15-10:24

13:11-13:16

20:11-23:2

23:25-25:5

25:16-26:15

154:9-154:24

601, 602: Foundation: witness 

testified he is not familiar with 

charges and indicates he is making 

assumptions.

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants. 

Insys’ guilty plea to the Criminal 

Enterprise that was an undisclosed key 

factor in the FY14 Subsys sales and 

revenue growth is relevant to establishing 

that Defendants violated Section 10(b); 

Witness is testifying on behalf of Insys 

about topics underlying plea; Defendants 

have not articulated the prejudice

166:9-166:21

601, 602: Foundation: witness 

testified he is not familiar with 

charges and indicated previously 

he is making assumptions.

Hearsay: witness bases his 

testimony on news reports he read.

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants. 

Foundation established through prior and 

subsequent testimony; News reports not 

being referenced for the truth of the 

matters referenced therein so no hearsay; 

otherwise, same response as to 

Defendants’ objections to 154:9-154:24 

168:1-168:13

601, 602: Foundation: witness 

testified he is not familiar with 

charges and indicated previously 

he is making assumptions.

Foundation established through prior and 

subsequent testimony; New reports not 

being referenced for the truth of the 

matters referenced therein so no hearsay; 

 

1 With respect to every witness listed in this chart, to the extent Plaintiffs have also identified any of their affirmative designations as counter designations, 

Defendants’ objections to the affirmative designations apply equally to such counter-designations. Defendants further rely on their objections concerning issues 

in the criminal Boston trial as more fully set forth in their forthcoming motions in limine. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 2 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

2

Plaintiff 

Class’s 

Designations

Defendants’

Objections1

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

Hearsay: witness bases his 

testimony on news reports he read.

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants.

otherwise, same response as to 

Defendants’ objections to 154:9-154:24

168:18-171:7

601, 602: Foundation: witness 

testified he is not familiar with 

document and indicated previously 

he is making assumptions.

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants. 

Same response as to Defendants’ 

objections to 154:9-154:24

172:5-172:9

601, 602: Foundation: witness 

testified he is not familiar with 

document and indicated previously 

he is making assumptions.

801-802: calls for hearsay

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants

Foundation established through prior and 

subsequent testimony; Question does not 

ask for the truth of the facts asserted in the 

Insys plea but whether Insys had admitted 

these facts; same response as to 

Defendants’ objections to 154:9-154:24

173:3-175:1

601, 602: Foundation: witness 

testified he is not familiar with 

document and indicated previously 

he is making assumptions.

801-802: Calls for hearsay 

401-403: testimony is not relevant 

since Insys is no longer a party and 

it is prejudicial to Defendants

Foundation established through prior and 

subsequent testimony; Question does not 

ask for the truth of the facts asserted in the 

Insys plea but whether Insys had admitted 

these facts; otherwise, same response as to 

Defendants’ objections to 154:9-154:24

183:16-184:1

184:16-185:3

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 3 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

3

Defendants’ Designations

Testifying Witness: Kizior, Eric

Date of Testimony: June 7, 2019 (Di Donato Matter)

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

10:1-5

10:15-24 106: Incomplete (designate 11:14-15 per 

FRE 106) 11:14-15

57:22-58:9

106: Incomplete (designate 58:12-59:7, 

60:8-10, and 60:25-61:6 per FRE 106)

58:12-59:7

60:8-10

60:25-61:6

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 4 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

4

Plaintiff Class’s Designations

Testifying Witness: Sharpsten, Kevin

Date of Testimony: June 12, 2019 (Di Donato Matter)

Plaintiff 

Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’

Counter 

Designations2

Plaintiff Class’s Objections to Defendants’ Counter 

Designations

8:1-8:3

8:17-8:19

8:23-9:1

21:20-22:6

22:21-23:7

23:13-23:22

23:23-23:25

24:1-24:22

28:15-29:13

29:18-29:21

30:24-31:14

32:8-32:10

32:11-32:23

32:24-33:5

33:6-33:12

35:15-36:12

38:22-39:2

42:7-44:4

45:9-45:15

46:18-48:24

51:13-53:4

53:7-53:13

54:7-55:7

69:15-70:3

 

2 These designations have been identified as for “completeness” pursuant to Fed. R. Evid. 106.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 5 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

5

Plaintiff 

Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’

Counter 

Designations2

Plaintiff Class’s Objections to Defendants’ Counter 

Designations

70:18-70:24

70:25-71:7

99:5-99:22

99:23-100:6

100:7-100:25

185:22-185:23

Defendants’ Designations

Testifying Witness: Sharpsten, Kevin

Date of Testimony: June 12, 2019 (Di Donato Matter)

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

6:5-8

401, 402: Irrelevant and confusing 

interrupted opening of the record

8:17-19

11:23-12:18

401, 402: Irrelevant testimony concerning 

witness’s current employment at non-party 

entity

12:19-25

401, 402: Irrelevant testimony concerning 

witness’s current employment at non-party 

entity 

13:4-23

401, 402: Irrelevant testimony concerning 

witness’s education and employment 

history at non-party entities 

13:24-14:6

401, 402: Irrelevant testimony concerning 

witness’s education and employment 

history at non-party entities

14:21-18:5

401, 402: Irrelevant testimony concerning 

witness’s education and employment 

history at non-party entities

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 6 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

6

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

20:2-17

401, 402: Irrelevant testimony concerning 

witness’s education and employment 

history at non-party entities

20:23-21:1

21:20-23

21:24-22:6

22:21-23:7

23:13-16

23:17-25

24:1-22

28:8-11

28:15-23

30:3-8

601, 602: No personal 

knowledge/speculation as to oncology plan 

& Pipko’s role

30:19-31:8

601, 602: No personal 

knowledge/speculation as to data sources 

(31:2-6)

31:9-14

32:11-23

32:24-33:5

33:6-12

34:4-25

801, 802: Hearsay as to actions that the 

sales force could take (34:4-22) 

601, 602: Speculation as to actions that the 

sales force could take (34:4-22)

35:14 401, 402: No substantive testimony

35:15-36:12 601, 602: Speculation as to data sources and 

work flow (35:25-36:7)

36:13-37:6

601, 602: No personal knowledge of TIRF 

prescribing (36:13-22)

38:3-11

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 7 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

7

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

38:22-39:2

40:15-19 Foundation: Not clear from designated 

testimony the type of report being discussed

40:20-22 Foundation: Not clear from designated 

testimony the type of report being discussed

41:3-10

601, 602: Speculation concerning 

information reflected in reports

401, 402, 403: Misleading and confusing 

based upon speculation and lack of 

specificity

Foundation: Not clear from designated 

testimony the type of report being discussed

42:11-22 MIL #33

43:16-23 MIL #3

45:9-15

46:18-47:14

601, 602: Speculation and lack of personal 

knowledge as to oncology territories (46:22-

47:14)

47:23-48:18

48:21-49:5

50:13-21

106: Incomplete (designate 50:22-51:3 per 

FRE 106)

601, 602: Speculation as to data sources 

(50:18-19)

50:22-51:3

51:10-23

51:24-52:9

52:10-53:1

54:7-55:2

57:23-58:6 MIL #3

 

3

“MIL #3” refers to the Plaintiff Class’s forthcoming motion in limine to preclude the introduction of evidence or argument concerning issues upon which 

Defendant Kapoor obstructed discovery in this Action by invoking his Fifth Amendment right against self-incrimination. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 8 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

8

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

59:4-18 601, 602: Speculation as to data reflected on 

exhibit

59:19-60:1

60:23-61:15

61:20-62:10

401, 402, 403: Irrelevant as there is nothing 

in the record to indicate that the information 

in Ex. 47 was provided to Defendants

MIL #3

64:12-17

401, 402, 403: Irrelevant as there is nothing 

in the record to indicate that the information 

in Ex. 47 was provided to Defendants

65:2-20

401, 402, 403: Irrelevant as there is nothing 

in the record to indicate that the information 

in Ex. 47 was provided to Defendants

67:12-17

106: Incomplete (designate 66:21-67:11)

401, 402, 403: Irrelevant as there is nothing 

in the record to indicate that the information 

in Ex. 47 was provided to Defendants

66:21-67:11

69:15-70:24 601, 602: Speculation as to data sources and 

reliability (70:4-24)

72:10-73:14

73:15-75:4

401, 402, 403: Witness’s view as to when 

he would investigate data discrepancies not 

relevant

601, 602: No personal 

knowledge/speculation as to why there are 

differences in the data

75:5-24

401, 402, 403: Witness’s view as to when 

he would investigate data discrepancies not 

relevant 

601, 602: No personal 

knowledge/speculation as to why there are 

differences in the data

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 9 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

9

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

75:25-76:6

401, 402, 403: Witness’s view as to when 

he would investigate data discrepancies not 

relevant 

601, 602: Personal knowledge/speculation 

as to why there are differences in the data

76:7-19

401, 402, 403: Witness’s view as to when 

he would investigate data discrepancies not 

relevant 

601, 602: Personal knowledge/speculation 

as to why there are differences in the data

97:2-98:15

106: Incomplete (98:16-99:9) per FRE 106

401, 402, 403: Question stricken/withdrawn 

(97:2-8)

601, 602: Speculation as to data sources and 

intent (97:9-98:15)

98:16-99:9

99:23-100:19

149:7-22

401, 402, 403: Not relevant to 

claims/defenses as document did not go to 

Defendants

701: Lay opinion expressed

Foundation No foundation established for 

opinion expressed

149:24-150:4

401, 402, 403: Not relevant to 

claims/defenses as document did not go to 

Defendants

801, 802: Hearsay as to what witness may 

or may not have been told (149:24:150:-4)

Foundation: No foundation for belief 

expressed

150:5-15

801, 802: Hearsay as to what witness may 

or may not have been told (150:13-15)

401, 402, 403: Prejudicial, irrelevant and 

confusing opinion expressed with no 

foundation 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 10 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

10

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

601, 602: No personal 

knowledge/speculation as to “oncology 

program” and motivations of defendants 

(150:5-15)

701: (150:5-15)

Foundation: No foundation for opinion 

expressed; Timeframe

MIL #14: Efforts not in place by FY14 

(150:5-15)

MIL #3

151:6-12

801, 802: Hearsay as to what witness may 

or may not have been told

Foundation: No foundation established for 

knowledge of company goals; Timeframe

MIL #1: Efforts not in place by FY14

MIL #3

151:15-24

801, 802: Hearsay as to what witness may 

or may not have heard

Foundation as to timeframe

MIL #1: Efforts not in place by FY14

MIL #3

151:25-152:8

401, 402, 403: Lawyer 

testimony/characterization of facts with no 

substantive testimony by witness

MIL #3

152:10

401, 402, 403: Non-substantive request to 

review a document

MIL #3

152:12-13 MIL #3

152:19-22 MIL #3

152:23-24 MIL #3

 

4 The Plantiff Class seeks an order precluding the introduction of evidence and testimony regarding putative or aspirational oncological efforts that were not in 

place in FY14, and Subsys sales and revenue generated by the “oncology HCP” specialty (which was artificially inflated by the Factor) in FY15 under Fed. R. 

Evid. 401, 402, and 403. Evidence subject to this MIL is identified here by the inclusion of “MIL #1” in the Plaintiff Class’s Objections. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 11 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

11

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

153:2-14

401, 402, 403: Vague reference to millions 

of dollars of product sold to oncologists 

confusing and misleading

Foundation: Lawyer testimony concerning 

and mischaracterizing document and 

suggesting answer to witness

MIL #3

153:16-154:2

106: Incomplete (154:4-23) per FRE 106

401, 402, 403: Lay opinion expressed by 

non-party as to accuracy of portion of 

statement in 2014 Form 10-K without 

regard to the claimed sales growth at issue; 

Irrelevant because witness testified that this 

report has nothing to do with the statements 

at issue, see 166:23-167:21

701: Lay opinion expressed as to accuracy 

of portion of statement in 2014 Form 10-K

Foundation: No foundation for opinion 

witness is asked to express as to truth or 

falsity of statement based on testimony that 

witness’s work did not bear on statements at 

issue

MIL #3

154:4-23

166:23-167:21

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Class’s counter designation apply equally 

to 153:16-154:2

158:11-159:5

Foundation: No knowledge established 

with witness as to content of interrogatory 

or response

106: Incomplete (155:11-12, 158:7-10) per 

FRE 106

801, 802: Hearsay as to truth of 

interrogatory response

401, 402, 403: Lay opinion expressed by 

non-party as to accuracy of portion of 

statement in of interrogatory response that 

does not address sources of 2014 sales 

growth

155:11-12

158:7-10

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 12 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

12

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

701: Lay opinion expressed by non-party as 

to accuracy of interrogatory response

MIL #3

159:6-14

Foundation: No knowledge established 

with witness as to content of interrogatory 

or response

801, 802: Hearsay as to truth of 

interrogatory response

401, 402, 403: Lay opinion expressed by 

non-party as to accuracy of portion of 

statement in of interrogatory response that 

does not address sources of 2014 sales 

growth

701: Lay opinion expressed by non-party as 

to accuracy of interrogatory response

MIL #3

164:7-12

106: Incomplete (166:23-167:21) per FRE 

106

401, 402, 403: Irrelevant if reports did not 

go to Defendants (166:8-12); Irrelevant

because witness testified that this report has 

nothing to do with the statements at issue, 

see 166:23-167:21

166:23-167:21

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Class’s counter designation apply equally 

to 164:7-12

164:13-22

106: Incomplete (166:23-167:21) per FRE 

106

401, 402, 403: Irrelevant if reports did not 

go to Defendants (166:8-12); Irrelevant

because witness testified that this report has 

nothing to do with the statements at issue, 

see 166:23-167:21

166:23-167:3, 

167:6-11, 167:14-

19

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Class’s counter designation apply equally 

to 164:13-22

165:17-166:1

106: Incomplete (166:23-167:21) per FRE 

106

401, 402, 403: Irrelevant if reports did not 

go to Defendants (166:8-12); Irrelevant

because witness testified that this report has 

166:23-167:3, 

167:6-11, 167:14-

19

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 13 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

13

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

nothing to do with the statements at issue, 

see 166:23-167:21

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Class’s counter designation apply equally 

to 165:17-166:1

166:2-12

106: Incomplete (166:23-167:21) per FRE 

106

401, 402, 403: Irrelevant if reports did not 

go to Defendants (166:8-12); Irrelevant

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

Foundation as to meaning of 

“management” (166:10-12)

166:23-167:3, 

167:6-11, 167:14-

19

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Class’s counter designation equally to 

166:2-12

166:12-21

106: Incomplete (166:23-167:3, 167:6-11, 

167:16:19) per FRE 106

401, 402, 403: Irrelevant if reports did not 

go to Defendants (166:8-12); Irrelevant

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

MIL #3

166:23-167:3, 

167:6-11, 167:14-

19

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff

Class’s counter designation apply equally 

to 166:12-21

167:23-168:1

106: Incomplete (166:23-167:3, 167:6-11, 

167:16:19) per FRE 106

401, 402, 403: Irrelevant if reports did not 

go to Defendant (166:8-12); Irrelevant 

because witness testified that this report has 

nothing to do with the statements at issue, 

see 166:23-167:21

Foundation as to meaning of “sales 

information”; as to meaning of “accurate” 

and timeframe

166:23-167:3, 

167:6-11, 167:14-

19

601, 602-Witness testified he did 

not know the purpose of the 

information he was providing; 

(167:9-21)

401-403: Not relevant and 

testimony is waste of jury’s time

(167:9-21)

Counter designation is for completeness 

so that the jury can weigh the relevance 

and foundation of Defendants’ 

designation if it is admissible and played; 

Defendants’ objections to the Plaintiff 

Class’s counter designation apply equally 

to 167:23-168:1

168:2-4

401, 402, 403: Irrelevant if reports did not 

go to Defendants; Irrelevant witness 

testified that this report has nothing to do 

with the statements at issue, see 166:23-

167:21

MIL #1: FY15 results irrelevant

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 14 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

