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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

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RESPONDENT ECM BIOFILM’S MOTION TO EXTEND PAGE COUNT IN 

RESPONSE TO COMPLAINT COUNSEL’S MOTION FOR LEAVE TO CALL 

REBUTTAL FACT WITNESSES AND MOTION TO PROHIBIT DR. MICHEL FROM 

TESTIFYING AS A REBUTTAL EXPERT WITNESS 

 Pursuant to Rule 3.22(f), ECM BioFilm’s hereby moves the Court to extend the word 

count in Opposition to Complaint Counsel’s motion for leave to call rebuttal witnesses (“Motion 

for Leave”). For the following reasons, and for good cause shown, ECM hereby requests leave 

to file its opposition with approximately 5,983 words: 

 Complaint Counsel’s original motion for leave was filed with 5,400 words, which was a 

consolidation of supposedly two separate motions for leave. 

 ECM’s opposition must include a substantial fact section necessary to give missing 

context to the issues before this court. 

 The issues are a matter of exceptional importance, as Complaint Counsel’s motion, if 

granted, would substantially expand the time for this hearing, and the prejudice to ECM 

08 26 2014
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from Complaint Counsel’s case strategy necessitates a thorough briefing of the issues.1

 Finally, because Complaint Counsel now indicates that they “will call” Dr. Frederick 

Michel as a witness, without first seeking leave of Court, ECM requires additional words 

to address the impropriety of Dr. Michel’s rebuttal testimony. 

For the foregoing reasons, good cause exists for grant of this motion and for the file and 

receipt of the accompanying motion. 

Dated: August 26, 2014. 

/s/ Jonathan W. Emord 

 Jonathan W. Emord 

 Peter A. Arhangelsky 

 Eric J. Awerbuch 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

                                                             1

 This hearing has already been extended once by the Commission by 45 days. As 

explained in ECM’s accompanying Opposition pleading, because ECM would require additional 

discovery from the new rebuttal fact witnesses, the hearing would need to be extended 

considerably if this Court permits the rebuttal witnesses. 
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STATEMENT CONCERNING MEET AND CONFER 

 Pursuant to 21 C.F.R. § 3.22(g), the undersigned counsel certifies on August 26, 2014, 

Respondent’s counsel conferred via e-mail with Complaint Counsel in a good faith effort to 

resolve by agreement the issues raised in the foregoing Motion. Complaint Counsel did not 

respond to Respondent’s counsel’s e-mail. 

Respectfully submitted, 

 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: Tuesday, August 26, 2014 
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ATTACHMENT A 

ECM OPPOSITION
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGES 

Washington, D.C. 

In the Matter of 

ECM BioFilms, Inc., 

a corporation, also d/b/a 

Enviroplastics International, 

Respondent. 

Docket No. 9358 

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RESPONDENT ECM BIOFILM’S OPPOSITION TO COMPLAINT COUNSEL’S 

MOTION FOR LEAVE TO CALL REBUTTAL FACT WITNESSES AFTER 

COMPLAINT COUNSEL RESTED ITS CASE AND OPPOSITION TO COMPLAINT 

COUNSEL’S CALL OF DR. MICHEL AS A REBUTTAL EXPERT WITNESS 

Respondent ECM BioFilms, Inc. (“ECM”) hereby opposes Complaint Counsel’s Motion 

for Leave to Call Rebuttal Fact Witnesses (“Motion”). Complaint Counsel seeks leave to call 

Paul McDonald, an employee of Google, Inc. and Tarang Shah, a former employee of Myers 

Industries, and, without leave, announces it “will call” Dr. Frederick Michel, an FTC consultant. 

For the foregoing reasons, Complaint Counsel has failed to prove that the fact witnesses it seeks 

to call will in fact be “rebuttal” witnesses, wherein they would provide “[i]n-court contradiction 

of an adverse party's evidence.” In particular, there is no statement of fact, as opposed to expert 

opinion, that Complaint Counsel identifies as the source for its fact witness rebuttal. Moreover, 

Complaint Counsel has not demonstrated that there is new or unanticipated testimony that it 

seeks to rebut. Indeed, as explained below it was aware of all issues before and during its case in 

chief. Consequently, Complaint Counsel have failed to meet their basic requirement for 

presenting rebuttal, but their burden is not that basic. On August 12, Complaint Counsel rested 

its case in chief. Having rested, they must now not only prove that the testimony to be given is 
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strictly rebuttal but also meet a high “good cause” burden establishing that they were incapable 

of discerning in advance the precise testimony given in ECM’s case in chief, a burden they fail 

entirely to meet. 

Complaint Counsel did not list either Paul McDonald or Tarang Shaw on any of its prior 

witness lists. They first announced these witnesses to the Court thirteen days after they rested 

their case in chief on August 12. A party seeking to call a witness not listed on its witness list, 

and long after it has rested its case, must prove, in pertinent part, that it could not through 

reasonable diligence have identified the witnesses or known of the need for their testimony due 

to surprise or new information presented in the opposing party’s case. Good cause cannot lie 

where, as here, the issue for which testimony is to be given was plainly before the court 

throughout the proceedings and directly concerns the fundamental underpinnings of Complaint 

Counsel’s case in chief, thus improperly using rebuttal as a means to buttress that case-in-chief. 

Indeed, if the issues for which testimony is to be given were reasonably foreseeable, that suffices 

to defeat the requisite good cause, as Complaint Counsel sat on its rights and, thereafter, could 

only inequitably, with disruption to the proceedings, and in violation of the Due Process rights of 

the respondent suddenly expand its case in chief through the improper rebuttal. 

