`Case 1:20-cv-00393-LO-TCB Document 1257 Filed 06/03/22 Page 1 of 4 PageID# 32618
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`RAI STRATEGIC HOLDINGS,INC., et.al.,
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`Plaintiffs,
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`Vv.
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`ALTRIA CLIENT SERVICES, LLC,et. al.,
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`Defendants.
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`NemNoweNeenNeeeeeNeue”Nee”See”one”Ne”Ne”
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`ORDER
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`Civil Action No. 1:20-cv-393
`Hon. Liam O’Grady
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`The Parties have made several Motions to the Court including an Objection to Judge
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`Buchanan’s ruling on a Motion to Show Cause (Dkt. 1191); Motion to Limit Prior art
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`Combinations (Dkt. 1210); and a Motion to Amendthe Identification of Claims (Dkt. 1221). The
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`Parties have also brought several other issues to the Court’s attention. The Parties have fully
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`briefed the Motions and held oral arguments to inform the Court regarding the issues to be
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`addressed beforethe start oftrial.
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`For the sake of clarity, at trial Phillip Morris USA, Phillip Morris Products S.A. and
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`Altria Client Services will be referred to as the “Plaintiffs.” RAI Strategic Holdings Inc. and R.J.
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`Reynolds Vapor Companywill be referred to as the “Defendants.”
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`1. The Objection to Judge Buchanan's ruling
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`The Plaintiffs have objected to Judge Buchanan’s denial of their Motion for Sanctions.
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`The Plaintiffs previously moved for sanctions after several documents wererecently disclosed to
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`the Court on March 18, 2022. These documents reflect that negotiations between Reynolds and
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`third-party Fontem contained several references to a proposed 5.25% royalty rate to license
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`patents that are comparable to the patents at issue in the present case. See Dkt. 1195 at 1-2. The
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`Defendants previously moved to exclude the opinion of the Plaintiffs’ damages expert on the
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`basis that there was no factual support that this comparable technology could be licensed at a
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`5.25% royalty rate. Dkt. 892 at 17-19. However, based on a review of the record and the
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`representations made to the Court, it is clear that the Defendants’ law firm, Jones Day, had
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`access to these documents as early as June of 2021 and these documents did support a
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`contemplated 5.25% royalty rate for a proposed license. After obtaining these documents, Jones
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`Day did not produce the documents in responseto the Plaintiffs’ discovery requests and went on
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`to make several representationsin their written briefs and oral arguments that were at best clearly
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`inaccurate if not intentionally misleading. The Court finds that the existence of these documents
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`directly contradicts the series of representations made by the Defendants.
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`The Court has reviewed Judge Buchanan’s ruling and the written transcripts of the
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`proceedings before her on the Motion for Sanctions. The Court does not find that there was any
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`indication that Judge Buchanan misapplied the law. Judge Buchanan was also well within the
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`exercise of her discretion to deny the Plaintiffs’ Motion for Sanctions. As there was no abuse of
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`discretion, the Court will AFFIRM Judge Buchanan’s ruling. Dkt. 1191.
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`However, the Court is troubled by the dubious behavior and lack of contrition with which
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`the Defendants have respondedto this matter. For this reason and upon finding good cause to do
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`so, the Court will grant two of the Plaintiffs’ ore tenus Motions that were madeat the hearing on
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`May 20, 2022. The five documentsidentified by the Plaintiffs will be deemed admissible for use
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`as evidenceat trial.! Further, upon the Plaintiffs’ Motion andin lieu of imposing a sanction, the
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`! The Defendants have filed a stipulation with the Court
`documents are authentic and non-hearsay. Dkt. 1235.
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`indicating that
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`the five
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`2
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`Court will strike the most recent supplemental report of Dr. Ryan Sullivan, which addresses
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`these five documents, pursuant to Federal Rule of Civil Procedure 37(c)(1)(C). See Sharpe v.
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`United States, 230 F.R.D. 452, 456 (E.D. Va. 2005) (a party who does not disclose information
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`without substantial justification may not use that evidenceattrial).
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`2. The Motions to limit prior art and to amendthe identification ofclaims.
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`The Plaintiffs have filed a Motion to present an additional claim at trial from United
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`States Patent Number 10,104,911. Discovery has been taken regarding this claim and is
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`addressed in the expert reports of both Parties. There is no prejudice from allowing the Plaintiffs
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`to present this claim attrial. For this reason, the Motion is GRANTED.Dkt. 1221.
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`The Plaintiff has also filed a Motion to limit the number of prior art references and
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`combinations of prior art the Defendants will use in relation to United States Patent Number
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`10,104,911. There is no basis to grant this Motion and the Defendants maypresentall the prior
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`art references and combinationsattrial. This Motion is DENIED. Dkt. 1210.
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`3. Objection to the exclusion ofunvaccinatedjurors.
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`Individuals who have not received the coronavirus vaccine will be excluded from the
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`pool ofpotential jurors for the upcomingtrial. At the prior hearing, the Defendants have objected
`to this decision on the basis that the jury pool will be improperly skewed to include a higher
`number of individuals who are more “health conscious.” The Defendants argue that
`this
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`composition of the jury pool may result in jurors viewing the Defendants in a negative light
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`because the Defendants represent a tobacco company. This argumentis not persuasive.
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`To begin, both sides in this case representthe interests of large and well-known tobacco
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`companies. Even if there was someinherent prejudice from the composition of the jury pool,it is
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`incredibly unlikely that one party would face more prejudice than the other party in this case.
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`Further, the Court is not aware of any evidence orreliable data that indicates that vaccination
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`status is an indicator for a particular viewpoint or belief. See United States v. Moses, 2021 U.S.
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`Dist. LEXIS 195735 at *8 (W.D.N.Y. October 12, 2021) (holding that “the unvaccinated are not
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`a distinctive group for fair cross-section purposes” in a criminal proceeding); see also United
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`States v. Elias, 2022 U.S. Dist. LEXIS 7002 at *13 (E.D.N.Y. January 13, 2022) (“Noris there
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`information sufficient to persuade the court that vaccination status is a proxy for a characteristic
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`of a distinctive group...”) Like the district court in Moses, this Court finds that it is proper to
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`exclude unvaccinated jurors in accordance with 28 USC §1866(c)(2). Jd. at *10 (unvaccinated
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`jurors are likely to “disrupt the proceedings”). The exclusion of unvaccinated jurors will prevent
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`delay to the trial from a potential outbreak of the virus and decrease the likelihood of individual
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`infection from the coronavirus. /d. at *11 (“The safety of other jurors, members of the public,
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`andits staff are of course of the utmost importance to the Court.”)
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`Forthis reason, the Defendants’ objection is OVERRULED.
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`It is so ORDERED.
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`June 3, 2022
`Alexandria, Virginia
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`NN
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`/s/
`Leonie M. Brinkema
`United States District Judge
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`,
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`Jucyt ' Gre"I
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