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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
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`Before the Honorable Doris Johnson Hines
`Administrative Law Judge
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`In the Matter of
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`CERTAIN BIO-LAYER
`INTERFEROMETERS AND
`COMPONENTS THEREOF
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`Inv. No. 337-TA-1344
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`RESPONDENT GATOR BIO, INC.’S OPPOSITION TO COMPLAINANT
`SARTORIUS BIOANALYTICAL INSTRUMENTS, INC.’S MOTION IN LIMINE NO. 3
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`Respondent Gator Bio opposes Sartorius’s Motion in Limine No. 3 (“Motion”) (Motion
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`No. 1344-017). The Motion was presented during the parties’ meet and confer efforts as a “motion
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`to preclude Dr. Vander Veen from offering legal opinions,” but now purports to be a motion “to
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`exclude unreliable and immaterial testimony.” The Motion is premised on Sartorius’s conclusion
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`that Dr. Vander Veen’s testimony is “based on his erroneous, irrelevant, and misleading
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`interpretation of Commission precedent.” Motion at 2. The Motion goes to weight and is premised
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`on Sartorius’s own erroneous conclusions of law. Sartorius cannot effectively move for summary
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`determination by striking the bulk of Dr. Vander Veen’s testimony at the pre-hearing stage.
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`Notably, Sartorius seeks to “preclude Dr. Vander Veen from testifying about whether or not certain
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`investments relied upon by Dr. Schwartz are ‘cognizable’ for the purposes of establishing a
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`domestic industry” while at the same time allowing Dr. Schwartz to presume that those
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`investments are cognizable. See Ex. 1, Schwartz Dep. Tr. at 53:4-24 (“My understanding and the
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`understanding that I had for purposes of my report is that the sorts of investments and expenditures
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`that I describe in my report are all cognizable under Commission practice. That is an understanding
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`that I have.” Sartorius cannot insulate its case by permitting its expert to do the very thing it attacks.
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`I.
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`ARGUMENT
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`Sartorius’s request that the ALJ strike section V.C from Dr. Vander Veen’s rebuttal report
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`and preclude Dr. Vander Veen from testifying to the opinions therein should be denied for multiple
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`reasons. First, Dr. Vander Veen is not presenting legal opinions or legal argument. Second, Dr.
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`Vander Veen’s opinions are proper and material to assist the trier of fact. Sartorius cannot in the
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`pre-hearing stage seek a determination that its domestic industry expenditures are proper and
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`sufficient and its attacks go to weight, not admissibility. Finally, and most egregiously, Sartorius’s
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`characterizations of Dr. Vander Veen’s testimony and prior cases are misleading.
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`A.
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`Dr. Vander Veen Will Not Present Legal Argument
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`As an initial matter, Dr. Vander Veen will not present legal argument or purport to tell the
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`ALJ or the Commission what is or is not cognizable. That role is exclusively for the ALJ and the
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`Commission. This is clear from Dr. Vander Veen’s deposition testimony:
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`Motion Ex. 2C, Vander Veen Dep. Tr. at 49-50 (emphases added); see also id. at 84:25-85:14
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`(“Again, consistent with everything in this section, I’m not making a legal opinion as to what is
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`cognizable or not, but I’m identifying categories of expenditures that, from my understanding and
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`in my experience, are the type that the Commission has either not considered or has given less
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`weight to or has given more scrutiny to and so forth.”). Even Sartorius acknowledges that Dr.
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`Vander Veen testified the “categories of investments the Commission relies upon is ultimately
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`their decision.” Motion at 6. Thus, to the extent Sartorius seeks to suggest Dr. Vander Veen will
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`offer legal conclusions or purport to testify on what is or is not cognizable, it is incorrect.
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`B.
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`Dr. Vander Veen’s Testimony Is Relevant, Material, Reliable, and of the Type
`Routinely Permitted of Economic Experts
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`Expert testimony is admissible to the extent that it may assist the trier of fact. Certain
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`Mobile Devices with Multifunction Emulators, Inv. No. 337-TA-1170, Order 23 (July 29, 2020).
