United States Court of Appeals
For the First Circuit
No. 05-2284
MARK LEVIN AND BECKY LEVIN,
Plaintiffs, Appellants,
v.
DALVA BROTHERS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Lipez, and Howard, Circuit Judges,
Anthony A. Scibelli, with whom Brian E. Whiteley, C. Alex
Hahn, and Scibelli, Whiteley and Stanganelli, LLP were on brief,
for appellants.
Philip M. Chiappone, with whom McCanliss & Early LLP, Robert
Hillman, and Deutsch Williams were on brief, for appellee.
August 15, 2006
HOWARD, Circuit Judge. Through an agent, Mark and Becky
Levin purchased several antiques from Dalva Brothers, Inc. (Dalva),
an antiques dealer located in New York City. Later the Levins
obtained information suggesting that the antiques were not as Dalva
described them and were worth less than the approximately $750,000
that they paid. The Levins subsequently brought a diversity action
in the District of Massachusetts against Dalva alleging fraud,
negligent misrepresentation, breach of express warranties, unjust
enrichment, and a violation of Mass. Gen. Laws ch. 93A. After a
two-week trial, a jury found for Dalva on the misrepresentation and
warranty claims, and the court found for Dalva on the Chapter 93A
and unjust enrichment claims. The Levins appeal, challenging the
district court's choice of law, the jury instructions and certain
rulings on the admissibility of expert testimony.
I.
The Levins relocated from California to Massachusetts in
1992. They purchased a home on Boylston Street in Boston in 1992
and bought a historic mansion in Middleton, Rhode Island in 2000.
The Levins retained Roger Harned, an interior designer based in
California, to decorate these homes. Mrs. Levin directed Harned to
travel around the United States and Europe to locate "outrageous"
antiques for purchase.
In 1999 and 2000, Harned visited the Dalva gallery in New
York City. On both occasions, Harned stated that he was a
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decorator but did not tell Dalva that he represented the Levins.
Harned identified the antiques that he was interested in purchasing
and received written and oral descriptions of the items. He then
asked Dalva to send the "tear sheets" (descriptions and pictures)
for the antiques to his office in California.
In 1999, Dalva sent Harned tear sheets for two vases, and
in 2000, it sent Harned tear sheets for a grandfather clock and two
commodes. Both times, after receiving these documents, Harned
traveled to Massachusetts to discuss the items with the Levins. At
Harned's urging, the Levins authorized him to purchase all of the
items. The Levins wired the funds for the purchase price to
Harned's bank account in California, and Harned paid Dalva with
checks drawn from the account. At no time prior to the
consummation of these transactions did Dalva know that Harned was
buying the items on behalf of Massachusetts residents. After the
purchases, Harned arranged to have the items shipped to
Massachusetts for storage. Eventually, the vases were displayed at
the Levins' Boston condominium, and the clock and commodes were
displayed at their Rhode Island mansion.
The Levins' claims against Dalva stem from their
allegation that the tear sheets and invoices misrepresented the
antiques. The vase tear sheets described them as "fine and rare .
. . probably St. Petersburg, early 19th century," and the invoices
more definitively described them as "Russian, 19th century." The
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Levins claim that these vases were in fact French in origin, and
less valuable than represented.
The tear sheet for the clock described it as an
"exceptionally rare Regence grandfather's clock with superb vernis
Martin decoration depicting Peace and Justice above a panel showing
cupid and psyche . . . French, 18th Century." The Levins claim
that the clock was in fact an amalgam of parts and pieces from the
late 18th and 19th centuries and originated in Italy. The Levins'
expert testified that they overpaid for the clock by more than
$500,000.
The tear sheets for the commodes described one of them as
a "fine transitional marquetry commode . . . French 18th century,"
and the other as a "transitional Louis XV/XVI marquetry commode
with pictoral marquetry depicting ruins . . . French 18th century."
The Levins claim that, in fact, these were 19th and 20th century
pieces of furniture that were worth a fraction of what they paid.
II.
