UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-cv-23391-GOODMAN

[CONSENT]

ADT LLC, et al.,

Plaintiffs,

v.

VIVINT SMART HOME, INC. f/k/a Mosaic

Acquisition Corp., et al.,

Defendants.

_______________________________________/ 

OMNIBUS ORDER ON MOTIONS IN LIMINE AND DAUBERT1

Defendants Vivint Smart Home, Inc. f/k/a Mosaic Acquisition Corp. and Legacy 

Vivint Smart Home, Inc. f/k/a Vivint Smart Home, Inc. (collectively, “Vivint” or 

“Defendants”) have filed a motion in limine and two Daubert motions. [ECF Nos. 114-16]. 

Plaintiffs ADT, LLC and The ADT Security Corporation (collectively, “ADT” or 

“Plaintiffs”) have filed opposition responses. [ECF Nos. 124-25; 127] and Defendants have 

filed replies [ECF Nos. 131-33]. The parties have also filed some redacted exhibits [ECF 

1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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Nos. 119; 130] and some exhibits under seal [ECF Nos. 118; 120; 128-29].2

For the reasons discussed below, the Court grants in part and denies in part

Defendants’ in limine motion, denies Defendants’ Daubert motion as to Dr. Winer, and 

grants the Daubert motion directed to Dr. Matolo.

The rulings in this pre-trial Order are subject to change based on the actual trial 

testimony. For instance, if this Order permits certain expert opinion testimony but the 

expert’s testimony is other than what was represented in the submissions or the crossexamination exposes additional and substantial flaws or more-serious gaps than 

presented before trial, then the Court has authority to strike some or all of the expert 

opinion testimony or to issue limiting instructions or to issue a post-trial ruling, if 

necessary. See Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1231 (11th Cir. 2010) (“It is 

permissible for a district court to rescind its own interlocutory order.”). The Court has 

similar discretion concerning the non-expert evidence which is the subject of the rulings 

on the in limine motion. See Ohler v. United States, 529 U.S. 753, 758 n.3 (2000) (noting that

in limine rulings are “not binding on the trial judge, and the judge may always change his 

mind during the course of the trial”).

2 This Order is publicly filed because it does not disclose the substance of any underseal filings.

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I. Background

In the operative First Amended Complaint, Plaintiffs assert the following causes 

of action: (1) unfair competition in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A); 

(2) common law unfair competition; (3) trade slander/commercial disparagement; and (4) 

tortious interference with advantageous business relationships. [ECF No. 22].

ADT describes the gist of its claims against Vivint as follows:

This case is about Vivint’s false and misleading sales practices on the 

doorsteps and in the homes of hundreds—if not thousands—of ADT 

customers across the country. Through well-rehearsed sales tactics, Vivint’s 

sales representatives have misled scores of ADT customers into believing, 

among other things: (1) that the Vivint agent is there to simply “update” or 

“upgrade” the ADT customer’s equipment, when in reality he or she is 

switching out the ADT system for Vivint; (2) that ADT has been bought out 

or is going out of business and that Vivint is taking over ADT accounts; and 

(3) that Vivint is a subcontractor, installer or is otherwise affiliated with or 

acting on behalf of ADT. These affiliation misrepresentations allow Vivint 

to freeride on the goodwill of ADT, damage ADT’s name, and lead ADT’s 

customers to do business with Vivint under false pretenses, typically 

resulting in the ADT customer becoming bound into a multi-year contract 

with Vivint valued in the thousands of dollars that is impossible for the 

customer to extricate him or herself from once the customer has finally 

become aware of Vivint’s deception. These practices violate Section 43(a) of 

the Lanham Act, 15 U.S.C. § 1125(a), and the related common law of unfair 

competition. ADT seeks damages to remedy its loss of numerous customers 

(some known, some unknown) and the disruption of thousands of others 

since December 20, 2017; ADT’s injuries to its goodwill and reputation; 

ADT’s lost royalties from Vivint’s unauthorized use of the ADT brand; 

Vivint’s profits from its ill-gotten gains, ADT’s attorneys’ fees; and punitive 

damages to punish and deter Vivint from continuing to engage in its 

intentional conduct.

Id. at ¶ 1.

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In response to ADT’s claims, Vivint filed an answer and asserted the following

counterclaims: (1) unfair competition in violation of the Lanham Act, 15 U.S.C. § 

1125(a)(1)(A); (2) vicarious unfair competition in violation of the Lanham Act, 15 U.S.C. § 

1125(a)(1)(A); (3) contributory unfair competition in violation of the Lanham Act, 15 

U.S.C. § 1125(a)(1)(A); (4) induced unfair competition in violation of the Lanham Act, 15 

U.S.C. § 1125(a)(1)(A); (5) unfair competition in violation of the Lanham Act, 15 U.S.C. § 

1125(a)(1)(B); (6) common law unfair competition; (7) federal trademark infringement 

under the Lanham Act; (8) contributory infringement of federally registered trademark;

(9) vicarious infringement of federally registered trademark; (10) defamation per se under 

Florida law; and (11) tortious interference with advantageous business relationships 

under Florida law. [ECF No. 76].

II. Applicable Legal Standards

A. In Limine Motions

Motions in limine in essence seek a prophylactic against the introduction of 

damaging evidence that could “‘irretrievably affect the fairness of the trial.’” Benson v. 

Facemyer, No. 1:13-cv-595, 2017 WL 1400558, at * 1 (N.D. Ga. Apr. 19, 2017) (quoting Soto 

v. Geico Indem. Co., No. 6:13-CV-181, 2014 WL 3644247 at * 1 (M.D. Fla. July 21, 2014)). 

Courts thus grant them “only if the evidence in question is clearly inadmissible.” 

Hamilton v. Lanier, 464 F. Supp. 3d 1379, 1381 (S.D. Ga. 2020) (quoting Stewart v. Hooters of 

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Am., Inc., No. 8:04-cv-40, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007)); see also Ctr.

Hill Courts Condo. Ass'n, Inc. v. Rockhill Ins. Co., No. 19-cv-80111, 2020 WL 496065, at *1 

(S.D. Fla. Jan. 30, 2020) (citing United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. 

Fla. 2010)).

In limine rulings are “not binding on the trial judge, and the judge may always 

change his mind during the course of the trial.” Ohler, 529 U.S. at 758 n.3.

“When seeking to exclude evidence in limine, ‘[t]he movant has the burden of 

demonstrating that the evidence is inadmissible on any relevant ground.’” Guantanamera 

Cigars Co. v. SMCI Holding, Inc., No. 21-cv-21714, 2022 WL 2046884, at *1 (S.D. Fla. June 

27, 2022) (citing Gonzalez, 718 F. Supp. 2d at 1345).

B. Daubert

A Court has “broad discretion in determining whether to admit or exclude expert 

testimony, and its decision will be disturbed on appeal only if it is manifestly erroneous.” 

Evans v. Mathis Funeral Home, 996 F.2d 266, 268 (11th Cir. 1993) (emphasis added). This 

“manifestly erroneous” standard is used because “by virtue of the trial court’s role in 

presiding over trial proceedings, it is in the best position to decide such matters.” See 

United States v. Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005).

The decision to admit or exclude expert testimony is within the trial court’s 

discretion and the court enjoys “considerable leeway” when determining the 

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admissibility of this testimony. See Cook v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1103 

(11th Cir. 2005) (emphasis supplied).

Federal Rule of Evidence 702 governs the admission of expert testimony, as 

explained and refined by the United States Supreme Court in Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579, 582 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 

(1999). Under this framework, district courts are charged with a gatekeeping function “to 

ensure that speculative, unreliable expert testimony does not reach the jury.” McCorvey 

v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002).

Rule 702 provides that:

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 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.

To fulfill its obligation under Daubert, a trial court engages in a three-part inquiry: 

(1) whether the expert is qualified to testify competently; (2) whether the methodology 

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used to reach the conclusions is sufficiently reliable; and (3) whether the testimony assists 

the trier of fact to understand the evidence or to determine a fact at issue. Rink v. 

Cheminova, Inc., 400 F.3d 1286, 1291-92 (11th Cir. 2005).

As an overarching principle, the district court must “ensure that speculative, 

unreliable expert testimony does not reach the jury.” McCorvey, 298 F.3d at 1256. “In order 

to be admissible, an expert’s testimony must be based on ‘more than subjective belief or 

unsupported speculation.’” Haggerty v. Upjohn Co., 950 F. Supp. 1160, 1167 (S.D. Fla. 1996) 

(quoting Daubert, 509 U.S. at 590). There should be “[s]cientific method; good grounds 

and appropriate validation.” United States v. Masferrer, 367 F. Supp. 2d 1365, 1371 (S.D. 

Fla. 2005).

Reliability of the methodology requires “an exacting analysis of the proffered 

expert’s methodology.” McCorvey, 298 F.3d at 1257. That analysis takes into consideration 

a number of factors, including: (1) whether the expert’s methodology can be, and has 

been, tested; (2) whether the expert’s scientific technique has been subjected to peer 

review and publication; (3) whether the method employed has a known rate of error; and 

(4) whether the technique is generally accepted in the scientific community. Rink, 400 F.3d 

at 1292; see also Quiet Tech. DC–8, Inc. v. Hurel–Dubois UK Ltd., 326 F.3d 1333, 1341 (11th 

Cir. 2003).

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These reliability factors, however, are non-exhaustive. Kumho Tire, 526 U.S. at 150; 

Rink, 400 F.3d at 1292. Thus, “[i]n evaluating the reliability of an expert’s method . . . a 

district court may properly consider whether the expert’s methodology has been 

contrived to reach a particular result.” Rink, 400 F.3d at 1293 n.7. The burden of 

establishing the reliability of an expert’s opinions rests on the proponent of that expert’s 

testimony. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (en banc). The party 

proffering the expert also has the burden of “laying the proper foundation for the 

admission of the expert testimony . . . and admissibility must be shown by a 

preponderance of the evidence.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th 

Cir. 1999).

“It is not the role of the district court to make ultimate conclusions as to the 

persuasiveness of the proffered evidence.” Quiet Tech. DC–8, Inc., 326 F.3d at 1341. Thus, 

a court cannot exclude an expert because it believes the expert lacks personal credibility. 

