Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 1 of 10 PageID# 32869
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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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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`v.
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`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
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`PHILIP MORRIS’ RESPONSE TO REYNOLDS’ MOTION IN LIMINE REGARDING
`MENTHOL PRODUCTS AND ALLEGATIONS AGAINST REYNOLDS IN PRODUCT-
`LIABILITY CASES
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`

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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 2 of 10 PageID# 32870
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`Dr. Figlar was re-deposed on Friday June 3 on Judge O’Grady’s order because in the weeks
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`preceding trial, Reynolds produced 23,000 pages of documents and disclosed that the retired Dr.
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`Figlar had conducted a series of “conversations” with Reynolds employees1 on five “topics” that
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`he was purportedly going to testify about at trial. Judge O’Grady ruled that Dr. Figlar would not
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`be permitted to either (i) be a mouthpiece for hearsay from others, or (ii) testify about any matters
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`on which he lacked personal knowledge. May 20, 2022 Hearing Tr. at 22:19-23:6, 25:10-15; Dkt.
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`1184 at 12 (Court limiting Dr. Figlar to only testimony “based on Dr. Figlar’s personal knowledge
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`or perceptions”). So that Philip Morris and the Court could police the new information Dr. Figlar
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`obtained about which he could not testify, Judge O’Grady sua sponte directed Reynolds to submit
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`him to a deposition by Philip Morris prior to trial. May 20, 2022 Hearing Tr. at 25:10-15 (Court
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`ordering deposition in lieu of Plaintiffs’ request for proffer).
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`In ordering the deposition, Judge O’Grady noted to Reynolds that “the time to have Dr.
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`Figlar speak to these people was before he was deposed.” Id. at 15:10-12. At the same hearing,
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`Judge O’Grady rejected Reynolds’ effort to inject irrelevant testimony through Dr. Figlar related
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`to Reynolds’ purported work of trying to grow COVID-19 vaccines in the tobacco plants they use
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`to make cigarettes.2 Judge O’Grady precluded them from doing this, stating “we’re far afield. I’m
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`not going to allow COVID testimony,” but Reynolds’ late disclosure of its intention to elicit
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`facially irrelevant testimony provides important context for the scope of Dr. Figlar’s June 3
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`discovery deposition, about which Reynolds complains. 5/20/2022 Hearing Tr. 50:23-24.
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`The court-ordered deposition covered topics belatedly disclosed by Reynolds as purported
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`1 Not one of the five employees was on Reynolds’ trial witness list or even listed on its Rule 26
`initial disclosures (including supplementations).
`2 This is particularly hard to credit in light of Reynolds’ objections to the Court’s requirement for
`vaccinated jurors, followed by Reynolds’ June 3 effort to delay the trial because of COVID
`concerns.
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`1
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 3 of 10 PageID# 32871
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`topics for Dr. Figlar’s trial testimony, including the marketing and sales of the accused VUSE
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`products and the status of VUSE PMTAs before the FDA, which specifically include requests
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`related to menthol. Dkt. 1273-3. Reynolds is the market leader in sales of combustible menthol
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`tobacco products, and Dr. Figlar has testified in over 100 product liability cases. Thus, to prepare
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`for Dr. Figlar’s cross examination, Philip Morris explored the specified topics, including Dr.
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`Figlar’s prior testifying experience so Philip Morris would be prepared to rebut a playbook
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`commonly used by Reynolds in other trials where Reynolds seeks to present itself in a favorable,
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`but inaccurate light.
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`After the deposition, Reynolds threatened to file a motion to preclude Philip Morris from
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`raising these topics at trial. Ex. 1 at 3 (6/5/2022 Email from J. Michalik). In response, Philip
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`Morris represented unequivocally that it did not intend to affirmatively raise any of these issues
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`and only sought the testimony for cross examination if Reynolds opened the door during Dr.
