In the Matter of 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVELAW JUDGES 

ORIGINAL 

PUBLIC 

ECM BioFilms, Inc., 

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DOCKET NO. 9358 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

ORDER DENYING COMPLAINT COUNSEL'S MOTION FOR 

LEAVE TO CALL REBUTTAL FACT WITNESSES AND 

RESPONDENT'S REQUEST TO BAR REBUTTAL EXPERT WITNESS 

I. 

On August 25, 2014, Federal Trade Commission ("FTC") Complaint Counsel filed a 

Motion for Leave to Call Rebuttal Fact Witnesses ("Motion"). Respondent ECM BioFilms, Inc. 

("Respondent" or "ECM") filed its Opposition on August 26, 2014, and included therein a 

request to bar rebuttal testimony from Complaint Counsel's designated rebuttal expert 

("Opposition"). Rulings on Complaint Counsel's Motion and Respondent's request were made 

on the record at trial on August 27, 2014. These rulings: (1) denied Complaint Counsel's 

Motion; and (2) denied Respondent's request to bar Complaint Counsel's rebuttal expert. The 

parties were further advised that a written order with analysis, reasoning, and applicable legal 

standards would issue subsequently. 

Along with Complaint Counsel's Motion, Complaint Counsel filed a Motion for Leave to 

File a Motion in Excess of the Word Count. Along with Respondent's Opposition, Respondent 

filed a Motion to Extend the Page Count Those two motions are GRANTED. 

For the reasons stated on the record at trial, and as further explained below, Complaint 

Counsel's Motion is DENIED. Respondent's request to bar testimony from Complaint 

Counsel's designated rebuttal expert is also DENIED. 

II. 

Trial in this matter commenced on August 5, 2014. Complaint Counsel rested its case-inchief on August 12, 2014. During preliminary proceedings at trial on Monday, August 25, 2014, 

Complaint Counsel advised of its desire to call two rebuttal fact witnesses after the conclusion of 
Respondent's case. Complaint Counsel was directed to file a motion requesting leave to call 

rebuttal witnesses, and to include in its motion an offer of proof for each such witness along with 

a designation of the specific testimony that any such proof would rebut. Complaint Counsel was 

not required to provide such information with respect to testimony from Respondent's proffered 

experts, Dr. Ryan Burnette and Dr. David Stewart, because these witnesses had not yet testified. 

(Transcript ofProceedings ("Tr.") 2359, 2362). Complaint Counsel was specifically asked 

whether it objected to providing an offer of proof in its motion, and Complaint Counsel replied 

that it had no such objection. (Tr. 2362). 

Complaint Counsel indicated that it intended to tile its motion tor leave to call rebuttal 

witnesses by the close of business on August 25, 2014. However, in order to provide Complaint 

Counsel with sufficient time to include its offer of proof in its motion, Complaint Counsel was 

permitted to file its motion the following day, August 26, 2014, no later than 1:00 p.m. /d. 

Notwithstanding the foregoing, Complaint Counsel filed its motion at approximately 1:00 p.m. 

on August 25, 2014.

1 

III. 

FTC Rule 3.43(d) sets forth that a party is entitled to submit rebuttal evidence, in the 

discretion of Administrative Law Judge, as may be required for a full and true disclosure of the 

facts. 16 C.F.R. § 3.43(d). Rebuttal evidence is defined as "[e]vidence offered to disprove or 

contradict the evidence presented by an opposing party." Black's Law Dictionary Abridged 

Ninth Edition (Publisher: West; 9th edition (June 11, 2010)). "The proper function of rebuttal 

evidence is to contradict, impeach or defuse the impact of the evidence offered by an adverse 

party." Peals v. Terre Haute Police Dep 't, 535 F.3d 621, 630 (7th Cir. 2008) (emphasis added) 

(internal citations omitted); United States v. Hall, 653 F.2d 1002, 1006 (5th Cir. 1981). 