Despite his Honor’s order in open court directly to the contrary, Complaint Counsel in its 

motion cites specific pages and lines not of factual testimony its fact witnesses will rebut, but 

instead to expert witness opinion testimony which it says its fact witnesses Shah and McDonald 

will rebut. The motion is incompetent. Fact witnesses are not proper rebuttal for expert opinion 

testimony. Adding to the incompetence of the request, Complaint Counsel include page and line 

references to testimony offered by Complaint Counsel’s own expert witnesses, meaning that the 
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“rebuttal” fact witnesses it intends to call will “rebut” Complaint Counsel’s own expert 

witnesses’ testimony. 

In accordance with this Court’s in-court orders, Complaint Counsel were forewarned that 

they cannot introduce fact witness testimony to rebut expert witness testimony. Aug. 25, 2014 

Tr. (draft), at 4:3-6. 

What is more, the Commission’s rules make clear that an expert witness must disclose all 

materials relied upon by that expert and his Honor set June 11 (or June 30 for rebuttal experts) as 

the date for that disclosure in his Scheduling Order. Complaint Counsel’s expert witnesses did 

not disclose in their expert reports that they relied on any material which is said to underlie the 

proposed testimony of Shah and McDonald. 

ECM also asks this Court, in accordance with Rule 3.43(d), to prohibit Complaint 

Counsel from permitting Dr. Frederick Michel to testify as a “rebuttal” witness. Having 

identified in its motion its intent to call Dr. Michel, Complaint Counsel failed to present any 

argument in its motion that would satisfy this Court’s instructions, not specifying what specific 

testimony Dr. Michel will rebut. In addition, Dr. Michel’s proposed testimony, as detailed in his 

rebuttal report, is not rebuttal, as (1) it could and should have been presented during Complaint 

Counsel’s case-in-chief, and (2) it does not rebut any of ECM’s expert witnesses’ actual 

testimony, but only buttresses Complaint Counsel’s expert witnesses’ testimony. 

BACKGROUND

A. Frederick Michel &Tarang Shah 

Complaint Counsel hired Dr. Frederick Michel in 2012 as a consulting witness in 

biodegradation/environmental marketing cases. RX-693–RX-695. Staff attorneys received Dr. 
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Michel’s so-called “peer-reviewed” study of biodegradable on November 11, 2012. RX-695. 

Dr. Michel’s report became an issue in this case as early as February 2014. CCX-819, at 367:4–5 

(Sinclair Depo). Complaint Counsel was eventually sanctioned for failing to timely produce a 

copy of the Michel study before first revealing the document by confronting ECM’s President, 

Robert Sinclair, with it at his deposition. See Order Granting in Part and Denying in Part 

Respondent’s Motion for Sanctions (March 21, 2014). The Michel study has since been cited 

and discussed in Complaint Counsel’s case in chief. Their own expert, Dr. Steven McCarthy 

wrote in his expert report (June 11, 2014) that the Michel study was “the only peer reviewed 

article that has addressed testing of the ECM additive.” See CCX-891, at ¶ 72 (McCarthy Rep.). 

In May 2014, Complaint Counsel deposed the peer reviewer at Elsevier in a deposition that 

focused exclusively on the peer review process for the Michel Study. See generally CCX-808. 

The Elsevier witness testified that he had never reviewed raw data for the Michel test, or 

anything other than the naked article that was published. Id. at 20. Belying any claim of 

ignorance, Complaint Counsel in May 2014 pointed out to the Elsevier witness that: “Are you 

aware that ECM Biofilms, the Respondent in this case, has challenged the study’s validity?” See

Id. at 17:1-6. Thus, Complaint Counsel knew as early as May 2014 that the reliabilty of the 

Michel study was in issue. Complaint Counsel cited the Michel study in their opening brief in 

support of their case-in-chief. See CC Brief at 32. 

 According to Complaint Counsel, Tarang Shah was the Corporate Materials and 

Applications Manager for Myers Industries, the ECM competitor that sponsored Dr. Michel’s 

2012 D5511 test. Although Shah worked alongside Dr. Michel during the D5511 test, and 

played an integral role in developing the products Michel tested, Complaint Counsel did not utter 

a peep about its intent to call him as a witness until 13 days after Complaint Counsel rested its 
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case in chief, informing his Honor for the first time on August 25. Therein Complaint Counsel 

employed a forbidden surprise tactic, seeking to call as “rebuttal,” a person to bolster its case in 

chief, with no prior notice and after Complaint Counsel rested its case, thereby prejudicing 

Respondent by denying Respondent the opportunity to conduct full blown discovery related to 

this witness and to prepare a case in defense predicated on that discovery. 

Complaint Counsel has also failed to move this Court for leave to call Dr. Michel as a 

“rebuttal” witness. They have not explained what information, let alone the hearing transcript 

page and line number, that Michel intends to rebut. Complaint Counsel suggests that Dr. Sahu 

somehow singled out Dr. Michel’s study in a way that was new and unforeseeable. Not so. In 

fact, Dr. Sahu only testified generally with respect to the inconclusive studies he reviewed, and 

explained that for many of those studies, including Dr. Michel’s Study, the lack of information 

concerning the test plastic made certain conclusions challenging: 

Q. What were some of the ... factors that you ... mentioned could be an 

indication or could be a cause of an inconclusive test? 

A. Well, there could be several. I mean, of course again you have to look at 

the totality of the tests and the blanks and the positive and negative 

controls and the behavior of the test... There will be questions on whether 

the additive was in fact properly mixed and was properly present in the 

plastic to begin with, is there a way in which the plastic that would have 

been manufactured with the additive made the additive ineffective or made 

the additive not function properly, both in the way it was blended or the 

conditions of the blend. That blending is difficult in some plastics more so 

than others so you have to inquire into that. 

