Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 1 of 15 PageID# 29392
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
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`v.
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
`
`Case No. 1:20-cv-00393-LO-TCB
`REDACTED
`
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`REPLY IN SUPPORT OF REYNOLDS’S MOTIONS IN LIMINE NOS. 1-3 TO
`EXCLUDE REFERENCES TO VUSE PRODUCTS AS ALLEGEDLY BEING ILLEGAL
`OR UNLAWFUL, REFERENCES TO YOUTH VAPING OR ALLEGED TARGETING
`OF VUSE PRODUCTS TO YOUTHS, AND REFERENCES TO THE ALLEGED
`HARMS OF VAPING
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`

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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 2 of 15 PageID# 29393
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`I.
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`II.
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`III.
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`TABLE OF CONTENTS
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`Page
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`PM/Altria Fails to Show that VUSE’s Regulatory Status is Relevant and Not
`Unfairly Prejudicial to Reynolds. ...................................................................................... 1
`PM/Altria Fails to Show That Evidence Regarding Alleged Targeting of Vuse to
`Youths or Youth Use of E-cigarettes is Relevant and Not Unfairly Prejudicial to
`Reynolds. ........................................................................................................................... 5
`PM/Altria Fails to Demonstrate That the Alleged Harms of Vaping Are Relevant
`and Not Unfairly Prejudicial to Reynolds. ......................................................................... 8
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`-i-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 3 of 15 PageID# 29394
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`CASES
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`TABLE OF AUTHORITIES
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`Page
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`Alvarez v. Lynch,
`828 F.3d 288 (4th Cir. 2016) .....................................................................................................4
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`Am. Home Assurance Co. v. Merck & Co.,
`462 F. Supp. 2d 435 (S.D.N.Y. 2006)........................................................................................7
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`Bilenky v. Ryobi Ltd.,
`No. 2:13CV345, 2014 WL 12591940 (E.D. Va. Oct. 22, 2014) ...............................................8
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`Rex Real Est. I, L.P. v. Rex Real Est. Exch., Inc.,
`No. A-19-CV-696-RP, 2020 WL 710198 (W.D. Tex. Feb. 12, 2020) ......................................4
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`United States v. DesAnges,
`921 F. Supp. 349 (W.D. Va. 1996) ............................................................................................5
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`United States v. Williams,
`445 F.3d 724 (4th Cir. 2006) .....................................................................................................7
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`Wilson v. Detweiler,
`No. SAG-20-0869, 2020 WL 4053827 (D. Md. July 20, 2020) ................................................4
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`OTHER AUTHORITIES
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`CDC, Outbreak of Lung Injury Associated with the Use of E-Cigarette, or Vaping,
`Products (Aug. 3, 2021), https://tinyurl.com/3zyx44r6 .............................................................8
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`Eunice Park-Lee et al., Notes from the Field: E-Cigarette Use Among Middle and
`High School Students — National Youth Tobacco Survey, United States, 2021,
`MMWR 70(39), 1387-89 (Oct. 1, 2021), https://tinyurl.com/yrzenz3f .....................................7
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`FDA, Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS)
`and Other Deemed Products on the Market Without Premarket Authorization
`Revised (Apr. 2020), https://tinyurl.com/8j58axb7....................................................................3
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`FDA, FDA Permits Marketing of E-Cigarette Products, Marking First
`Authorization of Its Kind by the Agency (Oct. 12, 2021),
`https://tinyurl.com/3m8t7b78.....................................................................................................4
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`-ii-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 4 of 15 PageID# 29395
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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`FDA, Youth E-cigarette Use Remains Serious Public Health Concern Amid
`COVID-19 Pandemic (Sept. 30, 2021), https://tinyurl.com/yme96rus ......................................6
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`Jennifer Maloney, Puff Bar Has Overtaken Juul as the Favorite E-Cigarette for
`Teens, Wall Street Journal (Sept. 30, 2021), https://tinyurl.com/45e6vbwx .............................7
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`Mitch Zeller, Perspective: FDA’s Progress on Tobacco Product Application
`Review and Related Enforcement, FDA (Sept. 9, 2021),
`https://tinyurl.com/4xhb5bjt ......................................................................................................3
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`Sheila Kaplan, Juul to Pay $40 Million to Settle N.C. Vaping Case, New York
`Times (June 28, 2021), https://tinyurl.com/2mjv56w2 ..............................................................7
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`-iii-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 5 of 15 PageID# 29396
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`In its opposition to Reynolds’s Motions In Limine (“MIL”) Nos. 1-3, PM/Altria provides
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`a blueprint for the type of irrelevant and unfairly prejudicial arguments it plans to make at trial to
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`paint Reynolds in a negative light and distract the jury from the issues it must decide in this case.