Rink, 400 F.3d at 1293 n.7. Instead, “vigorous cross-examination, presentation of contrary 

evidence, and careful instruction on the burden of proof are the traditional and 

appropriate means of attacking shaky but admissible evidence.” Id. (quoting Daubert, 509

U.S. at 596).

A less-than-perfect expert opinion may still be admitted, even if it contains gaps. 

See In re Trasylol Prods. Liab. Litig., No. 08–MD–01928, 2010 WL 1489793, at *6 (S.D. Fla. 

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Feb. 24, 2010) (“Only if the expert’s opinion is so fundamentally unsupported that it can 

offer no assistance to the jury must such testimony be excluded.”).

Furthermore, courts “must be careful not to conflate questions of admissibility of 

expert testimony with the weight appropriately to be accorded to such testimony by the 

fact finder.” Id. at *7 (quoting Quiet Tech DC–8, Inc., 326 F.3d at 1341); cf. Peng v. Citizens 

Property Ins. Co., 337 So. 3d 488, 493 (Fla. 3d DCA 2022) (“[A]ny discrepancies between 

[an expert]’s affidavit and his deposition may provide fertile ground for crossexamination but should not serve as the basis for being stricken under Daubert.”).

On the other hand, courts do not hesitate to exclude purported expert testimony 

which does not pass muster. See Allison, 184 F.3d at 1322 (affirming summary judgment 

in favor of silicone breast implant manufacturers and upholding district court’s exclusion

of proffered expert’s causation testimony under Daubert); Rink, 400 F.3d at 1286 (affirming 

exclusion of expert testimony in products liability and toxic trespass action against 

pesticide manufacturer and therefore affirming summary judgment for defendant); 

Frazier, 387 F.3d at 1263 (finding trial court in criminal case did not abuse its discretion in 

excluding proffered expert testimony from forensic investigator); Hendrix v. Evenflo Co., 

Inc., 609 F.3d 1183, 1201–03 (11th Cir. 2010) (affirming defense summary judgment for 

infant car seat manufacturer in products liability lawsuit involving child who sustained 

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traumatic brain injuries and upholding trial court ruling which excluded expert 

testimony because the experts were not sufficiently reliable).

But regardless of whether a court admits or excludes expert opinion testimony 

under Daubert, “it is difficult to persuade a court of appeals to reverse a district court’s 

judgment on Daubert grounds.” Brown, 415 F.3d at 1264-66 (explaining that the 

“considerable deference” given to trial judges on evidentiary rulings “applies with equal 

or even greater force to Daubert issues in particular” because it is “an area where the abuse 

of discretion standard thrives”).

III. Analysis

A. In Limine Motion [ECF No. 114]

Vivint’s in limine motion [ECF No. 114] seeks to exclude evidence of (or any 

reference to, or argument about) four categories of testimony, exhibits and computations: 

(1) customer complaints other than testimony from customers subject to crossexamination (“Customer Complaints”); (2) external proceedings, settlements, and 

complaints against Vivint by nonparties, and a 2017 proceeding brought by ADT against 

Vivint (“External Matters Against Vivint”); (3) lawsuits Vivint has brought against nonADT competitors (“Competitor Lawsuits”); and (4) damage computations based on the 

foregoing and other inadmissible evidence (“Inadmissible Damages”).

The Court’s analysis will unfold on a category-by-category basis:

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Customer Complaints

Vivint wants to exclude evidence of ADT customer complaints other than 

testimony from customers subject to cross-examination. The so-called “complaints” are 

recordings of phone calls between customers and ADT, Vivint or both, as well as notes, 

reports or a spreadsheet summary purporting to document the customer’s recollection of 

their interactions with Vivint on these recorded calls. In the “complaints,” an ADT 

customer supposedly tells an ADT (or Vivint) customer service representative about 

something a Vivint salesperson allegedly said.

At bottom, Vivint contends that these Customer Complaints are inadmissible 

hearsay. In fact, it argues that the complaints consist of multiple layers of hearsay. It also 

argues that they are untrustworthy and that their admission would destroy its right of 

cross-examination. Vivint says that ADT plans to improperly ask the jury to treat the 

allegations in the complaints as proof of Vivint’s purported misconduct.

Noting that ADT seeks to admit the complaints for the truth of the ADT customer’s 

statement that a Vivint salesperson made deceptive statements, Vivint contends that the 

business records exception of Federal Rule of Evidence 803(6) does not apply because: (1) 

the customers did not make the complaints in the regular course of their business; (2) the 

complaints are not trustworthy because ADT coaches its customers to believe that a 

deceptive sales practice was committed by Vivint; (3) ADT customers express faulty 

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memories or fail to attribute statements to Vivint; and (4) ADT customers have motives 

to misrepresent interactions with Vivint sales staffers.

Vivint’s motion also contends that the residual hearsay exception of Federal Rule 

of Evidence 807 is inapplicable because: (1) the complaints do not have sufficient 

guarantees of trustworthiness; and (2) the complaints are not more probative than any 

other evidence ADT could obtain through reasonable efforts.

Finally, Vivint’s motion concerning the complaints contend that summaries are 

also inadmissible because ADT cannot establish that the underlying documents used to 

create the summaries are admissible.

In response, ADT describes the in limine motion as Vivint’s tactic to preclude 

nearly all evidence concerning its “years of egregious deceptive sales practices.” ADT 

says that Vivint’s motion, if granted, would eliminate all circumstantial evidence -- and 

would require ADT to “prove intent and every individual instance of Vivint’s wrongful 

conduct through customer testimony alone.” This, ADT argues, would require hundreds, 

perhaps thousands, of deceived customers to testify at trial, a scenario which it says 

would create a trial lasting many, many months.

ADT contends that there are several non-hearsay uses of the complaints (i.e., they 

would be offered for some purpose other than to prove the truth of the allegations made 

to ADT during the recorded calls). Specifically, ADT says it has four non-hearsay 

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purposes for introducing the complaints at trial: (1) showing that Vivint had knowledge 

and notice of the deceptive sales practices of its sales representatives; (2) showing that 

Vivint acted with intent by failing to rectify known deceptive sales practices or 

adequately discipline the offending sales representatives; (3) proving actual customer 

confusion under the Lanham Act; and (4) demonstrating how many customers were 

harmed by Vivint’s deceptive sales practices for ADT’s damages calculations.

In addition, ADT argues that Vivint’s own documentation of the customer 

complaints it received, the actions it took to investigate the complaints and Vivint’s own 

conclusions about the complaints are party admissions, which are not hearsay and 

therefore are admissible.

ADT also contends that Vivint’s motion is an attempt to exclude all customer 

complaints for all purposes (not merely for the truth of the matter asserted) and is an 

unfair tactic to limit ADT to only live customer witness testimony. This, ADT says, is 

inequitable because Vivint wants to limit ADT to proving its damages with only customer 

testimony but also challenged the number of customer depositions which ADT could take 

in this case before finally consenting to a total of 15 depositions.

Moreover, ADT says that the Customer ID, date of report, competitor company 

name, contract, customer name, street address, city, state, zip code, date of activity and 

call (memorialized on spreadsheets ADT prepared about customer complaints) date do 

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not implicate hearsay concerns even if the customer comments were redacted as hearsay. 

Thus, ADT argues, at the very least, a redacted version of the spreadsheet is admissible.

Moreover, ADT argues that complaints and its own spreadsheet can be used to 

prove the number of ADT customers who reported complaints about Vivint, which it 

says is a permissible, non-hearsay use of the spreadsheet.

According to ADT, any Vivint arguments about how ADT supposedly coaches 

customers relate to the weight assigned to the customer complaints, not the fundamental 

admissibility.

On a related point, ADT says that it has documented more than 385 complaints it 

has received about Vivint’s sales practices -- but Vivint identified only less than 10 which 

it disputes as reporting deceptive sales conduct by Vivint’s salesforce. And ADT also 

contends that Vivint’s challenge to the trustworthiness of the customer complaints is 

unconvincing because it is based on only a few “cherry-picked” statements and because 

it excluded the entirety of the customer complaints without including the remainder to 

provide necessary context. ADT provided specific examples of the few “cherry-picked” 

complaints and argues that Vivint “grossly mischaracterized” those few complaints. ADT 

describes Vivint’s tactics as a challenge based on “selective quotation and omission” 

which does not support wholesale exclusion of the evidence.

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Vivint takes issue with the arguments ADT has put together in opposition to the 

in limine motion.

Vivint’s reply [ECF No. 131] says the so-called non-hearsay purposes of the 

challenged evidence are not actually promoting a non-hearsay theory. Instead, Vivint 

contends, each suggested non-hearsay use inherently requires the jury to rely on the truth 

of the complaints -- i.e., that the customer complaints are, in fact, evidence of deceptive 

sales practices committed by Vivint.

For example, Vivint explains that ADT’s effort to admit the complaints is not to 

show Vivint’s mere notice and knowledge of its receipt of those complaints. Instead, Vivint 

points to language from ADT’s own memorandum to demonstrate ADT’s true purpose: 

to show “evidence of Vivint’s notice and knowledge of deceptive sales practices.” [ECF 

124, p. 4 (emphasis added)].

Therefore, Vivint continues, in order to equate “complaints” with evidence of 

actual “deceptive sales practices,” the jury must presume the truth and validity of each 

inadmissible hearsay complaint as a “deceptive sales practice.”

The Court is inclined to agree.

ADT has, in effect, conceded that its purpose of providing evidence of notice is 

actually to establish notice of the very deceptive sales practices which would require 

the jury to conclude that the complaints are, in fact, evidence of misconduct. Merely 

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saying that the non-hearsay purpose is to establish notice does not necessarily mean that 

this is in fact ADT’s actual purpose, and it does not mean that truth will not play a role 

in assessing the evidence for the purported non-hearsay purpose. See, e.g., Moon v. 

Advanced Med. Optics, Inc., No. 4:08-CV-0021, 2010 WL 11500832, at *9 (N.D. Ga. Dec. 29, 

2010) (database reports based on “subjective communications from lay persons” were 

inadmissible hearsay, and the plaintiffs “[could not] avoid the hearsay rules by arguing 

that they [sought] to introduce the [database] entries and reports to show notice” because 

“[the] [p]laintiffs necessarily [were] seeking to introduce the [database] entries and 

reports to show the truth of the matters contained in those documents” (emphasis 

added)).

