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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.

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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.

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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 

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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 

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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 

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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.

WILLIAM MATTHEWMAN 

United States Magistrate Judge

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