UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OJ? ADMINISTRATIVE LAW JUDGES 

In the ·M&tter of 

ECM BioFilms, Inc., 

a corporation, also dlb/a 

Enviroplastics International, 

Respondent. 

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DOCKET NO. 9358 

ORIGINAL 

PUBLIC 

ORDER ON RESPONDENT'S MOTION FOR LEAVE TO CALL AN EXfERT 

WITNESS OUT OF TURN OR FORA BRIEF RECESS DURI~G THE HEARING 

I. 

On July 17, 2014. Respondent ECM BioFilms, Inc. ("}\~spondenf' or "ECM'') filed a Motion 

for Leave to Call an Expert Witness Out of Tum, or, in the Alternative, for a Brief Recess During the 

Hearing m Order to Allow Respondent's Expert Witness Dr, David Stewart to TestifY (1'Motion"). By 

Order dated July 18, 20 14~ Federal Trade Commission ("FTC") Complaint Counsel \Vas ordered to file 

its opposition no later than July 21, 2014. Complaint Counsel filed its Opposition on July 21,2014 

("Opposition"'). 

On July 21, 2014, Respondent filed a Mot.1on for Leave to File Reply to Complaint Counsel's 

Opposition and its proposed Reply. Complaint Counsel filed an Opposttioh to Respondent's Motion 

for Leave to .File Reply on July 22, 2014. Respondent•s Motion for Leave to .File a Reply is DENIED. 

Complaint Counsel's Opposition to the Motion for Leave to File a Reply will not be considered. As 

explained below, the alternative request for relief in Respondent's Motion is GRANTED IN PART. 

II. 

The hearing in this matter is scheduled to conunence on August 5, 2014. The original hearing 

date, as set by the Comnm;sion when it issued the Complaint in thls matter, was June 18, 2014. 

R.espon~ent states that its designated expert, Dr. David Stewart, cleared his schedule in anticipation of 

the hearing beginning June 18~ 2014, and that he has confirmed academic and business commitments 

requiring him to be in Australia and New Zealand during the period from August 7, 2014 through 

August 26, 2014. Respondent further states that the Commission's 4S-da,y extension, which reset the 

hearing to begin Augu_st 5, 2014, has created a conflict for Dr Stewart's travel schedule and that Dr. 

Stewart i.s unable to. cancel or. reschedule his other obligations without incurring substantial costs. 

Respondent requests that it be allowed either to call Dr .. Stewart out of order to testify on August 6, 

20 14., or in the alternative, that it be granted a continuance during the hearing to allow 
Dr. Stewart to testify on August 27,2014. 

Complaint Counsel opposes this request, arguing that Respondent knew or should have known 

that Dr. Stewart was unavailable when the Commission reset the trial date. Complaint Counsel argues 

thatRespondent should have raised this issue months ago; Respondent h~s not established Dr. 

Stewart's unavailability because it did not provide information on Dr. Stewart's precise plans; the 

relief Respondent seeks is unfairly prejudtcial to Complaint Counsel; and that there are better 

alternatives for accommodat1ilg Dr. Stewart's schedule. than .those proposed by Respondent. 

III. 

Commission Rule 3.41(b) states that "(h]earings shall proceed with all reasonable expedition, 

and, insofar as practicable, ... shall continue, except for brief intervals ofthe sort normally mvolved in 

judicial proceedings, without suspension until concluded." 16 C.F.R. § 3.41 (b). A request made in 

advance of trial for a brief interval to. accommodate. a ·witness's schedule is "of the sort normally 

involved in judicial proceedings." It is unfortunate that the p~jes are unable to agree, without 

interveqtion., to witness scheduling. Many of the parties' arguments raised to support of their positions 

are immaterial, and will not be addressed. An exception is the point raised by Complaint Counsel that 

it would be unfairly prejudiced by RespQnd0nt' s request 

To allow Respondent to call Dr. Stewart on August 6, 2014, over Complaint Counsel's 

objection, would be urtfairly prejudicial, as it would place Complaint Counsel in a position of having to 

begin its case .. in-chief wit!:) a defense against Responde;nt's expert's direct testimony. Furthermore, 

Respondent has stated that Dr. Stewart is not ayailable on August. 7, 2014. It seems highly impr'o bable 

that the parties are capable of conducting and concluding the direct and cross,.examination of Dr. 

Stewartin one t;lay. Therefore, Respondent's request to call Dr. Stewart on August 6, 2014 is 

DENaED. . 

Complaint Counsel has not demonstrated that it, would be prejudiced. in any manner by 

allowing Dr. Stewart to testify on August 27, 2014. With trial beginning on August 5; 2014, it cannot 

be assunied that the hearing will be concluded before August 26,2014, such that a continuance will 

even be necessary. Indeed, given the many scientific issues in the case, it seems more likely that trial 

will be ongoing as of August 26, 2014, Accordingly, Respondent's request to be allowed to call Dr. 

Stewart oil August 27,2014 is GRANTED. The request for a continuance js DENIED. If a 

continuance or recess becomes necessary to allow Dt Stewart to testify on .that date, that issue Will be 

addressed at the proper time. The parties are. instructed that cooperation is expected to accommodate 

their witnesses' schedules, 

ORDERED: 

D. Michael Chap ·· ll 

Chief Administrative Law Judge 

Date: July 22,2014 

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