Rebotix Repair LLC v. Intuitive Surgical, Inc.

Filing 185

ORDER: Plaintiff Rebotix Repair, LLC's Daubert Motion to Exclude the Opinions of Dr. Sarah Parikh (Doc. # 111) is DENIED. Defendant Intuitive Surgical, Inc.'s Daubert Motion to Exclude the Opinions of Dr. Larry Chiagouris (Doc. # 112) is GRANTED in part and DENIED in part. The Motion is granted to the extent set forth in this Order and is otherwise denied. Signed by Judge Virginia M. Hernandez Covington on 8/10/2022. (SGM)

Case 8:20-cv-02274-VMC-TGW Document 185 Filed 08/10/22 Page 1 of 19 PageID 36759

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
REBOTIX REPAIR, LLC,
Plaintiff /
Counterclaim Defendant,
v.

Case No. 8:20-cv-2274-VMC-TGW

INTUITIVE SURGICAL, INC.,
Defendant /
Counterclaim Plaintiff.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Plaintiff Rebotix Repair, LLC’s Daubert Motion to Exclude the
Opinions of Dr. Sarah Parikh (Doc. # 111) and Defendant
Intuitive Surgical, Inc.’s Daubert Motion to Exclude the
Opinions of Dr. Larry Chiagouris. (Doc. # 112). Both parties
have responded. (Doc. ## 122, 149). For the reasons that
follow, Rebotix’s Motion to exclude Dr. Parikh’s opinions is
denied, and Intuitive’s Motion to exclude Dr. Chiagouris’s
opinions is granted in part and denied in part.
I.

Background
The Court and the parties are well familiar with the

background facts and claims in this case, and the Court will
not belabor them here. Suffice it to say that this is an

1

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antitrust suit initiated by Rebotix, a company that offers a
service whereby it “repairs” the EndoWrist surgical implement
originally manufactured by Intuitive.
Intuitive seeks to offer Dr. Sara Parikh’s testimony in
support of its false-advertising based counterclaims 1, and
Rebotix

has

offered

Dr.

Larry

Chiagouris’s

opinion

in

rebuttal thereof. Thus, the Court will address them together.
1. Dr. Parikh’s Report
Dr. Parikh is the president of a marketing research and
consulting firm. (Doc. # 111-3 at 4). She has an M.A. and
Ph.D. in Sociology and over 30 years’ experience designing
and conducting research studies. (Id.). To support its claim
that Rebotix willfully deceived customers, Intuitive retained
Dr. Parikh to design and conduct a survey to measure how
“prospective
Rebotix’s

customers

advertising”

of
with

Rebotix’s
respect

services
to

perceive

information

that

Intuitive claims is willfully deceptive. Specifically, Dr.
Parikh conducted an online survey with a national sample of
200 members of the healthcare industry, including surgeons,
nurses, and hospital administration, all of whom are somehow

Intuitive has asserted counterclaims against Rebotix for
violations of the Lanham Act, common law unfair competition,
and the Florida Deceptive and Unfair Trade Practices Act.
1

2

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involved with robotic-assisted surgical procedures. (Id. at
7).

The

survey

exposed

respondents

to

a

one-page

flyer

advertising Rebotix’s services and then asked a series of
questions “concerning their takeaway from the ad.” (Id.).
To summarize the survey’s findings, two-thirds of the
survey participants took away a “repair” message from the ad,
although

