Opinion

Dyer

Court
District Court, M.D. Florida
Filed
Jul 2, 2026
Cited by
0 cases
Authority
More cited than 41.4%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DIANA DYER,

Plaintiff,

v. Case No. 8:24-cv-2867-VMC-SPF

COLOPLAST CORP. and COLOPLAST

MANUFACTURING US, LLC,

Defendants.

/

ORDER

This matter is before the Court on consideration of

Defendant Coloplast Corp.’s (“Coloplast”) Rule 702 Motion to

Exclude Expert Opinions of Neeraj Kohli, M.D. (Doc. # 92),

filed on April 15, 2026. Plaintiff Diana Dyer responded on

May 6, 2026. (Doc. # 120). Coloplast replied on May 22, 2026.

(Doc. # 137). The Motion is granted in part and denied in

part.

I. Background

In December 2020, Ms. Dyer “was surgically implanted

with an Aris™ Trans-Obturator Sling System (hereinafter the

‘Aris’), a pelvic mesh product and medical device designed,

manufactured, and marketed by Defendants,” which “was

intended to treat pelvic organ prolapse and stress urinary

incontinence.” (Doc. # 1 at 1). Ms. Dyer alleges that neither

she “nor her healthcare providers were warned that the Aris

was defective and negligently designed and manufactured.”

(Id. at 1-2). Ms. Dyer claims that she “has suffered, and

continues to suffer, debilitating injuries” “[a]s a result of

being surgically implanted with Defendants’ unreasonably

dangerous defective pelvic mesh device.” (Id. at 2).

Ms. Dyer initiated this action to recover damages for

her claimed injuries. (Id.). In the complaint, Ms. Dyer

asserts three causes of action: (1) negligence, (2) strict

liability design defect, and (3) strict liability failure to

warn. (Id. at 33-47).

The case then proceeded through discovery. Ms. Dyer

retained as a general and specific causation expert Dr. Neeraj

Kohli, “an active surgeon, teacher, entrepreneur, inventor,

lecturer, and researcher.” (Doc. # 111-1 at 4). Dr. Kohli is

“a board certified Ob/Gyn and fellowship trained

urogynecologist practicing strictly in the field of

Urogynecology and Reconstructive Pelvic Surgery since 1997.”

(Id. at 1). Dr. Kohli has “extensive experience with pelvic

repair surgery of all types with and without biologic or

synthetic materials.” (Id. at 4). Dr. Kohli has used and is

familiar with the Aris device, “including its technique of

insertion, efficacy, and risks.” (Id.). As chief medical

officer of a medical device company, Dr. Kohli has “experience

and exposure in development of medical devices including FDA

approval and material safety standards.” (Id.). He was

involved in developing and reviewing the Instructions for Use

{“IFU”) for his company’s product, a “4 way catheter for

diagnostic cystoscopy.” (Id.).

Dr. Kohli has “reviewed numerous [IFUs] for a variety of

medical products including mesh products in order to

understand the proper way to use the devices and to gain

knowledge about the complications and adverse events

associated with the devices.” (Id.). Dr. Kohli has “extensive

clinical experience with IFUs and instructing patients about

the adverse events and risks contained in IFUs and those

related to surgery.” (Id.).

Dr. Kohli offers the following general causation

opinions: (1) the “inherent properties of polypropylene mesh

make it an unsuitable material for placement in the

transobturator space,” (2) the Aris is “defective in its

technique and [its] material design,” (3) the Aris “has an

unacceptably high rate of mesh exposure/erosion, dyspareunia,

and chronic pain complications,” (4) the Aris’s IFU “and

brochure warnings were inadequate to allow physicians to make

responsible treatment choices and allow patients to give

proper informed consent,” (5) Coloplast did not perform

adequate safety testing on the Aris and failed to warn about

known “complications related to transobturator mesh

placement,” (6) there “are safer alternatives that are

equally or more effective” than the Aris, and (7) the risks

of the Aris outweigh its benefits. (Id. at 12-13).

As to specific causation, Dr. Kohli opines that the

“vaginal/groin pain and persistent [overactive

bladder]/incontinence suffered by Ms. Dyer is the direct

result of the defects described throughout this report.” (Id.

at 32). Dr. Kohli arrived at this opinion after performing a

differential diagnosis. (Id. at 27-28). Dr. Kohli “first

ruled in the mesh as a primary cause because [Ms. Dyer’s]

pelvic pain symptoms began . . . immediately after mesh

implantation and are unique to mesh placement in the vagina

and particularly the Aris” transobturator sling. (Id. at 28-

29). Dr. Kohli then “ruled out a number of other conditions

as the causes of her current injury, including vaginal atrophy

and lumbar disc involvement.” (Id. at 29).

Now, Coloplast moves to exclude the opinions of Dr.

