1037-00004 · Solstice Biomedical Devices Ltd · Expert Engagement

expert-retention-ostrowski.docx DOCUMENT Litigation

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EXPERT RETENTION AGREEMENT

Dated as of August 20, 2024

This Expert Retention Agreement (this "Agreement") is entered into as of August 20, 2024 (the "Effective Date"), by and between:

CALDERWOOD & HARKNESS LLP ("Firm" or "Retaining Counsel"), a limited liability partnership organized under the laws of the State of Delaware, with offices at 1201 Market Street, Suite 2500, Wilmington, Delaware 19801 and 299 Park Avenue, 35th Floor, New York, New York 10171;

and

DR. MIRIAM OSTROWSKI ("Expert"), an individual residing in the Commonwealth of Pennsylvania, holding the position of Professor of Biomedical Engineering at Halford University, located at 3401 Walnut Street, Philadelphia, Pennsylvania 19104.

The Firm and Expert are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

Re: Expert Engagement in Apex Surgical Innovations, Inc. v. Solstice Biomedical, Inc., Case No. 1:24-cv-00587-RGA, United States District Court for the District of Delaware

RECITALS

WHEREAS, Calderwood & Harkness LLP represents Solstice Biomedical Devices Ltd., an Irish private limited company (Companies Registration Office No. 648217), registered at Unit 14, Clonskeagh Business Park, Clonskeagh Road, Dublin 14, D14 YF28, Ireland, and its United States operating subsidiary, Solstice Biomedical, Inc., a Delaware corporation (Employer Identification Number: 84-3291056), with principal offices located at 3800 Concord Pike, Suite 410, Wilmington, Delaware 19803 (Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. are collectively referred to herein as "Client" or "Solstice");

WHEREAS, Solstice is the named defendant in a patent infringement action initiated by Apex Surgical Innovations, Inc. ("Apex"), bearing Case No. 1:24-cv-00587-RGA, currently pending in the United States District Court for the District of Delaware before the Honorable Chief Judge Richard G. Andrews (the "Litigation" or the "Action");

WHEREAS, this matter was opened at Calderwood & Harkness under Matter Number 10294.0017 on May 9, 2024, the same date on which Apex filed its Complaint for Patent Infringement. Solstice, through the Firm, filed its Answer, Affirmative Defenses, and Counterclaims on June 14, 2024, asserting defenses of non-infringement, invalidity under 35 U.S.C. §§ 102 and 103, and inequitable conduct;

WHEREAS, the Action concerns Apex's allegations that Solstice's PrecisionEdge™ line of laparoscopic trocar assemblies — specifically including the PE-5000 Series (5 mm diameter), the PE-12000 Series (12 mm diameter), and the PE-15000 Series (15 mm diameter) (collectively, the "Accused Products") — infringes three United States utility patents owned by Apex, namely:

(a) U.S. Patent No. 9,814,237 (the "'237 Patent"), entitled "Locking Seal Assembly for Minimally Invasive Surgical Access Device," issued November 14, 2017, with an expiration date of June 22, 2035 (asserted Claims 1, 3, 7, and 12);

(b) U.S. Patent No. 10,271,884 (the "'884 Patent"), entitled "Retractable Blade Deployment Mechanism for Trocar Systems," issued April 30, 2019, with an expiration date of September 15, 2036 (asserted Claims 1, 2, 5, 9, and 14); and

(c) U.S. Patent No. 10,932,105 (the "'105 Patent"), entitled "Integrated Insufflation Valve and Seal for Laparoscopic Trocar," issued March 2, 2021, with an expiration date of January 10, 2038 (asserted Claims 1, 4, and 8);

(the '237 Patent, the '884 Patent, and the '105 Patent are collectively referred to herein as the "Asserted Patents");

WHEREAS, the named inventor on each of the Asserted Patents is Dr. Raymond Szabo, who holds the title of Vice President, Engineering at Apex Surgical Innovations, Inc.;

WHEREAS, the Firm desires to retain Dr. Ostrowski as a testifying and consulting expert witness to provide analysis, opinions, and testimony in connection with claim construction and invalidity of the Asserted Patents in support of Solstice's defense in the Litigation; and

WHEREAS, Dr. Ostrowski possesses the qualifications, knowledge, training, education, and experience necessary to render expert opinions in the relevant technical fields, and is willing to accept such retention on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES

1.1 Retention. The Firm hereby retains Dr. Miriam Ostrowski as an expert witness and consultant in connection with the defense of Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. in the above-captioned Action, Apex Surgical Innovations, Inc. v. Solstice Biomedical, Inc., Case No. 1:24-cv-00587-RGA, United States District Court for the District of Delaware. Expert accepts such retention on the terms and conditions set forth in this Agreement.

Expert is retained by Calderwood & Harkness LLP on behalf of and for the benefit of both Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. Expert acknowledges that, notwithstanding her retention on behalf of the Client, Expert's contractual obligations and the Firm's payment obligations under this Agreement run between the Firm and Expert. The Client is not a party to this Agreement, and Expert shall look solely to the Firm for compensation, payment, and other obligations arising hereunder.

The engagement team at Calderwood & Harkness LLP responsible for coordinating Expert's work in this matter shall consist of the following attorneys:

(a) Marcus Delgado, Partner, intellectual Property Practice Group — Responsible Partner;

(b) Catherine Bloom, Partner, intellectual Property Practice Group — Billing Partner;

(d) Peter Vassiliev, Associate, intellectual Property Practice Group — Working Associate.

The Firm may, from time to time, supplement or modify the members of the engagement team upon written notice to Expert. Expert shall direct all substantive communications regarding the Litigation to the above-named individuals or their designated successors.

1.2 Scope of Services

Expert shall provide expert analysis, opinions, consulting services, and testimony on the following subject matters in connection with the Litigation:

(a) Claim Construction. Expert shall provide analysis of the meaning and scope of disputed claim terms in the '237 Patent, the '884 Patent, and the '105 Patent. This analysis shall include a thorough review of the intrinsic evidence, including without limitation the patent specifications, prosecution histories before the United States Patent and Trademark Office, and the claims as issued for each of the Asserted Patents. Expert shall also review and consider extrinsic evidence as appropriate, including technical dictionaries, engineering treatises, published standards, prior art references, and other relevant scientific and technical literature. Expert's claim construction analysis shall support Solstice's proposed claim constructions and shall be prepared in anticipation of the Markman hearing currently scheduled for November 18, 2024, pursuant to the Scheduling Order entered by Chief Judge Andrews on July 2, 2024. Expert shall be available to provide declarations, supplemental analyses, and live testimony in connection with the claim construction proceedings as may be required by the Firm.

(b) Invalidity Analysis. Expert shall identify and analyze prior art references relevant to the validity of each asserted claim of the Asserted Patents under 35 U.S.C. § 102 (anticipation) and 35 U.S.C. § 103 (obviousness). This analysis shall encompass a review of prior art references identified by the Firm, by Solstice's patent prosecution counsel, Kendrick & Lau LLP (located at 601 Pennsylvania Avenue NW, Suite 820, Washington, DC 20004; lead partner: Dr. Jonathan Kendrick), and by Expert herself through her independent knowledge and research. Expert shall provide detailed, claim-by-claim invalidity analyses identifying how each element of each asserted claim is met or rendered obvious by the identified prior art, individually or in combination. Expert shall also consider the secondary considerations of non-obviousness (e.g., commercial success, long-felt need, failure of others, copying) as appropriate to rebut any arguments raised by Apex.

(c) Expert Reports. Expert shall prepare an opening expert report on invalidity in compliance with Fed. R. Civ. P. 26(a)(2)(B), setting forth a complete statement of Expert's opinions and the bases and reasons therefor, the facts and data considered by Expert in forming her opinions, any exhibits to be used in support of the opinions, Expert's qualifications, a list of all publications authored by Expert within the preceding ten years, a statement of the compensation to be paid for this engagement, and a list of all other cases in which Expert has testified as an expert at trial or by deposition within the preceding four years. If required by the circumstances of the Litigation, Expert shall also prepare a rebuttal expert report responding to the opening report of Apex's technical expert (whose identity is to be disclosed during expert discovery pursuant to the Scheduling Order).

(d) Deposition Testimony. Expert shall be available to appear for and provide testimony at a deposition noticed by opposing counsel, Hargrove, Tate & Bennington LLP (lead partner: Victoria Stanton; associate: Derek Loomis; located at 900 North King Street, Suite 1200, Wilmington, Delaware 19801), in accordance with the procedures and timelines established by the Court's Scheduling Order and the Federal Rules of Civil Procedure. Expert shall prepare for such deposition in coordination with the Firm's engagement team.

(e) Trial Testimony. Expert shall be available to provide live testimony at the trial of this matter before the Court. Trial is currently scheduled to commence on September 30, 2025, as set forth in the Scheduling Order entered July 2, 2024. Expert acknowledges that the trial date may be subject to change by the Court and agrees to use reasonable efforts to accommodate any revised trial schedule.

(f) Consulting Services. Expert shall provide general consulting services to the Firm and the engagement team on technical matters related to laparoscopic trocar assemblies, locking-seal mechanisms, retractable blade-deployment mechanisms, insufflation valve and seal technology, and related areas of biomedical engineering, as such matters pertain to the Asserted Patents, the Accused Products, and the issues raised in the Litigation. Such consulting services may include, without limitation, attending technical presentations, reviewing deposition transcripts, analyzing opposing expert reports, participating in strategy sessions, and providing informal guidance to the engagement team on technical questions.

