Rebotix Repair LLC v. Intuitive Surgical, Inc.

Filing 187

ORDER: Plaintiff Rebotix Repair, LLC's Motion for Summary Judgment (Doc. # 108) is DENIED. Defendant Intuitive Surgical, Inc.'s Motion for Summary Judgment (Doc. # 117) is DENIED. The Motions to maintain certain filings under seal ( Doc. ## 118, 153) are GRANTED for the reasons stated herein. The Motion to Strike the Declaration of Richard Lyon (Doc. # 160) is DENIED AS MOOT. The Clerk is directed to terminate the pending sealed versions of these motions. The Clerk is further directed to lift the stay of this case. The Court will set new deadlines in this case by separate order. Signed by Judge Virginia M. Hernandez Covington on 8/10/2022. (SGM)

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 1 of 58 PageID 36794

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
the cross Motions for Summary Judgment filed by Plaintiff
Rebotix Repair, LLC and Defendant Intuitive Surgical, Inc.
(Doc. ## 108, 117). Both Motions have been fully briefed.
(Doc. ## 141, 147, 148, 152). For the reasons that follow,
both Motions are denied, and this case will proceed to trial.
I.

Background
A.

Intuitive’s and Rebotix’s business models

Defendant Intuitive designs, manufactures, and sells
minimally
Surgical

invasive
Systems

surgical

(“da

robots

Vincis”))

(known

along

with

as

da

Vinci

accompanying

instruments and accessories, to hospitals and surgery centers
worldwide. (Doc. # 117 at ¶ 1; Doc. # 1 at ¶¶ 1, 6). The

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surgical

instruments

used

in

da

Vinci

surgeries

(e.g.,

graspers, forceps, scissors, etc.) are called “EndoWrists.”
(Doc. # 117 at ¶ 1; Doc. # 1 at ¶ 1). EndoWrists attach to
the da Vinci’s mechanical arms, and doctors use hand controls
at the surgeon’s console to manipulate EndoWrists to perform
surgery. (Doc. # 117 at ¶ 2). It is undisputed that Da Vinci
surgeries

have

improved

outcomes

and

present

fewer

complications than alternative healthcare options. (Id. at ¶
3).

Only

surgical

instruments

made

by

Intuitive

(the

EndoWrists) are compatible with da Vinci robots. (Doc. # 1 at
at ¶¶ 11, 32).
Intuitive has developed four “generational platforms” of
the da Vinci – the standard, the S, the Si, and the X / Xi.
(Doc. # 117 at ¶ 4; Doc. # 117-56 at 5). All EndoWrists
include a programmed memory chip that communicates with the
da Vinci robot and counts each time an EndoWrist is used in
surgery (the “use counter”). (Doc. # 117 at ¶ 6). After an
EndoWrist is used the specified number of times, the use
counter causes the EndoWrist to become nonoperational. (Id.).
The parties disagree as to whether the da Vincis and
EndoWrists are sold, marketed, and/or tested as a single
product.

(Doc.

#

117

at

6-7;

Doc.

#

147

at

1).

It

is

undisputed, however, that when customers buy a da Vinci, they
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sign

a

Sales,

Licensing

and

Service

Agreement

(“SLSA”)

acknowledging that EndoWrists will be purchased via “separate
orders placed by [the] Customer to Intuitive from time to
time in accordance with” certain terms and conditions. (Doc.
# 117 at ¶ 9). The SLSAs require customers to use EndoWrists
consistent with Intuitive’s “documentation” (e.g., manuals,
labeling,

and

agreements,

instructions

may

not

for

repair,

use)

and,

refurbish,

or

under

the

recondition

EndoWrists in a manner inconsistent with that documentation.
(Id.). The SLSAs require customers to adhere to the EndoWrist
use limits. (Id.).
The SLSAs also provide customers with a system warranty,
which promises that the da Vinci robot “will be free from
defects in material and workmanship and will conform in all
material

respects

accordance

with

to

the

the

Documentation

Documentation

when

and

used

in

Intuitive’s

instructions.” (Id. at ¶ 10). The warranty is void, however,
with respect to any claims (1) due to any misuse of the
system; (2) to the extent the customer has not operated,
repaired,

or

maintained

the

system

in

accordance

with

Intuitive documentation; and (3) to the extent that the
customer has used the system with surgical instruments not
approved by Intuitive. (Id. at ¶ 10).
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According to the complaint, Plaintiff Rebotix “repairs”
EndoWrists. (Doc. # 1 at ¶ 2). Hospitals that perform surgery
with da Vinci robots will hire Rebotix to inspect and repair
the EndoWrists. (Id.). As Rebotix stated in its complaint,
because its business would be rendered “obsolete” by the
EndoWrist use counter installed by Intuitive, it invested
“substantial time, resources, and money (millions of dollars)
to develop a workaround.” (Id. at ¶ 51). Specifically, “[w]hen
Rebotix repairs the EndoWrists, Rebotix includes a Rebotix
Interceptor,

which

admits

it

that

resets

installs

the
the

counter[.]”
Interceptor

(Id.).
as

part

Rebotix
of

its

“repair” process so that customers’ EndoWrist instruments can
continue to be used after they reach the maximum use limit
imposed by Intuitive. (Doc. # 61 at 3). It is undisputed that
the Interceptor does not work on the newer X or Xi models.
(Doc. # 1 at ¶ 52; Doc. # 117 at ¶ 52).
Between

2019

and

2021,

Rebotix

sold

its

EndoWrist

“repair” service to at least 17 customers with then-existing
contracts with Intuitive. (Doc. # 117 at ¶¶ 40-41). Rebotix
does not dispute that it had knowledge of these contracts but
claims

that

it

believed

the

contracts

to

be

void

and

unenforceable. (Id. at ¶ 41; Doc. # 147 at ¶ 41). Rebotix
arranged for hospitals to ship used EndoWrists to Rebotix’s
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facility in Florida, where the Interceptor was installed, and
Rebotix then shipped the “repaired” EndoWrist back. (Doc. #
117 at ¶ 42). Rebotix priced its repaired EndoWrists 40-50%
lower than Intuitive’s list prices for new EndoWrists. (Doc.
# 108 at ¶ B.5).
Intuitive did not want hospitals to use Rebotix to
“repair” EndoWrists because they felt it was unsafe. (Doc. #
147-24

at

279).

Rebotix

customers

received

notices

from

Intuitive warning them that if they used EndoWrists beyond
the designated number of uses, Intuitive would void the
warranty, terminate the contract, and would no longer service
the hospital’s da Vinci system. (Doc. # 147-23 at 224; Doc.
# 147-25 at 126-27). As Rebotix’s corporate representative
testified, “The customers that we gained received notices
from Intuitive that if they used us, they would cancel the
service

contracts

on

their

robots,

which

frightened

the

customers to death.” (Doc. # 117-26 at 33). Without ongoing
service from Intuitive, the da Vinci robot will eventually
become nonoperational. (Doc. # 147-27 at 76-77). Neither
Intuitive

nor

Rebotix

could

point

to

any

hospital

that

continued to use Rebotix’s services after receiving these
notices from Intuitive. (Doc. # 117-26 at 33, 238; Doc. #
147-23 at 226).
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B.

FDA History

By way of background, federal law requires that medical
devices receive certain approvals from the United States Food
and Drug Administration (“FDA”). The FDA approval process at
issue in this case is called “Section 510(k)” clearance. 1
In

2014,

Rebotix’s

predecessor

company

submitted

an

application for Section 510(k) clearance to the FDA for “Remanufactured EndoWrist instruments.” (Doc. # 117 at ¶ 27;
Doc. # 147 at ¶ 27). In 2015, the FDA sent a deficiency letter
to

the

predecessor

company

and

requested

additional

information. (Doc. # 117 at ¶ 30; Doc. # 147 at ¶ 27). In
December 2015, the predecessor company withdrew its Section
510(k) application, and since that time neither Rebotix nor
the predecessor company have resubmitted a Section 510(k)
application for the Interceptor technology. (Doc. # 117 at ¶¶
33-34).
The parties disagree as to whether Rebotix’s services
and/or products require Section 510(k) clearance from the
FDA.

While

the

cross

motions

for

summary

judgment

were

“Section 510(k) clearance” is the regulatory process
pursuant to which a medical device that is “substantially
equivalent” to a device that is already on the market can be
cleared for sale without undergoing the far more rigorous
pre-market review and approval process. See 21 U.S.C. §
360(k); Medtronic, Inc. v. Lohr, 518 U.S. 470, 478-79 (1996).
1

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pending, Rebotix informed the Court that the FDA, as of April
2022, had determined that Rebotix’s activities constitute
"remanufacturing," which requires Section 510(k) review and
approval. 2 (Doc. # 172). Specifically, Rebotix submitted email
correspondence from a “Team Lead” at the FDA stating as
follows:
As mentioned during our call, the Agency believes
that
the
activities
of
Rebotix
constitute
remanufacturing and would require FDA review and
clearance (e.g. 510(k) / de Novo). We therefore
request that Rebotix stop engaging in the current
activities until an application is reviewed and
cleared/granted. The instruments in question no
longer maintain the same safety and effectiveness
profile as cleared with the original manufacturer’s
own submission. During premarket review, FDA
reviews test data to the labeled number of reuse
cycles. This includes, but is not limited to, items
such as electrical safety, reprocessing, software,
and general performance testing. By extending the
number of uses and modifying the instrument with a
new chip, the prior information is no longer valid
and requires additional review to the new labeled
usage limit in order to establish safety and
effectiveness. This is therefore different than
returning the device to its original condition.
(Doc. # 172-1 at 2).
Recently, Rebotix submitted additional correspondence
with the FDA from July 2022 in which that same FDA Team Lead
Under the pertinent regulations, a "remanufacturer" of a
non-exempt, Class II medical device is required to obtain
510(k) clearance before introducing its remanufactured device
into commercial distribution in the United States. 21 C.F.R.
§ 807.81(a)(2); 21 C.F.R. § 820.3(o); 21 C.F.R. § 807.20(a).
2

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wrote that the FDA had not made an “official regulatory
determination,”

but

had

instead

conducted

a

“preliminary

informal assessment.” (Doc. # 180-1 at 2).
C.