Kohli. (Doc. # 92). Ms. Dyer has responded (Doc. # 120), and

Coloplast has replied. (Doc. # 137). The Motion is ripe for

review.

II. Legal Standard

Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or

education may testify in the form of an opinion or

otherwise if: (a) the expert’s scientific,

technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to

determine a fact in issue; (b) the testimony is

based on sufficient facts or data; (c) the

testimony is the product of reliable principles and

methods; and (d) the expert has reliably applied

the principles and methods to the facts of the case.

Fed. R. Evid. 702.

Implementing Rule 702, Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579 (1993), requires district courts to ensure

that any scientific testimony or evidence admitted is both

relevant and reliable. See Id. at 589–90. District courts

must conduct this gatekeeping function “to ensure that

speculative, unreliable expert testimony does not reach the

jury under the mantle of reliability that accompanies the

appellation ‘expert testimony.’” Rink v. Cheminova, Inc., 400

F.3d 1286, 1291 (11th Cir. 2005).

The Eleventh Circuit “requires trial courts acting as

gatekeepers to engage in a ‘rigorous three-part inquiry.’”

Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th

Cir. 2010). The district court must assess whether:

(1) the expert is qualified to testify competently

regarding the matters he intends to address; (2)

the methodology by which the expert reaches his

conclusions is sufficiently reliable as determined

by the sort of inquiry mandated in Daubert; and (3)

the testimony assists the trier of fact, through

the application of scientific, technical, or

specialized expertise, to understand the evidence

or to determine a fact in issue.

Id. The proponent of the expert testimony must show, by a

preponderance of the evidence, that the testimony satisfies

each requirement. Id.

III. Analysis

Coloplast challenges the reliability of Dr. Kohli’s

specific causation opinions. (Doc. # 92 at 5-15). Coloplast

also argues that many of Dr. Kohli’s general causation

opinions are unreliable, unhelpful, or irrelevant. (Id. at

15-28). Coloplast further argues that Dr. Kohli is

unqualified to opine on the adequacy of the Aris’s safety

testing and IFU. (Id. at 27-29). Finally, Coloplast contends

that the Court should exclude Dr. Kohli’s opinions “stating

legal standards, conclusions, and terms of art, as well as

opinions about Coloplast’s knowledge, state of mind, or

conduct.” (Id. at 29). The Court addresses each contention in

turn.

A. Dr. Kohli’s Case-Specific Opinions

Coloplast argues that Dr. Kohli’s case-specific opinions

are not reliable because he based his differential diagnosis

on a cherry-picked selection of medical records and did not

adequately rule out alternative possible causes of Ms. Dyer’s

injuries. (Doc. # 92 at 5-15). The Court is not persuaded.

“Exactly how reliability is evaluated may vary from case

to case, but what remains constant is the requirement that

the trial judge evaluate the reliability of the testimony

before allowing its admission at trial.” United States v.

Frazier, 387 F.3d 1244, 1262 (11th Cir. 2004) (citing Fed. R.

Evid. 702 advisory committee’s note to 2000 amendment). There

are four recognized, yet non-exhaustive, factors a district

court may consider in evaluating reliability:

(1) whether the expert’s methodology has been

tested or is capable of being tested; (2) whether

the technique has been subjected to peer review and

publication; (3) the known and potential error rate

of the methodology; and (4) whether the technique

has been generally accepted in the proper

scientific community.

Seamon v. Remington Arms Co., 813 F.3d 983, 988 (11th Cir.

2016) (citations omitted). A district court can take other

relevant factors into account as well. Id. (citations

omitted).

Coloplast argues that Dr. Kohli’s specific causation

opinions are unreliable because he: (1) failed to adequately

consider medical records that did not support his opinion,

(2) only reviewed the medical records provided to him by Ms.

Dyer’s counsel, and (3) did not conduct a pelvic exam of Ms.

Dyer. (Doc. # 92 at 5-10). None of the alleged factual

discrepancies or mischaracterizations warrant excluding Dr.

Kohli’s opinions.

“As a general rule, the factual basis of an expert

opinion goes to the credibility of the testimony, not the

admissibility, and it is up to the opposing party to examine

the factual basis for the opinion in cross-examination.”

Coquina Invs. v. Rothstein, No. 10-60786-CIV, 2011 WL

4949191, at *8 (S.D. Fla. Oct. 18, 2011) (quoting Synergetics,

Inc. v. Hurst, 477 F.3d 949, 955–56 (8th Cir. 2007)).

Coloplast’s challenges go to the weight rather than the

admissibility of Dr. Kohli’s opinions. See X Soc. Media LLC

v. X Corp., No. 6:23-cv-1903-JA-NWH, 2025 WL 2578249, at *4

(M.D. Fla. Sept. 5, 2025) (“Plaintiff argues Professor Golder

‘cherry-picked’ evidence by declining to evaluate evidence of

actual confusion and by emphasizing factors favorable to

Defendant. But such criticisms ordinarily go to weight, not

admissibility, absent methodological unreliability.”