The scope of services described herein may be expanded or modified by mutual agreement of the Parties, confirmed in writing.

1.3 Expected Deliverables

Expert shall provide the following deliverables in connection with this engagement, subject to the timelines established by the Court's Scheduling Order and any modifications thereto:

(a) Claim Construction Analysis and Declarations. Written claim construction analyses and supporting declaration(s) as needed for the Markman briefing process. Under the current Scheduling Order, the exchange of proposed claim constructions is set for October 22, 2024, and the Joint Claim Construction Brief is due November 4, 2024. Expert shall work with the engagement team to ensure that her analyses and any declarations are completed in sufficient time to support these deadlines.

(b) Opening Invalidity Expert Report. A comprehensive opening expert report on the invalidity of the asserted claims of the Asserted Patents, prepared in accordance with Fed. R. Civ. P. 26(a)(2)(B). Expert discovery opens on January 13, 2025 pursuant to the Scheduling Order, and Expert's opening report shall be served by the deadline established therein.

(c) Rebuttal Expert Report. If necessary, a rebuttal expert report responsive to the opening report of Apex's technical expert, to be served by the deadline established in the Scheduling Order.

(d) Deposition and Trial Availability. Expert shall make herself available for deposition preparation sessions, deposition testimony, trial preparation sessions, and trial testimony at such times as may be reasonably required by the Firm and as scheduled by the Court.

SECTION 2: QUALIFICATIONS

Dr. Miriam Ostrowski is a tenured Professor of Biomedical Engineering at Halford University in Philadelphia, Pennsylvania. She holds recognized expertise in the design, engineering, and performance evaluation of minimally invasive surgical instruments, with particular specialization in laparoscopic devices, trocar systems, seal assemblies, insufflation mechanisms, and blade-deployment technologies. Her research and academic work span more than two decades and encompass the full range of engineering principles relevant to the technologies at issue in this Litigation.

Expert's curriculum vitae, which sets forth in detail her educational background, academic appointments, research positions, peer-reviewed publications, patents held, grants received, professional society memberships, editorial board service, and prior expert testimony experience, is attached hereto as Exhibit A and incorporated by reference into this Agreement.

Expert represents and warrants that she has no current or prior consulting relationship, employment relationship, financial interest, or other business or personal relationship with Apex Surgical Innovations, Inc. or any of its officers, directors, employees, affiliates, subsidiaries, or agents that would create a conflict of interest or impair her ability to render independent, objective opinions in this Litigation. Expert further represents that she has disclosed to the Firm all prior expert engagements and consulting arrangements with any parties or counsel that could reasonably bear upon her ability to serve as an independent expert in this matter.

SECTION 3: COMPENSATION

3.1 Hourly Rate

Expert shall be compensated at the rate of Seven Hundred Fifty Dollars ($750.00) per hour for all professional services rendered under this Agreement. This hourly rate applies to all categories of services performed by Expert in connection with the Litigation, including but not limited to:

(a) Review and analysis of technical documents, patent specifications, prosecution histories, prior art references, and other materials;

(b) Preparation of expert reports, declarations, affidavits, and other written work product;

(c) Meetings, conferences, and telephone calls with Retaining Counsel, including the engagement team and any other attorneys at Calderwood & Harkness LLP or at Kendrick & Lau LLP involved in the matter;

(d) Preparation for deposition testimony, including mock deposition sessions;

(e) Deposition testimony;

(f) Preparation for trial testimony, including review of trial exhibits and practice examinations;

(g) Trial testimony;

(h) Attendance at hearings, including the Markman hearing; and

(i) Travel time, which shall be billed at fifty percent (50%) of Expert's standard hourly rate, i.e., Three Hundred Seventy-Five Dollars ($375.00) per hour.

Expert shall maintain contemporaneous, accurate time records reflecting the date, nature, and duration of all services performed, in increments of no less than one-tenth (0.1) of an hour.

3.2 Expenses. Expert shall be reimbursed for all reasonable out-of-pocket expenses actually incurred in connection with this engagement. Reimbursable expenses include, without limitation:

(a) Travel expenses, including commercial airfare (coach or economy class for domestic flights; business class for flights exceeding five hours), hotel accommodations at reasonable rates, ground transportation (including rental cars, taxis, rideshare services, and parking fees), and meals, incurred for depositions, hearings, trial appearances, and in-person meetings with Retaining Counsel or Client representatives;

(b) Reference materials, including the cost of obtaining technical references, textbooks, journal articles, patent documents, standards publications, or other materials necessary for the engagement that are not otherwise available to Expert through her university library or existing collection;

(c) Research assistance and technical support, including the costs of retaining research assistants, graduate students, or other technical support personnel to assist Expert in connection with her work on this engagement, provided that all such costs are pre-approved in writing by the Firm prior to their being incurred; and

(d) Miscellaneous costs, including copying, printing, binding, overnight courier or express delivery charges, long-distance telephone charges, and similar out-of-pocket costs directly attributable to the engagement.

All expenses submitted for reimbursement must be documented with itemized receipts. The Firm reserves the right to request additional documentation or explanation for any expense submission that, in its reasonable judgment, requires clarification.

3.3 Invoicing and Payment

Expert shall submit monthly invoices to Calderwood & Harkness LLP on or about the fifteenth (15th) day of each calendar month for services rendered and expenses incurred during the preceding month. All invoices shall be directed to Catherine Bloom, Billing Partner, at Calderwood & Harkness LLP, 1201 Market Street, Suite 2500, Wilmington, Delaware 19801, and shall clearly reference Matter No. 10294.0017.

Each invoice shall include: (a) a detailed narrative description of the services performed; (b) the date on which each service was performed; (c) the number of hours expended on each service; (d) the applicable hourly rate; (e) a subtotal for professional fees; (f) an itemization of expenses with supporting receipts; (g) a subtotal for expenses; and (h) a total amount due.

Payment of each properly submitted invoice shall be made by the Firm within thirty (30) calendar days of receipt. Payment shall be made by check or electronic wire transfer to an account designated by Expert.

Expert acknowledges that Expert's fees and expenses constitute a component of the overall costs and disbursements tracked by Calderwood & Harkness LLP in connection with this matter and may be subject to coverage, in whole or in part, under Solstice's intellectual property litigation insurance policy with Halcyon Specialty Insurance Co. (Policy No. HSI-IP-2023-04891). Notwithstanding the foregoing, the Firm's obligation to pay Expert under this Agreement is independent of and not conditioned upon Solstice's receipt of insurance reimbursement or any other third-party payment. The Firm is solely responsible for the timely payment of all amounts due to Expert under this Agreement.

3.4 No Contingency

Expert's compensation under this Agreement is not contingent, in whole or in part, upon the outcome of the Litigation, the content or substance of Expert's opinions, the conclusions reached in any expert report, the content of any testimony provided at deposition or trial, or any other result or event in the Action. Expert's opinions and testimony shall be based solely upon her independent professional judgment, applying generally accepted principles of biomedical engineering and her knowledge, training, and experience.

SECTION 4: RELATIONSHIP OF THE PARTIES

4.1 Independent Contractor

Expert is retained as an independent contractor. Nothing in this Agreement shall be construed to create an employer-employee relationship, a partnership, a joint venture, or an agency relationship between Expert and the Firm, or between Expert and Solstice Biomedical Devices Ltd. or Solstice Biomedical, Inc. Expert shall be solely responsible for reporting and paying all federal, state, and local income taxes, self-employment taxes, Social Security contributions, and any other taxes or charges arising from or relating to compensation received under this Agreement. Expert shall maintain her own professional liability insurance, health insurance, and other insurance coverage as she deems appropriate. Expert shall not have any authority to act on behalf of, to represent, or to bind the Firm or the Client in any transaction, negotiation, or other matter.

4.2 Direction of Work

Expert's work under this Agreement shall be performed under the general coordination and direction of the Firm's engagement team, principally Marcus Delgado (Responsible Partner) and Christy Bauer (Lead Associate), who shall serve as Expert's primary points of contact for scheduling, document requests, analytical priorities, and logistical matters. The Firm shall provide Expert with reasonable access to documents, data, and information necessary for the performance of her services.

Notwithstanding the foregoing, Expert retains full and complete independence over the substance of her opinions, analyses, and conclusions. The Firm shall not direct, control, or attempt to influence the substance of Expert's professional opinions or the conclusions she reaches based on her independent analysis. Expert acknowledges that her work product, including drafts, notes, analyses, and communications with Retaining Counsel, will be subject to the protections of the attorney work product doctrine and the attorney-client privilege to the fullest extent permitted by applicable law, until and unless such materials are disclosed in an expert report filed pursuant to Fed. R. Civ. P. 26(a)(2) or in testimony at deposition or trial.

