UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
`
`In the Matter of
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`CERTAIN LIGHT-BASED
`PHYSIOLOGICAL MEASUREMENT
`DEVICES AND COMPONENTS
`THEREOF
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` Inv. No. 337-TA-1276
`
`ORDER NO. 35: GRANTING-IN-PART AND DENYING-IN-PART RESPONDENT’S
`MOTION TO STRIKE AND PRECLUDE RELIANCE UPON
`COMPLAINANTS’ UNTIMELY DISCLOSED FACT DISCOVERY
`AND EXPERT OPINIONS
`
`(June 1, 2022)
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`On April 28, 2022, Respondent Apple Inc. (“Apple”) filed a motion (the “Motion,” 1276-
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`034) to strike and preclude reliance upon allegedly untimely disclosed fact discovery and expert
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`opinions, attaching a memorandum in support (“Apple Memo.”) and exhibits (“Apple Exhibits”).
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`On May 11, 2022, Complainants Masimo Corporation and Cercacor Laboratories, Inc.
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`(collectively, “Masimo”) filed a response in opposition to the motion (“Masimo Opp.”),
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`attaching exhibits (“Masimo Exhibits”). Apple filed a reply brief on April 1, 2022 (the “Reply”).
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`I.
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`BACKGROUND
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`A. Interrogatory Responses
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`On November 9, 2021, Apple served Interrogatory No. 82, asking Masimo to
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`“[s]eparately, for each article on which Complainants intend to rely to satisfy the technical prong
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`of the domestic industry requirement, identify by Bates number the final versions of all
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`documents sufficient to describe the article,” and Interrogatory No. 90, asking Masimo for each
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`domestic industry article to “explain what, if any, software was installed on the device at the time
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`of the inspection.” See Apple Exhibit A at 3-4. The sufficiency and timeliness of Masimo’s
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`answers to Interrogatory No. 82 have been the subject of several discovery disputes between the
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`parties, which were addressed in Order No. 21 (Mar. 15, 2022) and Order No. 32 (May 5, 2022).
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`In accordance with the Procedural Schedule, Order No. 6 (Oct. 14, 2021), fact discovery
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`closed on February 23, 2022. The parties exchanged expert reports on March 4 and March 18,
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`2022. See, e.g., Apple Exhibit D (Madisetti Expert Report), Apple Exhibit E (Domestic Industry
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`Rebuttal Expert Report), Apple Exhibit P (Sarrafzadeh Expert Report), Masimo Exhibit 4
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`(Madisetti Rebuttal Expert Report), Masimo Exhibit 7 (McGavock Expert Report), Masimo
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`Exhibit 8 (Thomas Expert Report), Masimo Exhibit 10 (Warren Rebuttal Expert Report).
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`On April 3, 2022, Masimo served supplemental responses to Interrogatory Nos. 82 and
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`90. Apple Exhibit A; Apple Exhibit B. In these supplemental responses, Masimo corrected the
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`version numbers for software associated with the MASITC_P_146 domestic industry product.
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`Apple Exhibit A at 35, 39; Apple Exhibit B at 42. Masimo also removed a statement from its
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`interrogatory responses that had previously stated:
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` Compare Apple Exhibit C at 39 to Apple
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`Exhibit B at 40.
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`B. Expert Discovery
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`On April 4, 2022, Apple deposed Masimo’s expert Dr. Vijay Madisetti. See Apple
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`Exhibit G. During the deposition, Masimo’s counsel questioned Dr. Madisetti in re-direct
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`examination, and Dr. Madisetti offered opinions regarding the meaning of the term “over” based
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`on Figure 8 of U.S. Patent No. 10,912,501 (the “’501 patent”). Id. at 307:22-311:5. Apple’s
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`counsel moved to strike this testimony at the deposition. Id. at 311:6-11. Masimo’s re-direct
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`questioning also elicited opinions regarding the Iwamiya prior reference and his “opinion that it
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`teaches a single wavelength.” Id. at 312:11-315:14. Apple’s counsel also moved to strike this
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`testimony at the deposition. Id. at 315:21-22. During examination by Apple’s counsel,
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`Dr. Madisetti testified regarding a source code function
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` Id. at 22:14-20, 24:18-25:8,
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`164:3-6, 167:1-168:5, but Apple’s counsel noted on the record that there was no reference to this
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`function in Dr. Madisetti’s expert reports. Id. at 164:9-13.