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`The opposition shows that PM/Altria intends to malign Reynolds’s VUSE products as “illegal,”
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`raise the inflammatory issue of youth vaping—wrongly suggesting that VUSE is targeted to
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`youth—and interject the issue of the alleged harms of vaping to excite and distract the jury.
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`Despite PM/Altria’s strained attempts to show that these issues are probative of damages, the truth
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`is that they are entirely irrelevant to the issues in this case, and allowing them in would only serve
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`to unfairly prejudice Reynolds in the eyes of the jury and encourage it to decide the case on issues
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`unrelated to the merits. The Court should grant Reynolds’s MILs 1-3 and bar PM/Altria from
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`introducing arguments, evidence, or testimony related to these issues at trial.
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`I.
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`PM/ALTRIA FAILS TO SHOW THAT VUSE’S REGULATORY STATUS IS
`RELEVANT AND NOT UNFAIRLY PREJUDICIAL TO REYNOLDS.
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`PM/Altria’s opposition shows that it plans to introduce irrelevant and unfairly prejudicial
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`testimony regarding VUSE’s regulatory status. The Court should bar such evidence.
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`First, Reynolds’s regulatory status, including any reference to VUSE products as illegal,
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`is not probative of damages or the royalty rate. PM/Altria’s argument on this point is based on
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`Paul Meyer’s report, which simply regurgitates the opinions of Stacy Ehrlich’s report in which
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`Ehrlich speculates—without any support—
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` See Amended & Supplemental
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`Opening Expert Report of Paul K. Meyer (4/26/2021) (“Meyer Rpt.”), attached as Exhibit 1, ¶ 514;
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`Amended & Supplemented Opening Expert Report of Stacy Ehrlich (4/26/2021) (“Ehrlich Rpt.”),
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`attached as Exhibit 2, ¶ 95. As a general matter, this argument is belied by the fact that PM/Altria’s
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`IQOS product was granted FDA authorization without practicing any of the patents involved in
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`-1-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 6 of 15 PageID# 29397
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`this case. See Dkt. 870, Reynolds’s Motion in Limine No. 11 at 4. But more importantly and as
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`explained in Reynolds’s Memorandum in Support of Its Motion to Exclude the Testimony of Stacy
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`Ehrlich (Dkt. 877) and Reynolds’s Memorandum in Support of Its Motion to Exclude the
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`Testimony of Paul Meyer (Dkt. 892), both Ehrlich’s and Meyer’s opinions should be excluded. In
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`Ehrlich’s speculative and unreliable report, she concedes that she does not know what FDA
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`considers in evaluating PMTAs or how FDA would view the patented technology during the
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`review process. See Dkt. 877 at 7-8. Meyer then regurgitates Ehrlich’s unreliable and unsupported
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`opinion in his report and plucks his additional
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` royalty rate for the PMTA process out of thin
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`air. See Dkt. 892 at 20-22. As such, PM/Altria cannot base its relevance argument on speculative
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`and unreliable testimony that should be excluded from trial.
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`Moreover, PM/Altria is wrong that the regulatory status of VUSE rebuts the design-
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`arounds for the ’265 and ’911 patents. As explained in Reynolds’s Opposition to PM/Altria’s
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`Daubert Motion to Exclude the Design-Around Testimony of David Clissold, that design-arounds
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`did not have FDA authorization at the time of the hypothetical negotiations does not mean those
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`design-arounds were not available for purposes of the damages analysis. Dkt. 955 at 9-11. Indeed,
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`design-arounds may be considered in a reasonable royalty analysis even if the accused infringer
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`did not have the ability to sell the non-infringing alternative, and there is no dispute that the design-
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`arounds could have been implemented into Reynolds’s original PMTAs or that Reynolds would
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`be able to sell the design-arounds upon FDA authorization. Id. at 8-12. Thus, VUSE’s regulatory
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`status has no bearing on design-arounds.1
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`1 And even if VUSE’s need for FDA authorization was somehow relevant to damages or
`design arounds, that fact would in no way demonstrate the relevancy of characterizing VUSE
`products as illegal or unlawful or otherwise justify the use of such terms.
