Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 1 of 10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:14-CV-80781 ROSENBERG/BRANNON
EDWARD LEWIS TOBINICK, M.D., et al,
Plaintiffs,
v.
STEVEN NOVELLA, M.D.,
Defendant.
/
ORDER GRANTING DEFENDANT DR. STEVEN NOVELLA M.D.’S
MOTION FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Defendant Dr. Steven Novella M.D.’s
Renewed Motion for Summary Judgment [DE 251]. The Court has reviewed the motion, the
response [DE 272], the reply [DE 277], and the attached exhibits. The Court has also reviewed
the record and is otherwise fully advised in the premises. For the reasons set forth below, the
Motion [DE 251] is GRANTED. The speech at issue is not actionable under the Lanham Act
because it is not commercial speech, and Plaintiffs’ unfair competition claims fail as well
because they rely on a similar theory of liability.
I.

BACKGROUND

Plaintiffs’ Amended Complaint, filed on August 1, 2014, brought five counts against four
defendants. See DE 55. Many claims and defendants have been disposed of earlier in this
litigation. The only remaining claims are: Count I for violation of the Lanham Act, 15 U.S.C. §

1

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 2 of 10

1125(a), and Count II for unfair competition. 1 The only remaining Defendant is Dr. Steven
Novella, M.D. 2
Counts I and II of the Amended Complaint are based on two articles written by
Defendant Novella and published online at sciencebasedmedicine.org. DE 55 at ¶¶ 24, 101. Both
articles address the practice of Plaintiff Edward Tobinick (“Plaintiff Tobinick”), a doctor who
provides medical treatment to patients with “unmet medical needs” via two institutes—“Edward
Lewis Tobinick M.D.,” a California medical corporation, and “INR PLLC,” a Florida
professional limited liability company—both doing business as the “Institute of Neurological
Recovery” (collectively “Plaintiffs”). DE 55 at ¶¶ 2–4, 12. Novella published the first article,
“Enbrel for Stroke and Alzheimer’s” (“the First Article”), on May 8, 2013 in response to a piece
published in the Los Angeles Times. DE 55-1 at 1. As Novella described it,
The [Times] story revolves around Dr. Edward Tobinick and his practice of
perispinal etanercept (Enbrel) for a long and apparently growing list of conditions.
Enbrel is an FDA-approved drug for the treatment of severe rheumatoid arthritis.
It works by inhibiting tumor necrosis factor (TNF), which is a group of cytokines
that are part of the immune system and cause cell death. Enbrel, therefore, can be
a powerful anti-inflammatory drug. Tobinick is using Enbrel for many off-label
indications, one of which is Alzheimer’s disease (the focus of the LA Times
story).
Id. The allegedly false statements in the First Article concern the viability of Plaintiff Tobinick’s
treatments, the scientific literature discussing those treatments, the size and locations of Plaintiff
Tobinick’s Institutes, and the categorization of Plaintiff Tobinick’s practice as “health fraud.”
See DE 55 ¶¶ 54–56, 60–61, 63–64, 69–70, 71–72. Novella published the second article, entitled
“Another Lawsuit To Suppress Legitimate Criticism – This Time SBM” (“the Second Article”),
1

The Court dismissed Count V on January 23, 2015. See DE 117. On June 4, 2015, the Court struck Counts II-IV,
as brought by California Plaintiff Edward Lewis Tobinick, M.D., under California’s Anti-SLAPP statute. See DE
193 at 16-17. The remaining Plaintiffs then voluntarily dismissed their claims under Counts II-IV. See DE 201-02.
2

The Court dismissed SGU Productions and Yale University for lack of personal jurisdiction, see DE 91-92, and
granted the Society for Science-Based Medicine, Inc.’s motion for summary judgment, see DE 157.

2

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 3 of 10

on July 23, 2014, after Plaintiffs filed the instant lawsuit. DE 55-5 at 1. In large part, the Second
Article simply restates the content of the first. DE 55-1 ¶¶ 102–03. The only statement in the
Second Article which Plaintiffs allege is false and misleading is Novella’s statement, as
characterized by Plaintiffs, that “there have been no double-blind placebo-controlled clinical
trials of the treatment provided by the Plaintiffs.” 3 Id.
II.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A dispute is genuine if “a reasonable trier of fact could return judgment for the
non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008). A fact is material if “it would affect the outcome of the suit under the governing
law.” Id.
In deciding a summary judgment motion, the Court views the facts in the light most
favorable to the non-moving party and draws all reasonable inferences in that party’s favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting
evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon
discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.
III.

