By: Alex Li and Ryan McCrum – In a recently issued order, ALJ Lord granted-in-part and denied-in-part Respondents’ motion in limine to exclude certain testimony of Complainants’ expert.  Certain Radio Frequency Microneedle Dermatological Treatment Devices and Components Thereof, Inv. 337-TA-1112, Order No. 30 (May 1, 2019).  We have previously reported on this investigation in connection with the application of the Daubert standard at the ITC (here).

In their motion in limine, Respondents argued that significant portions of Complainants’ expert testimony should be excluded because his testimony was based on an incorrect legal standard; his opinions were not supported by any reliable evidence or rigorous scientific method; he had relied on hearsay; and that some of his testimony was neither disclosed during discovery or in his expert reports.

ALJ Lord initially observed that the issues raised by the motion were mostly directed towards the weight of the evidence rather than its admissibility.  She recognized that parts of the testimony would likely be excluded in a jury trial, but she emphasized that concerns regarding the admissibility of expert testimony are “attenuated in administrative proceedings, where there is no danger of jury confusion” and that the ITC will give little weight to “unscientific or unreliable” opinions.  Accordingly, ALJ Lord denied Respondents’ motion with respect to these grounds.

On the other hand, ALJ Lord granted Respondents’ motion with respect to the portion of Complainants’ expert testimony that violated her Ground Rules.  Ground Rule 10.5.6 requires that “[a]n expert’s testimony at the trial shall be limited in accordance with the scope of his or her expert report(s), deposition testimony, or within the discretion of the Administrative Law Judge.”  In this case, Complainants’ expert rebuttal witness statement cites to documents that supposedly support the “volumizing effect of collagen growth” and shows excerpts of these documents.  However, Complainants did not identify any disclosures of these opinions in the expert reports or deposition testimony of Complainants’ expert.  Because of Complainants’ violation of the Ground Rules, ALJ Lord ruled that the previously undisclosed opinions must be excluded from Complainants’ expert testimony.


This order highlights that admissibility of evidence at the ITC is subject to a different standard than in district courts.  It also reiterates the importance of closely following the Ground Rules issued by the ALJ.

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Ryan McCrum, who co-chairs the Firm's intellectual property ITC practice, has nearly 20 years of experience handling high-stakes patent litigation. He has led teams from the initial filing of a complaint all the way through jury and bench trials. He has extensive experience examining witnesses of all types at trial, arguing claim construction and summary judgment hearings, and handling matters through appeal.