Procedural History

Rebotix alleges that Intuitive “uses its dominance in
the

market

for

minimally

invasive

surgical

robots

to

monopolize a separate market: the market for replacements and
repairs of EndoWrists.” (Doc. # 1 at ¶ 30). According to
Rebotix, Intuitive’s anticompetitive behavior has prevented
Rebotix from repairing EndoWrists and has therefore “almost
eradicat[ed]”
complaint,

Rebotix’s

Rebotix

business.

brings

four

(Id.

at

antitrust

¶

3).

claims

In

its

against

Intuitive: (1) anticompetitive tying, in violation of Section
1 of the Sherman Act (Count I); (2) exclusive dealing, in
violation of Section 1 of the Sherman Act (Count II); (3)
market monopolization, in violation of Section 2 of the
Sherman

Act

(Count

III);

and

(4)

attempted

market

monopolization, in violation of Section 2 of the Sherman Act
(Count IV). See generally (Id.). In March 2021, the Court
dismissed those portions of Counts III and IV based on the
usage counter, but otherwise allowed the claims to proceed.
(Doc. # 52).

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Intuitive,
counterclaims
unfair

for

its

against

competition,

part,

Rebotix:
in

has
(1)

violation

filed
false
of

the

following

advertising
the

Lanham

and
Act

(Counterclaim Count I); (2) common-law unfair competition
(Counterclaim Count II); (3) common-law tortious interference
with contract (Counterclaim Count III); and (4) violation of
the

Florida

Deceptive

and

Unfair

Trade

Practices

Act

(“FDUTPA”) (Counterclaim Count IV). (Doc. # 60).
Now, both parties seek summary judgment. Specifically,
Rebotix seeks summary judgment as to (1) Intuitive’s Lanham
Act, unfair competition, and FDUTPA counterclaims to the
extent they are based on Intuitive’s allegations that Rebotix
did

not

comply

with

FDA

regulations;

(2)

Intuitive’s

affirmative defense of unclean hands; and (3) the merits of
Intuitive’s FDUTPA counterclaim. (Doc. # 108 at 1). Intuitive
seeks summary judgment on all of Rebotix’s claims and on its
tortious-interference counterclaim. (Doc. # 117 at 1). Both
Motions have been fully briefed and are ripe for review. (Doc.
## 141, 147, 148, 152). 3
With the Court’s permission, the parties first temporarily
filed under seal their summary judgment motions, Daubert
motions, the responses thereto, and the exhibits in support.
The parties filed redacted copies of these documents on the
public docket two weeks thereafter. The Court thus cites to
the extent practicable, in this Order and its Orders ruling
3

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II.

Legal Standard
Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed.

R. Civ. P. 56(a). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
upon the parties’ various Daubert motions, those motions and
exhibits that are filed on the public docket. However, the
parties also filed motions to seal the confidential
information cited in those motions and exhibits. (Doc. ##
118, 153). Upon review of the Motions to Seal, the motions
and exhibits placed under seal, and being otherwise fully
advised, the Court GRANTS the parties’ Motions to Seal. The
Court finds good cause to maintain these documents under seal
because they contain sensitive and proprietary business
information from both parties, including confidential product
engineering and testing information, proprietary financial
modeling, and hospital data. Accordingly, the Court will
permit the sealing of those motions and exhibits cited in the
Motions to Seal.
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law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). “When a moving party has discharged its
burden,

the

non-moving

party

must

then

‘go

beyond

the

pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (quoting Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, 344
F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment. Samples ex rel. Samples v. City of Atlanta, 846
F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant’s
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response consists of nothing “more than a repetition of his
conclusional

allegations,”

summary

judgment

is

not

only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
Finally,

the

filing

of

cross-motions

for

summary

judgment does not give rise to any presumption that no genuine
issues of material fact exist. Rather, “[c]ross-motions must
be considered separately, as each movant bears the burden of
establishing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law.” Shaw
Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538–
39 (5th Cir. 2004); see also United States v. Oakley, 744
F.2d 1553, 1555 (11th Cir. 1984) (“Cross-motions for summary
judgment

will

not,

granting

summary

in

themselves,

judgment

unless

warrant
one

of

the

the

court

in

parties

is

entitled to judgment as a matter of law on facts that are not
genuinely disputed . . . .” (quotation omitted)).
III. Analysis
A.

FDCA preemption and/or preclusion

One of the parties’ fundamental disagreements here is
whether this Court or a jury could, at any point, address the
issue of whether Rebotix’s services and/or products require
Section 510(k) clearance from the FDA.
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The Federal Food, Drug, and Cosmetic Act (“FDCA”), as
amended by the Medical Device Amendments of 1976 (“MDA”),
imposes a comprehensive set of requirements upon medical
devices. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S.
341, 344 (2001). Section 337(a) of the FDCA bars private
enforcement

of

the

statute,

stating

that

“all

such

proceedings for the enforcement, or to restrain violations,
of this [Act] shall be by and in the name of the United
States.” 21 U.S.C. § 337(a). The Supreme Court has observed
that Section 337(a) “leaves no doubt that it is the Federal
Government rather than private litigants who are authorized
to

file

suit

for

noncompliance

with

the

medical

device

provisions.” Buckman, 531 U.S. at 349 n.4. The Supreme Court
held in Buckman that private litigants cannot pursue claims
under state-law tort theories when such claims collide with
the exclusive enforcement power of the federal government.
Id. at 343, 349-50. Specifically, because allowing plaintiffs
to pursue state-law fraud-on-the-FDA claims “would exert an
extraneous pull on the scheme established by Congress,” such
claims are therefore preempted by federal law. Id. at 348,
353.
After Buckman, the Ninth Circuit held that “a private
right of action brought under the Lanham Act may not be
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pursued when . . . the claim would require litigation of the
alleged underlying FDCA violation in a circumstance where the
FDA has not itself concluded that there was such a violation.”
PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010)
(involving

a

dispute

as

to

whether

a

new

version

of

dermatological laser required pre-market 510(k) clearance
separate from that obtained for an earlier version, and
concluding that, where the FDA had not taken a position, the
Lanham Act claims could not proceed). “PhotoMedex [was] not
permitted

to

circumvent

the

FDA’s

exclusive

enforcement

authority by seeking to prove that Defendants violated the
FDCA, when the FDA did not reach that conclusion.” Id. at
928.
Another district court has determined – in another case
brought

by

a

repair

company

against

Intuitive

–

that

Intuitive’s state-law counterclaims for false or misleading
statements were due to be dismissed to the extent those claims
were

based

on

statements

pertaining

to

Section

510(k)

clearance. Restore Robotics, LLC v. Intuitive Surgical, Inc.,
No. 5:19-cv-55-TKW-MJF, 2019 WL 8063988, at *2-3 (N.D. Fla.
Nov. 14, 2019) (concluding that “determining the truth or
falsity” of plaintiffs’ statement that FDA approval of their
services was not required would require the court to make
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determinations more properly within the exclusive purview of
the FDA and to substitute its own judgment for the FDA’s
judgment,

such

that

Intuitive’s

counterclaims

would

be

impermissibly premised on enforcement decisions that the FDA
did not itself make).
That leads to the April 2022 correspondence between
Rebotix and the FDA in which an FDA Team Lead informed Rebotix
that

the

FDA

believes

Rebotix’s

activities

constitute

remanufacturing and thus require FDA review and clearance. 4
(Doc. # 176-1). While this is a compelling development, the
Court

is

not

persuaded

that

this

is

the

FDA’s

final,

definitive decision. It is unclear what role a “Team Lead”
plays at the FDA and whether such employee has the authority
to announce agency policy or take final action on behalf of
the agency. This understanding is reinforced by the July 2022
FDA correspondence submitted by Rebotix in which that same

In support of its reply brief, Rebotix filed a declaration
from one of its attorneys, Richard Lyon, in which Mr. Lyon
detailed a December 2021 telephone call he had with FDA
officials. (Doc. # 141-3). Intuitive moved to strike this
declaration for multiple reasons. (Doc. # 160). The Court
need not consider Mr. Lyon’s declaration as the FDA
correspondence from April and July 2022 is the most recent
evidence of the FDA’s stance as to Rebotix’s activities.
Therefore, the motion to strike is DENIED AS MOOT.