approximately

one-third

of

participants

did

not

expect the “repair” to include the physical modifications
that Rebotix performs on the EndoWrists. (Id.). In addition,
the survey found that cost savings was a central message of
the ad and that “a significant proportion” of respondents
believed that Rebotix was “authorized, approved or endorsed
by Intuitive.” (Id. at 8). Dr. Parikh also found that few
participants identified potential drawbacks or disadvantages
to using Rebotix’s services, such as the voiding of their
warranty or service contracts with Intuitive (12%) or risk to
patient safety (5%).
2. Dr. Chiagouris’s Report
Dr. Chiagouris is also the president of a marketing and
advertising research and consulting firm. (Doc. # 112-3 at
5). He was retained to review the report prepared by Dr.
Parikh described above (the Parikh Report) and provide his
opinions thereon. According to Dr. Chiagouris, the Parikh
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Report suffers from several fatal flaws: (1) the conclusions
in the Parikh Report are based on an “unspecified and likely
wrong survey population and a wrong sample”; (2) Dr. Parikh
failed to document and disclose other relevant information
that decreased the representativeness of her sample; (3) Dr.
Parikh failed to pretest her survey, leading to the “potential
use” of biased and misleading questions; (4) the Parikh Report
failed

to

use

appropriate

quality

controls,

leading

to

invalid answers from some respondents; and (5) the Report’s
design was flawed because it is not representative of the
marketplace

and

is

inconsistent

with

“widely

accepted

understanding of relevant consumer behavior.” (Id. at 8-27).
As a result of these alleged flaws, “the Parikh Report does
not provide any valid or reliable data that indicates that
customers were misled by Rebotix’s marketing materials.” (Id.
at 27).
Being fully briefed, both Motions are now ripe for
review.
II.

Discussion
Federal Rule of Evidence 702 states:
A witness who is qualified as an expert by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or
otherwise
if:
(a)
the
expert’s
scientific,
technical, or other specialized knowledge will help
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the trier of fact to understand the evidence or to
determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the
testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.
Fed. R. Evid. 702.
Implementing Rule 702, Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579 (1993), requires district courts to ensure
that any and all scientific testimony or evidence admitted is
both relevant and reliable. See Id. at 589–90. The Daubert
analysis also applies to non-scientific expert testimony.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999).
District courts must conduct this gatekeeping function “to
ensure that speculative, unreliable expert testimony does not
reach

the

accompanies

jury
the

under

the

mantle

appellation

‘expert

of

reliability

testimony.’”

that

Rink

v.

Cheminova, Inc., 400 F.3d 1286, 1291 (11th Cir. 2005).
The Eleventh Circuit “requires trial courts acting as
gatekeepers to engage in a ‘rigorous three-part inquiry.’”
Hendrix v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010).
The district court must assess whether:
(1) the expert is qualified to testify competently
regarding the matters he intends to address; (2)
the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined
by the sort of inquiry mandated in Daubert; and (3)
the testimony assists the trier of fact, through
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the application of scientific, technical, or
specialized expertise, to understand the evidence
or to determine a fact in issue.
Id. The proponent of the expert testimony bears the burden of
showing,

by

a

preponderance

of

the

evidence,

that

the

testimony satisfies each of these requirements. Id.
1.

Dr. Parikh

Rebotix does not contest Dr. Parikh’s qualifications but
instead concentrates on arguments attacking the relevance of
the survey, along with her methodology and its reliability.
a.

Helpfulness to the trier of fact

Under Daubert, courts must “ensure that the proposed
expert testimony is ‘relevant to the task at hand,’ . . .
i.e., that it logically advances a material aspect of the
proposing party’s case.” Allison v. McGhan Med. Corp., 184
F.3d 1300, 1312 (11th Cir. 1999).
Rebotix’s primary argument is that the advertisement at
the center of Dr. Parikh’s survey, a one-page flyer for
Rebotix’s services, is irrelevant because it is “immaterial.”
In other words, to succeed on its counterclaims, Intuitive
must demonstrate that Rebotix’s allegedly false advertising
had

a

“material

effect”

on

purchasing

decisions,

and

Intuitive has not developed any evidence that the one-page
flyer had any effect on any customer’s purchasing decision.
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Rebotix points out that any hospital representative would
have relied on a larger universe of data when making important
equipment

purchasing

decisions,

that

Dr.