A. Choice of Law
The first issue on appeal is whether the district court
erred in applying New York law (and not Massachusetts law). The
Levins challenge this ruling on two grounds: (1) the court abused
its discretion by considering Dalva's argument for New York law
because Dalva did not raise the argument until the first day of
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trial, and (2) the court erred by deciding that New York law
governs. We begin with the waiver issue.
The Levins are asking us to order a new trial on the
ground that the district court permitted Dalva to raise an argument
too late in the proceeding. Such orders are rare. Loinaz v. EG &
G, Inc., 910 F.2d 1, 6 (1st Cir. 1990). "Decisions regarding the
management of the trial calendar and the courtroom proceedings are
particularly within the province of the trial judge, and her
determination[s] will not be disturbed absent a finding that she
abused her discretion." Id. Reversal because of a district
court's case management ruling also requires the appealing party to
demonstrate prejudice. See id. at 7 ("If we believe that the trial
judge's discretionary decisions have resulted in undue prejudice to
the appellant's case, we will reverse.").
The parties each cite cases where a court either
permitted or forbade a party from raising a choice-of-law argument
late in the proceedings. E.g., Bergin v. Dartmouth Pharm., Inc.,
326 F. Supp. 2d 179, 180 n.1 (D. Mass. 2004) (deeming choice-of-law
argument waived); PI, Inc. v. Ogle, 932 F. Supp. 80, 82 (S.D.N.Y.
1996) (same); Torah Soft Ltd. v. Drosnin, 224 F. Supp. 2d 704, 718-
19 (S.D.N.Y. 2002) (permitting choice of law argument to be raised
late in litigation). The cases cited do not establish a definitive
point by which a litigant must raise a choice-of-law argument;
rather, each was decided based on the case's own facts and
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equities. These dueling citations serve only to illustrate the
essential point: case supervision is the primary responsibility of
the trial court.
Here, Dalva raised the choice of law argument on the
first day of trial. But prior to that point in the litigation the
issue of choice of law had never been squarely presented by either
party, and the court had not issued any ruling on the issue.1
Moreover, there is nothing in the record suggesting that Dalva
intentionally waited to raise the choice-of-law issue to gain an
unfair advantage. In these circumstances, we think that the
district court was within its discretion in permitting Dalva to
raise the argument when it did. See Gen. Signal Corp. v. MCI
Telecomm. Corp., 66 F.3d 1500, 1505 (9th Cir. 1995) (affirming
ruling that a party did not waive choice of law argument offered
late in the litigation where there was no evidence of an
intentional delay and "there was no earlier ruling on choice of
law").
1
The Levins point to Dalva's submission of proposed jury
instructions that relied on Massachusetts law to support their
position that Dalva had conceded that Massachusetts law applied.
But these instructions were presented as group jury instructions
when the Levins were preparing to proceed against several
defendants from multiple states. Just prior to trial, the district
court severed the defendants and ordered the Levins to proceed
against Dalva first. Given this change in the posture of the case,
it was not unreasonable for the court to permit Dalva an
opportunity to reconsider its position on choice of law.
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Even if we questioned the court's ruling (which we do
not), the Levins have failed to demonstrate prejudice. They
contend that Dalva's late argument harmed them because it required
them to "wrestle with new jury instructions and related issues
under New York law." In complex civil litigation, legal issues
frequently arise mid-trial as the court prepares jury instructions
and makes other rulings. The court notified the parties on the
first day of a two-week trial (during which it was holding only
half-day sessions) that it wanted briefing on choice of law. To
expect counsel to meet this requirement does not appear
unreasonable and, if the Levins needed more time, they should have
asked for it. Cf. JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47,
52 n.2 (1st Cir. 1999) (per curiam) ("[A] party claiming prejudice
resulting from its belated receipt of evidence is poorly positioned
on appeal if it elected to forego a request for [a] continuance
below.").
The Levins also seek to establish prejudice by
identifying several ways in which they believe that applying New
York law was unfavorable to them. But these arguments do not
establish prejudice flowing from the consideration of the choice-
of-law issue, they suggest only that the district court's decision
to apply New York law, if incorrect, was not harmless error. See
P.R. Hosp. Supply, Inc. v. Boston Scientific Corp., 426 F.3d 503,
507 (1st Cir. 2005).