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`On April 4, 2022, the evening before the deposition of Masimo’s expert Daniel
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`McGavock, Masimo served three supplemental documents to Mr. McGavock’s expert report.
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`See Apple Exhibit I. The first supplemental document is an updated Schedule 4.12 of
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`Mr. McGavock’s expert report, applying an allocation to
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` Apple Exhibit J; see Apple Exhibit K (McGavock Dep. Tr.) at 34:12-36:6. The
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`second supplemental document is a two-page “Summary of Selected Quantitative Indicators
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`from McGavock’s March 4, 2022 Expert Report,” which contains several tables of expenditures
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`and calculations. Apple Exhibit L. The third supplemental document is an amended list of
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`material considered, identifying documents that Mr. McGavock reviewed after submitting his
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`expert report. Apple Exhibit M.
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`II. BRIEFING
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`Apple moves to strike Masimo’s April 3 supplemental responses to Interrogatory Nos. 82
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`and 90 and certain opinions of Dr. Madisetti and Mr. McGavock that were not timely disclosed
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`in their expert reports. With respect to the interrogatory responses, Apple argues that Masimo’s
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`supplement was untimely and that there was no good cause for the delay. Apple Memo. at 11-
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`13; Reply at 2-4. Apple contends that Dr. Madisetti’s untimely opinions should be stricken
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`pursuant to Ground Rule 7, which requires experts to disclose their opinions in expert reports.
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`Apple Memo. at 13-16. Apple submits that its questioning at Dr. Madisetti’s deposition did not
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`open the door to any of these new opinions. Id. Moreover, Apple argues that there was no good
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`cause for Dr. Madisetti to supplement his opinions at his deposition. Reply at 4-5. With respect
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`to Mr. McGavock, Apple argues that Masimo improperly supplemented Mr. McGavock’s expert
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`report on the eve of his deposition. Apple Memo. at 16-17; Reply at 6. Apple submits that it has
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`been prejudiced by Masimo’s late disclosures because its experts relied on Masimo’s timely
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`contentions and opinions and have not had sufficient time to analyze and respond to the new
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`material. Reply at 6-8.
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`In opposition, Masimo submits that it had good cause to supplement its responses to
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`Interrogatory Nos. 82 and 90 because the previous responses were incorrect. Masimo Opp. at
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`4-6. Masimo explains that it supplemented its responses to make corrections after investigating
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`errors that were identified by Apple and its experts. Id. Masimo contends that Apple has not
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`been prejudiced by these supplemental responses because the correct source code and
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` documents were available in discovery and there is no evidence that Apple relied on the
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`incorrect information—Apple was able to identify the errors before Masimo supplemented its
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`responses. Id. at 6. Masimo submits that the corrected interrogatory responses do not affect any
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`substantive issues, because Dr. Madisetti confirmed that his opinions on domestic industry
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`remain unchanged. Id. at 7.
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`Masimo argues that Dr. Madisetti’s deposition testimony regarding the meaning of the
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`term “over” based on Figure 8 of the ’501 patent was an appropriate elaboration on the
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`infringement opinions in his expert report. Id. at 8-10. Masimo submits that these opinions were
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`necessary to respond to the opinions of Apple’s expert regarding the meaning of the term “over”
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`based on Figure 6E of the ’501 patent, which went beyond Apple’s non-infringement
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`contentions. Id. at 10-11. Masimo further argues that Apple’s counsel opened the door to
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`Dr. Madisetti’s re-direct testimony by asking questions about the orientation of the accused
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`products using the terms “above” and “below.” Id. at 12. Masimo argues that Apple has not
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`been prejudiced by Dr. Madisetti’s re-direct testimony because Apple’s expert had already
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`considered the specification of the ’501 patent in the context of this limitation, and Apple’s
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`counsel had an opportunity to question Dr. Madisetti on this issue at his deposition. Id. at 12-13.