Boiled down to its basics, Vivint’s theory about mere notice or knowledge of the 

receipt of customer calls could very well result in the introduction of evidence without 

any probative value -- unless ADT also advises the jury that these calls alleged deceptive

conduct and that those reports were valid.

Significantly, ADT claims that Vivint’s records show the receipt of “more than 

75,000 complaints about the conduct of its sales representatives” and will argue that 

Vivint has failed in sufficient “deter[rence]” or “punishment” of deceptive sales practices, 

based on its “extensive knowledge of the magnitude of this problem[.]” [ECF No. 124, p. 

4].

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The Court concludes that the customer complaints are inadmissible hearsay which 

cannot be introduced for the truth of the matter asserted. The complaints are 

unadjudicated allegations and consist of multiple levels of hearsay. They are inadmissible 

for the purpose of truth. ADT LLC v. Alarm Prot. LLC, 2017 WL 1881957, *1–2 n.2 (S.D. Fla. 

May 9, 2017) (excluding phone calls of customer complaints to prove truth of asserted 

deceptive sales practices against defendant) (citing ADT, LLC v. Sec. Networks, LLC, No. 

12-CIV-81120 (S.D. Fla. Dec. 9, 2016) (same)).

The ruling that the customer complaints cannot be introduced for the truth applies 

to summaries of those complaints, as well. A summary under Fed. R. Evid. 1006 requires 

ADT to “establish that the underlying documents would have been admissible if the 

proponent had sought their admission.” In re Int’l Mgmt. Assocs., LLC, 781 F.3d 1262, 1266 

(11th Cir. 2015). This Court rejected a prior attempt by ADT to circumvent the hearsay 

rule. See ADT, LLC v. Vivint, Inc., No. 17-cv-80432, 2017 WL 11632866, at *4 (S.D. Fla. Dec. 

8, 2017) (excluding “any documents that purport to summarize any customer phone calls 

[as] inadmissible hearsay . . . . This includes the spreadsheet and corresponding summary 

. . . [which] purports to summarize the recordings described above”).

Although I view Vivint’s arguments and concerns about notice favorably at this 

pre-trial point, I am not going to now rule that the complaints are in fact totally 

inadmissible for that non-hearsay purpose. Instead, I will await trial to make a ruling, but 

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I am putting ADT on notice now that it will face an uphill legal climb if it seeks to establish 

that notice is a permissible purpose, given the non-frivolous concerns voiced by Vivint 

(and discussed above) about what conclusions are likely to be implicit in any review of 

the complaints. Cf. ADT LLC v. Vivint, Inc., 2017 WL 11632866, *1-4 (holding that hearsayfilled recordings of customer complaints may not be admitted as evidence for the truth 

of the statements and noting that any objections to purported relevance for a non-hearsay 

purpose, such as notice and the number of customer complaints (which might have 

relevance to damages) would be “dealt with at trial”).

Awaiting trial to see how the legal and factual issues unfold and how they impact 

the notice theory is the more-prudent approach and is a view frequently adopted by 

federal trial courts. Ctr. Hill Cts. Condo. Ass’n, Inc., 2020 WL 496065, at *1 (unless the 

evidence is inadmissible on any relevant ground, evidentiary rulings should be deferred 

until trial) (citing United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010) 

(internal quotations omitted)). Motions in limine are often disfavored, and Courts 

frequently prefer to address the admissibility of evidence as such issues arise at trial. 

Begualg Inv. Mgmt., Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2013 WL 750309, at 

*1 (S.D. Fla. Feb. 27, 2013).

The Undersigned therefore grants, in part, Vivint’s motion. Specifically, the Court 

partially grants the motion in limine and excludes the Customer Complaints for purposes 

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of the truth of the complaints. ADT’s announced plan to introduce the complaints to 

prove notice (and Vivint’s alleged failure to do anything in response) will, if objected to 

at trial, be the subject of an in-trial ruling.

For purposes of demonstrating the number of complaints received by Vivint, the 

Court will also reserve ruling for trial, assuming an objection is lodged. It may well be 

that the chart itself (or a portion of it) might be admissible without violating the hearsay 

rule. For example, a redacted version of the spreadsheet (with the customer comments 

section redacted) might be a workable solution.3

3 In ADT LLC v. Alder Holdings, LLC, the Court permitted ADT to use its complaint 

spreadsheet with the “customer comments” section redacted, allowing for admission of 

other non-hearsay fields such as Customer ID, Date of Report, Competitor Company 

Name, Contract, Customer Name, Street Address, City, State, Zip Code, Date of Activity, 

and Call Date. See, [ECF No. 124-6 (Exhibit F (Alder Trial Exhibit P9))]. The Alder 

defendants made a motion in limine “to exclude all references to the existence and 

substance of customer complaints for the truth of the matter, regardless of the source of 

the evidence[.]” See ADT LLC v. Alder Holdings, LLC, No. 17-CV-81237-ROSENBERG, ECF 

No. 218 (S.D. Fla. Feb. 22, 2019) (attached to Vivint’s Response, [ECF No. 124-7 (Exhibit 

G)]).

According to Vivint, [ECF No. 124, pp. 9-10], the Honorable Robin Rosenberg 

denied this motion without prejudice and, following a hearing with Magistrate Judge 

Bruce Reinhart, the spreadsheet was admitted with the customer comments field 

redacted but all the information in the aforementioned categories remained unredacted. 

Vivint’s memorandum did not provide an ECF number for this development, but ADT’s 

Reply did not in any way challenge its accuracy, and the Undersigned therefore accepts 

the representation.

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But, from an overarching perspective, the Undersigned deems it prudent to await 

trial for a substantive ruling on the numerosity purpose. In order to avoid any undue 

delay at trial, ADT should by trial time have already prepared a redacted version of the 

spreadsheet.

The Court rejects the notion that Vivint’s documentation of customer complaints 

are admissible as non-hearsay party admissions of Vivint. I also reject the theories that 

the complaints are admissible as business records (because, among other reasons, the 

customers did not make their complaints in the regular course of their own business), are 

admissible under the residual exception of Federal Rule of Evidence 8074, and/or that the 

records of the complaints are admissible as evidence of actual confusion under the 

Lanham Act.

4 See generally In re Terazosin Hydrochloride Antitrust Litig., No. 99-MDL-1317, 2005 

WL 5955699, at *5 (S.D. Fla. Feb. 2, 2005) (“This exception . . . is to be utilized only rarely, 

and is not to be taken as a ‘broad license for trial judges to admit hearsay statements that 

do not fit within one of the other exceptions[.]” (internal citation and quotation omitted)). 

Rule 807 permits hearsay only if the statement is (1) “supported by sufficient guarantees 

of trustworthiness--after considering the totality of circumstances under which it was 

made and evidence, if any, corroborating the statement”; and (2) “more probative on the 

point for which it is offered than any other evidence that the proponent can obtain 

through reasonable efforts.” Fed. R. Civ. P. 8(a).

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External Proceedings, Settlements, and Complaints Against Vivint

Vivint seeks to exclude (1) evidence regarding “consumer” complaints about 

Vivint to the Better Business Bureau (“BBB”) and to state attorneys general or other 

regulatory agencies (“Agency Complaints”); and (2) evidence, including documents and 

depositions, related to external proceedings brought against Vivint by third parties, and 

a 2017 proceeding brought by ADT5 (collectively, “Other Proceedings”). ADT intends to 

introduce these unadjudicated matters to argue Vivint’s liability beyond any testifying 

customers or other proof in this case.

Vivint argues that the Agency Complaints are hearsay for the same reasons that 

the Customer Complaints are hearsay -- but are even more untrustworthy because they 

consist of third parties communicating with other third parties, which, according to 

Vivint, “constrains [its] ability to address accuracy and reliability concerns.” Vivint says 

it is particularly concerned about the Agency Complaints because it argues that ADT 

encourages customers to “file dubious Agency Complaints against Vivint.” Furthermore, 

Vivint says that ADT advises customers that they can “get out” of Vivint agreements by 

making Agency Complaints.

5 ADT LLC and ADT US Holdings, Inc. v. Vivint, Inc., Case No. 9:17-cv-80432-

DMM/DLB (S.D. Fla. Apr. 4, 2017) (“2017 Lawsuit”).

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Vivint also argues that the Agency Complaints are unduly prejudicial under 

Federal Rule of Evidence 403. To combat the prejudice arising from Agency Complaints, 

Vivint says, it would be forced to conduct a mini-trial on the validity of each Agency 

Complaint, which it says would be impossible where there will be no testimony to crossexamine and where the trial period would not be long enough to accommodate this 

collateral-type litigation.

Vivint argues that evidence of the other proceedings are : (1) irrelevant under Rule 

402 (because separate lawsuits and settlement, involving different parties, legal standards 

and circumstances are not indicative to Vivint’s liability here; (2) inadmissible hearsay; 

(3) inadmissible as prior bad acts, in violation of Rule 404(b); and (4) unfairly prejudicial 

because it would be portrayed as a “bad” company based on unsubstantiated complaints 

and/or its participation in litigation. The net result, Vivint contends, would be to confuse 

and mislead the jury about ADT’s innuendo and speculation (as opposed to actual, 

substantive evidence of admissible customer complaints).

Vivint emphasizes that ADT has disclosed 27 depositions from the 2017 Lawsuit 

and contends that it would need to defend all of the claims discussed there to the same 

extent as the claims in the instant lawsuit, which would, in its view, “subsum[e] this trial 

entirely.”

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In response, ADT says it intends to use the complaints to agencies to prove Vivint’s 

notice and knowledge of customer complaints unrelated to ADT from across the country, 

which is for a purpose other than to prove the truth of the complaints.

ADT also argues that the Agency Materials and Lawsuits contain evidence of 

Vivint’s statements about complaints or investigations and that it is permitted to crossexamine Vivint’s company witnesses about them because they are admissions and 

therefore not hearsay.

Federal Rule of Evidence 404(b)(2) permits ADT to use “other bad act” evidence 

for certain limited purposes, and ADT says it may use this type of evidence to show that 

Vivint’s misconduct is not an accident or the result of only a few “bad apple” employees, 

but, instead, is a “longstanding pattern of misconduct that spans many years, sales 

representatives, and geographic areas.” [ECF No. 124, p. 18].

ADT argues that Rule 403’s exclusion provision is an “exceptional remedy” which 

is invoked only “sparingly.” ADT agrees that evidence of Vivint’s chronic misconduct 

may make Vivint look bad -- but it says this is a fair result, not an unfairly prejudicial 

scenario.

