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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WARSAW ORTHOPEDIC, INC., : CIVIL ACTION


:
Plaintiff :
v. :
: No. 06-4248
GLOBUS MEDICAL, INC., :
:
Defendant. :

ORDER

AND NOW, on this 25th day of January, 2010, upon consideration of Defendant Globus

Medical, Inc.’s motion for relief [paper no. 375] from judgment and orders of July 16, 2009

[paper nos. 321, 322, 323] and orders of August 20, 2009 [paper no. 344], October 7, 2009

[paper no. 363], and October 26, 2009 [docket no. 368], and Plaintiff Warsaw Orthopedic, Inc.’s

memorandum in opposition [paper no. 376], it appearing that:

a. The basis for defendant’s motion for relief from judgment and orders is that newly
discovered licensing agreements might influence the outcome of the appeal so that
this court should seek leave from the United States Court of Appeals for the
Federal Circuit to decide this motion.

b. Under Federal Rule of Civil Procedure 62.1, “if a timely motion is made for relief
that the court lacks authority to grant because of an appeal that has been docketed
and is pending, the court may: (1) defer considering the motion; (2) deny the
motion; or (3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.”

c. Granting this motion will have no relevance to the issue of standing because: (1)
the agreements were entered into between August 2008 and February 2009, while
the action and standing analysis focused on agreements in place in 2006; (b)
plaintiff has dismissed its appeal of the court’s order holding only Warsaw has
standing; (c) neither Warsaw, nor any of its affiliates, will argue for damages from
the time the later agreement was executed through the time the agreements were
produced.

d. While these agreements might have some effect on calculation of damages, if the
jury verdict and court’s opinion on liability and infringement were overruled, and
the case remanded, the agreements can be made part of the record for any further
proceedings required.

e. Even though lawyers sometimes make mistakes, no evidence of bad faith has been
offered, nor has bad faith by counsel for plaintiff been established.

Therefore, it is ORDERED that, in accordance with Federal Rule of Civil Procedure

62.1, and Federal Rule of Appellate Procedure 12.1, consideration of defendant’s motion will be

deferred until resolution of the pending appeal without prejudice to the parties’ attempts to

augment the current record before the Court of Appeals with the newly discovered agreements.

/s/ Norma L. Shapiro


J.