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We turn next to whether the district court erred by
deciding that New York law governed the Levin's claims. We review
choice-of-law determinations de novo. See Reicher v. Berkshire
Life Ins. Co. of Am., 360 F.3d 1, 4 (1st Cir. 2004). A federal
court sitting in diversity applies state substantive law. See Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). To determine the
applicable substantive law, the federal court applies the choice-
of-law principles of the forum state, here, Massachusetts. Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941).
An initial task of a choice-of-law analysis is to
determine whether there is an actual conflict between the
substantive law of the interested jurisdictions. See Millipore
Corp. v. Travelers Indem. Co., 115 F.3d 21, 29 (1st Cir. 1997).
The parties agree that such a conflict exists concerning the fraud
claims. Compare Crigger v. Fahnestock & Co., Inc., 443 F.3d 230,
234 (2d Cir. 2006) (stating that, under New York law, fraud must be
proven by clear and convincing evidence), with Compagnie De
Reassurance D'Ile de France v. New England Reinsurance Corp., 57
F.3d 56, 72 (1st Cir. 1995) (stating that the preponderance of the
evidence standard applies to fraud claims under Massachusetts law).
Moreover, as discussed infra, under New York law, the express
warranty claims are governed by a statute that has no parallel in
Massachusetts law.
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The next question is whether the district court correctly
applied Massachusetts choice-of-law principles to determine that
New York law applies. See Reicher, 360 F.3d at 5. Massachusetts
applies a "functional approach to choice of law." Bushkin Assocs.,
Inc. v. Raytheon Co., 473 N.E.2d 662, 668 (Mass. 1985). Recent
authority indicates that this functional approach "is explicitly
guided by the Restatement (Second) of Conflict of Laws (1971)."
Clarendon Nat. Ins. Co. v. Arbella Mut. Ins. Co., 803 N.E.2d 750,
753 (Mass. App. Ct. 2004).
The parties agreed before the district court that only
one state's law should govern the resolution of all of the Levins'
claims and have accordingly focused their choice-of-law analysis on
the misrepresentation claims. The choice-of-law analysis for
intentional and negligent misrepresentation claims is set forth in
§ 148 of the Restatement. See Uncle Henry's, Inc. v. Plaut
Consulting Co., Inc., 399 F.3d 33, 42 (1st Cir. 2005) (negligent
misrepresentation); Computer Sys. Engineering v. Qantel Corp., 740
F.2d 59, 70 (1st Cir. 1984) (intentional misrepresentation).
Section 148 focuses on where the representations were made and
received, and where the plaintiff relied on the representations.
In situations where the representations and reliance took place in
different states, the court examines (1) the place or places where
the plaintiff acted in reliance upon the defendant's
representations, (2) the place where the plaintiff received the
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representations, (3) the place where the defendant made the
representations, (4) the domiciles and places of business of the
parties, (5) the place where a tangible thing which is the subject
of the transaction between the parties was situated at the time of
the transaction, (6) and the place where the plaintiff agreed to
render performance under a contract induced by an alleged
misrepresentation. See Restatement, supra at § 148(2).
Here, the relevant contacts are as follows. Harned, the
Levins' agent, contacted Dalva in New York to agree to buy the
antiques. Harned sent payment of the purchase price to Dalva in
New York from a California bank. Dalva made the representations to
Harned in New York when Harned visited the gallery and it mailed
the tear sheets to Harned's California office. The Levins, through
Harned, received these representations first in New York and then
in California. The Levins are residents of Massachusetts and
Dalva is a New York business. The antiques were located in New
York at the time of the transaction, and the Levins rendered
performance from California, when Harned sent payment to Dalva.
While the contacts are somewhat closely distributed between New
York and California, the Levins sought the application of
Massachusetts law. There is little question that the transaction
primarily occurred outside of Massachusetts.
