Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 1 of 17 PageID# 13660
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
`
`
`Plaintiffs,
`
`v.
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`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants.
`
`Civil Action No. 1:20-cv-393
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`
`
`
`
`
`REPLY IN SUPPORT OF COUNTERCLAIM PLAINTIFFS’ MOTION FOR
`LEAVE TO SERVE SUPPLEMENTAL EXPERT REPORTS
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`REDACTED
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 2 of 17 PageID# 13661
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`
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
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`ARGUMENT .......................................................................................................................4
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`A.
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`Good Cause Supports Granting PMP/Altria Leave To Supplement ........................4
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`1.
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`2.
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`Good Cause Supports Dr. Abraham’s Supplementation ..............................4
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`Good Cause Supports Mr. Meyer’s Supplementation .................................6
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`B.
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`PMP/Altria’s Supplementation Is Substantially Justified And Harmless ................9
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`1.
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`2.
`
`3.
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`Reynolds Mischaracterizes The Proper Legal Standard ..............................9
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`Dr. Abraham’s Supplementation Is Substantially Justified And
`Harmless ....................................................................................................10
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`Mr. Meyer’s Supplementation Is Substantially Justified And
`Harmless ....................................................................................................11
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`III.
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`CONCLUSION ..................................................................................................................12
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 3 of 17 PageID# 13662
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`
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`TABLE OF AUTHORITIES
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`CASES
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`Calmac Mfg. Corp. v. Dunham-Bush, Inc.,
`929 F. Supp. 951 (E.D. Va. 1996) ............................................................................................. 10
`
`Eagle Pharms., Inc. v. Slayback Pharma LLC,
`382 F. Supp. 3d 341 (D. Del. 2019), aff’d, 958 F.3d 1171 (Fed. Cir. 2020) ............................. 10
`
`Rambus, Inc. v. Infineon Technologies AG,
`145 F. Supp. 2d 721 (E.D. Va. 2001) .......................................................................................... 9
`
`United States v. 1.604 Acres of Land,
`No. 10-cv-320, 2011 WL 1810594 (E.D. Va. May 11, 2011) ..................................................... 9
`
`Welch v. Sam’s East, Inc.,
`No. 19-cv-668, 2020 WL 5868029 (W.D. Va. Oct. 1, 2020) ...................................................... 9
`
`RULES
`
`FED. R. CIV. P. 16(f) ........................................................................................................................ 9
`
`FED. R. CIV. P. 37(c)(1) ................................................................................................................... 9
`
`
`
`ii
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 4 of 17 PageID# 13663
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`
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`I.
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`INTRODUCTION
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`The thrust of Reynolds’ opposition is that it should be permitted to misrepresent, conceal,
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`or withhold critical discovery with impunity, and that Altria Client Services LLC, Philip Morris
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`USA Inc., and Philip Morris Products S.A.’s (together, “PMP/Altria”) experts should be prevented
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`from addressing or utilizing such late produced discovery once revealed—even if doing so inflicts
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`no prejudice whatsoever on Reynolds. Good cause for leave to supplement exists, and Reynolds,
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`by its own admission, will not be prejudiced by such supplementation.1
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`First, good cause exists to allow Dr. Abraham’s supplementation. Although refusing to
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`agree on supplementation for 22 paragraphs from Dr. Abraham’s report before this motion,
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`Reynolds’ opposition abandons without explanation its objections on all but a single paragraph,
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`namely paragraph 34 addressing infringement under the doctrine of equivalents. Dkt. 591 at 4
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`(“Reynolds is only objecting to a single paragraph in Dr. Abraham’s report (¶ 34)”). And even as
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`to this single disputed paragraph, Reynolds itself necessitated Dr. Abraham’s supplementation by
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`(i) first misrepresenting
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` until after Dr. Abraham’s opening expert
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`report, and (ii) then concealing its detailed non-infringement contentions as to the “cavity”
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`limitations of the ’911 Patent until after Dr. Abraham’s March 12th supplemental report addressing
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`Reynolds’ corrected
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` structure.
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`Reynolds’ assertion that Dr. Abraham should have supplemented his report earlier, on
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`March 12th, because Reynolds served an interrogatory response on non-infringement on March
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`1 PMP/Altria notes that since the Court lifted the stay on the Counterclaim patents, Reynolds has
`stalled, delayed, and done everything tactically possible to frustrate the Court’s schedule and
`needlessly complicate the parties’ trial preparations. It is Reynolds’ continuing belated factual
`disclosures, apparently timed to occur right after PMP/Altria’s experts reports were served, that
`give rise to the supplementations sought by this motion. This pattern of delayed factual
`disclosures, set and withdrawn depositions dates, withheld expert opinions and overall
`gamesmanship should end.
