Case 1:20-cv-00393-LMB-TCB Document 1402-2 Filed 07/21/22 Page 1 of 4 PageID# 34955
`Case 1:20-cv-00393-LMB-TCB Document 1402-2 Filed 07/21/22 Page 1 of 4 PagelD# 34955
`
`EXHIBIT C
`EXHIBIT C
`
`

`

`Case 1:20-cv-00393-LMB-TCB Document 1402-2 Filed 07/21/22 Page 2 of 4 PageID# 34956
`
`431
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`429
`
`APPEARANCES: (Cont.)
`
`For the Defendants:
`
`Civil Action
`No. 1:20-cv-00393-LMB/TCB
`
`June 9, 2022
`2:05 p.m.
`
`)))))))))))))
`
`PHILIP MORRIS PRODCUTS S.A.,
`
`
` Counterclaim Plaintiff,
`
` v.
`
`R.J. REYNOLDS VAPOR COMPANY,
`
` Counterclaim Defendant.
`
` VOLUME 2 - AFTERNOON SESSION
`TRANSCRIPT OF JURY TRIAL PROCEEDINGS
`BEFORE THE HONORABLE LEONIE M. BRINKEMA,
`UNITED STATES DISTRICT COURT JUDGE
`
`Michael Shamus Quinlan, Esq.
`Jones Day (OH-NA)
`901 Lakeside Avenue
`Cleveland, OH 44114-1190
`216-586-3939
`Fax: 216-579-0212
`Email: Msquinlan@jonesday.com
`
`Jason Todd Burnette, Esq.
`Jones Day (GA)
`1420 Peachtree Street, NE
`Suite 800
`Atlanta, GA 30309
`404-521-3939
`Email: Jburnette@jonesday.com
`
`David Michael Maiorana, Esq.
`Jones Day (OH)
`901 Lakeside Ave
`Cleveland, OH 44114
`216-586-3939
`Email: Dmaiorana@jonesday.com
`
`William Edward Devitt, Esq.
`Jones Day (IL)
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`312-269-4240
`Email: Wdevitt@jonesday.com
`
`Scott L. Wallace, RDR, RMR, CRR
`Official Court Reporter
`United States District Court
`401 Courthouse Square
`Alexandria, VA 2231-5798
`202-277-3739
`scottwallace.edva@gmail.com
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`Maximilian Antony Grant, Esq.
`Latham & Watkins LLP (DC)
`555 11th Street, NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Max.grant@lw.com
`
`Clement Joseph Naples, Esq.
`Latham & Watkins, LLP
`885 Third Avenue 25th Floor
`New York, NY 10022
`212-906-1200
`Email: Dement.naples@lw.com
`
`Gregory K. Sobolski, Esq.
`Latham & Watkins, LLP
`505 Montgomery Street
`Suite 2000
`San Francisco, CA 94111-6538
`202-637-2267
`Email: Max.grant@lw.com
`
`Scott L. Wallace, RDR, CRR
`Official Court Reporter
`
`APPEARANCES: (Cont.)
`
`For the Plaintiffs:
`
`Thomas W. Yeh, Esq.
`Latham & Watkins LLP (CA)
`355 South Grand Avenue
`Suite 100
`Los Angeles, CA 90071-1560
`213-891-8050
`Email: Thomas.yeh@lw.com
`
`Matthew John Moore, Esq.
`Latham & Watkins LLP (DC)
`555 11th Street, NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Matthew.moore@lw.com
`
`Dale Chang, Esq.
`Latham & Watkins LLP (CA)
`355 South Grand Avenue
`Suite 100
`Los Angeles, CA 90071-1560
`213-891-8050
`Email: Dale.chang@lw.com
`
`Lawrence Jay Gotts, Esq.
`Latham & Watkins LLP (DC)
`555 11th St NW
`Suite 1000
`Washington, DC 20004-1304
`202-637-2200
`Email: Lawrence.gotts@lw.com
`
`Court Reporter:
`
`Proceedings reported by machine shorthand, transcript produced
`by computer-aided transcription.