DISCUSSION

A. The Lanham Act (Count I)
Defendant Novella argues that summary judgment should be granted in his favor on
Count I, the Lanham Act claim, because the statements in the First and Second Articles are not
commercial speech. See DE 251 at 4. The Lanham Act provides in relevant part:
3

In the second article, Novella actually states that “I [Novella] could not find a single double-blind placebocontrolled trial establishing the efficacy of [Tobinick’s] treatment for any of the conditions I listed above. (There are
small studies for disc herniation showing conflicting results.).” DE 55-5 at 3 (emphasis added).

3

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 4 of 10

(1) Any person who, on or in connection with any goods or services, or any
container for goods, uses in commerce any word, term, name, symbol, or device,
or any combination thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which-...
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another person's
goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is
likely to be damaged by such act.
15 U.S.C. § 1125(a)(1)(B) (emphasis added). The Eleventh Circuit has adopted “[t]he most
widely-accepted test for determining whether something is ‘commercial advertising or
promotion,’” Suntree, 693 F.3d at 1349, which was set forth in Gordon and Breach Science
Publishers S.A. v. American Institute of Physics, 859 F. Supp. 1521 (S.D.N.Y. 1994):
In order for representations to constitute “commercial advertising or promotion”
under [15 U.S.C. § 1125(a)(1)(B)], they must be: (1) commercial speech; (2) by a
defendant who is in commercial competition with plaintiff; (3) for the purpose of
influencing consumers to buy defendant’s goods or services. While the
representations need not be made in a “classic advertising campaign,” but may
consist instead of more informal types of “promotion,” the representations (4)
must be disseminated sufficiently to the relevant purchasing public to constitute
“advertising” or “promotion” within that industry.
Id. at 1535–36.
Regarding the second prong of this test, the Supreme Court recently ruled that a plaintiff
does not need to show defendant was in commercial competition with plaintiff to have standing
under the Lanham Act. See LexMark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct.
1377, 1394 (U.S. 2014) (“[W]hen a party claims reputational injury from disparagement,
competition is not required for proximate cause; and that is true even if the defendant’s aim was
to harm its immediate competitors, and the plaintiff merely suffered collateral damage.”); see
also Educ. Impact, Inc. v. Danielson, No. CIVA 14-937 FLW LHG, 2015 WL 381332, at *13–
14 (D.N.J. Jan. 28, 2015) (defendant’s “assertion that because [defendant] is not in ‘commercial
4

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 5 of 10

competition with plaintiff” there can be no violation of the Lanham Act is incorrect” under
Lexmark). Thus, to the extent the parties dispute whether Plaintiffs and Defendant Novella are
competitors, see DE 272 at 10 and DE 277 at 3, this issue is not dispositive of whether the
speech at issue constituted “commercial advertising or promotion” within the meaning of 15
U.S.C. § 1125(a)(1)(B).
Regarding the first prong of this test, speech regulated by the Lanham Act “must at least
fall within the meaning of ‘commercial speech’ pursuant to First Amendment jurisprudence.”
Suntree Techs., Inc. v. EcoSense Int’l, Inc., 802 F. Supp. 2d 1273, 1286 (M.D. Fla. 2011)
(collecting cases), aff’d, 693 F. 3d at 1338. This is because the Act “was not intended to apply,
and cannot constitutionally be applied, to representations other than those determined to be
commercial speech.” Gordon & Breach, 859 F. Supp. at 1533. Under the “‘commercial speech’
doctrine developed by the United States Supreme Court,” commercial speech “is entitled to a
lesser degree of protection than other forms of constitutionally guaranteed expression.” Id. at
1536.
“Speech that does no more than propose a commercial transaction falls within the core
notion of commercial speech, but other communications also may constitute commercial speech
notwithstanding the fact that they contain discussions of important public issues[.]” Jordan v.
Jewel Food Stores, Inc., 743 F.3d 509, 516 (7th Cir. 2014) (internal citations omitted). In Central
Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561
(1980), the Supreme Court described commercial speech as “expression related solely to the
economic interests of the speaker and its audience.” In Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983), which involved informational pamphlets addressing “important public issues
such as venereal disease and family planning,” the Supreme Court took an even more nuanced

