Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 1 of 7 PageID# 33259
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY
`
`Plaintiffs and
`Counterclaim Defendants,
`
`Case No. 1:20-cv-00393-LO-TCB
`
`v.
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and
`Counterclaim Plaintiffs.
`
`PHILIP MORRIS’ MEMORANDUM IN SUPPORT OF ITS MOTION TO EXCLUDE
`IMPROPER TESTIMONY BY JAMES FIGLAR PREVIOUSLY EXCLUDED BY THE
`COURT
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 2 of 7 PageID# 33260
`
`Philip Morris respectfully submits this motion to exclude improper testimony from
`
`Reynolds’ lay witness, Dr. James Figlar. Dr. Figlar is Reynolds’ corporate representative and an
`
`experienced testifying witness. He is not an expert on any issues in this case. During the pre-trial
`
`process, Philip Morris moved to preclude Dr. Figlar from testifying on issues of non-infringement
`
`and invalidity. Dkt. 901 at 16. Philip Morris so moved out of concern that Reynolds may seek to
`
`introduce improper “back-door” expert testimony from its lay witness, Dr. Figlar. At the March
`
`18, 2022 Daubert hearing, Reynolds assured Judge O’Grady that Dr. Figlar would not do so,
`
`representing that Dr. Figlar would:
`
`testify as a fact witness about his time at the company, his assessment of the accused
`products and their development, and the knowledge back in time of the patents-in-
`suit, but certainly on direct examination we have no intention to ask him to give
`opinions about infringement or these specific patents, whether the products
`infringe the patents.
`
`March 18, 2022 Hearing Tr. at 71:21-72:1.1 Judge O’Grady subsequently held that Dr. Figlar “is
`
`precluded from discussing theories of infringement, theories of invalidity, or the patent claims.”
`
`Dkt. 1184 at 11-12. That should settle the issue.
`
`Dr. Figlar was re-deposed on Friday June 3 on Judge O’Grady’s order. In the weeks
`
`preceding trial, Reynolds produced 23,000 pages of documents and disclosed that the retired Dr.
`
`Figlar had conducted a series of “conversations” with Reynolds employees2 on five “topics” that
`
`he was purportedly going to testify about at trial. Judge O’Grady unequivocally ruled that Dr.
`
`Figlar would not be permitted to either (i) be a mouthpiece for hearsay from others, or (ii) testify
`
`about any matters on which he lacked personal knowledge. May 20, 2022 Hearing Tr. at 22:19-
`
`23:6, 25:10-15; Dkt. 1184 at 12 (Court limiting Dr. Figlar to only testimony “based on Dr. Figlar’s
`
`
`1 All emphases added unless otherwise noted.
`2 Not one of the five employees was on Reynolds’ trial witness list or even listed on its Rule 26
`initial disclosures (including supplementations).
`
`2
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 3 of 7 PageID# 33261
`
`personal knowledge or perceptions”). So that Philip Morris and the Court could police the new
`
`information Dr. Figlar obtained, about which he could not testify, Judge O’Grady sua sponte
`
`directed Reynolds to submit him to a deposition by Philip Morris prior to trial. May 20, 2022
`
`Hearing Tr. at 25:10-15 (Court ordering deposition in lieu of Plaintiffs’ request for proffer). At
`
`the Court-ordered June 3 deposition, Dr. Figlar revealed that he intends to testify about the very
`
`issues that Judge O’Grady excluded:
`
`Q. And what do you anticipate testifying to in your direct examination?
`
`A.
`
`I think, you know, in essence my testimony is going to be about reduce risk
`development, overall what Reynolds has done over the years. I have a pretty
`strong background on the history of what Reynolds has done. And then
`obviously talk about the specific patents that are in this litigation…
`
`Q.
`
`Sure. When you say "discuss the patents," what do you mean?
