Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 1 of 7 PageID# 33096
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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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`REPLY 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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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 2 of 7 PageID# 33097
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`REPLY ARGUMENT
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`No “context” (Dkt. 1278 at 1) is required to understand that the questions asked by Philip
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`Morris’s counsel at the June 3, 2022 update deposition of Dr. James Figlar sought to elicit
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`testimony that is irrelevant, inflammatory, and foreclosed by Judge O’Grady’s prior rulings. This
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`is a patent case. Yet, in its response, Philip Morris continues to assert the right to inquire about
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`such irrelevant matters as “[n]ews reports confirm[ing] that Reynolds has engaged in significant
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`efforts to improve its public standing related to menthol cigarettes in the African American
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`Community.” Id. at 3. And “the fact that FDA cautioned Reynolds that the sale of flavored
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`products may attract minors.” Id. at 4. Those lawyerly glosses on the questions asked by Philip
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`Morris’s counsel during the deposition conceal the true import of those questions, which is to bring
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`before the jury allegations that have nothing to do with patent infringement—such as “targeting
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`African-Americans with menthol tobacco products.” Dkt. 1273 at 1. Even now, Philip Morris
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`recognizes that these are “topics that any lawyer would know are outside the bounds of permissible
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`testimony for either side in a patent trial.” Dkt. 1278 at 4-5.
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`Exactly right. That concession is fatal to Philip Morris’s argument that its questions were
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`proper in the event that “Reynolds opened the door during Dr. Figlar’s direct examination.” Dkt.
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`1278 at 2. Philip Morris cannot invent a justification based on door-opening while at the same
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`time recognizing that the subject-matter of its questions “are outside the bounds of permissible
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`testimony.” There is no reasonable basis for thinking that Dr. Figlar would be permitted to testify
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`on direct examination about impermissible topics, and thus no conceivable door to be opened for
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`Philip Morris to follow up with its own impermissible questions. Moreover, these topics were
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`already excluded by Judge O’Grady’s rulings barring “[t]estimony regarding a ‘youth smoking
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`epidemic’ or the targeting of electronic cigarettes to young people” and arguments that “invoke[ ]
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`an improper racial or nationalistic animus.” Dkt. 1184-1 at 7, 11. Again, Philip Morris cannot
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`-1-
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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 3 of 7 PageID# 33098
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`premise a door-opening argument on evidence that it knows will not be admissible. Finally, Philip
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`Morris’s counsel asked Dr. Figlar himself “what do you anticipate testifying to in your direct
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`examination?” Ex. 2, June 3, 2022 Figlar Dep. Tr. 20:2-3; see also id. 21:5-24:5 (Dkt. 1287-1).
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`Nothing in Dr. Figlar’s answers gave Philip Morris grounds for asserting that he would testify
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`about these impermissible topics. See, e.g., id. at 20:12-14 (“I think, you know, in essence my
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`testimony is going to be about reduce risk development, overall what Reynolds has done over the
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`years.”).
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`Philip Morris also claims that it was proper to ask Dr. Figlar about allegations in product-
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`liability cases against Reynolds involving personal injury or death (see Dkt. 1273 at 7) because the
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`“inquiry was related to Dr. Figlar’s personal background.” Dkt. 1278 at 4. “[A]llegations against
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`Reynolds in [ ] product liability cases” (Dkt. 1273 at 2) have nothing whatsoever to do with Dr.
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`Figlar’s personal background. If the aim was really to cross-examine Dr. Figlar about “his
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`extensive past testifying experience” (Dkt. 1278 at 4), there would be no need to ask him “to
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`summarize for the jury in this case what the allegations were in the product liability cases that you
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`testified in.” Dkt. 1273-1 at 147:21-48:2. The only conceivable purpose of this question was to
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`draw out derogatory allegations by injured plaintiffs in other cases and thus portray Reynolds and
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`Dr. Figlar in a negative light.