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`With respect to Dr. Madisetti’s testimony regarding Iwamiya’s disclosure of a single
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`wavelength, Masimo argues that the re-direct testimony was a reasonable elaboration on
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`opinions in Dr. Madisetti’s expert report. Id. at 14. Masimo contends that Apple’s counsel
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`opened the door to this testimony by asking about Iwamiya’s disclosure of LEDs. Id. at 14-15.
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`Masimo further argues that Apple has not been prejudiced by this testimony because it is
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`consistent with Dr. Madisett’s expert report and Apple’s counsel had an opportunity to question
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`Dr. Madisetti on this issue at his deposition. Id. at 15.
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`With respect to Dr. Madisetti’s testimony regarding the source code file
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`Masimo argues that this file is
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` that were
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`identified in Dr. Madisetti’s expert report. Id. at 15-16. In the portion of his expert report
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`addressing the “measurement of a physiological parameter,” Dr. Madisetti identifies the
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` as evidence that the Masimo W1 meets this
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`limitation. Apple Exhibit D, Appendix A4 at 23-25. At his deposition, Dr. Madisetti explained
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`that
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` describe how W1 and other DI products calculate oxygen
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`saturation and display it.” Apple Exhibit G at 167:5-7. Masimo submits that this deposition
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`testimony is consistent with Dr. Madisetti’s expert report and that there is no prejudice to Apple
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`because the
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` source code was available for review, and Apple’s counsel had an
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`opportunity to question Dr. Madisetti on this issue at his deposition. Masimo Opp. at 17.
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`With respect to the supplements to Mr. McGavock’s expert report, Masimo submits that
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`the supplemental material is consistent with Mr. McGavock’s report and argues that Apple has
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`not identified any prejudice. Id. at 17-21. Masimo explains that the updated Schedule 4.12
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`applies the methodology that was described by Mr. McGavock in his report, acknowledging an
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`error that was identified by Apple’s expert. Id. at 19-20. Masimo submits that the two-page
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`summary merely highlights a subset of domestic expenditures where there is agreement between
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`Mr. McGavock and Apple’s expert. Id. at 20. Masimo contends that the updated list of
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`materials considered does not affect any of Mr. McGavock’s opinions. Id. at 21.
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`III. DISCUSSION
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`Apple’s motion identifies several supplemental disclosures by Masimo and its experts
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`that are allegedly untimely. As discussed below, the undersigned finds that supplementations to
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`correct errors in previous disclosures is generally permissible in the absence of prejudice to the
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`other parties, but Masimo shall be precluded from offering untimely new expert opinions. Each
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`of the issues identified by Apple is addressed below:
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`A. Supplemental Interrogatory Responses
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`The undersigned finds that Masimo’s supplemental responses to Interrogatory No. 82 and
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`Interrogatory No. 90 are consistent with Commission Rule 210.27(f)(1), which imposes “a duty
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`seasonably to amend a prior response to an interrogatory . . . if the party learns that the response
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`is in some material respect incomplete or incorrect.” 19 C.F.R. §210.27(f)(1). As Masimo
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`explains, the supplemental responses were made to correct errors in its earlier responses. See
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`Masimo Opp. at 4-7. Although the undersigned agrees with Apple that Masimo could have
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`made these corrections earlier, there is no evidence that Apple was significantly prejudiced by
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`the delay. Apple’s reply makes a vague allegation that the delay “hindered Apple’s experts from
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`being able to timely analyze and respond to those disclosures,” but there is no evidence that
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`Apple or its experts relied on the incorrect information, and Apple has not identified any
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`substantive issue affected by the correction. Apple only appears to rely on the earlier
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`interrogatory responses to make an argument that Masimo and its experts are unreliable. See
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`Masimo Exhibit 2 at 315. Apple will still be able to make these arguments after Masimo has
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`supplemented its responses, but the record will benefit from the identification of the correct
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`source code and schematics for the domestic industry products. Accordingly, Apple’s motion is
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`DENIED with respect to the supplemental answers to Interrogatory No. 82 and Interrogatory
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`No. 90.