The Levins dispute this line of analysis by contending
that they received and relied on the representations in
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Massachusetts when they received the tear sheets and issued their
purchase instructions. But Harned was acting on behalf of the
Levins in his dealings with Dalva, and the Levins were undisclosed
principals. See Old Republic Ins. Co. v. Hansa World Cargo Servs.,
Inc., 51 F. Supp. 2d 457, 471 (S.D.N.Y. 1999) ("An undisclosed
principal is a principal whose existence and identity is not
revealed to a third party that is transacting business with the
undisclosed principal's agent."). For choice-of-law purposes, the
relevant contacts are between Harned and Dalva; Harned's
communications with the Levins, of which Dalva had no knowledge,
would seem to be of comparatively little relevance. See Schwegmann
Giant Super Markets v. Golden Eagle Ins. Co., 693 F. Supp. 478, 485
(E.D. La. 1998) (explaining that, in a choice-of-law analysis under
the Restatement, contacts between an agent and an undisclosed
principal "done unilaterally, without [the] defendant's knowledge
. . . [are] of little import").
Focusing on Harned's contacts with Dalva comports with
one of the guiding principles of the Restatement's choice-of-law
analysis -- that the governing law should reflect the parties'
justified expectations. See Restatement, supra at § 6. Although
industry norms might suggest the possibility of undisclosed out-of-
state principals, Dalva had no reason to know that the transaction
with Harned had a Massachusetts connection. It would thus be unfair
to impose Massachusetts rather than New York law on the
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transaction. Moreover, by deciding to conceal their identities,
the Levins forfeited any reasonable basis for thinking that
Massachusetts law would govern purchases made by Harned outside of
their home state.
In sum, the district court did not abuse its discretion
by considering the choice-of-law question, and its ultimate choice-
of-law ruling was correct.
B. Express Warranty Instruction
The Levins challenge the express warranty instruction as
it pertains to the clock. They argue that the district court erred
by instructing the jury under a New York statute that governs
express warranty claims for fine art. See N.Y. Cult. Arts Law, §
13.01 (McKinley 2004) (the "fine art statute").
The fine art statute provides that whenever an art
merchant sells a work of fine art to someone who is not an art
merchant and provides a document certifying the period or author of
the piece, the merchant's representation is an express warranty.
Id. § 13.01(1)(b). The statute further provides that a warranty
should be interpreted in light of the "custom and usage of the
trade." Id. § 13.01 (2). In at least one case, a gloss has been
placed on the statute, requiring a plaintiff to demonstrate that
the merchant's warranty was made "without a reasonable basis in
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fact" at the time that it was offered. Dawson v. G. Malina, Inc.,
463 F. Supp. 461, 467 (S.D.N.Y. 1978).2
The breach-of-warranty instruction offered in this case
recited the requirements of the fine art statute with the Dawson
gloss.3 The Levins contend that this instruction was erroneous
because the grandfather clock is not a piece of fine art within the
meaning of the statute.4 On appeal, the parties treat this issue
as a question of law subject to de novo review. We follow their
approach.5
"Fine art" is defined under the statute to mean a
"painting, sculpture, drawing, or work of graphic art, and print."
2
Dawson was decided under a predecessor version of the current
fine art statute. See N.Y. Gen. Business Law § 219-b (repealed by
L.1983, 876, § 5). The substantive elements of the statutes are
the same.
3
The Levins have not challenged the Dawson gloss as an
incorrect interpretation of the statute by a federal district court
sitting in diversity, and therefore, even though we are not bound
to accept it, we do so for purposes of this appeal. See Salve
Regina College v. Russell, 499 U.S. 225, 234-35 (1991).
4
The Levins waived the argument that the fine art statute did
not apply to the warranty claims concerning the commodes or vases
by not raising the argument in their opening appellate brief. See
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).
5
There is a substantial argument that determining whether the
clock is fine art is a question of fact that should have been
submitted to the jury for resolution. The district court, however,
treated it as a question of law, and the Levins have not challenged
that ruling. Therefore, any argument that it was error to treat
the issue as a legal question to be resolved by the court is
waived. We take no view whether, on remand, see infra, it would
make sense for the parties and the district court to revisit the
treatment of this issue.
