Yes, technically the case has already been dismissed. The question is will Judge Batten allow HCMC to amend the complaint and thereby revive the case. If Judge Batten denies a Motion to Amend, there is an absolute right to appeal. The potential for success on appeal is dependent on what gets filed today, so it is hard to say, but you are right that amendment should be granted liberally. Again, it depends on how much Cozen does here. If they file another underwhelming motion and proposed amended complaint, then chances are not great. If they file a great motion to amend, with expert testimony refuting why the FDA document should not be necessarily credited, and attaching that expert declaration to the proposed amended complaint, I would expect the chances of getting to an amended complaint to be good in my opinion.
Ideally, the expert declaration and the proposed amended complaint would provide evidence that HCMC purchased the IQOS device and tested it; that those tests resulted in byproducts of combustion; that there is a credible factual dispute as to what constitutes combustion; and either (1) the low temperature aspect of the IQOS device is not dispositive because, according to the science, combustion can occur at these lower values or (2) that based on testing, the IQOS actually heats to a higher temperature, high enough to allow combustion.
I laid out a less detailed version of this path - one that relied upon expert testimony - more than 3 months ago after PM filed its motion to dismiss and before HCMC responded. It is in one of my posts. But I am not HCMC's lawyer. Cozen is.
let's see what the filing looks like.