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`1
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 5 of 17 PageID# 13664
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`5th, is disingenuous at best. As Reynolds knows, that interrogatory response provides no bases
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`for asserting that the
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`does not meet the “cavity” limitation of the ’911 Patent. Instead, after
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`misrepresenting
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`, Reynolds “sandbagged” PMP/Altria by withholding its
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`detailed new contentions until Dr. Kodama’s March 31 supplemental report, thereby preventing
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`Dr. Abraham from having any opportunity to respond.
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`Reynolds next argues that Dr. Abraham should have supplemented his report earlier
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`because documents
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` were purportedly available to Dr. Abraham.
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`The Court should reject Reynolds’ attempt to distract from the undisputed fact that Reynolds—
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`including in sworn deposition testimony—misrepresented
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` and then failed
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`to timely disclose its new non-infringement theories. That some documents
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`
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`may have been available is irrelevant because PMP/Altria justifiably relied on Reynolds’
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`representations and sworn corporate testimony regarding
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`. Reynolds’ argument is also contradicted by the parties’ agreement that, because of
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`Reynolds’ misrepresentations, Dr. Abraham could supplement his opinions to address
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`.
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`Dr. Abraham should have a full and fair opportunity to address Reynolds’ untimely non-
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`infringement contentions and corrected factual representations regarding
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`, and
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`which undisputedly were not previously available to Dr. Abraham and give rise to his supplemental
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`doctrine of equivalents opinion.
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`Second, good cause exists to allow Mr. Meyer’s supplementation of a single footnote and
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`corresponding attachments that disclose
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` that confirms his previously-
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`disclosed damages opinions. Reynolds does not dispute that Mr. Meyer’s supplementation is based
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`on testimony from a Reynolds witness,
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`, not available before Mr. Meyer’s report.
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`Reynolds admits that
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` could not have been deposed earlier because Reynolds
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`2
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 6 of 17 PageID# 13665
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`
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`improperly withheld his identity until after Mr. Meyer’s opening report. And, while Reynolds
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`argues that the relevant documents were available before Mr. Meyer’s opening report, Reynolds
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`concedes that it failed to identify any of these documents during discovery. Good cause exists to
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`allow Mr. Meyer to address these documents in light of
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` new testimony,
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`particularly because Reynolds concedes that Mr. Meyer’s ultimate opinions are unchanged.
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`Finally, even if good cause does not exist (it does), there can be no credible dispute that
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`Reynolds has not been surprised or prejudiced. Reynolds does not dispute that allowing the subject
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`opinions will not disrupt trial. And Reynolds does not contend that any surprise or prejudice
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`cannot be cured. To the contrary, when seeking to inject new opinions from its own expert,
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`Reynolds unequivocally stated: “Defendants will not suffer prejudice because [Reynolds’ expert]
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`can be available for deposition.”2 Ex. 22 (5/3/21 Michalik Email). Reynolds cannot have it both
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`ways. Reynolds’ position—that there is no prejudice when supplementation occurs before an
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`experts’ deposition—is dispositive. Reynolds undisputedly has the opportunity to examine each
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`of the experts about the single paragraph at issue in their respective reports.
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`Accordingly, PMP/Altria respectfully requests that the Court grant PMP/Altria leave and
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`allow (1) paragraph 34 of Dr. Abraham’s supplemental report, and (2) footnote 409 and
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`Attachments 22-26 of Mr. Meyer’s supplemental report.3
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`2 All emphases added unless otherwise noted.
`3 Reynolds does not object to Mr. Meyer’s citations to
`minimum, those citations should be allowed. Dkts. 534, 535.
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` deposition testimony; at a
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`3
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 7 of 17 PageID# 13666
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`
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`II.
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`ARGUMENT
`A.
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`Good Cause Supports Granting PMP/Altria Leave To Supplement
`1.
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`Good Cause Supports Dr. Abraham’s Supplementation
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`Reynolds’ opposition confirms that good cause exists to allow paragraph 34 of Dr.
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`Abraham’s supplemental report.