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`-2-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 7 of 15 PageID# 29398
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`Second, referring to VUSE products as illegal or unlawful serves only to unfairly prejudice
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`Reynolds in front of the jury. PM/Altria argues that this characterization is accurate and thus there
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`is no threat of prejudice. PM/Altria misses the point. Reynolds does not dispute that electronic
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`nicotine delivery systems (ENDS, or e-cigarettes) will eventually need FDA authorization to
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`remain on the market. But simply stating that VUSE products, or any other ENDS products
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`awaiting FDA authorization, are “illegal,” is inaccurate because it misleadingly fails to explain the
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`entire context, especially to a lay jury.
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`Reynolds is operating amid a complex regulatory scheme pursuant to an FDA policy of
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`“maintaining availability of [e-cigarettes as] potentially less harmful options for current and former
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`adult smokers who have transitioned or wish to transition completely away from combusted
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`tobacco products.” FDA, Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS)
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`and Other Deemed Products on the Market Without Premarket Authorization Revised (Apr. 2020)
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`at 20, https://tinyurl.com/8j58axb7. FDA has not stated that Reynolds needs to pull its currently
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`marketed products off the market. Instead, as Reynolds has already explained, FDA has said that
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`“[p]roducts for which no application is pending, including, for example, those with a Marketing
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`Denial Order and those for which no application was submitted, are among our highest
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`enforcement priorities.” See Mitch Zeller, Perspective: FDA’s Progress on Tobacco Product
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`Application Review and Related Enforcement, FDA (Sept. 9, 2021) (emphasis added),
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`https://tinyurl.com/4xhb5bjt; Dkt. 825, Reynolds’s Memorandum in Support of Its MIL Nos. 1–3
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`at 4. None of Reynolds’s currently marketed products fit that description. Allowing PM/Altria to
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`refer to VUSE products as illegal fails to take these facts into account and unfairly paints Reynolds
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`in a negative light, suggesting to the jury that Reynolds is somehow operating outside the bounds
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`-3-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 8 of 15 PageID# 29399
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`of the law or against FDA’s orders—neither of which is true.2 And, importantly, if PM/Altria is
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`permitted to discuss VUSE’s regulatory status, it can do so without referring to VUSE products as
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`illegal or unlawful.
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`Moreover, PM/Altria does not dispute that this issue would result in a wasteful, time-
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`consuming mini-trial on the “legality” of Reynolds’s VUSE products and the background of
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`FDA’s complex regulatory scheme. See Wilson v. Detweiler, No. SAG-20-0869, 2020 WL
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`4053827, at *4 (D. Md. July 20, 2020) (“[F]ailure to meaningfully oppose or respond to an
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`argument in a motion constitutes a waiver.” (citation omitted)); see also Alvarez v. Lynch, 828
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`F.3d 288, 295 (4th Cir. 2016) (ignoring an opponent’s argument “ordinarily result[s] in waiver”).
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`The back and forth on VUSE’s regulatory status will be a waste of time that distracts the jury from
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`the important patent issues it must decide in this case. The Court should bar PM/Altria from
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`unfairly disparaging VUSE and creating a mini-trial on this side-show issue.3
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`2 Referring to VUSE as illegal is also misleading because FDA has authorized marketing
`of tobacco-flavored VUSE Solo, making it the only ENDS device to receive FDA authorization to
`date. See FDA, FDA Permits Marketing of E-Cigarette Products, Marking First Authorization of
`Its Kind by the Agency (Oct. 12, 2021), https://tinyurl.com/3m8t7b78. Thus, at a minimum,
`PM/Altria cannot refer to tobacco-flavored VUSE Solo as illegal, but allowing it to refer to VUSE
`products’ regulatory status in general also risks misleading and confusing the jury, given that
`VUSE is the only ENDS product to have successfully navigated FDA’s review process. PM/Altria
`recognizes VUSE Solo’s authorization and says it “will not refer to [tobacco-flavored VUSE Solo]
`as illegal after [October 2021].” Dtk. 1006 at 4 n.2. But this half-hearted concession does not
`prevent PM/Altria from misleadingly referring to VUSE Solo as illegal before that date or
`otherwise confusing the jury regarding VUSE’s regulatory status overall.