SECTION 5: CONFIDENTIALITY

5.1 Confidential Information Defined

For purposes of this Agreement, "Confidential Information" means all information, documents, data, files, materials, communications, and tangible and intangible items, whether written, electronic, oral, or visual, provided to Expert by the Firm, by the Client, or by any third party at the Firm's direction, in connection with Expert's engagement under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes:

(a) Client documents, technical drawings, engineering specifications, test data, manufacturing records, quality assurance records, and product specifications for the PrecisionEdge™ PE-5000, PE-12000, and PE-15000 Series trocar assemblies, as well as any predecessor or successor products;

(b) Attorney work product, legal memoranda, legal analyses, litigation strategy documents, case assessments, and similar materials prepared by the Firm or by Kendrick & Lau LLP;

(c) Documents produced by any party in discovery in the Litigation, including without limitation Solstice's production (Bates Nos. SBD-000001 through SBD-048217) and Apex's production (Bates Nos. APEX-000001 through APEX-031450), as well as any supplemental productions made after the Effective Date of this Agreement;

(d) Prior art search results, patentability analyses, freedom-to-operate analyses, and patent landscape reports prepared by Kendrick & Lau LLP or by the Firm;

(e) Patent portfolio valuations, damages analyses, royalty calculations, financial projections, or other financial analyses relating to the Litigation, the Asserted Patents, or the Accused Products;

(f) Settlement discussions, negotiation positions, mediation materials, and any communications relating to the potential resolution of the Litigation; and

(g) Any other information designated as confidential by the Firm or the Client, whether or not specifically identified in this Section 5.1.

5.2 Obligations. Expert shall hold all Confidential Information in strict confidence and shall not disclose, publish, disseminate, or otherwise make available any Confidential Information to any third party, including without limitation Expert's colleagues, students, research assistants, family members, or any other person or entity, without the prior written consent of the Firm. Expert shall use Confidential Information solely for the purpose of performing her services under this Agreement and for no other purpose whatsoever.

Expert shall implement and maintain reasonable physical, electronic, and procedural safeguards to protect the security and confidentiality of all Confidential Information in her possession, custody, or control. Such safeguards shall include, at a minimum, storing physical documents in a secure, locked location; maintaining electronic files on password-protected devices with encryption; and restricting access to Confidential Information to Expert alone (or to research assistants expressly authorized in writing by the Firm).

Expert shall comply fully with any Protective Order, Confidentiality Order, or Stipulated Protective Order entered by the Court in Case No. 1:24-cv-00587-RGA, including without limitation any provisions governing the designation, handling, and return of "Confidential" and "Attorneys' Eyes Only" materials. Expert shall execute any acknowledgment forms or undertakings required under such orders prior to receiving access to materials designated thereunder.

Upon the termination of this Agreement, or at any earlier time upon the Firm's written request, Expert shall promptly return to the Firm, or at the Firm's election destroy, all Confidential Information and all copies, extracts, summaries, and compilations thereof in Expert's possession, custody, or control, including electronic copies stored on any device, server, cloud storage service, or other medium. Expert shall certify in writing to the Firm that such return or destruction has been completed.

5.3 Exceptions. The confidentiality obligations set forth in this Section 5 shall not apply to information that:

(a) Is or becomes publicly available through no act or omission of Expert in breach of this Agreement;

(b) Was already in Expert's possession prior to the commencement of this engagement, without any obligation of confidentiality, as evidenced by Expert's contemporaneous written records; or

(c) Is required to be disclosed by applicable law, governmental regulation, subpoena, or order of a court or other tribunal of competent jurisdiction, provided that Expert shall give the Firm prompt written notice of such requirement (to the extent legally permissible) so that the Firm may seek a protective order or other appropriate remedy prior to such disclosure, and provided further that Expert shall disclose only such Confidential Information as is strictly required by such law, regulation, or order.

SECTION 6: CONFLICTS OF INTEREST

6.1 Expert Representations

Expert represents and warrants to the Firm as of the Effective Date that:

(a) She has no financial interest, whether direct or indirect, in Solstice Biomedical Devices Ltd., Solstice Biomedical, Inc., Apex Surgical Innovations, Inc., or any parent, subsidiary, affiliate, or successor entity of any of the foregoing;

(b) She has no current or prior consulting relationship, employment relationship, expert engagement, advisory relationship, or other professional or financial relationship with Apex Surgical Innovations, Inc., its counsel Hargrove, Tate & Bennington LLP, or any of Apex's known technical experts, consultants, or witnesses;

(c) She has reviewed the names of all parties, counsel, and known experts and witnesses in this matter, as provided by the Firm, and has identified no conflicts of interest or potential conflicts of interest arising from her professional or personal relationships;

(d) She will promptly notify the Firm in writing if, at any time during the term of this engagement, she becomes aware of any conflict of interest, potential conflict of interest, or any circumstance that could reasonably be perceived as impairing her independence or objectivity as an expert in this Litigation; and

(e) She has not previously been retained, consulted, or approached by Apex, Hargrove, Tate & Bennington LLP, or any other party or counsel in connection with the Asserted Patents, the Accused Products, or any related matter.

6.2 Exclusivity. During the term of this Agreement, Expert agrees that she shall not accept any engagement to provide consulting, expert, or advisory services to Apex Surgical Innovations, Inc. or to any other party adverse to Solstice Biomedical Devices Ltd. or Solstice Biomedical, Inc. in connection with the Asserted Patents, the Accused Products, or any related technology, including without limitation laparoscopic trocar assemblies, locking-seal mechanisms, retractable blade-deployment mechanisms, or integrated insufflation valve and seal systems, without the prior written consent of the Firm. This exclusivity provision is intended to protect the Firm's and Client's legitimate interests in the integrity and confidentiality of Expert's work product and opinions in this Litigation.

SECTION 7: DOCUMENT RETENTION AND DISCOVERY OBLIGATIONS

7.1 Preservation. Expert shall preserve all documents, communications, notes, drafts, data files, worksheets, calculations, models, annotated references, correspondence, email messages, text messages, and other materials (whether in physical or electronic form) relating to this engagement, including without limitation all materials created, received, reviewed, or considered by Expert in connection with the formation of her opinions. Expert understands that this preservation obligation arises from the anticipated discovery obligations under the Federal Rules of Civil Procedure, including but not limited to Fed. R. Civ. P. 26(a)(2) and 26(b)(4).

Expert is specifically aware that, under Fed. R. Civ. P. 26(a)(2)(B), any written expert report she submits must contain, among other things: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

Expert shall not delete, discard, or destroy any materials relating to this engagement without first consulting with the Firm's engagement team to determine whether such materials are subject to preservation obligations or discoverable under applicable rules of procedure.

7.2 Draft Reports

Expert acknowledges that, under Fed. R. Civ. P. 26(b)(4)(B), drafts of expert reports and disclosures are generally protected from discovery, regardless of the form in which the draft is recorded. Notwithstanding this general protection, Expert shall consult with the Firm's engagement team before discarding, destroying, or permanently deleting any draft reports, draft analyses, or preliminary work product to ensure compliance with all applicable preservation obligations and to allow the Firm to assess whether any additional steps are necessary.

Expert further acknowledges that, under Fed. R. Civ. P. 26(b)(4)(C), communications between Expert and Retaining Counsel are protected from discovery, except to the extent that such communications: (i) relate to Expert's compensation for the engagement; (ii) identify facts or data that Retaining Counsel provided and that Expert considered in forming her opinions; or (iii) identify assumptions that Retaining Counsel provided and that Expert relied upon in forming her opinions. Expert shall be mindful of these protections and limitations in her communications with the Firm.

SECTION 8: TERM AND TERMINATION

8.1 Term. This Agreement shall be effective as of the Effective Date, August 20, 2024, and shall continue in full force and effect until the earliest to occur of:

(a) The final resolution of the Litigation, including the exhaustion or expiration of all rights of appeal, or the entry of a final judgment from which no further appeal is taken or can be taken;

(b) The settlement or other consensual resolution of the Litigation between the parties thereto; or

8.2 Termination. Either Party may terminate this Agreement at any time upon thirty (30) calendar days' prior written notice to the other Party, delivered in accordance with Section 13.4 of this Agreement. The terminating Party need not state a reason for termination.

In the event of termination for any reason, the Firm shall compensate Expert for all services rendered and all expenses properly incurred through the effective date of termination, in accordance with the compensation terms set forth in Section 3 of this Agreement. Expert shall submit a final invoice within thirty (30) days following the effective date of termination, and the Firm shall pay such invoice within thirty (30) days of receipt.

Upon termination of this Agreement, Expert shall promptly return or destroy all Confidential Information in her possession, custody, or control, in accordance with Section 5.2 of this Agreement, and shall provide written certification of such return or destruction to the Firm.

8.3 Survival. The following provisions of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect thereafter: Section 5 (Confidentiality), Section 6 (Conflicts of Interest), Section 7 (Document Retention and discovery Obligations, to the extent that preservation obligations remain in effect), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (Governing Law and Dispute Resolution).

SECTION 9: REPRESENTATIONS AND WARRANTIES

9.1 Expert's Representations

Expert represents and warrants to the Firm as follows:

(a) Expert is qualified by virtue of her education, specialized training, professional experience, research, and publications to render expert opinions in the technical areas described in Section 1.2 of this Agreement, including without limitation the design and engineering of laparoscopic trocar assemblies, seal mechanisms, blade-deployment systems, and insufflation valve technology.

(b) All opinions, analyses, reports, and testimony that Expert provides in connection with this engagement will be based upon her honest, independent professional judgment, formed in accordance with generally accepted principles of biomedical engineering and the applicable technical disciplines. Expert's opinions will comply in all respects with the standards for the admissibility of expert testimony under Federal Rule of Evidence 702 and the analytical framework established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny.