14

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

168:20-169:5

401, 402, 403: Irrelevant if reports did not 

go to Kapoor/Babich; Irrelevant because 

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

MIL #1: FY15 results irrelevant

169:10-13

401, 402, 403: Irrelevant if reports did not 

go to Kapoor/Babich; Irrelevant because

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

Foundation as to the meaning of “accurate” 

and timeframe

MIL #1: FY15 results irrelevant

169:15-171:19

401, 402, 403: Irrelevant if reports did not 

go to Defendants; Irrelevant because 

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

Foundation as to the meaning of “accurate” 

and timeframe

MIL #1: FY15 results irrelevant (169:15-

170;4); Postdates Misstatements (170:5-

171:19)

171:22-173:1

401, 402, 403: Irrelevant if reports did not 

go to Defendants; Irrelevant because 

witness testified that this report has nothing 

to do with the statements at issue, see 

166:23-167:21

Foundation as to the meaning of “accurate” 

and timeframe

MIL #1: FY15 results irrelevant; Postdates 

Misstatements

173:12-17

401, 402, 403: Exhibits irrelevant because 

they did not go to Defendants; Irrelevant as 

witness testified that they had nothing to do 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 15 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

15

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

with the statements at issue, see 166:23-

167:21

Compound question

Foundation 

Narrative: Question calls for a narrative

MIL #1: FY15 results irrelevant; Postdates 

Misstatements

173:22-174:2

401, 402, 403: Exhibits irrelevant because 

they did not go to Defendants; Irrelevant as

witness testified that they had nothing to do 

with the statements at issue, see 166:23-

167:21

Compound question

Foundation 

Narrative: Question calls for a narrative

MIL #1: FY15 results irrelevant; Postdates 

Misstatements

174:4-175:6

401, 402, 403: Exhibits irrelevant because 

they did not go to Defendants; Irrelevant as

witness testified that they had nothing to do 

with the statements at issue, see 166:23-

167:21

MIL #1: FY15 results irrelevant; Postdates 

Misstatements

185:22-186:9

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 16 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

16

Plaintiff Class’s Designations 

Testifying Witness: Pipko, Brian

Date of Testimony: June 14, 2019 (Di Donato Matter)

Plaintiff 

Class’s 

Affirmative 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations5

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

8:16-9:7

10:19-10:25

11:1-11:3

12:1-14:10

14:17-15:09

15:21-15:24

18:16-19:4

19:17-20:3

21:10-21:15

21:23-22:5

23:6-23:14

28:5-31:2

31:3-31:5

33:5-33:12

33:20-33:22

57:17-57:24

61:3-61:10

62:2-63:4

63:22-64:9

64:20-65:1

67:16-68:12

73:20-74:9

74:16-75:2

75:5-77:5

77:7-78:12

78:15-78:17

78:21-79:14

79:16-80:6

 

5 These designations have been identified as for “completeness” pursuant to Fed. R. Evid. 106.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 17 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

17

Plaintiff 

Class’s 

Affirmative 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations5

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

85:12-87:7

87:14-88:12

88:23-89:10

89:18-90:12

94:1-94:24

94:25-95:1

208:1-209:13

209:16-210:16

211:16-211:23

215:1-217:19

234:1-236:8

236:11-237:14

237:19-239:10

239:20-239:21

240:3-240:22

241:18-243:13

243:14-243:16

243:25-245:24

251:5-251:17

252:25-253:23

255:9-256:7

257:3-258:9

258:11-260:4 260:5-9 Nonresponsive to question

260:10-260:16

261:4-263:9

267:11-267:13

267:20-269:23

269:24-270:5

271:24-272:11

272:15-273:6

273:8-274:6

274:9-274:10

274:12-274:21

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 18 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

18

Defendants’ Designations

Testifying Witness: Pipko, Brian

Date of Testimony: June 14, 2019 (Di Donato Matter)

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

8:19-22

9:6-7

18:16-25

19:1-4

19:17-22

19:23-20:3

20:12-24

106: Incomplete (designate 20:4-11 per FRE 

106)

601, 602: Personal knowledge/speculation as

witness was unsure and could not recall 

answer to question

Nonresponsive testimony at 20:16-24 

MIL #16: Efforts after FY14

MIL #3

20:4-11

21:2-6

106: Incomplete (designate 20:4-11 per FRE 

106)

MIL #1: Efforts after FY14

20:4-11

21:10-22

25:12-25

106: Incomplete (designate 23:15-24:24, 

25:5-11 per FRE 106)

601, 602: Speculation as to Dan Brennan and 

Raimonds’ thoughts & actions

Nonresponsive testimony at 25:18-25:25, 

26:9-13, 26:18-23 to question at 25:12-13

Narrative response at 25:18-26:23

MIL #1: Efforts after FY14

23:15-24:24, 

25:5-11

 

6 The Plantiff Class seeks an order precluding the introduction of evidence and testimony regarding putative or aspirational oncological efforts that were 

not in place in FY14, and Subsys sales and revenue generated by the “oncology HCP” specialty (which was artificially inflated by the Factor) in FY15 under Fed. 

R. Evid. 401, 402, and 403. Evidence subject to this MIL is identified here by the inclusion of “MIL #1” in the Plaintiff Class’s Objections. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 19 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

19

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

MIL #3

26:1-4

601,602: Speculation as to Dan Brennan and 

Raimonds’ thoughts & actions

Nonresponsive testimony at 25:18-25:25, 

26:9-13, 26:18-23 to question at 25:12-13

Narrative response at 25:18-26:23

MIL #1: Efforts after FY14

26:5-27:4

601, 602: Speculation as to what types of 

cancers cause more pain (26:9-13)

Nonresponsive testimony at 26:9-13, 26:18-

23 to question at 25:12-13

Narrative response at 25:18-26:23

MIL #1: Efforts after FY14

30:16-31:2

36:7-13 106: Incomplete (designate 36:14-38:10 per 

FRE 106)

36:14-38:10, 

39:11-13, 39:21-

41:10, 41:15-17, 

42:2-5, 42:10-14, 

43:11-48:16, 

48:19-49:6, 

49:20-52:17, 

176:23-179:23

38:11-39:5

106: Incomplete (designate 39:11-13, 39:21-

41:10, 41:15-17, 42:2-5, 42:10-14, 43:11-

48:16, 48:19-49:6, 49:20-52:17)

401,402, 403: 38:20 is not relevant as it does

not contain testimony (403)

36:14-38:10, 

39:11-13, 39:21-

41:10, 41:15-17, 

42:2-5, 42:10-14, 

43:11-48:16, 

48:19-49:6, 

49:20-52:17; 

176:23-179:23

38:25-39:5 Subsumed within designation of 38:11-39:5

36:14-38:10, 

39:11-13, 39:21-

41:10, 41:15-17, 

42:2-5, 42:10-14, 

43:11-48:16, 

48:19-49:6, 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 20 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

20

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

49:20-52:17; 

176:23-179:23

52:18-53:6

Foundation because “they” in the answers is 

not defined (52:21-23, 53:4-6)

MIL #3

36:14-38:10, 

39:11-13, 39:21-

41:10, 41:15-17, 

42:2-5, 42:10-14, 

43:11-48:16, 

48:19-49:6, 

49:20-52:17

55:13-15 53:9-12, 53:22-

54:8

57:17-58:6

106: Incomplete (designate 53:9-12, 53:22-

54:8 per FRE 106) 

601, 602: Speculation as to how oncologists 

treat their patients (58:1-6)

58:7-11 106: Incomplete (designate 53:9-12, 53:22-

54:8 per FRE 106) 

60:25-62:1

62:2-17

63:9-21

63:22-25 MIL #3

64:1-13 MIL #3

64:14-65:1 MIL #3

65:2-22

401, 402, 403: Drugs other than Subsys or 

future indications not relevant

801, 802: Hearsay as to Kapoor’s, Van 

Hoff’s, & Alberts’ statements (65:14-19)

Foundation as to “plans” and timeframe

MIL #1: Efforts not implemented in FY14

MIL #3

65:23-67:3

601, 602: Personal, knowledge/speculation 

as to Kapoor’s thoughts and actions (66:12-

67:3)

801, 802: Hearsay as to Kapoor’s statements 

(66:13-20, 66:24-67:3)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 21 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

21

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

Nonresponsive testimony at 66:1-7 to 

question at 65:23-24)

Narrative response at 65:25-67:2

MIL #3

67:4-20 MIL #3

68:13-17

801, 802: Hearsay as to Babich’s statements 

(68:15-17)

MIL #3

68:18-24 MIL #3

70:20-71:13 106: Incomplete (designate 71:1-72:22, 

72:25-73:8 per FRE 106)

71:14-72:22, 

72:25-73:8

73:20-74:15

801, 802: Hearsay as to Kapoor’s statements 

(74:10-15)

MIL #3 (74:10-15)

78:2-10

79:18-80:6

80:7-9

80:25-81:14

401, 402, 403: Whether other ROO 

companies had putative oncology efforts not 

relevant to clams/defenses

601, 602: Personal knowledge/speculation as 

to Cephalon/Teva’s efforts and difficulty of 

expanding oncology market (80:25-81:10)

Nonresponsive testimony at 80:25-81:10 to 

question at 80:7-9

81:15-16

401, 402, 403: Whether other ROO 

companies had putative oncology efforts not 

relevant to clams/defenses

601, 602: Personal knowledge/speculation as 

to Cephalon/Teva’s efforts and difficulty of 

expanding oncology market (80:25-81:10)

81:17-82:15

106: Incomplete (designate 82:16-19 and 

82:22-83:7 per FRE 106)

401, 402, 403: Whether other ROO 

companies had putative oncology efforts and 

82:16-83:7

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 22 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

22

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

Pipko’s current belief in Insys’ putative 

efforts is not relevant

601, 602: Personal knowledge/speculation as 

to Cephalon/Teva’s efforts and how 

oncologists practice medicine and treat 

cancer pain (81:17-82:15)

90:22-91:18

106: Incomplete (designate 92:1-5, 92:14-23 

per FRE 106)

MIL #3

92:1-5

91:19-25

106: Incomplete (designate 92:1-5, 92:14-23) 

per FRE 106)

MIL #3

92:1-5

92:6-13

106: Incomplete (designate 92:1-5, 92:14-23 

per FRE 106)

MIL #3

92:14-27

92:24-93:24

94:1-7

106: Incomplete (designate 129:24-133:19 

per FRE 106)

MIL #3

129:24-133:19

95:3-20

106: Incomplete (designate 96:1-8, 129:24-

133:19 per FRE 106)

801, 802: Hearsay as to Kapoor’s statements 

(95:11-15)

MIL #3

96:1-8, 129:24-

133:19

101:7-15 106: Incomplete (designate 104:12-24 per 

FRE 106) 104:12-24

101:24-102:17

106: Incomplete (designate 102:21-23, 

103:1-6, 104:6-24 per FRE 106)

801, 802: Hearsay as to Burlakoff’s 

statements (102:13-17)

102:21-23, 

103:1-6, 104:12-

24

103:19-104:5

106: Incomplete (designate 103:16-18, 

104:6-24 per FRE 106)

601, 602: Personal knowledge/speculation as 

to the process for speaker recommendations 

(103:21-104:5)

103:16-18, 

104:6-8, 104:12-

24

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 23 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

23

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

801, 802: Hearsay as to Hollandsworth’s 

statements (103:25-104:5)

109:5-110:15

106: Incomplete (designate 110:21-23 per 

FRE 106)

601, 602: Personal knowledge/speculation as 

to the supportive care book referenced in the 

exhibit

MIL #1: Efforts not in place by FY14 

(Supportive Care Book)

MIL #3

110:21-23

111:1-11

106: Incomplete (designate 110:21-23 per 

FRE 106)

MIL #1: Efforts not in place by FY14 

(Supportive Care Book)

MIL #3

112:4-113:20

111:11-112:3

106: Incomplete (designate 112:4-113:20 per 

FRE 106)

601, 602: Personal knowledge/speculation as 

to Alberts’ reputation and the supportive care 

book (111:13-112:3) 

801, 802: Hearsay as to Alberts’ statements

MIL #1: Efforts not in place by FY14 

(Supportive Care Book)

MIL #3

112:4-113:20

113:21-115:5

106: Incomplete (designate 115:6-11, 

115:22-116:18 per FRE 106)

MIL #1: Efforts not in place by FY14 

(Regional Dinners)

115:6-11, 

115:22-116:8

115:12-21

106: Incomplete (designate 115:6-11, 

115:22-116:18 per FRE 106)

401, 402, 403: No evidence that this 

information was ever provided to Defendants

601, 602: No personal 

knowledge/speculation as to whether the 

Series happened before April 2015

MIL #1: Efforts not in place by FY14 

(Regional Dinners)

115:6-11, 

115:22-116:8

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 24 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

24

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

116:12-14 106: Incomplete (designate 116:15-17 per 

FRE 106) 116:15-17

116:18-117:1

106: Incomplete (designate 116:15-17 per 

FRE 106)

601, 602: Personal knowledge and 

speculation as to whether sales contests 

occurred in FY14 (116:23-117:1)

117:23-118:4 106: Incomplete (designate 118:5-8 per FRE 

106) 118:5-8

118:9-119:20

106: Incomplete (designate 119:20-120:5 per 

FRE 106)

601, 602: Personal knowledge and 

speculation as to NCCN guidelines and 

cancer treatments (119:12-20)

119:20-5

120:6-20 106: Incomplete (designate 119:20-120:5, 

121:13-19 per FRE 106)

119:20-5, 

121:13-19

120:21-121:12

106: Incomplete (designate 121:13-19 per 

FRE 106)

MIL #1: Efforts not in place by FY14 

(Formularies)

121:13-19

121:20-123:5

106: Incomplete (designate 121:13-19 per 

FRE 106)

401, 402, 403: Being on 

601, 602: Personal knowledge/speculation as 

to whether Insys had any formulary 

approvals in FY14

Nonresponsive testimony at 122:13-16 to 

question at 122:4-5

MIL #1: Efforts not in place by FY14 

(Formularies)

121:13-19

123:6-25

106: Incomplete (designate 123:6-16)

401, 402, 403: Pipko’s current efforts with a 

different drug not relevant (124:7-10)

601, 602: Personal knowledge/speculation as 

to what oncologists see in their medical 

practices, how urologists and palliative care 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 25 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

25

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

doctors practice medicine, and cancers that 

cause pain (123:19-124:1, 124:4-17)

123:17-124:17 106: Incomplete (designate 104:12-24 per 

FRE 106)

124:18-125:5

601, 602: Speculation as to how 

hematologists and hospitalists practice 

medicine, and as to what types of HCPs 

focus on oncology patients (124:21, 124:23-

24, 125:1-5)

125:19-127:11

801, 802: Hearsay as to Dr. Kapoor’s 

statements (126:12-19)

MIL #1: Efforts not in place by FY14 

(126:12-128:9)

MIL #3

127:12-18 MIL #1: Efforts not in place by FY14

MIL #3

127:19-128:17

601, 602: Speculation as to the patient 

population for palliative care HCPs (128:1-5, 

128:11-17)

MIL #1: Efforts not in place by FY14

MIL #3

128:18-20

Leading question asked at 129:18-19

MIL #1: Efforts not in place by FY14

MIL #3

128:21-129:1

601, 602: Witness admits to not knowing 

whether Insys was focusing on palliative 

HCPs treating cancer patients (128:22)

MIL #1: Efforts not in place by FY14

MIL #3

129:1-14

601, 602: Witness admits to not knowing 

whether Insys was focusing on palliative 

HCPs with cancer patients (128:22)

MIL #1: Efforts not in place by FY14

MIL #3

129:15-19

601, 602: Personal knowledge, Speculation

MIL #1: Efforts not in place by FY14

MIL #3

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 26 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

26

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

133:22-134:16

106: Incomplete (designate 134:17-135:10 

per FRE 106)

MIL #3

134:17-135:10

135:18-136:9

106: Incomplete (designate 134:17-135:10-

143:17-144:13 per FRE 106)

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

601, 602: Personal knowledge and 

speculation as to why “they” retained and 

terminated Beckhardt (135:22-136:9)