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`Figlar’s direct examination. Philip Morris proposed a stipulation stating that neither party would
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`raise these issues. Ex. 2. Reynolds rejected Philip Morris’ even-handed proposal and filed this
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`motion. Ex. 1 at 1. Disappointingly, Reynolds’ briefing omits the Philip Morris proposed
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`stipulation and fails to inform the Court that Philip Morris proposed a stipulation barring both sides
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`from raising the topics about which Reynolds complains.
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`Of course, it would be unfair to preclude only one side from eliciting testimony on these
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`topics, which plainly have no place in this trial. But the preclusion should go both ways.
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`Therefore, Philip Morris respectfully requests that the Court enter the stipulation proposed by
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`Philip Morris yesterday, precluding both parties from offering testimony on these topics at Ex. 2.
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`Reynolds’ remaining arguments lack merit and are addressed below.
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`2
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 4 of 10 PageID# 32872
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`A.
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`Philip Morris’ Questioning Of Dr. Figlar Falls Squarely Within The Topics
`For Which He Was Designated
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`The menthol related issues that Reynolds complains about fall within the scope of the
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`topics that Judge O’Grady ordered Dr. Figlar be deposed on. Reynolds expressly identified “the
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`status of FDA’s review of Reynolds’s other pending PMTAs” as one of the topics Dr. Figlar had
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`updates on. Dkt. 1273-3 at 1. And Philip Morris learned during the deposition that of the recent
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`PMTAs, Reynolds’ VUSE PMTAs were not authorized for menthol and other flavors. Ex. 3 at
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`109:21-110:20. This is important. For context, Reynolds sells the best-selling menthol cigarette,
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`Newport, and Dr. Figlar has testified in product liability cases involving menthol products. See,
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`e.g., Izzarelli v. R.J. Reynold Tobacco Co, 806 F. Supp. 2d 516 (D. Conn. 2011). Moreover, news
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`reports confirm that Reynolds has engaged in significant efforts to improve its public standing
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`related to menthol cigarettes in the African American Community:
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`Reynolds American’s multibillion-dollar market is under threat. About 150 cities
`and counties have placed some sort of restriction on the sale of menthol cigarettes,
`most issuing an outright ban. … The company has hired a team of Black lobbyists
`and consultants … and sponsored the organization led by civil rights activist and
`MSNBC political show host the Rev. Al Sharpton… Reynolds American for years
`has enlisted prominent Black personalities in its lobbying efforts. This investigation
`has uncovered new details about how individuals and organizations working on
`Reynolds’ behalf have failed to properly declare their links to the company.
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`See, e.g., Ex. 4 at 4. Consequently, to the extent Reynolds tried to improperly elicit
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`testimony related to its history with menthol tobacco products and the Court permitted such
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`testimony over objection, Philip Morris needed to be prepared to cross examine Dr. Figlar
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`on that topic.
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`As for the youth menthol issue, Reynolds claims that it only targets adults who already use
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`3
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 5 of 10 PageID# 32873
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`tobacco products with the accused vapor products and has publicly blamed third-party JUUL3 for
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`the “teen vaping crisis.” (See, e.g., Ex. 5 (citing Dr. Figlar)). Reynolds has done this despite the
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`fact that FDA cautioned Reynolds that the sale of flavored products may attract minors.
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`Consequently, to the extent Reynolds tried to elicit testimony that made the jury think, for example,
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`that VUSE products were only sold to adults and third-party JUUL’s products were sold to minors,
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`Philip Morris needed to be prepared to cross examine Reynolds on that false assertion.
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`As for the allegations in the product liability actions, Philip Morris agreed yesterday (in
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`writing) that it would not inquire as to the specific allegations in those cases. Regardless, the
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`deposition inquiry was related to Dr. Figlar’s personal background. Although retired for 18-
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`months, in the years preceding his retirement from Reynolds, Dr. Figlar was essentially a full-time
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`litigation witness, testifying over 100 times, mostly in product liability cases. To the extent
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`Reynolds tried to portray Dr. Figlar as someone other than who he is, Philip Morris would be
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`entitled to cross examine Dr. Figlar on the scope of his pre-retirement responsibilities, including
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`his extensive past testifying experience.