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`Reynolds first argues that no good cause exists because, instead of relying on Reynolds’
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`sworn corporate testimony and interrogatory responses submitted per Rule 11’s obligations,
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`PMP/Altria could have inspected physical samples and two-dimensional drawings of
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`
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` before Dr. Abraham’s opening report and somehow determined Reynolds’ testimony
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`was false and its lawyers’ interrogatory responses incorrect. This argument is a red herring.
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`Reynolds admits
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`. Dkt. 584-2; see also Dkt. 591 at 7 (Reynolds
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`
`
`
`
`
`
`). Reynolds does not dispute that its 30(b)(6) witness,
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`, confirmed under
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`oath that
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` in November 2020—before Dr. Abraham’s opening
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`report. And Reynolds does not dispute that it failed to inform PMP/Altria that
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`
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`until February 2021, and withheld
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` until February 22.
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`Dkt. 591 at 7. Nor does Reynolds dispute that it provided new non-infringement contentions based
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`on
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` on March 5th, long after Dr. Abraham’s opening report.4 Dkt.
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`4 After owning up to its discovery misrepresentations, Reynolds agreed to allow Altria/PMP to
`supplement Dr. Abraham’s February 24 opening expert report on March 12 to address
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`. Dkt. 513; Dkt. 591
`at 8 (agreeing that “Reynolds would not oppose Dr. Abraham’s [March 12] supplemental report”).
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`4
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 8 of 17 PageID# 13667
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`591 at 8. Reynolds’ admissions confirm that its misrepresentations and untimely non-infringement
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`contentions necessitated Dr. Abraham’s supplementation, and thus confirm good cause exists.
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`Reynolds next argues that Dr. Abraham should have included the objected-to-paragraph in
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`his March 12 supplemental report after receiving Reynolds’ conclusory and untimely non-
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`infringement contention on March 5. Dkt. 591 at 9. Reynolds is wrong for two separate reasons.
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`First, Dr. Abraham could not address Reynolds’ non-infringement theories in his March
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`12 report because Reynolds withheld any detail underlying its newly-disclosed contention until
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`serving its technical expert’s March 31 supplemental non-infringement report. In that report,
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`Reynolds’ technical expert, Mr. Kodama provides—for the first time—the specific reasons
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` lacks the claimed “cavity.” Specifically, he asserts that
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`
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` purportedly do not meet the “cavity” limitation of the ’911 Patent because
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`.” Dkt. 584-9 (Kodama 3/31 Supp. Rpt.) ¶¶ 39-40.
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`
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`These disclosures are absent from Reynolds’ March 5 interrogatory response (and any prior
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`response), which only include a conclusory assertion that
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` lacks the claimed “cavity.” See
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`Dkt. 584-8 at 65. Dr. Abraham could not have considered this new opinion before March 31, and
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`for this reason good cause exists to allow his limited supplementation.5
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`Second, Reynolds delayed in producing its corporate witness
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`, until
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`April 14. At his deposition,
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` provided factual support for Mr. Kodama’s new non-
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`infringement opinion. See, e.g., Ex. 23 (
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`
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`5 Reynolds’ assertion that Dr. Abraham’s doctrine of equivalents opinion is untimely because the
` were produced in February misses the point. Dkt. 591 at 12. The new
`information necessitating Dr. Abraham’s supplemental opinion is Mr. Kodama’s belated non-
`infringement opinions and Reynolds’ new corporate testimony.
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`5
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 9 of 17 PageID# 13668
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`
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`unavailable before Dr. Abraham’s March 5 report, and he undisputedly could not have considered
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` This testimony was
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`it earlier.
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`PMP/Altria promptly supplemented Dr. Abraham’s expert report on April 26 to address
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`Mr. Kodama’s new opinions and Reynolds’ new corporate testimony. In that report, Dr. Abraham
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`included a one-paragraph opinion explaining that,
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` do not literally meet the ’911
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`Patent’s “cavity” limitation, it is met under the doctrine of equivalents. Dkt. 584-20 ¶ 34.6
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`In sum, good cause exists to allow Dr. Abraham to respond fully to Reynolds’ new non-
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`infringement opinions. Indeed, Reynolds itself argued that “[g]ood cause exists” for its own expert
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`to supplement his report based on allegedly “new opinions” from PMP/Altria’s expert to which
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`“Reynolds should have the opportunity to respond.” Ex. 22 (5/3/21 Michalik Email). The same
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`is true here, particularly given that Reynolds’ false representations and untimely disclosures caused
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`the requested supplementation.
