Oleg Cassini, Inc. v. Electrolux Home Products, Inc.

Filing 80

MEMORANDUM AND ORDER: granting 62 Motion in Limine. For the reasons discussed, the plaintiff's motion in limine to exclude the testimony of Phillis Rogoff (Docket no. 62) is granted. (Signed by Magistrate Judge James C. Francis on 4/15/2014); Copies Mailed By Chambers. (djc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
OLEG CASSINI, INC.
: 11 Civ. 1237 (LGS) (JCF)
:
Plaintiff,
:
MEMORANDUM
:
AND ORDER
- against :
:
ELECTROLUX HOME PRODUCTS, INC.,
:
:
Defendant.
:
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
The opinion of a highly qualified expert witness using a wellaccepted methodology is nevertheless unreliable, and therefore
inadmissible, if the expert fails to explain how her opinion
follows logically from the application of the methodology to the
specific facts of the case.

In this product liability action,

defendant Electrolux Home Products, Inc. (“Electrolux”) has filed
a motion in limine pursuant to Rule 702 of the Federal Rules of
Evidence to exclude the expert report submitted by the plaintiff,
Oleg Cassini, Inc. (“Oleg Cassini”).

For the reasons that follow,

the motion is granted.
Background
The factual background of this case has been addressed in
previous opinions.
Products,

Inc.,

No.

See Oleg Cassini, Inc. v. Electrolux Home
11

(S.D.N.Y. June 19, 2013);

Civ.

1237,

2013

WL

3056805,

at

*1-3

Oleg Cassini, Inc. v. Electrolux Home

Products, Inc., No. 11 Civ. 1237, 2013 WL 466198, at *1 (S.D.N.Y.
Feb. 7, 2013).

Briefly, on August 3, 2008, an under-the-counter

dryer manufactured by the defendant allegedly caused a fire at the
1

plaintiff’s property.

(Complaint (“Compl.”), ¶¶ 11, 15, 18).

The

plaintiff claims that the dryer was defective, and seeks damages
under theories of strict product liability, negligence, breach of
warranty, and violations of New York consumer protection laws.
(Compl., ¶¶ 12, 16, 40-42, 50-51, 55-57, 60, 63, 67).
The fire resulted in significant property damage, including
smoke and water damage; the plaintiff alleges that it destroyed
“original sketches, drawings, and artwork by renowned fashion
designer Oleg Cassini” that were stored in the basement of the
property.

(Memorandum of Law in Opposition to Defendant’s Motion

in Limine to Preclude the Expert Testimony of Phillis Rogoff (“Pl.
Memo.”) at 1; Compl., ¶ 6).

Some two years after the fire, in

October, 2010, the plaintiff hired Phillis Rogoff to examine and
assess the value of the damaged artwork. (Memorandum in Support of
Defendant’s Motion in Limine to Preclude Expert Testimony of
Phillis Rogoff (“Def. Memo.”) at 1).

Ms. Rogoff subsequently

prepared a report documenting her findings. (Damage/Loss Appraisal
Prepared October 22, 2010 (“Expert Report”)).
A.

Plaintiff’s Expert

According to an affidavit, sworn certification, and curriculum
vitae included as part of the Expert Report, Ms. Rogoff is a
professional appraiser “specializing in . . . fine and decorative
art” who has been “actively involved in valuing property of the
kind described in this appraisal for a period of twenty-seven
years.”

(Expert Report at 3-4, 162-63).

Ms. Rogoff recently

clarified that while she has been “involved in the art industry for
2

over thirty (30) years in various capacities including as an
artist, art dealer and appraiser,” she has been “actively involved
in valuing property of the kind described in the appraisal for a
period of approximately seventeen (17) years.”

(Declaration of

Phillis Rogoff dated Feb. 20, 2014 (“Rogoff Decl.”), ¶¶ 2, 3, 6).
Ms. Rogoff graduated from Cornell University with a Bachelor
of Fine Arts, and obtained a Masters degree in Industrial Design
from Syracuse University.
6).

(Expert Report at 162; Rogoff Decl., ¶

She also took classes at the Rhode Island School of Design and

completed “Certified Appraisal Studies Courses” from New York
University.1

(Expert Report at 162; Rogoff Decl., ¶ 6; Deposition

of Phillis Rogoff dated Sept. 26, 2013 (“Rogoff Dep.”), attached as
Exh. 4 to Def. Memo., at 6-7).