801, 802: Hearsay as to Kapoor’s statements 

(136:6-9)

Foundation as to “they” which is not 

explained in the answer (135:22-136:3)

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

134:17-135:10, 

143:17-144:13

136:10-137:13

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

601, 602: Personal knowledge/speculation as 

to Kapoor’s thoughts and actions

801, 802: Hearsay as to Kapoor’s statements 

(136:16-137:13)

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

137:14-139:10

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

601, 602: Personal knowledge and 

speculation as to compliance at other 

companies (138:23-139:2)

801, 802: Hearsay as to Napoletano’s 

statements (137: 138:16)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 27 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

27

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

140:5-14

106: Incomplete (designate 141:6-12 per 

FRE 106)

801, 802: Hearsay as to Napoletano’s 

statements

MIL #3

141:6-14

140:15-141:5

106: Incomplete (designate 141:6-12 per 

FRE 106)

601, 602: Personal knowledge, Speculation

Leading question (140:21-23)

Nonresponsive testimony at 140:24 

MIL #3

141:6-14

141:15-142:2 801, 802: Hearsay as to Babich’s statements 143:17-144:13

142:3-23

106: Incomplete (designate 144:15-17 per 

FRE 106)

401, 402, 403: Future efforts for other 

potential drugs not relevant to Subsys FY14 

sales/revenue growth

144:18-145:9

106: Incomplete (designate 146:10-22 per 

FRE 106)

MIL #1: Efforts not in place by FY14

MIL #3

144:15-17

145:23-146:9

106: Incomplete (designate 147:20-148:1 per 

FRE 106)

601, 602: Personal knowledge and 

speculation as to the two territories 

referenced in the exhibit (149:10-19)

MIL #1: Efforts not in place by FY14

MIL #3

146:10-22

146:23-147:12

106: Incomplete (designate 96:12-98:4, 98:7-

11, 98:13, 98:22-99:23 per FRE 106)

601, 602: Personal knowledge and 

speculation as to the “Potential Targets” slide 

because it was prepared by Napoletano/Yu

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 28 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

28

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

801, 802: Hearsay as to Napoletano and Yu’s 

statements (150:3-151:6)

MIL #1: Efforts not in place by FY14

MIL #3

148:2-149:19

106: Incomplete (designate 151:7-16 per 

FRE 106)

401, 402, 403: Subsys attributes not relevant 

if not tied to FY14 sales/revenue growth

MIL #3

147:20-148:1

149:23-151:6

601, 602: Personal knowledge and 

speculation as to the “Positioning Potential” 

slide in light of witness’s testimony (“I have 

no idea”)

MIL #1: Efforts not in place by FY14 

MIL #3

96:12-98:4, 98:7-

9, 98:13, 98:22-

99-23

151:17-152:16

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

601, 602: Personal knowledge/speculation as 

to Kapoor’s thoughts and actions

801, 802: Hearsay as to Kapoor’s statements

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

151:7-16

153:4-154:6

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

601, 602: Personal knowledge/speculation as 

to compliance at other companies 

801, 802: Hearsay as to Napoletano’s 

statements

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

154:7-155:14

MIL #1: Efforts not in place by FY14 (onc 

speaker bureau)

MIL #3

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 29 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

29

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

156:1-18

601, 602: Personal knowledge and 

speculation as to the difference between the 

Speaker Program and the oncology speakers 

bureau

Nonresponsive testimony at 156:12-18 to 

question at 156:5-6

MIL #1: Efforts not in place by FY14 (onc 

speaker bureau)

MIL #3

156:19-160:1 MIL #1: Efforts not in place by FY14 (onc 

speaker bureau)

160:4-161:23

106: Incomplete (designate 161:24-162:6 per 

FRE 106)

801, 802: Hearsay as to Kapoor’s statements

MIL #3

161:24-162:6

162:8-167:7 801, 802: Hearsay as to Babich’s statements 

(163:8-12)

167:8-168:14 106: Incomplete (designate 168:15-18, 

172:22-176:20 per FRE 106)

168:15-18, 

172:22-176:20

168:20-171:1

106: Incomplete (designate 171:12-172:4, 

172:7-172:21, 172:22-176:20; 176:23-179:23 

per FRE 106)

171:12-172:4, 

172:7-172:21, 

172:22-176:20; 

176:23-179:23

181:9-13

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

182:2-184:11

106: Incomplete (190:15-193:6-193:14-

195:17 per FRE 106)

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

801, 802: Hearsay as to numerous third party 

statements

190:15-193:6, 

193:14-195:17

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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

184:25-186:10

106: Incomplete (186:11-188:9, 190:15-

193:6, 193:14-195:17 per FRE 106)

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

801, 802: Hearsay as to numerous third party 

statements, including Kapoor and Babich

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

186:11-188:9, 

190:15-193:6, 

193:14-195:17

188:10-19

106: Incomplete (186:11-188:9, 190:15-

193:6, 193:14-195:17 per FRE 106)

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

186:11-188:9, 

190:15-193:6, 

193:14-195:17

189:24-190:14

106: Incomplete (designate 188:20-189:23, 

190:15-193:6, 193:14-195:17 per FRE 106)

401, 402, 403: Advocacy efforts irrelevant 

because witness cannot tie them to FY14 

sales/revenue growth

MIL #1: Efforts not in place by FY14 

(Advocacy)

MIL #3

188:20-189:23, 

190:15-193:6, 

193:14-195:17

197:4-198:8

106: Incomplete (designate 195:19-197:3 per 

FRE 106)

801, 802: Hearsay as to third party 

statements at 198:4-8 

Foundation as to “they” in the answer which 

is not defined in 198:4-8

MIL #3

195:19-197:3

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Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

198:9-24

801, 802: Hearsay as to third party 

statements in 198:20-24

MIL #3

198:25-200:14

106: Incomplete (designate 200:15-18 per 

FRE 106)

801, 802: Hearsay as to third party 

statements at 199:22-23; Hearsay as to 

Babich’s statements at 199:10-13

Foundation as to “they” in 199:20-200:6

MIL #3

200:15-18

200:21-204:2

106: Incomplete (designate 204:3-11 per 

FRE 106)

MIL #3

204:3-11

204:12-17

106: Incomplete (designate 204:3-11, 

204:18-205:1 per FRE 106)

MIL #3

204:3-11, 

204:18-205:1

205:2-206:8

106: Incomplete (designate 204:18-205:1, 

206:9-207:24 per FRE 106)

MIL #3

204:18-205:1, 

206:9-207:23

209:16-210:3

210:4-211:2

211:3-15

601, 602: Personal knowledge and 

speculation as to what prompted him to send 

the email about which he is testifying and as 

to the number of cancer patients with BTCP 

(211:6-15)

211:24-212:25 601, 602: Personal knowledge/speculation 

about “targeting effectively” bullet 

213:1-11

601, 602: Speculation as to whether the 

palliative care HCPs treated cancer patients 

(213:8-11)

213:12-214:23

601, 602: Personal knowledge/speculation as 

to Subsys’ comparative benefits (214:14-23)

Nonresponsive testimony at 214:7-10 

215:1-217:19

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Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

217:24-219:8

106: Incomplete (designate 219:15-19 per 

FRE 106)

601, 602: Personal knowledge/speculation as 

to what patients tell their HCPs 

(218:20:219:1)

Nonresponsive testimony at 218:20-219:1 to 

question at 218:2-3, 5

219:15-19

219:9-14 Nonresponsive testimony at 219:11-14 to 

question at 219:9-10

219:20-221:5

106: Incomplete (designate 221:6-222:10 per 

FRE 106)

601, 602: Personal knowledge/speculation 

with respect to Laurie’s issue with finding a 

speaker (220:7-15)

221:6-222:10

222:18-224:19

106: Incomplete (designate 222:15-17 per 

FRE 106)

601, 602: Personal knowledge/speculation as 

to what the email at issue is referring to 

(223:21-24:6, 224:10-19)

801, 802: Hearsay as to Beckhardt’s 

statements (223:12-16); Hearsay as to Von 

Hoff and Alberts’ statements at 224:3-6)

Nonresponsive testimony at 223:21-224: 6 

to question at 223:20 and at 224:10-19 to 

question at 224:7-9

MIL #1: Efforts not in place by FY14 (onc 

steering mtg)

MIL #3

222:15-17

224:20-225:11

601, 602: Personal knowledge/speculation as 

to what the email at issue is referring to 

(224:23-225:11)

Nonresponsive testimony at 224:24-225:11 

to question at 224:20-22

MIL #1: Efforts not in place by FY14 (onc 

steering mtg)

MIL #3

231:10-15 801, 802: Hearsay as to Kapoor’s statements

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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

Foundation as to what is meant by 

uncomfortable

MIL #3

234:13-236:8

241:14-17

243:14-247:6 401, 402, 403: 243:19-23 is not relevant as it 

does not contain testimony 

251:8-254:22

601, 602: Personal knowledge or speculation 

as to growth in prescriptions, the success of 

the territory, and what other companies did 

in comparison (254:1-22) 

Nonresponsive testimony at 254:1-22 to 

question at 253:24-25

MIL #3 (253:24-254:22)

254:23-255:8

106: Incomplete (designate 255:9-14 per 

FRE 106)

601, 602: Speculation as to whether other 

people’s expectations had been met (255:3-5)

Nonresponsive testimony at 255:2-8 to 

question at 254:23-24, 255:1

MIL #3

256:8-258:9

263:22-266:9

106: Incomplete (designate 263:11-13, 

263:21 per FRE 106)

601, 602: Speculation as to how oncology 

HCPs practice medicine and treat patients 

and how patients interact with oncology 

HCPs (265:17-266:9)

Nonresponsive testimony at 264:23-265:1 

(no question pending)

263:11-13, 

263:21

276:19-21 MIL #3

276:22-279:4

106: Incomplete (designate 279:5-12 per 

FRE 106)

601, 602: Speculation as to why he was hired 

(276:25-277:5), Personal 

279:5-12

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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

knowledge/speculation as to Wachsman’s 

capabilities and “passions” (277:13-20)

801, 802: Hearsay as to Babich and Kapoor’s 

statements (277:4-5), Hearsay as to 

statements by third parties including Kapoor 

(278:4-15)

Narrative response at 277:6-278:15

Nonresponsive testimony at 276:25-277:2 to 

question at 276:22-24

MIL #1: Efforts not in place by FY14

MIL #3

279:13-294:22

106: Incomplete (designate 279:5-12 per 

FRE 106)

601, 602: Personal knowledge/speculation as 

to what Exhibit 102 is; as to the relevance 

and use of nurses in oncology strategy 

(280:24-281:9, 293:8-15); as to access to 

community cancer centers (281:10-16); as to 

make up of the speaker program (281:23-

282:6); as to the Oncology division 

infrastructure slide (284:2-288:7), as to 

cancer patients thoughts/actions (289:16-20), 

as to what Exhibit 103 is (292:15-294:9), as 

to why Kapoor was willing to hire an 

oncology nurse (294:10-22)

801, 802: Hearsay as to Kapoor’s statements 

(287:6-12, 288:12-15, 289:2-7, 291:8-10, 

293:23-294:5, 294:19-22)

Foundation as to whether Pipko put the 

Subsys Strategy Growth Initiatives slide 

together or whether he understood the 

information on the slide (280:2-281:20); as 

to what speaker program he is testifying 

about at 281:17-282:11; as to whether any of 

these “efforts” were in place or completed in 

FY14 (entire designation)

279:5-12

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35

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

Nonresponsive testimony at 280:24-281:9 

and at 282:7-11 to question at 281:21-22; 

testimony at 292:20-294:9 to question at 

292:14

Narrative at 280:11-281:20; further 

narrative provided at 283:7-20; narrative at 

284:7-288:7; further narrative provided at 

292:15-294:9

MIL #1: Efforts not in place by FY14

MIL #3

294:24-301:24

601, 602: Personal knowledge/speculation as 

to what Kapoor thought (295:16-296:2); as to 

what Babich thought or did (296:18-24); as 

to the Form 10-K for FY14 and statements 

set forth therein (299:20-301:24); as to the 

Company’s overall Subsys usage in FY14 

(301:4-12, 301:14-24); as the key factors in 

generating Subsys usage in FY14 (301:4-12, 

301:14-24)

601: Legal conclusion as to whether 

statement at issue is “true” (301:14-24)

801, 802: Hearsay as to Kapoor’s statements 

(296:9-17, 299:14-16)

Foundation as to timeframe (294:24-298:15 

and 301:4-24); what “successful” or 

“succeed” means (295:4-5, 7; 296:4-5, 7;); as 

to what “supported” or “support” means 

(295:9-10, 12-14; 296:18-19, 22-24); as to 

what the language at issue in the 10-K means 

(299:20-301:24)

Nonresponsive testimony at 297:25-298:6

MIL #1: Efforts not in place by FY14

MIL #3

302:2-303:18

601, 602: Personal knowledge/speculation as 

to the Form 10-K for FY14 and statements 

set forth therein (302:2-303:18); as to the 

Company’s overall Subsys usage in FY14 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 36 of 110
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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

(302:2-303:18); as the key factors in 

generating Subsys usage in FY14 (302:2-

303:18); as to what Kapoor’s beliefs are 

(302:20-303:18)

601: Legal conclusion as to whether 

statement at issue is “true” (302:2-11)

801, 802: Hearsay as to Kapoor’s statements 

(303:13-18)

Foundation as to timeframe (302:2-303:18); 

as to what the language at issue in the Form 

10-K means (302:2-303:18)

Nonresponsive testimony at 297:25-298:6

MIL #3

304:21-305:2

601, 602: Personal knowledge/speculation as 

to the Form 10-K for FY14 and statements 

set forth therein (304:21-305:2); as to 

Kapoor’s actions or beliefs (304:21-305:2)

801, 802: Hearsay as to Kapoor’s statements 

(304:21-305:2)

Foundation as to what “support” 

means”(304:21-305:2); as to what the 

language at issue in the Form 10-K means 

(304:21-305:2)

MIL #3

306:16-24

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (306:16-24); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (306:16-24)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter; as to the 

excerpt created by Defendants

307:4-15 401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 37 of 110
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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (307:4-307:15); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (307:4-307:15)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter; as to the 

excerpt created by Defendants; as to the 

4Q14 conference call; as to the statements 

Babich made on the 4Q14 conference call

Foundation as to whether the allegation 

presents the full statement Babich made 

during the 4Q14 conference call

308:19-309:18

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (308:19-309:18); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (308:19-309:18)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter; as to the 

excerpt created by Defendants; as to the 

4Q14 conference call; as to the statements 

Babich made on the 4Q14 conference call; as 

to what Babich meant by his statements 

during the 4Q14 conference call

601: Legal conclusion as to whether 

statement at issue is “true” (308:19-309:18)

Foundation as to whether the allegation 

presents the full statement Babich made 

during the 4Q14 conference call; as to what 

Babich meant by the statement on the 4Q14 

conference call; as to the time frame of the 

statement

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 38 of 110
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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

310:8-311:22

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (310:8-311:22); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (310:8-311:22)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter (310:8-311:22); 

as to the excerpt created by Defendants 

(310:8-311:22); as to the 4Q14 conference 

call; as to the statements Babich made on the 

4Q14 conference call; as to what Babich 

meant by his statements during the 4Q14 

conference call (310:8-311:22); as to the 

effort that Insys purportedly made versus

other companies (311:13-22)

601: Legal conclusion as to whether 

statement at issue is “true” (310:8-311:22)

Foundation as to whether the allegation 

presents the full statement Babich made 

during the 4Q14 conference call; as to what 

Babich meant by the statement on the 4Q14 

conference call; as to the time frame of the 

statement; as to the time frame of Pipko’s 

testimony at 311:13-22

312:8-314:8

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense (312:8-

314:8); Testimony regarding allegations in 

the complaint are not relevant to the 

claims/defenses (312:21-314:8); Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (312:8-314:8); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (312:8-314:8)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 39 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter (312:8-314:8); 

as to the excerpt created by Defendants 

(312:8-314:8); as to what Defendants’ 

represented to investors; as to whether Insys 

(as opposed to Pipko’s division) focused on 

HCPs who treated BTCP(312:21-314:8); as 

to whether Defendants actively discouraged 

efforts directed to oncologists outside of 

Pipko’s division before or during his 

employment BTCP(312:21-314:8)