Parikh’s

study

concededly did not test purchasing decisions or materiality,
and the one-page flyer used is not representative of Rebotix’s
advertising. Intuitive responds that Dr. Parikh’s survey was
meant to evaluate the false-advertising element of deception,
not materiality, with respect to certain messages present in
the flyer. 2
The Court is mindful that expert testimony is helpful to
the trier of fact when it “logically advances a material
aspect of the proposing party’s case” and it must “offer[]
[something] more than what lawyers for the parties can argue
in closing arguments.” Delta T, LLC v. Dan’s Fan City, Inc.,
No. 8:19-cv-1731-VMC-SPF, 2021 WL 2103074, at *5 (M.D. Fla.
May 25, 2021). The Court is persuaded that Dr. Parikh’s survey
logically advances the “deception” prong of Intuitive’s false

A claim for false advertising under the Lanham Act requires
a plaintiff to demonstrate: (1) a false or misleading
advertisement (2) that deceived, or had the capacity to
deceive, consumers; (3) the deception had a material effect
on purchasing decisions; (4) the misrepresented product or
service affects interstate commerce; and (5) the plaintiff
has been, or is likely to be, injured by the false
advertising. J-B Weld Co., LLC v. Gorilla Glue Co., 978 F.3d
778, 796 (11th Cir. 2020).
2

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advertising claims. See Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1261 (11th Cir. 2004) (explaining that where
allegedly actionable statements are not “literally false” but
still

misleading,

plaintiffs

must

present

evidence

of

deception, such as “consumer surveys, market research, [or]
expert testimony”). And Rebotix does not point this Court to
any legal authority in which a survey that addresses some,
but not all, of the false-advertising factors was deemed
inadmissible. See Taylor v. Trapeze Mgmt., LLC, No. 0:17-CV62262-KMM, 2019 WL 1977514, at *4 (S.D. Fla. Feb. 28, 2019)
(finding expert’s opinion about a marketing research survey
that explored possible consumer confusion to go “to the heart
of the Lanham Act issues in this case” would accordingly be
helpful to the trier of fact); Edmondson v. Caliente Resorts,
LLC, No. 8:15-cv-2672-SDM-TBM, 2017 WL 10591833, at *8-10,
*12 (M.D. Fla. Aug. 31, 2017) (denying motion to exclude
expert’s

“testimony

deception”

regarding

pertaining

to

consumer

survey

about

confusion
what

and

consumers

“understood” from advertising because it was “helpful to the
fact-finder

in

this

case

on

an

issue

presented

in

this

action”).
The Court now turns to Rebotix’s argument that the onepage flyer is not a proper stimulus because it was not
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representative of its advertising. Dr. Parikh stated in her
report that she understood the flyer was actually used by
Rebotix in its marketing efforts. (Doc. # 111-3 at 9); see
also (Doc. # 149-2 at 178-79 (Rule 30(b)(6) deposition of
Rebotix corporate representative, in which he acknowledges
that Rebotix used this flyer with “potential customers”).
Rebotix does not dispute that it produced and disseminated
this

flyer

for

marketing

purposes,

but

it

argues

that

hospitals left this flyer sitting on the table in favor of
reading more detailed advertising provided by Rebotix, and it
pointed

to

several

ways

in

which

its

more

substantive

advertising paints a clearer picture for customers.
But Intuitive points out that it is not attempting to
show that customers relied on this one flyer to purchase
Rebotix services. Rather, they believe that the flyer is an
“exemplar” of the sorts of misleading representations Rebotix
made to its customers, misrepresentations that (it claims)
were

prevalent

throughout

Rebotix’s

marketing

materials.

(Doc. # 149 at 11-12). The parties’ dueling versions of fact
on this point are questions for the factfinder. It is enough
for now that Dr. Parikh testified to her conclusion that the
flyer was representative, a conclusion which is not entirely
speculative.