Aug. 18, 2014 Tr. (draft) at 198–99 (Sahu testimony, talking generally about all tests). His 

testimony concerning Dr. Michel’s study thus fits within that general conclusion. How that 

testimony was unforeseen or new is not explained in Complaint Counsel’s motion, nor could it 

be without disingenuousness given the above quoted statement from Complaint Counsel at the 

Elsevier deposition. See CCX-808 at 17:1-6 (Elsevier Tr.). Moreover, Dr. Sahu wrote in his 
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expert report, and testified at his deposition, about the manufacturing processes used in the 

making of plastics, and explained at length that additives other than the ECM product and 

impurities arising in the process affect biodegradability of the test sample.2 But, more 

fundamentally, the test methodology and properties of the test substance are foundational issues 

for use of the test, and so are reasonably foreseeable as case in chief material. 

B. Paul McDonald 

 In early February, 2014, Complaint counsel retained Dr. Frederick to perform Google 

Consumer Surveys. RX-858, at 123–124. Google surveys have never been accepted in any 

court of law or administrative proceeding to support consumer perception. That fact could not 

escape Complaint Counsel who, of course, are presumed to know the law and, in particular, the 

decisions of the Commission. In any event, as with any survey, representativeness of the survey 

population, and the accuracy of the survey methodology, are foundational elements that must be 

established, pointedly so when a survey method is novel in the judicial forum. Critically, Dr. 

Frederick testified plainly at trial as he did at deposition on June 23, 2014 that he did not rely on 

any of the information that Google’s representative intends to testify to in drafting his expert 

report, thus revealing its total irrelevance and failure to fall within the scope of expert witness 

testimony. 16 C.F.R. § 3.31A(c). More to the point, none of Respondent’s witnesses at 

deposition or at hearing have testified predicated on the information the Google representative 

intends to testify about (nor could they, as the Google representative seeks in camera review of 

trade secrets of Google not available to the public!). 

                                                             2

 For instance, at his deposition at pg. 308–09, Dr. Sahu explained that an inconclusive 

test may not be a “negative” test because he would first need to know if there was an additive or 

impurity that would make it impossible “to establish biological activity.” See CCX-842 (Sahu 

Tr.), at 308–09 (“You would expect that there would be no biological activity, and, therefore, 

there would be no biodegradation”). 
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Now, long after the fact, and before ECM’s expert witness on surveys even testifies, 

Complaint Counsel has moved to call a “rebuttal” fact witness ostensibly to bolster Dr. 

Frederick’s unpersuasive testimony. 

Under this Court’s Scheduling Order, June 11, 2014 was the final deadline specified for 

identification of witnesses by Complaint Counsel. See Third Revised Scheduling Order. 

Complaint Counsel never identified any representative of Google or any representative from 

Myers Industries as a fact witness. See Complaint Counsel’s Final Proposed Witness List.3 On 

August 12, 2014, the same day Complaint Counsel rested its case, this Court stated that “[a] 

rebuttal witness or rebuttal exhibit not previously listed will be considered only upon a showing 

of good cause.” Tr. 1426:4–6. On August 25, 2014, the day Complaint Counsel first informed 

the Court of the intention to call McDonald and Shah as rebuttal witnesses, the Court further 

emphasized that Complaint Counsel may not call fact witnesses to rebut expert witnesses. See 

August 2014 Tr. (draft) at 4:3–6. This Court also made clear that, in order to call a rebuttal 

witness, Complaint Counsel must demonstrate that they were not aware of any of the issues 

relating to the proposed rebuttal testimony. Id. at 5:11–14. 

ARGUMENT 

I. GOOD CAUSE EXISTS ONLY WHERE THE REBUTTAL WITNESS 

WILL REBUT NOVEL AND UNPREDICTABLE FACTS 

When a party rests its case, it relinquishes the opportunity to present additional 

affirmative evidence in support of its case in chief. See In the Matter of LabMD, Docket No. 

9357, Order Denying Complaint Counsel’s Motion for Leave to Issue Subpoenas for Rebuttal 

Evidence (F.T.C. July 23, 2014) (explaining that evidence needed to support Complaint 

                                                             3

 Those witnesses had also never been listed on any of Complaint Counsel’s prior witness 

lists. 
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Counsel’s case-in-chief is not proper evidence for rebuttal) (attached as Exhibit 1); see also 

Black’s Law Dictionary (9th ed. 2009), defining “case-in-chief” as “[t]he part of a trial in which 

a party presents evidence to support the claim or defense” and defining “rebuttal” as “[i]n-court 

contradiction of an adverse party's evidence.” The “principal objective of rebuttal is to permit a 

litigant to counter new, unforeseen facts brought out in the other side's case.” Faigin v. 

Kelly, 184 F.3d 67, 85 (1st Cir.1999) (emphasis added); Goldfinger, Hawaii, Inc. v. Polynesian 

Resources, Inc., 869 F.2d 1497 (9th Cir. 1989) (“[r]ebuttal evidence is evidence introduced by a 

plaintiff to meet new facts brought out in a defendant’s case-in-chief”). 

Likewise, this Court has made it clear that in order for a party to call a rebuttal witness, 

the party has the burden of “demonstrating that [the moving party was] not aware of any [of the 

rebuttal issues] before [the moving party] rested [its] case.” August 25, 2014 Tr. (draft) at 5:11–

14. All issues Complaint Counsel has identified as the source for testimony from its rebuttal 

witnesses have been known and the subject of controversy in the pre-hearing discovery phase as 

well as in Complaint Counsel’s case in chief. 

II. COMPLAINT COUNSEL CANNOT DEMONSTRATE GOOD CAUSE 

FOR SHAH OR MCDONALD TO TESTIFY 

At the conclusion of the testimony of Dr. Shane Frederick, the FTC rested its case in this 

proceeding.4

 See Tr. at 1429:12–14. Under well-settled doctrine and case law, after a party 

rests, it may not present any new affirmative evidence to support its case in chief. See Braun v. 

