Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 1 of 7 PageID# 29628
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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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`
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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.
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`Case No. 1:20-cv-00393-LO-TCB
`REDACTED
`
`
`REPLY IN SUPPORT OF REYNOLDS’S MOTION IN LIMINE NO. 9 TO
`EXCLUDE EVIDENCE, ARGUMENT, OR TESTIMONY RELATING TO INCORRECT
`IMAGES, DIAGRAMS, DRAWINGS, OR DESCRIPTIONS OF THE VUSE ALTO
`CARTRIDGE
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`v.
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`Plaintiffs and Counterclaim Defendants,
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
`
`Defendants and Counterclaim Plaintiffs.
`
`Case No. 1:20-cv-00393-LO-TCB
`REDACTED
`
`
`REPLY IN SUPPORT OF REYNOLDS’S MOTION IN LIMINE NO. 9 TO
`EXCLUDE EVIDENCE, ARGUMENT, OR TESTIMONY RELATING TO INCORRECT
`IMAGES, DIAGRAMS, DRAWINGS, OR DESCRIPTIONS OF THE VUSE ALTO
`CARTRIDGE
`
`
`
`
`
`
`
`
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 2 of 7 PageID# 29629
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`OTHER AUTHORITIES
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`TABLE OF AUTHORITIES
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`Page
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`Fed. R. Civ. P. 26 .............................................................................................................................3
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`Fed. R. Civ. P. 37 .............................................................................................................................3
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`-i-
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 3 of 7 PageID# 29630
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`Motion in Limine No. 9 is narrowly tailored to exclude only incorrect depictions of the
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`Vuse Alto. The incorrect images, diagrams, or descriptions that Reynolds seeks to exclude are
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`not relevant to Reynolds’s design-around arguments for the ’911 patent. Indeed, neither
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`PM/Altria’s nor Reynolds’s experts rely on these incorrect depictions of the VUSE Alto. Thus,
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`there is no connection between them and Reynolds’s design-around arguments. Nor is there any
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`connection
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`No experts rely on the incorrect VUSE Alto images, diagrams, or descriptions for the
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`purposes of infringement or damages. On its face, Reynolds’s MIL 9 is directed only to
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`“evidence, argument, or testimony relating to incorrect images, diagrams, drawings, or
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`descriptions of the VUSE Alto cartridge.” Despite PM/Altria’s suggestion otherwise, MIL 9
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`seeks exclusion of
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`these exhibits contain inaccurate depictions of the VUSE Alto. In fact, PM/Altria, specifically
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` PM/Altria admits that it knows which specific portions of
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`agreed tha
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`PM/Altria does not point to where any of its experts have relied on
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`.
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`Instead, PM/Altria argues that
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`Reynolds’s technical expert, Kelly Kodama,
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`-1-
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` Dkt. 991 at 5.
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` Not so.
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 4 of 7 PageID# 29631
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`when he opined on design-around options for the ’911 patent. Ex. 1 at ¶¶ 25, 41, 61, 87,
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`119-139, Exhibit 1. Nor did Reynolds’s other experts, Dr. Sullivan and Mr. Clissold, rely on
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` to support their opinions. To the contrary, both relied on Mr. Kodama’s
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`testimony when considering design-arounds for the ’911 patent. Ex. 2 at ¶¶ 49, 54-55; Ex. 3 at
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`¶¶ 285-286, Attachment A-7.
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`PM/Altria’s insinuation that there is a connection between
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` and Mr. Kodama’s opinions on design around options for the ’911
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`patent (Dkt. 991 at 2-3) is misplaced. The best PM/Altria can do to support its argument is to
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`cite to its expert Stacy Ehrlich’s opinion,
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` Ex. 4 at 186:5-189:16. This testimony is conclusory and speculative at best, and it
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`is subject to Reynolds’s Motion to Exclude the Testimony of Stacy Ehrlich. Dkt. 879. But more
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`importantly, PM/Altria’s argument still misses the point that
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` Dkt. 991 at 3.
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`PM/Altria’s relevance argument is based on a previously undisclosed damages argument.
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`Until its Opposition to Reynolds’s MIL 9, PM/Altria had not disclosed this damages argument in
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`any expert reports, witness testimony, or discovery responses. While PM/Altria points generally
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`to sections of its expert Stacy Ehlrich’s report and deposition testimony in its Opposition,
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` Dkt. 991 at 2-4. None of these citations, however, addresses the argument
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`-2-
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 5 of 7 PageID# 29632
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`PM/Altria should not be allowed to claim relevance to incorrect depictions of the VUSE
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`Alto cartridge by way of a previously undisclosed argument at this late stage in the proceeding.
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`PM/Altria has known of
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` for over a year. Its expert reports were due after
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`PM/Altria was aware of the issue. If PM/Altria wanted to make its argument, it could have done
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`so at least before the close of discovery on May 12, 2021, over nine months ago. If PM/Altria
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`intends to rely on expert testimony to support its argument, it has failed to do so as required by
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`Fed. R. Civ. P. 26(a)(2)(B) (an expert witness is required to provide “a complete statement of all
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`opinions the witness will express and the basis and reasons for them”) and as such, Fed. R. Civ.
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`P. 37(c) applies (“If a party fails to provide information or identify a witness as required by Rule
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`26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a
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`motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”)
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`(emphasis added). Reynolds respectfully asks this court to grant its MIL 9.
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`-3-
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 6 of 7 PageID# 29633
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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
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`Respectfully submitted,
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` /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
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`
`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
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LO-TCB Document 1071 Filed 02/25/22 Page 7 of 7 PageID# 29634
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`CERTIFICATE OF SERVICE
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`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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`/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
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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