Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 1 of 9 PageID# 33067
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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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
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`OPPOSITION TO MOTION TO EXCLUDE IMPROPER TESTIMONY BY JAMES
`FIGLAR PREVIOUSLY EXCLUDED BY THE COURT
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 2 of 9 PageID# 33068
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`TABLE OF CONTENTS
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`INTRODUCTION ......................................................................................................................... 1
`BACKGROUND ........................................................................................................................... 2
`ARGUMENT ................................................................................................................................. 3
`I.
`REYNOLDS AND DR. FIGLAR WILL ABIDE BY THE COURT’S
`RULING ON PHILIP MORRIS’S MIL 7 ............................................................. 3
`IT IS PHILIP MORRIS THAT HAS ATTEMPTED TO ELICIT
`TESTIMONY EXCLUDED BY THE COURT’S ORDER .................................. 3
`PHILIP MORRIS’S ATTEMPTS TO EXPAND THE COURT’S
`RULING ON ITS MIL 7 ARE IMPROPER ......................................................... 4
`CONCLUSION .............................................................................................................................. 5
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`III.
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`II.
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`-i-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 3 of 9 PageID# 33069
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`INTRODUCTION
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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 is not offering Dr. Figlar as an expert witness in this case.
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`Dr. Figlar does possess technical knowledge—he was head of Research and Development at RAI,
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`holds a Ph.D in Chemistry, and was responsible for evaluating new technologies like the accused
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`VUSE products. On April 7, 2022, the Court ordered, in resolving Philip Morris’s motion in limine
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`7, that “Dr. Figlar can offer testimony on the relevant technology to an extent that there is an
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`established foundation for that testimony and the testimony is based on Dr. Figlar’s personal
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`knowledge or perceptions from his work and experience at” Reynolds. Dkt. 1184 at 12. The Court
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`further ordered that Dr. Figlar may not testify on three topics: “theories of infringement, theories
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`of invalidity, or the patent claims.” Id. Those rulings are not in dispute, and Reynolds will not
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`draw testimony from Dr. Figlar on those three topics.
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`Reynolds repeatedly made that clear to Philip Morris’s counsel, both by telephone and
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`writing: “we confirm we will not elicit testimony from Dr. Figlar regarding theories of
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`infringement, theories of invalidity, or the patent claims, consistent with the Court’s ruling on
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`PM’s MIL 7.” Ex. 1, June 6, 2022 Michalik email to counsel. The Court’s order does indeed
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`“settle the issue” that Philip Morris has raised (Dkt. 1287 at 2), which is an unnecessary objection
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`to testimony that Philip Morris itself elicited from Dr. Figlar at his deposition. Indeed, both
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`pending motions before the Court related to Dr. Figlar’s deposition testimony concern testimony
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`that Philip Morris prompted, despite the Court’s orders. Philip Morris’s remaining arguments seek
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`to relitigate their motion in limine 7 to prohibit any of Dr. Figlar’s testimony on details of the
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`components or functionality of the accused products, but that testimony is plainly permitted under
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`the Court’s Order of April 7, 2022 (Dkt. 1184 at 12). Philip Morris’s motion should be denied.
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`-1-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 4 of 9 PageID# 33070
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`BACKGROUND
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`Reynolds offered an update deposition of Dr. Figlar to give Philip Morris an opportunity
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`to inquire about information Dr. Figlar learned from discussions with former colleagues after his
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`two original depositions.1 Reynolds’s counsel explained that Dr. Figlar discussed regulatory
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`matters with those colleagues following the recent PMTA authorization of Reynolds’s Ciro and
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`Vibe products. May 20, 2022 Hr’g Tr. at 17:19-21. In denying Philip Morris’s request for a
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`written proffer of Dr. Figlar’s testimony, Judge O’Grady ruled that Philip Morris should take Dr.