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`Even the portions of Dr. Vander Veen’s report quoted in the Motion (Motion at 6) make clear he
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`is not opining on what the law is, but is highlighting where Dr. Schwartz included investments “of
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`the type” that may need to be further scrutinized. It is then up to the ALJ and Commission to
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`determine the import of these highlighted concerns. It would be impossible for either Dr. Vander
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`Veen or Dr. Schwartz to testify regarding economic domestic industry and public interest without
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`making reference to the relevant legal standards.1 That does not make testimony impermissible.
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`See Certain Raised Garden Beds and Components Thereof, Inv. No. 337-TA-1134, Order No. 25
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`at 6-7 (May 19, 2023) (“To the extent there are mixed questions of law and fact relevant to the
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`trade secret issues, Mr. Phillips may testify. . . I will not attempt to separate factual issues from
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`legal conclusions in Mr. Phillips’s testimony at this time. I will make legal conclusions based on
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`1 Indeed, Dr. Schwarz himself includes three pages in his report of the legal framework and cites
`to caselaw no less than 35 times. Ex. 2, Schwarz Expert Report at 24-27 and ibid.
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`the relevant law, not Mr. Phillips’s opinions.”); Certain Smart Thermostats, Load Control
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`Switches, & Components Thereof, Inv. No. 337-TA-1277, Order No. 21 (June 24, 2022) (“Rather
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`than attempting to separate factual evidence from legal conclusions in Mr. Taylor’s testimony at
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`this stage, I will receive the evidence and make legal conclusions in the investigation based on the
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`relevant law, not based on Mr. Taylor’s opinions.”).
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`Dr. Vander Veen identifies the types of investments, which Dr. Schwarz glosses over, and,
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`as described in Section C below, this testimony is helpful to identifying the “nature of the alleged
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`activities,” which is the first step in a domestic industry analysis. See Certain Foodservice
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`Equipment and Components Thereof (“Foodservice”), Inv. No. 337-TA-1166, Comm’n Op. at 6
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`(Oct. 29, 2021) (“In assessing the existence of a domestic industry, the Commission first considers
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`the nature of the alleged activities in the United States to determine whether they “are of the nature
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`of activities that contribute to an ‘industry in the United States’”). While Dr. Vander Veen does
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`not purport to conclude definitively which investments are or are not cognizable, Sartorius’s expert
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`certainly does. In including the investments at all, Dr. Schwartz presumes they are cognizable, and
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`he does so not on his own expertise or independent analysis, but on the say-so of Sartorius’s self-
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`serving conclusions:
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`My understanding and the understanding that I had for purposes of my report is that the
`sorts of investments and expenditures that I describe in my report are all cognizable under
`Commission practice. That is an understanding that I have.
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`Ex. 1, Schwartz Dep. Tr. at 53; see also id. at 54 (“If you’re asking me whether I think the
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`warehousing expenses that I’ve considered here are cognizable in the manner that I recognize
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`them, I think as I understand – based on my understanding of what the Commission would
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`consider, they would be. But again, that’s not an independent opinion that I have.”). If Dr. Vander
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`Veen’s testimony is improper, Dr. Schwartz’s is even more so. Worse still, Dr. Schwartz points to
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`investments but makes it impossible to break out which investments relate to potentially non-
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`qualifying investments. See Motion Ex. 1 at ¶ 33 (noting Dr. Schwartz’s calculations include
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`unknown portions that relate to sales, marketing, distribution, and logistics activities).
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`Sartorius’s attacks go to the weight of the evidence, not its admissibility. “In general, the
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`harm from expert testimony that does not assist the trier of fact, or otherwise contains
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`impermissible legal opinions, is greatly diminished in the absence of a jury—as in the present
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`investigation.” Certain Mobile Devices with Multifunction Emulators, Inv. No. 337-TA-1170,
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`Order 23 (July 29, 2020) (denying motion in limine and stating if expert “testimony fails to assist
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`me in determining the salient facts, I will give it no weight. The same is true if his testimony
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`wanders into legal opinion.”); Certain Multi-Stage Fuel Vapor Canister Systems and Activated
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`Carbon Components Thereof, Inv. No. 337-TA-1140, Order No. 35 (“Another option, however—
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`one available in administrative hearings but not, say, jury trials—is for the adjudicator to simply
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`place no weight on the answer on the basis that the witness is not competent to provide it, or to
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`construe it such that it does not constitute a legal conclusion.”). In effect, Sartorius seeks summary
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`determination of domestic industry by insulating its proposed investments from scrutiny, but this
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`is improper. See Certain Mobile Devices with Multifunction Emulators, Inv. No. 337-TA-1170,
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`Order No. 23 at 2 (July 29, 2020) (“The motion is denied. Dynamics’ MIL 1 is essentially a motion
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`for summary determination styled as a motion in limine.”); Certain Wireless Consumer Elecs.