Lorillard, Inc., 84 F.3d 230, 237 (7th Cir. 1996). A “plaintiff who knows that the defendant 

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

                                                             4

 Complaint Counsel did explicitly reserve the right to call Dr. Frederick Michel as a 

rebuttal witness, but, as explained below, has failed, in accordance with this Court’s 

unambiguous order to request Dr. Michel’s proposed rebuttal testimony “in writing, in the form 

of a motion, to request a rebuttal witness . . .” Tr. at 1425:13–16. That motion would be futile 

anyway, because Dr. Michel’s testimony is not fair rebuttal, as explained herein. 
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defense) must put in his evidence on the issue as part of his case in chief.” Id. (explaining that, 

“[o]therwise the plaintiff could reverse the order of proof, in effect requiring the defendants to 

put in their evidence before the plaintiff put in his”); Bronk v. Ineichen, 54 F.3d 425, 432 (7th 

Cir. 1995). That effective reversal of the order of proof, combined with the extreme prejudice 

suffered by the respondent in not having a full and fair opportunity to engage in all related 

discovery and to prepare its own case in chief in light of the evidence adduced, creates 

substantial prejudice, for, quite obviously, the Respondent cannot at the near completion of its 

own case in chief be able to rewrite the record to take into account all facts and circumstances it 

would otherwise have presented to the Court throughout its case in chief. 

Finality depends on an end to the presentation of affirmative case evidence at the time a 

party rests; otherwise there can neither be orderly process nor any end to judicial proceedings. In 

cases involving government prosecutions, the adverse impact and prejudice suffered by the 

respondent is tremendous for if the government prosecutor can be allowed to flout the rules of 

finality, the respondent must be allowed that same abuse to arrest what is an inherently arbitrary, 

unjust allowance for the government to prove its case after a fair opportunity to do so. See 

VI Wigmore on Evidence (rev. ed. 1976) at 672: 

[Wigmore explains that] “interminable confusion . . . would be created by an 

unending alternation of successive fragments of each case which could have 

been put in at once in the beginning, [and concludes that] the usual rule will 

exclude all evidence which has not been made necessary by the opponent's 

case in reply. 

A. Complaint Counsel Was on Notice That the Reliability or Weight of Dr. 

Michel’s Study Was In Issue 

 There is no sound reason why Complaint Counsel could not have listed Shah on 

their witness list and could not have called Shah to testify in their case-in-chief. As 
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Complaint Counsel readily concedes, “both parties have focused on Dr. Michel’s 

published, peer-reviewed study since February.” Motion, at 11 (emphasis added). 

Similarly, Complaint Counsel readily concedes that it was aware of ECM’s recently 

withdrawn expert report which contained an intricate analysis of Shah’s relationship with 

Dr. Michel. Id. In fact, during Complaint Counsel’s deposition of Elsevier, Complaint 

Counsel acknowledged its awareness that ECM was challenging the weight and 

reliability of Dr. Michel’s study. See id. at 17:1–6. In addition, Complaint Counsel’s 

expert Dr. McCarthy cited to Dr. Michel’s study in his expert report as does Dr. Sahu in 

his expert report. See CCX-891; RX-855 (Dr. Sahu responding to Dr. McCarthy’s 

reliance on the test). Of course, Dr. Michel’s rebuttal report is entirely predicated on his 

own study, and he cited it multiple times. See CCX-895. Therefore, Complaint Counsel 

were well aware of Dr. Michel’s study, presented the study during their case-in-chief, and 

cannot now establish good cause why they did not present any foundational testimony 

concerning the study during their case-in-chief. 

 In addition, Shah’s proposed testimony is limited to the process of manufacture of the 

purported ECM plastic that he provided to Dr. Michel; Shah did not test the article, Michel did. 

Motion, at 13. The manufacture of the sample material is not germane to what Dr. Michel did 

with the material because it is Michel, not Shaw, who tested it. Moreover, there is no 

explanation that Shah (who apparently no longer works for Myers) possesses any relevant 

information about the creation of the test article for a test performed four years prior. Further, in 
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light of the dozens of tests evidencing biodegradation of plastics infused with the ECM additive, 

Dr. Michel’s study is but one inconclusive test among many other positive tests.5

 

Complaint Counsel has not demonstrated, and cannot post hoc, that it was unable to 

secure a witness from Myers Industries before it rested or that it somehow could not have 

reasonably foresaw the need for such a witness after February, 2014 but before this Court’s 

applicable deadline, June 11, 2014—a span of 4 months, or at least before Complaint Counsel 

rested its case. In addition, considerable hubris attends the attempt to present affirmative case 

evidence after Complaint Counsel has rested its case, not to mention the extreme prejudice 

suffered by Respondent. The Michel Study is apparently significant to Complaint Counsel’s 

crumbling scientific theories against ECM’s products. How can it be that Complaint Counsel 

never appreciated the need to support that study in its case-in-chief?

B. Complaint Counsel Was On Notice That Its Google Consumer Surveys Were 

Novel And At Issue 

McDonald’s proposed testimony concerns the confidential mechanics of Google 

surveys, which is foreseeable case-in-chief testimony that ordinarily is not proper for 

rebuttal in a case that plainly deals with survey evidence on both sides. The foundational 

testimony for any survey, let alone a novel one, is imminently foreseeable as foundational 

in the case in chief. See, e.g. RX-856 (Stewart Rep.) at 10–11 (served on Complaint 

                                                             5

 Complaint Counsel falsely states that Dr. Michel’s study is the only peer reviewed one 

of an ECM plastic. Not so, all of the Eden Labs, Northeast Labs, and other tests of the ECM 

plastic, of which there are about three dozen, were reviewed by peers, including experts in this 

case; they just were not the subject of publication. Moreover, the peer-reviewer of the Michel 

test, Elsevier, testified at Complaint Counsel’s deposition that Elsevier never looked at raw data, 

test materials, the inoculum composition, or anything other than the draft article itself. See CCX808 at 20-23 (Elsevier Tr.). Because Dr. Michel simply followed a D5511 protocol (not original 

research), there were few, if any, issues to examine in the peer-review process. Dr. Michel’s 

study is thus just one of many D5511 studies at issue in this case. Opening the door to this level 

of collateral evidence would mean that equitable allowance should be afforded ECM to open the 

door to countless witnesses in support of the over thirty positive tests. 
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Counsel on June 18, 2014 and arguing against the validity of Dr. Frederick’s Google 

