Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 1 of 13 PageID# 32800
`
`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
`
`
`MEMORANDUM IN SUPPORT OF REYNOLDS’S MOTION IN LIMINE TO
`EXCLUDE NEWLY ADDED REFERENCES TO MENTHOL PRODUCTS AND
`ALLEGATIONS AGAINST REYNOLDS IN PRODUCT-LIABILITY CASES
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`
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`

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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 2 of 13 PageID# 32801
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`TABLE OF CONTENTS
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`Page
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`TABLE OF AUTHORITIES ......................................................................................................... ii
`INTRODUCTION ......................................................................................................................... 1
`BACKGROUND ........................................................................................................................... 2
`LEGAL STANDARD .................................................................................................................... 4
`ARGUMENT ................................................................................................................................. 5
`I.
`REFERENCES TO ALLEGED RACIAL TARGETING, YOUTH
`MARKETING, AND PRODUCTS-LIABILITY ALLEGATIONS ARE
`INADMISSIBLE UNDER RULES 401 AND 403 .............................................. 5
`ANY ARGUMENT CONNECTED TO PMTA AUTHORIZATION OF
`FLAVORED OR MENTHOL PRODUCTS IS ENTIRELY
`SPECULATIVE ..................................................................................................... 7
`CONCLUSION .............................................................................................................................. 8
`
`II.
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`-i-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 3 of 13 PageID# 32802
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`
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`
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`CASES
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`TABLE OF AUTHORITIES
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`Page
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`Jinro Am. Inc. v. Secure Invs., Inc.,
`266 F.3d 993 (9th Cir. 2001) .....................................................................................................6
`
`Scalia v. Med. Staffing of Am., LLC,
`No. 2:18CV226, 2020 WL 2832491 (E.D. Va. Mar. 18, 2020) ................................................4
`
`United States v. DesAnges,
`921 F. Supp. 349 (W.D. Va. 1996) ............................................................................................6
`
`United States v. Socony-Vacuum Oil Co., Inc.,
`310 U.S. 150 (1940) ...................................................................................................................6
`
`United States v. Williams,
`445 F.3d 724 (4th Cir. 2006) .....................................................................................................6
`
`OTHER AUTHORITIES
`
`Fed. R. Evid. 401 .............................................................................................................................4
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`Fed. R. Evid. 403 .........................................................................................................................4, 6
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`Fed. R. Civ. P. 30(b)(6)....................................................................................................................3
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`-ii-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 4 of 13 PageID# 32803
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`
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`INTRODUCTION
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`Reynolds respectfully moves the Court for an order excluding all reference and argument
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`concerning menthol products, youth marketing, and allegations against Reynolds in unrelated
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`product-liability cases. At Dr. James Figlar’s update 30(b)(6) deposition on June 3, 2022,
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`PM/Altria’s counsel pursued irrelevant and inflammatory lines of questioning over continued
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`objections, including:
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`• “Does Reynolds market menthol products to African-Americans?”
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`• “Has Reynolds ever been accused of targeting African-Americans with menthol
`tobacco products?”
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`• “Historically are you aware of any targeted marketing of menthol products to
`African-Americans by Reynolds?”
`
`• “[D]id Reynolds determine that youths are more likely to use menthol products than
`non-menthol products?”
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`• “Did Reynolds … reach any conclusions about … whether youth are more likely to
`use menthol than regular tobacco products?”
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`• “In those product liability cases [where Dr. Figlar previously testified], did any of
`those involve flavored cigarettes?”
`
`(Ex. 1, Figlar June 6, 2022 Dep. Tr., at 39:17-19, 42:2-6, 46:13-14, 42:18-21, 47:12-14, 52:15-16.)