"Testimony offered only as additional support to an argument made in a case-in-chief, if 

not offered 'to contradict, impeach or defuse the impact of the evidence offered by an adverse 

party,' is improper on rebuttal." Peals, 535 F.3d at 630 (internal citations omitted). "A rebuttal 

witness may not be used to bolster testimony offered by a plaintiff in its case-in-chief. Rather, 

rebuttal testimony may only respond to evidence offered by the defendant." Hein v. Deere & 

Co., 2013 U.S. Dist. LEXIS 102769, at *32-33 (N.D. Iowa 2013) (citing Benedict v. United 

States. 822 F.2d 1426, 1429 (6th Cir. 1987) (distinguishing between evidence offered "to 

reinforce [the plaintiffs] initial premise" and testimony which was "real rebuttal evidence")). 

Accord Estate of James Frederick Brutsche v. City of Fed. Way, 300 Fed. Appx. 552, 553 (9th 

1 Complaint Counsel's Motion included a footnote stating: " We note that Complaint Counsel's ability to prepare a 

full and complete offer of proof is limited somewhat by the fact that the Court added the requirement of including a 

written offer of proof less than three hours ago, and we have not yet heard Dr. Stewart's testimony." Motion at 12 

n.30. At trial on August 27,20 14, it was pointed out to Complaint Counsel that Complaint Counsel had been given 

until 1:00 p.m. on August 26 to prepare its offer of proof, not ''three hours," as stated in the footnote. Complaint 

Counsel was asked whether, given this inaccuracy, it wished to withdraw or strike footnote 30 from its Motion, but 

Complaint Counsel declined to do so. (Tr. 2484-2485). In addition, Complaint Counsel was instructed that if its 

request for a rebuttal witness was denied, Complaint Counsel would be permitted to add to its offer of proof at that 

time. (Tr. 2485-2486). Complaint Counsel did not attempt to supplement any offer of proof when the rebuttal 

witness requests were denied on August 27, 2014, or at any time before the record was closed on September 4, 2014. 

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Cir. 2008) ("[R]ebuttal evidence may not be offered merely to bolster the plaintiffs case-inchief."). 

"The potential for unfairness to the opponent and confusion ofthe issues militates against 

admitting new or repetitive evidence at the rebuttal stage." Tramonte v. Fibreboard Corp. , 947 

F.2d 762,764 (5th Cir. 1991) (citations omitted). Thus, a "plaintiffwho knows that the 

defendant means to contest an issue that is germane to the prima facie case (as distinct from an 

affirmative defense) must put in his evidence on the issue as part ofhis case in chief." Braun v. 

Lorillard Inc., 84 F.3d 230, 237 (7th Cir. 1996) (citation omitted).2 

III. 

Mr. Tarang Shah 

Complaint Counsel requests to call Mr. Tarang Shah, whom Complaint Counsel 

identifies as a corporate materials and applications manager for Myers Industries. According to 

Complaint Counsel's offer of proof, Mr. Shah would testify that he properly manufactured, in 

accordance with ECM's instructions, the ECM plastic material provided to Dr. Frederick Michel, 

Complaint Counsel's designated rebuttal expert, for Dr. Michel's Ohio State study of the ECM 

additive (see CCX 905). Complaint Counsel contends that Respondent's proffered expert, Dr. 

Ranajit Sahu, "opined for the first time at trial that Myers Industries may not have manufactured 

the samples in accordance with ECM's instructions, rendering Dr. Michel's conclusions 

allegedly unreliable," Motion at 2, and that Mr. Shah's testimony will rebut tllis opinion. 

In opposition, Respondent argues that Complaint Counsel has known about Mr. Shah and 

his role with respect to the testing materials used by Dr. Michel, but failed to note any intent to 

call Mr. Shah until after Complaint Counsel rested its case, and that the testimony proffered is, 

therefore, not proper rebuttal. Rather, Respondent argues, Mr. Shah's testimony is designed to 

bolster Complaint Counsel's case-in-chief, and will prejudice Respondent by denying 

Respondent the opportunity for full discovery related to Mr. Shah and to prepare a case in 

defense predicated on that discovery. 

According to the excerpts of Dr. Sahu's testimony cited by Complaint Counsel, Dr. Sahu 

stated that he "did not know" various facts concerning the preparation and transmission of the 

test samples to Dr. Michel because Dr. Michel's testing report did not discuss these particular 

matters. (Motion at 6-7; Tr. 1959-1960). Contrary to Complaint Counsel's argument, such 

testimony does not express or imply that the test samples provided to Dr. Michel for his study 

were not properly manufactured in accordance with ECM's instructions, or otherwise impugn the 

integrity of the test samples. Moreover, no such inferences will be drawn from that testimony. 