Consumer Surveys); see, e.g., Pittsburgh Press Club v. United States, 579 F.2d 751, 758 

(3d Cir. 1978) (a proper survey must have “a proper universe” and “a representative 

sample”). Competent recognition of that fact would arise immediately upon the 

commissioning of Frederick to do the work which occurred in February, 2014. See Tr. at 

1114:11–14. The attempt to call a Google representative at this late stage is a clear effort 

to correct errors or omissions committed by Complaint Counsel in its case in chief, not to 

be true rebuttal. 

Complaint Counsel has not demonstrated, and cannot post hoc, that it was unable to 

secure a witness from Google before it rested or that it somehow could not have reasonably 

foresaw the need for such a witness after February 2014 but before this Court’s applicable 

deadline, June 11, 2014—a span of 4 months, or at least before Dr. Frederick concluded his 

testimony and Complaint Counsel rested its case, just two days before issuing the Google 

subpoena. 

 Even were the Court to excuse Complaint Counsel from compliance with the Court’s 

scheduling order and contort the law to allow a Google representative as a rebuttal witness, it is 

black letter law that rebuttal testimony is testimony that rebuts that given by the party opponent. 

See Black’s Law Dictionary (9th ed. 2009), defining “rebuttal” as “[i]n-court contradiction of an 

adverse party's evidence.” Rebuttal by definition is not testimony that conflicts with or explains 

further the testimony given by one’s own witness. Id. In this case, no person who testified for 

Respondents thus far in the case even uttered the word “Google.” The only person who testified 

about Google Consumer Surveys was Dr. Shane Frederick. Thus, any testimony given by 

Google would necessarily not be rebuttal but rather affirmative case evidence in support of 
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Complaint Counsel’s own expert witness (thus constituting case in chief 

material). Consequently, it is not “rebuttal” and cannot be given after Complaint Counsel rested, 

nor can it reasonably be argued to be within the scope of rebuttal. 

 Moreover, Dr. Frederick testified in open court that he knew very little, if anything, about 

computer science or how Google Consumer Surveys actually function. Indeed, nothing in his 

expert report or in his testimony relays more. Moreover, McDonald from Google defines his 

testimony as concerning that very matter which Frederick testified he did not know about. 

Because Frederick neither knew of nor relied upon the matter in his expert report, it cannot serve 

as the basis for opposing testimony in this case. What is more, McDonald seeks to present this 

information in camera, revealing it to be secret! It is thus so kept from all comers, Frederick and 

ECM’s witnesses included. Thus, the information McDonald seeks to impart to the Judge is not, 

nor could it be, part of the case and can only serve as extraneous extra-record material designed 

to bolster Complaint Counsel’s case in chief after it has rested. 

 Moreover, the major methodological flaws in Frederick’s Google Consumer Surveys are 

the product of Frederick’s, not Google’s, choices. For example, it is plainly irrelevant whether 

or not Google Consumer Surveys has the facility to ask multiple questions of individual 

respondents or ask respondents screening questions because Dr. Frederick chose to do neither. 

The case hinges on what Dr. Frederick did in his online surveys, not the fact that he chose 

Google as the vendor. No testimony from McDonald can save Frederick from his own poor 

choices and, given his testimony of near absolute ignorance of Google Consumer Surveys’ 

algorithms and methodologies, no upcoming testimony from ECM will go to those very matters 

which McDonald’s lawyers say will be McDonald’s testimony. 
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 To permit case in chief testimony to continue after a party rests not only violates the 

rules, the limits on arbitrary and capricious agency action, the legal definition of “rebuttal” and 

the precedent governing the limited use of rebuttal, it also violates the constitutional limits of 

Due Process, leaving courts confronted with similar attempts to condemn them as seeking to 

institutionalize invidious burden-shifting. Braun, 84 F.3d at 237. 

 In addition, ECM now faces the substantial risk that McDonald, obviously a sophisticated 

witness, will present what is actually expert testimony under the cover of a fact witness. 

McDonald’s testimony would unavoidably read like an expert in computer science, creating 

substantial prejudice because ECM would be obliged to perform substantial discovery and, 

perhaps, employ a surrebuttal witness to address the nuanced technical points presented. The 

level of prejudice experienced by ECM is considerable, imposed solely because of Complaint 

Counsel’s negligent omission of an obvious fact witness from its witness lists and case-in-chief. 

III. COMPLAINT COUNSEL CANNOT CALL SHAH AND MCDONALD AS 

FACT WITNESSES TO REBUT THE TESTIMONY OF EXPERT 

WITNESSES 

 This Court made clear that the parties cannot call fact witnesses “to rebut facts that came 

from an expert.” August 25, 2014 Tr. (draft) at 4:3–6. Regarding McDonald, Complaint 

Counsel specifically identifies only the testimony of its own expert, Dr. Frederick, which 

McDonald will purportedly rebut. Motion, at 4–5. Aside from the gross incompetence of 

“rebutting” one’s own witness, Complaint Counsel also leaps outside of the record to presume 

knowledge of what Dr. Stewart will testify to, and then to opine that McDonald, a fact witness, is 

appropriate rebuttal for Dr. Stewart, an expert. Motion, at 5. Similarly, regarding Shah, 

Complaint Counsel only cites to testimony from ECM’s expert, Dr. Sahu, which Shah will 
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purportedly “rebut.” Motion, at 6. As articulated by the Court, these are not proper grounds for 

a rebuttal fact witness. 