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`B. Expert Deposition Testimony
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`The undersigned finds that most of the deposition testimony of Dr. Madisetti identified in
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`Apple’s motion should be stricken because it was outside the scope of Apple’s questioning and is
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`an improper attempt to supplement Dr. Madisetti’s expert report. Ground Rule 7 requires that an
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`expert report “contain a complete statement of all opinions to be expressed and the basis and
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`reasons therefor.” Order No. 4 at 15 (Sept. 22, 2021). It is improper for an expert to circumvent
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`this rule by offering new opinions at deposition that are beyond the scope of questioning from
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`opposing counsel.
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`With respect to the testimony regarding the meaning of “over” in the context of Figure 8
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`of the ’501 patent and the testimony regarding disclosures in Iwamiya that support
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`Dr. Madisetti’s opinion that “it teaches a single wavelength,” the undersigned agrees with Apple
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`that the re-direct questioning was outside the scope of any examination by Apple’s counsel. See
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`Apple Exhibit G at 307:22-311:5, 312:11-315:14. The questioning identified by Masimo that
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`allegedly opened the door to this testimony does not address the relevant subject matter. See
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`Masimo Opp. at 12 (citing Apple Exhibit G at 136:17-137:10 (questioning about turning the
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`Apple Watch face down)); Id. at 14 (citing Apple Exhibit G at 220:6-221:7 (questioning about
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`the use of LEDs in Iwamiya)). A few years ago, Dr. Madisetti’s testimony was excluded under
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`similar circumstances in Certain Wireless Mesh Networking Products and Related Components
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`Thereof (“Wireless Mesh”), where an Administrative Law Judge held that “[i]t is improper to use
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`redirect questioning at a deposition to introduce entirely new opinions.” Inv. No. 337-TA-1131,
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`Order No. 33 at 5, EDIS Doc. ID 689179 (Aug. 30, 2019) (citing Certain Microfluidic Systems
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`and Components Thereof and Products Containing Same (“Microfluidic Systems”), Inv. No. 337-
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`TA-1100, Order No. 39 at 3-4, EDIS Doc. ID 671679 (Mar. 12, 2019)). Accordingly, the re-
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`direct testimony regarding Figure 8 of the ’501 patent, Apple Exhibit G at 307:22-311:5, and the
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`re-direct testimony regarding the teachings of Iwamiya showing a single wavelength, Id. at
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`312:11-315:14, shall be stricken from Dr. Madisetti’s deposition transcript.
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`With respect to the testimony regarding
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`, the undersigned finds that
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`Dr. Madisetti’s sua sponte references to the functionality of this source code during his
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`deposition are not responsive to the questions that he was asked. While it may be appropriate for
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`Dr. Madisetti to identify
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` as one example of a source code file that he reviewed in
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`response to questions regarding source code versions, see Exhibit G at 22:8-20, 162:11-22,
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`163:15-164:6, 168:6-16, his description of
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`as a function involved in calculating oxygen
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`saturation appears to be a transparent attempt to supplement the record with a new opinion:
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`Q: Who informed you that the versions were misnumbered in your
`reports?
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`A: It was, again, a typo, I believe. And I reviewed the rebuttal reports of
`Dr. Warren and Dr. Sarrafzadeh, who are Apple’s experts, and confirmed
`again that the code that I reviewed and the code that is in the folders
`pointed by them, for example,
` the same
`as the code that I reviewed and opined upon and provided my conclusions
`in my opening report that
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`provide the additional support for the claim limitations of calculating
`the SpO2.
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`
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`Exhibit G at 24:18-25:8 (emphasis added); see also Id. at 167:1-168:5.1 Contrary to
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`Dr. Madisetti’s testimony, he did not previously identify
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` as source code that was
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`involved in calculating oxygen saturation (SpO2) in his expert report. See Apple Exhibit D,
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`Appendix A4 at 24-25 (only identifying “mmca.c”). Nevertheless, he repeatedly offered
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`unprompted opinions regarding the functionality of the
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` source code at his deposition in
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`response to questions that only addressed the identification of the versions of source code he
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`reviewed. Exhibit G at 24:18-25:8, 167:1-168:5. This testimony is improper for the same
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`reasons as the re-direct testimony discussed above—it circumvents the requirement in Ground
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`Rule 7 that an expert report provide a “complete statement” of an expert’s opinions.
