By Eric Schweibenz
On January 30, 2012, ALJ David P. Shaw issued Order No. 33 concerning a renewed request to strike expert testimony by the Respondent in Certain Gaming and Entertainment Consoles, Related Software, and Components Thereof  (337-TA-752).

As described in our January 26, 2012 post, ALJ Shaw recently ruled on several motions in limine filed by Complainants Motorola Mobility, Inc. and General Instrument Corp. (collectively, “Motorola”)and Respondent Microsoft Corp. (“Microsoft”) before holding the evidentiary hearing.  According to Order 33, during the evidentiary hearing Microsoft renewed its request to strike portions of the witness statement (containing the direct testimony) of one of Motorola’s expert witnesses, Dr. Vijay K. Madisetti.  As explained in the Order, the ALJ heard arguments from the parties and requested further briefing on this issue “particularly in view of the fact that the Madisetti witness statement had been the subject of a Motorola motion in limine, and a subsequent ruling contained in Order No. 32.”

According to the Order, Microsoft argued that “the disputed portions of Dr. Madisetti’s testimony amount to new theories not disclosed in his expert report” and that the “untimely disclosure” of these theories prejudiced Microsoft.  Motorola opposed, noting that “Microsoft’s objections…were already rejected” and pointing out that the testimony in issue was supported by Dr. Madisetti’s expert report.  Motorola also argued that any alleged prejudice could have been contradicted during the three and a half months that elapsed between the witness statement and the hearing and suggested that “at this point it is Motorola that would be prejudiced if, at such a late stage in the investigation, large portions of expert witness testimony were to be stricken.”

ALJ Shaw determined not to strike the portions of the Madisetti statement in issue, noting that Microsoft’s previous arguments leading to Order No. 32 were “largely unsubstantiated allegations” and that “Microsoft’s current arguments provide no support to overrule Order No. 32.”  The ALJ also noted that Microsoft appeared to cross-examine Dr. Madisetti effectively, and was persuaded by Motorola’s argument that “it is Motorola that could be prejudiced if key direct testimony of an expert were stricken from the record” at this late date.