leaves this court with less bases upon which to judge his
By contrast, we do find the fourth Daubert factor potentially
applicable to this situation. It would not have been impossible
for plaintiff to demonstrate the general acceptance of King's
methods. Would other conservators or appraisers find it
acceptable for a conclusion, any conclusion, regarding ozone
usage to have been drawn by King in this situation? For this
question the court has no answer. Plaintiff has presented no
evidence to show that King's processes would be considered by
those in his industry to yield reliable results. There are
allusions in King's report to articles on the treatment of art
with ozone, but none of these or any other articles or trade
literature is before the court. Moreover, plaintiffs attach to
their surreply an e-mail from a distraught person, frustrated by
her inability to remove the odor of ozone from her house. In its
form, this purely anecdotal evidence is hearsay, but it is
indicative of the type of evidence absent from plaintiffs'
attempt to qualify their expert. Plaintiffs are correct when they
contend that King's experience with ozone and art could overcome
his lack of formal education in the fields of general chemistry.
But, if they seek to rely on his experience, then they must show
that this type of conclusion is acceptable based on that
experience.*fn1 They have not done so.
Furthermore, there are a number of measures that could have
been taken by Mr. King to bolster the reliability of his
methodology and lift it from its mire of subjectivity. For
instance, he could have undertaken to objectively confirm his
conclusions by testing for ozone usage in some other way. Where
an expert's analysis seems unnecessarily incomplete or
inadequate, the Seventh Circuit has upheld its exclusion. See
Bourelle v. Crown Equipment Corp., 220 F.3d 532 (7th Cir. 2000);
Ancho v. Pentek Corp., 157 F.3d 512 (7th Cir. 1998). In
Bourelle, the plaintiff offered an expert to testify that an
alternative design for a forklift truck should have been
implemented and that the alternative design would have prevented
plaintiffs' injuries. 220 F.3d at 535. The trial court found the
opinions unreliable, and the Seventh Circuit affirmed, in part,
because the expert had failed to observe the forklift in question
or to perform any testing or analysis of his alternative design.
Id. at 538. Similarly, in this case, King failed to perform any
formal testing for the presence of ozone, something one of
defendant's witnesses claimed was quite feasible. (Def. Mot.,
Ex. E, at 4). King did testify that he used a "XRITE 528 Spectro
Densitometer" to measure color saturation of some of the art
works in question on April 13, and the remainder in June or July,
1999, presumably, to confirm the alleged fading. (King Dep., at
66-68). But he had no prior formal readings against which to
compare his new saturation readings; and apparently, he did not
even get a full set of readings. He testified that he stopped
measuring at some point because he could "see the difference. You
don't have to measure it." (Id., at 68).
In sum, King's methodology (I smelled it, I saw it — therefore
it is) is simply too subjective, unsupported, and speculative to
be considered reliable for purposed of Federal Rule of Evidence
702. Without the support for King's processes mentioned above,
this court is left with a witness whose method for arriving at
his proffered conclusion is called impossible by the defendant,
but so individual in its nature that plaintiffs seems unable or
unwilling to validate its reliability. Simply put, we see a
decided absence of any scientific validity to the conclusions
reached by Mr. King, and thus they may not come into evidence
under Fed.R.Evid. 702. Therefore, Mr. King may not opine in this
alleged ozone use by the defendant, color fading due to ozone
use, or the loss in value caused by such use. He may not draw
conclusions based on his observations to the extent those
conclusions extend beyond any topics with which he has first hand
B. Lay Witness Testimony — FRE 701
In the alternative, plaintiffs argues that King's testimony may
be admissible as the opinion testimony of a lay witness.
Defendant declined to address this possibility. To a limited
extent, we agree with the plaintiffs.
Federal Rule of Evidence 701 provides: If the witness
is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue.
Under this rule, any and all witnesses are allowed to testify
to relevant inferences, "but the inferences must be tethered to
perception, to what the witnesses saw or heard." U.S. v.
Santos, 201 F.3d 953, 963 (7th Cir. 2000). According to an
advisory comment to Rule 701, the requirement that the opinion be
based on the witness's perception is "the familiar requirement of
first-hand knowledge or observation." Fed.R.Evid. 701 advisory
committee's note. Therefore, this court will allow any opinion of
King that is relevant and based on his first-hand knowledge.
As explained above, this court finds all of King's opinions to
be relevant to the instant case since they directly pertain to
one of the central issues. Thus, this court proceeds to examine
each of his opinions to determine whether it is based on his
first-hand knowledge and observation. We conclude that two of
King's opinions should be allowed as lay opinions. First, based
on his personal experience with the art works in question, King
may testify as to perceiving the works as having faded. Second,
based on his past exposure to the distinctive smell of ozone,
King may testify that he smelled ozone while examining these
works. Furthermore, he may explain how he has become acquainted
with the smell of ozone. Still, as stated above, he may not
testify about any conclusions he has drawn about whether or not
the Frey art works had been exposed to ozone or whether ozone
caused any fading to them, or that CCC had anything to do with
either, because such testimony would exceed the boundaries of his
In numerous cases, courts in the Seventh Circuit have allowed
the admission of lay opinions pertaining to what could arguably
be called specialized*fn2 knowledge. See, e.g., U.S. v.
Estrada, 39 F.3d 772 (7th Cir. 1994) (per curiam); U.S. v.
Sweeney, 688 F.2d 1131 (7th Cir. 1982); Thermodyne Food Service
Products, Inc. v. McDonald's Corp., 940 F. Supp. 1300 (N.D.Ill.
1996). For instance, in Sweeney, the trial court allowed a
witness to introduce a lay opinion that the substances
manufactured by the defendant were PCP and methamphetamine. 688
F.2d at 1145. This opinion was based on the fact that the witness
had previously used these drugs and when he sampled the
substances in the defendant's possession, he experienced the same
physical effects. Id. The Seventh Circuit affirmed. Id. at
1146. Also, in
Thermodyne, the trial court allowed two employees of a company
to give their lay opinion that the technology of the company was
not widely known in the industry. 940 F. Supp. at 1306. Similarly,
King's personal knowledge coupled with his perception of color
and odor when examining the Frey's art entitles him to express
limited lay opinions.
To the extent CCC disputes King's ability to have perceived
either a change in the color of some of the works or the odor of
ozone, they raise questions of his credibility, not his
qualification as a lay witness, and matters of credibility are
left to the jury. As the Seventh Circuit has noted, "Rule 701
places great reliance on a party's ability to cross-examine an
opponent's witness and present any weaknesses in the witness's
testimony to the trier of fact." U.S. v. Allen, 10 F.3d 405,
414 (7th Cir. 1993).
For the foregoing reasons, defendant's MOTION IN LIMINE TO
EXCLUDE THE OPINION TESTIMONY OF PATRICK B. KING is GRANTED in
part, DENIED in part, as set forth in the body of this order.