Foundation as to time frame of the 

allegations raised by defendants (312:8-

314:8); as to time frame of Pipko’s testimony 

(312:8-314:8)

MIL #3

314:9-316:2

601, 602: Personal knowledge/speculation as 

to whether anyone other than Pipko 

discouraged marketing to oncologists (314:9-

20); as to Insys business before Pipko started 

(315:7-316:2); as to purported growth in 

prescriptions (315:7-316:2); as to whether 

Insys expanded prescribers or prescriptions 

(315:7-316:2)

Foundation as to timeframe (314:9-316:2); 

as to what “successful” means (314:22-

316:2)

Compound question at 314:9-14

MIL #3

316:6-319:4

601, 602: Speculation as to Kapoor’s beliefs 

or interest (317:25-318:10)

801, 802: Hearsay as to Fourteau’s 

statements (317:5-9, 317:22-318:2); Hearsay 

as to Kapoor’s statements (317:25-318:16)

Foundation as to “anybody” or “anybody 

else” (318:19-319:4)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 40 of 110
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40

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

MIL #1: Efforts not in place by FY14 

MIL #3

319:13-327:9

401, 402, 403: Resume of someone Insys 

was thinking of hiring for oncology group is 

not relevant to the claims/defenses (323:11-

324:13); Information that can be provided to 

oncology HCPs by Insys sales staff is not 

relevant to the claims/defenses (325:

601, 602: Personal knowledge/speculation as 

to what 24 of 31 refers to or means (319:23-

13); as to what Exhibit 108 refers to (321:17-

322:4); as to “feedback” from Wachsman 

and other reps (321:22-322:4); as to whether 

the scripts were written by oncologists 

(322:5-15); as to what Burlakoff was 

referring to (322:25-323:7, 323:21-324:5); as 

to Maggie Guerrero’s qualifications (325:12-

15); as to why Guerrero was emailing the 

oncology sales group (326:9-326:22); the 

credibility and use of NCCN guidelines to 

expand awareness (326:11-327:6)

801, 802: Hearsay as to Burlakoff’s 

statements (320:14-23, 322:25-323:7, 

323:21-324:5); Hearsay as to Wachsman’s 

statements (321:17-20, 321:22-322:4); 

Hearsay as to Guerrero’s statements (325:22-

326:8)

Foundation as to “the reports that Ryan Pitts 

would send out” (320:8-13); as to what 

“supportive” means (324:10-13); as to how 

Insys purportedly used NCCN guidelines to 

expand awareness among oncologists of 

Subsys (326:23-327:6)

327:13-330:7

401, 402, 403: Percentage of scripts/revenues 

artificially inflated by the Factor is unfair, 

prejudicial, confusing (403) (329:15-24)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 41 of 110
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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

601, 602: Speculation as to whether calendar 

invite reflects an oncology division meeting 

(327:18-328)

801, 802: Hearsay as to Von Hoff and 

Alberts’ statements (328:10-15); Hearsay as 

to Burlakoff’s statements (329:25-330:16)

Foundation as to “one of the meetings that 

you testified about earlier today with respect 

to the oncology division” given the number 

of meetings previously identified (328:2-15); 

as to whether “new prescribers” and “new 

prescribers” is company-wide or oncology 

division specific (329:15-24)

MIL #1: Efforts not in place by FY14

MIL #3

330:8-19

801, 802: Hearsay as to Burlakoff’s 

statements (329:25-330:16)

MIL #3

330:20-333:18

401, 402, 403: Percentage of scripts/revenues 

coming from oncologists when these 

numbers were artificially inflated by the 

Factor is unfair, prejudicial, and confusing 

(403) (330:23-18, 333:11-18); 

601, 602: Personal knowledge/speculation as

to “great progress as of January 2014” 

(330:23-18); as to the source of the data in 

Pipko’s 3/3/15 email (332:6-19)

801, 802: Hearsay as to Burlakoff’s 

statements (331:5-6, 332:20-333)

Foundation as to “great progress as of 

January 2014” means given document is 

from 2015 (330:23-18); as to “success” 

means (333:2-6)

MIL #1: FY15 results irrelevant (330:23-18, 

333:11-18); Postdates Misstatements 

(333:11-18)

MIL #3

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Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

334:3-336:3

401, 402, 403: Percentage of scripts/revenues 

artificially inflated by the Factor is unfair, 

prejudicial, confusing (403) (334:3-335:4)

601, 602: Speculation as to whether “growth 

among oncologists has contributed 

substantially to Subsys’ product growth” 

(334:20-335:3)

Foundation as to what “contributed 

substantially means”; as to time frame 

(335:5-336:3); as to what “progress” and 

“goals” means (335:11-23)

MIL #1: FY15 results irrelevant (334:3-

335:4); Postdates Misstatements (334:3-

335:4); Efforts not in place by FY14 (334:3-

335:4, 335:8-336:3)

MIL #3

336:4-340:16

401, 402, 403: Whether patients benefited 

from Subsys is not relevant to the 

claims/defenses (337:3-8); Whether Kapoor 

played tennis is not relevant (340:1-6)

601, 602: Speculation as to what others at 

Insys thought about the oncology division 

(336:12-337:1); as to the impact of Subsys 

on patients (337:3-8); as to Kapoor’s 

requests (339:16-22)

601: Legal conclusion as to whether witness 

was asked to “bribe” patient advocacy 

groups (337:10-25, 339:3-) or oncologists 

(338:5-339:1)

801, 802: Hearsay as to Kapoor’s statements 

(336:6-10, 337:10-20, 338:5-16, 339:16-22)

Foundation as to “anybody” or “anyone” 

and timeframe (336:12-17, 337:22-338:4, 

338:18:21); as to “valiant effort” (336:19-

337:1); as to “significant contribution” 

(337:3-8); as to “patient advocacy groups” 

“bribes” and timeframe (337:10-25); as to 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 43 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

43

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

“oncologists,” “bribes,” and timeframe 

(338:5-339:1); as to timeframe (339:16-22); 

as to government “investigations” and 

timeframe (340:7-14)

MIL #1: Efforts not in place by FY14

MIL #3

338:5-339:1 Subsumed within prior designation

341:23-342:24

106: Incomplete (369:3-370:4, 371:5-12 per 

FRE 106)

601, 602: Speculation as to Burlakoff’s 

“honest expression” of his “opinion” 

(342:19-24)

801, 802: Hearsay as to Burlakoff’s 

statements (342:19-24)

MIL #1: FY15 results irrelevant; Postdates 

Misstatements 

MIL #3

369:3-370:4, 

371:5-12

348:10-20

601, 602: Speculation as to Babich’s 

“attitudes with respect to the sale of Subsys 

to cancer patients” and Pipko’s “efforts” 

(348:10-20)

801, 802: Hearsay as to Babich’s statements 

(348:17-20)

Foundation as to timeframe

349:15-350:10

601, 602: Speculation as to whether Pipko 

spoke with Babich regarding his “efforts” 

(349:15-350:10)

801, 802: Hearsay as to Babich’s statements 

(349:21-350:10)

Foundation as to meaning of “efforts” 

(349:21-350:10), as to the number, content, 

and timeframe of the “conversations” 

referenced (349:21-350:10)

351:18-352:5

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 44 of 110
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44

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

and prejudicial (351:18-352:5); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (351:18-352:5)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter (351:18-352:5); 

as to the excerpt created by Defendants 

(351:18-352:5); as to the Form 10-K for 

FY14 and statements set forth therein 

(351:18-352:5); as to the Company’s overall 

Subsys usage in FY14 (351:18-352:5); as the 

key factors in generating Subsys usage in 

FY14 (351:18-352:5)

601: Legal conclusion as to whether 

statement at issue is “true” (351:18-352:5)

Foundation as to timeframe (351:18-

352:5); as to what the language at issue in 

the Form 10-K means (351:18-352:5)

353:2-6

401, 402, 403: Complaint allegations are not 

relevant to any claim or defense; Testimony 

based on excerpt of complaint allegations 

chosen by Defendants is unfair, confusing, 

and prejudicial (353:2-353:6); Testimony 

based on inadmissible document is unfair, 

confusing and prejudicial (353:2-353:6)

601, 602: Personal knowledge/speculation as 

to the allegations in this matter; as to the 

complaint filed in this matter (353:2-353:6); 

as to the excerpt created by Defendants 

(353:2-353:6); as to the Form 10-K for FY14 

and statements set forth therein (353:2-

353:6); as to the Company’s overall Subsys 

usage in FY14 (353:2-353:6); as the key 

factors in generating Subsys usage in FY14 

(353:2-353:6)

601: Legal conclusion as to whether 

statement at issue is “true” (351:18-352:5)

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 45 of 110
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45

Defendants’ 

Designations Plaintiff Class’s Objections

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to 

Plaintiff Class’s Counter 

Designations

Plaintiff Class’s Responses to 

Defendants Objections

Foundation as to timeframe (351:18-

352:5); as to what the language at issue in 

the Form 10-K means (351:18-352:5)

358:18-23

106: Incomplete (designate 359:20-360:18, 

361:16-19, 361:21-362:1 per FRE 106)

601, 602: Speculation as to what Babich 

meant by “unique programs in the oncology 

setting” 

Foundation as to when in March 2015, as to 

how “unique” is defined and assessed, as to 

“oncology setting,” as to “programs”

MIL #1: Efforts not in place by FY14

359:20-360:18, 

361-19, 361:21-

362:1

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 46 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

46

Plaintiff Class’s Designations 

Testifying Witness: Baker, Darryl

Date of Testimony: June 18, 2019 (Di Donato Matter)

Plaintiff Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations7

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

8:25-9:13

9:18-9:22

11:18-12:6

17:7-17:16

21:1-21:3

22:12-22:20

23:16-24:9

32:8-33:10

35:1-35:3

35:15-35:17

35:18-36:1

80:11-82:7

82:14-83:17

83:18-84:1

84:4-84:7

126:5-127:13

184:14-185:5

186:12-188:13

188:17-188:18

195:17-195:20

195:25-196:2

196:3-196:5

251:11-251:22 251:23-252:2

252:3-252:7

252:10-252:20 252:21-23

252:24-255:12

255:15-255:15

255:17-256:2 256:3-4, 6-7

 

7 These designations have been identified as for “completeness” pursuant to Fed. R. Evid. 106.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 47 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

47

Plaintiff Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations7

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

256:8-256:10

401-403: Criminal charges against 

non-parties are irrelevant to claims 

at issue and prejudicial to defendant

601-602: Witness has no personal 

knowledge. 

801-802: calls for hearsay.

Foundation exists based on prior 

testimony; the Criminal Enterprise is 

relevant to the Plaintiff Class’s 

claims because, among other things, 

it was an undisclosed key factor in 

Subsys revenue and sales growth for 

FY14; Defendants have not 

articulated the 403 concern; 

Question is seeking to establish 

whether there is knowledge; 

Hearsay issue is unclear

256:12-256:16

401-403: Criminal charges against 

non-parties are irrelevant to claims 

at issue and prejudicial to defendant

601-602: Witness has no personal 

knowledge. 

801-802: calls for hearsay.

Foundation exists based on prior 

testimony; the Criminal Enterprise is 

relevant to the Plaintiff Class’s 

claims because, among other things, 

it was an undisclosed key factor in 

Subsys revenue and sales growth for 

FY14; Defendants have not 

articulated the 403 concern; Witness 

clearly testifies to personal 

knowledge; No hearsay because 

witness is describing his own acts

256:18-256:22

401-403: Criminal charges against 

non-parties are irrelevant to claims 

at issue and prejudicial to defendant

601-602: Witness has no personal 

knowledge. 

801-802: calls for hearsay.

Foundation exists based on prior 

testimony; the Criminal Enterprise is 

relevant to the Plaintiff Class’s 

claims because, among other things, 

it was an undisclosed key factor in 

Subsys revenue and sales growth for 

FY14; Defendants have not 

articulated the 403 concern; Witness 

clearly testifies to personal 

knowledge; No hearsay because 

witness is describing his own acts

289:14-289:20

290:3-290:19

290:23-291:20

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 48 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

48

Plaintiff Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations7

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

291:23-291:25

292:1-293:11

293:6-23

foundation, prejudice, relevance, 

argumentative, Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have 

not articulated prejudice

293:19-293:21

293:6-23

foundation, prejudice, relevance, 

argumentative, Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have 

not articulated prejudice

293:23-293:23

293:6-23

foundation, prejudice, relevance, 

argumentative, Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have 

not articulated prejudice

293:24-25;

294:3-295:1

299:5-299:18

297:3-300:14

foundation speculation, competence, 

hearsay, prejudice, argumentative, 

Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 49 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

49

Plaintiff Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations7

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

counsel defense; Defendants have 

not articulated prejudice

299:22-300:14

297:3-300:14

foundation speculation, competence, 

hearsay, prejudice, argumentative, 

Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have

not articulated prejudice

300:20-300:22

300:20-301:8

foundation speculation, competence, 

hearsay, prejudice, argumentative, 

Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have 

not articulated prejudice

300:24-301:2

300:20-301:8

foundation speculation, competence, 

hearsay, prejudice, argumentative, 

Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

counsel defense; Defendants have 

not articulated prejudice

301:3-301:4

300:20-301:8

foundation speculation, competence, 

hearsay, prejudice, argumentative, 

Rule 403

Question provides the foundation; 

question is only asking the witness 

whether the statements are 

“inconsistent”; Testimony is 

relevant because Defendants have 

asserted that counsel was aware of 

all facts as part of reliance on 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 50 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

50

Plaintiff Class’s 

Designations

Defendants’

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’

Counter 

Designations7

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

counsel defense; Defendants have 

not articulated prejudice

301:8-301:8

Defendants’ Designations

Testifying Witness: Baker, Darryl

Date of Testimony: June 18, 2019 (Di Donato Matter)

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

9:18-20

17:17-22

106: Incomplete (designate 17:23-

24 per FRE 106)

401, 402, 403: Mr. Baker’s 

background is not relevant to 

claims/defenses

17:23-24

17:25-18:4

106: Incomplete (designate 18:5-8 

per FRE 106)

401, 402, 403: Mr. Baker’s 

background is not relevant to 

claims/defenses

18:5-8

21:1-3

21:19-22:3 106: Incomplete (designate 22:9-11 

per FRE 106) 22:9-11

22:12-17

23:10-15

27:16-18 106: Incomplete (designate 27:19-25 

per FRE 106) 27:19-25

 

8 The Plaintiff Class will update these objections to reflect the Court’s individual practices as well as the severance of the Plaintiff Class’s claims as to 

Mr. Baker. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 51 of 110
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51

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

401, 402, 403: Mr. Baker’s current 

employment is not relevant to 

claims/defenses

28:4-18

32:8-25

33:1-10

34:24-36:1

38:1-40:25

401, 402, 403: Participation in 10-Q 

drafting not relevant to 

claims/defenses; Counsel’s 

involvement is not relevant, 

misleading, unfair, confusing, and 

prejudicial (38:1-40:2)

Foundation as to 10-Qs, timeframe, 

and witness’s involvement with 

them

MIL #3

46:16-22

Foundation as to quarterly 

conference calls, timeframe, and 

witness’s involvement with them

MIL #3

47:9-49:12

401, 402, 403: Counsel’s 

involvement in the process for 

drafting 10-K and conference call 

script not relevant, misleading, 

unfair, confusing, and prejudicial 

(47:16-21)

Foundation as to quarterly 

conference calls, timeframe, and 

witness’s involvement with them

MIL #3

64:18-25

401, 402: Relevance of testimony is 

unclear

Foundation

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 52 of 110
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52