(internal citation omitted)); Demeritt v. Wal-Mart Stores E.,

LP, No. 6:20-cv-89-PGB-GJK, 2021 WL 2835363, at *3 (M.D. Fla.

May 17, 2021) (“Dr. Koenigsberg’s failure to . . . review

Plaintiff’s entire medical history, review every available

deposition, or conduct a physical examination of Plaintiff

does not warrant exclusion under the Daubert framework.”).

Coloplast also argues that Dr. Kohli’s differential

diagnosis is unreliable because he did not adequately rule

out alternative possible causes of Ms. Dyer’s injuries. (Doc.

# 92 at 11-15). The Court disagrees.

Differential diagnosis is “a medical process of

elimination whereby the possible causes of a condition are

considered and ruled out one-by-one, leaving only one cause

remaining.” Chapman v. Procter & Gamble Distrib., LLC, 766

F.3d 1296, 1308 (11th Cir. 2014) (internal quotation marks

omitted). “A reliable differential analysis need not rule out

all possible alternative causes, but it must at least consider

other factors that could have been the sole cause of the

plaintiff’s injury.” Id. at 1308-09 (internal quotation marks

omitted).

Dr. Kohli explained his differential diagnosis as

follows. First, he “ruled in the mesh as a primary cause

because [Ms. Dyer’s] pelvic pain symptoms began . . .

immediately after mesh implantation and are unique to mesh

placement in the vagina and particularly the Aris”

transobturator sling.” (Doc. # 111-1 at 28-29). Dr. Kohli

noted that Ms. Dyer “has no significant medical, surgical, or

social history or risk factors contributing to her present

mesh complication symptoms or current pelvic floor

complaints.” (Id. at 29). Dr. Kohli “ruled out a number of

other conditions as the causes of her current injury,

including vaginal atrophy and lumbar disc involvement.”

(Id.). Dr. Kohli stated that “the mere fact a woman has

vaginal atrophy does not mean she will suffer the injuries

that Ms. Dyer has endured – her presentation was specific to

mesh use and her pain symptoms began specifically after

placement of the transobturator Aris sling mesh.” (Id.). Dr.

Kohli noted that Ms. Dyer “denied any prior diagnosis of

sciatica, lumbar disc disease, or sacroiliac joint

disorders,” but acknowledged “that records from other

providers later suggested lumbar degenerative changes that

she was unaware of before surgery.” (Id. at 26). In ruling

out lumbar disc involvement, Dr. Kohli explained that “[m]any

women have mild variants of lumbar disc herniation,” which

“does not typically present with acute onset groin/pelvic

pain immediately after sling mesh placement.” (Id. at 30).

Moreover, Dr. Kohli noted that “therapies including steroid

injection to the lumbar area were ineffective in providing

any relief further reducing the chance of lumbar pathology

contributing to her symptoms.” (Id.). Dr. Kohli acknowledged

that Ms. Dyer also underwent an anterior/posterior

colporrhaphy, or vaginal wall repair, at the time the Aris

was implanted but stated that such procedure “does not

typically cause significant myofascial pain or

obturator/pudendal neuralgia.” (Id. at 16, 30). Dr. Kohli

opined that Ms. Dyer’s “subsequent treatments including two

separate mesh revision surgeries confirm the clinical

etiology of her presenting pain symptoms related to the ARIS

suburethral mesh.” (Id. at 29-30).

Coloplast argues that Dr. Kohli failed to adequately

rule out lumbar disc and sacroiliac joint issues, sciatica,

and surgical positioning as being sources of Ms. Dyer’s pelvic

pain. (Doc. # 92 at 12). However, Dr. Kohli explained that he

ruled out lumbar disc involvement as it typically would not

cause the symptoms experienced by Ms. Dyer immediately

following mesh implantation and as post-surgical therapies to

the lumbar area were not effective. (Doc. # 111-1 at 30).

With respect to sacroiliac joint issues and sciatica,

Coloplast does not challenge Dr. Kohli’s assertion that Ms.

Dyer denied suffering from such problems prior to the mesh

implantation. (Id. at 26). Further, Coloplast does not

allege, let alone establish, that these conditions or Ms.

Dyer’s position during the surgery could be the sole cause of

her claimed pelvic injuries. Accordingly, this is not a basis

for finding Dr. Kohli’s opinion unreliable. See Chapman, 766

F.3d at 1308–09 (“A reliable differential analysis need not

rule out all possible alternative causes, but it must at least

consider other factors that could have been the sole cause of

the plaintiff’s injury.” (internal quotation marks omitted)

(emphasis added)); Messina v. Ethicon, Inc., No. 6:20-cv-

1170-PGB-LHP, 2020 WL 13441462, at *5 (M.D. Fla. Dec. 21,

2020) (“[T]he Defendants[’] uncorroborated allegations are

inadequate to cast doubt on Dr. Hoyte’s differential

diagnosis.”).

