Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 1 of 7 PageID# 20984
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`Civil No. 1:20-cv-00393-LO-TCB
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
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`REYNOLDS’S OPPOSITION TO COUNTERCLAIM PLAINTIFFS’ MOTION FOR
`SCHEDULING ORDER SETTING IN LIMINE/DAUBERT MOTION DATES
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 2 of 7 PageID# 20985
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`INTRODUCTION
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`PMP/Altria’s proposal to schedule all proceedings on Daubert challenges and motions in
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`limine in August and September 2021 is admittedly based on nothing more than their hope for a
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`trial date that is different from, and far earlier than, the April 4, 2022, date actually set by this
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`Court. Moreover, their hoped-for schedule fails to account for the fact that there are several events
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`anticipated over the next three to four months that could have profound impact on the issues
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`remaining for trial and the evidence relevant to those issues, including: (i) this Court’s ruling on
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`the parties’ pending cross motions for summary judgment; (ii) the Final Determination of the
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`International Trade Commission regarding whether PMP/Altria should be barred from importing
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`the IQOS products into the United States; and (iii) the PTAB’s decisions on whether to institute
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`Reynolds’s IPRs against the patents asserted here by PMP/Altria. PMP/Altria’s Motion would
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`require the parties to brief their respective Daubert and in limine challenges without the benefit of
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`these critical decisions, any one of which could significantly change the evidentiary landscape and
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`thus require this pretrial work to be redone. There is no reason for it.
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`To account for changes that might be brought about by those events, and in keeping with
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`the trial date set by this Court, Reynolds respectfully submits that PMP/Altria’s Motion should be
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`denied. The Court instead should enter Reynolds’s schedule as proposed below:
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`Event
`Exchange MIL topics
`Meet and confer on MIL topics
`Opening MILs and Daubert motions
`Oppositions to MIL and Daubert motions
`Replies to MILs and Daubert motions
`Trial begins per Court’s Order
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`Deadline
`December 3, 2021
`December 10, 2021
`January 14, 2022
`January 28, 2022
`February 3, 2022
`April 4, 2022
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 3 of 7 PageID# 20986
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`ARGUMENT
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`The Court’s Scheduling Order anticipates that the parties will file Daubert motions and
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`motions in limine close to trial. See Dkt. 97 at 24 (Daubert motions and motions in limine to be
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`filed “in time to be heard at least two weeks before the applicable trial”). At the final pretrial
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`conference held on May 21, 2021, the Court set trial on PMP/Altria’s asserted patents for April 4,
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`2022. PMP/Altria state that the Court offered some sort of indication that it might move the trial
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`forward, possibly into Fall 2021, if a slot becomes available on the Court’s calendar, and thus they
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`insist that all Daubert challenges and motions in limine must be fully briefed and submitted to the
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`Court for decision in the next two months. Dkt. 771 at 1. None of the counsel for Reynolds who
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`were present for the final pretrial conference recall any such suggestion by the Court; to the
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`contrary, the Court indicated numerous times that, due to the backlog of trials caused by COVID-
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`19 restrictions, April 2022 was the very first available date for trial of this matter. Regardless,
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`April 4, 2022, is the date that the Court set for trial, and it should control over the non-existent
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`earlier date hoped for by PMP/Altria. Moreover, there are several events in the coming months
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`that will likely significantly impact the issues and associated evidence for trial, and thus shape the
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`parties’ respective Daubert challenges and motions in limine.
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`Summary Judgment. Both sides have moved for summary judgment on certain claims and
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`issues in the case. Briefing on the parties’ cross motions is complete, and the Court has scheduled
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`oral argument for July 16. The Court’s resolution of these motions will plainly impact the Daubert
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`and other evidentiary motions that the parties may choose to bring before the Court. For example,
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`if the Court grants Reynolds’s motion for summary judgment of invalidity of the ’374 patent, that
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`would obviate the need for Reynolds to file (and the Court to rule on) Daubert motions directed to
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`the expert opinions offered by PMP/Altria on that patent. So too with respect to Reynolds’s motion
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`for summary judgment of noninfringement of the asserted ’911 patent, which likewise may obviate
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 4 of 7 PageID# 20987
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`the need for Reynolds to file a motion in limine or Daubert challenge seeking exclusion of evidence
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`regarding the doctrine of equivalents. Under the schedule proposed by PMP/Altria, however, any
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`such motions would need to be filed by August 20—barely a month after the cross motions for
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`summary judgment are even argued. Even considering this Court’s dedication and quick decisions
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`in this case, it is unlikely that the parties will have sufficient time to receive, digest, and make
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`changes based on a summary judgment ruling in the few weeks that PMP/Altria’s schedule would
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`afford.