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`PM/Altria also attempted to question Dr. Figlar about the speculative topic of possible FDA actions
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`regarding flavored tobacco products. (See id. 34:12-13, 35:10-11.) Not only were these questions
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`beyond the scope of the topics for Dr. Figlar’s update deposition, they are blatantly irrelevant to
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`any issue in this case, racially inflammatory, and directed to topics excluded by prior rulings of
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`the Court. (See Dkt. 1184-1 [MIL Order] at 2 (excluding “[t]estimony regarding a ‘youth smoking
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`epidemic’ or the targeting of electronic cigarettes to young people); id. at 11 (“The flavor of the
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`tobacco product is not related to any of the patented technology.”); id. at 1, 3 (excluding expert
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`testimony “as to whether a device will or will not be granted FDA authorization”).)
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`-1-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 5 of 13 PageID# 32804
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`
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`BACKGROUND
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`Dr. James Figlar is Reynolds’s corporate representative and 30(b)(6) witness, and is
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`expected to testify at trial. Reynolds offered an update deposition of Dr. Figlar to give PM/Altria
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`an opportunity to inquire about information Dr. Figlar learned from discussions with former
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`colleagues after his original depositions. In denying PM/Altria’s request for a written proffer of
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`Dr. Figlar’s testimony, Judge O’Grady ruled that PM/Altria should take his deposition, as offered
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`by Reynolds, and explained his expectation for the deposition: “What I expect your deposition will
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`be is, ‘What have you learned from these gentlemen that you believe will affect your testimony as
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`you prepare to testify in this case?” (Ex. 2, May 20, 2022 Hr’g Tr. 25:10-26:4.)
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`The questions by PM/Altria’s counsel at the update deposition (Dr. Figlar’s third deposition
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`in this case) did not conform to Judge O’Grady’s stated expectation. PM/Altria’s counsel
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`extensively questioned Dr. Figlar about irrelevant and inflammatory topics, including race- and
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`class-based questions about the use of menthol products. In addition to the questions quoted above,
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`PM/Altria’s counsel asked: “[D]id Reynolds reach any conclusions about whether any particular
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`class of people is more likely to use menthol than regular tobacco products?” (Ex. 1 at 42:18-21.)
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`“[A]re you aware of any targeted advertising of menthol products to African-Americans by
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`Reynolds?” (Ex. 1 at 47:2-4.) PM/Altria’s counsel also questioned Dr. Figlar about the allegations
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`against Reynolds in unrelated product-liability cases: “[W]hat were the allegations against
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`Reynolds in those product liability cases?” (Ex. 1 at 146:15-16.) “If you had to summarize for the
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`jury in this case what the allegations were in the product liability cases that you testified in, what
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`would you tell them?” (Ex. 1 at 147:21-48:2.)1
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`1 This line of questioning came as a surprise to Reynolds, given that Plaintiff Philip Morris
`USA was also a defendant in “the vast majority” of the product-liability cases that PM/Altria asked
`Dr. Figlar about, Philip Morris USA was subject to “exactly the same allegations” as “all the
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`-2-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 6 of 13 PageID# 32805
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`Reynolds’s counsel objected to each of these questions on the record. After nearly an hour
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`of these irrelevant questions, all of which Dr. Figlar answered, Reynolds’s counsel again objected
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`and informed PM/Altria’s counsel that “[w]e are so far afield from the topics that Dr. Figlar is
`
`going to testify at this trial, that he’s been designated as a 30(b)(6) topic on, that are even relevant
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`at all to this litigation,” and attempted to refocus the deposition on “the conversations he had with
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`his colleagues or reasonable follow-ups about those conversations,” and indeed “urge[d]”
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`PM/Altria’s counsel to “focus on the topics that are relevant to this deposition today.” (Ex. 1 at
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`47:15-48:11.)2 Notwithstanding this request, PMI/Altria continued to ask Dr. Figlar questions
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`outside the scope of the topics Judge O’Grady identified.
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`After Reynolds’s counsel again objected, PM/Altria’s counsel then threatened Reynolds’s
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`counsel:
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`• “[Y]our long, ridiculous objections are tiresome.” (Ex. 1 at 67:19-20.)