Finally, Coloplast argues that Dr. Kohli’s opinion that

the Aris caused Ms. Dyer to suffer persistent overactive

bladder and incontinence is unreliable as Dr. Kohli failed

“to rule out that Ms. Dyer’s pre-existing overactive bladder

and prior incontinence are the cause of her current urinary

complaints.” (Doc.# 92 at 14). In response, Ms. Dyer states

that she “will not claim at trial that the Aris caused or

contributed to [her] incontinence or overactive bladder.”

(Doc. # 120 at 11). Therefore, this issue is moot.

The Court finds Dr. Kohli’s methodology regarding the

cause of Ms. Dyer’s pelvic pain sufficiently reliable. The

alleged flaws in Dr. Kohli’s methodology raised by Coloplast

should be addressed during cross-examination. See Maiz v.

Virani, 253 F.3d 641, 666 (11th Cir. 2001) (“Vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking [debatable] but admissible

evidence.” (citations and internal quotation marks omitted)).

Thus, the Motion is denied as to the exclusion of Dr. Kohli’s

specific causation opinions.

B. Dr. Kohli’s General Causation Opinions

1. Surgical Technique

Dr. Kohli opines that the Aris “was defective in its

technique and it[s] material design. This includes blind

insertion of a permanent device through the transobturator

space, through and in close proximity to vital anatomic

structures including muscles and nerves.” (Doc. # 92-1 at

12).

Coloplast argues that “Dr. Kohli’s criticisms about the

Aris’s transobturator approach amount to no more than

personal opinions on a particular surgical technique, which

does not speak to a ‘defect’ in the Aris that resulted in

injury,” and, therefore, are irrelevant. (Doc. # 92 at 15-

16). Coloplast also contends that “Dr. Kohli’s criticism that

Aris ‘requires blind placement’” is irrelevant because “he

admits that ‘all aspects of vaginal meshes have some level of

blind placement,’ including the retropubic approach he uses

and prefers.” (Id. at 16). The Court disagrees.

As another court in this Circuit recognized in a products

liability case involving the Aris, “[a] comparison of the

risks associated with implanting in the transobturator region

as opposed to the retropubic region is relevant to the defect

analysis because the location of the device within the body

and the method of insertion are inherent attributes of the

device’s design.” Arevalo v. Coloplast Corp., No. 3:19-cv-

3577-TKW-MJF, 2020 WL 3958505, at *3 (N.D. Fla. July 7, 2020),

aff’d sub nom. Arevalo v. Mentor Worldwide LLC, No. 21-11768,

2022 WL 16753646 (11th Cir. Nov. 8, 2022). Accordingly, Dr.

Kohli’s opinions regarding the transobturator approach are

not irrelevant.

Coloplast further argues that “Dr. Kohli’s blind

placement opinion is also divorced from any scientifically

reliable methodology.” (Doc. # 92 at 17). Specifically,

Coloplast notes that Dr. Kohli relies upon scientific studies

that “discuss the effects of mesh placed in the abdominal

wall” rather than the obturator space as well as other studies

“concerning hernia mesh placed in rabbits and dogs.” (Id.)

(emphasis in original). The Court is not persuaded.

“[I]n most cases, objections to the inadequacies of a

study are more appropriately considered an objection going to

the weight of the evidence rather than its admissibility.”

Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,

1345 (11th Cir. 2003). However, “[a] court may conclude that

there is simply too great an analytical gap between the data

and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522

U.S. 136, 146 (1997). Here, Coloplast has not demonstrated

that there is too great an analytical gap between the studies

Dr. Kohli cited and his opinion.

The Motion is denied as to this issue.

2. Defective Design

Dr. Kohli opines that “[t]he inherent properties of

polypropylene mesh make it an unsuitable material for

placement in the transobturator space. . . . This is

especially true of the Coloplast mesh given its increased

weight and stiffness.” (Doc. # 92-1 at 5).

Coloplast argues that the Court should exclude Dr.

Kohli’s opinion that the Aris is defectively designed because

“Dr. Kohli does not provide support for his opinions on

Aris’[s] design properties or that the Aris is unsuitable for

use in the transobturator space.” (Doc. # 92 at 18). However,

Dr. Kohli cites multiple scientific articles to support his

opinions regarding the properties of polypropylene mesh and

its unsuitability for use in the transobturator space. (Doc.

# 92-1 at 5-9). Accordingly, Coloplast has not demonstrated

that Dr. Kohli’s opinions are unreliable. See In re Boston

Sci. Corp. Pelvic Repair Sys. Prods. Liab. Litig., No. MDL

2326, 2018 WL 2425955, at *2 (S.D.W. Va. May 29, 2018)

(denying motion to exclude Dr. Kohli’s opinions on the

properties of polypropylene mesh as “Dr. Kohli cite[d] to

numerous medical articles in support of his opinions”).