4

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FDA Team Lead wrote that this decision was not an official,
final decision from the agency. (Doc. # 180-1).
Thus, without definitive and final guidance from the
FDA, if the Court were to wade into the evidence and make a
determination

on

this

point,

it

would

necessarily

be

intruding upon the FDA’s exclusive area of authority and
usurping

the

PhotoMedex,

FDA’s
601

authority

F.3d

at

928

to

enforce

the

(“Testing

the

FDCA.
truth

See
of

PhotoMedex’s claim would similarly require a court to usurp
the FDA’s prerogative to enforce the FDCA and to decide
whether, under the FDCA and its regulations, the [secondgeneration laser] was similar enough to SurgiLight’s laser to
permit Defendants to rely on its 510(k) clearance.”); see
also Sandoz Pharms. Corp. v. Richardson-Vicks, Inc., 902 F.2d
222,

231

(3d

Cir.

1990)

(rejecting

a

Lanham

Act

false

advertising claim based on cough syrup labeling because it
would be inappropriate for a court to “determine preemptively
how

a

federal

administrative

agency

will

interpret

and

enforce its own regulations”).
Despite

Intuitive’s

arguments,

the

decisions

in

POM

Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014), and
Belcher Pharms., LLC v. Hospira, Inc., 1 F.4th 1374 (11th
Cir. 2021), do not hold otherwise. Those cases both involved
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Lanham

Act

claims

based

on

labeling

of

beverages

and

prescription drugs, respectively. Specifically, POM Wonderful
held that the FDCA does not preclude a private party from
bringing a Lanham Act claim challenging as misleading a food
label that is regulated by the FDCA. Applying POM Wonderful,
the Eleventh Circuit held that “nothing in the text of the
Lanham Act or the FDCA suggests a different rule for drug
products.” Belcher Pharms., 1 F.4th at 1380. Crucially, the
Eleventh Circuit in Belcher cited the PhotoMedex decision
approvingly, writing that “there may be reasons to disallow
label challenges involving certain drug claims that call on
courts to contradict a conclusion of the FDA or to make an
original determination on an issue committed to the FDA’s
discretion.” Id. (emphasis added). The Belcher case, however,
did not involve such a “potential exception” because Belcher
was not asking the Court “to make any original determination
that only the FDA could make.” Id. at 1381. Thus, this case
falls outside the rules enunciated in POM Wonderful and
Belcher.
For the reasons stated above, the Court will not at this
juncture issue a determination with respect to whether or not
Rebotix’s services and/or products require Section 510(k)
clearance. It will not address the related question of whether
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Rebotix’s

services

constitute

“remanufacturing.”

Such

questions are for the FDA to determine in the first instance.
There does exist the possibility, however, that the FDA could
issue an official and final determination between now and the
time of trial. Therefore, the Court will not, at this time,
grant summary judgment on Intuitive’s counterclaims to the
extent they are based on allegations that Rebotix does not
comply with FDA regulations. 5 If, however, the FDA has not
issued an official, final determination on this issue on the
eve of trial, the Court invites Rebotix to renew its motion
for summary judgment as to these counterclaims 6 and the Court
Moreover, as the Court notes in Section III.C of this Order,
infra, Intuitive identifies nine forms of false or misleading
statements allegedly made by Rebotix that form the bases for
its counterclaims. Only one of these allegedly false or
deceptive statements is aimed at the issue of FDA 510(k)
clearance. (Doc. # 60 at ¶¶ 9-13). As Rebotix acknowledges in
its reply brief, it “does not seek to dispose of these other
theories.” (Doc. # 141 at 1).
5

Rebotix also attacks Intuitive’s affirmative defense of
“unclean hands.” The defense raised by Intuitive states as
follows: “Plaintiff’s claims are barred, in whole or in part,
by the doctrine of unclean hands because Plaintiff has acted
contrary to applicable FDA regulations and/or engaged in
other misconduct, including tortious interference with
Intuitive’s contracts and business relationships.” (Doc. # 60
at 24). The Eleventh Circuit’s prior opinions have not been
clear as to whether the doctrine of “unclean hands” can
independently bar an antitrust suit. See Tidmore Oil Co. v.
BP Oil Co., 932 F.2d 1384, 1388 (11th Cir. 1991) (observing
in dicta that “because the Supreme Court has rejected the
application of the doctrine of in pari delicto in antitrust
6

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will grant summary judgment at that time. For the reasons
explained in Footnote 6 and later in this Order, the Court
will not entertain renewed motions for summary judgment on
the

issue

of

antitrust

standing

or

on

Intuitive’s

counterclaims to the extent those counterclaims do not rely
on the issue of Section 510(k) clearance.
The Court will allow the parties to produce evidence at
trial regarding the FDA regulatory process to help jurors
understand

this

process

and

Rebotix’s

efforts,

or

lack

thereof, to obtain Section 510(k) clearance. The Court is
persuaded that the issue of FDA clearance goes to causation
and damages. The extent to which the jury should decide the
FDA clearance issue vis-à-vis causation and damages is a
matter that can be resolved closer to trial.

actions, an agreement may be challenged even by one of the
parties who has acquiesced in the unlawful agreement”). But
see Official Comm. of Unsecured Creditors of PSA, Inc. v.
Edwards, 437 F.3d 1145, 1156 (11th Cir. 2006) (stating in
dicta that “Perma Life Mufflers explicitly left open the
possibility that a defense of active involvement could bar a
complaint about an antitrust conspiracy”). The Court will
allow this affirmative defense to proceed because it is not
based entirely on whether Rebotix complied with FDA
regulations. On its face, Intuitive also asserts the defense
due to Rebotix’s alleged “tortious interference with
Intuitive’s contracts and business relationships.” Thus,
Rebotix’s request to grant summary judgment as to this
affirmative defense is denied.
19

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B.

Rebotix’s Antitrust Claims

In its complaint, Rebotix claimed that Intuitive used
its dominance in the market for minimally invasive soft tissue
surgical robots (“MIST robots”) to monopolize a separate
market: the market for EndoWrist replacement and repair.
(Doc. # 1 at 1). Rebotix points to the SLSAs that Intuitive’s
customers sign, which: (1) expressly require that customers
adhere to the maximum number of uses and, once the use limit
is reached, purchase a new EndoWrist; (2) expressly prohibit
customers from performing repairs on the EndoWrists; and (3)
void the warranty if customers do not repair or maintain the
system in accordance with Intuitive’s instructions. There is
record evidence that Intuitive sent letters to Rebotix’s
customers

warning

that

if

they

used

Rebotix’s

services,

Intuitive would cancel service for the da Vinci robots and
void the warranty.
Thus, Rebotix claims in Count I of the complaint that
Intuitive

is

engaging

in

illegal

“tying”

arrangements,

whereby “Intuitive has conditioned the sale and servicing of
its da Vinci surgical robots on customers buying replacement
EndoWrists from Intuitive instead of repairing the EndoWrists
that the customers already have.” (Doc. # 1 at 21). Similarly,
it brings a claim (Count II) against Intuitive for “exclusive
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dealing” because Intuitive’s agreements with its customers
“require the customers to service and replace their EndoWrist
instruments

on

an

exclusive

basis

with

Intuitive,

thus

foreclosing competition in the worldwide and domestic markets
for repair and replacement of EndoWrist instruments.” (Id. at
22). Finally, Rebotix brings claims for monopolization and
attempted monopolization (Counts III and IV), alleging that
Intuitive’s anticompetitive conduct and exclusionary tactics
have “forced customers to purchase unnecessary EndoWrists at
supercompetitive prices, and [have caused] Rebotix [injury]
. . . including through lost profits, lost customers, and
damage to its reputation and goodwill.” (Id. at 22-23).
Intuitive seeks summary judgment on all four counts,
arguing that Rebotix’s antitrust claims fail as a matter of
law

for

three

independent

reasons:

lack

of

antitrust

standing, failure to define a relevant antitrust market, and
failure to prove that Intuitive engaged in anticompetitive
conduct. The Court will address each in turn.
1.

Antitrust Standing

“A private plaintiff seeking damages under the antitrust
laws must establish standing to sue.” Sunbeam Television
Corp. v. Nielson Media Research, Inc., 711 F.3d 1264, 1270
(11th Cir. 2013). Antitrust standing requires more than a
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mere demonstration of Article III standing. Id. Rather, to
establish antitrust standing, a plaintiff must establish that
it

(1)

has

suffered

“antitrust

injury”

and

(2)

is

an

“efficient enforcer” of the antitrust laws. Id. at 1271.
Intuitive attacks Rebotix’s antitrust standing on two
fronts. First, it argues that it cannot establish antitrust
injury because it cannot show that its business was lawful.
Second, it urges dismissal of Rebotix’s claims related to the
X and Xi EndoWrists because Rebotix does not have the ability
to override the use counter in those devices.
a.