`3 PM/Altria also mistakenly argues that challenging the term “illegal” goes to weight, not
`admissibility. Reynolds is not challenging the weight of PM/Altria’s evidence; it is attempting to
`prevent PM/Altria from offering misleading testimony that will unfairly prejudice Reynolds. And
`unlike the facts at issue in Rex Real Est. I, L.P. v. Rex Real Est. Exch., Inc., No. A-19-CV-696-RP,
`2020 WL 710198, at *5 (W.D. Tex. Feb. 12, 2020), cited by PM/Altria, where the court said a
`party could challenge an expert’s methodology and factual basis through cross-examination, cross-
`examination will not mitigate the harm here. By that time, the damage will be done—the jury will
`have already heard the misleading and unfair characterization of VUSE products being illegal.
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`-4-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 9 of 15 PageID# 29400
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`II.
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`PM/ALTRIA FAILS TO SHOW THAT EVIDENCE REGARDING ALLEGED
`TARGETING OF VUSE TO YOUTHS OR YOUTH USE OF E-CIGARETTES IS
`RELEVANT AND NOT UNFAIRLY PREJUDICIAL TO REYNOLDS.
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`PM/Altria’s opposition also shows that it hopes to disparage Reynolds in front of the jury
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`by focusing on the irrelevant and prejudicial issue of youth use of e-cigarettes, including
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`allegations that Reynolds targets VUSE to youths. At a minimum, PM/Altria should be barred
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`from suggesting the latter. In addition to being patently incorrect—Reynolds has not and does not
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`target VUSE to youth—that allegation is entirely irrelevant here. How the ultimate claimed e-
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`cigarette device is marketed or to whom it is targeted has nothing to do with the patent claims in
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`this case, damages, or royalty rates. Any suggestion of targeting would also be baseless, as
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`PM/Altria has presented no evidence that VUSE is targeted to youths, and inflammatory, unfairly
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`prejudicing the jury against Reynolds based on untrue claims about its product. See United States
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`v. DesAnges, 921 F. Supp. 349, 359 (W.D. Va. 1996) (“Evidence that tends to inflame the jury or
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`lead to decisions based on emotion carries a greater danger of unfair prejudice.”). Reynolds
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`adheres to rigorous standards to ensure its marketing is accurate and responsibly directed to adult
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`tobacco consumers and imposes strict compliance policies on retailers to prevent underage
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`purchases. At a minimum, the Court should bar PM/Altria from arguing or suggesting otherwise.
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`But, the Court should also prevent PM/Altria from presenting evidence or testimony about
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`youth vaping in general because that issue is likewise irrelevant and unfairly prejudicial to
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`Reynolds. Youth vaping has nothing to do with damages, despite PM/Altria’s best efforts to link
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`the asserted patents to youth and safety. PM/Altria misleadingly says that the
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` Dkt. 1006 at 8. But PM/Altria’s only support for this proposition is Ehrlich’s report
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`which says
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` Ex. 2, Ehrlich Rpt. ¶ 105. In other words, the technology
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 10 of 15 PageID# 29401
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` And PM/Altria’s assertion that the
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`, despite what John Abraham and Meyers (simply
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`repeating Abraham) say in their reports without any support. See Amended & Supplemental
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`Opening Expert Report of John Abraham (4/26/2021) (“Abraham Rpt.”), attached as Exhibit 3,
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`¶ 53; Ex. 1, Meyer Rpt. ¶¶ 441.
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` would affect any e-cigarette user the same way,
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`regardless of age. In other words, these alleged safety features of the asserted patents do nothing
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`to “mitigate[ ]” or “prevent youth use of e-cigarettes,” (Dkt. 1006 at 9), and, therefore, youth use
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`of e-cigarettes has no bearing on the issues of royalty rate or damages.