IV. SHAH’S AND MCDONALD’S TESTIMONY IS WHOLLY IRRELEVANT 

AND INCOMPETENT “REBUTTAL” INSOFAR AS IT IS USED TO 

SUPPORT THE OPINIONS OF COMPLAINT COUNSEL’S OWN 

EXPERTS 

 Commission Rule 3.31A(c) requires that each expert report “contain a complete 

statement of all opinions to be expressed and the basis and reasons therefor; the data, materials, 

or other information considered by the witness in forming the opinions; any exhibits to be used 

as a summary of or support for the opinions. . .” 16 C.F.R. § 3.31A(c). Dr. Frederick did not 

report that he relied upon data, materials, or other information obtained from McDonald in his 

initial expert report. See generally CCX-890. Similarly, Michel did not disclose that that he 

relied upon any information obtained from Shah regarding the manufacturing of the testing 

samples in his expert report. See generally CCX-895. Therefore, if the Court were to consider 

the testimony of McDonald or Shah to provide support for Dr. Frederick’s or Dr. Michel’s expert 

reports, the Court would in essence be relying upon extrinsic information which the experts 

themselves did not rely upon in forming their opinions and in drafting their expert reports. 

V. IN THE ALTERNATIVE, SHOULD THIS COURT ALLOW EITHER 

SHAH OR MCDONALD TO TESTIFY, ECM REQUESTS A 

POSTPONEMENT OF THE HEARING TO OBTAIN RELEVANT 

DOCUMENTS FROM BOTH WITNESSES AND OTHERS POSSESSED 

OF INFORMATION GERMANE AND TO DEPOSE BOTH WITNESSES 

 There is no way to avoid the substantial prejudice and disruptive effects of the surprise 

announcement, after Complaint Counsel rested its case, of two new fact witnesses who would 

testify in “rebuttal.” Had Complaint Counsel identified these individuals as fact witnesses on its 

witness lists exchanged under the Scheduling Order (which it did not), the discovery rules would 

have provided ECM ample opportunity to obtain discovery from the proposed witnesses and 
 PUBLIC DOCUMENT 

16 

from any sources relied upon by the proposed witnesses. ECM’s present inability to collect that 

information creates a profound prejudice to its rights of self-defense, resulting in a clear violation 

of procedural due process. “There can be no doubt ... that this due process requires that [the 

parties] are entitled to appropriate discovery in time to reasonably and adequately prepare 

themselves, and their defenses, before facing the charges in the administrative ‘trial.’” See, e.g., 

Standard Oil Co. v. FTC, 475 F.Supp. 1261, 1275 (N.D. Inc. 1979) (citing Morgan v. United 

States, 304 U.S. 1 (1938)). To the extent this Court permits the rebuttal fact witnesses proposed 

by Complaint Counsel, the hearing would have to be postponed to permit ECM a full and fair 

opportunity to take discovery through all means permissible under 16 CFR Part 3, including 

subpoenas duces tecum and through deposition, not only of these witnesses but also of the 

sources upon which these witnesses rely. Without that critical information, ECM cannot 

meaningfully address the issues raised in the proposed testimony and meaningfully defend the 

interests of its client against these surprise witnesses. What is more, wrangling can be expected 

when ECM endeavors to obtain all of Google’s confidential algorithms in issue and have them 

evaluated by its own experts. 

 That procedure, quite obviously, will require a significant recess in these proceedings, 

and expose ECM to extraordinary hardship solely because Complaint Counsel failed to call 

foundational witnesses in its case in chief. This case has already been delayed by 45 days to 

allow Complaint Counsel to complete the very steps they should have completed initially. There 

is no good cause for Complaint Counsel’s motion. 
 PUBLIC DOCUMENT 

17 

VI. THIS COURT SHOULD PROHIBIT COMPLAINT COUNSEL FROM 

CALLING DR. FREDERICK MICHEL TO TESTIFY AS A REBUTTAL 

EXPERT WITNESS 

 Complaint Counsel brazenly declares in its motion, without leave of court, that they “will 

call Dr. Michel.” ECM is therefore obliged to address that call in this opposition. 

Complaint Counsel has not disclosed Dr. Michel’s rebuttal testimony in accordance with 

this Court’s August 12, 2014, order: 

If any party wishes to offer a rebuttal witness in this case or offer rebuttal 

evidence, the request shall be made in writing in the form of a motion to request a 

rebuttal witness or rebuttal evidence, and that shall be made as soon as 

possible. That motion shall include the name of any witness being proposed or a 

detailed description of the rebuttal evidence being offered. That motion shall also 

include a cite to the record by page and line number to the evidence that you 

intend to rebut. 

 Tr. at 1425:13–23. Therefore, having not filed an appropriate motion asking this Court 

for permission to call Dr. Michel as a rebuttal witness, Dr. Michel can be prohibited from 

being called as a rebuttal witness without further ado. 

On the underlying merits, however, we now know that Dr. Michel’s proposed testimony 

is not “rebuttal” at all. He is to provide further expert opinion designed to buttress Complaint 

Counsel’s case-in-chief which includes the Michel study and includes its other expert’s 

testimony concerning that study. This Court has made it clear that in order for a party to call a 

rebuttal witness, the party has the burden of “demonstrating that [the moving party was] not 

aware of any [of the rebuttal issues] before [the moving party] rested [its] case.” August 25, 

2014 Tr. (draft) at 5:11–14. Moreover, the content of the rebuttal testimony must respond with 

specificity (by hearing transcript page and line number) to information raised in ECM’s case. 

That is not what Complaint Counsel proposes with Dr. Michel. Rather, Dr. Michel’s report 

simply affirms the opinions of Complaint Counsel’s other experts, and then presents pure case-
 PUBLIC DOCUMENT 

18 

in-chief testimony concerning his own D5511 test which is contained in the Michel and Gomez 

study that Complaint Counsel introduced into evidence, CCX-164, and to which Dr. McCarthy 

opines in his expert report, CCX-891 at ¶ 72. Because Dr. Michel’s testimony either concerns 

the report which Complaint Counsel presented in its case in chief or is cumulative of other 

testimony given by its experts in its case in chief, the testimony was foreseeable, imminently 

capable of being presented in the case in chief, and ultimately not proper rebuttal. 