Antitrust Injury

Intuitive claims that Rebotix’s business is unlawful
because

the

FDA

requires

Section

510(k)

clearance

for

installation of the Interceptor, and it is undisputed that
Rebotix has failed to obtain such clearance. According to
Intuitive, because Rebotix’s business is not (and was never)
lawful,

none

of

its

claimed

injuries

are

“directly

attributable” to any anticompetitive conduct on the part of
Intuitive. In other words, the Section 510(k) regulatory bar
“break[s] the chain of causation.” Intuitive doubles down on
this argument in the supplemental briefing ordered by the
Court after the April 2022 FDA correspondence, arguing that:
“Because Rebotix does not have, and never has had, 510(k)
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clearance, its business is and was illegal, and it cannot
meet its burden to prove antitrust injury.” (Doc. # 176 at
4).
Intuitive’s argument leans on what it paints as the
“undisputed fact” that “both Rebotix and the FDA recognize[]
that Rebotix’s business of installing the Interceptor into
EndoWrists requires 510(k) clearance.” (Doc. # 117 at 20-21).
But this issue is highly disputed. As explained above, the
Court is not persuaded that the FDA has definitively spoken
on this issue, and it will not issue a determination as to
whether Rebotix’s products and/or services required Section
510(k) clearance. With legality a disputed issue, that alone
is enough to reject Intuitive’s antitrust injury argument.
But even assuming the FDA’s April 2022 email chain to be
a definitive final determination by the FDA that the EndoWrist
“repair” business was unlawful without 510(k) clearance, that
does not necessarily bar Rebotix’s antitrust claims.
Here, Rebotix seeks treble damages under the Clayton Act
for Intuitive’s allegedly illegal conduct. (Doc. # 1 at 24).
Therefore, Intuitive’s “proscribed anticompetitive conduct
must be a [m]aterial cause of [Rebotix’s] injury.” Comfort
Trane Air Conditioning Co. v. Trane Co., 592 F.2d 1373, 1383
(5th Cir. 1979); see also Zenith Radio Corp. v. Hazeltine
23

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Research, Inc., 395 U.S. 100, 114 n.9 (1969) (“It is enough
that the illegality is shown to be a material cause of the
injury; a plaintiff need not exhaust all possible alternative
sources

of

injury

in

fulfilling

his

burden

of

proving

compensable injury.”). Here, Rebotix moves under the theory
that Intuitive’s insertion of certain clauses into the SLSAs
and its follow-up conduct warning customers away from Rebotix
was

anticompetitive

conduct

that

caused

its

injury.

The

critical issue in this case is not whether 510(k) clearance
is required to override the use limits in the EndoWrists, but
rather whether the material cause of Rebotix’s injuries was
anticompetitive restrictions imposed on EndoWrist customers
in the SLSAs (as Rebotix claims) or whether it was caused by
the lack of FDA clearance and other factors unrelated to
Intuitive

(as

Intuitive

claims).

And

“the

question

of

causation is generally a factual question for the jury.”
Comfort Trane, 592 F.2d at 1383.
There is sufficient evidence to raise a genuine issue of
material fact as to whether it was Intuitive’s allegedly
anticompetitive
Rebotix’s

conduct

injuries

that

because

was

there

a

material

is

evidence

cause
that

of
some

hospitals were willing to use Rebotix’s services, at least
until

they

received

the

cease-and-desist
24

letters

from

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 25 of 58 PageID 36818

Intuitive. (Doc. # 117-26 at 33:7-12; Doc. # 128-24 at 126:21127:1; Doc. # 128-22 at 226:3-22).
The Court has carefully read the line of cases cited by
Intuitive in support of its argument that Rebotix lacks
antitrust standing as a matter of law. See In re Wellbutrin
XL Antitrust Litig. Indirect Purchaser Class, 868 F.3d 132,
163- 65 (3d Cir. 2017); In re Canadian Import Antitrust
Litig.,

470

F.3d

785,

791-92

(8th

Cir.

2006);

Modesto

Irrigation Dist. v. Pac. Gas & Elec. Co., 309 F. Supp. 2d
1156, 1170 (N.D. Cal. 2004) aff’d, 158 F. App’x 807, 807 (9th
Cir. 2005); JEM Mktg., LLC v. Cellular Telecomms. Inds. Ass’n,
308 N.J. Super. 160, 166 (N.J. App. Div. 1998). These cases,
however, stand for the proposition that a regulatory or
legislative bar can factually break the chain of causation
between an antitrust defendant’s challenged conduct and the
plaintiff’s injury. For example, in the Wellbutrin case,
plaintiffs claimed that their injury (increased drug prices)
was caused by defendants’ conspiracy to delay the launch of
a generic version of the drug. 868 F.3d at 142, 164-65. To
meet

their

burden,

plaintiffs

pointed

to

evidence

that

another company would have timely launched its generic drug.
Id. at 165. The problem with this argument is that there was
a patent blocking the release of the generic drug. Id. Thus,
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the generic drug could never have legally launched. Id.
Because

plaintiffs

could

not

prove

that

the

defendant’s

actions “actually cause[d] the [plaintiffs’] claimed injury,”
their claim failed. Id. at 166; see also In re Canadian
Import, 470 F.3d at 791-92 (holding that where federal law
excluded

cheaper

Canadian

market,

plaintiffs

could

drugs

from

not

show

entering
that

the

U.S.

defendants’

exclusionary conduct was the cause of their harm).
It does not follow that lack of regulatory approval is
a per se legal bar to an antitrust suit. Indeed, the Supreme
Court

has

many

times

disapproved

of

the

notion

that

a

plaintiff’s participation in its own illegal conduct would
bar it from pursuing an antitrust claim, reasoning that the
overriding public policy of the antitrust laws would be
undermined if the plaintiff’s alleged illegal conduct could
be used by the defendant to avoid liability for its own
anticompetitive conduct. See Perma Life Mufflers, Inc. v.
Int’l Parts Corp., 392 U.S. 134, 138-39 (1968) (overruled on
other grounds by Copperweld Corp. v. Indep. Tube Corp., 467
U.S. 752 (1984)); Kiefer-Stewart Co. v. Joseph E. Seagram &
Sons, 340 U.S. 211, 214 (1951) (also overruled on other
grounds by Copperweld). The public policy balancing is even
more weighted in favor of allowing antitrust actions to move
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forward when it is a mere regulatory violation. See Semke v.
Enid Auto. Dealers Ass’n, 456 F.2d 1361, 1369-70 (10th Cir.
1972). In Semke, the plaintiff, a used car dealer, claimed
that the defendants, new car dealers, conspired to injure it
in their efforts to sell new cars. The defendants argued that
plaintiff’s antitrust claim was barred because plaintiff had
entered the new car dealership market illegally due to his
failure to comply with a state licensing statute. The Tenth
Circuit,

citing

Perma

Life

Mufflers,

held

that

if

participation by the plaintiff in an illegal conspiracy in
restraint of trade does not bar an antitrust action, then a
plaintiff’s alleged violation of a state licensing statute
which is unrelated to the antitrust laws would not bar his
antitrust claim because “the superior public interest in
enforcing . . . the antitrust laws” clearly outweighed any
social

value

flowing

from

the

Oklahoma

state

licensing

statute. 465 F.2d at 1369–70.
Here, Intuitive admits that “Rebotix sold its EndoWrist
‘repair’ service to at least 17 customers with then-existing
contracts with Intuitive.” (Doc. # 117 at 13). And Rebotix
has proffered evidence that absent Intuitive’s “contractual
restrictions and threats,” at least some hospitals would have
used Rebotix’s services “to the full extent that Rebotix was
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willing to provide.” (Doc. # 128-26 at 62:6-12; Doc. # 11726 at 33:9-23). There is thus evidence that some facilities
were

using

and

notwithstanding

were
the

willing

fact

that

to

use

Rebotix’s

Rebotix

did

services

not

have

FDA

clearance at any time. Viewing the evidence in the light most
favorable to Rebotix, a jury could find that Rebotix would
have continued to provide its EndoWrist “repair” service to
at least some health care facilities during the relevant time
period but for the restrictions imposed in the SLSAs and
Intuitive’s cease and desist letters.
In sum, there is conflicting evidence on the issue of
material causation that precludes summary judgment. To be
sure, this new evidence regarding the FDA’s stance will likely
be presented to the jury and be relevant to the issues of
causation and damages. But it does not mean that Rebotix per
se lacks antitrust standing. Intuitive’s Motion is denied on
this ground.
b. Standing with respect to X and Xi EndoWrists
Moving

on

to

Intuitive’s

argument

about

X

and

Xi

EndoWrists, Intuitive’s position is that Rebotix cannot show
it is prepared to enter the market because it is undisputed
that Rebotix cannot override use limits on X/Xi EndoWrists
because it lacks the technological capability to do so.
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Intuitive

argues

that

Rebotix

therefore

cannot

show

“preparedness” to enter the market and is not an “efficient
enforcer” of the antitrust laws.
In order to be an efficient enforcer for the purposes of
antitrust standing, a plaintiff must be (or must prove the
existence of) a competitor willing and able to enter the
relevant market, but for the exclusionary conduct of the
“incumbent monopolist.” Sunbeam, 711 F.3d at 1273. To this
end, Rebotix must make a showing of “preparedness to enter
the business.” Cable Holdings of Ga., Inc. v. Home Video,
Inc., 825 F.2d 1559, 1562 (11th Cir. 1987). To establish
preparedness, a party must take some affirmative step to enter
the business. Gas Utils. Co. v. S. Nat. Gas Co., 996 F.2d
282, 283 (11th Cir. 1993).
For

its

completed

part,

the

Rebotix

X/Xi

points

Interceptor

out

that

because

it

has

expending

not
the

resources to do so would be futile in light of Intuitive’s
ongoing anticompetitive conduct. (Doc. # 147 at 18 (citing
Sanger Ins. Agency v. Hub Int’l, Ltd., 802 F.3d 732, 740 (5th
Cir.

2015)

(“The

degree

to

which

a

business

must

take

affirmative steps is mitigated by the impact of the antitrust
violation.

.

.

.

[N]ascent

competitors

need

not

pay

a

courtroom entrance fee in the form of an expenditure of
29

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substantial

resources

gesture.”)).