5

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 6 of 10

approach. Id. at 68 (internal footnote omitted). In determining whether these pamphlets
constituted commercial speech, the Supreme Court found it relevant that the communications
were conceded to be advertisements, that they referred to specific products sold by the defendant,
and that the defendant had an economic motivation for the speech. Id. at 66 & n.13, 67. It was
“[t]he combination of all these characteristics” that led the Supreme Court in Bolger to conclude
that the informational pamphlets constituted commercial speech. Id. at 67. Thus, Bolger
“suggest[s] certain guideposts for classifying speech that contains both commercial and
noncommercial elements; relevant considerations include whether: (1) the speech is an
advertisement; (2) the speech refers to a specific product; and (3) the speaker has an economic
motivation for the speech.” Jordan, 743 F.3d at 517; see, e.g., Kleiner v. First Nat’l Bank of
Atlanta, 751 F.2d 1193, 1203 n.22 (11th Cir. 1985) (relying on Bolger and holding, “[t]aken
together, the defense of the Bank’s business conduct, the underlying profit motive, and the
invitation to opt out branded the telephone canvass as speech of commercial nature).
Considering the above-cited case law, the Court finds that the speech at issue here—that
is, the First and Second Articles, published on www.sciencebasedmedicine.org 4—is not
commercial speech. The Articles proposed no commercial transaction, and consequently do not
fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the
Articles do not fall within the scope of the definition expounded in Central Hudson, “expression
related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both
articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’
4

In their response to Defendant Novella’s summary judgment motion, Plaintiffs argue that other statements made by
Novella are “[l]ies and [m]isleading.” DE 272 at 7-9. To the extent Plaintiffs are attempting to argue that statements
other than those made in the First and Second Articles are violations of the Lanham Act, this is improper because
these statements were not pled in Plaintiffs’ complaint. See Dantzler, Inc. v. PNC Bank, Nat’l Ass’n, 946 F. Supp. 2d
1344, 1361-62 (S.D. Fla. 2013) (a party may not raise a new theory for the first time in response to a summary
judgment motion; the proper procedure for a plaintiff is to amend its complaint in accordance with Rule 15(a)). The
Court previously denied Plaintiffs’ motions to amend their complaint. See DE 202, 245.

6

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 7 of 10

treatments.
Thus, the First and Second Articles can only potentially qualify as commercial speech
under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways.
First, the Articles are not conceded to be advertisements. Second, the only products referenced in
the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions
Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an
independent plug for that practice.
The third and final factor from Bolger, whether there was an “economic motivation” for
the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. See DE 272.
Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions,
a for-profit company controlled by Defendant Novella, earns money by selling advertisements on
its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as tshirts. See DE 272 at 5; DE 272-1 at ¶ 3. The website on which the Articles were published
(sciencebasedmedicine.org) is registered to SGU, although Defendant Novella’s brother, Jay
Novella, testified the website is actually owned by the New England Skeptical Society
(“NESS”), a separate non-profit organization also controlled by the Novellas. DE 261-10 at 1820. Plaintiffs contend that SGU Productions, NESS, and the Articles are all part of an interrelated
scheme to “funnel” money to Defendant Novella personally, and that the Articles are commercial
speech in furtherance of this scheme. See DE 272 at 4-6, 13.
It is “settled or beyond serious dispute” that “[s]peech . . . is protected even though it is
carried in a form that is ‘sold’ for profit, . . . and even though it may involve a solicitation to
purchase or otherwise pay or contribute money.” Va. State Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 761 (1976) (emphasizing, that “[i]f there is a kind of