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

65:21-25

401, 402: Relevance of testimony is 

unclear

Foundation

66:1-2

401, 402: Relevance of testimony is 

unclear

Foundation

66:4-5

401, 402: Relevance of testimony is 

unclear

Foundation

74:3-7

401, 402, 403: SOX is not relevant 

to claims/defenses; Mr. Baker’s 

certification of the 10-K is not 

relevant to claims/defenses

74:10-76:24

401, 402, 403: SOX is not relevant 

to claims/defenses; Mr. Baker’s 

certification of the 10-K is not 

relevant to claims/defenses; 

existence or appropriateness of 

controls not relevant to 

claims/defenses; involvement of 

counsel and the SOX certification 

process is not relevant, misleading, 

unfair, confusing, and prejudicial; 

disclosure committee not relevant 

because witness couldn’t testify to 

when it was in place

MIL #3

80:7-15

83:18-84:7

85:22-86:2 106: Incomplete (designate 85:6-11 

per FRE 106) 85:6-11

93:5-11

106: Incomplete (designate 93:2-4 

per FRE 106)

401, 402, 403: Putative/aspirational 

oncological efforts or programs not 

93:2-4

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53

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

executed/implemented by FY14 not 

relevant to claims/defenses

601, 602: Personal 

knowledge/speculation as to what

was discussed at meetings in FY14 

about the oncology initiative

Foundation as to “oncology 

initiative”

MIL #3

93:17-23

106: Incomplete (designate 93:12-16 

per FRE 106)

401, 402, 403: Putative/aspirational 

oncological efforts or programs not 

executed/implemented by FY14 not 

relevant to claims/defenses

601, 602: Personal 

knowledge/speculation as to what 

was discussed at meetings in FY14 

about the oncology initiative

Foundation as to “oncology 

initiative”

MIL #3

93:12-16

93:25-94:20

106: Incomplete (designate 93:2-4 

per FRE 106)

401, 402, 403: Putative/aspirational 

oncological efforts or programs not 

executed/implemented by FY14 not 

relevant to claims/defenses

601, 602: Personal 

knowledge/speculation as to what 

was discussed at meetings in FY14 

about the oncology initiative

Foundation as to “oncology 

initiative”

MIL #3

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 54 of 110
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54

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

95:3-96:19

106: Incomplete (designate 93:2-4 

per FRE 106)

401, 402, 403: Putative/aspirational 

oncological efforts or programs not 

executed/implemented by FY14 not 

relevant to claims/defenses

601, 602: Personal 

knowledge/speculation as to what 

was discussed at meetings in FY14 

about the oncology initiative

Foundation as to “oncology 

initiative”

118:20-119:17

401, 402, 403: Relevance of 

testimony is not clear

Foundation as to the dashboard and 

process for providing information 

and timeframe; as to the functional 

leaders

142:6-143:2

106: Incomplete (designate 143:3-

144:3 per FRE 106)

MIL #3

143:3-144:3

144:4-145:7

106: Incomplete (designate 145:8-11 

per FRE 106)

401, 402, 403: Speculation as to 

whether oncologists referred 

patients to pain HCPs not relevant to 

claims/defenses and also misleading, 

unfair, confusing and prejudicial

601, 602: Personal 

knowledge/speculation as to how 

oncologists practice medicine and 

engage in referrals

MIL #3

145:8-11

145:17-146:14 106: Incomplete (designate 146:15-

147:2 per FRE 106)

146:15-147:2, 

147:4-8

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55

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

401, 402, 403: Speculation as to 

whether oncologists referred 

patients to pain HCPs not relevant to 

claims/defenses and also misleading, 

unfair, confusing and prejudicial

601, 602: Personal 

knowledge/speculation as to how 

oncologists practice medicine and 

engage in referrals

Misstates testimony as to whether 

there was data supporting 

speculation (compare 145:21-24 

with 145:8-11)

Foundation As to the data reviewed 

and timeframe for testimony

MIL #3

147:9-13

147:23-148:4

401, 402, 403: Other unnamed 

reports the witness cannot recall 

receiving and cannot describe are 

not relevant to claims/defenses

601, 602: Personal 

knowledge/speculation as to what 

reports witness received in 2014

MIL #3

148:5-11

156:14-24

106: Incomplete (designate 154:10-

155:24, 156:8-10, 156:12-13 per 

FRE 106)

401, 402, 403: Relevance of 

testimony is unclear

Foundation 

MIL #3

154:10-155:24

156:8-10

156:12-13

163:22-164:4 106: Incomplete (designate 160:23-

161:15, 164:5-7 per FRE 106)

160:23-161:15

164:5-7

167:3-13 Foundation as to timeframe

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56

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

167:16-172:1

601, 602: Personal 

knowledge/speculation as to how the 

speaker program worked

173:4-9

106: Incomplete (designate 172:5-18 

per FRE 106) 172:5-18

173:12-23

173:24-174:7

175:15-176:1

176:1

176:4-6

176:7-8

176:11-15

176 :18-22

176:25-177:9

177:16-178:23

179:1-3

183:18-25

401, 402, 403: Putative/aspirational 

oncological efforts not implemented 

or executed by FY14 not relevant to 

claims/defenses

Foundation as to “various 

presentations” and the “advisory 

board meeting”

MIL #3

186:12-25

187:1-25

188:1-14

188:17-189:1

189:9-13

189:18-190:2

190:3-12

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57

Defendants’ 

Designations Plaintiff Class’s Objections8

Plaintiff Class’s 

Counter 

Designations

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

190:15-23

191:4-7

191:15-24

192:2-193:1

193:4- 194:9

194:12-195:8

195:11

195:12-20

195:25-196:9

196:21-197:9

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 58 of 110
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58

Plaintiff Class’s Designations 

Testifying Witness: Kapoor, John

Date of Testimony: June 20, 2019 (Di Donato Matter)

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

10:14-10:15

10:20-10:24

11:6-11:7

11:9-11:16

11:19-12:1

12:4-12:11

12:14-12:18

13:7-13:9

13:12-13:16

13:17-13:19

13:22-14:1

15:3-15:4

15:7-15:11

15:12-15:14

15:17-15:21

20:21-20:24

21:3-21:7

24:14-24:19

24:24-25:3

34:9-34:12

34:15-34:19

35:6-35:9

401-403: Testimony about the 

criminal proceeding is prejudicial to 

Defendants and not relevant to the 

claims. 

801-802: calls for hearsay, legal 

conclusion

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the

403 concern; To the extent that the 

question uses the jury verdict for the 

truth of the matters asserted therein, 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 59 of 110
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59

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

FRE 803(22) applies; Question as to 

what the jury verdict was in the 

Boston Trial does not require a legal 

conclusion

35:12-35:16

401-403: Testimony about the 

criminal proceeding is prejudicial to 

Defendants and not relevant to the 

claims. 

801-802: calls for hearsay, legal 

conclusion

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the 

403 concern; To the extent that the 

question uses the jury verdict for the 

truth of the matters asserted therein, 

FRE 803(22) applies; Question as to 

what the jury verdict was in the 

Boston Trial does not require a legal 

conclusion

35:17-35:20

401-403: Testimony about the 

criminal proceeding is prejudicial to 

Defendants and not relevant to the 

claims. 

801-802: calls for hearsay, legal 

conclusion

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the 

403 concern; To the extent that the 

question uses the jury verdict for the 

truth of the matters asserted therein, 

FRE 803(22) applies; Question as to 

what the jury verdict was in the 

Boston Trial does not require a legal 

conclusion

35:23-36:2

401-403: Testimony about the 

criminal proceeding is prejudicial to 

Defendants and not relevant to the 

claims. 

801-802: calls for hearsay, legal 

conclusion

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 60 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

60

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

403 concern; To the extent that the 

question uses the jury verdict for the 

truth of the matters asserted therein, 

FRE 803(22) applies; Question as to 

what the jury verdict was in the 

Boston Trial does not require a legal 

conclusion

39:12-39:15

39:18-39:22

39:23-40:4

40:8-40:12

40:13-40:16

40:19-40:23

40:24-41:3

41:6-41:10

41:11-41:15

41:20-41:24

41:25-42:4

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants.

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the 

403 concern

42:9-42:13

42:22-43:1

43:6-43:6

43:7-43:12

43:17-43:17

43:18-43:23

44:3-44:7

44:8-44:13

44:18-44:22

44:23-45:2

45:7-45:7

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 61 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

61

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

45:8-45:11

45:16-45:20

45:21-46:1

46:6-46:10

46:11-46:15

46:20-46:24

46:25-47:4

47:9-47:13

47:14-47:18

47:22-48:1

48:2-48:7

48:11-48:15

48:16-48:21

49:1-49:5

49:6-49:10

49:14-49:18

50:8-50:11

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

601-602: No foundation that 

“many” patients were 

inappropriately prescribed Subsys

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

Defendants have not articulated the 

403 concern; Relevant if Defendants 

can put at issue the medical 

necessity of Subsys

50:16-50:20 relevance, prejudice

Relevant if Defendants can put at 

issue the medical necessity of 

Subsys

51:8-51:11

51:15-51:19

51:20-51: 23

52:3-52:7

52:8-52:12

52:17-52:21

52:22-53:1

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 62 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

62

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

53:6-53:10

53:11-53:15

53:20-24

53:25-54:4

54:9-54:13

56:1-56:5

56:10-56:14

56:15-56:19

56:23-57:2

59:5-59:9

59:14-59:18

59:19-59:23

60:3-60:7

60:8-60:12

60:17-60:21

61:5-61:9

61:14-61:18

61:19-61:23

62:3-62:7

62:8-62:13

62:18-62:22

63:12-63:17

63:22-64:1

64:2-64:8

64:13-64:17

64:21-65:3

65:6-65:10

66:11-66:15

66:18-66:22

67:1-67:4

67:7-67:11

67:12-67:18

67:23-68:2

68:3-68:6

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 63 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

63

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

68:10-68:14

69:21-69:24

70:3-70:7

71:22-71:25

72:5-72:9

76:13-76:15

76:19-76:23

76:24-77:2

77:6-77:10

77:11-77:13

77:17-77:21

79:16-79:18

79:23-80:2

80:3-80:5

80:10-80:14

80:15-80:19

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

Any discussion of the IRC’s efforts 

to obtain PAs at the 8:30 am 

meeting attended by Kapoor is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth from the 

statements at issue; Defendants have 

not articulated any prejudice

80:24-81:3

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

Any discussion of the IRC’s efforts 

to obtain PAs at the 8:30 am 

meeting attended by Kapoor is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth from the 

statements at issue; Defendants have 

not articulated any prejudice

81:7-81:11 401-403: Conduct at issue in 

criminal trial is not relevant to the 

Any discussion of the IRC’s efforts 

to obtain PAs at the 8:30 am 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 64 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

64

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

claims and is unfairly prejudicial to 

Defendants

meeting attended by Kapoor is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth from the 

statements at issue; Defendants have 

not articulated any prejudice

81:12-81:14

81:18-81:22

81:23-81:25

82:4-82:8

82:9-82:14

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

82:18-82:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

83:20-83:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 65 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

65

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

84:2-84:6

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

84:15-84:17

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

84:22-84:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

85:6-85:8

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

85:13-85:17

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 66 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

66

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

86:20-86:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

87:2-87:6

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

87:11-87:13

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

87:18-87:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 67 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

67

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

88:6-88:8

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

88:13-88:17

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

89:1-89:3

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

89:8-89:12

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

90:19-90:21

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 68 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

68

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

existence and impact of the criminal 

fraud on revenue growth;Defendants 

have not articulated any prejudice

90:24-91:3

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. 

The use of the term “whale” to 

describe HCPs that were bribed is 

relevant to Plaintiff Class’s claim 

that Defendants omitted the 

existence and impact of the criminal 

fraud on revenue growth; 

Defendants have not articulated any 

prejudice

91:4-91:7

91:10-91:14

91:15-91:22

91:25-92:4

92:5-92:9

92:5-94

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

The Criminal Enterprise is relevant 

to the Plaintiff Class’s claims 

because, among other things, it was 

an undisclosed key factor in Subsys 

revenue and sales growth for FY14; 

this goes precisely to the issue of 

whether Kapoor omitted material 

information from the 10-K statement 

and therefore is relevant; Asking the 

Defendant about whether he 

disclosed the information the 

Plaintiff Class has alleged was 

omitted from the Misstatements 

goes to the central question before 

the jury

92:14-92:18

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 69 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

69

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

contained in a document is a waste 

of the jury’s time. 

92:19-92:22

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

See above.

93:2-93:6

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

See above.

93:7-93:11

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

See above.

93:16-93:20

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

See above.

93:21-93:25

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

See above.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 70 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

70

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

contained in a document is a waste 

of the jury’s time. 

94:5-94:9

401-403: Conduct at issue in 

criminal trial is not relevant to the 

claims and is unfairly prejudicial to 

Defendants. Asking the witness 

questions about what is not 

contained in a document is a waste 

of the jury’s time. 

See above.

95:22-95:25

96:3-96:7

96:8-96:10

96:13-96:17

96:18-96:19

96:22-97:1

97:2-97:5

97:11-97:15

97:16-98:1

98:4-98:8

98:9-98:11

98:14-98:18

98:19-98:23

99:5-99:9

99:10-99:13

99:16-99:20

99:21-100:3

100:6-100:10

100:14-100:20

100:23-101:2

101:3-101:4

101:7-101:11

101:12-101:14

101:17-101:21

101:22-102:6

102:9-102:13

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 71 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

71

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

102:14-102:16

102:19-102:23

102:24-103:2

103:5-103:9

103:10-103:15

104:6-104:8

104:11-104:15

104:16-104:23

105:1-105:5

120:14-120:20

120:23-121:2

124:1-124:6

124:10-124:14

124:17-124:23

125:2-125:6

125:7-125:10

125:14-125:18

125:19-125:21

125:25-126:4

126:16-126:19

126:24-127:3

133:19-133:22

134:1-134:5

134:12-134:16

134:19-134:23

135:1-135:5

138:2-138:4

138:6-138:10

138:11-138:13

138:16-138:20

138:21-138:23

139:3-139:7

139:8-139:11

139:14-139:18

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 72 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

72

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

139:19-139:22

140:1-140:5

140:6-140:9

140:13-140:17

140:18-140:20

140:23-141:2

141:3-141:6

141:9-141:13

143:1-143:4

143:8-143:12

143:13-143:15

143:19-143:23

144:1-144:6

144:8-144:12

144:13-144:15

144:19-144:23

144:24-145:3

145:7-145:11

145:21-145:23

146:5-146:9

146:10-146:14

146:19-146:23

147:1-147:4

147:8-147:12

147:19-147:23

148:1-148:5

149:13-149:16

149:20-149:24

150:11-150:16

150:19-150:23

150:24-150:25

151:4-151:8

151:9-151:10

151:14-151:18

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 73 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

73

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

151:19-151:21

151:24-152:3

152:4-152:5

152:9-152:13

152:14-152:18

152:23-153:2

153:14-154:2

153:14-154:10

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants. 

801-802: calls for hearsay

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Defendants have not 

articulated any prejudice

154:6-154:10

153:14-154:10

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants. 

801-802: calls for hearsay

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Not hearsay because it is a 

Statement against the Interests of an 

Unavailable Declarant (Burlakoff) 

under FRE 804(d)(3); If hearsay, 

there is an exception under FRE 

803(22); Defendants have not 

articulated any prejudice

154:24-155:4

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 74 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

74

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

801-802: calls for hearsay Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Not hearsay because it is a 

Statement against the Interests of an 

Unavailable Declarant (Burlakoff) 

under FRE 804(d)(3); If hearsay, 

there is an exception under FRE 

803(22); Defendants have not 

articulated any prejudice

155:9-155:13

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

801-802: calls for hearsay

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Not hearsay because it is a 

Statement against the Interests of an 

Unavailable Declarant (Burlakoff) 

under FRE 804(d)(3); If hearsay, 

there is an exception under FRE 

803(22); Defendants have not 

articulated any prejudice

155:14-155:18

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

801-802: calls for hearsay

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Not hearsay because it is a 

Statement against the Interests of an 

Unavailable Declarant (Burlakoff) 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 75 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

75

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

under FRE 804(d)(3); If hearsay, 

there is an exception under FRE 

803(22); Defendants have not 

articulated any prejudice

155:23-156:2

401-403: Conduct at issue in 

criminal trial and regarding a nonparty is not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

801-802: calls for hearsay

The fact that Insys’ former VP of 

Sales pled guilty to a racketeering 

conspiracy in connection with his 

work at the Company is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the existence 

and impact of the criminal fraud on 

revenue growth from the statements 

at issue; Not hearsay because it is a 

Statement against the Interests of an 

Unavailable Declarant (Burlakoff) 

under FRE 804(d)(3); If hearsay, 

there is an exception under FRE 

803(22); Defendants have not 

articulated any prejudice

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 76 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

76

Plaintiff Class’s Designations 

Testifying Witness: Yu, Xun (Sean)

Date of Testimony: June 20, 2019 (Di Donato Matter)

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

5:16-5:19

6:16-6:19

7:9-7:16

8:11-8:23 8:16-8:23 relevance, prejudice

The Court has repeatedly 

determined that topics underlying 

Mr. Yu’s testimony are relevant to 

the Plaintiff Class’s claims, 

including in the Summary Judgment 

Order and the Order on the Motions 

to Strike Russell and Devor. 