Moreover,

in

a

clearly

Rebotix

futile

points

to

the

competitive
following

affirmative steps it has taken: (1) Rebotix “was and is
operational” and “it remains ready to repair EndoWrists”; and
(2) it has already staffed a team for its business, spent
millions of dollars on research and development, and obtained
two patents on its method for resetting the usage counter.
Whether

certain

“actions

and

circumstances

are

sufficient to show preparedness presents a question of fact.”
Cable Holdings of Ga., Inc. v. Home Video, Inc., 572 F. Supp.
482, 491-92 (N.D. Ga. 1983); see also Sanger Ins., 802 F.3d
at 738 (stating that sufficient evidence of preparedness
precludes summary judgment). Given the disputed issues of
fact here regarding Rebotix’s preparedness and the extent to
which further development would have been futile, summary
judgment is not appropriate. Intuitive’s Motion is denied on
this ground.
2.
Antitrust

Relevant Antitrust Market
claims

require

market

definition

and

“[d]efining the relevant market requires identification of
both the product at issue and the geographic market for that

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product.” 7

Bailey v. Allgas, Inc., 284 F.3d 1237, 1246 (11th

Cir. 2002); see also Spanish Broad. Sys. of Fla., Inc. v.
Clear Channel Commc’ns, Inc., 376 F.3d 1065, 1074 (11th Cir.
2004) (“Like claims under Section One, Section Two claims
require

harm

to

competition

that

must

occur

within

a

‘relevant,’ that is, a distinct market, with a specific set
of geographical boundaries and a narrow delineation of the
products at issue.”).
“Defining a relevant product market is primarily ‘a
process

of

describing

those

groups

of

producers

which,

because of the similarity of their products, have the ability
—

actual

or

potential

—

to

take

significant

amounts

of

business away from each other.’” U.S. Anchor Mfg., Inc. v.
Rule Indus., Inc., 7 F.3d 986, 995 (11th Cir. 1993) (citing
Gen. Indus. Corp. v. Hartz Mountain Corp., 810 F.2d 795, 805
(8th Cir. 1987)). “The reasonable interchangeability of use
or the cross-elasticity of demand between a product and its
substitutes constitutes the outer boundaries of a product
market for antitrust purposes.” Id. (citing Brown Shoe Co. v.
United States, 370 U.S. 294, 325 (1962)). Cross-elasticity of
demand measures the extent to which modest variations in the
There does not appear to be any dispute that the relevant
geographic market here is the entire United States.
7

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price of one good affect customer demand for another good.
“[A] high cross-elasticity of demand indicates that the two
products

in

question

are

reasonably

interchangeable

substitutes for each other and hence are part of the same
market.” Jacobs v. Tempur–Pedic Int’l, Inc., 626 F.3d 1327,
1337 n.13 (11th Cir. 2010).
Defining the relevant product market is a fact-intensive
endeavor. U.S. Anchor, 7 F.3d at 994. “Reliable measures of
supply and demand elasticities provide the most accurate
estimates of relevant markets.” Id. at 995. “However, it is
ordinarily quite difficult to measure cross-elasticities of
supply

and

demand

accurately.

Therefore,

it

is

usually

necessary to consider other factors that can serve as useful
surrogates for cross-elasticity data.” Id. Thus, in addition
to the cross-elasticity of demand and supply, the Eleventh
Circuit

has

long

looked

to

the

factors

(or

“practical

indicia”) set forth by the Supreme Court in Brown Shoe in
defining a relevant market or submarket: “industry or public
recognition of the submarket as a separate economic entity,
the

product’s

peculiar

characteristics

and

uses,

unique

production facilities, distinct customers, distinct prices,
sensitivity to price changes, and specialized vendors.” Id.

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Here, Rebotix attempts to define a relevant antitrust
product

market

through

its

proffered

expert

witness,

economist Dr. Russell Lamb. See Gulf States Reorganization
Grp., Inc. v. Nucor Corp., 822 F. Supp. 2d 1201, 1234 (N.D.
Ala. 2011) (“Eleventh Circuit precedent requires an antitrust
plaintiff to proffer expert testimony to establish a relevant
product market and a relevant geographic market.”). As set
out in his expert report, it is Dr. Lamb’s opinion that: (1)
the market for MIST robots like the da Vinci is a relevant
antitrust

product

market;

(2)

the

“EndoWrist

Repair

and

Replacement Market” is a relevant antitrust product market;
and (3) Intuitive leveraged its monopoly power in the tying
market (MIST robots) to exert dominance in the tied market
(EndoWrist Repair and Replacement). (Doc. # 147-3 at 16-73).
Intuitive levies three attacks on Rebotix’s attempts to
demonstrate a relevant product market. First, it claims that
Dr. Lamb’s opinions are inadmissible for the reasons stated
in its Daubert motion. Second, a market defined from the
perspective

of

the

supplier

must

encompass

all

surgical

instruments that Rebotix could conceivably repair and, thus,
the market is not limited to EndoWrists. Third, even if
defined from a customer’s point of view, the EndoWrist market

33

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is not distinct from the da Vinci market because they are
separate products.
None of these arguments support summary judgment. First,
for the reasons explained in the Court’s accompanying Daubert
Order, Dr. Lamb’s opinions are admissible.
Second, the Court turns to the parties’ fundamental
disagreement as to whether the relevant market should be
determined from the perspective of the supplier, as Intuitive
argues, or from the perspective of the customer, as Rebotix
argues.

In

its

previous

order

on

Intuitive’s

motion

to

dismiss, this Court held that from either the customer-based
or

supplier-based

point

of

view,

Rebotix

had

alleged

a

relevant market in its complaint. (Doc. # 52 at 15). Although
whether a plaintiff has proven a relevant product market is
a question for the trier of fact, the Court is persuaded that
the perspective from which the market should be defined is a
question of law that the Court must resolve.
Intuitive argues that in antitrust cases brought by
excluded

or

shut-out

suppliers,

the

relevant

market

is

defined from the perspective of the supplier (here, Rebotix)
and includes any customer to which the supplier could sell
its services. (Doc. # 117 at 27). In support, Intuitive cites
to three out-of-circuit cases, but the Court finds this line
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of cases distinguishable from the instant case because those
cases concerned a monopsony, or buyer-side misconduct. See
Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549
U.S. 312, 320 (2007) (“Monopsony power is market power on the
buy side of the market.”).
As Justice Sotomayor explained while writing for the
Second

Circuit

Court

of

Appeals,

while

the

traditional

horizontal conspiracy case involves a monopolistic agreement
among sellers, the Sherman Act also applies to abuses of
market power on the buyer side. Todd v. Exxon Corp., 275 F.3d
191, 201 (2d Cir. 2001). And the fact that a case involves a
buyer-side conspiracy “affects how the market is defined.”
Id. In fact, the relevant factors are reversed in buyer-side
conspiracies. Id. at 202. “In such a case, the market is not
the market of competing sellers but of competing buyers. This
market is comprised of buyers who are seen by sellers as being
reasonably good substitutes.” Id. (citation and quotation
marks omitted); see also Shire US, Inc. v. Allergan, Inc.,
375 F. Supp. 3d 538, 552 (D.N.J. 2019) (in antitrust cases,
“perspective is critical”).
Intuitive’s cited cases illustrate this principle. For
example, Little Rock Cardiology Clinic PA v. Baptist Health,
591 F.3d 591 (8th Cir. 2009), involved a cardiology clinic
35

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and its physicians who alleged that a hospital (Baptist
Health) and an insurance company (Blue Cross & Blue Shield of
Alabama) conspired together to restrain trade and monopolize
a market. Specifically, after the cardiologists opened a
competing hospital: (1) Blue Cross terminated its network
provider agreements with the physicians, (2) Baptist Health
revoked the physicians’ staff privileges, and (3) Blue Cross
and Baptist Health formed their own HMO, agreeing that Baptist
Health would be the HMO’s exclusive in-network facility, all
in an alleged bid to protect the existing hospital from
competition. Id. at 594. The Eighth Circuit held that the
relevant-market inquiry in that case hinged on whether there
were other patients who were able to pay the cardiologists’
fees, not just those who pay using private insurance. Id. at
597 (“[The physicians’] claims boil down to the allegation
that, due to Baptist Health’s allegedly unlawful actions,
[they have] access to fewer patients. The relevant question,
then, is to whom might the cardiologists at LRCC potentially
provide medical service?”).
In Little Rock, the cardiologists were the supplier (of
their

medical

services)

and

the

hospital

was

the

buyer/consumer of those services, and the alleged antitrust
conspiracy occurred on the buyers’ side of the equation. Thus,
36

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 37 of 58 PageID 36830

the

market-definition

buyers,

such

reasonable

as

question

Medicare

substitutes. 8

anticompetitive

conduct

or
Here,

is

on

focused

on

self-pay

whether

other

patients,

were

however,
the

side

the

of

the

alleged
seller,

Intuitive.
Moreover, the Court is persuaded by Rebotix’s argument
that the relationship among the parties here is similar to
that confronted by the Supreme Court in Eastman Kodak Co. v.
Image Tech. Servs., Inc., 504 U.S. 451 (1992). There, the
defendant,

Kodak,

was

the

manufacturer

and

seller

of

photocopiers and micrographic equipment. Id. at 455. Kodak
also sold service and replacement parts for its equipment.
Id. The plaintiffs were independent service organizations