Coloplast further argues that Dr. Kohli’s opinions are

unhelpful to the jury because Dr. Kohli “fails to provide a

measuring stick for assessing the propriety of Aris’s

specifications, and instead advances a ‘trust me, I’m a

doctor’ approach.” (Doc. # 92 at 20). The Court disagrees.

Expert testimony must assist the trier of fact. Fed. R.

Evid. 702. “By this requirement, expert testimony is

admissible if it concerns matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d

at 1262 (citation omitted). “[T]he court must ensure that the

proposed expert testimony is relevant to the task at hand, .

. . i.e., that it logically advances a material aspect of the

proposing party’s case.” Allison v. McGhan, 184 F.3d 1300,

1312 (11th Cir. 1999) (internal quotation marks omitted).

“Proffered expert testimony generally will not help the trier

of fact when it offers nothing more than what lawyers for the

parties can argue in closing arguments.” Frazier, 387 F.3d at

1262-63 (citation omitted).

To succeed on any of her claims, Ms. Dyer must prove

that the Aris “is defective or unreasonably dangerous.” Brown

v. DePuy Orthopaedics, Inc., 978 F. Supp. 2d 1266, 1272 (M.D.

Fla. 2013). Dr. Kohli explains the basis for his opinion that

the properties of polypropylene mesh make it unsuitable for

use in the transobturator space and cites to multiple

scientific studies. (Doc. # 92-1 at 5-9, 13). Dr. Kohli’s

opinion logically advances a material aspect of Ms. Dyer’s

case: whether the Aris is defective or unreasonably

dangerous. This information is “beyond the understanding of

the average lay person.” Frazier, 387 F.3d at 1262 (citation

omitted). Thus, Dr. Kohli’s opinions would be helpful to the

jury.

The Motion is denied as to this issue.

3. Unacceptably High Rate of Complications

Dr. Kohli opines that the Aris “has an unacceptably high

rate of mesh exposure/erosion, dyspareunia, and chronic pain

complications.” (Doc. # 92-1 at 16). Coloplast argues that

Dr. Kohli’s opinion is unreliable because “Dr. Kohli

identifies no methodology (much less a reliable one) for

determining what constitutes an acceptable versus

‘unacceptably high’ rate of complications.” (Doc. # 92 at

21). The Court agrees.

Dr. Kohli does not identify the alleged complication

rate of the Aris or explain the scientific basis for his

opinion that the Aris’s rate is “unacceptably high.”

Accordingly, Dr. Kohli’s opinion on this issue is unreliable

and is excluded. See Arevalo, 2020 WL 3958505, at *4

(excluding Dr. Kohli’s opinion that the Aris has an

unacceptably high rate of complications because Dr. Kohli did

not identify any “methodology for determining what

constitutes an acceptable versus ‘unacceptably high’ rate”

(internal quotation marks omitted)); In re Boston Sci. Corp.,

2018 WL 2425955, at *3 (“Dr. Kohli offers no scientific

support or methodology for opining on what constitutes an

‘unacceptably high’ complication rate. The unreliability of

Dr. Kohli’s opinion is highlighted by the fact that he does

not even opine on what the actual complication rates are.”).

The Motion is granted as to this issue.

4. Safer Alternatives

Dr. Kohli opines that “the Burch procedure, autologous

fascial slings, and appropriate retropubic slings are safer

than the Aris.” (Doc. # 92-1 at 30). The Court will first

consider Coloplast’s challenges to Dr. Kohli’s opinions

regarding safer alternative procedures and then will address

Coloplast’s arguments regarding Dr. Kohli’s opinions on safer

alternative products.

a. Safer Alternative Procedures

Coloplast argues that Dr. Kohli’s opinions regarding the

Burch procedure and autologous fascial slings are irrelevant

as they are not safer alternative product designs for a

transobturator sling but are “entirely different surgeries.”

(Doc. # 92 at 22) (emphasis in original). In response, Ms.

Dyer contends that “Dr. Kohli’s opinion that alternate

medical procedures, the use of [the] Burch procedure or

autologous or allograft slings, are safer than the Aris and

were feasible for Ms. Dyer are relevant to demonstrating that

the Aris’s inherent risks outweigh its benefits.” (Doc. # 120

at 19-20). The Court agrees with Ms. Dyer.

“In Florida, a plaintiff need not demonstrate the

existence of a reasonable alternative design for a strict

liability design defect claim.” Geery v. Ethicon, Inc., No.

6:20-cv-1975-RBD-LRH, 2021 WL 2580144, at *5 (M.D. Fla. Apr.