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`Devices & Components Thereof, Inv. No. 337-TA-853, Order No. 59 (May 29, 2013) (“Nintendo
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`is improperly seeking summary determination on this issue through its motion in limine.”); Certain
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`Digital Video Receivers, Broadband Gateways, and Related Hardware and Software Components,
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`Inv. No. 337-TA-1158, Order No. 26 (Dec. 18, 2019) (motions in limine are not suitable vehicles
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`as substitutes for motions for summary determination or to attempt to strike or restrict what is
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`clearly admissible testimony.).
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`C.
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`Sartorius Cannot Preclude Testimony Based on Its Own Erroneous Legal
`Conclusions
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`Sartorius also mistakenly asserts that Dr. Vander Veen’s testimony is “misleading” and
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`“wrong.” Motion at 5. To do this, it first mischaracterizes his testimony, as noted above, and then
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`mischaracterizes the law.
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`Sartorius presents Foodservice as a case where Dr. Vander Veen was previously precluded
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`from offering “near-identical” “misleading” opinions. Motion at 5 (citing Certain Foodservice
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`Equipment and Components Thereof (“Foodservice”), Inv. No. 337-TA-1166, Order No. 33 (Apr.
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`16, 2020)). Sartorius relies heavily on that decision as to what the law requires and why Dr. Vander
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`Veen’s testimony is “wrong,” “misleading,” and thus should be excluded. But Sartorius’s
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`representations are grossly misleading and conceal the ultimate findings in that case. Sartorius
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`states that “Judge Lord took umbrage with” proposed testimony “near-identical” to the testimony
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`here. But the testimony Judge Lord struck in Foodservice was actual, not proposed testimony,
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`whereas here there has been no testimony at all.2 Moreover, the motion in Foodservice was tailored
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`to specific questions and answers in a witness statement, not an entire section of an expert report
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`and all related opinions. Compare Motion at 1-2 (seeking preclusion of all of Section V.C and
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`related opinions) with Foodservice, Complainant’s Memorandum in Support of Motion in Limine
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`#6, at 1-2 (March 18, 2020) (seeking exclusion of specific questions and answers because they
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`contain opinions regarding the “typical” activities of importers in the value imported cooking
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`equipment market). In particular, the motion in Foodservice took aim at testimony concerning
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`conclusions of “typical” industry practices in the value imported cooking equipment market that
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`Dr. Vander Veen did not have the expertise to address. It was in this context that Judge Lord struck
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`2 Should Dr. Vander Veen actually testify in a manner that is improper at the hearing, Sartorius
`can make its objection then.
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`the statement that the Commission gives little, if any, weight to sales, marketing, distribution, and
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`warehousing.
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`More importantly, the subsequent record in Foodservice actually disproves Sartorius’s
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`argument and demonstrates Sartorius’s overreach. Notably, Dr. Vander Veen was still permitted
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`to discuss and identify questionable activities, and both Chief Judge Bullock in his ID, and the
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`Commission, relied on and agreed with Dr. Vander Veen’s analysis and made the ultimate
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`determination to exclude investments in non-qualifying activities such as inventory, warehousing,
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`marketing and sales or distribution and shipping:
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` “The ID rejected expenditures related to domestic employees who were engaged in
`activities that the ID found to be non-qualifying, or that Complainants had not
`reliably quantified or properly allocated. ID at 77, 79, 82. For example, the ID
`declined to find certain expenditures asserted by Complainants, such as inventory
`and warehousing expenditures, to be part of a domestic industry. ID at 75 (citing
`CIB at 200–02, 205–12); id. at 77 (characterizing complainant Adcraft’s claimed
`expenditures for “investments in acquiring inventory” and “warehouse facilities”
`as “marketing and sales or distribution and shipping” expenditures and that such
`activities are those of a “mere importer”). The Commission agrees with the ID’s
`decision to exclude certain of Complainants’ alleged investments.” Foodservice,
`Comm’n Op. at 10.