`
`• “So let’s just cut the crap and get to the deposition and be done with this.” (Ex. 1
`at 68:11-13.)
`
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`tobacco companies” in those cases, and Philip Morris USA offered a witness to testify “[j]ust about
`every time” in those cases. (See Ex. 1 at 165:1-5.)
`
`2 All of these questions were unrelated to the subject matter of this update 30(b)(6)
`deposition. Reynolds voluntarily offered this supplemental deposition to PM/Altria because as
`part of Dr. Figlar’s preparations to testify at trial, he spoke to several current Reynolds executives
`in order to obtain updated information on Rule 30(b)(6) topics for which he was designated. (Ex.
`3 [Michalik email to counsel, Apr. 28, 2022].) Reynolds’s counsel informed PM/Altria’s counsel
`of this fact and that those “conversations have not substantively changed his prior testimony on
`behalf of the company,” and offered a supplemental deposition on the subject matter of those
`conversations. (Id.) Reynolds’s counsel further informed PM/Altria’s counsel that those
`conversations covered “the VUSE Solo clearance as well as the status of FDA’s review of
`Reynolds’s other pending PMTAs,” “financial information related to the VUSE products,” and “a
`vaccine project with which he was involved in the research and development.” (Ex. 2 [Michalik
`email to Sanford, May 2, 2022].) The Rule 30(b)(6) topic relevant to the trial and to which his
`conversations related, Reynolds explained, was Topic 22. (Id.) Topic 22 is “[t]he facts and
`circumstances related to [Reynolds’s] planned or actual submission of [Reynolds] PMTAs for any
`of the [Reynolds] Accused Products.”
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`-3-
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`• “I already saw you get hammered in front of Judge O’Grady once, and I’d be happy
`to take you across the street and watch Judge Brinkema do it.” (Ex. 1 at 67:21-
`68:3.)
`
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`Given PM/Altria’s tone and tenor at the deposition, Reynolds is concerned that PM/Altria
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`will pursue the same irrelevant and prejudicial line of questioning at trial, in an attempt to
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`intimidate Dr. Figlar (or other witnesses) and associate Dr. Figlar (and Reynolds) with alleged
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`targeted marketing of menthol products and other product-liability allegations not at issue in this
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`case.3 The parties met and conferred on June 5 in an attempt to resolve these issues. The parties
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`have not yet been able to reach agreement.
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`LEGAL STANDARD
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`“The purpose of a motion in limine is to allow a court to rule on evidentiary issues in
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`advance of trial in order to avoid delay, ensure an even-handed and expeditious trial, and focus the
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`issues the jury will consider.” Scalia v. Med. Staffing of Am., LLC, No. 2:18CV226, 2020 WL
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`2832491, at *1 (E.D. Va. Mar. 18, 2020) (citation omitted). Evidence is relevant if “it has any
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`tendency to make a fact more or less probable than it would be without the evidence” and “the fact
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`is of consequence in determining the action.” Fed. R. Evid. 401. But “[t]he court may exclude
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`relevant evidence if its probative value is substantially outweighed by a danger of … unfair
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`prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
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`presenting cumulative evidence.” Fed. R. Evid. 403.
`
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`3 Reynolds was eventually forced to instruct Dr. Figlar not to answer questions “unless it’s
`relevant in some way to his conversations [with Reynolds executives], which is why we offered
`him up for this deposition.” (Ex. 1 at 65:21-66:2.) PM/Altria’s counsel rephrased the question at
`issue, Dr. Figlar answered, and the deposition proceeded.
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`-4-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 8 of 13 PageID# 32807
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`
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`I.