9, 2021); Aubin v. Union Carbide Corp., 177 So. 3d 489, 511

(Fla. 2015). “In proving strict liability, Florida courts use

both the consumer expectations test and the risk utility

test.” Geery, 2021 WL 2580144, at *5. “[U]nder the risk

utility test, a product is considered unreasonably dangerous

when the risk of danger in the design outweighs the benefits.”

Id. (internal quotation marks omitted).

Dr. Kohli’s opinions regarding safer alternative

procedures are relevant to the question of whether the risks

of the Aris outweigh the benefits. See Id. (“Dr. Rosenzweig’s

opinions are relevant to the risk utility test because it

will assist the jury in determining whether the risks of the

TVT-O and Prolift outweighed the benefits, given the safety

of alternative medical procedures.”); Messina v. Ethicon,

Inc., No. 6:20-cv-1170-PGB-LHP, 2020 WL 7419586, at *4 (M.D.

Fla. Dec. 17, 2020) (“Dr. Rosenzweig’s opinion that alternate

medical procedures were safe and effective — that is, they

are safer than the accused product and were feasible for Ms.

Messina — are relevant to demonstrating that the TVT Abbrevo’s

inherent risks outweigh its benefits.”); Ellerbee v. Ethicon,

Inc., No. 8:20-cv-1514-TPB-AEP, 2020 WL 4815818, at *3 (M.D.

Fla. Aug. 19, 2020) (declining to exclude expert’s opinions

on safer alternative procedures as they were relevant to the

pelvic mesh products liability action).

Alternatively, Coloplast argues that Dr. Kohli’s

opinions are unreliable. (Doc. # 92 at 24-25). Regarding the

Burch procedure, Coloplast notes that “Dr. Kohli admits that

the Burch procedure results in a higher risk of having voiding

dysfunction and needing a catheter” and that Dr. Kohli has

“all but given up using Burches.” (Id. at 24) (internal

quotation marks omitted). Coloplast asserts that “[a]s for

tissue-based slings — both autologous fascial and allograft

slings — Dr. Kohli admits many people feel like there are

advantages to synthetic mesh over autologous slings.” (Id.).

The Court is not persuaded.

“[C]ontrary evidence goes not to the admissibility of

the expert testimony; rather, it goes to the weight of that

testimony.” Souder v. Floyd Cnty., No. CIV.A. 4:03CV0085HLM,

2005 WL 6218033, at *6 (N.D. Ga. Mar. 22, 2005). Here,

Coloplast has not demonstrated that Dr. Kohli’s opinions are

unreliable – it has only pointed to countervailing facts to

undermine the credibility of Dr. Kohli’s opinions. This is an

issue to be addressed in cross-examination. See Quiet Tech.,

326 F.3d at 1345 (holding that the identification of “flaws

in generally reliable scientific evidence” that “impugn the

accuracy of” the evidence “is precisely the role of cross-

examination”); Maiz, 253 F.3d at 666 (“Vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking [debatable] but admissible

evidence.” (citations and internal quotation marks omitted)).

b. Safer Alternative Products

Coloplast further argues that “Dr. Kohli’s ‘safer

alternative’ opinions about polypropylene retropubic slings

and PVDF mid-urethral slings are unreliable.” (Doc. # 92 at

25). The Court disagrees.

Coloplast contends that “Dr. Kohli makes unsupported,

inferential leaps from the cited literature to find that

retropubic and mid-urethral PVDF slings are safer than the

Aris.” (Id. at 26). However, Coloplast’s challenge to “the

sufficiency of scientific literature on which” Dr. Kohli

relies “is a matter that more properly goes to the weight of

the evidence and can be probed during cross-examination.”

Swintelski v. Am. Med. Sys., Inc., No. 20-60410-CIV, 2021 WL

4527451, at *4 (S.D. Fla. Aug. 6, 2021); see Jackson v.

Johnson & Johnson, No. 1:11-CV-3903-TWT, 2022 WL 110422, at

*5 (N.D. Ga. Jan. 12, 2022) (“The Defendants’ arguments amount

to an attack on the sufficiency of the medical literature

undergirding his opinions, and the ‘identification of such

flaws in generally reliable scientific evidence is precisely

the role of cross-examination.’” (quoting Quiet Tech., 326

F.3d at 1345)).

Coloplast also argues that Dr. Kohli’s opinions

regarding PVDF mesh mid-urethral slings should be excluded

because such slings are not available in the United States.

(Doc. # 92 at 26-27). In support, Coloplast cites a case from

the District of Colorado, which held that an expert’s

testimony about two alternative devices was irrelevant

because neither was available in the United States. Wood v.