ADT points out that Vivint is seeking to exclude entire categories of evidence, 

without a showing about how any particular document might cause it undue prejudice. 

Therefore, it says, Vivint’s motion is overbroad. As a result, ADT says, it is impossible to

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determine in the abstract whether any document from any investigation, complaint, or 

lawsuit against Vivint is so clearly inadmissible on all grounds as to warrant an in limine

Order excluding them all, regardless of content.

Vivint says the 2017 Lawsuit resulted in a full release by ADT and that the release 

“operates to exclude any evidence of the 2017 Lawsuit independent of the applicable 

evidentiary rules.” [ECF No. 131, p. 8].

Similar to its position concerning the Customer Complaints, Vivint contends that 

ADT cannot successfully invoke the non-hearsay purposes of notice, knowledge, or 

admissions because the evidence would still necessarily be offered for the truth of the 

allegations. And, as it argued in response to the Customer Complaint evidence theory, 

Vivint notes that ADT conceded its true and actual purpose when it wrote “the fact that 

[Vivint] sales representatives were engaging in deceptive sales practices” is a 

permissible, non-hearsay reason to permit the evidence. [ECF No. 131, pp. 8-9 (quoting 

ECF No. 124, p. 17 (alteration and emphasis in Reply))].

Vivint argues that Federal Rule of Evidence 404(b) does not permit the evidence 

because the external matters are “nothing more than contested, unadjudicated 

allegations.” Vivint also contends that ADT has not even bothered to show substantial 

similarity between the “other bad act” evidence and the specifics of the experiences any 

given ADT customers had with a given Vivint sales representative on a given date or in 

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a given place. According to Vivint, the conduct at issue varies in each instance because 

that is “simply the nature of door-to-door conduct” involved in the industry. [ECF No. 

131, p. 9].

Concerning Rule 403, Vivint says it has neither the trial time nor resources to 

respond to all the untold number of mini-trials which would be necessary to confront 

each allegation in each matter. And it contends that “allowing ADT to frame the trial 

around Vivint as a “bad” company because it has been involved in other proceedings has 

no probative value as to whether a particular ADT customer was misled, whether ADT 

was harmed as a result, and/or whether Vivint’s alleged conduct in this case justifies 

punitive damages.” Id. at 10.

The Court concludes that the external proceedings such as other lawsuits and 

investigations are inadmissible hearsay for purposes of ADT urging the truth of the 

allegations in them, and I therefore exclude evidence of them for that purpose. See Salinero 

v. Johnson & Johnson, No. 1:18-cv-23643, 2019 WL 7753445, at *3 (S.D. Fla. Sept. 25, 2019) 

(“[I]f [the] [p]laintiffs were to use the existence of other claims or complaints as proof that 

other women suffered complications . . . such evidence would be inadmissible hearsay.”); 

see also Steed v. EverHome Mortg. Co., 308 F. App’x 364, 369 n.2 (11th Cir. 2009) (in Fair 

Housing Act lawsuit, allegations of targeting in another complaint would be inadmissible 

hearsay because allegations would be offered for their truth); Bowe v. Public Storage, No. 

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1:14-cv-21559, 2015 WL 10857339, at *2 (S.D. Fla. June 2, 2015) (granting motion in limine

to exclude other lawsuits and any unrelated claims or disputes against the defendant, 

except for any relevant admissions previously made by defendant or its agents).

In addition, although ADT says it also wants to introduce the evidence for the nonhearsay purpose of notice, the Undersigned shares the same concern I articulated earlier 

in this Order about evidence of Customer Complaints: it will be extremely difficult to 

deem the evidence relevant for the purpose of notice without advising the jury that the 

allegations are true (or permitting the jury to reach that unavailable conclusion on its 

own).

However, if ADT has evidence of specific Vivint officers, executives, or managers 

speaking about (or writing about) allegations of deceptive misconduct by their sales 

representatives, then ADT may cross-examine them with those statements, as they are 

admissions and not excludable as hearsay.

The Undersigned rejects ADT’s argument that the external matters are admissible 

under Rule 404(b) because it has not established substantial similarity between them and 

the specific allegations in this case. See United States v. Liuzzo, 608 F. Supp. 1234, 1236 (S.D. 

Fla. 1985) (“While it is true that the ‘similar acts’ evidence need not be identical to the act 

charged . . . there must be sufficient similarity to insure its probative value will outweigh 

the prejudice that will inevitably be suffered by the [d]efendant by its introduction.”); 

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Moon v. Advanced Med. Optics, Inc., No. 4:08-CV-0021, 2010 WL 11500832, at *5 (N.D. Ga. 

Dec. 29, 2010) (excluding other lawsuits, claims or incidents against a defendant 

attributed to the same product where there was only “cursory evidence” that failed to 

establish substantial similarity of prior incidents).

Conceivably, ADT might be able to demonstrate this substantial similarity at trial. 

But, even if successful on that point, ADT would then directly confront the rule that the 

external lawsuits and investigations (in general, other than the admissions) would be 

excludable as unduly prejudicial under a Rule 403 analysis. ADT is seeking to introduce 

evidence of myriad unproven allegations. There is a considerable risk that the jury would 

be confused about the significance (if any) of unproven allegations and whether they 

constituted innuendo and speculation.

Moreover, there is a risk that the primary focus of the trial would deviate from the 

instant case to a series of mini-trials addressing the validity of the unsubstantiated 

allegations in other lawsuits and investigations. See A.T.O. Golden Constr. Corp. v. Allied 

World Ins. Co., No. 17-24223, 2018 WL 5886663, at *8-9 (S.D. Fla. Nov. 9, 2018) (excluding 

prior lawsuits because “even if [the] [p]laintiff could demonstrate some probative value 

from allegations in other lawsuits, presenting evidence of these other cases would lead to 

a series of mini-trials that would likely confuse and mislead the jury from the task at hand 

of evaluating plaintiff’s claims in this case and result in a waste of time and judicial 

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resources”); Bui v. Minority Mobile Sys., Inc., No. 15-21317, 2016 WL 6518804, at *1 (S.D. 

Fla. Jan. 28, 2016) (“[T]he probative value of [prior litigation] evidence is substantially 

outweighed by the danger of unfair jury bias against the chronic litigant under Rule 

403.”); see also Boneta v. Am. Med. Sys., Inc., No. 20-CIV-60409, 2021 WL 6776245, at *3 (S.D. 

Fla. Oct. 6, 2021) (“[E]vidence of other lawsuits and the factual allegations therein is 

inadmissible under Rule 403.” (alteration in original, citation and internal quotation 

marks omitted)).

Therefore, the Undersigned grants Vivint’s motion in limine concerning other 

lawsuits and investigations (other than the admissions, if any). This rule of exclusion also 

addresses ADT’s notice theory because the evidence of other unproven lawsuits and 

investigations would still be excludable under Rule 403 as unduly prejudicial and likely 

to confuse the jury. Specific admissions by Vivint executives, officers, and/or managers, 

however, result in a different conclusion under a Rule 403 balancing analysis. As noted, 

ADT can use that evidence at trial to cross-examine Vivint witnesses.

Vivint-Filed Lawsuits Against Non-ADT Parties

Vivint contends that the same reasons justifying the exclusion of evidence 

concerning the external matters also support exclusion of evidence of external lawsuits 

where Vivint sued non-ADT competitors. These other lawsuits, Vivint notes, did not 

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involve any ADT customer, and they concern allegedly unlawful conduct by non-Vivint 

salespersons.

At bottom, Vivint explains, ADT intends to use this evidence to: (1) portray Vivint 

as litigious; (2) seek to show that Vivint is adopting inconsistent legal positions; and (3) 

urge the jury to therefore conclude that Vivint’s current legal defenses are invalid. In 

addition, Vivint contends that the evidence, if permitted, would require the jury to assess 

the allegations and non-binding legal arguments from two cases which were not resolved 

at trial or summary judgment and which are more than a decade old.

ADT, on the other hand, argues that Vivint made “numerous party admissions 

that are damning to its case” in testimony its executives and officers gave in lawsuits it 

filed against competitors “for the same deceptive door-to-door practices at issue in this 

case.” [ECF No. 124, p. 20]. ADT contends that “the shoe [is] now [ ]on the other foot,” 

and that it has many relevant purposes for using Vivint’s party admissions from the other 

lawsuits. Id.

In response to Vivint’s argument that the evidence is unfairly prejudicial under 

Rule 403, ADT notes that the evidence may well be harmful to Vivint’s defense, but there 

is nothing unfair about using Vivint’s prior statements against it.

In addition to the points outlined above, Vivint’s reply contends that one of ADT’s 

actual motivations to use this evidence is to plug up the evidentiary hole in its expert’s 

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proffered testimony in a 2017 Lawsuit. As explained by Vivint, ADT’s prior expert could 

not support an extrapolation theory with adequate methodology to survive muster -- and 

ADT should not be able to now advance past the admissibility hurdle (which it 

previously stumbled over and failed to clear) “by reference to a footnote in a decade-old 

motion pleading.” [ECF No. 131, p. 11].

It is, of course, correct that testimony and arguments from other lawsuits are 

frequently excluded. See e.g., Energy Smart Indus., LLC v. Morning View Hotels-Beverly Hills, 

LLC, No. 14-cv-23284, 2015 WL 11233085, at *1 (S.D. Fla. June 3, 2015) (excluding the 

plaintiff’s other lawsuits because the fact that the plaintiff brought breach of contract 

claims against other parties “does nothing to show that [the] [p]laintiff breached its 

contract with [the] [d]efendant”); Hydentra HLP Int. Ltd. v. Luchian, No. 1:15-cv-22134, 

2016 WL 5942525, at *2 (S.D. Fla. May 31, 2016) (excluding testimony and argument from 

prior copyright infringement lawsuits because “[t]he charge of litigiousness is a serious 

one, likely to result in undue prejudice against the party charged, unless the previous 

claims made by the party are shown to have been fraudulent”).

Some reasons that evidence of prior lawsuits is generally not allowed “is because 

evidence of other cases can at times lead to a series of mini-trials, and pose a danger of 

confusing and misleading the jury from the task at hand of evaluating plaintiff’s claims, 

including a waste of time and judicial resources.” Gutierrez v. Galiano Enters. of Miami 

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Corp., No. 17-24081, 2019 WL 3302325, at *3 (S.D. Fla. July 23, 2019) (internal citation and 

quotation marks omitted) (summarizing cases where evidence was excluded).

