On April 27, 2012, ALJ Robert K. Rogers, Jr. issued Order No. 22 in Certain Coenzyme Q10 Products and Methods of Making Same (Inv. No. 337-TA-790). In the Order, ALJ Rogers granted a motion filed by Respondent Xiamen Kingdomway Group Company (“XKGC”) to strike the expert report of Dr. Jeffrey D. Kittendorf submitted on behalf of Complainant Kaneka Corporation (“Kaneka”).
According to the Order, XKGC filed the motion to strike Dr. Kittendorf’s expert report because it was submitted approximately four days after the deadline set forth in the procedural schedule. In response to the motion, Kaneka acknowledged that Dr. Kittendorf’s expert report was not served in a timely manner due to a clerical error. Specifically, Kaneka explained that Dr. Kittendorf’s expert report was supposed to be an exhibit to one of the reports timely submitted by another expert, Dr. Neal Connors. Kaneka argued that it would be improper to strike Dr. Kittendorf’s report due to a clerical error that caused no real prejudice to XKGC and should not otherwise prevent Kaneka from presenting scientific testing that goes to the substantive issues in this investigation.
ALJ Rogers rejected Kaneka’s arguments and determined that “[t]he procedural schedule establishes deadlines for a reason, and the Ground Rules make clear that modifications of the procedural schedule require a showing of good cause.” ALJ Rogers further determined that “Kaneka flouts this good cause requirement by failing to offer any explanation beyond an ‘inadvertent clerical error’ for why it did not serve an expert report on time.” Lastly, ALJ Rogers noted that “[m]issing a deadline has consequences, and here, those consequences are that Kaneka will not be able to rely on the Kittendorf report in this investigation.”