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`PM/Altria also tries, and fails, to connect youth use of e-cigarettes to the PMTA process,
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`claiming that the risks of youth use increase the “regulatory hurdle” for authorization and thus
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`increase the value of the patented technology. Id. As explained above, the patented technology
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`has nothing to do with preventing youth use of e-cigarettes. Indeed, FDA’s concerns about youth
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`use in the PMTA process involve issues like alleged popularity of e-cigarette flavors and nicotine
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`dependence,4
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`may evaluate
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` generally, PM/Altria has provided no evidence suggesting
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`. And while FDA
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`that FDA’s concern about
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` is uniquely connected to youth, which makes sense as
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`it is an issue that affects all users, regardless of age, equally. Thus, youth access to e-cigarettes is
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`not probative of the royalty rate or any other damages issue.
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`PM/Altria’s strained attempt to link youth vaping to this case is for one purpose only—to
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`interject an inflammatory issue into the case to paint Reynolds and its VUSE products in a negative
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`4 See FDA, Youth E-cigarette Use Remains Serious Public Health Concern Amid COVID-
`19 Pandemic (Sept. 30, 2021), https://tinyurl.com/yme96rus.
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`-6-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 11 of 15 PagelD# 29402
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`light. While PM/Altria says it is not offering this evidence to “characterize RJR as careless or
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`culpable” (Dkt. 1006 at 10), its opposition shows otherwise. PM/Altria demonstratesits intent by
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`claiming that VUSE products were the “second most popular [e-cigarette brand] among high
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`schoolers” andtha Id. at 8-9. These
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`statements provide a glimpse into the types of inflammatory remarks PM/Altria plans to make at
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`trial—statements unrelated to the patent infringement claims or damagesthat serve only to distract
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`the jury and impugn Reynolds’s products.
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`Indeed, “the only possible purpose for offering such
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`evidence would be to generally prejudice the fact finder against [Reynolds] through insinuations
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`that it is a careless corporate citizen” that produces products used by youth, despite the fact that
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`youth vaping doesnot “have anythingat all to do with” the patent or damagesissuesin this case.
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`Am. Home Assurance Co. v. Merck & Co., 462 F. Supp. 2d 435, 446 (S.D.N.Y. 2006).
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`Therefore, the risk that the jury will be inflamed anddistracted by this evidence, linking
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`VUSEand Reynolds to negative stories they have heard about products like Juul or Puff Bar,°
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`would disproportionately outweigh any alleged probative value of the evidence. See United States
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`v. Williams, 445 F.3d 724, 730 (4th Cir. 2006). And, any such evidencewill result in a collateral
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`° What PM/Altria fails to mentionis that youth’s use of VUSEproducts remains very low,
`with around 1.22% of all youth using any VUSEproduct, andthestatistic it relies on refers only
`to reported vapor products among high school current e-cigarette users who responded to the
`survey. See Eunice Park-Lee et al., Notes from the Field: E-Cigarette Use Among Middle and
`High School Students — National Youth Tobacco Survey, United States, 2021, MMWR 70(39),
`1387-89, at Table
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`(Oct. 1, 2021),
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` See Expert Report of David B. Clissold, Esq., in Response to Amended and Supplemented
`Opening Report of Stacy Ehrlich (5/6/2021), attached as Exhibit 4, § 63.
`© See Sheila Kaplan, Juul to Pay $40 Million to Settle N.C. Vaping Case, New York Times
`(June 28, 2021), https://tnyurl.com/2mjv56w2(attached as Exhibit 5); Jennifer Maloney, PuffBar
`Has Overtaken Juul as the Favorite E-Cigarette for Teens, Wall Street Journal (Sept. 30, 2021),
`https://tinyurl.com/4S5e6vbwx (attached as Exhibit6).
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`-7-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 12 of 15 PageID# 29403
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`mini-trial as the parties debate the truth of any evidence regarding youth vaping, further distracting
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`the jury from the issues it must decide. See Bilenky v. Ryobi Ltd., No. 2:13CV345, 2014 WL
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`12591940, at *7 (E.D. Va. Oct. 22, 2014). The Court should bar this evidence.
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`III.
