In a recently issued pair of orders, ALJ Lord denied both Respondents’ and Complainants’ motions in limine to exclude certain expert testimony. Certain Radio Frequency Microneedle Dermatological Treatment Devices and Components Thereof, Inv. 337-TA-1112, Order Nos. 28 and 29.

In their motion in limine, Respondents, EndyMed Medical and Lumenis Ltd., argued that Complainant’s expert is not an expert on customer relations and thus not qualified to offer his opinions regarding EndyMed’s alleged “direction or control” of its customers. Furthermore, EndyMed alleged that Complainant’s expert had based his testimony on certain unreliable or irrelevant evidence. Respondents therefore asked the ITC to exclude certain portions of the expert’s testimony under Daubert.

Complainants, Syneron Medical, Candela Corp, and Massachusetts General Hospital in their motion similarly sought to disqualify Respondents’ expert. Complainants contended that Respondents’ expert, despite his extensive qualifications in electrosurgery, was not involved in the relevant field during the appropriate timeframe, and therefore not qualified to testify regarding the level of ordinary skill in the art during that timeframe.

ALJ Lord denied both motions. She observed that Respondents’ arguments were directed more towards the weight of the evidence rather than its admissibility. She further noted that whether the evidence relied on by Complainant’s expert was sufficient to prove his theory should be decided on the merits, not in a motion in limine. Importantly, ALJ Lord explained that the standards of Daubert are “not strictly enforced in administrative proceedings” where concerns regarding the admissibility of expert testimony are attenuated since there is no danger of jury confusion. As for the Complainants’ motion, ALJ Lord similarly reasoned that because there was no danger of jury confusion in an administrative proceeding, their close scrutiny of the expert’s qualifications was unnecessary.


These orders are a reminder to litigants that a hearing at the ITC is different from a district court jury trial in many respects. Complainants and respondents alike should be mindful of these differences and how the lack of a jury trial can impact litigation strategy from the outset of an investigation.