Ms. Rogoff “subscribe[s] to the

Code of Ethics of the Appraisers Association of America and the
Appraisers Society of America,” and is an Associate Member of the
Appraisers Association of America.

(Expert Report at 3, 162; Pl.

Memo. at 2; Rogoff Decl., ¶¶ 2, 6).
and

qualified

through

the

Uniform

Appraisal Practices” (“USPAP”).

She has also been “licensed
Standards

of

Professional

(Expert Report at 162; Rogoff

Decl., ¶ 6);
Ms. Rogoff has owned several art galleries during her career,
is “well known in the art industry,” and has “often [been] referred
cases for various insurance carriers to appraise works.”
Decl., ¶¶ 8-9, 15).

(Rogoff

While she does not work full time valuing

1

Ms. Rogoff’s curriculum vitae does not provide the dates
that she obtained these degrees and certificates.
3

artwork, she has performed “several hundred appraisals over the
years,” up to and including the assessment done for Oleg Cassini,
and

“continue[s]

to

read

articles

relevant

to

the

appraisal

industry.” (Rogoff Decl., ¶¶ 11, 13-14). Though not apparent from
the Expert Report, Ms. Rogoff has done appraisals “involving
members in the fashion industry.”

(Pl. Memo. at 2; Rogoff Dep. at

24-25). Ms. Rogoff has not published any articles on art appraisal
(Rogoff Dep. at 12), but was previously qualified as an expert to
value artwork in a case in federal court in Alaska (Rogoff Dep. at
11-12; Rogoff Decl., ¶ 9).
B.

The Expert Report

The Expert Report provided to the defendant pursuant to Rule
26 of the Federal Rules of Civil Procedure is the same report
prepared by Ms. Rogoff in 2010 prior to commencement of the
litigation.

The report is 165 pages long; in addition to the

affidavit, sworn certification, and curriculum vitae discussed
above, it includes a roughly four-page “appraisal report;” one
hundred and fifty pages of photographs of the damaged artwork, a
brief “narrative analysis” of the artist, the artwork, and its
evaluation; and a disclaimer provision.
1.

(Expert Report at 2).

Findings

Ms. Rogoff found that smoke, water, and subsequent exposure to
air and mold damaged the artwork so severely that it rendered the
“majority” of the pieces unsalvageable; after consulting with three
“prominent conservators,” she determined that “the cost to restore
[the other] items to their original condition outweighs the value
4

of the item[s] [sic].” (Expert Report at 159-60). The report does
not appear to distinguish between the immediate damage caused by
the fire and subsequent deterioration during the two years between
the fire and Ms. Rogoff’s evaluation of the artwork, but notes that
measures which may have “lessen[ed] [the] damage” that occurs “over
time” were not taken.

(Expert Report at 159).

The total value of the works at the time the appraisal was
conducted was $233,360.00, representing “[what] would have been
paid for such property by a willing buyer to a willing seller in an
open market.”

(Expert Report at 3, 163).

The report breaks down

the values of various items, but provides only minimal description
of the pieces being evaluated.

(Expert Report at 5-8; Reply

Memorandum in Support of Defendant’s Motion in Limine to Preclude
Expert Testimony of Phillis Rogoff (“Reply”) at 2).

For example,

the report identifies the following similar but apparently distinct
paintings, some of which are characterized as “art” and others as
“fashion creations” or “designs”:
1. A group of (16) sixteen original hand painted pieces
of art by Oleg Cassini. Each piece measures 22 ½” high
x 14 ½” wide. $13,600.
. . .
12. The items listed in this group were all designed and
hand painted by Mr. Casinni [sic]. They are similar in
subject as they are all fashion creations.
a) A group of (58) fifty-eight designs each
measuring 22 ½” high x 14 ½” wide. $46,400.
(Expert Report at 5-6).

The collection, which the report groups

into various similar categories, also includes original artwork and
fashion sketches of varying sizes, room renderings, photographs of
5

celebrities,

fabric

designs,

“fashion

creations,”

furniture

designs, “original sketches,” “pieces created by Mr. Casinni [sic]
in Italy,” and “press books.”

(Expert Report at 5-8).

None of the

other pieces or categories are given any more descriptive detail
than the examples provided.
While the report includes one hundred and fifty pages of
photographs of the evaluated works (Expert Report at 9-158), the
photographs are not labeled, nor are they correlated or indexed in
any way to the numbered items in the appraisal report.

Ms. Rogoff

was unable to match the appraisal report descriptions to the
photographs during her deposition.
2.

