By Eric Schweibenz
On September 19, 2013, ALJ Thomas B. Pender issued the public version of Order No. 6 (dated August 29, 2013) denying Complainants’ motion to disqualify Respondents’ proposed expert witness, while simultaneously granting Complainants’ motion to supplement its motion and respond to Respondents’ opposition on this issue in Certain Opaque Polymers (Inv. No. 337-TA-883).

By way of background, the investigation is based on a complaint filed by Rohm and Haas Company, Rohm and Haas Chemicals, and The Dow Chemical Company (collectively, “Dow”) alleging violation of Section 337 in the importation into the U.S. and sale of certain opaque polymers that infringe one or more claims of U.S. Patent Nos. 6,020,435; 6,252,004; 7,435,783; and 7,803,878.  See our May 22, 2013 and June 20, 2013 posts for more details on the complaint and notice of investigation, respectively.

According to the Order, Dow moved to disqualify an expert witness proposed by Respondents because the expert, Dr. Robert K. Prud’homme, has a longstanding, confidential consulting relationship with Dow.  Dow supported its motion with a declaration from a senior research scientist from Dow detailing the content of various agreements between Dow and Dr. Prud’homme, noting confidentiality clauses and the nature of the work involved.

Respondents argued that Dow’s motion was untimely and attacked various other procedural aspects of the motion.  While noting the validity of these arguments, ALJ Pender “determined to rule only on the merits of the motion,” and thus, only substantively considered Respondents’ arguments that Dow had failed to meet their burden of proof to establish that Dow had disclosed confidential information to the expert that is relevant to this investigation.

ALJ Pender agreed with Respondents that the “conclusory statements” about what Dr. Prud’homme did for Dow were insufficient to disqualify the expert, particularly in relation to the relevance of his consultations to the present investigation.  Specifically, Dow “failed to establish any kind of a nexus between what Dr. Prud’homme did for them and this investigation.”  As such, Dow’s motion to disqualify Dr. Prud’homme was denied.