`
`A. Well, I mean, the -- the patent issues that are, you know, at large in this
`case, you know, with regard to how is -- how our products constructed, do
`they -- not -- you know, what is the comp- -- what is the composition of our
`products versus what's stated in the patents. And so I'll certainly be able to
`talk about how our products differ than -- than what is in the patent…
`
`Ex. A at 20:2-21:15 (objections omitted). Dr. Figlar’s candid description of his anticipated trial
`
`testimony directly contradicts Reynolds’ representations to Judge O’Grady, is impermissible
`
`expert testimony from a lay witness, and violates the Court’s Order regarding Plaintiffs’ MIL #7.
`
`Dkt. 1184 at 12. In short, it is now plain that Reynolds—through Dr. Figlar—is planning to do
`
`precisely what Philip Morris objected to, what Reynolds’ lawyers assured Judge O’Grady they
`
`would not do, and what Judge O’Grady barred.
`
`Even putting those issues aside, Dr. Figlar’s newly-revealed technical and patent testimony
`
`is incompetent. Judge O’Grady recognized that “it’s difficult to determine when [Dr. Figlar’s]
`
`blending in what would be expert opinion by somebody else, but he disguises it as fact witnesses.
`
`3
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 4 of 7 PageID# 33262
`
`And we’ve had that issue here already.” ( 5/20/2022 Motion Hr. Tr. at 22:21-24).3 Reynolds cannot
`
`lay a foundation that Dr. Figlar had personal knowledge or perceptions unrelated to the present
`
`litigation of comparisons of the patents-in-suit to the accused products. Yet this is precisely what
`
`Dr. Figlar said under oath on Friday that Reynolds intends to cover in his testimony. Of course,
`
`even Dr. Figlar conceded he lacks personal knowledge about the “details about how each
`
`individual component works and functions”:
`
`If you want to ask me detailed questions about individual pieces and parts, that’s
`probably not me. I can talk generally about the technical aspects of the product,
`how they work, what the public health aspects are, you know, general knowledge
`about the overall technology that goes into them, what kinds of -- you know, does
`it have software, what kind of software.
`
`I mean, I know those things. But if you want to get down into dirty details about
`how each individual component works and functions, that’s probably not me.
`
`Ex. A at 137:8-138:1. As this Court knows, it is “an abuse of discretion for the district court to
`
`permit” a lay witness “who was not qualified as a technical expert” “to testify as an expert on the
`
`issues of noninfringement or invalidity.” Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d
`
`1356, 1362 (Fed. Cir. 2008). Reynolds should not be permitted to “back door” improper expert
`
`testimony, or any testimony outside the scope of Dr. Figlar’s pre-litigation personal knowledge
`
`and perception.
`
`To avoid taking up the Court and jury’s valuable time during trial, Plaintiffs respectfully
`
`request that the Court hold Reynolds to Judge O’Grady’s order and to Reynolds’ own
`
`representations to the Court, and not permit Dr. Figlar to testify regarding: (i) any details about
`
`the components or functionality of the accused products; (ii) the substance of the asserted patents;
`
`(iii) any comparison between the accused products and the asserted patents; and (iv) any other
`
`
`3 This hearing is the same one where Judge O’Grady issued his oral rulings regarding Plaintiffs’
`motion for sanctions related to the five Fontem documents withheld by Defendants.
`
`4
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 5 of 7 PageID# 33263
`
`theories related to non-infringement, invalidity, or the patent claims.
`
`
`
`
`
`Dated: June 7, 2022
`
`
`
`
`
`
`
` Respectfully submitted,
`
`
`
`
`
`
`
`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
`
`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
`
`
`5
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 6 of 7 PageID# 33264
`
`
`
`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.
`
`
`6
`
`

`

`Case 1:20-cv-00393-LO-TCB Document 1301 Filed 06/08/22 Page 7 of 7 PageID# 33265
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 7th day of June, 2022, a true and correct copy of the foregoing
`
`was served using the Court’s CM/ECF system, with electronic notification of such filing to all
`
`counsel of record.
`
`
`
`
`
`
`
`/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
`
`7
`
`