(c) Expert has disclosed to the Firm a complete list of all cases in which she has testified as an expert at trial or by deposition within the preceding four (4) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(v). Expert shall promptly supplement such disclosure if she provides expert testimony in any additional case during the term of this engagement.

(d) Expert has the time and availability necessary to fulfill her obligations under this Agreement in a timely manner, consistent with the deadlines set forth in the Court's Scheduling Order.

9.2 Firm's Representations

The Firm represents and warrants to Expert as follows:

(a) The Firm is duly authorized by Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. to retain Expert on their behalf in connection with the defense of the Litigation, and the execution and performance of this Agreement have been duly authorized by the Firm.

(b) The Firm shall provide Expert with such documents, data, information, and access to Client representatives as are reasonably necessary for Expert to perform her services under this Agreement in a competent and timely manner.

(c) The Firm shall promptly notify Expert of any material developments in the Litigation that may affect Expert's engagement, including without limitation any changes to the Scheduling Order, any amendments to the pleadings or the asserted claims, and any settlement discussions that may render Expert's continued engagement unnecessary.

SECTION 10: INDEMNIFICATION

The Firm agrees to indemnify, defend, and hold Expert harmless from and against any and all claims, demands, actions, causes of action, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees and disbursements) that may be asserted against or incurred by Expert arising out of or in connection with Expert's good-faith performance of services under this Agreement, except to the extent that such claims, liabilities, damages, or expenses are proximately caused by Expert's own gross negligence, willful misconduct, fraud, or material breach of this Agreement. This indemnification obligation shall include, without limitation, claims arising from the content of Expert's opinions, reports, or testimony, provided such opinions, reports, or testimony were rendered in good faith and in accordance with Expert's independent professional judgment.

Expert agrees to indemnify, defend, and hold the Firm and the Client harmless from and against any and all claims, demands, actions, causes of action, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees and disbursements) arising from or attributable to Expert's breach of the confidentiality provisions set forth in Section 5, the conflict-of-interest provisions set forth in Section 6, or any other material provision of this Agreement, or arising from Expert's gross negligence or willful misconduct in the performance of her duties hereunder.

SECTION 11: LIMITATION OF LIABILITY

Except in cases of gross negligence, willful misconduct, or fraud, Expert's aggregate liability to the Firm and the Client under this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount of compensation actually paid to Expert under this Agreement as of the date a claim is asserted. This limitation of liability shall not apply to Expert's indemnification obligations arising from a breach of the confidentiality provisions of Section 5 or the conflict-of-interest provisions of Section 6, which shall not be subject to any monetary cap.

SECTION 12: GOVERNING LAW AND DISPUTE RESOLUTION

12.1 Governing Law

This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws provisions or rules (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

12.2 Dispute Resolution

Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be resolved by binding arbitration administered in Wilmington, Delaware, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted before a single arbitrator selected in accordance with such rules. The arbitrator's decision shall be final and binding upon the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each Party shall bear its own costs and attorneys' fees in connection with the arbitration, unless the arbitrator determines that a different allocation is appropriate under the circumstances.

Notwithstanding the foregoing, either Party may seek temporary, preliminary, or permanent injunctive relief, or other equitable relief, in any court of competent jurisdiction, without first submitting to arbitration, to enforce the confidentiality provisions of Section 5 of this Agreement or to prevent the unauthorized disclosure of Confidential Information. The Parties agree that the breach of the confidentiality provisions of this Agreement would cause irreparable harm for which monetary damages would be an inadequate remedy, and that equitable relief, including injunctive relief and specific performance, is an appropriate remedy for any such breach or threatened breach.

SECTION 13: MISCELLANEOUS

13.1 Entire Agreement

This Agreement, together with the Exhibits attached hereto and incorporated herein by reference (Exhibit A — Curriculum Vitae of Dr. Miriam Ostrowski; Exhibit B — Rate Schedule), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, understandings, and agreements, whether written or oral, between the Parties relating to such subject matter. No prior draft of this Agreement and no prior correspondence between the Parties shall be used to interpret or construe the terms and provisions of this Agreement.

13.2 Amendments. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless expressly so stated.

13.3 Assignment. Neither Party may assign, delegate, or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that the Firm may assign this Agreement to a successor law firm, whether by merger, reorganization, or otherwise, without Expert's prior consent, so long as the successor firm assumes all of the Firm's obligations under this Agreement.

13.4 Notices. All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective: (i) upon personal delivery; (ii) on the first business day following delivery to a nationally recognized overnight courier service (e.g., Severin Partners LLC or Halcyon Partners LLC), with delivery charges prepaid; or (iii) on the third business day following deposit in the United States mail, by certified or registered mail, return receipt requested, postage prepaid, addressed as follows:

If to the Firm:

Marcus Delgado, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7400

Email: mdelgado@calderwoodharkness.com

With a copy to:

Catherine Bloom, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7425

Email: cbloom@calderwoodharkness.com

If to Expert:

Dr. Miriam Ostrowski Department of Biomedical Engineering Halford University 3401 Walnut Street Philadelphia, Pennsylvania 19104 Telephone: (215) 555-2180

Email: mostrowski@halford.edu

Either Party may change its address for purposes of this Section 13.4 by providing written notice to the other Party in accordance with the procedures set forth herein.

13.5 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile or by electronic transmission in portable document format (PDF) shall be deemed to be, and shall have the same legal force and effect as, execution and delivery of an original ink-signed counterpart.

13.6 Severability. If any provision of this Agreement, or the application of any provision to any person or circumstance, is held by a court of competent jurisdiction or an arbitrator to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect as if the invalid, illegal, or unenforceable provision had never been included. The Parties shall negotiate in good faith to replace any invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the invalid provision.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, the Parties have executed this Expert Retention Agreement as of the date first written above.

CALDERWOOD & HARKNESS LLP

By: ________

Name: Marcus Delgado

Title: Partner, intellectual Property Practice Group

Date: August 20, 2024

DR. MIRIAM OSTROWSKI

________________________________________

Dr. Miriam Ostrowski Professor of Biomedical Engineering Halford University

Date: August 20, 2024

EXHIBIT A

CURRICULUM VITAE OF DR. MIRIAM OSTROWSKI

The full Curriculum Vitae of Dr. Miriam Ostrowski is attached to and incorporated by reference into this Expert Retention Agreement. The CV includes, without limitation, the following categories of information as required by Fed. R. Civ. P. 26(a)(2)(B):

Academic Appointments Professor of Biomedical Engineering, Halford University, Philadelphia, Pennsylvania (2011–present); Associate Professor of Biomedical Engineering, Halford University (2005–2011); Assistant Professor of Biomedical Engineering, Halford University (1999–2005).

Education Ph.D., Biomedical Engineering, Massachusetts Institute of Technology; M.S., Mechanical Engineering, Stanford University; B.S., Biomedical Engineering, Johns Hopkins University.

Publications A complete list of peer-reviewed publications authored or co-authored by Dr. Ostrowski within the preceding ten (10) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(iv), is included in the attached CV.

Patents Held A listing of all United States and foreign patents issued to or naming Dr. Ostrowski as inventor or co-inventor.

Prior Expert Testimony A listing of all cases in which Dr. Ostrowski has testified as an expert at trial or by deposition within the preceding four (4) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(v), is included in the attached CV.

Professional Affiliations Memberships in professional societies and organizations, including the Society for Minimally Invasive Therapy, the Biomedical Engineering Society, and the American Institute for Medical and Biological Engineering.

[Full CV to be appended hereto]

EXHIBIT B

RATE SCHEDULE

The following Rate Schedule sets forth the compensation terms applicable to Expert's engagement under this Agreement, as more fully described in Section 3:

Billing Increments: All time shall be recorded in increments of one-tenth (0.1) of an hour (six-minute increments).

Invoicing Frequency: Monthly, submitted by the fifteenth (15th) day of each calendar month for the preceding month's services and expenses.

Payment Terms: Net thirty (30) calendar days from receipt of a properly submitted invoice.

Invoice Address:

Catherine Bloom, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Reference: Matter No. 10294.0017

CONFIDENTIAL — This Agreement and its Exhibits contain confidential information protected by the attorney work product doctrine and the attorney-client privilege. Unauthorized disclosure, copying, or distribution is strictly prohibited.

