UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`No. ________________
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`TRILLIANT HEALTH, INC.
`
`
`
`v.
`
`NUVASIVE, INC.,
`
`
`
`
`
`
`
`
`
`COMPLAINT
`
`Comes now Plaintiff Trilliant Health, Inc. (“Trilliant” or “Plaintiff”), by and through
`
`counsel, and makes the following allegations against NuVasive, Inc. (“NuVasive” or “Defendant”)
`
`busted upon its knowledge, information, and belief:
`
`
`
`INTRODUCTION
`
`1.
`
`This is an action by Trilliant to recover its damages for Defendant’s anticipatory
`
`repudiation/breach of the parties’ written contract.
`
`PARTIES, JURISDICTION, AND VENUE
`
`2.
`
`Plaintiff, Trilliant Health, Inc., is a corporation formed under the laws of Tennessee
`
`with its principal place of business located at 2 Maryland Way Brentwood, Tennessee 37027.
`
`3.
`
`Defendant, NuVasive, Inc., is a corporation formed under the laws of Delaware
`
`with its principal place of business located at 7475 Lusk Blvd. San Diego, California 92121.
`
`4.
`
`NuVasive is registered with the Tennessee Secretary of State Division of Business
`
`Services, Department of State, to transact business in Tennessee. NuVasive’s registered agent for
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 1 of 8 PageID #: 1
`
`

`

`service of process in Tennessee is Cogency Global, Inc., 992 Davidson Drive, Ste B Nashville,
`
`Tennessee, 37205.
`
`5.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 because the
`
`amount in controversy is in excess of $75,000 exclusive of interest and costs, and this action is
`
`between citizens of different states.
`
`6.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a
`
`substantial part of the events or omissions described herein occurred in this district.
`
`FACTUAL ALLEGATIONS
`
`7.
`
`On or about April 13, 2021, representatives from NuVasive contacted Trilliant
`
`to inquire about access to Trilliant’s proprietary data analytics platform which allows
`
`customers to explore surgical claims data (“surgical episodes”) for procedures performed at
`
`facilities in defined geographical markets. Prior to this contact, Trilliant had not solicited
`
`business from NuVasive.
`
`8.
`
`Trilliant obtains healthcare claims data from certain healthcare claims
`
`clearinghouses. Trilliant’s data analytics platform allows customers to explore surgical volumes
`
`over time by market share, payer type, service line, and surgery type, as well as referral and
`
`Primary Care Provider patterns.
`
`9.
`
`NuVasive provides minimally invasive, procedurally-integrated spine solutions to
`
`surgeons and healthcare facilities that include software systems for surgical planning access
`
`instruments and implantable spinal hardware, as well as intraoperative neuromonitoring services
`
`to surgeons and healthcare facilities. NuVasive’s website represents that it has approximately
`
`2,900 employees in 25 locations worldwide with net sales of $1.14 billion in 2021.
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 2 of 8 PageID #: 2
`
`2
`
`

`

`10.
`
`NuVasive wanted access to Trilliant’s surgical data analytics platform so it could
`
`identify surgeons (and associated practice groups) that performed certain spine procedures and the
`
`facilities where the procedures were performed in order to target these surgeons and facilities as
`
`part of their efforts to sell surgical spine implants and related products.
`
`11.
`
`On May 20, 2021, Trilliant sales representative Preston Walls traveled to
`
`NuVasive’s San Diego offices to provide a live demonstration of the data analytics platform, which
`
`in this case consisted of Trilliant’s surgical data asset and Workbench, an interface that allows
`
`customers to query the surgical claims data.
`
`12.
`
`At the May 20, 2021 live presentation, NuVasive’s Senior Director of Strategic
`
`Accounts, Jay Colehour, and his team made specific requests for Mr. Walls to perform certain data
`
`queries for two geographic regions Mr. Colehour and his team had previously identified and
`
`selected—San Diego and Tampa Bay.
`
`13.
`
`Following the presentation, Mr. Colehour asked Mr. Walls to provide him a draft
`
`agreement prior to Memorial Day Weekend. Further, Mr. Colehour was so impressed with
`
`Trilliant’s data analysis platform he inquired about having exclusive access to Trilliant’s data
`
`analytics platform to the exclusion of NuVasive’s competitors.
`
`14. Mr. Colehour also requested that Trilliant provide NuVasive with two separate
`
`sample data sets from the San Diego area—a market NuVasive knows well, and thus was well-
`
`positioned to analyze—so that Mr. Colehour could “pressure test” the data and confirm that it met
`
`NuVasive’s use case before signing a contract. Although it was uncommon for Trilliant to provide
`
`the quantity of data requested by Mr. Colehour, Trilliant honored Mr. Colehour’s request.
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 3 of 8 PageID #: 3
`
`3
`
`