 There was nothing “unforeseen” or new in ECM’s case that would merit rebuttal testimony 

from Dr. Michel. Moreover, Dr. Michel is a consultant to the FTC and helped in the preparation 

of this very case since 2012, so FTC was well aware of the information long before the hearing. 

See RX-213. 

 A review of Dr. Michel’s “rebuttal” report proves that his proffered testimony has been 

presented during the case-in-chief, and is not appropriate for rebuttal. On page 8 of his rebuttal 

report, Dr. Michel critiques the BioPVC test completed by Dr. Barber, RX-254, a test reviewed 

by both Dr. McCarthy and Complaint Counsel’s expert Dr. Tolaymat, and specifically and 

extensively critiqued by Dr. Tolaymat. See CCX-893 (Dr. Tolaymat’s Expert Rep.), at 25–

27. Dr. McCarthy testified regarding the priming effect and C14 radio labeling testing. See, 

e.g.,Tr. at 412–413, 418, 424, 449, 473, 476–477. Moreover, Dr. Tolaymat already testified 

regarding landfill conditions, such as temperature and moisture. See, e.g.,Tr. at 50, 51, 56, 123, 

142, 143, 174, 176. Therefore, Complaint Counsel was well aware of these issues before 

beginning its case-in-chief and had every opportunity to elicit expert testimony during its casein-chief on the issues. Moreover, much of Dr. Michel’s rebuttal report, at pages 12, 14, and 15, 

contains support for Dr. McCarthy’s testimony on his theory that C14 radio labeling is necessary 

to prove biodegradation—a theory first propounded by Complaint Counsel through Dr. 
 PUBLIC DOCUMENT 

19 

McCarthy’s Expert Report and complemented by his testimony at hearing. CCX-891, at ¶¶ 59–

60; Tr. at 377, 380, 389, 424, 473, 475. 

Throughout his rebuttal report, Dr. Michel simply attempts to buttress Complaint 

Counsel’s other experts, rehashing their theories just through a separate voice. See, e.g.,CCX893 at 9 (“as noted in reports by FTC expert Dr. Thabet Tolaymat. . .”); id. at 10 (“As described 

by Dr. McCarthy in his report ...”). In sum, nothing in Dr. Michel’s rebuttal report is true 

rebuttal and all of it is cumulative of testimony already given by its other experts before 

Complaint Counsel rested. 

 Allowing Dr. Michel to testify on these issues, which Complaint Counsel’s experts 

already testified to, is not fair rebuttal because it is necessarily part of their case-in-chief as 

evidenced by the fact that their own experts testified to these issues during their case-inchief. By definition and precedent, “rebuttal” is only allowed insofar as it actually rebuts new 

and unforeseen information brought out during the opposing party’s case-in-chief. Faigin v. 

Kelly, 184 F.3d 67, 85 (1st Cir.1999) (emphasis added); see also Marmo v. Tyson Fresh Meats, 

Inc., 457 F.3d 748, (8th Cir. 2006);Cates v. Sears, Roebuck & Co., 928 F.2d 679, 685 (5th Cir. 

1991); Goldfinger, Hawaii, Inc. v. Polynesian Resources, Inc., 869 F.2d 1497 (9th Cir. 1989) 

(“[r]ebuttal evidence is evidence introduced by a plaintiff to meet new facts brought out in a 

defendant’s case-in-chief”). 

CONCLUSION 

 For the foregoing reasons, ECM respectfully requests that this Court deny Complaint 

Counsel’s motion for leave to call Mr. Shah and Mr. McDonald as fact witnesses. ECM also 

requests that this Court prohibit Dr. Frederick Michel from testifying as a rebuttal expert witness. 
 PUBLIC DOCUMENT 

20 

Respectfully submitted, 

/s/ Jonathan W. Emord 

 Jonathan W. Emord (jemord@emord.com) 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937 

Facsimile: 202-466-6938 

DATED: August 26, 2014. 
 PUBLIC DOCUMENT 

21 

CERTIFICATE OF SERVICE

I hereby certify that on August 26, 2014, I caused a true and correct copy of the foregoing 

to be served as follows: 

One electronic copy to the Office of the Secretary through the e-filing system: 

Donald S. Clark, Secretary 

Federal Trade Commission 

600 Pennsylvania Ave., NW, Room H-113 

Washington, DC 20580 

Email: secretary@ftc.gov 

One electronic courtesy copy to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave., NW, Room H-110 

Washington, DC 20580 

One electronic copy to Counsel for Complainant: 

Katherine Johnson (kjohnson3@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Arturo DeCastro (adecastro@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

Jonathan Cohen (jcohen2@ftc.gov) 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mail stop M-8102B 

Washington, D.C. 20580 

I certify that I retain a paper copy of the signed original of the foregoing document that is 

available for review by the parties and adjudicator consistent with the Commission’s Rules. 

 

DATED: August 26, 2014 

 /s/ Jonathan W. Emord 

 Jonathan W. Emord 

 EMORD & ASSOCIATES, P.C. 

 11808 Wolf Run Lane 

 Clifton, VA 20124 

 Telephone: 202-466-6937
EXHIBIT 1
In the Matter of 

LabMD, Inc., 

a corporation, 

Respondent. 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

) 

) 

) 

) 

) 

DOCKET NO. 9357 

______________________________) 

ORIGINAL 

PUBLIC 

JUl 2 3 2014 

571 tJLISECRETAilf 

ORDER DENYING COMPLAINT COUNSEL'S MOTION FOR LEAVE 

TO ISSUE SUBPOENAS FOR REBUTTAL EVIDENCE 

I. 