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` Respondents argue that many of the expenditures relied upon by Complainants do
`not qualify under the Commission’s domestic industry precedent. RIB at 158-68.
`Dr. Vander Veen identifies errors in Mr. Martinez’s identification and allocation of
`expenditures. RX-0004C (Vander Veen WS) at Q/A 27-37. . . . Dr. Vander Veen
`excludes the labor expenditure for other employees, who are engaged in general
`administrative tasks, purchasing, warehousing, and sales and marketing. Id. at Q/A
`53-54. With respect to plant and equipment, Dr. Vander Veen allocates a small
`portion of Adcraft’s office space to the domestic industry based on the proportion
`of Adcraft employees engaged in warranty-related activities, finding only [] in
`qualifying expenses. Id. at Q/A 81-84.” ID at 76.
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` “A majority of Adcraft’s domestic employees are engaged in non-qualifying
`activities, such as sales and marketing or distribution and shipping, which are
`activities of a mere importer. Complainants have failed to present an allocation of
`Adcraft’s expenditures that accounts for the different types of work performed by
`these employees.” ID at 78.
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` “Dr. Vander Veen excludes the employment costs for these [] employees [who are
`engaged in sales, accounting, and customer surveys], leaving a total of [] in
`qualifying employment expenditures.”” ID at 78.
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` As to another respondent, Judge Bullock agreed with Dr. Vander Veen’s criticism
`for complainant’s allocation where Dr. Vander Veen identified that most of the
`employees identified had job responsibilities for distribution, warehousing, and
`sales and should thus be excluded. ID at 81-82.
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`Sartorius ignores this subsequent history in arguing that Dr. Vander Veen’s entire
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`testimony relating to Section V.C of his report should be stricken. Sartorius does not even
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`acknowledge that the subsequent history undermines the very premise of its Motion. The
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`Commission’s Opinion, not Sartorius’s characterization of Judge Lord’s evidentiary ruling, sets
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`forth the relevant standard:
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`While there is no bright-line rule for determining whether a domestic industry exists under
`section 337(a)(1)(A), the statute does not protect mere importers. . . . In assessing the
`existence of a domestic industry, the Commission first considers the nature of the alleged
`activities in the United States to determine whether they “are of the nature of activities that
`contribute to an ‘industry in the United States’ under section 337(a)(1)(A)(i).” Bone
`Cements, Comm’n Op. at 35. Then, the Commission considers the extent of the investments
`in the context of the investigation to determine whether they are sufficient to establish “an
`industry in the United States.
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`Foodservice, Comm’n Op. at 6. Dr. Vander Veen’s testimony in Foodservice thus was critical to
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`the first step of “consider[ing] the nature of the alleged activities,” and it is similarly helpful to the
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`factfinder here.3
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`3 Other cases cited by Sartorius are equally inapposite. See Bragdon v. Abbott, 524 U.S. 624, 652
`(1998) (addressing irrelevant issue of whether opinion testimony based on absence of contrary
`evidence may be considered on summary judgment); Certain Electrochemical Glucose Monitoring
`Sys. & Components Thereof, Inv. No. 337-TA-1075, Order No. 32 (June 8, 2018) (granting
`unopposed motion for summary determination of domestic industry and nowhere discussing the
`origin of raw materials); cf. Certain Integrated Cirs. & Prod. Containing the Same, Inv. No. 337-
`TA-1148, Order No. 38: Denying Motion for Summary Determination on Economic Prong (Nov.
`4, 2019) (“Here, I agree with Respondents on the matter of raw materials such that “there is no
`evidence that those materials were made in the U.S. or customized for SAS. . . . The cost to
`purchase[] such materials therefore is irrelevant, because it does not constitute evidence of U.S.