`

`15.
`
`On June 24, 2021, the parties executed a five-year Master Services Agreement
`
`giving NuVasive access to Trilliant’s surgical data analytics platform and a one-year exclusivity
`
`provision preventing Trilliant from offering certain NuVasive competitors access to the platform.
`
`16.
`
`Pursuant to the Agreement, NuVasive agreed to pay a $253,300 annual fee for five
`
`years.
`
`17.
`
`The Agreement gives NuVasive access to national surgical episode data relating to
`
`23 specific CPT codes identified and selected by NuVasive.
`
`18.
`
`NuVasive made
`
`the first payment of $146,650 (including
`
`the $20,000
`
`implementation fee) on August 16, 2021.
`
`19.
`
`After NuVasive had signed the Agreement, Mr. Colehour informed Mr. Walls that
`
`NuVasive had not tested the two data sets that Trilliant provided at NuVasive’s request in early
`
`June 2021, which was before the Agreement was signed.
`
`20.
`
`21.
`
`In approximately September 2021, Mr. Colehour left NuVasive.
`
`In November 2021, months after Mr. Colehour left NuVasive, Andrew Burns,
`
`Senior Manager of Commercial Strategy and Analytics for NuVasive, contacted Mr. Walls and
`
`requested that the two have a call to discuss the Agreement.
`
`22.
`
`During the call, which was held on December 2, 2021, Mr. Burns asked Mr. Walls
`
`whether the parties could mutually agree to terminate the Agreement without NuVasive incurring
`
`a fee and raised concerns regarding the volume of Trilliant’s data but did not identify a particular
`
`geographic region that NuVasive regarded as problematic.
`
`23.
`
`24.
`
`Trilliant refused to voluntarily terminate the Agreement.
`
`The Agreement does not require that Trilliant provide any specific volume of
`
`claims in any particular geographic area. Further, Section 10 of the Agreement expressly disclaims
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 4 of 8 PageID #: 4
`
`4
`
`

`

`liability as to the completeness or accuracy of the data because Trilliant has no control over the
`
`claims data it receives from the third-party claims clearinghouses from which it purchases claims
`
`data:
`
`DISCLAIMER OF WARRANTIES. ALL SERVICES AND TRILLIANT
`MATERIALS ARE PROVIDED “AS IS,” AND TRILLIANT HEREBY
`DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS,
`IMPLIED,
`STATUTORY, OR OTHERWISE, AND TRILLIANT SPECIFICALLY
`DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
`FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-
`INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF
`DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE
`FOREGOING, TRILLIANT MAKES NO WARRANTY OF ANY KIND THAT
`THE SERVICES OR TRILLIANT MATERIALS, OR ANY PRODUCTS OR
`RESULTS OF THE USE THEREOF WILL OPERATE WITHOUT
`INTERRUPTION OR BE SECURE, FREE OF HARMFUL CODE OR ERROR
`FREE OR THAT THE SERVICES OR TRILLIANT MATERIALS WILL
`INCLUDE ANY FUNCTIONS OR FEATURES NOT EXPRESSLY STATED IN
`THIS AGREEMENT OR THE APPLICABLE ORDER FORM. TRILLIANT
`DISCLAIMS RESPONSIBILITY FOR ANY ERRORS IN THE TRILLIANT
`MATERIALS SOURCED FROM THIRD PARTIES AND FOR ANY
`CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USES,
`NONUSE, OR INTERPRETATION OF INFORMATION CONTAINED IN OR
`NOT CONTAINED IN THE TRILLIANT MATERIALS. TRILLIANT WILL
`NOT BE DEEMED TO BE ENGAGED IN THE PRACTICE OF MEDICINE OR
`DISPENSING MEDICAL SERVICES. CLIENT ACKNOWLEDGES AND
`AGREES THAT DATA USED BY TRILLIANT TO PROVIDE THE SERVICES
`AND TRILLIANT MATERIALS UNDER THIS AGREEMENT IS PROVIDED
`BY THIRD-PARTY SOURCES. TRILLIANT SHALL HAVE NO
`RESPONSIBILITY OR LIABILITY TO CLIENT WITH RESPECT TO ANY
`ERRORS IN THE DATA, THE COMPLETENESS AND ACCURACY OF THE
`DATA, OR THE REPORTING, IDENTIFICATION, CLASSIFICATION,
`CODING, OR CATEGORIZATION OF THE DATA CONTAINED IN THE
`TRILLIANT MATERIALS, USED TO PROVIDE SERVICES, OR OTHERWISE
`MADE AVAILABLE UNDER THIS AGREEMENT. CLIENT FURTHER
`ACKNOWLEDGES AND AGREES THAT DATA AND CLAIMS INCLUDED
`IN SERVICE LINES OR MEDICAL EPISODES ARE DETERMINED BY
`TRILLIANT IN ITS SOLE AND UNFETTERED DISCRETION, AND
`TRILLIANT SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO
`CLIENT WITH RESPECT TO SERVICE LINES OR MEDICAL EPISODES IN
`THE TRILLIANT MATERIALS OR OTHERWISE USED TO PROVIDE
`SERVICES OR MADE AVAILABLE UNDER THIS AGREEMENT.
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 5 of 8 PageID #: 5
`
`5
`
`
`
` 
`
`