Service Category	Rate
Standard Hourly Rate — All Professional Services (including document review, analysis, report preparation, meetings, conferences, deposition preparation, deposition testimony, trial preparation, trial testimony, and hearing attendance)	$750.00 per hour
Travel Time	$375.00 per hour (50% of standard hourly rate)
Research Assistant / Technical Support (subject to pre-approval by the Firm)	To be approved on a case-by-case basis; rates to be agreed in writing prior to engagement
Expense Reimbursement (travel, reference materials, copying, courier, and other out-of-pocket costs)	At cost, with itemized receipts required

EXPERT RETENTION AGREEMENT
Dated as of August 20, 2024
This Expert Retention Agreement (this "Agreement") is entered into as of August 20, 2024 (the "Effective Date"), by and between:
CALDERWOOD & HARKNESS LLP ("Firm" or "Retaining Counsel"), a limited liability partnership organized under the laws of the State of Delaware, with offices at 1201 Market Street, Suite 2500, Wilmington, Delaware 19801 and 299 Park Avenue, 35th Floor, New York, New York 10171;
and
DR. MIRIAM OSTROWSKI ("Expert"), an individual residing in the Commonwealth of Pennsylvania, holding the position of Professor of Biomedical Engineering at Halford University, located at 3401 Walnut Street, Philadelphia, Pennsylvania 19104.
The Firm and Expert are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
Re: Expert Engagement in Apex Surgical Innovations, Inc. v. Solstice Biomedical, Inc., Case No. 1:24-cv-00587-RGA, United States District Court for the District of Delaware
RECITALS
WHEREAS, Calderwood & Harkness LLP represents Solstice Biomedical Devices Ltd., an Irish private limited company (Companies Registration Office No. 648217), registered at Unit 14, Clonskeagh Business Park, Clonskeagh Road, Dublin 14, D14 YF28, Ireland, and its United States operating subsidiary, Solstice Biomedical, Inc., a Delaware corporation (Employer Identification Number: 84-3291056), with principal offices located at 3800 Concord Pike, Suite 410, Wilmington, Delaware 19803 (Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. are collectively referred to herein as "Client" or "Solstice");
WHEREAS, Solstice is the named defendant in a patent infringement action initiated by Apex Surgical Innovations, Inc. ("Apex"), bearing Case No. 1:24-cv-00587-RGA, currently pending in the United States District Court for the District of Delaware before the Honorable Chief Judge Richard G. Andrews (the "Litigation" or the "Action");
WHEREAS, this matter was opened at Calderwood & Harkness under Matter Number 10294.0017 on May 9, 2024, the same date on which Apex filed its Complaint for Patent Infringement. Solstice, through the Firm, filed its Answer, Affirmative Defenses, and Counterclaims on June 14, 2024, asserting defenses of non-infringement, invalidity under 35 U.S.C. §§ 102 and 103, and inequitable conduct;
WHEREAS, the Action concerns Apex's allegations that Solstice's PrecisionEdge™ line of laparoscopic trocar assemblies — specifically including the PE-5000 Series (5 mm diameter), the PE-12000 Series (12 mm diameter), and the PE-15000 Series (15 mm diameter) (collectively, the "Accused Products") — infringes three United States utility patents owned by Apex, namely:
(a) U.S. Patent No. 9,814,237 (the "'237 Patent"), entitled "Locking Seal Assembly for Minimally Invasive Surgical Access Device," issued November 14, 2017, with an expiration date of June 22, 2035 (asserted Claims 1, 3, 7, and 12);
(b) U.S. Patent No. 10,271,884 (the "'884 Patent"), entitled "Retractable Blade Deployment Mechanism for Trocar Systems," issued April 30, 2019, with an expiration date of September 15, 2036 (asserted Claims 1, 2, 5, 9, and 14); and
(c) U.S. Patent No. 10,932,105 (the "'105 Patent"), entitled "Integrated Insufflation Valve and Seal for Laparoscopic Trocar," issued March 2, 2021, with an expiration date of January 10, 2038 (asserted Claims 1, 4, and 8);
(the '237 Patent, the '884 Patent, and the '105 Patent are collectively referred to herein as the "Asserted Patents");
WHEREAS, the named inventor on each of the Asserted Patents is Dr. Raymond Szabo, who holds the title of Vice President, Engineering at Apex Surgical Innovations, Inc.;
WHEREAS, the Firm desires to retain Dr. Ostrowski as a testifying and consulting expert witness to provide analysis, opinions, and testimony in connection with claim construction and invalidity of the Asserted Patents in support of Solstice's defense in the Litigation; and
WHEREAS, Dr. Ostrowski possesses the qualifications, knowledge, training, education, and experience necessary to render expert opinions in the relevant technical fields, and is willing to accept such retention on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: ENGAGEMENT AND SCOPE OF SERVICES
1.1 Retention.  The Firm hereby retains Dr. Miriam Ostrowski as an expert witness and consultant in connection with the defense of Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. in the above-captioned Action, Apex Surgical Innovations, Inc. v. Solstice Biomedical, Inc., Case No. 1:24-cv-00587-RGA, United States District Court for the District of Delaware. Expert accepts such retention on the terms and conditions set forth in this Agreement.
Expert is retained by Calderwood & Harkness LLP on behalf of and for the benefit of both Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. Expert acknowledges that, notwithstanding her retention on behalf of the Client, Expert's contractual obligations and the Firm's payment obligations under this Agreement run between the Firm and Expert. The Client is not a party to this Agreement, and Expert shall look solely to the Firm for compensation, payment, and other obligations arising hereunder.
The engagement team at Calderwood & Harkness LLP responsible for coordinating Expert's work in this matter shall consist of the following attorneys:
(a) Marcus Delgado, Partner, intellectual Property Practice Group — Responsible Partner;
(b) Catherine Bloom, Partner, intellectual Property Practice Group — Billing Partner;
(c) Christy Bauer, Associate, intellectual Property Practice Group — Lead Associate; and
(d) Peter Vassiliev, Associate, intellectual Property Practice Group — Working Associate.
The Firm may, from time to time, supplement or modify the members of the engagement team upon written notice to Expert. Expert shall direct all substantive communications regarding the Litigation to the above-named individuals or their designated successors.
1.2 Scope of Services
Expert shall provide expert analysis, opinions, consulting services, and testimony on the following subject matters in connection with the Litigation:
(a) Claim Construction. Expert shall provide analysis of the meaning and scope of disputed claim terms in the '237 Patent, the '884 Patent, and the '105 Patent. This analysis shall include a thorough review of the intrinsic evidence, including without limitation the patent specifications, prosecution histories before the United States Patent and Trademark Office, and the claims as issued for each of the Asserted Patents. Expert shall also review and consider extrinsic evidence as appropriate, including technical dictionaries, engineering treatises, published standards, prior art references, and other relevant scientific and technical literature. Expert's claim construction analysis shall support Solstice's proposed claim constructions and shall be prepared in anticipation of the Markman hearing currently scheduled for November 18, 2024, pursuant to the Scheduling Order entered by Chief Judge Andrews on July 2, 2024. Expert shall be available to provide declarations, supplemental analyses, and live testimony in connection with the claim construction proceedings as may be required by the Firm.
(b) Invalidity Analysis. Expert shall identify and analyze prior art references relevant to the validity of each asserted claim of the Asserted Patents under 35 U.S.C. § 102 (anticipation) and 35 U.S.C. § 103 (obviousness). This analysis shall encompass a review of prior art references identified by the Firm, by Solstice's patent prosecution counsel, Kendrick & Lau LLP (located at 601 Pennsylvania Avenue NW, Suite 820, Washington, DC 20004; lead partner: Dr. Jonathan Kendrick), and by Expert herself through her independent knowledge and research. Expert shall provide detailed, claim-by-claim invalidity analyses identifying how each element of each asserted claim is met or rendered obvious by the identified prior art, individually or in combination. Expert shall also consider the secondary considerations of non-obviousness (e.g., commercial success, long-felt need, failure of others, copying) as appropriate to rebut any arguments raised by Apex.
(c) Expert Reports. Expert shall prepare an opening expert report on invalidity in compliance with Fed. R. Civ. P. 26(a)(2)(B), setting forth a complete statement of Expert's opinions and the bases and reasons therefor, the facts and data considered by Expert in forming her opinions, any exhibits to be used in support of the opinions, Expert's qualifications, a list of all publications authored by Expert within the preceding ten years, a statement of the compensation to be paid for this engagement, and a list of all other cases in which Expert has testified as an expert at trial or by deposition within the preceding four years. If required by the circumstances of the Litigation, Expert shall also prepare a rebuttal expert report responding to the opening report of Apex's technical expert (whose identity is to be disclosed during expert discovery pursuant to the Scheduling Order).
(d) Deposition Testimony. Expert shall be available to appear for and provide testimony at a deposition noticed by opposing counsel, Hargrove, Tate & Bennington LLP (lead partner: Victoria Stanton; associate: Derek Loomis; located at 900 North King Street, Suite 1200, Wilmington, Delaware 19801), in accordance with the procedures and timelines established by the Court's Scheduling Order and the Federal Rules of Civil Procedure. Expert shall prepare for such deposition in coordination with the Firm's engagement team.
(e) Trial Testimony. Expert shall be available to provide live testimony at the trial of this matter before the Court. Trial is currently scheduled to commence on September 30, 2025, as set forth in the Scheduling Order entered July 2, 2024. Expert acknowledges that the trial date may be subject to change by the Court and agrees to use reasonable efforts to accommodate any revised trial schedule.
(f) Consulting Services. Expert shall provide general consulting services to the Firm and the engagement team on technical matters related to laparoscopic trocar assemblies, locking-seal mechanisms, retractable blade-deployment mechanisms, insufflation valve and seal technology, and related areas of biomedical engineering, as such matters pertain to the Asserted Patents, the Accused Products, and the issues raised in the Litigation. Such consulting services may include, without limitation, attending technical presentations, reviewing deposition transcripts, analyzing opposing expert reports, participating in strategy sessions, and providing informal guidance to the engagement team on technical questions.
The scope of services described herein may be expanded or modified by mutual agreement of the Parties, confirmed in writing.
1.3 Expected Deliverables
Expert shall provide the following deliverables in connection with this engagement, subject to the timelines established by the Court's Scheduling Order and any modifications thereto:
(a) Claim Construction Analysis and Declarations. Written claim construction analyses and supporting declaration(s) as needed for the Markman briefing process. Under the current Scheduling Order, the exchange of proposed claim constructions is set for October 22, 2024, and the Joint Claim Construction Brief is due November 4, 2024. Expert shall work with the engagement team to ensure that her analyses and any declarations are completed in sufficient time to support these deadlines.
(b) Opening Invalidity Expert Report. A comprehensive opening expert report on the invalidity of the asserted claims of the Asserted Patents, prepared in accordance with Fed. R. Civ. P. 26(a)(2)(B). Expert discovery opens on January 13, 2025 pursuant to the Scheduling Order, and Expert's opening report shall be served by the deadline established therein.
(c) Rebuttal Expert Report. If necessary, a rebuttal expert report responsive to the opening report of Apex's technical expert, to be served by the deadline established in the Scheduling Order.
(d) Deposition and Trial Availability. Expert shall make herself available for deposition preparation sessions, deposition testimony, trial preparation sessions, and trial testimony at such times as may be reasonably required by the Firm and as scheduled by the Court.
SECTION 2: QUALIFICATIONS
Dr. Miriam Ostrowski is a tenured Professor of Biomedical Engineering at Halford University in Philadelphia, Pennsylvania. She holds recognized expertise in the design, engineering, and performance evaluation of minimally invasive surgical instruments, with particular specialization in laparoscopic devices, trocar systems, seal assemblies, insufflation mechanisms, and blade-deployment technologies. Her research and academic work span more than two decades and encompass the full range of engineering principles relevant to the technologies at issue in this Litigation.
Expert's curriculum vitae, which sets forth in detail her educational background, academic appointments, research positions, peer-reviewed publications, patents held, grants received, professional society memberships, editorial board service, and prior expert testimony experience, is attached hereto as Exhibit A and incorporated by reference into this Agreement.
Expert represents and warrants that she has no current or prior consulting relationship, employment relationship, financial interest, or other business or personal relationship with Apex Surgical Innovations, Inc. or any of its officers, directors, employees, affiliates, subsidiaries, or agents that would create a conflict of interest or impair her ability to render independent, objective opinions in this Litigation. Expert further represents that she has disclosed to the Firm all prior expert engagements and consulting arrangements with any parties or counsel that could reasonably bear upon her ability to serve as an independent expert in this matter.
SECTION 3: COMPENSATION
3.1 Hourly Rate
Expert shall be compensated at the rate of Seven Hundred Fifty Dollars ($750.00) per hour for all professional services rendered under this Agreement. This hourly rate applies to all categories of services performed by Expert in connection with the Litigation, including but not limited to:
(a) Review and analysis of technical documents, patent specifications, prosecution histories, prior art references, and other materials;
(b) Preparation of expert reports, declarations, affidavits, and other written work product;
(c) Meetings, conferences, and telephone calls with Retaining Counsel, including the engagement team and any other attorneys at Calderwood & Harkness LLP or at Kendrick & Lau LLP involved in the matter;
(d) Preparation for deposition testimony, including mock deposition sessions;
(e) Deposition testimony;
(f) Preparation for trial testimony, including review of trial exhibits and practice examinations;
(g) Trial testimony;
(h) Attendance at hearings, including the Markman hearing; and
(i) Travel time, which shall be billed at fifty percent (50%) of Expert's standard hourly rate, i.e., Three Hundred Seventy-Five Dollars ($375.00) per hour.
Expert shall maintain contemporaneous, accurate time records reflecting the date, nature, and duration of all services performed, in increments of no less than one-tenth (0.1) of an hour.
3.2 Expenses.  Expert shall be reimbursed for all reasonable out-of-pocket expenses actually incurred in connection with this engagement. Reimbursable expenses include, without limitation:
(a) Travel expenses, including commercial airfare (coach or economy class for domestic flights; business class for flights exceeding five hours), hotel accommodations at reasonable rates, ground transportation (including rental cars, taxis, rideshare services, and parking fees), and meals, incurred for depositions, hearings, trial appearances, and in-person meetings with Retaining Counsel or Client representatives;
(b) Reference materials, including the cost of obtaining technical references, textbooks, journal articles, patent documents, standards publications, or other materials necessary for the engagement that are not otherwise available to Expert through her university library or existing collection;
(c) Research assistance and technical support, including the costs of retaining research assistants, graduate students, or other technical support personnel to assist Expert in connection with her work on this engagement, provided that all such costs are pre-approved in writing by the Firm prior to their being incurred; and
(d) Miscellaneous costs, including copying, printing, binding, overnight courier or express delivery charges, long-distance telephone charges, and similar out-of-pocket costs directly attributable to the engagement.
All expenses submitted for reimbursement must be documented with itemized receipts. The Firm reserves the right to request additional documentation or explanation for any expense submission that, in its reasonable judgment, requires clarification.
3.3 Invoicing and Payment
Expert shall submit monthly invoices to Calderwood & Harkness LLP on or about the fifteenth (15th) day of each calendar month for services rendered and expenses incurred during the preceding month. All invoices shall be directed to Catherine Bloom, Billing Partner, at Calderwood & Harkness LLP, 1201 Market Street, Suite 2500, Wilmington, Delaware 19801, and shall clearly reference Matter No. 10294.0017.
Each invoice shall include: (a) a detailed narrative description of the services performed; (b) the date on which each service was performed; (c) the number of hours expended on each service; (d) the applicable hourly rate; (e) a subtotal for professional fees; (f) an itemization of expenses with supporting receipts; (g) a subtotal for expenses; and (h) a total amount due.
Payment of each properly submitted invoice shall be made by the Firm within thirty (30) calendar days of receipt. Payment shall be made by check or electronic wire transfer to an account designated by Expert.
Expert acknowledges that Expert's fees and expenses constitute a component of the overall costs and disbursements tracked by Calderwood & Harkness LLP in connection with this matter and may be subject to coverage, in whole or in part, under Solstice's intellectual property litigation insurance policy with Halcyon Specialty Insurance Co. (Policy No. HSI-IP-2023-04891). Notwithstanding the foregoing, the Firm's obligation to pay Expert under this Agreement is independent of and not conditioned upon Solstice's receipt of insurance reimbursement or any other third-party payment. The Firm is solely responsible for the timely payment of all amounts due to Expert under this Agreement.
3.4 No Contingency
Expert's compensation under this Agreement is not contingent, in whole or in part, upon the outcome of the Litigation, the content or substance of Expert's opinions, the conclusions reached in any expert report, the content of any testimony provided at deposition or trial, or any other result or event in the Action. Expert's opinions and testimony shall be based solely upon her independent professional judgment, applying generally accepted principles of biomedical engineering and her knowledge, training, and experience.
SECTION 4: RELATIONSHIP OF THE PARTIES
4.1 Independent Contractor
Expert is retained as an independent contractor. Nothing in this Agreement shall be construed to create an employer-employee relationship, a partnership, a joint venture, or an agency relationship between Expert and the Firm, or between Expert and Solstice Biomedical Devices Ltd. or Solstice Biomedical, Inc. Expert shall be solely responsible for reporting and paying all federal, state, and local income taxes, self-employment taxes, Social Security contributions, and any other taxes or charges arising from or relating to compensation received under this Agreement. Expert shall maintain her own professional liability insurance, health insurance, and other insurance coverage as she deems appropriate. Expert shall not have any authority to act on behalf of, to represent, or to bind the Firm or the Client in any transaction, negotiation, or other matter.
4.2 Direction of Work
Expert's work under this Agreement shall be performed under the general coordination and direction of the Firm's engagement team, principally Marcus Delgado (Responsible Partner) and Christy Bauer (Lead Associate), who shall serve as Expert's primary points of contact for scheduling, document requests, analytical priorities, and logistical matters. The Firm shall provide Expert with reasonable access to documents, data, and information necessary for the performance of her services.
Notwithstanding the foregoing, Expert retains full and complete independence over the substance of her opinions, analyses, and conclusions. The Firm shall not direct, control, or attempt to influence the substance of Expert's professional opinions or the conclusions she reaches based on her independent analysis. Expert acknowledges that her work product, including drafts, notes, analyses, and communications with Retaining Counsel, will be subject to the protections of the attorney work product doctrine and the attorney-client privilege to the fullest extent permitted by applicable law, until and unless such materials are disclosed in an expert report filed pursuant to Fed. R. Civ. P. 26(a)(2) or in testimony at deposition or trial.
SECTION 5: CONFIDENTIALITY
5.1 Confidential Information Defined
For purposes of this Agreement, "Confidential Information" means all information, documents, data, files, materials, communications, and tangible and intangible items, whether written, electronic, oral, or visual, provided to Expert by the Firm, by the Client, or by any third party at the Firm's direction, in connection with Expert's engagement under this Agreement. Without limiting the generality of the foregoing, Confidential Information includes:
(a) Client documents, technical drawings, engineering specifications, test data, manufacturing records, quality assurance records, and product specifications for the PrecisionEdge™ PE-5000, PE-12000, and PE-15000 Series trocar assemblies, as well as any predecessor or successor products;
(b) Attorney work product, legal memoranda, legal analyses, litigation strategy documents, case assessments, and similar materials prepared by the Firm or by Kendrick & Lau LLP;
(c) Documents produced by any party in discovery in the Litigation, including without limitation Solstice's production (Bates Nos. SBD-000001 through SBD-048217) and Apex's production (Bates Nos. APEX-000001 through APEX-031450), as well as any supplemental productions made after the Effective Date of this Agreement;