2 Complaint Counsel's Motion relies on a four-part legal test that applies when a party seeks to call a witness at trial 

that was not included on a final witness list. This test focuses principally on whether calling such a witness would 

unfairly "prejudice or surprise" the opposing party. However, when evaluating proffered rebuttal evidence, the 

authorities cited herein, above, make clear that the central, and foundational, issue is whether the proffered 

testimony, in fact, constitutes rebuttal evidence or whether the testimony serves principally to bolster a party's casein-chief. In this regard, the four-part test upon which Complaint Counsel relies is inapposite. 

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Accordingly, the proposed rebuttal does not serve to "contradict, impeach or defuse" any 

testimony of Dr. Sahu, as asserted by Complaint Counsel. See Black 's Law Dictionary, supra; 

Peals, 535 F.3d at 630. 

For the foregoing reasons, Complaint Counsel's request to call Mr. Shah as a rebuttal 

witness is DENIED. 

Mr. Paul McDonald 

Complaint Counsel, through its proffered expert, Dr. Frederick Shane, procured a survey 

from Google Consumer Surveys ("GCS") to support Complaint Counsel's allegations as to the 

meaning ofRespondent's advertising claims alleged in this case (the "Google survey"). 

Complaint Counsel seeks to call Mr. Paul McDonald, whom Complaint Counsel identifies as a 

product manager for GCS, to testify regarding eight subjects related to GCS, including, among 

other things: how GCS gathers and assesses survey responses; how GCS operates to provide a 

"reasonably reliable" sample of American consumers; how GCS's technology allows it to target 

survey respondents based on " inferred demographic criteria"; additional methods by which GCS 

validates the reliability of its surveys and the inferred demographic information; how GCS deals 

with attempts by survey respondents to "mask" their demographic characteristics; and the 

availability ofGCS on certain tablet and mobile devices. Motion at 12-13. 

Complaint Counsel argues that such testimony is to rebut Respondent's arguments that 

the Google survey results are unreliable and to rebut the expected critiques of GCS and the 

Google survey by Respondent's proffered survey expert, Dr. Stewart. Specifically, Complaint 

Counsel argues that Dr. Stewart is expected to testify that the Google survey sample upon which 

Complaint Counsel relies is unrepresentative (and presumably, therefore, unreliable) because the 

surveys are not made available to mobile users and because users can use private browsing or 

hidden cookies to "mask" their Internet Protocol ("IP") addresses. Respondent replies that Mr. 

McDonald is not a true rebuttal witness, but a fact witness that will bolster the testimony of 

Complaint Counsel's proffered survey expert, Dr. Frederick, and correct errors or omissions in 

Complaint Counsel's case-in-chief. 3 Respondent further argues that Complaint Counsel was 

well aware, months prior to trial, that the validity and reliability of the Google survey would be a 

contested issue in the case and that Complaint Counsel failed to demonstrate that it could not 

reasonably foresee the need for a GCS witness. 

In court on August 27, 2014, a ruling on Complaint Counsel's request to call Mr. 

McDonald for rebuttal was reserved, pending receipt of testimony from Dr. Stewart. (Tr. 2488). 

Dr. Stewart's report does not opine that Google Consumer Surveys are unavailable to mobile 

users or that users can use private browsing or hidden cookies to "mask" their IP addresses, and 

Dr. Stewart did not address any of these points in his direct testimony. Thus, there is no basis for 

calling Mr. McDonald to "rebut" points that Respondent has not elicited. See Peals, 535 F.3d at 

630 ("The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of 

3 On cross-examination, Complaint Counsel's proffered survey expert, Dr. Frederick, testified that he had no 

knowledge about the methodologies of GCS on these matters. See Motion at 4 n.13 (citing transcript excerpts). 

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the evidence offered by an adverse party."). 