Similarly, the First Circuit has held that where pharmacies
were excluded or shut out by insurance networks offering
prescription drugs at discount prices, the relevant product
market was the sales of all retail drugs, not just financed
or reimbursed sales. Stop & Shop Supermarket Co. v. Blue Cross
& Blue Shield of R.I., 373 F.3d 57, 59, 67 (1st Cir. 2004).
Again, the conspiracy, which the court called a “classic
exclusive dealing” arrangement, was on the side of the buyer
of services. And in the final cited case, which involved the
claims of an auto glass repair shop allegedly excluded from
an insurer’s refusal to cover long crack repair, the relevant
market was the total market demand for the repair shop’s
services, not just the defendant’s demand. Campfield v. State
Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1118 (10th Cir. 2008)
(holding that plaintiff’s allegations, if true, would
describe a “monopsony,” which is one form of buyer-side market
abuse).
8

37

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(ISOs) that were in the business of servicing Kodak copying
and micrographic equipment. Id. According to the ISOs, Kodak
began adopting business policies — such as limiting the
availability of parts — making it more difficult for the ISOs
to compete with Kodak in servicing Kodak equipment. Id. This
pattern of relationships fits squarely onto the facts before
this Court. And in Eastman Kodak, the Supreme Court held that
the relevant market for antitrust purposes is determined by
the choices available to and the commercial realities faced
by consumers. Id. at 481-82.
That leads to the next part of the puzzle: Assuming the
market is defined from the customers’ (the hospitals’) point
of view, is the market for MIST robots distinct from the
market for EndoWrist Repair and Replacement?
Whether the market for surgical robots is distinct from
the

market

for

EndoWrist

repair

and

replacement

(i.e.,

whether they are two separate products) “turns not on the
functional relation between them, but rather on the character
of the demand for the two items.” Jefferson Par. Hosp. v.
Hyde, 466 U.S. 2, 19 (1984). That is, are the products
“distinguishable in the eyes of buyers” or “separately priced
and purchased from the buyer’s perspective?” Id. at 19, 20.

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There is conflicting evidence on this point, including
the price differential between a MIST robot and Rebotix’s
repair services, how each was purchased, the terms of the
SLSAs, and how hospitals viewed the products. This Court
cannot say as a matter of law that the da Vinci surgical
robots and the EndoWrists are the same product, especially as
it is undisputed that an EndoWrist is designed to be discarded
after 10 uses. See United States v. Microsoft Corp., 253 F.3d
34, 86 (D.C. Cir. 2001) (“The mere fact that two items are
complements, that one . . . is useless without the other does
not make them a single product for purposes of tying law.”);
see also Eastman Kodak, 504 U.S. at 463 (rejecting Kodak’s
argument that because there is no demand for parts separate
from service, there cannot be separate markets for service
and parts because “[b]y that logic, we would be forced to
conclude

that

there

can

never

be

separate

markets,

for

example, for cameras and film, computers and software, or
automobiles and tires”).
Whether the repair and replacement of EndoWrists has
separate demand and is a separate product from the surgical
robots is a disputed issue of genuine material fact. See
Eastman Kodak, 504 U.S. at 463 (explaining that when enough
doubt is cast on the claim of a unified market, the issue
39

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should be resolved by the trier of fact); see also Thompson
v. Metro. Multi–List, Inc., 934 F.2d 1566, 1573 (11th Cir.
1991) (“The parameters of a given market are a question of
fact and therefore summary judgment is inappropriate if there
are material differences of fact.”). Thus, Intuitive’s Motion
for summary judgment is denied on this ground.
3.

Anticompetitive Conduct

Finally, Intuitive argues that Rebotix cannot establish
the alleged misconduct of anticompetitive tying or exclusive
dealing.
“A tying arrangement is an agreement by a party to sell
one product but only on the condition that the buyer also
purchases a different (or tied) product, or at least agrees
that he will not purchase that product from another supplier.”
Eastman Kodak, 504 U.S. at 461. “A tying arrangement violates
[Section] 1 of the Sherman Act if the seller has market power
and the tying arrangement affects a substantial volume of
commerce in the tied product market.” Palmyra Park Hosp.,
Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1296 n.4
(11th Cir. 2010).
The Eleventh Circuit has noted that “the essence of
illegality
monopolistic

in

a

tying

leverage

arrangement

[by

which]
40

a

is

the

seller

wielding
exploits

of
his

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 41 of 58 PageID 36834

dominant position in one market to expand his empire into the
next.” Kypta v. McDonald’s Corp., 671 F.2d 1282, 1284 (11th
Cir. 1982) (citation omitted) (quoting Times-Picayune Publ'g
Co. v. United States, 345 U.S. 594, 611 (1953)). Thus, Rebotix
must demonstrate that Intuitive “forced or coerced the buyer
into purchasing the tied product” that “he did not want or
would have preferred to buy elsewhere on other terms.” TicX-Press, Inc. v. Omni Promotions Co. of Ga., 815 F.2d 1407,
1415-16 (11th Cir. 1987).
As an initial matter, the Court agrees with Intuitive
that it should apply the “rule of reason,” rather than the
“per se” rule, in this case. True, tying arrangements can be
among those rare cases subject to the per se rule because
certain of those arrangements “pose such a predictable and
pernicious anticompetitive effect, and such limited potential
for procompetitive benefit, that they are deemed unlawful per
se.” S. Card & Novelty, Inc. v. Lawson Mardon Label, Inc.,
138 F.3d 869, 874 (11th Cir. 1998). “It is clear, however,
that not every refusal to sell two products separately can be
said to restrain competition.”

Jefferson Par., 466 U.S. at

11. Because adoption of a per se rule requires a court to
predict “with confidence” that the restraint is unreasonable,
this Circuit has been reluctant to adopt the per se rule in
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tying cases where the economic impact is not “immediately
obvious.” S. Card & Novelty, 138 F.3d at 874. 9
Having adopted the rule of reason approach in this case,
the Court’s next step is to explain what the rule entails.
“The rule of reason tests whether the restraint imposed is
such

as

merely

regulates

and

perhaps

thereby

promotes

competition or whether it is such as may suppress or even
destroy competition.” Schering-Plough Corp. v. F.T.C., 402
F.3d 1056, 1064 (11th Cir. 2005).
To prove an illegal tying arrangement under the rule of
reason, a plaintiff must establish: (1) that there are two
separate products (a tying product and a tied product); (2)
evidence of actual coercion by the seller that in fact forced
the buyer to purchase the tied product; (3) that the seller
has sufficient market power in the tying product market to
force

the

buyer

anticompetitive

to

effects

accept
in

the

the

tied

tied

product;

market;

and

(4)
(5)

involvement of a “not insubstantial” amount of interstate
commerce in the tied product market. Amey, Inc. v. Gulf

Additionally,
in
this
Circuit,
exclusive
dealing
arrangements are “reviewed under the rule of reason.” DeLong
Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499,
1508 n.12 (11th Cir. 1989).
9

42

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Abstract & Title, Inc., 758 F.2d 1486, 1502-03 (11th Cir.
1985).
Here, Intuitive argues that Rebotix cannot establish any
unlawful tying arrangement for two reasons. First, because
Rebotix has no expert testimony defining a relevant market
for the servicing of da Vincis, it cannot define a relevant
market and cannot prove that Intuitive tied EndoWrists to da
Vinci service. Second, it cannot show that Intuitive has
unlawfully tied EndoWrists to da Vinci sales because (1) they
are not separate products; (2) Rebotix has not shown that
Intuitive has market power in the purported relevant market
for MIST robots; and (3) Rebotix cannot show anticompetitive
effects in the tied market.
As for the first argument, Rebotix points out that “the
identified tying market is not the service of da Vincis” – it
is the market for MIST robots, something Dr. Lamb did address.
As for the second argument, for the reasons described above,
there is a triable issue of fact as to whether the da Vincis
and EndoWrists are separate products. Intuitive’s second subargument hinges on its motion to exclude Dr. Lamb’s testimony
under Daubert, but for the reasons stated in the Court’s
accompanying Order, that motion is denied. Indeed, according
to Dr. Lamb, Intuitive enjoys a 99% market share in the MIST
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robot market. (Doc. # 114-2 at 51); see U.S. Anchor, 7 F.3d
at 994 (explaining that the “principal judicial device for
measuring actual or potential market power remains market
share”).
That leaves Intuitive’s argument that Rebotix cannot
establish evidence of anticompetitive effects in the tied
product market (for EndoWrist Repair and Replacement). (Doc.
# 117 at 36).
What constitutes “anticompetitive effects”? Primarily,
supracompetitive prices, sub-competitive output, and subcompetitive quality. See, e.g., Duty Free Americas, Inc. v.
Estee Lauder Cos., 797 F.3d 1248 (11th Cir. 2015) (noting
that anticompetitive effects include, but are not limited to,
reductions in output, increases in price, and deterioration
in quality); Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d
112, 231 (1st Cir. 2011) (“Injury to competition is ‘usually
measured by a reduction in output or an increase in prices in
the relevant market.’”); W. Penn Allegheny Health Sys. v.
UPMC, 627 F.3d 85, 100 (3d Cir. 2010) (“Anticompetitive
effects

included

increased

reduced

quality.”).