(Rogoff Dep. at 57-59, 62-63).

Methodology

Ms. Rogoff described the methodology used to evaluate the
artworks and arrive at their estimated value as follows:
To establish a loss of value for Mr. Cassini’s artwork
due to exposure to fire, smoke, soot, water and mold
several factors were considered.
The notoriety and
respect afforded the artist; the current retail price and
the marketplace were all taken into account. For the
purpose of this report the fashion centers of the world
including New York City, Paris, London, and Los Angeles
were the primary marketplaces, with the Internet
considered as well.
The comparative market data approach was used in
establishing a value.
The appraised property was
compared to the same or similar items offered for sale at
the time of the fire at the estate of the late Mr.
Casinni [sic]. Both the Income and Cost Approaches were
determined to be inappropriate.
There is an active
retail and secondary market for original designs of this
quality and provenance. A blockage discount of 20% was
applied since there was a large number of original
designs, sketches, fabric repeats, photographs and other
artwork.
(Expert Report at 161).

Ms. Rogoff clarified in other sections of
6

the report that the fair market value was “the price that property
would sell for on the open market” as “agreed on between a willing
buyer and a willing seller, with neither being required to act, and
both having reasonable knowledge of the relevant facts” (Expert
Report

at

164)

(internal

quotation

marks

omitted),

and

that

determination of this value was “based on comparable items of
property of similar kind, quality and condition as of the date of
[the] appraisal” (Expert Report at 3; Rogoff Decl., ¶ 4).
During her deposition, defense counsel asked Ms. Rogoff to
expound on the methodology used to assign value to the Cassini
artwork:
I decided to see what the sketches went for in the
marketplace. I knew what sketches by people who were not
as noted as Mr. Cassini was were currently going for in
the marketplace. . . . In the marketplace at the current
time . . . the average person was being paid between 750
and $1,000 per sketch.
(Rogoff Dep. at 45).

However, the Expert Report included no

information as to how Ms. Rogoff applied the comparative market
data approach to Mr. Cassini’s works, including which artists or
sketches were used as comparators and whether the comparison pieces
were sold at auction or by private sale.

During her deposition,

Ms. Rogoff could not remember what sources or comparisons she had
used to assign value to the Cassini pieces (Rogoff Dep. at 55-57)
and testified that, in fact, there is not a “general market for the
type of sketches” at issue, and that she could not think of another
fashion designer “with [Mr. Cassini’s] notoriety of his genre, of
his era” (Rogoff Dep. at 53-54).
During

Ms.

Rogoff’s

deposition,
7

defense

counsel

raised

concerns that he was unable to properly “explore [the] methodology”
without the underlying documents supporting the comparative market
analysis (the absence of which is discussed in greater detail
below). (Rogoff Dep. at 29). Defense counsel made clear, however,
that he was “not asking for a new report” but rather “for a
reproduction of the file that comprised her work product when she
did her work in October of 2010.”
3.

(Rogoff Dep. at 30).

Authenticity

Ms. Rogoff asserted in her report that she personally examined
the artwork “as well as photographs of the items” in question.
(Expert Report at 3, 163).

While the plaintiff argues that Ms.

Rogoff conducted an “actual inspection of the items” (Pl. Memo. at
3), it became clear during her deposition that at least some of her
assessments were conducted relying solely on photographs, without
personal examination of items that had already been discarded.
(Rogoff Dep. at 68-70, 96-98; Expert Report at 8).

Furthermore,

some of the photographs included in the report were not taken by
Ms. Rogoff but rather by someone associated with the Cassini
estate; Ms. Rogoff could not identify which photographs fell into
this category.

(Rogoff Dep. at 38, 97).

Ms. Rogoff later stated

that she “personally examined all available property as well as
photographs of items damaged.” (Rogoff Decl., ¶ 4).
Ms. Rogoff also relied on consultations with other experts to
ascribe value to at least some of the items contained in the Expert
Report,

including

the

manuscript

of

Mr.

Cassini’s

biography.

(Rogoff Dep. at 65-66; Rogoff Decl., ¶ 20 (stating that she has
8

“contacts in all different industries in this area which allows
[her] to provide insight” on the value of the various sources and
art mediums at issue)).