7

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 8 of 10

commercial speech that lacks all First Amendment protection, . . . it must be distinguished by its
content.”); see also Maverick Boat Co., Inc. v. Am. Marine Holdings, Inc., Case No. 02-14102CIV, 02-14283-CIV, 2004 WL 1093035 (S.D. Fla. Feb. 10, 2004) (“[T]he Court assumes [the
speaker], president and CEO of Maverick Boat Company, a private business enterprise, is also
interested in making a profit from his products. The Court finds that this existence of an
economic interest alone should not deprive the speech of constitutional protection.”). Thus, even
if Defendant Novella directly earns money from an organization sponsoring or producing the
speech, this alone would not make the speech commercial. Furthermore, the specific evidence
elicited in this case regarding SGU does not point to a strong economic motivation for the
speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay]
Novella testified to over $200,000 last year,” DE 272 at 5-6 (citing DE 260-10 at 127-28), Jay
Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we
reinvest the vast majority of the money back into the company when we have a positive cash
flow.” DE 261-10 at 154. Plaintiffs have failed to point the Court to any evidence that Defendant
Novella is actually paid a salary or otherwise earns any personal income from SGU. Moreover,
Jay Novella testified that the goal of SGU is “to educate people in science and critical thinking,”
DE 260-10 at 131-32, 154, which is consistent with the Court’s prior observation that the content
of the Articles is directed towards raising public awareness of scientific issues, rather than
promoting an economic interest. 5
The Court therefore finds that Defendant Novella’s speech in the First and Second
5

While the present motion for summary judgment was pending, the parties filed motions contesting the
admissibility of certain evidence cited by Plaintiffs in opposition to summary judgment: namely, audio recordings of
Jay Novella discussing SGU’s marketing practices at a conference [DE 283, 287]. To the extent the parties are
contesting the evidence’s admissibility in relation to summary judgment, the Court declines to rule on this issue
because it finds the evidence duplicative of admissible deposition testimony by Jay Novella regarding SGU’s
marketing practices, and otherwise irrelevant. To the extent the parties seek a ruling as to this evidence’s
admissibility at trial, this issue is moot due to the grant of summary judgment for Defendant Novella.

8

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 9 of 10

Articles does not qualify as commercial speech, such that the Articles can form the basis of a
Lanham Act claim. Accordingly, Defendant Novella is entitled to summary judgment on Count I.
B. Unfair Competition (Count II)
“Under Florida common law, unfair competition is an ‘umbrella for all statutory and
nonstatutory causes of action arising out of business conduct which is contrary to honest practice
in industrial or commercial matters.’” Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-CV775-T-24-TBM, 2012 WL 33155, at *4 (M.D. Fla. Jan. 6, 2012) (quoting Third Party
Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314, 1325 (M.D. Fla. 2007)). “[A]
party may claim unfair competition under a variety of theories, including trademark
infringement, . . . and tortious interference with business relations . . . . Therefore, there is no
single set of ‘elements that apply uniformly to all claims of unfair competition.’” Id. (quoting
Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 432 F. Supp. 2d 1319, 1353 (S.D. Fla. 2006)).
“Accordingly, courts have applied elements from other established claims to unfair competition
claims, where appropriate, on a case-by-case basis.” Id.
In their Amended Complaint, Plaintiffs allege that Defendant Novella “published [the
Articles], and the false and misleading statements contained therein, in furtherance of promoting
his own interests,” that this conduct was “willful and intentional,” and that the statements caused
“substantial injury to their goodwill and reputation.” DE 55 at ¶¶ 120, 124-25. Plaintiffs are
therefore “bas[ing] [their] common law unfair competition claim on a theory of false
advertising.” Ameritox, 2012 WL 33155 at *5. The Court has evaluated Plaintiffs’ common law
unfair competition claims through the lens of the Lanham Act, and based on the Court’s
conclusion that Defendant Novella is entitled to summary judgment on that claim, the Court
finds Defendant Novella is likewise entitled to summary judgment on Count II for unfair

9

 Case 9:14-cv-80781-RLR Document 288 Entered on FLSD Docket 10/02/2015 Page 10 of 10

competition. See id.; Natural Answers, Inc. v. SmithKline Beecham Corp., 529 F.3d 1325, 1332–
33 (11th Cir. 2008) (“Since Natural Answers is unable to bring an unfair competition claim
under the Lanham Act under the theory of either false advertising or trademark infringement, it
follows that the common law claims based on unfair competition and trademark infringement
must fail as well.”); see also Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193
n.4 (11th Cir. 2001) (“Courts may use an analysis of federal infringement claims as a ‘measuring
stick’ in evaluating the merits of state law claims of unfair competition.”).
IV.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant
Dr. Steven Novella, M.D.’s Motion for Summary Judgment [DE 251] is GRANTED. All
pending motions are DENIED AS MOOT, all deadlines are TERMINATED, and the Clerk of
the Court is directed to CLOSE THIS CASE.
DONE AND ORDERED in Chambers, Fort Pierce, Florida, this 30th day of September,
2015.
_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

10