Here,

prices,
Dr.

reduced

Lamb

output,

provided

and

evidence

demonstrating that Intuitive charges supracompetitive prices
and enjoys extremely high profit margins for both the tying
44

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product (MIST robots) and the tied product (EndoWrists).
(Doc. # 108, Ex. 1, ¶¶ 102, 124 & n.296).
Intuitive argues that it is entitled to summary judgment
because Rebotix cannot establish that the combined price for
da Vincis and EndoWrists would be lower in the “but-for world”
(that is, a world without Intuitive’s alleged anticompetitive
conduct). (Doc. # 117 at 36-37 (citing Metzler v. Bear Auto.
Serv. Equip. Co., SPX, 19 F. Supp. 2d 1345, 1361 (S.D. Fla.
1998) and Kypta v. McDonald's Corp., 671 F.2d 1282, 1285 (11th
Cir. 1982)). But these cases merely stand for the proposition
that,

to

determine

actual

injury

in

illegal

tying

arrangements, courts should determine the fair market value
of both the tied and tying products and then determine if
there is an overcharge in the “complete price.” Kypta, 671
F.2d at 1285. Here, taking Rebotix’s admissible evidence as
true,

Intuitive

charges

supracompetitive

prices

in

both

markets.
Moving on, “[u]nder Eleventh Circuit case law, alleged
Section One agreements analyzed under the rule of reason
require a plaintiff ‘to prove (1) the anticompetitive effect
of the defendant’s conduct on the relevant market, and (2)
that the defendant’s conduct has no pro-competitive benefit
or justification.’” Spanish Broad. Sys., 376 F.3d at 1071. By
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comparing the negative and positive effects of a restraint on
competition,

a

fact

finder

can

“weigh[]

all

of

the

circumstances of a case in deciding whether a restrictive
practice should be prohibited as imposing an unreasonable
restraint on competition.” NCAA v. Alston, 141 S. Ct. 2141,
2160 (2021). While Intuitive claims that selling the da Vinci
robots and EndoWrists has certain pro-competitive benefits –
minimizing

risks

to

patients

and

providing

guarantees

regarding the reliability and safety of its system – this
weighing of various factors is better left to a jury.
Finally, the Court turns to Rebotix’s claim of exclusive
dealing. An exclusive dealing arrangement is permissible (and
not a violation of the antitrust laws) unless it forecloses
competition in the relevant market. See Tampa Elec. Co. v.
Nashville Coal Co., 365 U.S. 320, 333 (1961). Courts are
required

to

pay

attention

to

the

“practical

effect”

of

exclusive dealing arrangements, and the Eleventh Circuit has
held that courts should “consider ‘market realities’ rather
than ‘formalistic distinctions.’” McWane, Inc. v. FTC, 783
F.3d 814, 834-35 (11th Cir. 2015). Intuitive’s arguments here
are based on the same product and pricing arguments that the
Court

discussed

above.

Moreover,

the

Court

agrees

with

Rebotix that it is not necessary or proper for Dr. Lamb to
46

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offer an opinion on the ultimate issue of whether or not
Intuitive engaged in anticompetitive exclusive dealing.
In

sum,

there

is

evidence

from

Rebotix’s

expert

economist from which a jury could conclude that the tying and
exclusive dealing arrangements alleged in this case violate
the rule of reason because (1) those restraints have an
anticompetitive effect on the market and competition and (2)
Intuitive’s allegedly anticompetitive action outweighs any
procompetitive rationale for the restraints. In light of this
evidence, there are genuine issues of material fact, and
summary judgment is not appropriate. See In re Wellbutrin,
868 F.3d at 170 n.64 (“noting that “the rule of reason inquiry
is fact intensive and is not easy to resolve at the summary
judgment stage”); see also Poller v. Columbia Broad. Sys.,
Inc., 368 U.S. 464, 473 (1962) (“[S]ummary procedures should
be

used

sparingly

in

complex

antitrust

litigation

where

motive and intent play leading roles, the proof is largely in
the hands of the alleged conspirators, and hostile witnesses
thicken the plot.”).
C.

Intuitive’s Counterclaims

Intuitive’s counterclaims center upon what it describes
as Rebotix’s false and misleading marketing of its EndoWrist
“repair”

services

and

its

interference
47

with

Intuitive’s

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 48 of 58 PageID 36841

business

relationships.

In

its

counterclaim

complaint,

Intuitive identifies several different types of allegedly
deceptive marketing:
(1)

Rebotix markets itself as “Rebotix Repair” and
states that it is merely “repairing” EndoWrist
instruments, but these representations do not
describe the substantial modifications that are
actually made by Rebotix. Rebotix does not merely
tune up or calibrate the instruments; Rebotix
changes those instruments in significant (and
risky) ways.

(2)

Rebotix compounds its deception by offering a
“complete repair” of EndoWrist instruments —
further conveying a false message that the
instruments are broken or defective when they reach
their usage limit. But Rebotix knows that the usage
limits are a feature, not a bug, of EndoWrist
instruments, because they ensure proper and safe
operation.

(3)

Rebotix similarly claims that, once serviced by
Rebotix, the now-altered EndoWrist instruments are
not replacement instruments, but rather “da Vinci
manufactured
instrument[s]
that
ha[ve]
been
repaired to original specifications.” Rebotix
claims that serviced EndoWrist instruments will
“meet the quality and functional requirements of a
new device.” These claims are untrue. Moreover,
Rebotix falsely asserts that the foregoing claims
have been sufficiently validated even though (among
other problems) Rebotix would have needed access to
Intuitive’s design history and other internal files
to
identify
the
“quality
and
functional
requirements” of new EndoWrist instruments.

(4)

Rebotix
has further
disseminated
statements,
including
talking
points
for
contacts
with
customers, that misrepresent Intuitive’s testing
and safety protocols, as well as the safety of
Rebotix’s services.

48

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(5)

Rebotix also conveys false and misleading messages
concerning the purported legitimacy and legality of
the “repair” services it offers, including the
following: Rebotix fails to adequately convey to
customers that its services are neither authorized
nor approved by, nor otherwise affiliated with,
Intuitive.

(6)

Rebotix informs customers that it has reasonably
determined that its services do not require 510(k)
premarket review and clearance by the FDA, when in
fact Rebotix has not conducted a proper analysis
of whether that was the case, nor, upon information
and belief, consulted with the FDA to validate its
assertion.

(7)

Additionally,
Rebotix
misrepresents
its
qualifications. Indeed, by the very acts of
marketing and offering its services to Intuitive
customers, Rebotix necessarily conveys that it is
qualified and/or has the specialized training to
work on highly technical EndoWrist instruments.
That, too, is not the case.

(8)

Yet another category of false advertising is
Rebotix’s touting and purported validation of
alleged cost savings for customers who turn to
Rebotix to bypass usage limits instead of
purchasing new EndoWrist instruments. Lacking any
legitimate basis to make such claims, Rebotix’s
advertising fails to inform customers and/or
affirmatively misrepresents the consequences for
customers who use Rebotix’s unauthorized services,
such as the voiding of customers’ warranties and
jeopardizing of their service contracts with
Intuitive.

(9)

Finally, Rebotix has leveled false accusations
against Intuitive, including a baseless and
inflammatory charge that the usage limits built
into EndoWrist instruments are “arbitrary” and
included solely for Intuitive’s financial gain.

(Doc. # 60 at ¶¶ 9-13).

49

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With this background in mind, the Court now turns to the
parties’

arguments

with

respect

to

two

specific

counterclaims.
1.

Tortious Interference

Intuitive moves for summary judgment in its favor on
this counterclaim, arguing that “[t]he undisputed facts show
that Rebotix is liable as a matter of law for tortiously
interfering with at least 17 Intuitive hospital contracts.”
(Doc. # 117 at 29). According to Intuitive, Rebotix knew that
these contracts prohibited hospitals from using Rebotix’s
services

but

that

Rebotix

nevertheless

“induce[d]

the

hospitals to break the contractual terms by using Rebotix’s
‘repair’ services.” (Id.).
The
hospitals

SLAs

entered

into

prohibited

reconditioning”

of

da

any

between
“repair,

Vinci

Intuitive

and

the

refurbishment,

or

instruments

and

accessories.

(Doc. # 117-7 at 4). By way of factual support, Intuitive
points

to

Rebotix’s

interrogatory

response

in

which

it

identified 16 hospitals that “used EndoWrists beyond the
maximum use requirement” and reported that the EndoWrists
worked well. (Doc. # 117-40 at 15-16).
Under Florida law, the elements for a claim of tortious
interference

are:

(1)

the
50

existence

of

a

business

Case 8:20-cv-02274-VMC-TGW Document 187 Filed 08/10/22 Page 51 of 58 PageID 36844

relationship under which the plaintiff (here, Intuitive) has
legal rights; (2) Rebotix’s knowledge of that relationship;
(3) an intentional and unjustified interference with the
relationship by Rebotix; and (4) damages to Intuitive as a
result of that interference. Carlwood Safety, Inc. v. Wesco
Distr., Inc., 446 F. Supp. 3d 970, 978 (M.D. Fla. 2020)
(citing Palm Beach Cnty. Heath Care Dist. v. Prof’l Med.
Educ., Inc., 13 So. 3d 1090, 1094 (Fla. 4th DCA 2009)).
Rebotix argues that summary judgment on this claim is
not proper because, first, Intuitive has set forth no evidence
in support of the “intentional or unjustified interference”
or the damages element of a tortious interference claim. (Doc.
#

108

at

32).

Second,

Rebotix

argues

that

Intuitive’s

contracts with the hospitals are void as against public policy
and

a

tortious-interference

contract

that

is

void

as

claim
against

cannot
public

be

based

policy.

on

a

(Id.).