`
`430
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`432
`
` C O N T E N T S
`
`
`
`EXAMINATIONS Page
`
`CONTINUED DIRECT EXAMINATION OF PAUL MEYER
`BY MR. SANDFORD
`CROSS-EXAMINATION OF PAUL MEYER
`BY MR. McCRUM
`REDIRECT EXAMINATION OF PAUL MEYER
`BY MR. SANDFORD
`
`DIRECT EXAMINATION OF JAMES FIGLAR
`BY MS. PARKER
`CROSS-EXAMINATION OF JAMES FIGLAR
`BY MR. NAPLES
`REDIRECT EXAMINATION OF JAMES FIGLAR
`BY MS. PARKER
`RECROSS-EXAMINATION OF JAMES FIGLAR
`BY MR. NAPLES
`
` EXHIBITS
`
`DESCRIPTION Page
`
`433
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`470
`
`497
`
`529
`
`567
`
`578
`
`581
`
`For the Defendants:
`
`Charles Bennett Molster, III, Esq.
`The Law Offices of Charles B.
`Molster III, PLLC
`2141 Wisconsin Avenue NW, Suite M
`Washington, DC 20007
`703-346-1505
`Email: Cmolster@molsterlaw.com
`
`Stephanie Ethel Parker, Esq.
`Jones Day (GA)
`1420 Peachtree Street, NE
`Suite 800
`Atlanta, GA 30309
`404-521-3939
`Email: Sparker@jonesday.com
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 429 to 432 of 584
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`1 of 39 sheets
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`06/21/2022 08:44:31 AM
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`Case 1:20-cv-00393-LMB-TCB Document 1402-2 Filed 07/21/22 Page 3 of 4 PageID# 34957
`569
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`571
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`So not quite 50, you think it's more like 40 trials?
`
`I think I've given live testimony in court 40 times.
`
`Okay. And this is actually the first time Ms. Parker
`
`[sic] testified here in court; is that right?
`
`MS. PARKER: Objection, Your Honor, as to relevance
`
`and {indiscernible}.
`
`THE COURT: Yeah, and you need to slow your questions
`
`down.
`
`MR. NAPLES: Sure, Your Honor.
`
`THE COURT: So everybody gets them. Repeat the question.
`
`This is not the first time that Ms. Parker has examined
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`you in court, correct, Dr. Figlar?
`
`THE COURT: I don't know why that's relevant. I'll
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`sustain the objection.
`
`MR. NAPLES: Okay.
`
`05:39PM 1 Q.
`05:39PM 2 A.
`05:39PM 3 Q.
`05:39PM 4
`05:39PM 5
`05:39PM 6
`05:39PM 7
`05:40PM 8
`05:40PM 9
`05:40PM 10
`05:40PM 11
`BY MR. NAPLES:
`05:40PM 12 Q.
`05:40PM 13
`05:40PM 14
`05:40PM 15
`05:40PM 16
`05:40PM 17
`BY MR. NAPLES:
`05:40PM 18 Q.
`05:40PM 19
`in as smoking and health cases; is that right?
`05:40PM 20 A.
`05:40PM 21 Q.
`05:40PM 22 A.
`05:40PM 23 Q.
`05:40PM 24 A.
`05:40PM 25 Q.
`
`Now, I think you referred to the cases that you testified
`
`That is correct, yes.
`
`Okay. Now --
`
`I'm sorry, to be clear, product liability cases.
`
`They're product liability cases?
`
`I think so, yes.
`
`Okay. Understood. Now, you, I think, said you testified
`
`MR. NAPLES: Absolutely, Your Honor.
`
`THE COURT: All right. Go ahead.
`
`Now, Dr. Figlar, you talked about these two products, the
`
`Sure, yeah.
`
`Okay. And those are not vapor products?
`
`They are not vapor products; they are heat-not-burn
`
`Okay. And you said those are alternatives to combustible
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`They are.
`
`All right. Now, Reynolds does not sell the Premier
`
`05:41PM 1
`05:41PM 2
`05:41PM 3
`BY MR. NAPLES:
`05:41PM 4 Q.
