World-renowned Orthopedic Surgeon Sues Medical Device Company For Breach Of
Dr. Andrew Cappuccino claims NuVasive, Inc. failed to pay him $660,000
"milestone payment" tied to FDA approval of spinal surgical device
BUFFALO, N.Y., Jan. 16, 2013
BUFFALO, N.Y., Jan. 16, 2013 /PRNewswire/ --Andrew Cappuccino, M.D., a
world-renowned orthopedic surgeon based in Buffalo, has filed a lawsuit in
U.S. District Federal Court, Southern District of California, accusing
NuVasive, Inc., of breach of contract.
In a civil complaint filed today, Dr. Cappuccino charges NuVasive, a Delaware
corporation, with principal offices in San Diego, with failure to pay a
$660,000 "milestone payment" tied to Federal Drug Administration (FDA)
approval of a medical device. The device, used in spinal procedures, was
developed by Cervitech, Inc., a company in which Dr. Cappuccino was a prime
investor and which was acquired by NuVasive.
The California company acquired New Jersey-based Cervitech in April 2009, in
cash and stock deal valued at $80 million, contingent on FDA approval of
Cervitech's cervical disc-replacement device. NuVasive agreed to pay $47
million upfront and another $33 million when government approval was granted.
Under terms of the share-purchase agreement, Dr. Cappuccino and his fellow
Cervitech inventors were to receive payments within 30 days of FDA approval of
the Cervitech-developed device. That approval was granted on October 26, and
all other former Cervitech shareholders were paid with the exception of Dr.
The surgeon is seeking the payment promised him under the share purchase
agreement, as well as interest from the day of the breach and attorneys' fees
Alan J. Bozer, a partner with Buffalo-based Phillips Lytle LLP, one of Western
New York's best-known law firms, who represents Dr. Cappuccino in this matter,
said that NuVasive has admitted that payment is due to Dr. Cappuccino but is
withholding payment for reasons unrelated to the Cervitech matter.
Chapin Fitzgerald LLP, of San Diego, CA, is Dr. Cappuccino's co-counsel in the
breach of contract claim.
Dr. Cappuccino is a spine surgeon with Buffalo Spine Surgery
(www.buffalospinesurgery.com) in Lockport, N.Y., and has served on the medical
staff of the Buffalo Bills for many years. In addition to his work on the
artificial cervical disc, he led the field in bringing minimally invasive and
lateral spine surgery, disc replacement and spine motion preservation as the
new standards of care for spine surgery.
He attracted international attention in the medical and sports worlds as the
orthopedic surgeon who treated Buffalo Bills football player Kevin Everett for
his cervical spine injury suffered in a game in 2007. Dr. Cappuccino's use of
induced hypothermia garnered world-wide headlines for the technique that
likely staved off paralysis in the player.
Dr. Cappuccino's areas of expertise include cervical spine disorders,
degenerative disc disease, lumbar spine disorders and degenerative spinal
conditions, among others. He was one of the first surgeons to be certified by
the American Board of Spine Surgery. He is also a fellow of the American
Academy of Orthopedic Surgeons, diplomat of the American Board of Spinal
Surgery Charter and a fellow of the American College of Surgeons.
He ended his consultancy position with NuVasive in 2011 and now serves as
chair of the Surgeon Advisory Board of Lanx, a Colorado-based medical- device
company focused on developing innovative devices for spinal surgery. The board
consists of neurosurgeons and orthopedic spine surgeons from around the world
who provide guidance to the company
Phillips Lytle LLP, established in 1834, is a multi-disciplined law firm with
offices in New York State and Canada. The firm represents a diverse,
multinational client base, including Fortune 500 companies, global, regional
and local financial institutions, mid-sized and emerging businesses, and
individuals on important matters affecting their businesses and personal
wealth. For more information, visit www.phillipslytle.com.
Rebecca E. Farbo
Phillips Lytle LLP
SOURCE Phillips Lytle LLP
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