1

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 M. LAURENTIUS MARAIS [DEs 99, 149]

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 M. Laurentius Marais (“Motion”) [DEs 91, 99, 1491 ]. Defendant, Kia Motors 

America, Inc. (“Defendant”), has filed a response to the Motion [DE 111], 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.

1 The public, redacted version of the motion is at DE 149, and the sealed version is at DE 99.

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 1 of 6
2

I. BACKGROUND

The dispute in this case concerns Defendant’s attempt to terminate its franchise agreement 

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 big 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

M. Laurentius Marais (“Marais”) is Defendant’s retained rebuttal expert to Plaintiff’s 

expert, Edward M. Stockton. Marais is also an expert in statistics. Plaintiff is only seeking to strike 

portions of Marais’ report and preclude him from testifying at trial “concerning his opinion on the 

underlying assumptions of KMA’s DSE performance metric,” which is “Opinion 1.” [DE 99 at 1]. 

In Opinion 1, Marais concludes that Stockton’s analytical framework and findings are incorrect. 

Id. Plaintiff argues that Opinion 1 is not based in any scientific methodology, independent testing, 

or generally accepted technical principles. Id. at 8 It also argues that the testimony is not helpful 

to the trier of fact. Id. at 2. Plaintiff does not dispute Marais’ qualifications. Id. at 7. Plaintiff argues 

that Marais criticizes Stockton for not citing to academic literature on dealer effectiveness, while

simultaneously admitting that no such literature actually exists. Id. at 11–12. Plaintiff additionally 

maintains that Marais’ discussions of agency theory are irrelevant. Id. at 12–14.

According to Plaintiff, the Stockton Assumptions are actually Farhat’s (Defendant’s 

expert) assumptions that Stockton simply repeats. [DE 99 at 4]. Thus, Plaintiff believes that 

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 2 of 6
3

Marais’s attack on Stockton is actually an attack on Farhat, and Marais has admitted he failed to 

review Farhat’s report. Id. at 4–6. Plaintiff states that, “[i]f Marais wants to testify on Greenway’s 

behalf, we will consider the last minute switch. But as it stands, Marais contradicts Farhat, 

misunderstands Stockton, and confuses the record—all without performing any thorough or 

repeatable analysis.” Id. at 6. 

In response, Defendant first argues that the Stockton Assumptions are very clearly not 

Farhat’s assumptions in light of the wording in Stockton’s own report. [DE 111 at 6]. Defendant 

next argues that Plaintiff has misrepresented what Marais actually said and did. Id. at 11. Defendant 

asserts that Marais, as a rebuttal expert, had no obligation to perform an independent analysis under 

the applicable case law. Id. at 11–13. It also contends that Plaintiff’s misrepresentation of Marais’ 

testimony regarding peer-reviewed literature is not a ground for exclusion. Id. at 13–14. Finally, 

Defendant asserts that the principal-agent model is relevant and that Marais discusses it as an 

alternative theory to those theories asserted by Stockton. Id. at 14–15.

In reply, Plaintiff more or less rephrases its arguments from the Motion. [DE 120]. 

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 

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 3 of 6
4

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 

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)).

When the case is proceeding to a bench trial, as is the case at hand, the standard is somewhat 

more nuanced. “There 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 

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 4 of 6
5

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 

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 Marais’ 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 Marais’ 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 Marais’ qualifications. Given 

the standard for cases proceeding as bench trials and the reduced need for gatekeeping, the Court 

finds, at this juncture, that the methodology used by Marais is sufficiently reliable as determined 

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 5 of 6
6

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 Marais, 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 

Motion to Preclude the Expert Report and Testimony of M. Laurentius Marais [DEs 91, 99, 149] 

is GRANTED IN PART AND DENIED IN PART, as stated above. Marais’ written report shall 

not be admitted as evidence at trial. However, Marais 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 Marais’ 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

Case 9:20-cv-80780-WM Document 151 Entered on FLSD Docket 04/25/2022 Page 6 of 6