The disclaimer included at the end of the

Expert Report notes that “[i]nformation furnished by others” –including, presumably, the photos provided to her by the estate and
advice provided by other individuals -- “is assumed to be reliable,
but is not guaranteed by the appraiser.”
Additionally,

some

measure

of

(Expert Report at 165).

the

artworks’

value

is

attributable to Ms. Rogoff’s belief that many of the pieces were
signed by Oleg Cassini; she apparently made this determination, at
least in part, by analyzing the signatures on the artwork. (Rogoff
Dep. at 71-72, 83-84).

However, the Expert Report’s disclaimer

expressly states that Ms. Rogoff made no guarantee of authenticity
or authorship of any of the items she evaluated, and she confirmed
this during her deposition.

(Expert Report at 165; Rogoff Dep. at

81-82).
C.

Production of the Report and Underlying Materials

The plaintiff first provided Electrolux with a copy of the
report in late 2010, prior to filing the present action.

(Pl.

Memo. at 1, 4). Ms. Rogoff was identified as an anticipated expert
witness in the initial Rule 26 disclosures provided in August 2011,
and a bates-stamped copy of her report was given to the defendant
in August 2012.

(Pl. Memo. at 4).

On July 15, 2013, the plaintiff

“formally identified” Ms. Rogoff as an expert witness pertaining to
damages to the artwork, and a copy of her October 22, 2010 Expert
Report was disclosed at that time pursuant to Rule 26. (Def. Memo.
9

at 1; Pl. Memo. at 4).
The defendants noticed Ms. Rogoff’s deposition on September 3,
2013, and asked that she:
bring all documents reviewed in preparation for the
deposition and which were used to refresh the deponent’s
recollection including, but not limited to, her entire
file
on
this
litigated
matter;
all
documents,
photographs, videos, standards, notes and data she
reviewed and/or relied upon in forming her opinions; all
research materials, articles and other written materials
reviewed in the formation of her opinions; photographs
and literature for all exemplar or comparable works she
examined in the course of her evaluation; all
documentation of testing performed in the development of
her opinions; all notes and drawings made during the
development of her opinions; and all billing documents
relating to this litigation.
(Expert Deposition Notice dated Sept. 3, 2013, attached as Exh. E
to Declaration of Nicholas A. Vytell dated Feb. 21, 2014).

Ms.

Rogoff

the

relied

only

on

the

Expert

Report

to

prepare

for

deposition and was unable to bring any of the underlying materials
requested by the defendant because all of the “supporting data” she
used to conduct her examination and compile the report had been
destroyed by flooding after Hurricane Sandy.

(Rogoff Decl., ¶ 16;

Rogoff Dep. at 12-14, 16-20; Def. Memo. at 3; Pl. Memo. at 4-5).
While Ms. Rogoff indicated that digital recovery of her research
was unsuccessful (Rogoff Decl., ¶ 16), she stated that she could
replace or recreate the original research (Rogoff Dep. at 13, 17),
and appears to have provided this recreated “back up research” to
the defendant as of February 2014 (Rogoff Decl., ¶ 17; Pl. Memo. at
5).
Legal Standard
Under Rule 702 of the Federal Rules of Evidence, “a witness
10

who is qualified as an expert by knowledge, skill, experience,
training,

or

education”

may

testify

regarding

an

area

of

specialized knowledge provided that it “will help the trier of fact
to understand the evidence or to determine a fact in issue” and
that (1) “the testimony is based on sufficient facts or data,” (2)
“the testimony is the product of reliable principles and methods,”
and (3) “the witness has reliably applied the principles and
methods to the facts of the case.”

Fed. R. Evid. 702; see also

Amorgianos v. National Railroad Passenger Corp., 303 F.3d 256, 265
(2d Cir. 2002); Davis v. Carroll, 937 F. Supp. 2d 390, 412
(S.D.N.Y. 2013).
“[T]he trial judge [has] the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to
the task at hand.”

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 597 (1993).
expert

testimony

requires

Performing the role as “gatekeeper” of
the

court

to

conduct

a

“rigorous

examination of the facts on which the expert relies, the method by
which the expert draws an opinion from those facts, and how the
expert applies the facts and methods to the case at hand.”
Amorgianos, 303 F.3d at 259, 267.

This gatekeeping role applies

“not only to testimony based on ‘scientific’ knowledge, but also to
testimony based on ‘technical’ and ‘other specialized’ knowledge.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999).

However,

in such cases “‘the reliability inquiry may instead focus upon
personal knowledge and experience of the expert.’”

Davis, 937 F.

