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FREY v. CHICAGO CONSERVATION CENTER

October 23, 2000

DALE FREY AND BRUCE FREY, PLAINTIFFS,
V.
CHICAGO CONSERVATION CENTER, DEFENDANT. CHICAGO CONSERVATION CENTER, COUNTERPLAINTIFF, V. DALE FREY, BRUCE FREY, AND PATRICK B. KING, COUNTERDEFENDANTS.



The opinion of the court was delivered by: Bobrick, United States Magistrate Judge.

MEMORANDUM ORDER

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.

I. BACKGROUND

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.

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 16, 90).

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 related fields.

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 701.

II. ANALYSIS

A. Expert Testimony — FRE 702

Use of expert testimony in federal court is governed by Federal Rule of ...


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