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`Most importantly, and as reflected in the stipulation offered by Philip Morris (Ex. 2) but
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`not provided to the Court by Reynolds, Philip Morris unequivocally told Reynolds that it had no
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`intention of affirmatively raising any of these issues unless Reynolds did, and offered a joint
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`stipulation to that effect. Reynolds refused, preferring to needlessly take up the Court’s valuable
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`time with topics that any lawyer would know are outside the bounds of permissible testimony for
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`3 Testimony about third-party Juul is irrelevant to this case. Dkt. 1184-1. The corporate parent of
`Plaintiff Altria Client Services has a passive minority interest in Juul, but that is not probative of
`any issues or defenses in this trial.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 6 of 10 PageID# 32874
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`either side in a patent trial.4
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`B.
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`Reynolds Grossly Misreads Dr. Figlar’s Deposition
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`Unrelated to the merits, Reynolds cherry picks a few comments from the deposition, trying
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`to paint Philip Morris and its counsel in a bad light. Reynolds ignores – and fails to inform the
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`Court – of the events that led to those comments.
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`• Reynolds’ lawyer objected more than 80 times during a three-hour deposition, with
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`multiple speaking objections spanning over a page of the transcript. Ex. 3 (6/3/2022
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`Figlar Dep. Tr.) at 42:22-44:2, 47:15-48:12, 59:1-3, 65:15-66:15. Counsel for Philip
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`Morris ignored these facially improper speaking objections the vast majority of the
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`time, simply asking the court reporter to please read the question back. Id. at 42:22-
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`44:7; 47:16-48:14.
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`• Counsel for Philip Morris raised the notion of bringing deposition disputes to the Court
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`only after repeated baseless objections where Reynolds’ counsel improperly instructed
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`Dr. Figlar not to answer questions that did not seek privileged information and was not
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`the subject of any limiting Court order. For example:
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`Q. Would you consider the Vuse products in this case successful products?
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`MR. QUINLAN: Object to form. Beyond the scope. Dr. Figlar -- you haven’t
`asked a question that’s relevant to his conversations with the five
`individuals, which is why we offered him up for this deposition, in about
`an hour. So I’m going to start instructing Dr. Figlar not to answer questions
`unless it’s relevant in some way to his conversations, which is why we
`offered him up for this deposition. Dr. Figlar has to leave tomorrow for his
`flight to get here for trial. I’m not going to keep him there until 9:00, 10:00
`at night so you can ask him a bunch of questions you could have asked him
`at his two other depositions. This is a limited deposition that we offered.
`The judge said you could take a limited deposition on the topics of what did
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`4 Philip Morris notes that Reynolds filed its motion three minutes after its email rejecting Philip
`Morris’ proposed joint stipulation, confirming that Reynolds had no intention of resolving the issue
`and just wanted to file a motion.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 7 of 10 PageID# 32875
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`he talk to these five people who he talked to after his deposition from
`Reynolds. So from now on, every question that you ask that’s not even
`tangentially related to that, I'm going to instruct Dr. Figlar not to answer.
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`***
`Q. Why are the [VUSE Products] successful for Reynolds?
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`MR. QUINLAN: Object to form. I instruct Dr. Figlar, don’t answer the question.
`It’s beyond the scope. We’re not going to do this. You’re not going to be
`here all night. So, Dr. Figlar, I instruct you not to answer.
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`***
`Q. You’re not going to answer if the Vuse products are successful?
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`MR. QUINLAN: He’s not going to answer the question because I told him not
`to because we're so far afield of why we offered this deposition.