`05:41PM 5
`Premier and the Eclipse, correct?
`05:41PM 6 A.
`05:41PM 7 Q.
`05:41PM 8 A.
`05:41PM 9
`products.
`05:41PM 10 Q.
`05:42PM 11
`cigarettes, correct?
`05:42PM 12 A.
`05:42PM 13 Q.
`05:42PM 14
`product any longer; is that right?
`05:42PM 15 A.
`05:42PM 16 Q.
`05:42PM 17
`05:42PM 18
`that right?
`05:42PM 19 A.
`05:42PM 20 Q.
`05:42PM 21
`05:42PM 22
`community; isn't that right?
`05:42PM 23 A.
`05:42PM 24
`05:42PM 25
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`No, they do not.
`
`Okay. And the Premier was removed from the market, I
`
`think you said because people didn't really like the product; is
`
`At that time, that's correct, yes.
`
`Okay. But it was also removed from the market because
`
`there was considerable criticism from the public health
`
`The public health community panned the idea of a
`
`potentially safer product being out on the market, and so there
`
`was -- there was quite a heated debate at that time when Premier
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`570
`
`572
`
`05:40PM 1
`05:40PM 2
`liability cases?
`05:40PM 3 A.
`05:40PM 4 Q.
`05:40PM 5
`05:40PM 6
`05:40PM 7
`05:40PM 8
`05:41PM 9
`05:41PM 10
`05:41PM 11
`05:41PM 12
`BY MR. NAPLES:
`05:41PM 13 Q.
`05:41PM 14 A.
`05:41PM 15
`05:41PM 16
`a year, yeah.
`05:41PM 17 Q.
`05:41PM 18
`05:41PM 19
`05:41PM 20
`05:41PM 21
`05:41PM 22
`05:41PM 23
`05:41PM 24
`05:41PM 25
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`for Reynolds over a period of about ten years in these product
`
`That is correct, yes.
`
`Okay. And if you've done about a hundred depositions, is
`
`that like ten, on average, ten depositions per year; is that
`
`correct?
`
`MS. PARKER: Objection; relevance {indiscernible}.
`
`THE COURT: I assume you're going someplace with this?
`
`MR. NAPLES: Yes, Your Honor.
`
`THE COURT: All right. I'll overrule the objection for
`
`now. Let's see where we're going.
`
`Is that correct, Dr. Figlar?
`
`I mean, that would be probably fair, yeah, about maybe 10
`
`depositions a year, maybe four trials a year over the course of
`
`Okay. Now, you talked during your direct examination
`
`about two products, one called the Premier, one called the
`
`Eclipse, right?
`
`MS. PARKER: Your Honor, I'm sorry, objection. I want to
`
`move to strike that. We did not go forward as we told Your Honor
`
`we would. We didn't tie anything up that's relevant --
`
`THE COURT: All right. I don't want an objection for
`
`every single question either. We'll take forever. So right now
`
`the objection is overruled, but I want questions to be relevant.
`
`came out. So, yeah, there were -- that was part of -- that was
`
`Right. It wasn't just the taste of the Premier, it was
`
`also because the public health community criticized Premier; is
`
`I think there -- I think it's always -- in many of these
`
`situations, of course it's complicated, but that's one of the
`
`factors. The product did not taste that good, for sure, and
`
`that is a -- that is a problem with consumers. But then with
`
`the public health community coming out against it, or at least
`
`some in the public health community coming out against it,
`
`05:42PM 1
`05:42PM 2
`definitely part of the controversy, yes.
`05:42PM 3 Q.
`05:42PM 4
`05:42PM 5
`that right?
`05:42PM 6 A.
`05:43PM 7
`05:43PM 8
`05:43PM 9
`05:43PM 10
`05:43PM 11
`05:43PM 12
`because there were others that were for it, doesn't help either.
`05:43PM 13 Q.
`05:43PM 14
`market, correct?
`05:43PM 15 A.
`05:43PM 16 Q.
`05:43PM 17
`Eclipse was initially launched in a small market in 1996?