(d) Prior art search results, patentability analyses, freedom-to-operate analyses, and patent landscape reports prepared by Kendrick & Lau LLP or by the Firm;
(e) Patent portfolio valuations, damages analyses, royalty calculations, financial projections, or other financial analyses relating to the Litigation, the Asserted Patents, or the Accused Products;
(f) Settlement discussions, negotiation positions, mediation materials, and any communications relating to the potential resolution of the Litigation; and
(g) Any other information designated as confidential by the Firm or the Client, whether or not specifically identified in this Section 5.1.
5.2 Obligations.  Expert shall hold all Confidential Information in strict confidence and shall not disclose, publish, disseminate, or otherwise make available any Confidential Information to any third party, including without limitation Expert's colleagues, students, research assistants, family members, or any other person or entity, without the prior written consent of the Firm. Expert shall use Confidential Information solely for the purpose of performing her services under this Agreement and for no other purpose whatsoever.
Expert shall implement and maintain reasonable physical, electronic, and procedural safeguards to protect the security and confidentiality of all Confidential Information in her possession, custody, or control. Such safeguards shall include, at a minimum, storing physical documents in a secure, locked location; maintaining electronic files on password-protected devices with encryption; and restricting access to Confidential Information to Expert alone (or to research assistants expressly authorized in writing by the Firm).
Expert shall comply fully with any Protective Order, Confidentiality Order, or Stipulated Protective Order entered by the Court in Case No. 1:24-cv-00587-RGA, including without limitation any provisions governing the designation, handling, and return of "Confidential" and "Attorneys' Eyes Only" materials. Expert shall execute any acknowledgment forms or undertakings required under such orders prior to receiving access to materials designated thereunder.
Upon the termination of this Agreement, or at any earlier time upon the Firm's written request, Expert shall promptly return to the Firm, or at the Firm's election destroy, all Confidential Information and all copies, extracts, summaries, and compilations thereof in Expert's possession, custody, or control, including electronic copies stored on any device, server, cloud storage service, or other medium. Expert shall certify in writing to the Firm that such return or destruction has been completed.
5.3 Exceptions.  The confidentiality obligations set forth in this Section 5 shall not apply to information that:
(a) Is or becomes publicly available through no act or omission of Expert in breach of this Agreement;
(b) Was already in Expert's possession prior to the commencement of this engagement, without any obligation of confidentiality, as evidenced by Expert's contemporaneous written records; or
(c) Is required to be disclosed by applicable law, governmental regulation, subpoena, or order of a court or other tribunal of competent jurisdiction, provided that Expert shall give the Firm prompt written notice of such requirement (to the extent legally permissible) so that the Firm may seek a protective order or other appropriate remedy prior to such disclosure, and provided further that Expert shall disclose only such Confidential Information as is strictly required by such law, regulation, or order.
SECTION 6: CONFLICTS OF INTEREST
6.1 Expert Representations
Expert represents and warrants to the Firm as of the Effective Date that:
(a) She has no financial interest, whether direct or indirect, in Solstice Biomedical Devices Ltd., Solstice Biomedical, Inc., Apex Surgical Innovations, Inc., or any parent, subsidiary, affiliate, or successor entity of any of the foregoing;
(b) She has no current or prior consulting relationship, employment relationship, expert engagement, advisory relationship, or other professional or financial relationship with Apex Surgical Innovations, Inc., its counsel Hargrove, Tate & Bennington LLP, or any of Apex's known technical experts, consultants, or witnesses;
(c) She has reviewed the names of all parties, counsel, and known experts and witnesses in this matter, as provided by the Firm, and has identified no conflicts of interest or potential conflicts of interest arising from her professional or personal relationships;
(d) She will promptly notify the Firm in writing if, at any time during the term of this engagement, she becomes aware of any conflict of interest, potential conflict of interest, or any circumstance that could reasonably be perceived as impairing her independence or objectivity as an expert in this Litigation; and
(e) She has not previously been retained, consulted, or approached by Apex, Hargrove, Tate & Bennington LLP, or any other party or counsel in connection with the Asserted Patents, the Accused Products, or any related matter.
6.2 Exclusivity.  During the term of this Agreement, Expert agrees that she shall not accept any engagement to provide consulting, expert, or advisory services to Apex Surgical Innovations, Inc. or to any other party adverse to Solstice Biomedical Devices Ltd. or Solstice Biomedical, Inc. in connection with the Asserted Patents, the Accused Products, or any related technology, including without limitation laparoscopic trocar assemblies, locking-seal mechanisms, retractable blade-deployment mechanisms, or integrated insufflation valve and seal systems, without the prior written consent of the Firm. This exclusivity provision is intended to protect the Firm's and Client's legitimate interests in the integrity and confidentiality of Expert's work product and opinions in this Litigation.
SECTION 7: DOCUMENT RETENTION AND DISCOVERY OBLIGATIONS
7.1 Preservation.  Expert shall preserve all documents, communications, notes, drafts, data files, worksheets, calculations, models, annotated references, correspondence, email messages, text messages, and other materials (whether in physical or electronic form) relating to this engagement, including without limitation all materials created, received, reviewed, or considered by Expert in connection with the formation of her opinions. Expert understands that this preservation obligation arises from the anticipated discovery obligations under the Federal Rules of Civil Procedure, including but not limited to Fed. R. Civ. P. 26(a)(2) and 26(b)(4).
Expert is specifically aware that, under Fed. R. Civ. P. 26(a)(2)(B), any written expert report she submits must contain, among other things: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.
Expert shall not delete, discard, or destroy any materials relating to this engagement without first consulting with the Firm's engagement team to determine whether such materials are subject to preservation obligations or discoverable under applicable rules of procedure.
7.2 Draft Reports
Expert acknowledges that, under Fed. R. Civ. P. 26(b)(4)(B), drafts of expert reports and disclosures are generally protected from discovery, regardless of the form in which the draft is recorded. Notwithstanding this general protection, Expert shall consult with the Firm's engagement team before discarding, destroying, or permanently deleting any draft reports, draft analyses, or preliminary work product to ensure compliance with all applicable preservation obligations and to allow the Firm to assess whether any additional steps are necessary.
Expert further acknowledges that, under Fed. R. Civ. P. 26(b)(4)(C), communications between Expert and Retaining Counsel are protected from discovery, except to the extent that such communications: (i) relate to Expert's compensation for the engagement; (ii) identify facts or data that Retaining Counsel provided and that Expert considered in forming her opinions; or (iii) identify assumptions that Retaining Counsel provided and that Expert relied upon in forming her opinions. Expert shall be mindful of these protections and limitations in her communications with the Firm.
SECTION 8: TERM AND TERMINATION
8.1 Term.  This Agreement shall be effective as of the Effective Date, August 20, 2024, and shall continue in full force and effect until the earliest to occur of:
(a) The final resolution of the Litigation, including the exhaustion or expiration of all rights of appeal, or the entry of a final judgment from which no further appeal is taken or can be taken;
(b) The settlement or other consensual resolution of the Litigation between the parties thereto; or
(c) The written termination of this Agreement by either Party as provided in Section 8.2 below.
8.2 Termination.  Either Party may terminate this Agreement at any time upon thirty (30) calendar days' prior written notice to the other Party, delivered in accordance with Section 13.4 of this Agreement. The terminating Party need not state a reason for termination.
In the event of termination for any reason, the Firm shall compensate Expert for all services rendered and all expenses properly incurred through the effective date of termination, in accordance with the compensation terms set forth in Section 3 of this Agreement. Expert shall submit a final invoice within thirty (30) days following the effective date of termination, and the Firm shall pay such invoice within thirty (30) days of receipt.
Upon termination of this Agreement, Expert shall promptly return or destroy all Confidential Information in her possession, custody, or control, in accordance with Section 5.2 of this Agreement, and shall provide written certification of such return or destruction to the Firm.
8.3 Survival.  The following provisions of this Agreement shall survive the termination or expiration of this Agreement and shall remain in full force and effect thereafter: Section 5 (Confidentiality), Section 6 (Conflicts of Interest), Section 7 (Document Retention and discovery Obligations, to the extent that preservation obligations remain in effect), Section 10 (Indemnification), Section 11 (Limitation of Liability), and Section 12 (Governing Law and Dispute Resolution).
SECTION 9: REPRESENTATIONS AND WARRANTIES
9.1 Expert's Representations
Expert represents and warrants to the Firm as follows:
(a) Expert is qualified by virtue of her education, specialized training, professional experience, research, and publications to render expert opinions in the technical areas described in Section 1.2 of this Agreement, including without limitation the design and engineering of laparoscopic trocar assemblies, seal mechanisms, blade-deployment systems, and insufflation valve technology.
(b) All opinions, analyses, reports, and testimony that Expert provides in connection with this engagement will be based upon her honest, independent professional judgment, formed in accordance with generally accepted principles of biomedical engineering and the applicable technical disciplines. Expert's opinions will comply in all respects with the standards for the admissibility of expert testimony under Federal Rule of Evidence 702 and the analytical framework established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and its progeny.