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N.Y. Cultural Arts Law § 11.01 (9). The Levins make the
straightforward claim that this case concerns a clock and a clock
is not "fine art."
This argument appeals in its simplicity, but identifying
fine art may not be so easy. See generally Christine Haight
Farley, Judging Art, 79 Tul. L. Rev. 805 (2005) (discussing
judicial reluctance to determine what constitutes "art"). As one
trial expert testified, "[t]here is sort of a murky distinction"
between decorative and fine arts.
The clock (a picture of which is included as an addendum
to this opinion) has multiple painted panels showing mythological
scenes all of which pertain to the relationship between peace and
justice. The tear sheet focused on the painted panels as major
features of the clock, and one of Dalva's principals testified that
it viewed the painting as the most significant attribute of the
clock. There also was expert testimony that a purchaser of the
clock would view it "as a piece of fine art because the painting is
so extraordinary and it is so unusual." Indeed, the Levins' own
expert admitted that "the decoration . . . was, in fact, the most
important thing with [this] clock." This testimony supports the
district court's ruling that the clock was fine art.
Applying the fine art statute to the clock accords with
Dawson, the only reported case considering the scope of the
statute's fine art definition. See 463 F. Supp. at 466 n.4. There,
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the court held that a decorated bowl and several vases were fine
art. Like the clock, the items at issue in Dawson were not
traditional canvass paintings or sculpted figures. Although they
were items that had functional uses, the court concluded that their
artistic decoration elevated them to works of fine art. Id. So
too here. Of course, ruling that this clock is fine art does not
mean that all clocks so qualify; indeed, most probably do not. But
in light of the expert testimony, the description provided in the
tear sheet, and the photograph of the clock, we conclude that the
district court was correct to instruct under the fine art statute.
The Levins offer a second objection to the express
warranty instruction, applicable to the warranty claims for all of
the items. They contend that the court erroneously instructed that
the breach-of-warranty claims should fail if the jury concluded
that Dalva merely offered an opinion by attributing the antiques to
a specific period.6 We review this claim de novo. See Forgie-
Buccioni v. Hannaford Bros, Inc., 413 F.3d 175, 178 (1st Cir.
6
The instruction stated:
An expressed warranty must be based on a
statement of fact, not mere opinion. If
the defendant was only expressing an opinion
about the item or its value, then the
defendant may only be engaging in sales talk
or sales puffery. An opinion does not create
an expressed warranty, but the distinction
is often a difficult one to draw.
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2005).
The fine art statute was a specific legislative enactment
designed to regulate express warranty claims brought by lay people
after purchasing fine art from art merchants. As such, it
supplants the otherwise applicable provisions of the Uniform
Commercial Code. See Dawson, 463 F. Supp. at 465 n.3; see also
Balog v. Ctr. Art Gallery-Hawaii, Inc., 745 F. Supp. 1556, 1562 (D.
Haw. 1990) (stating that, in the absence of specific state statute,
the UCC applies to an express warranty claim concerning fine art).
If the UCC were to apply, then the district court may
have been correct to instruct concerning the distinction between
opinion and fact. See Yuzwak v. Dygert, 534 N.Y.S. 2d 35, 36 (N.Y.
App. Div. 1988) (stating that, in a breach of warranty action under
the UCC, "[w]hether representations made by a seller are
warranties, and therefore, a part of the bargain, or merely
expressions of the seller's opinion is almost always a question of
fact for a jury's resolution"). But the instruction is
inconsistent with the fine art statute.
The statute provides that where an art merchant states to
a lay person that a piece is by a specific author or can be
attributed to a specific period, the statement "shall create an
express warranty." N.Y. Cult. Arts Law, § 13.01 The purpose of
this provision was "to eliminate questions as to whether an art
dealer's representations with respect to the authorship of a
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particular work were to be considered an affirmation of a fact, in
which event the description would create an express warranty under
the Uniform Commercial Code or merely the expression of the
dealer's opinion which would not give rise to such a warranty."