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`Administrative Law Judges routinely strike testimony that is not responsive to counsel’s
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`questions. See, e.g., Certain Filament Light-Emitting Diodes and Products Containing Same
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`(II), Inv. No. 337-TA-1220, H’rng Tr. at 801:9-13, EDIS Doc. ID 750888 (Sept. 1, 2021) (“And
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`if you give answers that are not responsive to the question, then the attorney can ask for your
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`?
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`1 Dr. Madisetti offers the same testimony twice in the following exchange:
`Q: Is it your testimony that the source code for the Masimo W1 is
`[Objection omitted]
`A: It is my opinion that
` describe how W1 and other
`DI products calculate oxygen saturation and display it. And that
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` And I’ve reviewed the versions. I have
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`confirmed that –
`Q: Dr. Madisetti, I believe you’ve said the same thing a number of times. What I’m
`trying to understand from you is, do you know what version source code is the correct
`version for the Masimo W1?
`[Objection omitted]
`A: So I can – for example, when I go to my screen, the software version that I have is
` That’s the version that I have on the watch on my hand for W1.
`And I confirmed with my discussions with Mr. Scruggs and my review of the code, that
`this software has the same
`and other functions, such as
`, that compute
`SpO2. So I have it here right now. It says the software version of the W1 I have says it
`is
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`Id. at 167:1-168:5 (emphasis added).
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`answer to be stricken.”). Accordingly, Dr. Madisetti’s non-responsive testimony offering new
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`opinions that
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` is involved in computing or calculating oxygen saturation (SpO2) shall be
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`stricken from his deposition transcript. See Exhibit G at 25:4-8, 167:5-7, 168:2-3.
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`Masimo argues that Dr. Madisetti’s supplemental opinions were necessary to address new
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`opinions that were raised in Apple’s rebuttal expert reports,2 but there is no provision in the
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`Ground Rules or the Procedural Schedule providing a general right to offer such supplemental
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`opinions. In Wireless Mesh, Dr. Madisetti was precluded from citing the deposition transcripts
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`of rebuttal experts to offer reply opinions. Inv. No. 337-TA-1131, Order No. 33 at 3-4; see also
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`Microfluidic Systems, Order No. 38 at 5-6, EDIS Doc. ID 671677 (Mar. 12, 2019) (excluding
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`expert testimony offered in reply to rebuttal testimony). The Procedural Schedule provides for
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`initial expert reports and rebuttal expert reports—there is no general right to reply to rebuttal
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`expert opinions and it was improper for Dr. Madisetti to offer such opinions on re-direct or sua
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`sponte at his deposition.3
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`The undersigned further finds that striking Dr. Madisetti’s improper deposition testimony
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`is appropriate because Apple is prejudiced by the new opinions. Apple’s experts did not have a
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`sufficient opportunity to respond to Dr. Madisetti’s new opinions and Apple’s counsel did not
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`receive sufficient notice of these opinions in advance of Dr. Madisetti’s deposition. Allowing
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`Apple’s counsel to question Dr. Madisetti on the same day that he offered the new opinions does
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`2 To the extent that Masimo believes that the opinions of Apple’s rebuttal experts were procedurally
`improper, this can be addressed in the context of a motion in limine. See Complainants’ Motion In
`Limine No. 5, Motion Docket No. 1276-038 (May 17, 2022).
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`3 With respect to Dr. Madisetti’s opinion regarding the meaning of “over,” his expert report shows that he was aware
`of Apple’s noninfringement contention. See Motion Exhibit D, Appendix E at 26 (responding to Apple’s
`noninfringement contention). He could have cited the specification of the ’501 patent or other evidence in his expert
`report to support his opinion regarding the meaning of this term, rather than waiting until his deposition to disclose
`his opinion.
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`not sufficiently mitigate this prejudice. Accordingly, Apple’s motion is GRANTED-IN-PART
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`with respect to Dr. Madisetti’s improper deposition testimony.
