The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-80780-MATTHEWMAN
WEST PALM BEACH ACQUISITIONS, INC.,
d/b/a Greenway Kia West Palm Beach, and
FLORIDA DEPARTMENT OF HIGHWAY
SAFETY & MOTOR VEHICLES,
Plaintiffs,
vs.
KIA MOTORS AMERICA, INC.,
Defendant.
______________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION TO PRECLUDE THE EXPERT REPORT AND TESTIMONY OF
SHARIF FARHAT [DE 98]
THIS CAUSE is before the Court upon Plaintiff, West Palm Beach Acquisitions, Inc., d/b/a
Greenway Kia West Palm Beach’s (“Plaintiff”) Motion to Preclude the Expert Report and
Testimony of Sharif Farhat (“Motion”) [DEs 90, 981]. Defendant, Kia Motors America, Inc.
(“Defendant”), has filed a response to the Motion [DE 110], and Plaintiff has replied [DE 121].
The Court held a hearing on the Motion via Zoom video teleconference on April 18, 2022. The
matter is now ripe for review. The Court has carefully considered the parties’ written submissions,
the parties’ oral argument at the hearing, the record, and applicable law.
I. BACKGROUND
The dispute in this case concerns Defendant’s attempt to terminate its franchise agreement
1 The public, redacted version of the motion is at DE 90, and the sealed version is at DE 98.
1
with Plaintiff, a Kia dealership in West Palm Beach. Plaintiff has brought causes of action against
Defendant under the Florida Dealer Act, which requires that any termination be supported by
“good cause” and cannot be based upon performance metrics that are “unfair, unreasonable,
arbitrary, or inequitable.” See §§ 320.641(3), 320.64(42), Florida Statutes. One important issue in
this case is whether Defendant’s performance metric, Dealer Sales Efficiency (“DSE”), is
appropriate pursuant to the Florida Dealer Act.
II. MOTION, RESPONSE, AND REPLY
Sharif Farhat (“Farhat”), the Vice President of Expert Analytical Services at Urban Science
Applications, Inc., is Defendant’s retained expert to explain the application of Defendant’s DSE
metric. Plaintiff does not dispute Farhat’s qualifications, but rather disputes the reliability and
helpfulness of Farhat’s analysis and testimony. [DE 98 at 11]. Plaintiff generally argues that
Farhat’s entire analysis is based on DSE, which is an inherently faulty and unlawful performance
standard under Section 320.64(42). Id. at 8–10. Plaintiff also contends that several jurisdictions
have already found that DSE and similar metrics are unreliable and such metrics are not
appropriate bases to terminate dealers. Id. at 10–15. According to Plaintiff, Farhat’s analysis does
not comport with Rules 702 and 703 because his opinions on DSE are ipse dixit and unsupported,
he assumes DSE is accurate to prove DSE is accurate, and his opinions on Plaintiff’s performance
being inside of its control are too late and contradicted by the record. Id. at 15–20.
In response, Defendant explains that Farhat has never been excluded as an expert witness
in any case and has been permitted to testify when he has used methodology similar to or identical
to that used in this case. [DE 110 at 2]. Defendant argues that Plaintiff’s challenge to DSE is not a
Daubert challenge and also distinguishes the cases from other jurisdictions cited by Plaintiff. Id.
2
at 7–11. Next, Defendant asserts that Farhat’s methodology satisfies Rules 702 and 703 because it
is actually supported by data and analysis (not ipse dixit) and will assist the trier of fact. Id. at 11–
17. Defendant further asserts that Farhat’s opinions on factors within Plaintiff’s control are
admissible. Id. at 17–20.
In reply, Plaintiff argues that Defendant has not made any argument about Farhat’s
unsupported decision to exclude Miami-Dade from his calculations. [DE 121 at 3]. Plaintiff further
asserts that Farhat offers no support for many of his other opinions and that Defendant did not
perform the “deeper dive” Farhat suggests should have been done prior to issuing the notice of
termination. Id. at 3–9.
III. RELEVANT LAW
Federal Rule of Evidence 702 governs the admissibility of expert testimony. A party that
proffers the testimony of an expert under Rule 702 bears the burden of laying the proper foundation
and demonstrating admissibility by a preponderance of the evidence. See Rink v. Cheminova, Inc.,
400 F.3d 1286, 1291–92 (11th Cir. 2005); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306
(11th Cir. 1999). The Eleventh Circuit “has previously held that expert testimony may be admitted
if three requirements are met. First, the expert must be qualified to testify competently regarding
the matter he or she intends to address. Second, the methodology used must be sufficiently reliable
as determined by a Daubert inquiry. Third, the testimony must assist the trier of fact through the
application of expertise to understand the evidence or determine a fact in issue.” Kilpatrick v. Breg,
Inc., 613 F.3d 1329, 1335 (11th Cir. 2010); see also Horrillo v. Cook Inc., No. 08-60931-CIV,
2014 WL 2708498, at *2 (S.D. Fla. June 6, 2014); Southpoint Condo. Ass'n v. Lexington Ins. Co.,
No. 19-CV-61365, 2020 WL 3581611, at *2–3 (S.D. Fla. July 1, 2020) (setting forth a clear and
3
detailed summary of the law under Daubert and Federal Rule of Evidence 702).
