Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 1 of 7 PageID# 33303
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`PHILIP MORRIS PRODUCTS S.A.
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`Plaintiff,
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`v.
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`R.J. REYNOLDS VAPOR COMPANY,
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`Defendant.
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`Case No. 1:20-cv-00393-LO-TCB
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`PHILIP MORRIS’S MOTION IN LIMINE TO EXCLUDE IMPROPER REYNOLDS
`DEMONSTRATIVES
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`
`PHILIP MORRIS PRODUCTS S.A.
`
`
`Plaintiff,
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`
`v.
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`R.J. REYNOLDS VAPOR COMPANY,
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`
`Defendant.
`
`Case No. 1:20-cv-00393-LO-TCB
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`PHILIP MORRIS’S MOTION IN LIMINE TO EXCLUDE IMPROPER REYNOLDS
`DEMONSTRATIVES
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 2 of 7 PageID# 33304
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`Philip Morris respectfully moves this Court in limine to preclude Reynolds from relying
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`on improper demonstratives during the direct examination of its expert, Mr. Kelly Kodama. Last
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`night, Reynolds disclosed for the first time as purported “demonstratives” enlarged replicas of
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`certain components of the accused VUSE Alto and Solo devices. Reynolds provided only photos
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`of these purported replicas, reproduced below:
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 3 of 7 PageID# 33305
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`At the meet and confer, Reynolds said that it intends to tell the jury that these previously
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`undisclosed, made-for-litigation, replicas are to-scale accurate representations of the accused
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`devices based on CAD files. Reynolds’s expert has provided no opinions regarding these replicas,
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`including how they were created; there is nothing in any Reynolds expert report on these
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`purportedly “representative” models of components of the accused VUSE devices. Given they
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`were never disclosed in any expert report or pre-trial, Philip Morris is unable to have its own
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`experts review these replicas to evaluate their alleged accuracy, including measurements, form, or
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`features. Allowing use of such unverified, previously undisclosed, replicas with the jury under
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`these circumstances is highly prejudicial and raises a substantial risk of confusing the issues and
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`misleading the jury. Moreover, their disclosure for the first time the night before Reynolds plans
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`to use them is the very definition of trial by ambush.
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`First, demonstrative evidence must satisfy the relevancy standard of Federal Rule of
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`Evidence 401 and can be excluded under Rule 403 “where its helpfulness is substantially
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`outweighed by the dangers of unfair prejudice, delay, or confusion.” Derouin v. Kenneth L. Kellar
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`Truck Line, Inc., No. C08-1049-JCC, 2010 WL 11684278, at *4 (W.D. Wash. Nov. 8, 2010).
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`“Demonstrative evidence requires particularly careful judicial monitoring under [Rule] 611(a)
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`because of its capacity to mislead and because of the potent, and often inalterable, image it leaves
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`in jurors’ minds.” Id. And yet, apart from vague claims of alleged accuracy, Reynolds has
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`provided no details regarding these purported replicas, the sort of details that would be required
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`to be disclosed in a Rule 26 expert report:
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`• How were they created?
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`• What is the evidentiary basis to contend they are “representative” of the actual
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`accused devices?
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 4 of 7 PageID# 33306
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`• What aspects of the accused devices are purportedly “representative”?
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`• What aspects are not accurate or omitted?
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`• Which CAD drawings purportedly were the basis for their creation?
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`• Who made them?
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`• Who confirmed their purported accuracy?
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`At this stage, it is improper and prejudicial for Reynolds to expect that (i) Plaintiff, (ii) the Court,
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`or most concerningly, (iii) the jury, should simply take Reynolds’s word for their “representative”
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`nature. FED. R. EVID. 403.
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`Second, unlike animations or other demonstratives that are only used to illuminate
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`functions that are then discussed with evidence disclosed by an expert in his or her expert report,
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`the purported replicas lack evidentiary foundation. The use of demonstrative exhibits “assum[es]
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`a proper foundation is laid” to provide relevant information to the jury. Seidman v. Am. Family
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`Mutual Ins. Co., No. 14-cv-3193, 2016 WL 9735768, at *5 (D. Colo. May 26, 2016) (citing
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`Sanchez v. Denver & Rio Grande W.R.R., 538 F.2d 304, 306 (10th Cir. 1976)). “In assessing
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`[whether a sufficient foundation is laid], courts consider . . . whether the proffered demonstrative
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`exhibit ‘fairly and accurately summarize[s] previously admitted competent evidence.’” Id.
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`(quoting Wilson v. United States, 350 F.2d 901, 907 (10th Cir. 1965)).
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`Reynolds has not identified any fact witness to lay foundation of its purported replicas.
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`And Reynolds’s expert cannot lay foundation for the first time at trial. Whether the purported
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`replicas are truly to-scale representations of the accused devices is a matter of expert opinion,
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`which needs to be disclosed so it can be the subject of expert discovery. Rule 26(a)(2)(B)(iii)
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`requires the disclosure of “any exhibits that will be used to summarize or support” expert testimony
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`in an expert report, which includes demonstrative exhibits. See also Salgado v. General Motors
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 5 of 7 PageID# 33307
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`Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1988) (expert exhibits include demonstrative evidence).
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`Mr. Kodama failed to timely disclose these replicas in his expert report in accordance with this
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`rule.
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`Last, it is plain that these purported replicas took considerable time to create. Despite
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`amending its exhibit list multiple times in the weeks leading to trial, Reynolds never disclosed
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`these purported replicas to Philip Morris. Instead, repeating a now familiar approach favored by
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`Reynolds, Defendant strategically delayed their disclosure until the last possible moment. The
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`prejudice to Philip Morris cannot be remedied in the midst of trial. If permitted during trial,
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`Reynolds’s belated disclosure – by design – would force Philip Morris to conduct a discovery
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`deposition of Reynolds’s expert on these exhibits and their foundation before the jury. This is not
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`merely “a matter for cross-examination.” Cross-examination is intended to present adversarial
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`questioning on issues that were fairly disclosed and vetted during discovery. Because of the
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`decision by Reynolds and its expert to withhold disclosure, there is no opportunity for Plaintiff to
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`have its experts evaluate and conduct independent testing to arrive at their own analysis of whether
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`the mock ups are “representative” of componentry in the accused devices. Absent that opportunity,
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`Plaintiff’s counsel has been denied – by design – the ability to prepare for, much less conduct, a
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`competent cross-examination. Reynolds effort to mischaracterize what it claims are to-scale,
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`representative models of components of the accused devices as “demonstratives” provides no basis
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`to permit their use at trial.
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`Under these highly prejudicial circumstances, exclusion is the only appropriate remedy.
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 6 of 7 PageID# 33308
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`Dated: June 9, 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
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`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
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`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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`Counsel for Plaintiff Philip Morris Products
`S.A.
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`6
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`Case 1:20-cv-00393-LO-TCB Document 1308-1 Filed 06/09/22 Page 7 of 7 PageID# 33309
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 9th 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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