`
`ARGUMENT
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`REFERENCES TO ALLEGED RACIAL TARGETING, YOUTH MARKETING,
`AND PRODUCTS-LIABILITY ALLEGATIONS ARE INADMISSIBLE UNDER
`RULES 401 AND 403
`
`The Court should preclude PM/Altria from making any reference to alleged targeting of
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`African-American smokers, youth marketing, and allegations against Reynolds in product-liability
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`cases because any such reference is irrelevant, unfairly prejudicial to Reynolds, and risks confusing
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`the jury and wasting time. PM/Altria’s line of questioning at Dr. Figlar’s 30(b)(6) deposition (and
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`its counsel’s reaction to Reynolds’s objections to those questions) makes clear that there is
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`significant risk that PM/Altria will attempt to inject such issues at trial both to inflame the jury
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`against Reynolds and harass Reynolds’s witnesses.
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`First, this is a patent case. The only issues that the jury will be called upon to decide are
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`whether Reynolds’s VUSE products infringe any of PM/Altria’s asserted patents, whether those
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`patents are invalid, and whether any damages are warranted. There is no colorable argument that
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`evidence or attorney argument related to allegations of racial or youth marketing of menthol
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`combustible cigarettes or allegations raised by injured plaintiffs in products-liability actions are
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`relevant to the patents issues to be decided in this case.
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`Second, this Court has already excluded reference to irrelevant topics like the questions
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`PM/Altria pressed at Dr. Figlar’s June 3 deposition. The Court already excluded “any irrelevant
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`testimony” on “the flavor of the tobacco product,” because it “is not related to any of the patented
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`technology.” (Dkt. 1184-1 at 11, 13.) The Court also excluded “[t]estimony that RAI somehow
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`targets their products to young people or that RAI’s products are tied to the prevalence of electronic
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`cigarette use by young people.” (Dkt. 1184-1 at 1.) Such statements, the Court reasoned, do not
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`“connect[] to the patented technology.” (Id.) This Court should similarly exclude reference to
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`menthol products and product-liability allegations because they do not relate to the asserted
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`-5-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 9 of 13 PageID# 32808
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`patents. See Ex. 3, June 3, 2022 Hr’g Tr. 4:23-24 (the Court explaining that “as I’ve said, I’m not
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`going to upset any of [Judge O’Grady’s] rulings” because that is “the law of the case, in my view”).
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`Third, allowing PM/Altria to raise issues of menthol products, the alleged marketing of
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`those products to certain groups (including based on race or class), and product-liability allegations
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`against Reynolds will unfairly prejudice Reynolds by inflaming the jury. “Evidence is unfairly
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`prejudicial and thus should be excluded under Rule 403 ‘when there is a genuine risk that the
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`emotions of a jury will be excited to irrational behavior, and … this risk is disproportionate to the
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`probative value of the offered evidence.’” United States v. Williams, 445 F.3d 724, 730 (4th Cir.
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`2006) (citation omitted). Evidence related to race, ethnicity, or class runs a particular risk of
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`inflaming the jury. See Jinro Am. Inc. v. Secure Invs., Inc., 266 F.3d 993, 1006-8 (9th Cir. 2001)
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`(“Our sister circuits, too, have condemned the inappropriate injection of race or ethnicity into a
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`trial.”); cf. United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 239 (1940) (noting that
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`“appeals to class prejudice are highly improper and cannot be condoned and trial courts should
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`ever be alert to prevent them”). The Court recognized this when it made clear that “[a]ny argument
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`that invokes an improper racial or nationalistic animus will not be tolerated.” (Dkt. 1184-1 at 7.)
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`PM/Altria’s questioning of Dr. Figlar about alleged race-based “targeted marketing,” and whether
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`a “particular class group” uses menthol products carries the same danger and should be excluded.
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`Similarly, reference to irrelevant product-liability allegations against Reynolds risks
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`inviting the jury to punish Reynolds for those allegations rather than dispassionately assess the
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`evidence in this case. See United States v. DesAnges, 921 F. Supp. 349, 359 (W.D. Va. 1996)
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`(“Evidence that tends to inflame the jury or lead to decisions based on emotion carries a greater
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`danger of unfair prejudice.”). That is particularly true given the seriousness of the allegations by
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`injured plaintiffs and representatives of decedents in those cases. As Dr. Figlar explained:
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`-6-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 10 of 13 PageID# 32809
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`“[T]here’s a number of accusations made … including defective product [and] conspiracy.” (Ex.