On July 8, 2014, Federal Trade Commission ("FTC'') Complaint Counsel filed a Motion for Leave 

to Issue Subpoenas for Rebuttal Evidence· (·'Motion"). Respondent filed an opposition to the Motion on 

July 18,2014 ("OppositiOn"). 

Havmg fully considered the Motion and Opposition, the Motion is DENIED, as explained below. 

II. 

Under the Revised Scheduling Order in this case, the deadline for the completion of fact discovery 

was March 5, 2014. Tnal commenced on May 20, 2014. Complaint Counsel rested its case on May 23, 

2014. 

Complaint Counsel asks for leave to take further discovery. as follows: (1) to issue deposition 

subpoenas t0 Tiversa Holding Corporation ("Tiversa") and its employee, Keith Tagliaferri, and (2) to 

issue a document subpoena to Tiversa. The proposed deposition subpoena to Tiversa, attached to the 

Motion, requests testimony as to the "times, dates, Internet Protocol ['IP'] addresses, geographic 

locations, and networks" on which, or from which, Tiversa located and/or obtained copies of an 

"insurance aging report'; ofLabMD's, referred to herein as the " 1718 file," and how Tiversa obtained and 

maintained that information. Motion Exhibit D at 2. Complaint Counsel's proposed docUment subpoena 

to Tiversa requests "all documents" pertaining to the above, as well as Tiversa's "personnel files" and 

other documents relatmg to Mr. Richard Wallace, a former employee ofTiversa and a designated fact 

witness for Respondent, and/or relating to Mr. Wallace's termination from Tiversa. Motion Exhibit Eat 

5. Complaint Counsel argues that information regarding "how, when, and where" Tiversa found the 1718 

file on P2P networks is for the purpose of rebutting proffered testimony of Mr. Wallace, as to which 

Complaint Counsel clai.nJ,s it had no knowledge until June 12, 2014 when Respondent's coijllsel made a 

proffer in court. Motton a:t 3-4. 
Respondent counters that the Motion should be denied because Mr. Wallace has not yet testified, 

and therefore, what constitutes rebuttal cannot be determined at this time. In addition, Respondent argues 

that discovery ended months ago, that there is no authority for ·~rebuttal discovery)., and that Complaint 

Counsel should have sought discovery related to Mr. Wallace much earlier in the proceedings, given that 

Complamt Counsel itself identified Mr. Wallace in its Initial Disclosures as a "person with knowledge," 

and that Mr. Wallace was included on Respondent's final witne.ss list. 

III. 

On June 12, 2014> after Complaint Counsel had closed its case-in-chief and during Respondent's 

case, Respondent proposed to call Mr Wallace. However, counsel for Mr. Wallace appeared and stated 

that, due to a pending Congressional investigation of Tiversa, including Tiversa's work with government 

agencies, JX3, Mr Wallace would be invoking his Fifth Amendment rights aga:inst self-incrimination in 

response to any substantive questions. Counsel for Mr. Wallace also st~ted that Mr. Wallace was seeking 

immunity in exchange for his testimony regarding Tiversa' s activities. In an in camera bench conference, 

Respondent's counsel made a proffer of Mr. Wallace 's expected testimony. Thereafter, Mr. Wallace was 

called to t-estify, and invoked hls Fifth Atnendment rights. A recess was ordered to allow Mr. Wallace to 

continue h1s effort to obtain irnmunity fot his test1inony, including immunity for any testimony to be 

provided for the instant case 

Complaint Counsel's Motion is based on the assumption that Mr. Wallac,e will testifY in this case 

and, also, on the additional assumption that Mr. Wallace will testifY as: asserted in the Motion. However, 

Mr. Wallace has not yet testified a,nd, indeed, he may not testify if he is "U.Ilable to obtain the desired 

immunity or for other unknown reasons. It cannot be assumed that Mr. Wallace will testify, or that his 

testimony will be in accordance with that proffered by Respondent's counsel and cited by Complaint 

Coun:sel in th~ Motion. Thus, on the present record, it cannot properlybe detennined what might 

constitute pennis$ible rebuttal or impeachment evidence, much less whetherthere is good cause to reopen 

discovery, at this late stage ofproceedipgs,to obt.ain such evidence. The issuespresented by the Motion, 

to the extent they beconie relevant and valid., could only be appropriately addressed in t}le context of Mr. 

Wallace's actual testimony, if any.

1 Accordingly, for these reasons, Complaint Counsel's Motion is 

DENIED. 

ORDERED: ':DI'Iq~ D. Michael Cha . . ell 

Chief Administrative Law Judge 

Date: July 23,2014 

1 Notwithstanding the foregoing, it must be noted that Complaint Counsel's assertion that further discovery into "how, when, 

and wbere" Tiversa found the 1718 fl.le on P2P n~tworks is designed to rebut Mr. Wallace'$ expected testimony is questionable 

at best. Complaint Counsel .elicited substantial evidence on this issue, over the objections of Respondent's counsel, at the trial 

deposition ofMr. Boback on June 7, 2014, whtch took place days before June 12~ 2014 - .the date that Complaint Counsel 

asserts it frrstleamed of Mr. Wallace's expected testimony. Moreover, evidence regarding ''how, when, and where" Tiversa 

found the 1718 File on P2P networks is part of Complaint Counsel's case-in-chief, which has concluded. See, e:g., Co~p1airit 

1f 17-19, 22, Complaint Counsel's Pre-hearing Brief at 49 (~sserting that the J7J 8 File has been found on a pub he P2P 

network as recently as November 2013 and has been downloaded from four different IP addresses), citing CX0742 (Rep9rt of 

Complaint Counsel's proffered expert Rick Kam) at 19; CX0703 (TiversaDep.) at 9, 52, 58, 61-64. 

2