The judge plays a “gatekeeping” role in determining admissibility. See Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579, 589 n.7, 597 (1993). However, this gatekeeping role “is not
intended to supplant the adversary system or the role of the jury.” Southpoint Condo. Ass'n, No.
19-cv-61365, 2020 WL 3581611, at *3 (quoting Quiet Tech. DC-8, Inc. v. Hurel-Dubois, UK Ltd.,
326 F.3d 1333, 1341 (11th Cir. 2003) (citations omitted)). A district court enjoys “considerable
leeway” in making determinations regarding the admissibility of expert testimony and the
reliability of an expert opinion. United States v. Frazier, 387 F.3d 1244, 1258–59 (11th Cir. 2004)
(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)).
In a bench trial, “[t]here is less need for the gatekeeper to keep the gate when the gatekeeper
is keeping the gate only for h[er]self.” United States v. Brown, 415 F.3d 1257, 1269 (11th Cir.
2005); see also Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000); Ass Armor, LLC v. Under
Armour, Inc., No. 15-cv-20853-CIV, 2016 WL 7156092, at *4 (S.D. Fla. Dec. 8, 2016). That is
because the Court as a fact finder is “presumably competent to disregard what he thinks he should
not have heard, or to discount it for practical and sensible reasons.” Ass Armor, 2016 WL 7156092,
at *4 (internal quotation marks and citations omitted). At trial, the Court as fact finder is free to
later decide to disregard testimony in whole or in part and/or to decide how much weight to give
the testimony. See Brown, 415 F.3d at 1270.
Thus, “[w]here a trial judge conducts a bench trial, the judge need not conduct a Daubert
(or Rule 702) analysis before presentation of the evidence, even though [s]he must determine
admissibility at some point.” Travelers Prop. Cas. Co. of Am. v. Barkley, No. 16-61768-CIV, 2017
WL 4867012, at *1 (S.D. Fla. June 2, 2017) (quoting Kansas City S. Ry. Co. v. Sny Island Levee
4
Drainage Dist., 831 F.3d 892, 900 (7th Cir. 2016)). “Notwithstanding, courts may still go through
the individual analyses of the experts or motions, and have granted these motions to strike prior to
the bench trial.” Broberg v. Carnival Corp., No. 17-cv-21537, 2018 WL 4778457, at *1 (S.D. Fla.
June 11, 2018) (citing Exim Brickell LLC v. Bariven, S.A., No. 09-CV-20915, 2011 WL 13131317,
at *4 (S.D. Fla. Mar. 11, 2011); Goldberg v. Paris Hilton Entm’t, Inc., No. 08-22261-CIV, 2009
WL 1393416, at *4 (S.D. Fla. May 18, 2009)), report and recommendation adopted, No. 17-
21537-CIV, 2018 WL 4776386 (S.D. Fla. July 3, 2018).
IV. ANALYSIS AND RULINGS
As an initial matter, as discussed at the April 18, 2022 hearing and agreed to by the parties,
the Court does not intend to admit into evidence Farhat’s expert report, although the Court will
allow any admissible exhibits to the report to come into evidence. Therefore, to the extent that
Plaintiff argues that portions of Farhat’s expert report should be excluded, this issue is resolved,
and Plaintiff’s Motion is therefore granted in part.
With regard to the Daubert analysis, there is no dispute as to Farhat’s qualifications. Given
the legal standard for cases proceeding as bench trials and the reduced need for gatekeeping, the
Court finds, at this juncture, that the methodology used by Farhat is sufficiently reliable as
determined after a Daubert inquiry. Moreover, his testimony will potentially assist the trier of fact
in this complex area of the law.
At the bench trial, the Court shall hear from Farhat, rule on any timely objections, and
determine what weight, if any, to give his testimony and opinions.
V. CONCLUSION
In light of the foregoing, it is hereby ORDERED AND ADJUDGED that Plaintiff’s
5
Motion to Preclude the Expert Report and Testimony of Sharif Farhat [DEs 90, 98] is GRANTED
IN PART AND DENIED IN PART, as stated above. Farhat’s written report shall not be admitted
as evidence at trial. However, Farhat shall be permitted to testify and state his opinions. Since this
case is proceeding by way of a bench trial, the Court’s rulings are made without prejudice, and the
Court will determine whether to credit or disregard Farhat’s testimony in whole or in part and/or
what weight, if any, to give his opinion testimony.
DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida,
this 25th day of April, 2022.
United States Magistrate Judge