Additionally, certain topics 

underlying Mr. Yu’s testimony, 

including with respect to the 

oncology territory and oncology 

HCPs, are the subject matter 

underlying Defendants’ affirmative 

designations in, for instance, the 

deposition of Brian Pipko. 

Moreover, Defendants should 

articulate the specific prejudice they 

believe flows from the use of the 

Plaintiff Class’s affirmative 

designations to Mr. Yu’s deposition 

transcript at trial. Accordingly, the 

Plaintiff Class is unable to respond 

to Defendants’ blanket objection to 

these designations on the basis of 

relevance and prejudice.

 

9 Please note that while there are 448 separate designations listed for Mr. Yu, this was necessary to avoid designation the objections lodged by Defendants’ 

counsel during the deposition. These 448 designations amount to just over 2 hours of testimony. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 77 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

77

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

13:10-13:21 relevance, prejudice See above. 

13:23-13:23 relevance, prejudice See above. 

13:25-13:25 relevance, prejudice See above. 

14:2-14:2 relevance, prejudice See above. 

14:4-15:12 relevance, prejudice See above. 

15:13-15:24 relevance, prejudice See above. 

18:10-19:17 relevance, prejudice See above. 

20:12-22:20 relevance, prejudice See above. 

22:23-22:23 relevance, prejudice See above. 

22:25-23:6 relevance, prejudice See above. 

23:8-23:19 relevance, prejudice See above. 

23:21-24:3 relevance, prejudice See above. 

24:5-24:5 relevance, prejudice See above. 

24:7-24:10 relevance, prejudice See above. 

24:11-24:16 relevance, prejudice See above. 

24:18-24:18 relevance, prejudice See above. 

24:20-24:22 relevance, prejudice See above. 

24:24-24:24 relevance, prejudice See above. 

25:2-25:7 relevance, prejudice See above. 

25:9-25:9 relevance, prejudice See above. 

25:11-25:15 relevance, prejudice See above. 

25:17-25:21 relevance, prejudice See above. 

25:23-26:2 relevance, prejudice See above. 

26:4-26:8 relevance, prejudice See above. 

26:10-26:13 relevance, prejudice See above. 

26:15-26:18 relevance, prejudice See above. 

26:20-26:22 relevance, prejudice See above. 

26:24-27:2 relevance, prejudice See above. 

27:4-27:8 relevance, prejudice See above. 

27:10-27:13 relevance, prejudice See above. 

27:15-27:21 relevance, prejudice See above. 

27:23-27:23 relevance, prejudice See above. 

27:25-28:1 relevance, prejudice See above. 

28:3-28:3 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 78 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

78

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

28:6-28:7 relevance, prejudice See above. 

28:9-28:9 relevance, prejudice See above. 

28:11-28:13 relevance, prejudice See above. 

28:15-28:15 relevance, prejudice See above. 

28:17-28:18 relevance, prejudice See above. 

28:20-28:23 relevance, prejudice See above. 

28:25-28:25 relevance, prejudice See above. 

29:2-29:3 relevance, prejudice See above. 

29:5-29:10 relevance, prejudice See above. 

29:12-29:20 relevance, prejudice See above. 

29:22-30:5 relevance, prejudice See above. 

30:7-30:15 relevance, prejudice See above. 

30:17-30:24 relevance, prejudice See above. 

31:1-31:5 relevance, prejudice See above. 

31:7-31:14 relevance, prejudice See above. 

31:16-31:20 relevance, prejudice See above. 

31:22-32:5 relevance, prejudice See above. 

32:7-32:12 relevance, prejudice See above. 

32:14-32:20 relevance, prejudice See above. 

32:22-33:1 relevance, prejudice See above. 

33:3-33:8 relevance, prejudice See above. 

33:10-33:14 relevance, prejudice See above. 

33:16-33:23 relevance, prejudice See above. 

33:25-34:3 relevance, prejudice See above. 

34:5-34:9 relevance, prejudice See above. 

34:11-34:14 relevance, prejudice See above. 

34:16-34:21 relevance, prejudice See above. 

34:23-34:25 relevance, prejudice See above. 

35:2-35:6 relevance, prejudice See above. 

35:8-35:13 relevance, prejudice See above. 

35:15-35:18 relevance, prejudice See above. 

35:20-35:25 relevance, prejudice See above. 

36:2-36:9 relevance, prejudice See above. 

36:11-36:15 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 79 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

79

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

36:17-36:20 relevance, prejudice See above. 

36:22-37:4 relevance, prejudice See above. 

37:6-37:10 relevance, prejudice See above. 

37:12-37:15 relevance, prejudice See above. 

37:17-37:21 relevance, prejudice See above. 

37:23-38:1 relevance, prejudice See above. 

38:3-38:14 relevance, prejudice See above. 

38:16-38:19 relevance, prejudice See above. 

38:22-38:25 relevance, prejudice See above. 

39:2-39:6 relevance, prejudice See above. 

39:8-39:13 relevance, prejudice See above. 

39:15-39:24 relevance, prejudice See above. 

40:1-40:5 relevance, prejudice See above. 

40:7-40:10 relevance, prejudice See above. 

40:12-40:14 relevance, prejudice See above. 

40:16-40:19 relevance, prejudice See above. 

40:21-41:1 relevance, prejudice See above. 

41:3-41:6 relevance, prejudice See above. 

41:8-41:11 relevance, prejudice See above. 

41:13-41:15 relevance, prejudice See above. 

41:17-41:19 relevance, prejudice See above. 

41:21-41:23 relevance, prejudice See above. 

41:25-42:2 relevance, prejudice See above. 

42:4-42:8 relevance, prejudice See above. 

42:10-42:13 relevance, prejudice See above. 

42:15-42:18 relevance, prejudice See above. 

42:20-42:23 relevance, prejudice See above. 

42:25-43:7 relevance, prejudice See above. 

43:9-43:13 relevance, prejudice See above. 

43:16-43:19 relevance, prejudice See above. 

43:21-43:25 relevance, prejudice See above. 

44:2-44:5 relevance, prejudice See above. 

44:7-44:11 relevance, prejudice See above. 

44:13-44:16 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 80 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

80

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

44:18-44:21 relevance, prejudice See above. 

44:23-45:1 relevance, prejudice See above. 

45:3-45:7 relevance, prejudice See above. 

45:9-45:12 relevance, prejudice See above. 

45:14-45:17 relevance, prejudice See above. 

45:19-45:24 relevance, prejudice See above. 

46:1-46:6 relevance, prejudice See above. 

57:6-57:13 relevance, prejudice See above. 

58:2-58:18 relevance, prejudice See above. 

58:20-58:23 relevance, prejudice See above. 

58:25-59:7 relevance, prejudice See above. 

59:9-59:12 relevance, prejudice See above. 

59:14-59:17 relevance, prejudice See above. 

59:19-59:22 relevance, prejudice See above. 

59:24-60:2 relevance, prejudice See above. 

60:4-60:7 relevance, prejudice See above. 

60:9-60:12 relevance, prejudice See above. 

60:14-60:18 relevance, prejudice See above. 

60:20-60:23 relevance, prejudice See above. 

60:25-61:4 relevance, prejudice See above. 

61:6-61:10 relevance, prejudice See above. 

61:12-61:15 relevance, prejudice See above. 

61:17-61:21 relevance, prejudice See above. 

61:23-61:25 relevance, prejudice See above. 

62:2-62:4 relevance, prejudice See above. 

62:6-62:8 relevance, prejudice See above. 

62:10-62:12 relevance, prejudice See above. 

62:14-62:17 relevance, prejudice See above. 

62:19-62:24 relevance, prejudice See above. 

63:1-63:5 relevance, prejudice See above. 

63:8-63:12 relevance, prejudice See above. 

63:16-63:19 relevance, prejudice See above. 

63:21-64:15 relevance, prejudice See above. 

64:17-65:9 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 81 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

81

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

65:11-65:24 relevance, prejudice See above. 

66:1-66:3 relevance, prejudice See above. 

66:5-66:14 relevance, prejudice See above. 

66:18-66:20 relevance, prejudice See above. 

67:2-67:21 relevance, prejudice See above. 

68:12-68:16 relevance, prejudice See above. 

68:19-69:24 relevance, prejudice See above. 

70:1-70:16 relevance, prejudice See above. 

71:11-71:13 relevance, prejudice See above. 

71:16-71:21 relevance, prejudice See above. 

71:24-72:6 relevance, prejudice See above. 

72:8-72:11 relevance, prejudice See above. 

72:13-72:16 relevance, prejudice See above. 

72:18-72:22 relevance, prejudice See above. 

72:25-73:3 relevance, prejudice See above. 

73:5-73:8 relevance, prejudice See above. 

73:10-73:14 relevance, prejudice See above. 

73:16-73:21 relevance, prejudice See above. 

73:23-74:2 relevance, prejudice See above. 

74:4-74:8 relevance, prejudice See above. 

74:10-74:14 relevance, prejudice See above. 

74:16-74:21 relevance, prejudice See above. 

74:23-75:4 relevance, prejudice See above. 

75:7-75:10 relevance, prejudice See above. 

75:14-76:10 relevance, prejudice See above. 

76:12-76:25 relevance, prejudice See above. 

77:2-77:5 relevance, prejudice See above. 

77:7-77:12 relevance, prejudice See above. 

77:14-77:17 relevance, prejudice See above. 

77:19-77:24 relevance, prejudice See above. 

78:1-78:15 relevance, prejudice See above. 

78:17-78:22 relevance, prejudice See above. 

79:2-79:14 relevance, prejudice See above. 

86:17-86:19 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 82 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

82

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

86:23-87:16 relevance, prejudice See above. 

87:18-87:18 relevance, prejudice See above. 

87:20-87:21 relevance, prejudice See above. 

87:25-88:17 relevance, prejudice See above. 

88:19-88:23 relevance, prejudice See above. 

88:25-89:3 relevance, prejudice See above. 

89:5-89:12 relevance, prejudice See above. 

89:14-89:16 relevance, prejudice See above. 

89:18-89:20 relevance, prejudice See above. 

89:22-90:1 relevance, prejudice See above. 

90:3-90:6 relevance, prejudice See above. 

90:8-90:8 relevance, prejudice See above. 

90:10-90:11 relevance, prejudice See above. 

90:15-91:6 relevance, prejudice See above. 

91:8-91:18 relevance, prejudice See above. 

91:20-91:24 relevance, prejudice See above. 

92:1-92:3 relevance, prejudice See above. 

92:5-92:7 relevance, prejudice See above. 

92:9-92:12 relevance, prejudice See above. 

92:14-92:18 relevance, prejudice See above. 

92:20-92:23 relevance, prejudice See above. 

93:1-93:1 relevance, prejudice See above. 

93:3-93:4 relevance, prejudice See above. 

93:11-94:6 relevance, prejudice See above. 

94:8-94:14 relevance, prejudice See above. 

94:16-94:20 relevance, prejudice See above. 

94:24-95:1 relevance, prejudice See above. 

95:15-96:4 relevance, prejudice See above. 

96:9-96:9 relevance, prejudice See above. 

96:11-96:13 relevance, prejudice See above. 

96:15-96:21 relevance, prejudice See above. 

96:24-97:4 relevance, prejudice See above. 

97:6-97:10 relevance, prejudice See above. 

97:13-97:18 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 83 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

83

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

97:21-98:9 relevance, prejudice See above. 

98:11-98:11 relevance, prejudice See above. 

98:13-98:14 relevance, prejudice See above. 

98:18-99:16 relevance, prejudice See above. 

99:18-99:24 relevance, prejudice See above. 

100:1-100:7 relevance, prejudice See above. 

100:10-100:13 relevance, prejudice See above. 

100:15-100:15 relevance, prejudice See above. 

100:17-100:20 relevance, prejudice See above. 

100:25-101:10 relevance, prejudice See above. 

101:12-101:16 relevance, prejudice See above. 

101:19-101:25 relevance, prejudice See above. 

102:2-102:6 relevance, prejudice See above. 

102:8-102:8 relevance, prejudice See above. 

102:10-102:11 relevance, prejudice See above. 

102:15-103:20 relevance, prejudice See above. 

103:22-104:9 relevance, prejudice See above. 

104:11-104:12 relevance, prejudice See above. 

104:17-105:1 relevance, prejudice See above. 

105:3-105:7 relevance, prejudice See above. 

105:10-105:13 relevance, prejudice See above. 

105:15-105:20 relevance, prejudice See above. 

105:23-105:23 relevance, prejudice See above. 

105:24-106:1 relevance, prejudice See above. 

106:14-107:5 relevance, prejudice See above. 

107:7-107:10 relevance, prejudice See above. 

107:12-107:15 relevance, prejudice See above. 

107:17-107:20 relevance, prejudice See above. 

107:22-108:1 relevance, prejudice See above. 

108:3-108:10 relevance, prejudice See above. 

108:12-108:16 relevance, prejudice See above. 

108:19-108:22 relevance, prejudice See above. 

108:25-109:3 relevance, prejudice See above. 

109:6-109:9 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 84 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

84

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

109:11-109:14 relevance, prejudice See above. 

109:17-109:19 relevance, prejudice See above. 

109:21-109:24 relevance, prejudice See above. 

110:1-110:4 relevance, prejudice See above. 

110:6-110:9 relevance, prejudice See above. 

110:11-110:11 relevance, prejudice See above. 

110:12-110:14 relevance, prejudice See above. 

110:19-111:5 relevance, prejudice See above. 

111:7-111:10 relevance, prejudice See above. 

111:13-111:16 relevance, prejudice See above. 

111:19-111:22 relevance, prejudice See above. 

111:25-112:3 relevance, prejudice See above. 

112:5-112:9 relevance, prejudice See above. 

112:11-112:14 relevance, prejudice See above. 

112:16-112:19 relevance, prejudice See above. 

112:21-112:24 relevance, prejudice See above. 

113:1-113:4 relevance, prejudice See above. 

113:6-113:10 relevance, prejudice See above. 

113:12-113:15 relevance, prejudice See above. 

113:17-113:20 relevance, prejudice See above. 

113:22-114:1 relevance, prejudice See above. 

114:3-114:6 relevance, prejudice See above. 

114:8-114:11 relevance, prejudice See above. 

114:13-114:16 relevance, prejudice See above. 

114:19-114:19 relevance, prejudice See above. 

114:21-114:23 relevance, prejudice See above. 

115:1-115:6 relevance, prejudice See above. 

115:8-115:12 relevance, prejudice See above. 

115:14-115:14 relevance, prejudice See above. 

115:16-115:17 relevance, prejudice See above. 

115:22-116:3 relevance, prejudice See above. 

116:10-116:16 relevance, prejudice See above. 

116:21-116:22 relevance, prejudice See above. 

116:24-117:6 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 85 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

85

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

117:8-117:12 relevance, prejudice See above. 

117:16-117:23 relevance, prejudice See above. 

118:1-118:8 relevance, prejudice See above. 

118:11-118:19 relevance, prejudice See above. 