Supp. 2d at 412 (quoting Bah v. Nordson Corp., No. 00 Civ. 9060,
11

2005 WL 1813023, at *7 (S.D.N.Y. Aug. 1, 2005)).
The

proponent

of

expert

testimony

must

establish

its

reliability and admissibility under this rule by a preponderance of
the evidence.
Cir. 2007).

United States v. Williams, 506 F.3d 151, 160 (2d
There is a presumption of admissibility of expert

evidence, Borawick v. Shay, 68 F.3d 597, 610 (2d Cir. 1995), and
“the rejection of expert testimony is the exception rather than the
rule.”

Fed. R. Evid. 702 advisory committee’s note; accord Floyd

v. City of New York, 861 F. Supp. 2d 274, 287 (S.D.N.Y. 2012).
However, “when an expert opinion is based on data, a methodology,
or studies that are simply inadequate to support the conclusions
reached, Daubert

and Rule 702 mandate the exclusion of that

unreliable opinion testimony.”

Amorgianos, 303 F.3d at 266.

Discussion
A.

Ms. Rogoff’s Qualifications

Under Daubert and Rule 702 of the Federal Rules of Evidence,
the first step in determining the admissibility of expert testimony
is determining “whether the expert is qualified to testify.”
Arista Records LLC v. Usenet.com, Inc., 608 F. Supp. 2d 409, 422
(S.D.N.Y. 2009) (citing Zaremba v. General Motors Corp., 360 F.3d
355, 360 (2d Cir. 2004)).

“In assessing whether a witness can

testify as an expert, courts have liberally construed the expert
qualification
experience

requirement”
and

educational

and

considered

background

both
as

“practical

criteria

for

qualification” in determining whether “the expert’s knowledge of
the subject is such that [her] opinion will likely assist the trier
12

of fact in arriving at the truth.”

Johnson & Johnson Vision Care,

Inc. v. CIBA Vision Corp., No. 04 Civ. 7369, 2006 WL 2128785, at *5
(S.D.N.Y. July 28, 2006) (internal citations and quotation marks
omitted).
Electrolux claims that Ms. Rogoff is not qualified to serve as
an expert witness in the appraisal and evaluation of drawings
because she has not maintained an active career doing appraisals.
(Def. Memo. at 6).

To support this argument, the defendant notes

that Ms. Rogoff does not have a website for her appraisal business,
does not advertise, and spends some of her time working at a
veterinary

clinic.

(Def.

Memo.

at

6).

This

“evidence”

is

unpersuasive.
Under the standard outlined above, the plaintiff has met its
burden in establishing that Ms. Rogoff is qualified to testify as
to the value of Mr. Cassini’s artwork and sketches. Ms. Rogoff has
had

significant

training

in

relevant

fields,

including

her

university and graduate degrees and USPAP license.

She is an

active

Appraisers

member

in

a

professional

association,

the

Association of America, and has been involved “in valuing property
of the kind described in this appraisal” for the past several
decades (Expert Report at 3-4, 162-63), significant experience that
is not negated by the lack of an internet presence or the part-time
status of her current appraisal practice (Rogoff Decl., ¶¶ 11, 1314).2

Furthermore,

Ms.

Rogoff

2

testified

that

she

has

done

To the extent the defendant questions Ms. Rogoff’s current
active engagement in art appraisal, that would go to the weight of
her testimony rather than its admissibility. See, e.g., Valentin
13

appraisals “involving members in the fashion industry,” experience
directly relevant to her anticipated testimony in this case.

(Pl.

Memo. at 2; Rogoff Dep. at 24-25). The combination of Ms. Rogoff’s
educational

and

professional

background

and

her

experience

conducting appraisals is sufficient to qualify her as an expert in
this case.

See Davis, 937 F. Supp. 2d at 414; Estate of Mitchell

v. Comissioner of Internal Revenue, 101 T.C.M. 1435, at *12-13
(T.C. 2011) (qualifying experts who were members of the American
Society of Appraisers, USPAP certified, and had experience valuing
American artwork).
B.

Reliability of the Comparative Market Approach

To be admissible, expert testimony must be deemed “the product
of reliable principles and methods” which have been “reliably
applied . . . to the facts of the case.”
Amorgianos, 303 F.3d at 265.