In addition, Complaint Counsel's proffered expert, Dr. Frederick, based his opinions 

upon the results of a Google Consumer Survey. It is beyond genuine dispute that the reliability 

of GCS, as well as the background and inner workings of GCS, would play major roles in 

assessing Dr. Frederick's proffered expert opinions. Thus, Complaint Counsel knew, or clearly 

should have known, that all aspects ofthe reliability of the Google survey sample, as well as Dr. 

Frederick's knowledge ofthe techniques and methodologies ofGCS, would be significant, 

disputed issues. Accordingly, Complaint Counsel could have, and arguably should have, 

presented its evidence on these matters in its case-in-chief. Complaint Counsel's failure to do so 

does not create a need for "rebuttal." Rather, it appears that Complaint Counsel seeks to call Mr. 

McDonald to bolster Complaint Counsel's assertions as to the reliability ofGCS and/or the 

Google survey which, as the foregoing legal authorities make clear, does not constitute true 

rebuttal. See Hein, 2013 U.S. Dist. LEXIS 102769, at *32-33. 

Furthermore, given that Complaint Counsel failed to present evidence on known, 

disputed factual issues regarding GCS in its case-in-chief, it would be unfair and prejudicial to 

Respondent to allow Complaint Counsel to present Mr. McDonald's testimony under the guise of 

rebuttal. Complaint Counsel could have identified Mr. McDonald as a potential witness for its 

case-in-chief, and had it done so, Respondent would have had the opportunity to take related 

discovery and name its own fact witness to address GCS. 4 Under the circumstances presented, 

this opportunity, as a practical matter, is lost. 

For all the foregoing reasons, Complaint Counsel's Motion to caU Mr. McDonald as a 

rebuttal witness is DENIED. 

IV. 

Dr. Frederick Michel 

Respondent included in its Opposition a request for an order prohibiting Complaint 

Counsel from calling Dr. Frederick Michel to testify as a rebuttal expert witness. Respondent 

argues that Complaint Counsel failed to file a motion for leave to call this rebuttal witness or to 

demonstrate that Dr. Michel's testimony is, in fact, rebuttal, rather than an attempt to bolster 

Complaint Counsel's case-in-chief. The requirement that a party seek leave to call a rebuttal 

witness does not apply to a properly identified rebuttal expert witness that filed a rebuttal report, 

pursuant to FTC Rule 3.31A(a). See 16 C.F.R. § 3.31A(a) (specifically authorizing rebuttal 

expert witnesses and reports). As to whether Dr. Michel's testimony constitutes fair rebuttal to 

the opinions of Respondent's proffered experts, it has already been held in this case that Dr. 

Michel's report constitutes fair rebuttal. See Order on Respondent's Combined Motion for 

4 Complaint Counsel notes that Dr. Frederick's rebuttal report, submitted June 30, 20 14, mentioned having 

"telephonic meetings" with Mr. McDonald prior to Dr. Frederick's deposition, which "confirmed the mechanics and 

methodology behind GCS." CCX 865 at 3; Motion at 4. The late date of such disclosure, two days before the close 

of expert discovery and more than a month after the close of fact discovery, cannot reasonably be interpreted as 

adequate notice. See Third Revised Scheduling Order at 1-2. 

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Sanctions, to Exclude Expert Witness, and for Leave (July 23, 2014) (denying Respondent's pretrial request to bar Dr. Michel from testifying or allow Respondent to designate a surrebuttal 

expert witness). For these reasons, Respondent's request was denied on the record on August 27, 

2014. (Tr. 2489-2491). Moreover, to prevent any unfair prejudice, in aceordance with FTC Rule 

3.31A(c) and (d), Dr. Michel's testimony was limited to matters within the scope ofhis report 

and to rebutting testimony offered by Respondent's experts. (Tr. 2489-2491) 

Accordingly, Respondent's request to bar Dr. Michel from testifying as a rebuttal expert 

witness is DENIED. 

v. 

For the reasons stated in court on the record on August 27, 2014, and for all the foregoing 

reasons, Complaint Counsel's Motion for Leave to Call Rebuttal Fact Witnesses is DENIED. 

Respondent's request to bar Dr. Michel from testifying as a rebuttal expert witness is also 

DENIED. 

ORDERED: 

Date: September 5, 2014 

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