By Eric Schweibenz
On August 3, 2009, ALJ E. James Gildea issued the public version of Order No. 30 (dated July 24, 2009) in Certain Laser Imageable Lithographic Printing Plates (Inv. No. 337-TA-636).  In the Order, ALJ Gildea denied a motion to strike portions of the hearing testimony of two experts for Complainant Presstek, Inc. (“Presstek”) filed by Respondents VIM Technologies, Ltd., Hanita Coatings RCA, Ltd., AteCe Canada, Guaranteed Service & Supplies, Inc., Recognition Systems, Inc., and Spicers Paper, Inc. (collectively, “Respondents”).

In their motion, Respondents sought to strike the hearing testimony of Presstek experts Charles W. Magee, Ph.D. (“Dr. Magee”) and Steven A. Carlson, Ph.D. (“Dr. Carlson”) regarding “the relative speeds at which light travels through the ablative/absorptive layer and at which ablation occurs” and “reflection with respect to the substrate of the accused VIM plates.”  According to the Order, Presstek opposed the motion and the Commission Investigative Staff filed a response “supporting Respondents’ motion only with respect to striking portions of Dr. Magee’s hearing testimony.”

In the Order, ALJ Gildea noted that he “made clear to the parties at the hearing that any motions to strike expert testimony [must] relate to ‘questions of whether or not matters were adequately disclosed in discovery.’”  Thus, according to ALJ Gildea, “the inquiry here, is not restricted to whether Presstek’s experts included the subject of their testimony in their expert reports (as Respondents suggest), but instead focuses on whether Respondents had adequate notice of their opinions during the expert discovery period as a whole.”

In view of this framework, ALJ Gildea determined that although general statements made by Dr. Magee in his deposition regarding the order in which reflectance and ablation occur did not provide Respondents with adequate notice, Respondents “opened the door” on cross-examination by asking Dr. Magee “whether he performed any other ‘testing that showed that there was ablation on the rebound or the second pass as to the VIM plates.’”  Thus, according to ALJ Gildea, Presstek had a right to have Dr. Magee explain that, because light travels so much faster than ablation occurs, such testing as suggested by Respondents during cross-examination was not required in order for him to reach his conclusions.

Regarding the testminony of Dr. Carlson, ALJ Gildea determined that the subject testimony was “unobjectionable.”  Specifically, ALJ Gildea found that Respondents had ample notice of such testimony in the Carlson Declaration submitted in connection with Presstek’s response to Respondents’ summary determination motion and during Dr. Carlson’s deposition.