Dawson, 463 F. Supp. at 465 n.3.
Attributing fine art to a particular period or author is
"an educated guess or opinion and the more remote the creator is
from the present the more remote is the possibility that anyone can
make attribution of authorship as a fact."7 Mem. of the Att'y Gen.
of N.Y. Concerning Warranties in the Sale of Fine Art, N.Y. 1968
Legis. Ann. 79, reprinted in 2 F. Feldman, S. Weil, & S. Biederman,
Art Law at 100 (1986). Under the UCC, this inherent difficulty in
attributing fine art allowed art merchants to offer an affirmative
attribution for a piece of art in order to raise the price and, if
the attribution was later determined to be incorrect, to fall back
on the defense that the attribution was only an opinion. Id. at
100-01. To correct this perceived inequity, New York enacted a law
"hold[ing] a merchant-seller responsible to a non-merchant buyer
for any statement relevant to the authorship of a work of fine art
notwithstanding that such statement is or purports to be or is
capable of being merely [an] opinion." Id.; see Comment,
Regulation of the New York Art Market: Has the Legislature Painted
7
"Authorship" includes statements assigning a work of fine art
to a specific period. See N.Y. Cult Affairs Law. § 11.01 (3).
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Dealers into a Corner, 46 Fordham L. Rev. 939, 954-56 (1978).
Here, the representations attributed the art to specific
historical periods. These representations were express warranties
as a matter of law under the fine art statute. Therefore, the
instruction allowing the jury to find that these attributions were
opinions should not have been given. Moreover, we are unable to
say that the instruction was harmless. See Goodman v. Bowdoin
College, 380 F.3d 33, 47 (1st Cir. 2004) (an erroneous jury
instruction warrants a new trial only if the error "can fairly be
said to have prejudiced the objecting party"). Much of the
evidence concerned the difficulties in dating a particular antique
to a certain historical period and several witnesses noted that any
attribution is ultimately a matter of judgment. In closing,
Dalva's counsel argued that the representations were to some extent
"a matter of opinion." On this record, we cannot say with adequate
assurance that the jury's verdict was untainted by the
instruction. Accordingly, the express warranty claims must be
retried.
C. Expert Testimony
Finally, we consider the Levins' argument that the
district court improperly limited the scope of their experts'
testimony, while allowing Dalva's expert to testify too broadly.
We review decisions to admit expert testimony, and to limit its
scope, for an abuse of discretion. See Gen. Elec. Co. v. Joiner,
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522 U.S. 136, 138-39 (1997).
Among other requirements, Fed. R. Evid. 702 mandates that
a putative expert be qualified to testify by knowledge, skill,
experience, training or education. See Diefenbach v. Sheridan
Transp., 229 F.3d 27, 30 (1st Cir. 2000). Under this rule, a
testifying expert "should have achieved a meaningful threshold of
expertise" in the given area. Prado Alvarez v. R.J. Reynolds
Tobacco Co., Inc., 405 F.3d 36, 40 (1st Cir. 2005). That "a
witness qualifies as an expert with respect to certain matters or
areas of knowledge, [does not mean] that he or she is qualified to
express expert opinions as to other fields." Nimely v. City of New
York, 414 F.3d 381, 399 n.13 (2d Cir. 2005).
The Levins claim that the district court abused its
discretion by preventing their expert, Marshall Fallwell, from
offering an opinion concerning whether the clock originated from
the Regence period. Fallwell was qualified by the court to offer
an opinion as to the appraised value of the items based on his
testimony that he was employed as an appraiser of furniture and had
conducted over three hundred appraisals in his career. The court
also permitted Fallwell to provide a detailed explanation of his
visual examination of the clock based on his general familiarity
with antique furniture. But it did not permit Fallwell to testify
to his own opinion concerning the clock's origin in the Regence
period on the ground that Fallwell had insufficient experience with
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Regence-era furniture to authenticate the clock based on his visual
examination.