See

Edmondson,

2017
9

WL

10591833,

at

*11

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(allowing expert opinion to proceed where witness chose three
“representative” advertisements to show the survey group and
explaining

that

questions

about

why

and

how

the

expert

“extrapolate[d] his survey results to all of the ads”).
b.

Reliability

Rebotix
inadmissible

also
as

argues

that

unreliable

Dr.

because

Parikh’s
her

opinions

survey

fails

are
to

reflect “real world conditions” because it does not reflect
the way that Rebotix customers would actually encounter its
marketing materials.
“Exactly how reliability is evaluated may vary from case
to case, but what remains constant is the requirement that
the trial judge evaluate the reliability of the testimony
before allowing its admission at trial.” United States v.
Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citing Fed. R.
Evid. 702, Advisory Committee Notes (2000)). There are four
recognized, yet non-exhaustive, factors a district court may
consider in evaluating reliability:
(1) whether the expert’s methodology has been
tested or is capable of being tested; (2) whether
the technique has been subjected to peer review and
publication; (3) the known and potential error rate
of the methodology; and (4) whether the technique
has
been
generally
accepted
in
the
proper
scientific community.

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Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.
2016) (citations omitted). A district court can take other
relevant

factors

into

account

as

well.

Id.

(citations

omitted).
When evaluating surveys, “[t]he general rule is that
methodological flaws in a survey bear on the weight the survey
should receive, not the survey’s admissibility.” FCOA, LLC v.
Foremost Title & Escrow Servs., LLC, No. 17-23917-CIV, 2019
WL 416817, at *5 (S.D. Fla. Feb. 1, 2019). Thus, while there
may be some occasions in which a proffered survey is so flawed
“to be completely unhelpful to the trier of fact and therefore
inadmissible, such situations will be rare.” Edmondson, 2017
WL 10591833, at *10.
The Court understands Rebotix’s concern that Dr. Parikh
failed

to

accurately

replicate

the

complex

real-world

decision-making in which hospitals engage. But so long as
scientifically valid methods are used, an expert need not
precisely replicate real-world conditions and any failure to
do so goes to weight, not admissibility. See Mizrahi v. Yamaha
Motor

Corp.,

3318527,
replicate

at

USA,
*5-6

No.

17-24484-CIV-SCOLA/TORRES,

(S.D.

real-world

Fla.

July

conditions

19,

2019)

went

to

2019

WL

(failure

to

weight,

not

admissibility). Rebotix has not demonstrated any fatal flaw
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in Dr. Parikh’s survey. Any methodological flaws go more to
the weight of the evidence than its admissibility and any
shortcomings in the methodology of Dr. Parikh’s survey are
more properly left for cross-examination. See Maiz v. Virani,
253

F.3d

641,

666

(11th

Cir.

2001)

(“Vigorous

cross-

examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking [debatable] but admissible
evidence.”); Cardenas v. Toyota Motor Corp., 2021 WL 5811741,
at *5 (S.D. Fla. Dec. 6, 2021) (“[A]rguments about a consumer
survey’s

methodology

generally

go

to

weight,

Dr.

Parikh’s

not

admissibility.”).
Finally,

Rebotix

claims

that

opinions

present a danger of confusing and misleading the jury. See
Trouble v. Wet Seal, Inc., 179 F. Supp. 2d 291, 307 (S.D.N.Y.
2001) (“Survey evidence must be excluded under Federal Rule
of Evidence 403 where it is so flawed in methodology that its
probative

value

is

substantially

outweighed

by

its

prejudicial effect.”). But Rebotix will get the opportunity
to cross-examine Dr. Parikh to flesh out any alleged arguments
as to why the survey she conducted was flawed. See Nightlight
Sys., Inc. v. Nitelites Franchise Sys., Inc., No. 1:04-cv2112-CAP, 2007 WL 4563973, at *10 (N.D. Ga. July 17, 2007)
12

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(rejecting motion to exclude survey under Rule 403 because to
the extent technical flaws in the survey exist, they were not
likely to confuse the jury).
Accordingly, Rebotix’s Motion to Exclude the Opinions of
Dr. Parikh is denied.
2.