118:22-119:1 relevance, prejudice See above. 

119:4-119:8 relevance, prejudice See above. 

119:14-119:16 relevance, prejudice See above. 

119:18-119:23 relevance, prejudice See above. 

119:25-120:5 relevance, prejudice See above. 

120:7-120:14 relevance, prejudice See above. 

120:17-120:23 relevance, prejudice See above. 

121:2-121:15 relevance, prejudice See above. 

121:18-121:23 relevance, prejudice See above. 

121:25-122:4 relevance, prejudice See above. 

122:7-122:11 relevance, prejudice See above. 

122:14-122:19 relevance, prejudice See above. 

122:21-122:24 relevance, prejudice See above. 

123:1-123:5 relevance, prejudice See above. 

123:8-123:12 relevance, prejudice See above. 

123:15-123:19 relevance, prejudice See above. 

123:21-123:21 relevance, prejudice See above. 

124:4-124:5 relevance, prejudice See above. 

124:7-124:10 relevance, prejudice See above. 

124:12-124:15 relevance, prejudice See above. 

124:17-124:19 relevance, prejudice See above. 

124:21-124:24 relevance, prejudice See above. 

125:1-125:01 relevance, prejudice See above. 

125:12-125:15 relevance, prejudice See above. 

125:19-126:2 relevance, prejudice See above. 

126:4-126:14 relevance, prejudice See above. 

126:16-127:2 relevance, prejudice See above. 

127:4-127:9 relevance, prejudice See above. 

127:11-127:17 relevance, prejudice See above. 

127:19-127:23 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 86 of 110
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86

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

127:25-128:3 relevance, prejudice See above. 

128:5-128:8 relevance, prejudice See above. 

128:10-129:7 relevance, prejudice See above. 

129:9-129:9 relevance, prejudice See above. 

129:11-129:15 relevance, prejudice See above. 

129:25-130:5 relevance, prejudice See above. 

130:11-130:24 relevance, prejudice See above. 

131:1-131:5 relevance, prejudice See above. 

131:7-131:10 relevance, prejudice See above. 

131:12-131:15 relevance, prejudice See above. 

131:17-131:24 relevance, prejudice See above. 

132:1-132:4 relevance, prejudice See above. 

132:6-132:9 relevance, prejudice See above. 

132:11-132:15 relevance, prejudice See above. 

132:17-132:20 relevance, prejudice See above. 

132:22-133:15 relevance, prejudice See above. 

133:17-133:20 relevance, prejudice See above. 

133:22-133:25 relevance, prejudice See above. 

134:2-134:5 relevance, prejudice See above. 

134:7-134:14 relevance, prejudice See above. 

134:16-134:20 relevance, prejudice See above. 

134:22-134:25 relevance, prejudice See above. 

135:3-135:5 relevance, prejudice See above. 

135:7-135:10 relevance, prejudice See above. 

135:13-135:16 relevance, prejudice See above. 

135:18-135:21 relevance, prejudice See above. 

135:23-136:1 relevance, prejudice See above. 

136:3-136:6 relevance, prejudice See above. 

136:8-136:13 relevance, prejudice See above. 

136:16-136:16 relevance, prejudice See above. 

136:18-136:21 relevance, prejudice See above. 

136:24-137:4 relevance, prejudice See above. 

137:6-137:10 relevance, prejudice See above. 

137:12-137:15 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 87 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

87

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

137:17-137:21 relevance, prejudice See above. 

137:24-138:4 relevance, prejudice See above. 

138:6-138:11 relevance, prejudice See above. 

138:13-138:19 relevance, prejudice See above. 

138:22-139:1 relevance, prejudice See above. 

139:4-139:9 relevance, prejudice See above. 

139:11-139:14 relevance, prejudice See above. 

139:17-139:23 relevance, prejudice See above. 

140:1-140:6 relevance, prejudice See above. 

140:8-140:12 relevance, prejudice See above. 

140:14-140:17 relevance, prejudice See above. 

140:19-140:23 relevance, prejudice See above. 

141:1-141:4 relevance, prejudice See above. 

141:6-141:10 relevance, prejudice See above. 

141:13-141:16 relevance, prejudice See above. 

141:18-141:23 relevance, prejudice See above. 

142:1-142:5 relevance, prejudice See above. 

142:8-142:8 relevance, prejudice See above. 

142:10-142:11 relevance, prejudice See above. 

143:6-143:24 relevance, prejudice See above. 

144:1-144:7 relevance, prejudice See above. 

144:9-144:13 relevance, prejudice See above. 

144:15-144:21 relevance, prejudice See above. 

144:24-144:24 relevance, prejudice See above. 

145:2-145:4 relevance, prejudice See above. 

145:6-145:6 relevance, prejudice See above. 

145:12-145:13 relevance, prejudice See above. 

145:16-145:21 relevance, prejudice See above. 

145:24-146:6 relevance, prejudice See above. 

146:9-146:13 relevance, prejudice See above. 

146:15-146:18 relevance, prejudice See above. 

146:20-146:23 relevance, prejudice See above. 

146:25-147:3 relevance, prejudice See above. 

147:5-147:7 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 88 of 110
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88

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

147:9-147:13 relevance, prejudice See above. 

147:16-147:18 relevance, prejudice See above. 

147:20-148:2 relevance, prejudice See above. 

148:5-148:10 relevance, prejudice See above. 

148:13-148:15 relevance, prejudice See above. 

148:25-149:17 relevance, prejudice See above. 

149:25-149:25 relevance, prejudice See above. 

150:5-150:5 relevance, prejudice See above. 

150:7-150:10 relevance, prejudice See above. 

150:12-150:18 relevance, prejudice See above. 

150:20-150:22 relevance, prejudice See above. 

150:24-151:4 relevance, prejudice See above. 

151:7-151:9 relevance, prejudice See above. 

151:12-151:20 relevance, prejudice See above. 

151:23-152:2 relevance, prejudice See above. 

152:4-152:10 relevance, prejudice See above. 

152:12-152:12 relevance, prejudice See above. 

152:23-153:2 relevance, prejudice See above. 

153:6-153:16 relevance, prejudice See above. 

153:18-153:21 relevance, prejudice See above. 

153:23-154:2 relevance, prejudice See above. 

154:5-154:9 relevance, prejudice See above. 

154:12-154:15 relevance, prejudice See above. 

154:17-154:22 relevance, prejudice See above. 

154:25-155:3 relevance, prejudice See above. 

155:6-155:10 relevance, prejudice See above. 

155:12-155:16 relevance, prejudice See above. 

155:18-155:22 relevance, prejudice See above. 

156:2-156:3 relevance, prejudice See above. 

156:5-156:7 relevance, prejudice See above. 

156:9-156:11 relevance, prejudice See above. 

156:13-156:15 relevance, prejudice See above. 

156:17-156:19 relevance, prejudice See above. 

156:21-156:24 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 89 of 110
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89

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

157:1-157:6 relevance, prejudice See above. 

157:8-157:12 relevance, prejudice See above. 

157:15-157:18 relevance, prejudice See above. 

157:21-157:24 relevance, prejudice See above. 

158:2-158:6 relevance, prejudice See above. 

158:8-158:13 relevance, prejudice See above. 

158:15-158:19 relevance, prejudice See above. 

158:22-158:25 relevance, prejudice See above. 

159:2-159:6 relevance, prejudice See above. 

159:8-159:11 relevance, prejudice See above. 

159:14-159:16 relevance, prejudice See above. 

159:18-159:21 relevance, prejudice See above. 

159:23-160:2 relevance, prejudice See above. 

160:5-160:12 relevance, prejudice See above. 

160:15-160:20 relevance, prejudice See above. 

160:23-161:2 relevance, prejudice See above. 

161:5-161:8 relevance, prejudice See above. 

161:10-161:14 relevance, prejudice See above. 

161:16-161:19 relevance, prejudice See above. 

161:24-161:24 relevance, prejudice See above. 

162:2-162:5 relevance, prejudice See above. 

162:8-162:11 relevance, prejudice See above. 

162:13-162:18 relevance, prejudice See above. 

162:21-163:1 relevance, prejudice See above. 

163:3-163:8 relevance, prejudice See above. 

163:11-163:14 relevance, prejudice See above. 

163:17-163:20 relevance, prejudice See above. 

163:23-164:2 relevance, prejudice See above. 

164:5-164:10 relevance, prejudice See above. 

164:13-164:18 relevance, prejudice See above. 

164:21-165:1 relevance, prejudice See above. 

165:3-165:8 relevance, prejudice See above. 

165:10-165:17 relevance, prejudice See above. 

165:20-166:4 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 90 of 110
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90

Plaintiff Class’s 

Designations9

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

166:7-166:7 relevance, prejudice See above. 

166:16-168:4 relevance, prejudice See above. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 91 of 110
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91

Plaintiff Class’s Designations 

Testifying Witness: Burlakoff, Alex

Date of Testimony: June 21, 2019 (Di Donato Matter)

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

5:25-6:5 relevance, prejudice

The Court has repeatedly 

determined that topics underlying 

Mr. Burlakoff’s testimony are 

relevant to the Plaintiff Class’s 

claims, including in the Summary 

Judgment Order and the Order on 

the Motions to Strike Russell and 

Devor. Additionally, certain topics 

underlying Mr. Burlakoff’s 

testimony, including with respect to 

the oncology territory and oncology 

HCPs, are the subject matter 

underlying Defendants’ affirmative 

designations in, for instance, the 

deposition of Brian Pipko. 

Moreover, Defendants should 

articulate the specific prejudice they 

believe flows from the use of the 

Plaintiff Class’s affirmative 

designations to Mr. Burlakoff’s 

deposition transcript at trial. 

Accordingly, the Plaintiff Class is 

unable to respond to Defendants’ 

blanket objection to these 

designations on the basis of 

relevance and prejudice.

6:15-6:17 relevance, prejudice See above.

6:23-7:14 relevance, prejudice See above.

9:3-9:11 relevance, prejudice See above.

9:12-9:23 relevance, prejudice See above.

9:24-10:1 relevance, prejudice See above.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 92 of 110
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92

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

10:2-10:9 relevance, prejudice See above.

10:25-11:15 relevance, prejudice See above.

12:19-13:19 relevance, prejudice See above.

13:20-14:2 relevance, prejudice See above.

14:20-15:6 relevance, prejudice See above.

15:25-16:4 relevance, prejudice See above.

16:8-16:11 relevance, prejudice See above.

17:2-17:6 relevance, prejudice See above.

17:10-17:13 relevance, prejudice See above.

17:16-17:22 relevance, prejudice See above.

18:1-18:2 relevance, prejudice See above.

18:3-18:8 relevance, prejudice See above.

18:11-18:11 relevance, prejudice See above.

18:22-21:4 relevance, prejudice See above.

21:8-22:5 relevance, prejudice See above.

22:6-23:6 relevance, prejudice See above.

23:10-23:20 relevance, prejudice See above.

24:3-24:6 relevance, prejudice See above.

24:9-24:16 relevance, prejudice See above.

24:21-25:18 relevance, prejudice See above.

26:3-28:3 relevance, prejudice See above.

28:7-28:13 relevance, prejudice See above.

28:17-29:9 relevance, prejudice See above.

29:13-29:21 relevance, prejudice See above.

29:25-29:25 relevance, prejudice See above.

30:9-30:14 relevance, prejudice See above.

30:15-30:19 relevance, prejudice See above.

30:23-30:24 relevance, prejudice See above.

30:25-33:14 relevance, prejudice See above.

35:8-35:22 relevance, prejudice See above.

38:15-38:19 relevance, prejudice See above.

40:1-40:10 relevance, prejudice See above.

41:9-41:15 relevance, prejudice See above.

41:24-42:5 relevance, prejudice See above.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 93 of 110
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93

Plaintiff Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses to 

Defendants’ Objections

Defendants’ 

Counter 

Designations

Plaintiff Class’s Objections to 

Defendants’ Counter Designations

42:6-43:22 relevance, prejudice See above.

44:13-45:3 relevance, prejudice See above.

47:3-47:22 relevance, prejudice See above.

47:23-48:1 relevance, prejudice See above.

48:5-48:20 relevance, prejudice See above.

50:20-51:15 relevance, prejudice See above.

54:23-54:24 relevance, prejudice See above.

56:9-56:12 relevance, prejudice See above.

56:16-58:7 relevance, prejudice See above.

58:9-58:13 relevance, prejudice See above.

58:17-59:1 relevance, prejudice See above.

59:14-60:8 relevance, prejudice See above.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 94 of 110
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94

Plaintiff Class’s Designations 

Testifying Witness: Babich, Michael

Date of Testimony: June 21, 2019 (Di Donato Matter)

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

11:18-12:10

12:18-13:3

13:11-13:24

14:19-15:21

16:14-17:8

18:6-19:13

20:2-20:12

21:14-22:4

22:16-23:7

23:21-24:5

24:9-24:22

25:13-25:16

25:16-27:7

403: prejudice, the 

cooperation agreement and 

plea of Mr. Babich related to 

charges distinct from the 

allegations in this matter and 

are unfairly prejudicial to 

Defendants. 

The charges are not distinct 

from the allegations in this 

matter – the Plaintiff Class 

asserts that Babich violated 

Section 10(b) by failing to 

disclose the Criminal 

Enterprise to which he pled 

guilty was a key factor in 

Insys’ FY14 sales and 

revenue growth. Given that, 

and the fact that Babich 

admitted these same facts in 

this case, the relevance far 

outweighs any prejudice

25:20-25:22

25:16-27:7

403: prejudice, the 

cooperation agreement and 

See above. 

 

10 These designations have been identified as for “completeness” pursuant to Fed. R. Evid. 106.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 95 of 110
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95

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

plea of Mr. Babich related to 

charges distinct from the 

allegations in this matter and 

are unfairly prejudicial to 

Defendants.

25:23-26:3

25:16-27:7

403: prejudice, the 

cooperation agreement and 

plea of Mr. Babich related to 

charges distinct from the 

allegations in this matter and 

are unfairly prejudicial to 

Defendants.

See above. 

26:4-27:7

25:16-27:7

403: prejudice, the 

cooperation agreement and 

plea of Mr. Babich related to 

charges distinct from the 

allegations in this matter and 

are unfairly prejudicial to 

Defendants.

See above.

27:10-28:20

28:24-28:24

29:12-30:2

30:24-31:10

31:20-31:22

31:25-31:25

32:1-32:6

32:1-34:3

601, 602: foundation, 

speculation as to what Kapoor 

knew. Vagueness as to time.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 96 of 110
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96

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

knowledge; Time period was 

clarified on the record

33:13-35:7

33:13-34:3

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew. 

Vagueness as to time.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge; Time period was 

clarified on the record

36:9-36:13

36:9-36:18

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge from his 

attendance at 8:30 am 

meetings

36:16-36:18

36:9-36:18

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge from his 

attendance at 8:30 am 

meetings

36:19-37:11

37:18-39:4

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 97 of 110
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97

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

39:7-39:07

39:8-39:11

39:14-40:2

40:12-40:13

40:16-40:23

40:24-41:7

41:7-42:10

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge

41:10-41:10

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge

41:11-42:10

601, 602: foundation, 

speculation and lack of 

personal knowledge as to 

what Kapoor knew.