On the other hand, party admissions are not hearsay. That point, though, concerns 

a hearsay objection, not a relevance objection under Rule 402 or an objection of unfairly 

prejudicial evidence under Rule 403. But ADT submitted a three-page order by United 

States District Judge Donald M. Middlebrooks (in the 2017 Lawsuit between ADT and 

Vivint) in which he postponed until trial a ruling on ADT’s argument that evidence was 

admissible under a party admissions theory. [ECF No. 124-4 (Exhibit “D”)]. The 

Undersigned does not find that decision applicable because the one-sentence ruling 

concerned a hearsay objection (and whether Vivint’s responses to customer complaints 

to the BBB constituted admissions, which is not hearsay), not objections to relevance and 

the purported unfair level of prejudice.

It is difficult to obtain a sufficient grasp of the factual background for purposes of 

grappling with the parties’ competing positions with enough focus to permit a sound 

pre-trial ruling. ADT has provided only a few instances of Vivint’s so-called admissions 

in other lawsuits against other defendants. It is therefore risky for the Undersigned to 

now enter a pre-trial ruling excluding (or permitting) an entire category of evidence 

without knowing the precise evidence and understanding how it might relate to the 

issues, in context.

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For purposes of this Order, therefore, the Undersigned rejects for now Vivint’s 

motion concerning Vivint’s lawsuits against non-ADT defendants but gives ADT notice 

that its admissions theory will at trial be confronted with hurdles created by both Rule 

402 and Rule 403. See generally Ctr. Hill Cts. Condo. Ass’n, Inc., 2020 WL 496065, at *1 

(unless a movant meets the high burden of demonstrating that evidence is inadmissible 

on any relevant ground, “evidentiary rulings should be deferred until trial so that 

questions of foundation, relevancy, and potential prejudice may be resolved in proper 

context”).

Damages Calculations Based on Purportedly Inadmissible Evidence

Vivint seeks to exclude any reference to any category or computation of damages 

based on, or extrapolated from, the evidence it challenged in its motion. Specifically, it 

targets two of ADT’s experts, Dr. Russell Winer and Dr. Eric Matolo. It has filed separate 

Daubert motions against these experts [ECF Nos. 115-16] and the Undersigned will 

address those motions in this Omnibus Order. Those separate Daubert motions are 

primarily based on objections and challenges different from those Vivint raised in the 

instant in limine motion. Nevertheless, Vivint contends that both experts will attempt to 

rely on Customer Complaints, External Matters Against Vivint, and Competitor

Lawsuits.

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At bottom, Vivint says that expert opinion testimony based on inadmissible 

underlying evidence is also inadmissible, and it notes that “extrapolation is inappropriate 

because the underlying evidence is inadmissible for the reasons discussed above” (i.e., in 

its motion in limine).

Vivint also claims the attempted extrapolations fail for an additional reason: “the 

[c]ustomer [c]omplaints are not a reliable representation of Vivint’s sales practices.” [ECF 

No. 114, p. 23]. According to Vivint, what ADT terms a “deceptive sales practice” 

complaint can mean different things -- and determining whether one occurred and 

harmed ADT “requires customer testimony and cross-examination.”

Pursuing a related objection, Vivint contends that ADT’s efforts to extrapolate 

damages are further flawed because they fail to distinguish actionable misconduct from 

legal sales activity.

Finally, Vivint’s motion argues that ADT’s attempts to extrapolate damages 

should not be permitted because ADT did not timely disclose its formula for these 

damages. Specifically, Vivint’s motion alleges that ADT’s counsel emailed a 

“demonstrative exhibit” to Vivint’s counsel on November 18, 2022, in the midst of the 

ADT Rule 30(b)(6) deposition, including a previously undisclosed “formula” for “Lost 

Account Damages,” containing previously undisclosed factors titled “Multiple” and 

“Underreporting Factor.” According to Vivint, ADT “offered no justification for this late 

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disclosure, which prejudiced Vivint’s ability to prepare for and conduct discovery 

including the ongoing depositions of ADT.” [ECF No. 114, p. 24].

ADT’s response to this portion of the in limine motion is to rely on its responses to 

Vivint’s separate Daubert motions. So those points will be analyzed below. ADT says it 

timely disclosed its damages computations “numerous times throughout discovery” 

[ECF No. 124, p. 23] and that Vivint’s counsel had a “full opportunity” to depose ADT’s 

Rule 30(b)(6) witness on ADT’s damages calculation, including the valuation of its 

damages.

In its reply, Vivint argues that ADT’s explanation does not directly address the 

actual issue because none of the previous damages disclosures mentioned or otherwise 

disclosed the “formula” finally provided during the deposition.

Both parties have provided only skeletal, succinct, truncated grounds on the issue 

of the supposedly belated disclosure. Based on the skimpy record presented by both sides 

on this disclosure-timing issue, the Undersigned is unable to grant the motion on that 

ground and exclude ADT’s damages computations. But Vivint will be permitted to 

comprehensively and vigorously cross-examine ADT’s witnesses, including any experts, 

about the timing of the disclosure of “the formula.”

From a substantive perspective, ADT will not be permitted to introduce through 

its experts evidence the Court has deemed inadmissible, either here in this Order or later, 

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during an in-trial ruling. For instance, Dr. Winer will not be permitted to read tweets 

from dissatisfied ADT customers. See Grajeda v. Vail Resorts Inc., No. 2:20-CV-00165, 2023 

WL 2613543, at *4 (D. Vt. Mar. 23, 2023) (“An expert may not merely serve as a conduit 

for the hearsay testimony of another witness.”).

In addition, the Undersigned rejects Vivint’s argument that ADT’s experts will not 

be permitted to provide expert opinion testimony without adequately distinguishing 

between actionable misconduct and permissible sales techniques and then making 

appropriate adjustments in the damages model. That argument goes to the weight of the 

expert testimony (assuming it is permitted over the objections raised in the Daubert 

motions), not its admissibility. But the Undersigned will give Vivint wide latitude to 

mount a major attack on ADT’s expert(s) during cross-examination. See Daubert, 509 U.S. 

at 596, 113 S. Ct. at 2798 (“Vigorous cross-examination, presentation of contrary evidence, 

and careful instruction on the burden of proof are the traditional and appropriate means 

of attacking shaky but admissible evidence.”); In re Takata Airbag Prod. Liab. Litig., No. 15-

MD-02599, 2022 WL 3584510, at *2 (S.D. Fla. Aug. 16, 2022) (“[The] [d]efendants argue 

that Dr. Dubé’s model does not calculate relevant damages and it is unreliable. However, 

these arguments go to weight, rather than admissibility, meaning they are better 

challenged during cross-examination before the jury instead of under Daubert.”).

The Undersigned will now address the two Daubert motions:

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B. Daubert Motions [ECF Nos. 115-16]

Defendants also seek to exclude Plaintiffs’ expert witnesses Dr. Russell S. Winer 

and Dr. Eric Matolo. Both experts offer opinions on damages. None of the parties 

requested an evidentiary hearing for the Daubert motions (in either the two motions, two 

responses, or two replies). The Court finds that this is not a complicated case, thereby 

avoiding the need for such a hearing. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe 

Cnty., Fla., 402 F.3d 1092, 1113-14 (11th Cir. 2005) (explaining that trial courts are not 

obligated to hold a hearing on Daubert motions and holding that “[b]ecause this is not a 

‘complicated case[ ] involving multiple expert witnesses’—Dr. Maris was the only 

proffered expert—we cannot conclude that the district court abused its discretion by not 

holding a Daubert hearing”). The Cook Court also held that an appellate court reviews a 

trial court’s decision on whether to hold a Daubert hearing for an abuse of discretion. Id.

at 1113.

For the reasons discussed in more detail below, Vivint’s complaints about Dr. 

Winer’s opinions are best addressed through cross-examination rather than exclusion. 

There are many substantive attacks which Defendants will be able to level, including the 

fact that Dr Winer’s proposed remedial advertising campaign would reach customers 

who were not exposed to Vivint’s alleged misconduct. Vivint will be able to probe these 

potential weak links during rigorous cross-examination. If these Vivint-led challenges are 

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successful, then the jury will either place less reliance on these opinions or may even 

discount them completely. In either case, these challenges are for the jury to resolve.

On the other hand, Dr. Matolo’s opinions do not satisfy the reliability prong of 

Daubert and will be excluded.

Dr. Russell S. Winer

Plaintiffs retained Dr. Winer to (among other things): (1) opine on whether and to 

what extent the manner in which Vivint marketed itself to ADT customers caused harm 

to ADT’s brand and (2) “identify and outline potential remedies to reverse any harm done 

to the ADT brand arising from Vivint’s use of deceptive sales tactics, including 

misrepresentation[.]” [ECF No. 119-15, ¶ 8].

Defendants take issue with Dr. Winer’s proposed remedy: an approximately $27.2 

million “restoration campaign.” Id. at ¶ 17; [ECF No. 115, p. 4 (“Allowing [Dr.] Winer to 

testify will . . . infect the jury with a highly suspect $27 million proposed remedial 

information campaign that is contrary to law and outside the bounds of any generally 

accepted methodology[.]”)].

1. Background

Dr. Winer is the William Joyce Professor of Marketing and Deputy Chair of the 

Marketing Department at the Stern School of Business, New York University. [ECF No. 

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119-15, ¶ 1]. He received a Ph.D. in Industrial Administration in 1977 from Carnegie 

Mellon University.6

Defendants seek to exclude Dr. Winer’s opinions in their entirety on (lack of) 

reliability and (lack of) relevancy grounds. [ECF No. 115, p. 1]. They argue that 

“[a]llowing [Dr.] Winer to testify will (1) infect the jury with a highly suspect $27 million 

proposed remedial information campaign that is contrary to law and outside the bounds 

of any generally accepted methodology; and (2) usurp the jury’s role as a factfinder on 

issues of liability.” [ECF No. 115, p. 4].

Plaintiffs assert that Dr. Winer’s “opinions [will] assist the jury in assessing 

whether and in what amount ADT has been damaged by Vivint’s widespread deceptive 

sales practices directed at ADT’s customers in largely undocumented, in-person

interactions throughout the United States.” [ECF No. 125, p. 1].