Dr. Chiagouris

Intuitive takes issue with three of Dr. Chiagouris’s
opinions.
opinion
“likely”

First,

that

Intuitive

certain

were

not

argues

respondents

responsible

that
in

for

Dr.

Dr.

Chiagouris’s

Parikh’s

purchasing

survey

Rebotix’s

services (because she included surgical staff in the survey
instead of limiting it to high-level hospital administrators)
is outside of his expertise and without a sufficient basis.
Second, he believes Dr. Parikh’s survey does not “reflect the
manner in which Rebotix sells its services to hospitals”
because the flyer she used would not be considered alone and
would not be relied upon in the actual purchase decision. But
Intuitive argues that Dr. Chiagouris has no independent basis
to make this claim about whether the flyer was representative
and

simply

“parrots

Rebotix’s

assertions

as

his

own.”

Finally, Dr. Chiagouris opines that Dr. Parikh’s survey is
not “relevant to the current legal matter” or “fail[s] to
generate probative evidence relevant to the legal controversy
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in this case,” which Intuitive points out goes to an ultimate
legal conclusion.
The first question under Daubert is whether the proposed
expert witness is qualified to testify competently regarding
the matters he or she intends to address. City of Tuscaloosa
v. Harcros Chems., Inc., 158 F.3d 548, 563 (11th Cir. 1998).
An expert may be qualified “by knowledge, skill, experience,
training, or education.” Fed. R. Evid. 702. “Determining
whether

a

witness

is

qualified

to

testify

as

an

expert

‘requires the trial court to examine the credentials of the
proposed expert in light of the subject matter of the proposed
testimony.’” Clena Invs., Inc. v. XL Specialty Ins. Co., 280
F.R.D. 653, 661 (S.D. Fla. 2012) (quoting Jack v. Glaxo
Wellcome, Inc., 239 F. Supp. 2d 1308, 1314–16 (N.D. Ga.
2002)).
“This inquiry is not stringent, and so long as the expert
is

minimally

expert’s

qualified,

expertise

[go]

objections
to

to

credibility

the
and

level

of

the

weight,

not

admissibility.” Id. (citations and internal quotation marks
omitted). The Court is mindful that its “gatekeeper role under
Daubert ‘is not intended to supplant the adversary system or
the role of the jury.’” Maiz, 253 F.3d at 666 (quoting
Allison, 184 F.3d at 1311).
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Because

Dr.

Chiagouris’s

qualifications

(or

lack

thereof) are tied to the other arguments Intuitive makes about
the reliability of his methodology, the Court will move on to
those arguments.
The Court turns first to Dr. Chiagouris’s opinion that
Dr. Parikh’s survey sample was incorrect because she failed
to limit respondents to high-level hospital administrative
personnel. Intuitive argues that because Dr. Chiagouris is
not qualified in these areas, he had to rely on three flimsy
pieces of evidence to support his opinions: (1) a 25-minute
telephone

conversation

with

Glen

Papit,

Rebotix’s

vice

president, in which Papit told Dr. Chiagouris that doctors
and nurses were not involved in the hospitals’ purchasing
decision

but

“might”

demonstration;
Rebotix’s

(2)

counsel)

a

be

asked

document

that

was

to

observe

(seemingly

purportedly

a

Rebotix

compiled

an

excerpt

by
from

Papit’s 2019 weekly planner showing certain sales meetings he
had during a six-week time frame; and (3) two “unverified”
blog posts about hospital marketing. Intuitive argues that
this is improper because Dr. Chiagouris is simply offering
his own ipse dixit, which rests on unverified and unsupported
assumptions,

and

limited

information

15

fed

to

him

by

an

Case 8:20-cv-02274-VMC-TGW Document 185 Filed 08/10/22 Page 16 of 19 PageID 36774

interested party (Papit), such that the opinion does not rest
on any expert analysis or testable methodology.
Intuitive’s

Motion

is

denied

on

this

point.

