The opinion of the court was delivered by: Bobrick, United States Magistrate Judge.
Before the court is a motion in limine by the
defendant/counterplaintiff, Chicago Conservation Center, to
exclude the opinion testimony of Patrick B. King. For the reasons
set forth below, the motion is granted in part, denied in part.
Plaintiffs/counterdefendants, Bruce and Dale Frey ("plaintiffs"
or "Freys") have filed suit against defendant/counterplaintiff,
the Chicago Conservation Center ("defendant" or "CCC"), alleging
that CCC damaged pieces of the Freys' art collection.
Specifically, the plaintiffs allege that CCC exposed certain
works to ozone which caused a fading to the color properties of
the art works, and they seek compensation for the resulting loss
of the works' value. To support their claim, plaintiffs offer the
testimony of Mr. Patrick B. King ("King"), an art appraiser and
conservator familiar with the use of ozone on works of art. In
response, CCC moves this court to exclude King's testimony,
arguing that he is unqualified to offer expert testimony.
On July 8 and 9, 1998, following a fire at their home, the
Freys arranged to have pieces of their art collection moved to
the CCC. (Defendant's Reply, Ex. A). Two
weeks later, on July 22, 1998, the pieces were transported from
CCC to Pickens-Kane Moving & Storage Company ("Pickens-Kane").
(Defendant's Motion ("Def.Mot."), Ex. A, at 51). Meanwhile,
the Freys hired King to consult them in connection with the
restoration of their art. (Deposition of Patrick B. King
("King Dep."), at 30).
Mr. King operates two companies, Midwest Freeze-Dry and Patrick
King & Associates. (Id., at 4-5). Patrick King & Associates
primarily performs art appraisals, while Midwest Freeze-Dry
performs art conservation and restoration services. (Id., at
5-7). One of the conservation methods with which King is familiar
is the exposure of art to ozone. For 13 years, both companies
used ozone "for destroying hydrocarbons [and] smoke odors" on
pieces of art, ceasing the practice three years ago. (Id., at
On two occasions prior to the fire, King allegedly had observed
the Freys' art collection in connection with unrelated insurance
claims filed by the Freys. (Id., at 30-35). In July of 1994,
King was asked by Chubb Insurance to examine some of the Freys'
Oriental rugs, and in January of 1998, King was asked by CNA
Insurance to examine one of the Freys' paintings. (Id.). At
both times, King took an informal tour of the Frey house,
observing the art collection throughout. (Id.)
On September 9th, 1998, King examined the art works being held
at Pickens-Kane. (Id., at 44-45). In his deposition, he
testified that the "character of the artwork was altered . . . It
was different in appearance and smell . . . The color appeared
faded . . . It had a bleachy odor to it." (Id., at 48-49). On
April 13, 1999, and again in June or July of 1999, King conducted
two subsequent examinations of the Freys' art collection that
included photographing the art work under 500 watt color
corrected photo flood lamps. (Id., at 65-66). Following these
examinations, King submitted reports to the Freys dated April 16,
1999 and July 23, 1999. (See Def. Mot., Ex.'s C, D). In the
first report, King wrote that he "detected the smell of decaying
ozone emanating" from the art work, and that he was "extremely
familiar with the smell of ozone and [could] easily identify it."
(Def. Mot., Ex. C, at 3). King concluded that "the optical
properties of Mr. Frey's artwork have been altered" and that "the
values of the objects of art have been diminished by 65%."
(Id.) In his second report, King reiterated his belief that
these "items have been exposed to Ozone." (Def. Mot., Ex. D).
During his deposition, King was asked what he meant in his
reports by "decaying ozone." He replied that it was "the reaction
between the ozone and the material," and that it had an "odor all
of its own as it reacts with the material." (King Dep., at 17).
He was then asked: "So it's different from an ozone odor, or is
it the same?" And King replied, "[i]t's the same." (Id.)
Plaintiffs intend to rely on King's testimony to bolster their
claim against CCC.
Defendant now argues that King should not be allowed to offer
this court expert testimony, because his methodology does not
meet the standards established by federal law to evaluate expert
testimony. Specifically, they argue that the physical properties
of ozone make it impossible for King to have smelled it six weeks
after the alleged exposure. In addition, they question King's
ability to discern fading in the color of the works, especially
based on the casual manner of his previous observation. CCC goes
on to emphasize the lack of education King has in chemistry and
The Freys respond that King is qualified to testify as an
expert. His lack of education is overcome, they assert, by his
extensive experience with the treatment of art with ozone. In the
alternative, plaintiffs contend that King should be allowed to
testify as a lay witness pursuant to Federal Rule of Evidence
When resolving a motion to exclude, federal courts must
proffered opinion individually against the standards of the
federal rules of evidence, rather than evaluate a witness's
testimony in aggregate. As a result, it is not uncommon for a
witness to be allowed (or disallowed) to offer one opinion as an
"expert" and another as a lay witness. See, e.g., United States
v. Figueroa-Lopez, 125 F.3d 1241 (9th Cir.), cert. denied,
523 U.S. 1131, 118 S.Ct. 1823, 140 L.Ed.2d 959 (1998). For example,
in this case, we find that none of Mr. King's opinions meet the
requirements of Federal Rule of Evidence 702. Therefore, Mr. King
may not testify as an expert. However, we also find that some of
Mr. King's opinions satisfy the requirements of FRE 701, and
thus, Mr. King may testify in a limited capacity as a lay
A. Expert Testimony — FRE 702
Use of expert testimony in federal court is governed by Federal
Rule of ...