`05:43PM 18 A.
`05:43PM 19
`in '96 and then went national in 2000.
`05:43PM 20 Q.
`05:43PM 21
`Eclipse nationwide in about 2000?
`05:43PM 22 A.
`05:43PM 23 Q.
`05:44PM 24
`seller for Reynolds, has it?
`05:44PM 25 A.
`
`Right. And then Reynolds removed that product from the
`
`Right, and then started working on Eclipse.
`
`Right. And Eclipse, I think -- well, is it true that
`
`Yeah, I think it was launched in three small test markets
`
`Okay. And then Reynolds starting -- started selling the
`
`Yes, in 2000, that's correct.
`
`Okay. But the Eclipse has actually never been a big
`
`Sadly, no, it's not.
`
`06/21/2022 08:44:31 AM
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`Page 569 to 572 of 584
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`Scott L. Wallace, RDR, CRR, Official Court Reporter
`36 of 39 sheets
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`Case 1:20-cv-00393-LMB-TCB Document 1402-2 Filed 07/21/22 Page 4 of 4 PageID# 34958
`573
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`575
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`Okay. And I think the last time we spoke, you told me
`
`that sales of Eclipse products started declining in 2004 and
`
`they've basically been on that trajectory ever since; is that
`
`Heat-not-burn products have not done well in the U.S.,
`
`that is for sure. And Eclipse, as one of them, has not
`
`Right. I mean, my question was specifically about the
`
`Understood.
`
`So the Eclipse's sales have been declining since about
`
`That's fair.
`
`Okay. And I think you said during your direct
`
`examination that Reynolds invested well over a billion dollars
`
`in the Eclipse and the Premier heat-not-burn products; is that
`
`That is correct.
`
`Okay. And is it true that after spending that billion
`
`dollars, Reynolds learned that it was difficult to get consumers
`
`to convert to heat-not-burn products because they really just
`
`05:44PM 1 Q.
`05:44PM 2
`05:44PM 3
`05:44PM 4
`right?
`05:44PM 5 A.
`05:44PM 6
`05:44PM 7
`performed as well as we would hope or want.
`05:44PM 8 Q.
`05:44PM 9
`Eclipse, okay?
`05:44PM 10 A.
`05:44PM 11 Q.
`05:44PM 12
`2004, correct?
`05:44PM 13 A.
`05:44PM 14 Q.
`05:44PM 15
`05:44PM 16
`05:44PM 17
`right?
`05:44PM 18 A.
`05:44PM 19 Q.
`05:44PM 20
`05:45PM 21
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`couldn't just compete with cigarettes; is that right?
`05:45PM 23 A.
`05:45PM 24
`05:45PM 25
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`I think that's generally correct. I mean, Reynolds spent
`
`about 30 years trying to attract consumers to heat-not-burn so I
`
`think that's a fair statement.
`
`I think this is the same slide that Ms. Parker used in
`
`Maybe so. I don't have an eidetic memory in terms of
`
`Okay. And you testified in your direct examination that
`
`the Alto, which is the last product here, that is the
`
`Today, yes.
`
`Today, today, correct. Now, it is true, Dr. Figlar, that
`
`05:46PM 1 Q.
`05:46PM 2
`her opening, correct?
`05:46PM 3 A.
`05:46PM 4
`what was shown, but, yeah, probably that's fair.
`05:46PM 5 Q.
`05:46PM 6
`05:46PM 7
`best-selling product or best-selling Vuse product, right?
`05:46PM 8 A.
`05:46PM 9 Q.
`05:46PM 10
`Reynolds didn't even design the Alto product, right?
`05:46PM 11 A.
`05:47PM 12
`05:47PM 13
`licensed it.
`05:47PM 14 Q.
`05:47PM 15
`the Alto product, right?
`05:47PM 16 A.
`05:47PM 17
`up.
`05:47PM 18 Q.
`05:47PM 19
`designed the heater in the Alto product, correct?
`05:47PM 20 A.
`05:47PM 21 Q.
`05:47PM 22
`product either, did it?