Dr.

Chiagouris is an expert in marketing and consumer research
surveys being offered to critique the alleged design flaws in
the Parikh Report. Correctly identifying the right survey
population

is

an

important

part

of

survey

design.

Dr.

Chiagouris may testify generally about how a relevant survey
population should be chosen and why he believes the Parikh
Report has a flawed survey population. To the extent Intuitive
wishes to question Dr. Chiagouris on his lack of expertise in
hospital

procurement

matters,

it

may

do

so

on

cross-

examination.
Next, the Court turns to whether Dr. Chiagouris may opine
about whether the flyer used in Dr. Parikh’s survey would be
relied

upon

in

the

actual

purchase

decisions

made

by

hospitals. In his report, Dr. Chiagouris wrote that: “[T]he
Parikh Report relied upon a stimulus that did not and does
not reflect the manner in which Rebotix sells its services to
hospitals. . . . [T]he Parikh Report only exposed respondents
to a single Rebotix flyer. . . . This is not reflective of
the sales process used by Rebotix to engage prospective
customers.

Rebotix

provided
16

a

number

of

materials

to

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customers, engaged in follow up conversations, and answered
any questions that a prospective customer could have. Because
Dr. Parikh’s survey failed to accurately capture the manner
in which Rebotix advertised to customers, her survey does not
provide

relevant

data

on

how

potential

customers

would

respond to Rebotix’s advertising practices.” (Doc. # 112-3 at
26).
The Court will permit Dr. Chiagouris to offer this
opinion.

Dr.

Chiagouris’s

testimony

is

being

offered

to

demonstrate the alleged flaws in the Parikh Report and whether
or not she chose the correct stimulus is a matter within his
experience and expertise.
Finally, Intuitive points out that Dr. Chiagouris states
at certain points in his report that Dr. Parikh’s survey is
“not relevant to the current legal matter” or that it “fails
to

generate

controversy

probative
in

this

evidence

case.”

relevant

Rebotix

to

the

legal

counters

that

these

sentences only reflected Dr. Chiagouris’ finding that Dr.
Parikh’s survey was based on a flawed design that was not
representative of the characteristics of the marketplace.
It is black letter law that testifying experts may not
offer legal conclusions. SEC v. Spartan Secs. Grp., Ltd., No.
8:19-cv-448, 2020 WL 7024885, at *5 (M.D. Fla. Nov. 30, 2020);
17

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see also Clarke v. HealthSouth Corp., No. 8:14-cv-778, 2021
WL 129821, at *5 (M.D. Fla. Jan. 14, 2021) (explaining that
only

the

court

may

instruct

the

jury

on

relevant

legal

standards and that “expert testimony generally will not help
the trier of fact when it offers nothing more than what
lawyers for the parties can argue in closing arguments”). The
Court will not allow Dr. Chiagouris to offer any opinions
about

legal

import,

or

conclusions,
weight

of

Dr.

including
Parikh’s

the

legal

survey.

He

relevance,
may

offer

opinions bearing on design flaws within the survey within the
confines of the Federal Rules of Evidence and this Order.
Accordingly, Intuitive’s Motion to Exclude the Opinions
of Dr. Chiagouris is granted in part and denied in part.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Rebotix

Repair,

LLC’s

Daubert

Motion

to

Exclude the Opinions of Dr. Sarah Parikh (Doc. # 111) is
DENIED.
(2)

Defendant Intuitive Surgical, Inc.’s Daubert Motion to

Exclude the Opinions of Dr. Larry Chiagouris (Doc. # 112) is
GRANTED in part and DENIED in part. The Motion is granted to
the extent set forth in this Order and is otherwise denied.

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DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of August, 2022.

19