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`PM/ALTRIA FAILS TO DEMONSTRATE THAT THE ALLEGED HARMS OF
`VAPING ARE RELEVANT AND NOT UNFAIRLY PREJUDICIAL TO
`REYNOLDS.
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`PM/Altria also strains the evidence in this case to assert that the alleged health risks of
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`vaping are relevant to validity and damages. PM/Altria is wrong, and introduction of this evidence
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`will unfairly prejudice Reynolds.
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`First, PM/Altria misconstrues the meaning of alleged health risks of e-cigarettes. It once
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`again points to
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` and also says that
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` Dkt. 1006 at 11; Ex. 1, Meyer
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`Rpt. ¶ 74. These issues may be related to safety of e-cigarettes’ makeup or construction, but they
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`are not what the jury will think of when it hears about alleged harms of vaping. Referring to the
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`alleged harms of vaping will call to jurors’ minds news reports of the dangers of vaping nicotine,
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`the EVALI (e-cigarette, or vaping, product use-associated lung injury) crisis,7 and investigations
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`into companies like Altria’s Juul Labs.8 Even
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` are somehow
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`7 See CDC, Outbreak of Lung Injury Associated with the Use of E-Cigarette, or Vaping,
`Products (Aug. 3, 2021), https://tinyurl.com/3zyx44r6. The CDC concluded that “the primary
`cause of EVALI” was illicit THC e-cigarettes containing vitamin E acetate, not nicotine-containing
`products. See id.
`8 Kaplan, supra footnote 5.
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`-8-
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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 13 of 15 PageID# 29404
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`relevant to infringement or damages generally, the alleged harms of vaping—i.e. the alleged harms
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`from vaping nicotine—are certainly not, and PM/Altria provides no evidence to the contrary.9
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`Second, references to the alleged harms of vaping will only serve to unfairly prejudice
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`Reynolds and distract the jury. As mentioned above, discussing the alleged harms of vaping will
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`cause the jury to view Reynolds and its VUSE products in a negative light, connecting them to
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`salacious and inflammatory stories they have heard about other companies’ products. PM/Altria
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`recognizes this fact when it says “the health risks of e-cigarettes are commonly known to lay
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`persons.” Dkt. 1006 at 11. Allowing PM/Altria to exploit that common knowledge by
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`overemphasizing the alleged harms of vaping will distract the jury from the issues it is tasked to
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`decide in this case. Moreover, barring references to the alleged harms of vaping will not hinder
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`PM/Altria’s case—it can still present its damages evidence without mentioning or alluding to the
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`alleged harms of vaping. For these reasons, the Court should bar PM/Altria from raising this
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`irrelevant and unfairly prejudicial issue.10
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`*****
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`Reynolds respectfully asks this Court to grant Reynolds’s Motions in Limine Nos. 1-3.
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`9 Even assuming arguendo that alleged harms of vaping negatively impact the likelihood
`of PMTA authorization (Dkt. 1006 at 11), as explained above, the fact that design-arounds did not
`have FDA authorization at the time of the hypothetical negotiations does not mean those design-
`arounds were not available for the purposes of the damages analysis. Dkt. 955 at 8-11.
`10 PM/Altria also requests, in a footnote, that the Court exclude PMTA discussions as they
`relate to design-arounds. The Court should reject this request. First, if PM/Altria wanted such
`evidence excluded, it should have filed a motion in limine on that issue. Second, PM/Altria can
`discuss PMTA-related issues without raising the alleged harms of vaping. However, to the extent
`PM/Altria is suggesting that the parties should not be able to argue that the lack of PMTA
`authorization at the time of hypothetical negotiations means that design-arounds were not available
`for the purposes of the damages, Reynolds agrees.
`
`
`
`-9-
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`

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`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 14 of 15 PageID# 29405
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`
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`Dated: February 25, 2022
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`
`
`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (202) 787-1312
`Email: cmolster@molsterlaw.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`
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`

`

`Case 1:20-cv-00393-LO-TCB Document 1058 Filed 02/25/22 Page 15 of 15 PageID# 29406
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 25th day of February, 2022, a true and correct copy of the
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`foregoing was served using the Court’s CM/ECF system, with electronic notification of such filing
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`to all counsel of record.
`
`
`
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`
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`
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`
`
`
`
`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
`
`
`
`
`
`