Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 1 of 6 PageID# 33647
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`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.
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`Case No. 1:20-cv-00393-LO-TCB
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`
`
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`
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`MEMORANDUM IN SUPPORT OF PHILIP MORRIS’ MOTION IN LIMINE TO
`PRECLUDE REYNOLDS’ IMPROPER DEMONSTRATIVES
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`
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`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`PHILIP MORRIS PRODUCTS S.A.
`
`
`
`Plaintiff,
`
`
`v.
`
`R.J. REYNOLDS VAPOR COMPANY
`
`
`Defendant.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`
`
`
`
`
`MEMORANDUM IN SUPPORT OF PHILIP MORRIS’ MOTION IN LIMINE TO
`PRECLUDE REYNOLDS’ IMPROPER DEMONSTRATIVES
`
`
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 2 of 6 PageID# 33648
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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 technical expert for the ’265
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`patent, Dr. Suhling. This is Reynolds’ second attempt to elicit expert testimony about previously
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`undisclosed, made-for-litigation “demonstratives” disclosed at the last possible minute.
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`Reynolds disclosed Dr. Suhling’s demonstratives last night at 7 p.m. ET. These proposed
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`“demonstratives” include what appear to be magnified images of the accused heater in the VUSE
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`Alto. Ex. 1 (Suhling “Demonstratives”). None of these images are on Reynolds’ exhibit list.
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`During meet and confer, Reynolds asserted that the images are proper “demonstratives” and
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`represented that they were disclosed in Dr. Suhling’s March 24, 2021 non-infringement rebuttal
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`expert report. Ex. 2. Reynolds subsequently confirmed in writing that the images, including the
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`image below, “was disclosed in Paragraphs 76, 96, 98, 201-207 of Dr. Suhling’s rebuttal report.”
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`Id.1 That was false.
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`After closer inspection, Philip Morris discovered that certain demonstratives positioned the
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`newly-disclosed images to look like those in Dr. Suhling’s expert report. But, as shown below,
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`the inset images (the small squares in the top right-hand corner) are actually materially different
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`in ways that impact key disputed issues. For example, the S-shaped heater in Dr. Suhling’s
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`“demonstratives” is thicker, rounder, and has a higher profile casting a consistent shadow along
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`the “S” as compared to the image disclosed in his expert report, which is flat and lacks any shadow.
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`As the Court is aware, the parties hotly contest whether the S-shaped heating element is a “thin
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`sheet,” rendering these differences highly material to the issues at trial.
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`1 All emphases added unless otherwise noted.
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`1
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`Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 3 of 6 PageID# 33649
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`Dr. Suhling’s New “Demonstrative”
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`Dr. Suhling’s Expert Report
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`
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`Philip Morris immediately asked Reynolds to identify specifically where the inset image
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`appeared in Dr. Suhling’s rebuttal report. See Ex. 2. Only then did Reynolds admit, contrary to
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`its prior unequivocal (yet false) representations, that the image above was not in Dr. Suhling’s
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`rebuttal report. Instead, Reynolds stated: “[i]t is the image from the paragraph I identified in my
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`email below mapped onto a 3-D object for presentation.” Id. After Philip Morris asked for
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`clarification, Reynolds confusingly claimed the image “mapped 3-D object for presentation” was
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`actually an “animation in powerpoint that uses the image,” despite the fact that it is plainly a static
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`photographic image. Id.
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`The Court should put an end to Reynolds’ gamesmanship and eleventh-hour maneuvering.
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`Reynolds should not be permitted to parade photograph-like “demonstratives” before the jury that
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`are actually “3-D objects for presentation,” as they were undisputedly not (i) disclosed on
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`2
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`Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 4 of 6 PageID# 33650
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`Reynolds’ exhibit list, (ii) disclosed in Dr. Suhling’s expert reports, or (iii) produced during fact
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`discovery. While the differences may appear subtle at first glance, Reynolds’ “demonstratives”
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`have an artificially thickened and rounded S-shaped heating element and thus are intended to
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`mislead and confuse the jury, who will be asked to decide whether that heating element is a
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`“metallic foil or thin sheet.” Fed. R. Evid. 403. The danger is exacerbated by the fact that Dr.
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`Suhling intends to tell the jury that these “demonstratives” are magnified images of the S-shaped
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`heater that he took. And Philip Morris’ concerns, as well as the risk of unfair prejudice, are
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`amplified by Reynolds’ repeated verbal and written misrepresentations during meet and confer.
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`Moreover, it is still unclear what these “demonstratives” are. Even a detective would have
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`a hard time figuring out at least the following:
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`1. What exactly is a “3-D object for presentation”?
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`2. What was “mapped” and onto what “object”?
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`3. Is the “3-D object for presentation” to scale?
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`4. Were the shadows or anything else manually added?
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`5. What aspects are not accurate or omitted?
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`6. How could a static “3-D object” be an “animation”?
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`7. When were they created (and by whom)?
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`Reynolds does not say. Like the replicas that Reynolds sought to use with Mr. Kodama, which the
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`Court properly excluded, Dr. Suhling’s demonstratives also lack evidentiary foundation and should
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`be struck. Dkt. 1308 at 4 (compiling cases requiring evidentiary foundation for demonstratives).
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`3
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`Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 5 of 6 PageID# 33651
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`Philip Morris respectfully requests that the Court preclude Reynolds from presenting the
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`so-called “demonstratives” on slides 19-23, 30, 31, 33 and 34 of Dr. Suhling’s slide deck.2
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`Dated: June 13, 2022
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` Respectfully submitted,
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`
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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
`
`Counsel for Plaintiff Philip Morris Products
`S.A.
`
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`2 Although other “demonstratives” appear to more closely resemble those in Dr. Suhling’s rebuttal
`report, they are neither on Reynolds’ exhibit list nor proper demonstratives. At this late juncture
`and given Reynolds’ repeated misrepresentations, it is impractical for Philip Morris to confirm
`whether they are what Reynolds purports them to be. This is precisely why such images should
`have been disclosed on Reynolds’ exhibit list, which would have allowed the parties to resolve
`any objections before the eleventh-hour. Indeed, Reynolds amended its exhibit list multiple times
`and declined each time to include any of these alleged images that Dr. Suhling intends to rely on.
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`4
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`Case 1:20-cv-00393-LO-TCB Document 1335 Filed 06/13/22 Page 6 of 6 PageID# 33652
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 13th 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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`5
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