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`Figlar’s deposition, as offered by Reynolds, and explained Judge O’Grady’s expectation for the
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`deposition: “What I expect your deposition will be is, ‘What have you learned from these
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`gentlemen that you believe will affect your testimony as you prepare to testify in this case?” (May
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`20, 2022 Hr’g Tr. 25:10-26:4.)2
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`Judge O’Grady had previously ruled that “Dr. Figlar can offer testimony on the relevant
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`technology to the extent that there is an established foundation for that testimony and the testimony
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`is based on Dr. Figlar’s personal knowledge or perceptions from his work and experience at”
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`Reynolds. Dkt. 1184 at 12. However, Dr. Figlar may not testify on “theories of infringement,
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`1 Philip Morris’s assertion that the Judge O’Grady “sua sponte directed Reynolds to submit
`him to a deposition by Philip Morris prior to trial” “[s]o that Philip Morris and the Court could
`police” his testimony is incorrect—Reynolds voluntarily offered an update deposition of Dr.
`Figlar. See Dkt. 1273-3 at 2 (April 28, 2022 email of J. Michalik to counsel); May 20, 2022 Hr’g
`Tr. 21:11-13 (Philip Morris counsel acknowledging that Reynolds “offer[ed] a deposition”).
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`2 At the same hearing, the parties addressed Reynolds’s production of documents “based
`on the submission that Reynolds made to the FDA” that Reynolds “ha[s] no intention of using”
`but nonetheless, “out of an abundance of caution,” produced in this litigation. Ex. 2, May 20, 2022
`Hr’g Tr. 13:1-19. Philip Morris’s counsel confirmed that “I don’t think we have any dispute” as
`to that production of documents, and Judge O’Grady confirmed that “I think we’re in good shape
`there.” Id. at 19:1-12. Philip Morris’s attempt to re-inject this settled issue in its brief (at 2) by
`alluding to “23,000 pages of documents” is misleading, misguided, and unrelated to its objections
`to Dr. Figlar’s deposition testimony, and should be disregarded.
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`-2-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 5 of 9 PageID# 33071
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`theories of invalidity, or the patent claims.” Dkt. 1184 at 12. Judge O’Grady did not alter these
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`rulings at the May 20, 2022 Motions Hearing.
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`ARGUMENT
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`I.
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`REYNOLDS AND DR. FIGLAR WILL ABIDE BY THE COURT’S RULING ON
`PHILIP MORRIS’S MIL 7
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`As Reynolds repeatedly explained to Philip Morris when attempting to resolve this dispute
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`without burdening the Court, Reynolds will not elicit testimony from Dr. Figlar regarding theories
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`of infringement, theories of invalidity, or the patent claims, consistent with the Court’s ruling on
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`Philip Morris’s MIL 7. That should be the end of this matter.
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`II.
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`IT IS PHILIP MORRIS THAT HAS ATTEMPTED TO ELICIT TESTIMONY
`EXCLUDED BY THE COURT’S ORDER
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`As with its own conduct necessitating Reynolds’s pending motion in limine to exclude
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`Philip Morris’s newly added references to menthol products and allegations against Reynolds in
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`product-liability cases (see Dkt. 1273), Philip Morris’s complaint is again self-inflicted. Philip
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`Morris repeatedly asked Dr. Figlar questions intended to elicit testimony precluded by the Court’s
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`Order, and Dr. Figlar responded appropriately each time:3
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` Are you intending -- sorry. Are you intending to offer an opinion that the accused
`products do not practice a particular limitation in any of the patents?
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`I’ll be prepared to answer questions that are asked of me around the technology in
`the patents and the technology that are in our products. I’m prepared to do that,
`and that’s what I will do. . . . I can only offer up my opinion and what I know about
`the technology and the technologies that are in – that are in our products.
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`You’re not going to offer any opinions on noninfringement, correct?
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`Not unless you ask me.
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`Q:
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`A:
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`Q:
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`A:
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` .
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` . . .