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`Further still, even if Sartorius were correct that Dr. Vander Veen’s testimony is premised
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`on a misunderstanding of the law—which it is not—that is not reason to preclude it. Rather, ALJs
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`have repeatedly held that the proper course is to determine the weight to be given at the evidentiary
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`hearing. See e.g., Certain Light-Emitting Diode Products, Fixtures, and Components Thereof, Inv.
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`No. 337-TA-1213, Order No. 24 (denying motion in limine to preclude expert testimony as
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`unreliable for purportedly applying the wrong legal standard and stating “Rather than excluding
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`his opinions at this stage, I will determine the weight to accord [his] opinions if he testifies at
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`trial)”) (citing Certain Microfluidic Sys., Inv. No. 337-TA-1100, Order No. 42 at 2 (Mar. 14, 2019)
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`(“[e]xpert testimony that relies on an incorrect legal standard will be given less weight, but it is
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`not necessary to exclude [opinions] in advance of the hearing”); Certain Radio Frequency Micro-
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`Needle Dermatological Treatment Devices, Inv. No. 337-TA-1112, Order No. 30 at 2 (May 1,
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`2019) (“[r]ather than excluding [expert testimony that applied the wrong legal standard], opinions
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`that are unscientific and unreliable will be given little weight”).
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`II.
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`CONCLUSION
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`For the above reasons, Sartorius’ Motion in Limine No. 3 should be denied.
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`Dated: June 26, 2023
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`Respectfully submitted,
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`/s/ Hari Santhanam
`Hari Santhanam
`Perkins Coie LLP
`110 North Wacker Drive, Suite 3400
`Chicago, IL 60606
`Tel: (312) 324-8400
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`Veronica S. Ascarrunz
`Michelle Yocum
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`investment.” (Opp’n at 25; Lelo, 786 F.3d at 884-885 (discussing irrelevance of “off-the-shelf”
`raw materials))”).
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`Perkins Coie LLP
`700 Thirteenth Street N.W., Suite 800
`Washington, DC 20005
`Tel: (202) 654-6200
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`James F. Valentine
`C. Wendy Wang
`Bingjie Li
`Hessam Seyed Gharaviram
`Perkins Coie LLP
`3150 Porter Drive
`Palo Alto, CA 94304
`Tel: (650) 838-4300
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`Evan S. Day
`Perkins Coie LLP
`11452 El Camino Real, Suite 300
`San Diego, CA 92130
`Tel: (858) 720-5700
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`Email: Gator1344Service@perkinscoie.com
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`Counsel for Respondent Gator Bio, Inc
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`CERTIFICATE OF SERVICE
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`I, Nelo Keith Lang, hereby certify that on this 30th day of June 2023 copies of the
`foregoing documents were filed and served upon the following parties as indicated:
`☐Via Hand Delivery
`☐Via Overnight Courier
`☒Via Electronic Filing
`
`The Honorable Lisa R. Barton
`Secretary to the Commission
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, DC 20436
`The Honorable Doris Johnson Hines
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, DC 20436
`Paul Gennari
`Office of Unfair Import Investigation
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
`
`☐Via Hand Delivery
`☐Via Overnight Courier
`☒Via Electronic Mail / BOX
`JohnsonHines1344@usitc.gov
`☐Via Hand Delivery
`☐Via Overnight Courier
`☒Via Electronic Mail / BOX
`Paul.Gennari@usitc.gov
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`Counsel for Complainant Sartorius Bioanalytical Instruments, Inc.
`☐Via Hand Delivery
`Jonathan A. Herstoff
`☐Via Overnight Courier
`Haug Partners LLP
`☒Via Electronic Mail
`745 Fifth Avenue, 10th Floor
`New York, NY 10151
`jherstoff@haugpartners.com
`cturner@haugpartners.com
`asparschu@haugpartners.com
`
`/s/ Nelo Keith Lang
`Nelo Keith Lang
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`CONFIDENTIAL
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`EXHIBIT 1
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`CONFIDENTIAL
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`EXHIBIT 2
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