Foundation is based on the 

exhibit (which itself was a 

document to which Babich 

did not object to on any of 

these bases); Not speculation 

because Babich explained 

how he knew; Testimony is 

based on Babich’s personal 

knowledge

42:16-43:3

43:18-44:6

45:13-45:14

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 98 of 110
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98

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

45:16-46:18

51:11-51:20

51:24-52:3

53:12-55:18

55:19-56:5 De-designate 55:19-22 as it 

includes a question that was 

not answered; no objection to 

55:23-56:5 for completeness

MIL #311

56:6-56:25

55:6-68:8

401-403: relevance, 

prejudice, as sales incentive 

plan and its approval are not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

The charges are not distinct 

from the allegations in this 

matter – the Plaintiff Class 

asserts that Babich violated 

Section 10(b) by failing to 

disclose the Criminal 

Enterprise to which he pled 

guilty was a key factor in 

Insys’ FY14 sales and 

revenue growth. Given that, 

and the fact that Babich 

admitted these same facts in 

this case, the relevance far 

outweighs any prejudice

57:1-57:16

55:6-68:8

401-403: relevance, 

prejudice, as increases in 

speaker fees and tracking 

return on investment are not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

See above response to 56:6-

25. Tracking ROI is how 

Defendants knew if the 

doctors they bribed were 

prescribing Subsys

 

11 “TP5” refers to the Plaintiff Class’s forthcoming motion in limine to preclude the introduction of evidence or argument concerning issues upon which 

Defendant Kapoor obstructed discovery in this Action by invoking his Fifth Amendment right against self-incrimination. Because Defendants jointly designated 

testimony, the Plaintiff Class has included this objection for every designation until such time as the Defendants’ clarify whether Defendant Kapoor intends to 

introduce this testimony and for what purpose.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 99 of 110
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99

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

57:20-61:8

55:6-68:8

401-403: relevance, 

prejudice, as tracking return 

on investment on speaker 

program is not relevant to the 

claims and is unfairly 

prejudicial to Defendants.

See above response to 56:6-

25. Tracking ROI is how 

Defendants knew if the 

doctors they bribed were 

prescribing Subsys. 

63:9-63:23

55:6-68:8

401-403: relevance, 

prejudice, as entry into direct 

shipping contract is not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

See above response to 56:6-

25. Additionally, direct 

shipping contract was another 

way to bribe doctors.

65:17-67:3

55:6-68:8

401-403: relevance, 

prejudice, as __ is not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

See above response to 56:6-

25.

67:13-68:3

55:6-68:8

401-403: relevance, 

prejudice, as sale of product 

to particular pharmacy and 

other products sold by 

pharmacy are not relevant to 

the claims and is unfairly 

prejudicial to Defendants.

See above response to 56:6-

25. Additionally, direct 

shipping contract was another 

way to bribe doctors.

68:4-68:18

55:6-68:8

401-403: relevance, 

prejudice, budget for speaker 

program and who had 

authority to increase are not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

See above response to 56:6-

25. Defendants bribed doctors 

through the speaker program.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 100 of 110
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100

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

73:1-74:6

66:24-87:13

401-403: relevance, 

prejudice, as use of term 

“whales” and meaning of term 

are not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

See above response to 56:6-

25. Whales were the doctors 

that had been or were targeted 

for bribes. 

74:9-74:14

66:24-87:13

401-403: relevance, 

prejudice, as use of term 

“whales”, who used term, and 

meaning of term are is not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

See above response to 56:6-

25. Whales were the doctors 

that had been or were targeted 

for bribes. 

74:22-75:8

66:24-87:13

401-403: relevance, 

prejudice, as testimony from 

Boston criminal trial and 

relationship between 

honoraria and what doctors 

did are not relevant to the 

claims and is unfairly 

prejudicial to Defendants.

See above response to 56:6-

25. Bribing doctors through 

the speaker program was an 

essential element of the 

Criminal Enterprise that drove 

FY14 sales and revenue 

growth.

75:18-76:12

76:11-76:12 

601: foundation, speculation

as to what other people in 

meeting would know; AND

66:24-87:13

401-403: relevance, 

prejudice, as whether Dr. 

Awerbach was a “whale” and 

whether such was discussed 

are not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

Foundation is based on prior 

testimony regarding 

Awerbuch and “whales”; 

Testimony is based on 

Babich’s personal knowledge; 

Testimony is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the 

existence and impact of the 

criminal fraud on revenue 

growth from the statements at 

issue

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 101 of 110
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101

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

76:19-77:25

76:11-76:12 

601: foundation, speculation

as to what other people in 

meeting would know; AND

66:24-87:13

401-403: relevance, 

prejudice, as whether or not 

Awerbach or Madison were 

whales is not relevant to the 

claims and is unfairly 

prejudicial to Defendants.

Foundation is based on prior 

testimony regarding 

Awerbuch and “whales”; 

Testimony is based on 

Babich’s personal knowledge; 

Testimony is relevant to 

Plaintiff Class’s claim that 

Defendants omitted the 

existence and impact of the 

criminal fraud on revenue 

growth from the statements at 

issue

80:21-81:14

66:24-87:13

401-403: relevance, 

prejudice, as Dr. Awerbach’s 

conduct is not relevant to the 

claims and is unfairly 

prejudicial to Defendants.

Awerbuch admitted to 

receiving bribes to prescribe 

Subsys. Testimony is relevant 

to Plaintiff Class’s claim that 

Defendants omitted the 

existence and impact of the 

criminal fraud on revenue 

growth from the statements at 

issue

81:16-82:20

66:24-87:13

401-403: relevance, 

prejudice, as as Dr. 

Awerbach’s conduct is not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

Awerbuch admitted to 

receiving bribes to prescribe 

Subsys. Testimony is relevant 

to Plaintiff Class’s claim that 

Defendants omitted the 

existence and impact of the 

criminal fraud on revenue 

growth from the statements at 

issue

84:13-84:16

66:24-87:13

401-403: relevance, 

prejudice, as any criminal 

conduct engaged in by 

Awerbach or Rosenberg, 

whether particular doctors 

Awerbuch admitted to 

receiving bribes to prescribe 

Subsys. Testimony is relevant 

to Plaintiff Class’s claim that 

Defendants omitted the 

existence and impact of the 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 102 of 110
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102

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

were referred to as “whales”, 

and when knowledge was 

gained of various indictments 

are not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

criminal fraud on revenue 

growth from the statements at 

issue

86:7-86:9

66:24-87:13

401-403: relevance, 

prejudice, as whether 

Somerville was referred to or 

considered a “whale” is not 

relevant to the claims and is 

unfairly prejudicial to 

Defendants.

Sommerville was one of the 

bribed HCPs. Testimony is 

relevant to Plaintiff Class’s 

claim that Defendants omitted 

the existence and impact of 

the criminal fraud on revenue 

growth from the statements at 

issue

86:11-86:22

401-403: relevance, 

prejudice, as testimony in 

Boston criminal trial and

whether whales were believed 

to have kept business afloat 

are not relevant to the claims 

and is unfairly prejudicial to 

Defendants.

601, 602: Personal 

knowledge/speculation as to 

what Kapoor knew.

Whales are bribed HCPs or 

targets for bribes. Testimony 

is relevant to Plaintiff Class’s 

claim that Defendants omitted 

the existence and impact of 

the criminal fraud on revenue 

growth from the statements at 

issue

86:25-87:13

66:24-87:13

401-403: relevance, 

prejudice, as testimony in 

Boston criminal trial, how the 

term “whales” was used or 

were believed to have kept 

business afloat, and impact of 

number of doctors accounting 

for percentages of sales are 

not relevant to the claims and 

Whales are bribed HCPs or 

targets for bribes. Testimony 

is relevant to Plaintiff Class’s 

claim that Defendants omitted 

the existence and impact of 

the criminal fraud on revenue 

growth from the statements at 

issue

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 103 of 110
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103

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

is unfairly prejudicial to 

Defendants.

88:2-88:12

89:5-91:8

94:4-94:8

401: relevance, as potential 

content of any possible SEC 

filings is not relevant to the 

claims.

Admission that the bribery 

was not disclosed to investors 

is relevant to determining 

whether Babich violated 10(b) 

by failing to disclose that the 

Criminal Enterprise was a key 

factor in Insys’ FY14 sales 

and revenue growth. 

97:6-97:20

98:12-99:4

99:7-99:18

100:25-101:3

101:7-101:8

101:9-101:12

101:17-101:18

101:19-102:4

102:12-102:14

103:3-103:8

103:13-104:5

107:21-108:24

109:2-109:9

109:10-109:11

109:23-110:1

110:12-110:18

111:9-112:5

112:11-112:12

112:13-112:15

112:18-112:19

112:20-112:24

113:3-113:4

132:17-133:7

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 104 of 110
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104

Plaintiff 

Class’s 

Designations

Defendants’ 

Objections

Plaintiff Class’s Responses 

to Defendants’ Objections

Defendants’ 

Counter 

Designations10

Plaintiff Class’s Objections 

to Defendants’ Counter 

Designations

Defendants’ Responses to 

Plaintiff Class’s Objections

136:19-137:4

137:9-137:10

155:10-156:25

157:2-157:3

181:15-181:22

182:3-182:15

182:17-183:10

184:6-185:14

186:20-187:1

187:4-187:04

189:17-192:1

Defendants’ Designations

Testifying Witness: Babich, Michael

Date of Testimony: June 21, 2019 (Di Donato Matter)

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

8:23-24

10:12-13:24

106: Incomplete (designate 9:25-

10:11 per FRE 106)

401, 402: Preparation for deposition 

& current employment status not 

relevant to claims or defenses 

(10:12-11:11); Kapoor paying for 

his MBA irrelevant (12:11-17)

601, 602: Lacks personal knowledge 

(13:4-10)

8:5-12

10:2-11

 

12 In addition to the counter designations specifically set forth in this column, the Plaintiff Class identifies as counter designations testimony given by 

Mr. Babich that the Plaintiff Class has affirmatively designated in the materials provided to counsel for Defendants on May 22, 2020 as updated, if applicable, on 

May 29, 2020.

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 105 of 110
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105

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

801, 802: Hearsay if used by Babich 

(hereafter “Hearsay—Babich”)

MIL #3 (12:11-17)

15:6-9 Hearsay—Babich

15:10-17:21

106: Incomplete (designate 17:22-

18:2 per FRE 106)

601, 602: Lacks personal knowledge 

(15:22-16:3, 17:9-19)

Nonresponsive testimony at 17:9-19

Hearsay—Babich

17:22-18:2

35:4-11

401, 402, 403: Baker not relevant to 

the claims or defenses currently set 

for trial (35:8-11) 

Hearsay—Babich

35:14-18

401, 402, 403: Baker not relevant to 

claims or defenses currently set for 

trial

Hearsay—Babich

36:19-37:13

401, 402: Neither a question nor a 

responsive answer (37:12-13)

Hearsay—Babich

37:18-38:22 801, 802: Hearsay (38:16-22)

Hearsay—Babich

39:8-12 Hearsay—Babich

39:14-40:2 Hearsay—Babich

42:16-43:14

401, 402, 403: Baker not relevant to 

claims or defenses currently set for 

trial (43:13-14)

Hearsay—Babich

43:17-44:16

401, 402, 403: Baker not relevant to 

claims or defenses currently set for 

trial (43:17)

Hearsay—Babich

MIL #3

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 106 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

106

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

44:22-25

601, 602: Speculation, Lacks 

personal knowledge 

401, 402, 403: Inconsistent with 

prior sworn statements; Reliance on 

counsel

Hearsay—Babich

MIL #3

45:1-3 Hearsay—Babich

45:8-12

Nonresponsive: Preceding question 

concerned IRC practices, which 

answer does not address

Hearsay—Babich

45:13-14 Hearsay—Babich

45:16-46:8 801, 802: Hearsay (45:21-46:2)

Hearsay—Babich

44:9-15

47:26-48:4

50:16-22

51:25-52:3

49:7-9

106: Incomplete (designate 

47:20:48:4 per FRE 106)

Foundation

Hearsay—Babich

44:9-15

47:26-48:4

50:16-22

51:25-52:3

49:12-23

106: Incomplete (designate 50:16-22 

per FRE 106

401, 402, 403: Inconsistent with 

prior sworn statements (49:12-15); 

Reliance on counsel (49:16-23) 

Foundation (49:12-15)

Hearsay—Babich

44:9-15

47:26-48:4

50:16-22

51:25-52:3

66:8

66:9-23 Hearsay—Babich

99:7-100:2

401, 402, 403: (99:19-100:2 Does 

not contain testimony)

Hearsay—Babich

100:25-101:3

106: Incomplete (designate 100:23-

24 per FRE 106)

Hearsay—Babich

100:23-24

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 107 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

107

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

101:7-12 Hearsay—Babich

101:17-102:4 Hearsay—Babich

102:12-14 Hearsay—Babich

126:8-127:18

601, 602: Speculation (126:12-15)

Foundation

Nonresponsive: question concerned 

types of documents, and no 

responsive answer was given 

(126:18-127:8)

MIL #113: Efforts not in place by 

FY14 (126:18-127:8)

Hearsay—Babich

127:21-128:2

401, 402, 403: Testimony consists of 

non-responsive narrative that is 

confusing, misleading, and 

prejudicial; 

601, 602: Lacks personal knowledge 

(127:24-128:2)

MIL #1: Efforts not in place by 

FY14 (126:18-127:8)

(127:21-23)

Hearsay—Babich

128:10-129:4

401, 402, 403: Testimony consists of 

non-responsive narrative that is 

confusing, misleading, and 

prejudicial; 

Hearsay—Babich

MIL #1: Efforts not in place by 

FY14 (128:18-21)

MIL #3

 

13 The Plantiff Class seeks an order precluding the introduction of evidence and testimony regarding putative or aspirational oncological efforts that were 

not in place in FY14, and Subsys sales and revenue generated by the “oncology HCP” specialty (which was artificially inflated by the Factor) in FY15 under Fed. 

R. Evid. 401, 402, and 403. Evidence subject to this MIL is identified here by the inclusion of “MIL #1” in the Plaintiff Class’s Objections. 

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 108 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

108

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

129:7-130:20

601, 602: Speculation (129:17-

130:7) 

Nonresponsive (129:14-16; 130:12-

20)

Narrative (130:12-20)

801, 802: Hearsay (130:12-20)

Hearsay—Babich

MIL #1: Efforts not in place by 

FY14 (129:14-16, 130:8-20)

MIL #3

144:8-11 Hearsay—Babich

MIL #3

144:14-146:12

Foundation

601, 602: Speculation, Lacks 

personal knowledge (145:11-20)

401, 402, 403: Testimony consists of 

non-responsive narrative that is 

confusing, misleading, and 

prejudicial; Hearsay—Babich

MIL #1: Efforts not in place by 

FY14 (144:14-145:5; 145:11-146:8)

147:16-153:22

106: Incomplete (designate 146:25-

147:4 and 153:23-154:1 per FRE 

106)

601, 602: Lacks personal 

knowledge; Speculation

Nonresponsive (147:16-148:17; 

148:21-149:2; 149:8-14; 149:23-

150:2; 150:18-151:13; 151:25-

152:6; 152:20-152:22)

Narrative (150:18-151:13)

MIL #1: Efforts not in place by 

FY14 (147:16-148:17, 147:21-

150:2-153:22)

Hearsay—Babich 

MIL #3

146:25-147:4

153:23-154:1

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 109 of 110
Di Donato v. Babich, et al., No. 16-cv-00302-NVW (D. Ariz.)

109

Defendants’ 

Designations

Plaintiff Class’s Objections Plaintiff Class’s 

Counter 

Designations12

Defendants Objections to Plaintiff 

Class’s Counter Designations

Plaintiff Class’s Responses to 

Defendants Objections

180:19-181:2

106: Incomplete (designate 179:2-

180:7, 180:10-18, and 181:2-5 per 

FRE 106)

401, 402, 403: Testimony consists of 

non-responsive narrative that is 

confusing, misleading, and 

prejudicial

601, 602: Speculation

Hearsay—Babich 

MIL #3

179:2-180:7

180:10-18

193:5-13

106: Incomplete (designate 193:19-

194:2, 194:7-195:4, 195:7-195:24, 

196:5, 196:7-196:19, 196:22-25, 

195:5-25, & 198:4-10 per FRE 106)

Hearsay—Babich 

MIL #3

193:19-194:2

194:7-195:4

195:7-195:24

196:5

196:7-196:19

196:22-25

195:5-25

198:4-10

202:22-203:22

106: Incomplete (designate 200:19-

202:1, 202:6-19, and 202:21 per 

FRE 106)

Nonresponsive

601, 602: Speculation

Hearsay—Babich 

200:19-202:1

202:6-19

202:21

Case 2:16-cv-00302-NVW Document 355-5 Filed 06/18/20 Page 110 of 110