The Levins concede that Fallwell did not have prior
experience identifying Regence-era furniture through visual
examination, but contend that requiring such experience is
inconsistent with Rule 702 because it demands too much
specialization from a proposed expert witness. They argue that
Fallwell's general experience with antique furniture and his
appraising skills qualified him to opine that the clock did not
originate in the Regence period.
Rule 702 has been interpreted liberally in favor of the
admission of expert testimony. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 588 (1993). As such, expert witnesses need not
have overly specialized knowledge to offer opinions. See Gaydar v.
Soceidad Instituto Gineco-Quirurgico Y Planificacion Fam., 345 F.3d
15, 24-25 (1st Cir. 2003). But a district court acts properly by
excluding opinions that are beyond the witness's expertise. See
Weinstein's Evidence, § 702.04[6] (2006). The court excluded
Fallwell's opinion on authenticity because Fallwell demonstrated
insufficient experience or training in authenticating Regence
furniture from visual examination. By excluding Fallwell's opinion
on authenticity but allowing him to testify to appraisal value and
his visual observations of the clock, the court reasonably limited
Fallwell to offering opinions only in those areas in which he was
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qualified. See United States v. Chang, 207 F.3d 1169, 1172-73 (9th
Cir. 2000) (concluding that the district court did not abuse its
discretion in precluding expert in international finance from
testifying that a particular financial document was not authentic
because the expert had no expertise in detecting counterfeit
securities).8 While the court likely could have allowed Fallwell
to offer the challenged opinion, it did not abuse its considerable
discretion by taking a more conservative tack and excluding the
opinion.
The Levins also contend that the court permitted Dalva's
expert, Victor Weiner, too much latitude in testifying concerning
the attributes of the clock. Weiner testified that the clock was
unusual because of its painted panels, and that substantial
renovations to the clock would not alter its period of origin.
The Levins contend that Weiner was not qualified to offer
these opinions because he did not authenticate the clock as
originating in Regence period. But his testimony was not intended
to authenticate the clock; it was based on the assumption that the
clock was authentic. See Coleman v. De Minico, 730 F.2d 42, 46
(1st Cir. 1984) (concluding that an expert may offer opinions based
8
The Levins also dispute a ruling preventing one of their
experts from testifying whether the commodes were correctly
attributed to a specific craftsman. This argument fails because
the was no proffer as to the substance of the expert's proposed
testimony. See Faigin v. Kelly, 184 F.3d 67, 86 (1st Cir. 1999).
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on assumptions that are not contrary to the evidence at trial).
Weiner possessed advanced degrees in art history and wrote a
dissertation on a Regence-era painter. He also has experience as
an appraiser, and has published works on appraisal methodology for
art and antiques. Combining his background in Regence art with his
writing on appraisal methodology, the district court was within its
discretion in allowing Weiner's opinions.
The Levins also challenge Weiner's testimony on the
ground that he impermissibly testified to a legal issue by opining
that the tear sheets and invoices comported with industry standard.
Generally, an expert may not offer an opinion concerning a legal
question. See United States v. Mikutowicz, 365 F.3d 65, 73 (1st
Cir. 2004). But that is not what happened here. Expert testimony
on industry standards is common fare in civil litigation. E.g.,
Ford v. Allied Mut. Ins. Co., 72 F.3d 836, 841 (10th Cir. 1996);
Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995); TCBY
Sys., Inc. v. RSP Co., Inc., 33 F.3d 925, 928 (8th Cir. 1994).
Weiner permissibly offered an opinion concerning practices in the
art and antique industry which was helpful to the jury in resolving
the legal question before it. See supra at 12 (industry custom and
usage are relevant to express warranty claims under the fine art
statute).
III.
The district court ably managed this complex and
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contentious litigation. It carefully navigated through tricky
choice of law and evidentiary issues. The error concerning the
express warranty instructions was understandable given the dearth
of case law interpreting the fine art statute. Nevertheless, a new
trial on the express warranty claims is warranted. We therefore
vacate the judgment as it pertains to the express warranty claims
and affirm the judgment in all other respects. No costs are
awarded.
So ordered.
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Addendum
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