(c) Expert has disclosed to the Firm a complete list of all cases in which she has testified as an expert at trial or by deposition within the preceding four (4) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(v). Expert shall promptly supplement such disclosure if she provides expert testimony in any additional case during the term of this engagement.
(d) Expert has the time and availability necessary to fulfill her obligations under this Agreement in a timely manner, consistent with the deadlines set forth in the Court's Scheduling Order.
9.2 Firm's Representations
The Firm represents and warrants to Expert as follows:
(a) The Firm is duly authorized by Solstice Biomedical Devices Ltd. and Solstice Biomedical, Inc. to retain Expert on their behalf in connection with the defense of the Litigation, and the execution and performance of this Agreement have been duly authorized by the Firm.
(b) The Firm shall provide Expert with such documents, data, information, and access to Client representatives as are reasonably necessary for Expert to perform her services under this Agreement in a competent and timely manner.
(c) The Firm shall promptly notify Expert of any material developments in the Litigation that may affect Expert's engagement, including without limitation any changes to the Scheduling Order, any amendments to the pleadings or the asserted claims, and any settlement discussions that may render Expert's continued engagement unnecessary.
SECTION 10: INDEMNIFICATION
The Firm agrees to indemnify, defend, and hold Expert harmless from and against any and all claims, demands, actions, causes of action, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees and disbursements) that may be asserted against or incurred by Expert arising out of or in connection with Expert's good-faith performance of services under this Agreement, except to the extent that such claims, liabilities, damages, or expenses are proximately caused by Expert's own gross negligence, willful misconduct, fraud, or material breach of this Agreement. This indemnification obligation shall include, without limitation, claims arising from the content of Expert's opinions, reports, or testimony, provided such opinions, reports, or testimony were rendered in good faith and in accordance with Expert's independent professional judgment.
Expert agrees to indemnify, defend, and hold the Firm and the Client harmless from and against any and all claims, demands, actions, causes of action, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees and disbursements) arising from or attributable to Expert's breach of the confidentiality provisions set forth in Section 5, the conflict-of-interest provisions set forth in Section 6, or any other material provision of this Agreement, or arising from Expert's gross negligence or willful misconduct in the performance of her duties hereunder.
SECTION 11: LIMITATION OF LIABILITY
Except in cases of gross negligence, willful misconduct, or fraud, Expert's aggregate liability to the Firm and the Client under this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount of compensation actually paid to Expert under this Agreement as of the date a claim is asserted. This limitation of liability shall not apply to Expert's indemnification obligations arising from a breach of the confidentiality provisions of Section 5 or the conflict-of-interest provisions of Section 6, which shall not be subject to any monetary cap.
SECTION 12: GOVERNING LAW AND DISPUTE RESOLUTION
12.1 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without giving effect to any choice-of-law or conflict-of-laws provisions or rules (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
12.2 Dispute Resolution
Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be resolved by binding arbitration administered in Wilmington, Delaware, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The arbitration shall be conducted before a single arbitrator selected in accordance with such rules. The arbitrator's decision shall be final and binding upon the Parties, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each Party shall bear its own costs and attorneys' fees in connection with the arbitration, unless the arbitrator determines that a different allocation is appropriate under the circumstances.
Notwithstanding the foregoing, either Party may seek temporary, preliminary, or permanent injunctive relief, or other equitable relief, in any court of competent jurisdiction, without first submitting to arbitration, to enforce the confidentiality provisions of Section 5 of this Agreement or to prevent the unauthorized disclosure of Confidential Information. The Parties agree that the breach of the confidentiality provisions of this Agreement would cause irreparable harm for which monetary damages would be an inadequate remedy, and that equitable relief, including injunctive relief and specific performance, is an appropriate remedy for any such breach or threatened breach.
SECTION 13: MISCELLANEOUS
13.1 Entire Agreement
This Agreement, together with the Exhibits attached hereto and incorporated herein by reference (Exhibit A — Curriculum Vitae of Dr. Miriam Ostrowski; Exhibit B — Rate Schedule), constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, representations, understandings, and agreements, whether written or oral, between the Parties relating to such subject matter. No prior draft of this Agreement and no prior correspondence between the Parties shall be used to interpret or construe the terms and provisions of this Agreement.
13.2 Amendments.  No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless made in writing and signed by duly authorized representatives of both Parties. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless expressly so stated.
13.3 Assignment.  Neither Party may assign, delegate, or transfer this Agreement or any rights or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that the Firm may assign this Agreement to a successor law firm, whether by merger, reorganization, or otherwise, without Expert's prior consent, so long as the successor firm assumes all of the Firm's obligations under this Agreement.
13.4 Notices.  All notices, requests, demands, consents, and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given and effective: (i) upon personal delivery; (ii) on the first business day following delivery to a nationally recognized overnight courier service (e.g., Severin Partners LLC or Halcyon Partners LLC), with delivery charges prepaid; or (iii) on the third business day following deposit in the United States mail, by certified or registered mail, return receipt requested, postage prepaid, addressed as follows:
If to the Firm:
Marcus Delgado, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7400
Email: mdelgado@calderwoodharkness.com
With a copy to:
Catherine Bloom, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Telephone: (302) 555-7425
Email: cbloom@calderwoodharkness.com
If to Expert:
Dr. Miriam Ostrowski Department of Biomedical Engineering Halford University 3401 Walnut Street Philadelphia, Pennsylvania 19104 Telephone: (215) 555-2180
Email: mostrowski@halford.edu
Either Party may change its address for purposes of this Section 13.4 by providing written notice to the other Party in accordance with the procedures set forth herein.
13.5 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution and delivery of this Agreement by facsimile or by electronic transmission in portable document format (PDF) shall be deemed to be, and shall have the same legal force and effect as, execution and delivery of an original ink-signed counterpart.
13.6 Severability.  If any provision of this Agreement, or the application of any provision to any person or circumstance, is held by a court of competent jurisdiction or an arbitrator to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall continue in full force and effect as if the invalid, illegal, or unenforceable provision had never been included. The Parties shall negotiate in good faith to replace any invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the invalid provision.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have executed this Expert Retention Agreement as of the date first written above.
CALDERWOOD & HARKNESS LLP
By: ________
Name: Marcus Delgado
Title: Partner, intellectual Property Practice Group
Date: August 20, 2024
DR. MIRIAM OSTROWSKI
________________________________________
Dr. Miriam Ostrowski Professor of Biomedical Engineering Halford University
Date: August 20, 2024
EXHIBIT A
CURRICULUM VITAE OF DR. MIRIAM OSTROWSKI
The full Curriculum Vitae of Dr. Miriam Ostrowski is attached to and incorporated by reference into this Expert Retention Agreement. The CV includes, without limitation, the following categories of information as required by Fed. R. Civ. P. 26(a)(2)(B):
Academic Appointments Professor of Biomedical Engineering, Halford University, Philadelphia, Pennsylvania (2011–present); Associate Professor of Biomedical Engineering, Halford University (2005–2011); Assistant Professor of Biomedical Engineering, Halford University (1999–2005).
Education Ph.D., Biomedical Engineering, Massachusetts Institute of Technology; M.S., Mechanical Engineering, Stanford University; B.S., Biomedical Engineering, Johns Hopkins University.
Publications A complete list of peer-reviewed publications authored or co-authored by Dr. Ostrowski within the preceding ten (10) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(iv), is included in the attached CV.
Patents Held A listing of all United States and foreign patents issued to or naming Dr. Ostrowski as inventor or co-inventor.
Prior Expert Testimony A listing of all cases in which Dr. Ostrowski has testified as an expert at trial or by deposition within the preceding four (4) years, as required by Fed. R. Civ. P. 26(a)(2)(B)(v), is included in the attached CV.
Professional Affiliations Memberships in professional societies and organizations, including the Society for Minimally Invasive Therapy, the Biomedical Engineering Society, and the American Institute for Medical and Biological Engineering.
[Full CV to be appended hereto]
EXHIBIT B
RATE SCHEDULE
The following Rate Schedule sets forth the compensation terms applicable to Expert's engagement under this Agreement, as more fully described in Section 3:
Billing Increments: All time shall be recorded in increments of one-tenth (0.1) of an hour (six-minute increments).
Invoicing Frequency: Monthly, submitted by the fifteenth (15th) day of each calendar month for the preceding month's services and expenses.
Payment Terms: Net thirty (30) calendar days from receipt of a properly submitted invoice.
Invoice Address:
Catherine Bloom, Partner Calderwood & Harkness LLP 1201 Market Street, Suite 2500 Wilmington, Delaware 19801 Reference: Matter No. 10294.0017
CONFIDENTIAL — This Agreement and its Exhibits contain confidential information protected by the attorney work product doctrine and the attorney-client privilege. Unauthorized disclosure, copying, or distribution is strictly prohibited.
Service Category | Rate
Standard Hourly Rate — All Professional Services (including document review, analysis, report preparation, meetings, conferences, deposition preparation, deposition testimony, trial preparation, trial testimony, and hearing attendance) | $750.00 per hour
Travel Time | $375.00 per hour (50% of standard hourly rate)
Research Assistant / Technical Support (subject to pre-approval by the Firm) | To be approved on a case-by-case basis; rates to be agreed in writing prior to engagement
Expense Reimbursement (travel, reference materials, copying, courier, and other out-of-pocket costs) | At cost, with itemized receipts required