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`Id. at 65:13-66:15, 69:16-22, 70:9-13. 5
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`But this topic was among those anticipated by Judge O’Grady’s order, including
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`conversations Dr. Figlar had with Mr. Baker about “financial information related to the Vuse
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`products” and Mr. Araya about the “marketing of Vuse products.” Dkt. 1273-3 at 1. And it is
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`now undisputed that prior to Dr. Figlar leaving Reynolds, the VUSE products were not profitable,
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`but that Dr. Figlar learned from his April 22, 2022 conversation with Mr. Baker that the Vuse
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`Products had become profitable in 2021. Ex. 3 (Figlar Dep. Tr.) at 15:15-16:17. Reynolds’
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`instruction not to answer was improper and came after many long speaking objections. Simply
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`put, Reynolds should not be heard to complain when Dr. Figlar was ordered by the Court to be
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`subjected to a pre-trial deposition and then Reynolds’ lawyers intentionally obstructed the Court
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`ordered deposition. This is the very definition of “the pot calling the kettle black.”
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`5 For clarity, Reynolds “offered” Dr. Figlar’s deposition as part of its effort to have him testify at
`trial outside the scope of his personal knowledge on hearsay. Plaintiffs rejected that offer and
`instead asked Judge O’Grady to preclude such testimony. Judge O’Grady agreed, and sua sponte
`ordered that Philip Morris take his deposition in lieu of its request that Reynolds provide a written
`proffer of the information that Dr. Figlar was improperly provided by persons not on Reynolds’
`witness list and never disclosed under Rule 26. Thus, the proper scope of the deposition was based
`on Judge O’Grady’s order, not the Reynolds “offer” that was rejected by Plaintiffs and the Court.
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`6
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 8 of 10 PageID# 32876
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`* * * * *
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`Philip Morris told Reynolds it would not affirmatively raise the topics discussed in
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`Reynolds’ motion absent Reynolds opening the door. To ensure that both parties played by the
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`same rules, Philip Morris offered a fair stipulation that neither party would address these topics.
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`Reynolds refused. Philip Morris respectfully requests that the Court deny Reynolds’ motion and
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`enter the proposed joint stipulation at Ex. 2.
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`Dated: June 7, 2022
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` Respectfully submitted,
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`By: /s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Lawrence J. Gotts (VSB No. 25337)
`lawrence.gotts@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`Jamie Underwood (pro hac vice)
`jamie.underwood@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory J. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Telephone: (415) 391-0600
`Facsimile: (415) 395-8095
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`7
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 9 of 10 PageID# 32877
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`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
`
`Counsel for Plaintiffs Altria Client Services
`LLC, Philip Morris USA Inc., and Philip Morris
`Products S.A.
`
`By: /s/ Elizabeth Stotland Weiswasser
`W. Sutton Ansley (VSB No. 80085)
`sutton.ansley@weil.com
`Robert T. Vlasis III (pro hac vice)
`robert.vlasis@weil.com
`Stephanie Adamakos (pro hac vice)
`stephanie.adamakos@weil.com
`WEIL, GOTSHAL & MANGES LLP
`2001 M Street, NW, Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000; Fax: 202-857-0940
`
`Elizabeth Stotland Weiswasser (pro hac vice)
`elizabeth.weiswasser@weil.com
`Anish R. Desai (pro hac vice)
`anish.desai@weil.com
`WEIL, GOTSHAL & MANGES LLP
`767 5th Avenue
`New York, NY 10153
`Tel: (212) 310-8000; Fax: 212-310-8007
`
`Adrian C. Percer (pro hac vice)
`adrian.percer@weil.com
`WEIL, GOTSHAL & MANGES LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000; Fax: 850-802-3100
`
`Counsel for Plaintiffs Altria Client Services
`LLC and Philip Morris USA Inc.
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`8
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`Case 1:20-cv-00393-LO-TCB Document 1278 Filed 06/07/22 Page 10 of 10 PageID# 32878
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 7th 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/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
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`9
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