For the reasons discussed below, the Court finds that Defendants’ challenges (and 

there are several) go to the weight, rather than the admissibility, of Dr. Winer’s opinions.

2. Analysis

Defendants argue that some of Dr. Winer’s opinions are “novel” and contrary to 

law:

6 Defendants do not challenge Dr. Winer’s qualifications. [ECF No. 115, p. 5 n.2 

(“Vivint is not challenging [Dr.] Winer’s qualifications in this Motion.”)].

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[Dr.] Winer proposes an entirely novel “inoculation theory” as part of his 

remedial information campaign. Under this “theory,” ADT customers that 

have never been visited by a Vivint representative must still be educated by 

ADT during its door-to-door campaign to “watch out for” Vivint’s future 

deceptive sales practices that might never take place. His “inoculation 

theory” is, thus, an impermissible attempt to obtain highly speculative 

damages to prevent potential harm from unknown future interactions with 

Vivint that might never occur and might not be deceptive or misleading. 

The law of damages, however, is not intended to “inoculate”—it is meant 

to compensate.

[ECF No. 115, p. 2]; see also [ECF No. 132, p. 4 (“Vivint seeks to exclude Winer’s testimony 

because his remedy is meant to ‘inoculate’ against the potential that a customer might be 

deceived by some assumed future visit from Vivint—a very different rubric that is 

contrary to the well-settled principle that prospective corrective advertising is a ‘method 

of repair’ for harm that has already been sustained.”)].

But, as one court found, Dr. Winer’s opinions are corrective advertising (but just 

under a different label):

Based on the parties’ testimony, the Court finds Dr. Winer’s, quote, 

“remedial information campaign,” closed quote, is, quote, “corrective 

advertising,” closed quote, by a different name.

Accordingly, [the] defendant’s motion in limine to exclude testimony of 

Russell Winer pursuant to Rule 702, Document Number 94, is denied.

[ECF No. 127-4, p. 45 (Hrg. Tr, CPI Sec. Sys, Inc. v. Vivint Smart Home, Inc., 3:20-CV-0504-

FDW-DSC (W.D.N.C. Jan. 14, 2022)]. Vivint attempts to distinguish CPI Sec. Sys, Inc. by

arguing that “[t]hat case involve[d] different facts, a different expert report, different 

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conclusions, and different parties, in a different jurisdiction.” [ECF No. 132, p. 5]. But that 

is almost always the reality when analogizing to another lawsuit.

Moreover, as ADT points out, the Eleventh Circuit has sanctioned corrective

advertising as a permissible measure of damages. [ECF No. 125, p. 5 (quoting Aronowitz 

v. Health-Chem Corp., 513 F.3d 1229, 1241 (11th Cir. 2008) (“[D]amages sustained by the 

plaintiff include all elements of injury to the business of the trademark owner 

proximately resulting from the infringer’s wrongful acts’ such as the costs of corrective 

advertising or injury to business reputation or goodwill.” (emphasis added, citation and 

internal quotation marks omitted))].

Thus, the Court does not find Dr. Winer’s opinions in the instant case to be “novel” 

or contrary to law. What Dr. Winer proposes is -- in effect -- a corrective advertising

campaign. Defendants may well believe the costs of Dr. Winer’s proposed campaign is 

excessive, and they may cross-examine Dr. Winer extensively on his cost estimates, but 

that is not a basis for excluding Dr. Winer’s testimony.

In the same vein, Defendants argue that Dr. Winer’s remedial information 

campaign is too widespread:

[Dr.] Winer’s proposed sweeping remedial information campaign is further 

suspect because it is not tailored to rectify the ADT customer confusion 

caused by Vivint’s alleged false or misleading statements. Instead, Winer 

casts such a wide net to remedy harm that it does not matter to him if ADT’s 

customers believed Vivint’s purported statements or were confused or 

deceived by Vivint’s alleged conduct. Instead, [Dr.] Winer contends that if 

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a Vivint representative visits an ADT customer and that ADT customer has 

any “negative feelings” about ADT or Vivint after the interaction, that ADT 

customer is subject to his $27 million remedial information campaign. The 

law, however, was never intended to remedy negative feelings—it is meant 

to correct customer confusion about perceived affiliation as between the 

parties’ goods and services. Accordingly, [Dr.] Winer’s sweeping remedial 

information campaign travels far outside the boundaries of the law and is 

neither relevant nor helpful in addressing the facts and evidence in this 

case.

[ECF No. 115, pp. 2-3]. But again, to the extent Defendants believe that the proposed 

remedial information campaign reaches too large an audience, is for too long a time, 

should be limited to a smaller geographical area, etc., these are all topics that Defendants 

will be able to explore on cross-examination.

In PODS Enters., LLC v. U-Haul Int'l, Inc., the defendant (“U-Haul”) filed a posttrial motion attacking an award of damages for corrective advertising supported by Dr. 

Winer’s trial testimony. 126 F. Supp. 3d 1263 (M.D. Fla. 2015). One of the arguments 

raised by U-Haul was that Dr. Winer’s opinion was overinclusive: “U-Haul argues that 

the 113.6 million misimpressions were overstated, as they included all searches for ‘pods’

on search engines, even those that did not result in clicks on U-Haul websites.” Id. at 1283. 

The court found that U-Haul’s argument concerned “the weight of the evidence, a matter 

within the province of the jury.” Id.

Similarly here, if Defendants believe Dr. Winer “casts such a wide net” and his 

numbers should be more “tailored” [ECF No. 115, p. 2], then it is their burden to persuade 

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the jury on those points. As ADT points out, “if the jury doesn’t agree with some or any 

of Dr. Winer’s testimony, it does not have to award the full amount of damages Dr. Winer 

endorses.” [ECF No. 125, p. 13].

Defendants also take issue with the fact that Dr. Winer relied on six or seven 

recorded calls provided to him by GBX (the litigation consulting firm he worked with), 

instead of reviewing all 1,300 audio files himself. [ECF No. 115, p. 15]. If Vivint believes 

Dr. Winer should have personally listened to more recorded calls, then they may delve 

into that line of questioning at trial, but it is not a ground for excluding Dr. Winer’s expert 

testimony.

Lastly, Vivint accuses Dr. Winer of usurping the jury’s role:

ADT seeks to admit Winer’s opinion that Vivint is liable under the Lanham 

Act because, among other things, (1) Vivint allegedly engaged in deceptive 

sales tactics by suggesting that ADT is an “inadequate, non-functioning, or 

fading corporate entity”; and (2) as a result, created customer confusion 

resulting in harm to ADT’s brand. (Winer Report at ¶¶ 12-17, 92-95). Such

statements are pure legal conclusions wholly outside of the purview of 

permissible expert testimony.

[ECF No. 115, pp. 17-18].

ADT responds that, at trial, “Dr. Winer will explain, from his expert marketing 

perspective, how and why Vivint’s conduct is damaging to ADT’s brand equity requiring 

corrective messaging, and what specific course of conduct would be required to attempt 

to restore it.” [ECF No. 125, pp. 22-23].

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The Court is confident that ADT (who is being represented by many seasoned and 

top-tier litigators) will ensure that Dr. Winer (having testified as a branding and 

marketing expert in numerous cases like this one) will “stay in his lane” and not opine 

on matters that are reserved for the jury, such as liability and causation. Nonetheless, 

should a concern arise at trial, either party may timely raise the issue with the Court.

In sum, the Court finds that Defendants’ arguments affect the weight to be 

afforded to Dr. Winer’s damages opinions, rather than their admissibility, and his report 

and testimony will therefore not be excluded under Daubert.

Dr. Eric Matolo

1. Background

Dr. Matolo has “a Ph.D. and an M.A. in economics from the University of 

California at Santa Barbara, and a B.A. in economics/mathematics from the University of 

California at Santa Barbara” and “actively employed in the area of economic analysis 

and/or economic instruction for over 14 years.” [ECF No. 119-16, ¶ 5].7

Plaintiffs retained Dr. Matolo to quantify and opine on royalty damages incurred 

after December 20, 2017, in connection with Plaintiff’s Lanham Act and common law 

unfair competition claims. Id. at ¶¶ 2-3.

7 Vivint does not challenge Dr. Matolo’s qualifications.

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2. Analysis

Defendants seek to exclude Dr. Matolo’s opinions in their entirety based on (lack 

of) reliability and (un)helpfulness grounds. [ECF No. 116]. They argue that: “(A) [Dr.] 

Matolo’s wholesale adoption of the ADT Model is unreliable; (B) [Dr.] Matolo’s wholesale 

adoption of [Dr.] Mangum’s Representative Industry Model is unreliable; and (C) [Dr.] 

Matolo has not “reliably applied” either model “to the facts of [this] case.” Id. at 4.

Dr. Matolo calculated two royalty percentage rates using an ADT Dealer Revenue 

Sharing Model (“ADT Model”), which yielded a 22 percent royalty rate, and a 

Representative Dealer Revenue Sharing Model (“Industry Model”), which yielded a 24.4 

percent royalty rate. [ECF No. 119-16].

Defendants seek to exclude both revenue sharing models as unreliable. They also 

argue that Dr. Matolo’s royalty base opinion -- i.e., the application of the 22 percent 

royalty rate to a portion of Vivint’s sales for the years 2018, 2019, and 2020 -- is flawed 

because it is not tied to revenue attributable to Vivint’s alleged misconduct.

At the outset, the Undersigned notes that Vivint does not dispute that forced 

royalty rates can be a measure of damages in certain Lanham Act cases. [ECF No. 133, p. 

2 (“Vivint agrees with ADT that a reasonable royalty based on market measures can be 

an appropriate measure of actual damages in a trademark infringement case.”); id.

(“Vivint does not argue that the royalty damages theory itself is improper or 

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speculative[.]”); id. at 3 (“[I]t is generally accepted methodology to review comparable 

license agreements to develop a ‘market measure,’ a measure discerned from reviewing 

actual past transactions from the market.”)]. Nonetheless, Vivint argues that the manner 

in which Dr. Matolo formulated his damages opinions does not pass muster under 

Daubert. For the reasons discussed below, the Court agrees.

a. ADT Model

Dr. Matolo used the ADT Model to calculate a 22 percent forced royalty rate. 