`

`25.
`
`Although Trilliant had performed its obligations under the Agreement, on February
`
`7, 2022, NuVasive sent Trilliant a notice of termination (the “Termination Letter,” a copy of which
`
`is attached as Exhibit A), which purports to terminate the Agreement based on an alleged material
`
`breach pursuant to Section 9.3(b)(i) of the Agreement.
`
`26.
`
`The Termination Letter does not identify how Trilliant materially breached the
`
`Agreement or explain why the alleged breach was incurable.
`
`27.
`
`Following its receipt of the Termination Letter, Trilliant responded to the
`
`Termination Letter by letter dated February 17, 2022 denying any breach and demanding, pursuant
`
`to Section 14.10 of the Agreement, that the parties engage in the required pre-suit mediation so
`
`that Trilliant could file a lawsuit for NuVasive’s wrongful termination of the Agreement if the
`
`mediation was unsuccessful.
`
`28.
`
`Despite NuVasive’s allegation of material breach by Trilliant, NuVasive made the
`
`next $126,500 semi-annual payment on February 28, 2022.
`
`29.
`
`On May 26, 2022, the parties appeared in person in Nashville, Tennessee for the
`
`required mediation. The mediation was unsuccessful.
`
`CAUSES OF ACTION
`
`Count I: Breach of Contract/Anticipatory Repudiation
`
`30.
`
`31.
`
`Plaintiff incorporates by reference Paragraphs 1 through 29 of the Complaint.
`
`Defendant, NuVasive, Inc., entered into the Master Services Agreement with
`
`Plaintiff on June 24, 2021. The Agreement is valid and binding and shall be interpreted in
`
`accordance with the laws of the State of Delaware.
`
`32.
`
`33.
`
`Trilliant has performed all obligations under the Agreement.
`
`The term of the Agreement is five years and ends on June 2026.
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 6 of 8 PageID #: 6
`
`6
`
`

`

`34.
`
`Because Trilliant has not breached the Agreement, NuVasive has no legal right to
`
`terminate the Agreement.
`
`35.
`
`36.
`
`NuVasive wrongfully terminated the Agreement by letter dated February 7, 2022.
`
`Defendant’s Termination Letter and actions and position at the mediation on May
`
`27, 2022, is an anticipatory repudiation under Delaware law, which Plaintiff is entitled to treat as
`
`a breach of contract and immediately seek damages.
`
`37.
`
`As a result of NuVasive’s breach, Trilliant has been damaged and will continue to
`
`suffer damages. The remaining fees owed by NuVasive under the Agreement total over
`
`$1,000,000.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff, Trilliant Health, Inc., prays for a judgment in favor of
`
`Trilliant and against NuVasive for the following relief:
`
`1) An award of damages in an amount to be proven at trial but in no event less
`
`than $1,000,000 for NuVasive’s breach of the Agreement;
`
`2) Pursuant to Section 14.13 of the Agreement, an award of Trilliant’s
`
`reasonable attorneys’ fees, court costs, and all expenses incurred in
`
`prosecuting this action;
`
`3) An award of pre- and post-judgment interest and/or interest as provided by
`
`Section 6.5 of the Agreement; and
`
`4) For such other and further relief to which this Court finds Trilliant is entitled.
`
`
`
`DATED: June 2, 2022
`
`
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 7 of 8 PageID #: 7
`
`7
`
`

`

`
`
`
`
`Respectfully submitted,
`
`
`
`/s/ E. Steele Clayton, IV
`E. Steele Clayton, IV (BPR 017298)
`Wesley S. Love (BPR 036869)
`BASS, BERRY & SIMS PLC
`150 Third Ave. S., Suite 2800
`Nashville, TN 37201
`(615) 742-6200
`sclayton@bassberry.com
`wesley.love@bassberry.com
`
`Attorneys for Trilliant Health, Inc.
`
` 
`
`Case 3:22-cv-00405 Document 1 Filed 06/02/22 Page 8 of 8 PageID #: 8
`
`8
`
`