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`1 at 147:11-17.) Those accusations included that “people were injured by using cigarette products,
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`that the companies tried to conceal information about the health aspects of cigarette smoking, [and]
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`that the product was defective.” (Ex. 1 at 149:1-5.)
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`Fourth, allowing PM/Altria to present argument or evidence on these topics risks confusing
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`the jury and wasting the jury’s time—notwithstanding the Court’s direction that the parties “ought
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`to at this point really start thinking very, very efficiently” about trial because the number of
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`asserted claims presents “a lot of material for a jury to absorbed.” (Ex. 4, June 2, 2022
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`Teleconference Hr’g at 16:22-25; see id. at 16:25-26 (“[I]f jurors get confused, there are problems
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`with that.”).) Permitting PM/Altria to inject these irrelevant and inflammatory issues into the trial
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`will force Reynolds to respond, thus creating a mini-trial on questions that are not even arguably
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`collateral to this trial. And in order to fairly respond, Reynolds would have to have the opportunity
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`to show that the very same allegations have been raised against PM/Altria. (See, e.g., Ex. 1, June
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`3, 2022 Dep. Tr. 49:17-21 (“I’m pretty sure Reynolds and Altria and Lorillard and all the historical
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`companies have been accused [of] target-marketing . . . .”); id. at 49:1-4 (“My understanding, or
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`at least the accusation certainly is, all the companies have been accused of target-marketing of a
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`variety of different groups.”).)
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`There is no conceivable relevance of these issues to the claims and defenses in this case.
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`Reynolds respectfully submits that the Court should bar PM/Altria from raising these issues in this
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`patent case about e-cigarettes.
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`II.
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`ANY ARGUMENT CONNECTED TO PMTA AUTHORIZATION OF FLAVORED
`OR MENTHOL PRODUCTS IS ENTIRELY SPECULATIVE
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`This Court should also exclude any argument connected to PMTA authorization of menthol
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`products as entirely speculative. At the June 3 deposition, PM/Altria also asked Dr. Figlar “why
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 11 of 13 PageID# 32810
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`the menthol flavors are still in review for the Vuse PMTAs,” presumably referring to Reynolds’s
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`pending applications for premarket tobacco-product authorization for menthol for its VUSE
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`products. (Ex. 1 at 34:12-13.) PM/Altria further asked “what’s your understanding of what the
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`FDA’s concern is about menthol products.” (Ex. 1 at 35:10-11.) These questions, which asked
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`Dr. Figlar to opine on the FDA’s reasons or “concerns” for continuing to review the VUSE PMTAs
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`for menthol, invite speculation. This Court has already excluded testimony about “whether a
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`device will or will not be granted FDA authorization.” (Dkt. 1184-1 at 13.) Any argument about
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`why FDA continues to review the VUSE PMTAs for menthol products would similarly be
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`speculative, and should be excluded for this additional reason.
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`CONCLUSION
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`Reynolds respectfully requests that the Court grant this motion and enter an order barring
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`PM/Altria from introducing at trial any evidence, testimony, or argument relating to alleged racial
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`targeting and youth marketing, prospective FDA action regarding menthol or flavored tobacco
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`products, and allegations against Reynolds in product-liability cases, and for such other relief as
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`this Court deems just and proper.
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`-8-
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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 12 of 13 PageID# 32811
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`Dated: June 6, 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,
`
`
`
`
`
` /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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`Case 1:20-cv-00393-LO-TCB Document 1273 Filed 06/06/22 Page 13 of 13 PageID# 32812
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 6th day of June, 2022, a true and correct copy of the foregoing
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`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
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`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
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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