Finally, Rebotix claims that its actions were simply legal,
permissible competition in the marketplace. (Id. at 32-33).
Intuitive has not demonstrated that it is entitled to
judgment as a matter of law on this issue. Fed. R. Civ. P.
56(a). Instead, the question of whether Rebotix’s alleged
interference

with

Intuitive’s

hospital

contracts

was

“intentional and unjustified” is a factual issue better left
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to the jury, as is the issue of whether and to what extent
Intuitive may have been damaged by such interference.
Thus, the Court denies summary judgment as to this issue.
2.

FDUTPA

A claim for damages under the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”) has three elements: (1)
a deceptive act or unfair practice in the course of trade or
commerce; (2) causation; and (3) actual damages. Cluck-U
Chicken, Inc. v. Cluck-U Corp., 358 F. Supp. 3d 1295, 1312–
13 (M.D. Fla. 2017).
Rebotix moves for summary judgment on this counterclaim,
arguing

that

Intuitive

lacks

evidence

of

two

“critical

elements”: actual consumer injury and actual damages. The
Court will address the damages argument first. Intuitive’s
response helpfully narrows the issue here – it agrees that
disgorgement is not an appropriate measure of damages and
claims that, here, it is asserting only past lost profits,
which it claims are an available remedy under FDUTPA. (Doc.
# 148 at 30-31). Rebotix, however, disputes that past lost
profits are available as damages under FDUTPA.
As two district courts in the Southern District of
Florida recently pointed out, federal district courts are
split on this issue. See Tymar Distr. LLC v. Mitchell Grp.
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USA, LLC, No. 21-21976-CIV, 2021 WL 4077966, at *4–7 (S.D.
Fla. Sept. 8, 2021) (collecting cases and holding that past
lost profits are recoverable under FDUTPA); Midway Labs USA,
LLC v. S. Serv. Trading, S.A., No. 19-24857-CIV, 2020 WL
2494608, at *6–7 (S.D. Fla. May 14, 2020) (analyzing the split
of authority and concluding that past lost profits are not
recoverable under FDUTPA).
The Florida Supreme Court has not decided the issue of
whether past lost profits are “actual damages” (and therefore
available)

or

“consequential

damages”

(and

therefore

unavailable) under FDUTPA. The Eleventh Circuit Court of
Appeals has not resolved the split either. However, there
appears

to

be

a

recent

consensus

forming

in

the

Middle

District of Florida, holding that businesses may recover past
lost profits under FDUTPA. See Healthplan Servs., Inc. v.
Dixit, No. 8:18-cv-2608-SDM-AAS, 2021 WL 4927434, at *8 (M.D.
Fla. May 27, 2021), report and recommendation adopted, No.
8:18-cv-2608-SDM-AAS, 2021 WL 4926752 (M.D. Fla. July 22,
2021)

(holding

past

lost

profits

are

recoverable

under

FDUTPA); Crmsuite Corp. v. Gen. Motors Co., No. 8:20-cv-762WFJ-AAS, 2021 WL 914170, at *6 (M.D. Fla. Mar. 10, 2021)
(same); Gulf Coast Turf & Tractor LLC v. Kubota Tractor Corp.,
No. 8:17-cv-2787-SCB-AEP, 2019 WL 1446309, at *1–2 (M.D. Fla.
53

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Apr. 1, 2019) (same); Glob. Tech Led, LLC v. Hilumz Int'l
Corp., No. 2:15-cv-553-JES-CM, 2017 WL 588669, at *9 (M.D.
Fla. Feb. 14, 2017) (same).
Moreover, this Court finds persuasive the reasoning in
Tymar, where the court analyzed this issue and held that “the
weight of Florida law holds past loft profits recoverable
under [the] FDUTPA”:
The FDUTPA, which prohibits deceptive and unfair
trade practices, only permits the recovery of
“actual damages[,]” which the Act does not
define. Fla. Stat. § 501.211(2) (alteration added).
When the Florida legislature enacted the FDUTPA, it
notably permitted only a “consumer” to state a
claim for damages. . . . In 2001, the Florida
Legislature amended the FDUTPA to replace the word
“consumer”
with
“person,”
causing
Florida’s
appellate courts to hold that corporate-competitor
plaintiffs, rather than just consumers, can seek
damages under the FDUTPA.
Of course, in a claim brought by a corporate
competitor, there is no bargain giving rise to the
expectancy
measure
of
damages
employed
in
traditional consumer cases. Corporate competitors
instead
suffer
lost
profits,
lost
revenue,
reputational harm, and other damages commonly
observed in business torts claims rather than
contract-based causes of action.
Court decisions evaluating the damages available to
a competitor company under the FDUTPA vary widely.
Federal district courts are split: many have held
past lost profits are available, and many others
have refused to permit plaintiffs to seek lost
profits at all, applying the benefit-of-the-bargain
measure of damages. Yet, many of these cases did
not engage in a significant analysis of the issue.

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. . .
The Florida Supreme Court previously defined
“actual
damages”
when
construing
a
libel
statute. See Ross v. Gore, 48 So. 2d 412, 414 (Fla.
1950). In Ross, the statute permitted recovery of
“only actual damages[,]” Id. at 413 (alteration
added), and the Florida Supreme Court stated
“[s]ince [the term ‘actual damages’] is used
synonymously with ‘compensatory damages’ in many of
our decided cases, we think it is fair to assume
that
‘actual
damages’
mean
‘compensatory
damages.’” Id. at 414 (alterations added). The
Florida Supreme Court continues to use the terms
actual
damages
and
compensatory
damages
interchangeably. . . .
The
Florida
Supreme
Court
broadly
defines
compensatory damages as those which “arise from
actual
and
indirect
pecuniary
loss,
mental
suffering, value of time, actual expenses, and
bodily pain and suffering.” And in claims with no
underlying transaction, such as business torts,
lost profits are often directly caused by a
defendant's wrongful act and recoverable simply as
compensatory
damages. By
contrast,
courts
generally limit their categorization of damages as
“consequential” to claims sounding in contract, and
the definition of consequential damages as those
arising “from losses incurred by the non-breaching
party in its dealings, often with third parties,
which were a proximate result of the breach, and
which were reasonably foreseeable by the breaching
party at the time of contracting.” Put another
way, consequential damages are those that do not
“flow[ ] directly from the parties’ immediate
transaction.” Where, as here, the claim does not
involve any breach of contract, warranty, or
similar wrong sounding in contract, any line
drawing
between
expectancy
and
consequential
damages is rather inapt.
The above principles suggest a much larger universe
of damages available in FDUTPA claims arising
outside the consumer transaction context, when
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considered alongside the liberal construction
courts must afford the FDUTPA to accomplish its
remedial purpose, see Fla. Stat. § 501.202. It
makes considerable sense to permit a corporatecompetitor plaintiff to seek lost profits damages
when there is no transaction giving rise to the
oft-used expectancy measure of damages.
The Court joins other federal district courts in
holding a corporate-competitor plaintiff may seek
lost profits damages under the FDUTPA.
Tymar, 2021 WL 4077966, at *4-7 (most citations omitted)
(emphasis added).
This Court agrees with the Tymar court’s reasoning and
with the determination reached by other courts in the Middle
District of Florida. Where a party brings an FDUTPA claim
against a corporate competitor, as here, the aggrieved party
may seek past lost profits damages under FDUTPA.
The Court now turns to Rebotix’s other FDUTPA argument
– that Intuitive has no evidence that any consumer suffered
actual injury as a result of its actions. Summary judgment is
not warranted on this claim because there remain genuine
disputes of material fact.
Here,

the

“consumers”

of

Rebotix’s

services

are

hospitals. The question then becomes whether any hospitals
were injured due to Rebotix’s alleged deceptive practices or
unfair acts. The Eleventh Circuit has recognized that, where
a product or service has been misrepresented and thus deprives
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the consumer of the benefit of his bargain, FDUTPA provides
a remedy for diminution of market value. See Carriuolo v.
Gen. Motors Co., 823 F.3d 977, 986-87 (11th Cir. 2016) (“The
injury occurs at the point of sale because the false statement
allows the seller to command a premium on the sales price.”);
see also Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 0961166-CIV, 2011 WL 1833366, at *6 (S.D. Fla. May 13, 2011)
(“Under

FDUTPA,

Plaintiffs

suffered

damages

when

they

purchased something that was not what they were led to believe
they were purchasing.”). Intuitive is proceeding under the
theory that the hospitals did not get the benefit of their
bargain because the “repaired” EndoWrist that they paid for
was not as safe, “like new,” approved by Intuitive, etc., as
they believed based on Rebotix’s marketing.
For these reasons, Rebotix’s Motion with respect to the
FDUTPA counterclaim must be denied.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff

Rebotix

Repair,

LLC’s

Motion

for

Summary

Judgment (Doc. # 108) is DENIED.
(2)

Defendant Intuitive Surgical, Inc.’s Motion for Summary
Judgment (Doc. # 117) is DENIED.

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(3)

The Motions to maintain certain filings under seal (Doc.
## 118, 153) are GRANTED for the reasons stated herein.

(4)

The Motion to Strike the Declaration of Richard Lyon
(Doc. # 160) is DENIED AS MOOT.

(5)

The Clerk is directed to terminate the pending sealed
versions of these motions (Doc. ## 97, 101). The Clerk
is further directed to lift the stay of this case.

(6)

The Court will set new deadlines in this case by separate
order.
DONE and ORDERED in Chambers in Tampa, Florida, this

10th day of August, 2022.

58