`05:47PM 23 A.
`05:47PM 24 Q.
`05:47PM 25
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`Alto, no. We were not part of the design. We -- we
`
`evaluated the product and liked it with one of our suppliers and
`
`Right. A Chinese company called Smoore actually designed
`
`Yes, they were one of our suppliers and they offered that
`
`And then a different company in China called Feelm, they
`
`I believe that is correct, yes.
`
`Okay. Now, the Vibe product, Reynolds didn't design that
`
`Nope, and I don't believe I testified that we did.
`
`Well, Reynolds didn't design the Ciro product either; is
`
`that right?
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`Scott L. Wallace, RDR, CRR, Official Court Reporter
`
`574
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`576
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`Okay. So let's move ahead. So we've got the Premier off
`
`the market, Eclipse isn't selling well, we're going to be in the
`
`2010 time frame, and I think that's when you said that Reynolds
`
`started to get into the e-vapor or e-cigarette space; is that
`
`That's correct. I'm pretty sure that's what I told the
`
`Right, Reynolds, in fact, acquired the Ciro, the Vibe,
`
`and the Alto products from Chinese manufacturers; is that
`
`correct?
`
`MS. PARKER: Objection, Your Honor, 403, irrelevant.
`
`THE COURT: Excuse me?
`
`MS. PARKER: 403 irrelevance on the location --
`
`THE COURT: I'm going to overrule the objection.
`
`MR. NAPLES: Thank you, Your Honor.
`
`MS. PARKER: Your Honor, I'm so sorry. The pretrial
`
`ruling on that --
`
`THE COURT: It's getting late in the day. You've got your
`
`mask on, you're not at the lectern, and I've overruled the
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`objection. Just have a seat, please.
`
`So, Dr. Figlar, it's true that of the four vapor
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`platforms that Reynolds sells today, it didn't design three of
`
`05:47PM 1 A.
`05:47PM 2
`jury.
`05:47PM 3 Q.
`05:47PM 4
`05:47PM 5
`05:47PM 6
`05:47PM 7
`05:47PM 8
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`BY MR. NAPLES:
`05:48PM 17 Q.
`05:48PM 18
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`them, correct?
`05:48PM 20 A.
`05:48PM 21
`05:48PM 22
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`05:48PM 25
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`That is correct, but what we certainly did do is support
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`them in the marketplace and then collected the science that
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`would be necessary to keep them in the U.S. market through FDA,
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`because that is one of the requirements, right? I mean if
`
`you -- whoever designed the product, it's -- wanted to go ahead
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`and keep selling those products in the U.S. market, they'd have
`
`05:45PM 1 Q.
`05:45PM 2
`05:45PM 3
`05:45PM 4
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`right?
`05:45PM 6 A.
`05:45PM 7
`developing products, yes.
`05:45PM 8 Q.
`05:45PM 9
`statements?
`05:45PM 10 A.
`05:45PM 11 Q.
`05:45PM 12
`innovator in that space, right?
`05:45PM 13 A.
`05:45PM 14 Q.
`05:45PM 15
`they were an innovator in that space; is that right?
`05:46PM 16 A.
`05:46PM 17
`innovative features on Solo, which is part of that development.
`05:46PM 18 Q.
`05:46PM 19
`05:46PM 20
`BY MR. NAPLES:
`05:46PM 21 Q.
`05:46PM 22
`right --
`05:46PM 23 A.
`05:46PM 24 Q.
`05:46PM 25 A.
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`When we started to seriously start thinking about
`
`Okay. And you also were here for Ms. Parker's opening
`
`I was, yes.
`
`And she talked about how Reynolds is actually an
`
`Yeah, I believe, absolutely.
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`She actually said that you were going to talk about how
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`I thought I did when I talked about some of the
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`Sure. Let's discuss that a little bit.
`
`MR. NAPLES: Could I have your Slide 3 up?
`
`You showed this slide to the jury I believe; is that
`
`I did.
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`-- Dr. Figlar?
`
`Um-hmm.
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`37 of 39 sheets
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`Page 573 to 576 of 584
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