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`C. Expert Report Supplements
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`The undersigned finds that the late supplements to Mr. McGavock’s expert shall be
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`permitted to the extent that they are within the scope of his original expert report and consistent
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`with Masimo’s duty to supplement or correct discovery responses pursuant to Commission Rule
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`210.27(f). 19 C.F.R. § 210.27(f). Mr. McGavock’s updated Schedule 4.12 (Apple Exhibit J)
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`appears to be consistent with the “two-step allocation” methodology that was disclosed in his
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`initial expert report, correcting an error in his calculations for
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` See Apple Exhibit K (McGavock Dep. Tr.) at 33:12-
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`3:8. Apple has not identified any significant prejudice caused by the updated Schedule 4.12—
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`the update corrects Mr. McGavock’s calculations in accordance with criticism that was made by
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`Apple’s expert. See Masimo Exhibit 8 at ¶ 115, n.306. Similarly, Apple also has not identified
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`any prejudice with respect to the “Amended Documents Considered” (Apple Exhibit M).
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`Mr. McGavock does not appear to offer any new opinions based on the new material and
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`Masimo does not contend that Mr. McGavock’s previously disclosed opinions were based on any
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`of the new documents considered. It is unclear what purpose is served by the new list of
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`documents, but it appears to be consistent with Masimo’s duty to supplement pursuant to
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`Commission Rule 210.27(f). Apple’s motion shall be DENIED with respect to the updated
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`Schedule 4.12 and the list of additional documents considered.
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`With respect to Mr. McGavock’s two-page “Summary of Quantitative Indicators” (Apple
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`Exhibit L), the undersigned agrees with Apple that this supplemental document includes material
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`that is outside the scope of Mr. McGavock’s expert report. Although there is no dispute that the
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`underlying figures in the summary document were presented in Mr. McGavock’s expert report,
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`he offers several new calculations, including an
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`Tr.) at 41:6-43:15 (discussing 2021 calculation). The summary also appears to include new
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` Id. at n.1; see Apple Exhibit K (McGavock Dep.
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`calculations regarding
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`. See Apple Exhibit J at n.3, n.4, n.5
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`n.6, n.7, n.8. These new calculations are untimely opinions that should have been presented in
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`Mr. McGavock’s expert report in accordance with Ground Rule 7.
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`Moreover, the undersigned finds that Apple has been prejudiced by the introduction of
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`new calculations in Mr. McGavock’s “Summary of Quantitative Indicators.” Apple’s experts did
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`not have a sufficient opportunity to respond to the new calculations, and allowing Apple’s
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`counsel to question Mr. McGavock one day after these new calculations were first disclosed does
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`not sufficiently mitigate this prejudice. Accordingly, Apple’s motion is GRANTED with respect
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`to the “Summary of Quantitative Indicators” supplement.4
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`IV. CONCLUSION
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`For the reasons discussed above, the motion to strike (1276-034) is hereby GRANTED-
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`IN-PART and DENIED-IN-PART. Consistent with the foregoing, Dr. Madisetti’s deposition
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`testimony outside the scope of Apple’s questioning shall be stricken, and Mr. McGavock’s
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`“Summary of Quantitative Indicators” shall be stricken. Masimo’s experts should not testify on
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`direct examination with respect to these stricken materials at the hearing.5
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`4 This order does not preclude Mr. McGavock from summarizing calculations that were provided in this
`expert report, but he is precluded from presenting the new calculations that were offered for the first time
`in the summary document.
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`5 This order only affects the testimony of Dr. Madisetti and Mr. McGavock—it does not preclude
`Masimo’s counsel from raising these issues on cross-examination of opposing experts.
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`This order has been issued with a confidential designation. Within seven days of the date
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`of this document, the parties shall submit a joint statement as to whether or not they seek to have
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`any portion of this document deleted from the public version. If the parties do seek to have
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`portions of this document deleted from the public version, they must submit a single proposed
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`public version of this order with any proposed redactions in the manner specified by Ground
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`Rule 1.9. To the extent possible, the proposed redacting should be made electronically, in a PDF
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`of the issued order, using the “Redact Tool” within Adobe Acrobat, wherein the proposed
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`redactions are submitted as “marked” but not yet “applied.” The submission shall be made by
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`email to Bhattacharyya337@usitc.gov and need not be filed with the Commission Secretary.
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`SO ORDERED.
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`___________________________________
`Monica Bhattacharyya
`Administrative Law Judge
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