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`2.
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`Good Cause Supports Mr. Meyer’s Supplementation
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`Reynolds’ opposition confirms that good cause exists to allow footnote 409 of Mr. Meyer’s
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`supplemental report and the accompanying calculations (Attachments 22-26).
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`
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`deposition occurred on April 16, almost two months after Mr. Meyer’s opening report. Reynolds
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`concedes that
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`to calculate
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` that Mr. Meyer used
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`.
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`Dkt. 584-16 at 99:15-102:12. Reynolds further concedes that Mr. Meyer promptly disclosed his
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`6 Reynolds does not oppose other paragraphs in Dr. Abraham’s supplemental report (Dkt. 584-20)
`responding to Mr. Kodama’s new non-infringement opinions.
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`6
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 10 of 17 PageID# 13669
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`
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`supplemental opinion after
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` deposition, and that his supplement does not change
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`his previously-disclosed damages opinions. This is precisely the diligence in view of “additional
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`discovery” that Reynolds admits shows good cause. See, e.g., Dkt. 591 at 21 (citing cases and
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`acknowledging supplementation is proper “where the expert ‘received additional discovery’”).
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`In addition, Reynolds admits that
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` deposition did not occur until after Mr.
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`Meyer’s opening report because of Reynolds’ own discovery misconduct. For example, Reynolds
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`does not dispute that it failed to identify
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` in its initial disclosures or in response to
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`Interrogatory No. 4, which expressly sought “
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`.7 Dkt. 584-18 (Reynolds’ Resp.
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`to Interr. No. 4) at 1-13. And Reynolds admits that, despite withholding his identity until serving
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`rebuttal reports on March 24,
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` provided Dr. Sullivan with
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`
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`that go to the heart of the damages dispute in this case. Dkt. 591 at 18. Had Reynolds
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`timely disclosed fact witness
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`—as it was required to do by the local and federal
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`rules—PMP/Altria would have deposed him before Mr. Meyer’s opening report and this entire
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`dispute could have been avoided. Reynolds should not be allowed to benefit from its belated and
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`prejudicial discovery failures.
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`Reynolds’ opposition all but ignores
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` new testimony. See Dkt. 591 at 16-
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`24. Instead, Reynolds contends that no good cause exists for one reason: Mr. Meyer allegedly
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`had “all the relevant information” before his opening report such that he “could have”
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`.8 Id . at 20. Reynolds is wrong; Mr. Meyer
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`7 Reynolds only disclosed two fact witnesses in response to Interrogatory No. 4, and withheld
`s identity. See Dkt. 584-18 at 3.
`8 Reynolds also confusingly asserts that “Dr. Sullivan used documents that were all available to
`Mr. Meyer at the time of his original report.” Dkt. 591 at 18. This argument is irrelevant to this
`Motion because Mr. Meyer did not rely on those documents. Regardless, like
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 11 of 17 PageID# 13670
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`undisputedly did not have “all the relevant information” because Reynolds’ discovery misconduct
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`concealed
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`, and his significance, until it served its rebuttal damages expert report.
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`And Reynolds undisputedly failed to identify
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` in response to Interrogatory No. 4, which expressly sought “all facts and evidence that
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`support or refute [Reynolds’] damages theories and bases.” Dkt. 584-18 (Reynolds’ Resp. to
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`Interr. No. 4) at 1-2. These undisputed facts refute Reynolds’ argument and confirm good cause
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`exists.
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`Finally, Reynolds’ attempt to diminish the importance of
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`arguing that PMP/Altria allegedly could have deposed
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` testimony by
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` is not credible.
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`Dkt. 591 at 17. If Reynolds believed
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` was the person with relevant knowledge, its
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`damages expert would have relied on
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`. Reynolds should not be
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`allowed to block PMP/Altria from supplementing based on new testimony from the same person
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`it chose to rely on. Regardless, as PMP/Altria explained (Dkt. 584 at 8),
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`
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`new, and it was entirely proper for Mr. Meyer to consider it and provide his limited supplemental
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`. All of this testimony is undisputedly
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`opinions.
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`The Court should not permit Reynolds to selectively withhold important information
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`during discovery, yet block PMP/Altria’s damages expert from supplementing his opinions to
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`account for undisputedly new evidence. PMP/Altria deposed
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` promptly after
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`learning of his identity, and diligently sought leave after serving Mr. Meyer’s supplemental report.