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`ITC Final Determination. As the Court is well aware, Judge Cheney recently issued an
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`Initial Determination in the parallel ITC Investigation that (i) finds that the IQOS products infringe
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`eight valid claims of two Reynolds patents; and (ii) recommends an exclusion order that would bar
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`the future importation of the IQOS products into the United States. This Court has correctly
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`recognized that the Initial Determination, if upheld by the full Commission, “undercuts the
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`irreparable harm undergirding PMP’s claim for injunctive relief.” Dkt. 702. The decision of the
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`full Commission is expected in September 2021. Understanding the potential significance of that
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`ruling, this Court has stayed any expert discovery around PMP’s claim for injunctive relief. Id.
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`Those same considerations weigh in favor of scheduling expert-related Daubert challenges, and
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`motions in limine directed to the evidence around PMP’s injunction claims (which will change
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`dramatically if the Initial Determination is upheld), until an appreciable period has elapsed after
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`the Commission’s Final Determination. This will not be possible under the schedule proposed by
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`PMP/Altria.
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`IPR Institution Decisions. Finally, Reynolds has filed IPR petitions before the PTAB,
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`challenging the validity of each of the five patents asserted by PMP/Altria in this case. The PTAB
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`is set to rule on institution in September, October, and November of 2021. If the PTAB institutes
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 5 of 7 PageID# 20988
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`inter partes review of any or all of the asserted patents, Reynolds expects the parties may have to
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`brief the admissibility of evidence from the ongoing IPR proceedings at trial.
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`*****
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`In short, all three of these key decisions that are anticipated in the next three to four months
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`are likely to affect the Daubert and other evidentiary issues as to which the parties will likely move,
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`as well as the substance of their arguments. The Court’s original timeline—i.e., briefing Daubert
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`motions and motions in limine to be heard approximately two weeks before trial—allows the
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`parties to continue to narrow their claims as trial nears, and also will permit the parties to focus
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`their Daubert motions and motions in limine on their remaining contentions after these intervening
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`rulings are made. If the parties were instead to complete motion practice on Daubert and motions
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`in limine now, as PMP/Altria propose, they and the Court may well be required to revisit some the
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`same issues prior to trial in April 2022, including through re-briefing. Accordingly, because
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`PMP/Altria’s proposed schedule has the clear potential to create inefficiencies and duplication of
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`work, the Court should deny the instant Motion and instead adopt the schedule proposed by
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`Reynolds.
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`CONCLUSION
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`For the foregoing reasons, Reynolds respectfully requests that the Court enter an Order
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`denying PMP/Altria’s Motion and establishing the following schedule for Daubert motions and
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`motions in limine:
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`Event
`Exchange MIL topics
`Meet and confer on MIL topics
`Opening MILs and Daubert motions
`Oppositions to MIL and Daubert motions
`Replies to MILs and Daubert motions
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`Deadline
`December 3, 2021
`December 10, 2021
`January 14, 2022
`January 28, 2022
`February 3, 2022
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 6 of 7 PageID# 20989
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`Respectfully submitted,
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`/s/ David M. Maiorana_________________
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`Email: jjnormile@jonesday.com
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`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
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`
`Charles B. Molster, III (Va. Bar No. 23613)
`THE LAW OFFICES OF
`CHARLES B. MOLSTER, III PLLC
`2141 Wisconsin Avenue, N.W. Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`
`Counsel for Plaintiffs RAI Strategic
`Holdings, Inc. and R.J. Reynolds Vapor
`Company
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`Dated: July 7, 2021
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
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`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
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`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, Minnesota 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`Case 1:20-cv-00393-LO-TCB Document 779 Filed 07/07/21 Page 7 of 7 PageID# 20990
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`CERTIFICATE OF SERVICE
`I hereby certify that on this 7th day of July, 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
`counsel of record.
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`/s/ David M. Maiorana___________________
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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