Am. Med. Sys. Inc., No. 120CV00441DDDKLM, 2021 WL 1178547, at

*10 (D. Colo. Mar. 26, 2021). As the Wood court noted, “[t]o

recover for a claim of negligent design in Colorado, a

plaintiff must show not only that the alternative is safer

but that it was practicable and available at the time the

allegedly dangerous product was sold.” Id. (internal

quotation marks omitted). However, as previously discussed,

under Florida law, “a plaintiff need not demonstrate the

existence of a reasonable alternative design for a strict

liability design defect claim.” Geery, 2021 WL 2580144, at

*5; Aubin, 177 So. 3d at 511. Accordingly, the fact that PVDF

mid-urethral slings were not available in the United States

at the time of Ms. Dyer’s surgery does not render Dr. Kohli’s

opinion irrelevant in this case.

Although a plaintiff is not required to offer evidence

of a reasonable alternative design, the Florida Supreme Court

has stated that “nothing precludes the plaintiff in proving

his or her case from showing that alternative safer designs

exist — or for that matter precludes the defendant from

showing that it could not have made the product any safer

through reasonable alternative designs.” Aubin, 177 So. 3d at

511. Here, Dr. Kohli stated that PVDF mid-urethral slings

were FDA cleared in 2007 and that “[t]here appears to be no

reason other than costs that PVDF midurethral slings are not

offered in the United States.” (Doc. # 111-1 at 11). The Court

finds Dr. Kohli’s opinions on PVDF mid-urethral slings

relevant to the issue of whether “alternative safer designs

exist.” Aubin, 177 So. 3d at 511; see Jackson, 2022 WL 110422,

at *6 (declining to exclude expert testimony regarding an

alternative PVDF mesh device that was not on the market at

the time of plaintiff’s surgery because “whether or not the

PVDF mesh was commercially available at the time . . . does

not bear on the feasibility of a safer an[d] equally

efficacious design” (internal quotation marks omitted)).

The Motion is denied as to this issue.

5. Inadequate Safety Testing

Dr. Kohli opines that Coloplast failed to perform

adequate safety testing on the Aris. (Doc. # 92-1 at 26).

Coloplast argues that Dr. Kohli is unqualified to opine on

the matter and, alternatively, that his opinion is

unreliable. (Doc. # 92 at 27-28). The Court agrees.

Dr. Kohli is a urogynecologist with decades of

experience as a pelvic surgeon. (Doc. # 92-1 at 1). But

“[e]xperience as a surgeon alone . . . does not translate

into experience with or knowledge about the appropriate

testing a medical device manufacturer should undertake when

preparing a product for the market.” Trevino v. Boston Sci.

Corp., No. 2:13-CV-01617, 2016 WL 2939521, at *13 (S.D.W. Va.

May 19, 2016). Although Dr. Kohli is also chief medical

officer of a medical device company, there is no indication

that he has experience in testing medical devices. (Doc. #

92-1 at 4). Accordingly, Dr. Kohli is not qualified to testify

as to the adequacy of Coloplast’s safety testing.

In any event, even if Dr. Kohli were qualified to opine

on the adequacy of the safety testing, Dr. Kohli has not

offered any support for his conclusory opinion that Coloplast

“rushed to market with Aris to avoid loss of market share

without adequate safety testing.” (Id. at 11). Dr. Kohli

references an internal Coloplast document stating that the

“promising results” from a study of the Aris “need long-term

investigation,” but he does not explain how this demonstrates

that Coloplast failed to adequately test the Aris prior to

its commercial release. (Id.). Accordingly, Dr. Kohli’s

opinion is unreliable. See Frazier, 387 F.3d at 1261 (“[I]t

remains a basic foundation for admissibility that ‘[p]roposed

[expert] testimony must be supported by appropriate

validation — i.e., ‘good grounds,’ based on what is known.’”

(quoting Daubert, 509 U.S. at 590)); Hudgens v. Bell

Helicopters/Textron, 328 F.3d 1329, 1344 (11th Cir. 2003)

(“[A]n expert’s failure to explain the basis for an important

inference mandates exclusion of his or her opinion.”).

The Motion is granted as to this issue.

6. Deficient IFU

Dr. Kohli opines that the Aris’s IFU “were inadequate to

allow physicians to make responsible treatment choices and

allow patients to give proper informed consent.” (Doc. # 92-

1 at 26). Coloplast argues that Dr. Kohli is not qualified to

render an opinion on the IFU and, in any event, that Dr. Kohli

has not provided any “basis for reaching the conclusion that

the purported inadequacy of Aris’s IFU renders the device

‘not reasonably safe’ or makes it ‘impossible’ for implanting

physicians to obtain informed consent.” (Doc. # 92 at 28).

The Court finds Dr. Kohli qualified to opine on the

adequacy of the Aris’s IFU as, in addition to his surgical

experience, Dr. Kohli “assist[s] in the drafting and editing

of IFUs” at a medical device company. (Doc. # 92-1 at 27).