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`Philip Morris devotes much of its response to side issues rather than the substance of its
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`counsel’s questions. There is no pending question for the Court to resolve over whether Judge
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`O’Grady “sua sponte directed Reynolds to submit” Dr. Figlar to a deposition or, as Philip Morris
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`recognized at the May 20, 2022 hearing, Reynolds “thought it was important enough to write a
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`letter to tell us about five other people [and] offer a deposition.” May 20, 2022 Hr’g Tr. 21:11-13.
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`Judge O’Grady’s ruling was clear: the Court rejected Philip Morris’s request for a proffer of Dr.
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`-2-
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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 4 of 7 PageID# 33099
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`Figlar’s proposed testimony and directed Philip Morris to “take his deposition” to avoid a dispute
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`about whether “his actual testimony is a little different” from a description in a proffer. Dkt. 1273-
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`2 at 25:10-15. The Court was also clear about its expectation for the deposition: “What I expect
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`your deposition will be is, ‘What have you learned from these gentlemen that you believe will
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`affect your testimony as you prepare to testify in this case?” Id. at 25:10-26:4. Judge O’Grady
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`did say that “the time to have Dr. Figlar speak to these people was before he was deposed” (Dkt.
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`1278 at 1), but that was before Reynolds clarified that the topics of the discussions concerned FDA
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`actions after Dr. Figlar’s original depositions during discovery. May 20, 2022 Hr’g Tr. at 15:15-
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`23 (“this is not, I don’t think, a fault of either side; this is just the way the FDA works”; “the
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`FDA . . . has authorized our Vuse Solo device. That happened after his deposition separate and
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`apart from this case”; and noting that Dr. Figlar is “a 30(b)(6) witness on those topics of our
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`submissions to the FDA, including the PMTAs”). As to the assertion that Reynolds produced
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`23,000 pages of documents in the weeks preceding trial (Dkt. 1278 at 1), that issue too was
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`resolved at the May 20, 2022 hearing, where Reynolds explained that those documents related to
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`a “recent Alto submission on the PMTA” that Reynolds “ha[s] no intention of using” but
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`nonetheless, “out of an abundance of caution,” produced in this case. Id. at 13:1-19. Philip
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`Morris’s counsel confirmed that “I don’t think we have any dispute” as to that production of
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`documents, and Judge O’Grady confirmed that “I think we’re in good shape there.” Id. at 19:1-
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`12.
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`Finally, Philip Morris states, in bold italics, that “Philip Morris proposed a stipulation
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`stating that neither party would raise these issues.” Dkt. 1278 at 2. In fact, it was Reynolds that
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`proposed the stipulation, and it was Philip Morris that rejected the stipulation as offered,
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`extensively revising it to “delete the specific guidance [Reynolds] intend[ed] to seek from the
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`-3-
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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 5 of 7 PageID# 33100
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`Court regarding the propriety of the questions directed to Dr. Figlar.” Dkt. 1278-1 at 1. A redlined
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`version of Philip Morris’s edits to Reynolds’s proposed stipulation is attached as Exhibit 1.
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`Reynolds also stated that it “remain[ed] open to attempting to reach a resolution on some or all of
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`these issues in the form of a suitable set of Agreed MILs prior to appearing in Court on Wednesday
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`morning.” Id. Given the Court’s direction to file any “new motion in limine” to avoid a delay at
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`the start of trial, June 3, 2022 Hr’g Tr. 32:13-17, Reynolds filed the present motion so that it could
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`be fully briefed in advance.
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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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`Philip Morris from introducing at trial any evidence, testimony, or argument relating to alleged
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`racial targeting and youth marketing, prospective FDA action regarding menthol or flavored
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`tobacco products, and allegations against Reynolds in product-liability cases, and for such other
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`relief as this Court deems just and proper.
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`-4-
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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 6 of 7 PageID# 33101
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`Dated: June 8, 2022
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`
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
`
`
`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
`
`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Respectfully submitted,
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` /s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Ave.
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`
`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
`
`Charles B. Molster
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (202) 787-1312
`Email: cmolster@molsterlaw.com
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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`Case 1:20-cv-00393-LO-TCB Document 1296 Filed 06/08/22 Page 7 of 7 PageID# 33102
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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
`
`Counsel for RAI Strategic Holdings, Inc. and
`R.J. Reynolds Vapor Company
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