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`identity, Reynolds failed to identify the documents “Dr. Sullivan used” in response to Interrogatory
`No. 4, further evidencing Reynolds’ discovery violations.
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`8
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 12 of 17 PageID# 13671
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`Good cause therefore exists to allow footnote 409 of Mr. Meyer’s supplemental report and the
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`accompanying calculations (Attachments 22-26).
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`B.
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`PMP/Altria’s Supplementation Is Substantially Justified And Harmless
`1.
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`Reynolds Mischaracterizes The Proper Legal Standard
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`Reynolds contends that the five-factor Southern States test is inapplicable to this motion.
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`Dkt. 591 at 5. Reynolds is wrong. This District has applied the Southern States factors where, as
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`here, a party “[seeks] leave to supplement its written reports in advance of trial.” E.g., United
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`States v. 1.604 Acres of Land, No. 10-cv-320, 2011 WL 1810594, at *2 (E.D. Va. May 11, 2011)
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`(“I also acknowledge that under Federal Rule of Civil Procedure 37(c)(1), a party that failed to
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`timely supplement its expert reports may still supply that evidence at trial if the failure ‘was
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`substantially justified or is harmless.’”). Thus, even if the Court does not find good cause, the
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`Court should assess sanctions, which involves weighing “substantially the same” factors that
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`Reynolds contends apply under Rule 16(f). Welch v. Sam’s East, Inc., No. 19-cv-668, 2020 WL
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`5868029, at *2 (W.D. Va. Oct. 1, 2020). Indeed, Reynolds’s own cited case, Rambus, Inc. v.
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`Infineon Technologies AG, acknowledges that “[t]he factors to be considered under [Rule 16(f)]
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`are substantially the same as those considered under Rule 37(c) [i.e. Southern States].” 145 F.
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`Supp. 2d 721, 735-36 (E.D. Va. 2001) (assessing sanctions under Rule 16(f) “to the same extent
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`as . . . under Rule 37(c)”).
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`Accordingly, whether applying Rule 16(f) or Rule 37, the Court weighs “substantially the
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`same” factors determining whether sanctions are proper. Welch, 2020 WL 5868029, at *2. And,
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`as discussed below, there can be no credible dispute that PMP/Altria’s disclosure of the subject
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`supplemental opinions is substantially justified and harmless, and that Reynolds has not been
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`prejudiced. FED. R. CIV. P. 37(c)(1); FED. R. CIV. P. 16(f).
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`9
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 13 of 17 PageID# 13672
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`2.
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`Dr. Abraham’s Supplementation Is Substantially Justified And
`Harmless
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`Reynolds fails to show any prejudice if the Court allows Dr. Abraham’s supplementation.
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`Reynolds’ argument that Dr. Abraham’s doctrine of equivalents opinion “constitutes unfair
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`surprise” (Dkt. 591 at 13) is groundless. As discussed above, Dr. Abraham’s supplementation is
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`a consequence of Reynolds’ own factual misrepresentations about
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`and Mr. Kodama’s belated new non-infringement opinion, requiring multiple new rounds of expert
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`reports. Supra at Section II.A.1. Because the timing resulted from Reynolds’ own failings and
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`delays, Reynolds cannot colorably claim “unfair surprise” if Dr. Abraham is permitted to respond
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`to Reynolds’ eleventh hour disclosures.
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`Nor can Reynolds show prejudice. Reynolds has not deposed Dr. Abraham, and Reynolds
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`admits that it “will not suffer prejudice because [the expert] can be available for deposition.” Ex.
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`22 (5/3/21 Michalik Email). While Reynolds contends that additional testimony from PMP’s
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`inventors may be required if Dr. Abraham’s supplementation is allowed (Dkt. 591 at 14), Reynolds
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`provides no detail about how such testimony is relevant to an expert’s doctrine of equivalents
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`analysis that requires comparing the “function, way, result” of Reynolds’
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` to the ’911
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`Patent claims.9 Even if such testimony were relevant, PMP has asserted a doctrine of equivalence
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`theory from the beginning of this case, and thus Reynolds was on notice to examine the inventors
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`about the “cavity” limitation at their prior depositions. Dkt. 591 at 14 n.14. Finally, Reynolds
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`9 Reynolds’ cited cases (Dkt. 591 at 14) are inapposite. See, e.g., Calmac Mfg. Corp. v. Dunham-
`Bush, Inc., 929 F. Supp. 951, 962 (E.D. Va. 1996) (discussing prosecution history estoppel, which
`does not apply here). Nor does Eagle Pharmaceuticals support Reynolds’ argument that extensive
`additional fact discovery is necessary here, as the Eagle court issued judgment on the pleadings
`without further fact finding. Eagle Pharms., Inc. v. Slayback Pharma LLC, 382 F. Supp. 3d 341,
`346 (D. Del. 2019) (rejecting Eagle’s “attempts to manufacture a factual dispute”), aff’d, 958 F.3d
`1171 (Fed. Cir. 2020).