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`3 Reynolds’s counsel objected to each of these questions, but those objections are omitted
`for ease of reading the exchange.
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`-3-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 6 of 9 PageID# 33072
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`Q:
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`. . . . So are you prepared to come to trial and offer an opinion about whether or
`not Reynolds infringes or doesn’t infringe the asserted patents?
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`A:
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`Q:
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`A:
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`Q: Are you going to offer any opinions on whether the patents are invalid?
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`A:
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`Are you asking me that question, or –
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`Yeah.
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`I mean – again, if you ask me that question, I will answer the question . . . .
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`Again, I will answer questions based on the questions that are asked to me. . . . I
`have opinions, but I can’t just jump on the stand and give a lecture, right? I mean,
`I have to ask the questions that are – that are asked of me, and I will do that.
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`Ex. 2 at 21:16-24:17. As these exchanges show, it is Philip Morris’s counsel who repeatedly, and
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`over objection, attempted to draw testimony from Dr. Figlar precluded by the Court’s Order
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`prohibiting testimony on “theories of infringement, theories of invalidity, or the patent claims.”
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`Dkt. 1184 at 12.
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`Philip Morris emphasizes two of Dr. Figlar’s answers to its counsel’s questions asking Dr.
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`Figlar to predict his direct examination testimony. Dkt. 1287 at 3. That is a red herring. Any
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`direct examination would necessarily be confined to Reynolds’s counsel’s questions, and Reynolds
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`has no intention of eliciting testimony that would run afoul of the Court’s rulings. Again, the only
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`source of questions outside the scope of those rulings has been Philip Morris. And Philip Morris
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`will not be conducting Dr. Figlar’s direct examination.
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`III.
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`PHILIP MORRIS’S ATTEMPTS TO EXPAND THE COURT’S RULING ON ITS
`MIL 7 ARE IMPROPER
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`In its brief, and in exchanges with Reynolds’s counsel, Philip Morris presses a new
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`limitation on Dr. Figlar’s testimony. Philip Morris requests that the Court preclude Dr. Figlar from
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`testifying regarding “any details about the components or functionality of the accused products.”
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`Dkt. 1287 at 4. This testimony is plainly permitted under Judge O’Grady’s ruling on Philip
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`-4-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 7 of 9 PageID# 33073
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`Morris’s ruling on MIL 7, which is law of the case: “Dr. Figlar can offer testimony on the relevant
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`technology to the extent that there is an established foundation for that testimony and the testimony
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`is based on Dr. Figlar’s personal knowledge or perceptions from his work and experience at”
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`Reynolds. Dkt. 1184 at 12. That work and experience included evaluating new technologies, such
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`as the accused VUSE products in this case.
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`Philip Morris now presses a new angle, suggesting that Dr. Figlar cannot testify to the
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`components or functionality of the accused products because he supposedly “lacks personal
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`knowledge” about such topics. Dkt. 1287 at 4. Dr. Figlar already explained to Philip Morris’s
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`counsel that—consistent with the Court’s Order—he will not be testifying in detail about the
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`accused products’ “individual pieces and parts.” Dkt. 1287-1 at 137:8. That is for Reynolds’s
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`experts. But Dr. Figlar’s observations about the accused products, based on his extensive
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`experience with the relevant technology, are indisputably permissible under Judge O’Grady’s
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`Order, and Philip Morris can contemporaneously raise any foundation-based objection to that
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`testimony at trial. Philip Morris’s attempt to circumvent the law of the case on Dr. Figlar’s
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`testimony should be rejected.
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`Reynolds respectfully requests that the Court deny Philip Morris’s motion.
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`CONCLUSION
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`-5-
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`Case 1:20-cv-00393-LO-TCB Document 1295 Filed 06/08/22 Page 8 of 9 PageID# 33074
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`Dated: June 8, 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
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`
`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
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`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 1295 Filed 06/08/22 Page 9 of 9 PageID# 33075
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 8th 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
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`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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