See In re: Ethicon Inc., No. 2327, 2016 WL 4582220, at *3

(S.D.W. Va. Sept. 1, 2016), adopted sub nom. In re Ethicon

Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2327, 2017 WL

4769671 (S.D.W. Va. July 21, 2017) (“While an expert who is

an obstetrician and gynecologist may testify about the

specific risks of implanting mesh and whether those risks

appeared on the relevant IFU, the same expert must possess

additional expertise to offer expert testimony about what

information should or should not be included in an IFU.”);

Arevalo, 2020 WL 3958505, at *5 (finding Dr. Kohli qualified

to opine about the adequacy of the Aris’s IFU).

However, as the Arevalo court determined, “Dr. Kohli

does not provide an adequate basis for, or a reliable

methodology used, in reaching his conclusions that the

inadequacy of the instructions and warnings renders Aris ‘not

reasonably safe’ and made it ‘impossible’ to obtain informed

consent.” Arevalo, 2020 WL 3958505, at *5. Accordingly, Dr.

Kohli’s opinions in this regard are excluded.

The Motion is granted as to this issue.

7. Legal Conclusions, Summaries, and Opinions on

Coloplast’s Knowledge, Intent, or State of

Mind

Finally, Coloplast asks the Court to exclude Dr. Kohli’s

opinions to the extent they contain impermissible legal

conclusions, summaries, and speculation on Coloplast’s

corporate intent, knowledge, or state of mind. (Doc. # 92 at

29).

a. Legal Conclusions

“While it is well established that a qualified expert in

a civil case may offer his opinion on an ultimate issue in a

case, experts may not testify to the legal implications of

conduct or tell the jury what result to reach.” Commodores

Ent. Corp. v. McClary, 879 F.3d 1114, 1128 (11th Cir. 2018)

(internal citation and quotation marks omitted).

In response to the Motion, Ms. Dyer states that she “does

not intend to elicit opinions that draw a legal conclusion”

but argues that “Dr. Kohli should not be precluded from

testimony that uses terms that do not have a separate,

distinct, and specialized meaning in the law.” (Doc. # 120 at

24). The Court agrees with Ms. Dyer.

The Motion is granted on this issue. But Dr. Kohli “is

not precluded from offering testimony that uses terms that do

not have a separate, distinct, and specialized meaning in the

law.” Warren v. C. R. Bard, Inc., No. 8:19-cv-2657-TPB-JSS,

2020 WL 3567299, at *4 (M.D. Fla. July 1, 2020).

b. Summaries of Corporate Documents and

Speculation on Coloplast’s Knowledge,

Intent, or State of Mind

“Generally, experts may not render opinions as to a

party’s knowledge or state of mind.” Redding v. Coloplast

Corp., No. 6:19-cv-1857-CEM-DAB, 2020 WL 13882977, at *7

(M.D. Fla. Nov. 30, 2020) (internal quotation marks omitted).

But “an expert may testify as to a review of internal

corporate documents solely for the purpose of explaining the

basis for his or her opinions — assuming the opinions are

otherwise admissible.” Id. (internal quotation marks

omitted); Humleker v. Boston Sci. Corp., No. 6:19-cv-121-GAP-

EAK, 2020 WL 6870852, at *10 (M.D. Fla. Oct. 2, 2020).

“[S]imply parroting documents or other testimony does nothing

to assist the trier of fact.” Salinero v. Johnson & Johnson,

No. 1:18-cv-23643-UU, 2019 WL 7753453, at *18 (S.D. Fla. Sept.

5, 2019).

Ms. Dyer represents that she will not elicit opinions on

Coloplast’s state of mind. (Doc. # 120 at 25). However, Ms.

Dyer argues that this “does not mean that Dr. Kohli should be

prohibited from providing testimony on factual information

found in Defendant’s documents, to the extent that

information forms the basis of his opinions.” (Doc. # 120 at

25). The Court agrees with Ms. Dyer.

The Motion is granted on this issue. Dr. Kohli “will not

be permitted to testify as to the knowledge, state of mind,

or corporate intent of [Coloplast]” or summarize corporate

documents “but will be allowed to testify as to his review of

the corporate documents solely for the purpose of explaining

the basis of his opinions.” Redding, 2020 WL 13882977, at *7.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Coloplast Corp.’s Rule 702 Motion to Exclude

Expert Opinions of Neeraj Kohli, M.D. (Doc. # 92) is

GRANTED in part and DENIED in part.

(2) Dr. Kohli may not opine that: (1) the Aris has an

unacceptably high rate of complications, (2) the Aris

was not adequately tested, or (3) the Aris’s IFU render

the device not reasonably safe or make it impossible for

physicians to obtain informed consent.

(3) Dr. Kohli also may not offer legal conclusions,

summarize Coloplast documents, or speculate on

Coloplast’s intent, knowledge, or state of mind.

DONE and ORDERED in Chambers in Tampa, Florida, this 2nd

day of July, 2026.

VIR IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

31

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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