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 14 of 17 PageID# 13673
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`does not dispute that the Court has not yet set a trial date, and that no disruption will occur if the
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`Court allows the minor supplementation.
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`3.
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`Mr. Meyer’s Supplementation Is Substantially Justified And
`Harmless
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`Mr. Meyer’s prompt disclosure of a single footnote and supporting calculations are
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`likewise neither surprising nor prejudicial, will not disrupt trial, and any surprise can be cured.
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`Notably, Reynolds does not contend that Mr. Meyer’s supplemental opinion will disrupt trial, or
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`even the upcoming expert depositions. See id. And Reynolds does not dispute that it can cure any
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`surprise by deposing Mr. Meyer—which Reynolds will have a full and fair opportunity to do. Nor
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`could it, as noted above—when seeking to inject new opinions from its own expert, Reynolds
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`unequivocally stated: “Defendants will not suffer prejudice because [Reynolds’ expert] can be
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`available for deposition.” Ex. 22 (5/3/21 Michalik Email). Reynolds cannot have it both ways; its
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`admission is dispositive. Regardless, both of Reynolds’ prejudice arguments fail.
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`First, Reynolds’ assertion that it is “prejudiced by Mr. Meyer’s disregard of the Scheduling
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`Order” is a red herring. Dkt. 591 at 23. PMP/Altria did not “disregard” the Scheduling Order.
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`Instead, PMP/Altria disclosed Mr. Meyer’s supplemental opinion after receiving new discovery
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`and promptly sought leave, as the Federal Rules and Scheduling Order require. Dkt. 584. Asking
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`the Court’s permission is the opposite of “disregarding” the Court’s schedule. Indeed, it is
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`Reynolds, not PMP/Altria, who “disregard[ed]” the Court’s Scheduling Order by disclosing new
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`“supplemental” opinions (beyond mere citations) without seeking leave. Id.
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`Second, Reynolds argues that allowing supplementation will “prejudice Reynolds’ ability
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`to prepare for trial.” Dkt. 591 at 24. Reynolds cannot credibly claim disruption to its trial
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`preparation when trial has not been set. This is particularly true because Reynolds admits that Mr.
`
`11
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 15 of 17 PageID# 13674
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`Meyer’s supplementation does not change his ultimate damages opinions. Reynolds’ attempt to
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`manufacture prejudice where none exists should be rejected.10
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`III. CONCLUSION
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`For the reasons above and in PMP/Altria’s Motion, PMP/Altria respectfully request that
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`the Court grant this Motion and allow paragraph 34 of Dr. Abraham’s supplemental report and
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`paragraph 268 fn. 409 and attachments 22-26 of Mr. Meyer’s supplemental report.
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`10 Reynolds’ argument—that PMP/Altria should have deposed Dr. Sullivan, rather than
`supplement Mr. Meyer’s report based on new evidence (Dkt. 591 at 24), is nonsensical. Dr.
`Sullivan improperly relied on
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` Dkt. 584-16
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`,” (Dkt. 584-16 at 99:15-102:12);
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`at 90:12-91:6. Dr. Sullivan did not rely on
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`Mr. Meyer did.
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`12
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`REDACTED
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`REDACTED
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`

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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 16 of 17 PageID# 13675
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`Dated: May 6, 2021
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`Respectfully submitted,
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`
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`/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
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (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 K. Sobolski (pro hac vice)
`Greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (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
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
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`13
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`Case 1:20-cv-00393-LO-TCB Document 594 Filed 05/06/21 Page 17 of 17 PageID# 13676
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 6th day of May, 2021, 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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`
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`/s/ Maximilian A. Grant
`
`
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`
`
`
`Maximilian A. Grant (VSB No. 91792)
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Suite 1000
`Washington, DC 20004
`Telephone: (202) 637-2200
`Facsimile: (202) 637-2201
`Email: max.grant@lw.com
`
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
`
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`14
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