Vivint argues that Dr. Matolo’s opinions concerning the ADT Model must be excluded 

because he purportedly “wholesale adopt[s] . . . the opinions and conclusions of 

[unknown person(s) at ADT who developed the ADT Model], without any independent 

analysis of his own[.]” [ECF No. 119, p. 9].

Plaintiffs maintain that:

Dr. Matolo’s proposed royalty rate is not hypothetical—it is based on 

market measures directly tied to how ADT shares revenue with its existing 

authorized dealers. Dr. Matolo’s opinion and methodology are also neither 

unique nor novel. Over the past decade Dr. Matolo and his colleague Dr. 

Russell Mangum have presented virtually identical expert opinions 

employing the same methodology in numerous courts on behalf of ADT 

(including to this very Court in three separate cases), each of which have 

allowed those opinions and methodology to be presented to the jury.

[ECF No. 127, pp. 1-2]. They note that “[t]he same methodology was also approved by 

this Court in ADT’s prior litigation against Vivint,” 2017 Lawsuit. Id. at 7 (citing ADT LLC 

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and ADT US Holdings, Inc. v. Vivint, Inc., Case No. 9:17-cv-80432- DMM/DLB, DE 170 (S.D. 

Fla. Nov. 15, 2017).

Plaintiffs point out that “over 200 authorized ADT dealers have already negotiated 

a right to use the ADT name and trademarks in return for sharing a portion of the 

revenues generated by new accounts with ADT[.]” Id. at 4-5. “[T]he dealers pay ADT an 

implied royalty under the respective ADT dealer agreement (i.e., the ADT Revenue 

Sharing Model).” Id. at 5 (citing ADT & ADT US Holdings, Inc. v. Alarm Prot. LLC, No. 

9:15-CV-80073, 2017 WL 2212541, at *3-4 (S.D. Fla. May 17, 2017)).

Plaintiffs provided the ADT Model to Dr. Matolo. But Dr. Matolo did not review 

the underlying data. He did not verify the numbers or components that make up the ADT 

Model to determine whether it made sense to include them, whether there were any 

missing components which should have been included, or whether there was a sound 

basis, from an economic perspective, for the model.

While Dr. Matolo made some tweaks to the ADT Model (for instance, adjusting 

the percentage figure to account for “ADT [ ] not providing the monitoring service”) [ECF 

No. 119-16, ¶ 37], there is no dispute that the ADT Model was used to calculate the net 

present value for the dealer agreements, id. at ¶ 33 (“ADT has created an analytical model 

to identify the value (the Net Present Value, or ‘NPV’) to ADT of the dealer relationship”)

(footnote omitted)).

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Vivint alleges (and ADT does not materially dispute) that “[Dr.] Matolo undertook 

no substantive analysis of ADT’s data on his own[.]” [ECF No. 116, p. 7].

ADT argues the ADT Revenue Sharing Model is not a “theory” or “opinion” but 

rather “an existing business tool that allows ADT to calculate the Net Present Value . . . 

to ADT for any particular dealer relationship regardless of the amounts the dealer takes 

up-front versus through recurring revenue.” [ECF No. 127, at 10]. They note that “ADT 

uses this model to run its dealer business and has for many years.” Id. Plaintiffs state that 

“[t]he model reflects the actual economics of ADT’s past and present agreements with its 

dealers, i.e., it constitutes the established royalty rate to affiliate with ADT.” Id. at 11.

It may well be that Plaintiffs will introduce at trial the fact that ADT uses a revenue 

sharing model as part of its business. Vivint even suggests that “this one page document 

. . . may meet the standard for a business record under Fed. R. Evid. 803(6).” [ECF No. 

133, p. 7]. But that does not mean that ADT gets to paint the ADT Model with the veneer 

of expertise simply because they handed it to their expert.

ADT also argues that it was not necessary for Dr. Matolo to verify the ADT Model 

in formulating his opinion on a reasonable royalty rate in the instant case because “‘courts 

often conclude that experts are permitted to rely on information provided by clients 

without confirming the accuracy.’” [ECF No. 127, p. 12 (quoting Companhia Energetica 

Potiguar v. Caterpillar Inc., No. 14-CV-24277, 2016 WL 11547499, at *12 (S.D. Fla. June 13, 

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2016), report and recommendation adopted, No. 14-24277-CIV, 2016 WL 7497339 (S.D. 

Fla. Sept. 20, 2016))].

To be sure, as this Court has noted,

an expert witness is not a private investigator hired to investigate the 

accuracy of each report or document he uses in creating his report. Instead, 

the documents or data an expert witness utilizes must only be “of a type 

reasonably relied upon by experts in the particular field in forming 

opinions or inferences upon the subject.”

Platypus Wear, Inc. v. Clarke Modet & Co., No. 06-20976-CIV, 2008 WL 4533914, at *5 (S.D. 

Fla. Oct. 7, 2008) (citing Fed. R. Evid. 703) (emphasis added). On the other hand, “[a]n 

expert cannot parrot the opinions and conclusions of other experts whose testimony is 

not subject to cross-examination.” Robison v. Cont’l Cas. Co., No. 1:17-CV-508, 2022 WL 

336900, at *9 (E.D. Tex. Jan. 6, 2022) (citation omitted).

In Companhia Energetica Potiguar, the Undersigned rejected the argument that “a 

damages expert witness, such as an accountant, must himself personally and 

independently verify the accuracy of information provided by the party who retained 

that expert” and noted that “expert accountants routinely rely on financial information 

provided by their clients when reaching opinions about financial loss (or other 

accounting-related issues).” 2016 WL 11547499 at *2 (emphasis added).

But this “routine reliance” component is missing from Dr. Matolo’s report. In 

United States v. Athens Orthopedic Clinic, P.A., for example, the court found that the 

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opinion of an economist, Dr. Bruce Seaman, met the reliability prong of Daubert because

he ensured it was of the type used by other economists for the same purpose:

Dr. Seaman’s job here was to determine how to use the available data to 

project the claims for the years where only Medicare Part B data was 

available and data for the rest of Government-payor claims was missing. 

He considered claims data that had been captured by [another expert,] Dr. 

Matthew Mercurio. Based on the correspondence Dr. Seaman reviewed, 

he was comfortable that Dr. Mercurio’s data was processed in a way such 

that it was the type of data economists typically rely on in performing the 

type of analysis Dr. Seaman did here. Dr. Seaman derived a simple 

average of the ratios across all years, then determined the variance, 

standard deviation, and coefficient of variation. Based on the results, Dr. 

Seaman determined that the use of mean data was justified to project the 

missing claims data, and he applied an adjustment factor to the relevant 

data to project the claims amounts for the missing data years.

No. 3:15-CV-122 (CDL), 2022 WL 4554424, at *3 (M.D. Ga. Sept. 29, 2022) (emphasis 

added). Thus, while Dr. Seaman obtained data gathered by another expert, he also took 

the important step of ensuring that “he was comfortable that Dr. Mercurio’s data was 

processed in a way such that it was the type of data economists typically rely on in 

performing the [same] type of analysis[.]” Id.

This critical step was not taken here. Dr. Matolo did not review the ADT formula 

or any of the dealer agreements to ensure that, from an economics perspective, it was the 

type of data routinely relied on by other experts in performing this type of formulation. 

He simply took the piece of paper provided to him by an ADT employee and plopped it 

into his report.

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This blind and unquestioning adoption of ADT’s revenue sharing model is 

incompatible with the requirements of Daubert. See Hunt v. McNeil Consumer Healthcare, 

297 F.R.D. 268, 275 (E.D. La. 2014) (“The crucial issue is whether Dr. Sanford 

independently evaluated or verified the opinions upon which he relies. Dr. Sanford 

conceded in his deposition that he did not read most of the material cited in the opinions 

nor verify the data referenced therein. Thus, it is clear that Dr. Sanford did not undertake 

the kind of independent evaluation that Daubert and Rule 702 require. He merely 

parroted the opinions and conclusions of other experts whose testimony is shielded from 

cross examination. The Court cannot allow Dr. Sanford’s testimony into evidence without 

abdicating its role as gatekeeper.”).

Noticeably absent from Plaintiffs’ defense of the ADT Model is any application of

the traditional gauges of reliability: “testing, peer review, publication, error rates, the 

existence and maintenance of standards controlling the technique’s operation, and 

general acceptance in the relevant [ ] community.” United States v. Langan, 263 F.3d 613, 

621 (6th Cir. 2001).

The Undersigned notes that the ADT Model is unique to ADT. It was developed 

by and for ADT. No other company (in the alarm industry or otherwise) uses it.

Plaintiffs have not introduced any evidence that other companies use similar models. In 

fact, ADT closely guards the ADT dealer revenue sharing model. It was redacted from 

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Dr. Matolo’s publicly available report and is akin to (or is) proprietary information. 

Therefore, it cannot be widely used or generally accepted (or evaluated by other, similar 

experts).

Thus, instead of the traditional measures of reliability, ADT relies heavily on the 

fact that a few other courts have allowed Dr. Matolo (and Dr. Mangum) to provide expert 

testimony on the ADT Model.

The Undersigned acknowledges that other courts have ruled in favor of 

admissibility:

In the 2017 Lawsuit, for instance, Judge Middlebrooks addressed Vivint’s Daubert

challenge to ADT’s then expert, Dr. Mangum. Like Dr. Matolo, Dr. Mangum “conclude[d] 

that ADT’s damages can be modeled in the form of a royalty [payment] and that the 

appropriate royalty amount [was] 22 percent of revenues earned from home monitoring, 

security and automation products/services for accounts generated during the timeframe 

contemplated in the Complaint (i.e., 2013-2016).” [ECF No. 170 in Case No. 9:17-cv-80432-

DMM/DLB, p. 3 (citation and internal quotation marks omitted)].

Judge Middlebrooks ruled that “[w]hether or not the ADT dealer model is a proper 

reference point is a question for the jury and does not affect the evidence’s admissibility.” 

Id. at 4. He also ruled that “[w]hether [Dr.] Mangum should have considered [a 1.65%] 

royalty rate” set forth in the Trademark Licensing Agreement between ADT US 

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Holdings, Inc., and ADT, LLC “[was] an issue more appropriately explored on cross 

examination and [did] not affect the admissibility of his testimony and report.” Id. at 4. 

Nonetheless, Judge Middlebrooks also agreed with Vivint that a portion of Dr. 

Mangum’s opinion -- the percentage of Vivint’s revenue to which the 22 percent royalty 

rate would be applied -- should be excluded because he sought to apply this rate “to all

of Vivint’s revenues earned from home monitoring, security and automation 

products/services for accounts generated during the [relevant] timeframe” and “ADT 

ha[d] failed to identify evidence suggesting that this sweeping damages calculation 

reflect[ed] damages actually attributable to Vivint’s alleged misconduct.” Id. at 6 

(emphasis added; internal quotation marks omitted).

In sum, Judge Middlebrooks ruled that ADT’s expert “[could] testify as to an 

appropriate royalty rate applicable to ADT’s claim for a forced royalty but [could] not 

testify that the royalty rate should be applied to Vivint’s revenues that [were] not actually 

attributable to Vivint’s alleged misconduct.” Id. (emphasis added).

More recently, in a case brought by ADT against a competitor for allegedly 

deceptive door-to-door sales practices, Judge Aileen M. Cannon addressed the 

defendants’ Daubert challenge to ADT’s expert, Dr. Matolo. ADT LLC v. Safe Home Sec. 

Inc., No. 20-23918-CIV, 2022 WL 3702839 (S.D. Fla. June 21, 2022). One of the grounds 

raised by the defendants in that case was that “Dr. Matolo’s ‘forced royalty’ theory of 

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damages” was unreliable because “[his] methodology was not generally accepted[,] and 

that his analysis . . . ignored over a dozen factors that needed to be considered in order 

to render a sound opinion[.]” Id. at *2 (citation and internal quotation marks omitted). 

Judge Cannon found no “basis to exclude Dr. Matolo’s expert opinion under 

Daubert or Rule 702” and noted that “as to the substance of Dr. Matolo’s ‘forced royalty’

theory of damages[,] [the] [d]efendants’ challenges to such theory go to the weight of Dr. 

Matolo’s opinions and can be probed more properly via the conventional means of crossexamination and contrary evidence.” Id.

But Plaintiffs must first convince this Court, in its gatekeeper role, that Dr. Matolo’s 

opinions concerning the ADT Model are reliable. They have not done so. The 

Undersigned finds that Plaintiffs have not carried their burden of showing that Dr. 

Matolo’s opinion based on the ADT Model is reliable under Federal Rule of Evidence 702 

and Daubert. For all practical purposes, Dr. Matolo merely adopted the ADT Model even 

though it has none of the traditional indicia of reliability, including being tested, being 

capable of testing, having an error rate, being peer reviewed, being published, or being 

generally accepted in the relevant expert community.

Dr. Matolo’s blind, wholesale adoption and use of the ADT Model is akin to ADT

handing him a piece of paper and saying “here is the royalty rate you will reach if you 

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review all of our contracts with our dealers.” This is patently insufficient for expert 

opinion under Rule 702.

As noted above, ADT alleges the ADT Model is an “established market measure,” 

rather than an opinion or theory. In doing so, ADT conflates the admissibility of the 

purported “fact” of the ADT Model with the admissibility of expert opinion. ADT states: 

“[the ADT Model] is not some contrived ‘expert’ opinion that Dr. Matolo relies upon in 

rendering his opinions; it is an established economic model that ADT actually uses in the 

real world to run its authorized dealer business.” [ECF No. 127, p. 9]. But Vivint does not 

argue that the ADT Model is based on “hypotheticals” or “conjecture,” nor does it deny

that ADT actually uses the model to “run its dealer business.” Id. at 9-10.

Instead, Vivint simply emphasizes that use in ADT’s business is not the proper 

standard for admissibility of expert opinion. Indeed, as mentioned above, this one-page 

document reviewed by Dr. Matolo may well meet the standard for a business record 

under Fed. R. Evid. 803(6). Nevertheless, that is not the standard for the admissibility of 

expert testimony under Fed. R. Evid 702. There is a vast difference between ADT using

the ADT Model in its business and Dr. Matolo relying on it as the primary basis for his 

expert conclusions. ADT may use the model in its own business decisions, of course, but 

expert opinion requires more, especially when the model clears none of the admissibility 

hurdles erected by courts to gauge reliability.

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b. Industry Model

Defendants also seek to exclude Dr. Matolo’s opinions concerning the 

representative dealer revenue sharing model on the ground that it is a “novel 

methodology [that] has not been applied by other experts aside from [Dr.] Matolo and 

his colleague, [Dr.] Mangum” and “has not been tested, not subject to peer review, and 

not generally accepted in the scientific community.” [ECF No. 119, p. 10].

ADT does not meet Defendants’ challenges to the Industry Model head on. Rather 

than defend the Industry Model, ADT argues that “Dr. Matolo cites the Industry [M]odel 

only as verification that the ADT-specific model ‘checks out’ when you compare it to 

other similar economic relationships between other providers and dealers in the 

industry.” [ECF No. 127, p. at 17].

ADT’s failure to address this argument in its response concedes the point. See Jones 

v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (“‘[A] party’s failure to respond 

to any portion or claim in a motion indicates such portion, claim or defense is 

unopposed.’” (quoting Kramer v. Gwinnett Cnty., Ga., 306 F. Supp. 2d 1219, 1221 (N.D.

Ga.2 004) (alteration in original)); Ryder Truck Rental, Inc. v. Logistics Res. Sols., Inc., No. 

21-21573-CIV, 2022 WL 1238665, at *9, n.4 (S.D. Fla. Apr. 14, 2022) (“[B]y failing to 

respond to [the movant]’s arguments on [an] issue, [the non-movant] ha[d] essentially 

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conceded that it ha[d] failed to carry its burden of establishing that [its expert]’s opinion 

ha[d] any relevance to . . . [a specific] claim.”).

Here, Defendants raised specific arguments, supported by case law for why the 

Industry Model should be excluded under Daubert’s reliability prong. Plaintiffs sidestepped these arguments in a section titled: “Dr. Matolo’s opinion does not depend on 

the [ ] Industry Model; it uses it only as a ‘check’ on the ADT-specific model used to 

calculate the royalty applicable to Vivint.” [ECF No. 127, p. 14].

The burden of establishing the reliability of an expert’s opinions rests on the 

proponent of that expert’s testimony. Frazier, 387 F.3d at 1260; see also Allison, 184 F.3d at 

1306 (The party proffering the expert also has the burden of “laying the proper 

foundation for the admission of the expert testimony . . . and admissibility must be shown 

by a preponderance of the evidence.”). Because ADT fails to defend the Industry Model 

on substantive Daubert grounds, the Undersigned will exclude Dr. Matolo’s opinion to 

the extent it relies on or in any way uses the Industry Model.

c. Royalty Base

To calculate the royalty base ($25.4 million), Dr. Matolo applied the 22 percent 

royalty rate from the ADT Model to a certain percentage of Vivint’s revenues for the years 

2018, 2019, and 2020. [ECF No. 119-16, ¶¶ 52-54]. Vivint argues that Dr. Matolo’s 

methodology is not related to the scope of the alleged infringement here because “[his] 

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calculations do not differentiate or quantify the Vivint subscribers that originated from 

ADT, switched to ADT, or were subject to alleged misconduct.” [ECF No. 116, p. 14].

While the parties agree that the precise number of ADT customers who were 

affected by Vivint’s alleged misconduct is unknown, they squabble over who is at fault 

for this missing piece of the puzzle and whether ADT’s market share is an appropriate 

substitute. See [ECF Nos. 127, p. 19 (“[A]pparently lost on Vivint is the fact that [the total 

number of new subscribers subjected to Vivint’s alleged misconduct] is simply not 

available or it is exclusively in the possession of Vivint, and it has refused to produce it.”); 

id. at 20 (“Vivint now seeks to benefit from its refusal to monitor and record the 

misconduct of its sales.”); 133, p. 11 (“ADT attempts to reframe [Dr.] Matolo’s lack of 

knowledge regarding the number of new subscribers that were actually subject to 

misconduct as Vivint’s own doing based on previously resolved discovery disputes. . . . 

Alleged ‘discovery concerns’ simply do not excuse an expert from applying a reliable 

methodology that comports with the law.”)].

In any event, because Dr. Matolo will not be opining on a royalty rate (either under 

the ADT Model or the Industry Model), it is not necessary for the Court to determine 

whether Dr. Matolo’s $25.4 million royalty base opinion is sufficiently tied to Vivint’s 

alleged misconduct in this case.

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IV. Conclusion

For the reasons discussed above, the Court will exclude customer complaints (and 

summaries of complaints) as inadmissible hearsay. This ruling does not foreclose the

possibility that customer complaints may be admissible for the non-hearsay purpose of 

showing notice. The Court is also reserving ruling on the number of complaints received 

by Vivint because there may be a possibility that a redacted spreadsheet (redacting the 

customer comments section) could be admissible.

External proceedings (including lawsuits and investigations) are inadmissible 

hearsay and will be excluded from trial for truth purposes. Nonetheless, to the extent that 

any evidence exists of specific Vivint officers, executives, or managers speaking about (or 

writing about) allegations of deceptive misconduct by their sales representatives, ADT 

may cross-examine those witnesses on that evidence, if appropriate. The Court will defer 

ruling until trial on the issue of whether Vivint’s statements in other Vivint-filed lawsuits

are party admissions. Either party may revisit at trial the deferred rulings outlined above.

The Court will not exclude Dr. Winer based on Defendants’ Daubert challenges. 

Defendant’s challenges to Dr. Winer’s opinions can be probed through rigorous crossexamination and through the presentation of contrary evidence. Nonetheless, the Court 

warns ADT that to the extent Dr. Winer relies on hearsay evidence (e.g., customer 

complaints and external proceedings), ADT may not use him to “parrot” already 

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excluded or inadmissible evidence. See United States v. Scrima, 819 F.2d 996, 1002 (11th 

Cir. 1987) (“Rule 703 . . . is not an open door to all inadmissible evidence disguised as 

expert opinion.”).

The Court will exclude Dr. Matolo as an expert at trial. ADT has failed to meet its 

burden of showing that Dr. Matolo’s opinions meet Daubert’s reliability prong.

DONE AND ORDERED in Chambers, in Miami, Florida, on May 19, 2023.

Copies furnished to:

All counsel of record

Case 1:20-cv-23391-JG Document 153 Entered on FLSD Docket 05/19/2023 Page 59 of 59