Fed. R. Evid. 702; accord

The factors typically considered to

assess whether testimony is the product of reliable principles or
methods include: (1) whether a theory or technique can be (and has
been)

tested;

(2)

whether

the

theory

or

technique

has

been

subjected to peer review and publication; (3) a technique’s known
or potential rate of error, and the existence and maintenance of
standards controlling the technique’s operation; and (4) whether a
particular technique or theory has gained general acceptance in the
v. New York City, No. 94 CV 3911, 1997 WL 33323099, at *15
(E.D.N.Y. Sept. 9, 1997) (“[W]hile the threshold issue of whether
a particular witness qualifies as an expert is one for the judge to
determine, it is for the jury to decide what weight should be given
to that testimony.
Thus, any challenges to an expert’s skill,
knowledge or credibility go to the weight, not the admissibility of
the testimony.” (citations omitted)).
14

relevant

scientific

community.

Amorgianos,

303

(internal citations and quotation marks omitted).

F.3d

at

266

However, the

reliability inquiry is “fluid and will necessarily vary from case
to case.”

Lynch v. Trek Bicycle Corp., 374 F. App’x 204, 206 (2d

Cir. 2010) (internal quotation marks omitted).
While the defendant argues that “it is not possible to
determine the reliability of [Ms.] Rogoff’s proffered opinions” and
that it is “not possible to test [those] opinions” (Def. Memo. at
9), the focus of its motion is on the application of the appraisal
method to the facts of this case, rather than the method itself.
The defendants do not appear to challenge the comparative market
approach allegedly used by Ms. Rogoff, a technique that has been
accepted by other courts in art appraisal cases. See Davis, 937 F.
Supp. 2d at 415 (“Appraisers . . . rely upon compliance with [ASA
and USPAP] standards, among others, to produce expert art appraisal
opinions

that

reflect

accepted

methodological rigor. . . .

professional

wisdom

and

Whether understood as a scientific

method under Daubert or as a form of specialized knowledge under
Kumho

Tire,

art

appraisal

pursuant

to

these

established

methodologies might be admissible in federal court under Rule
702.”); see also Joseph P. Carroll Ltd. v. Baker, 889 F. Supp. 2d
593, 600-01 (S.D.N.Y. 2012) (describing the market comparison
approach);

Estate

of

Mitchell,

101

T.C.M.

1435,

at

*13-14

(conducting detailed analysis of comparable paintings used by
proposed art appraisal experts under comparative market approach).

15

C.

Relevance of Expert Testimony

Electrolux argues that Ms. Rogoff’s testimony will not assist
the trier of fact because of the lack of supporting facts and data.
(Def. Memo. at 9).

However, as noted by the plaintiff, that

inquiry relates “primarily to relevance.”

Daubert, 509 U.S. at

591. The defendant does not challenge that the artwork’s appraisal
would be directly relevant to the calculation of damages allegedly
resulting from the fire, and that the assistance of an expert may
be

required

to

assess

its

value.

Objections

regarding

the

usefulness of Ms. Rogoff’s testimony and allegedly deficient Expert
Report are better addressed as an issue of reliable application of
accepted methodologies to the facts of this case.
D.

Application of the Methodology

Under Rule 702 of the Federal Rules of Evidence, expert
testimony must be “grounded on sufficient facts or data that ‘is
the product of reliable principles and methods.’”

Arista Records,

608 F. Supp. 2d at 422 (quoting Fed. R. Evid. 702).

As noted

above, the court must conduct a “rigorous examination of the facts
on which the expert relies . . . and how the expert applies the
facts and methods to the case at hand.”

Amorgianos, 303 F.3d at

267. “The grounds for the expert’s opinion merely have to be good,
they do not have to be perfect.” Graham v. Playtex Products, Inc.,
993 F. Supp. 127, 133 (N.D.N.Y. 1998) (internal quotation marks
omitted).

Indeed, experts “need not prove beyond a reasonable

doubt that their conclusions are correct; they need only establish
that they have reasonably applied reliable methods to sufficient
16

facts.” Cedar Petrochemicals, Inc. v. Dongbu Hannong Chemical Co.,
769 F. Supp. 2d 269, 287-88 (S.D.N.Y. 2011).
In this case, the plaintiff has failed to provide sufficient
information

to

examination.3

enable

the

Court

to

conduct

such

a

rigorous

First, the plaintiff has not shown that Ms. Rogoff’s

expert testimony is based on sufficient facts and data.

She

apparently appraised some items that she did not view in person and
others, such as the manuscripts and press books, that seemed to be
beyond her area of expertise and required consultation with other
individuals. (Rogoff Dep. at 66, 68-69, 96-97). Additionally, the
report does not contain any references to the sources and materials
that Ms. Rogoff relied upon in assessing the artwork, nor do her
deposition

or

declaration

provide

any

such

comparative

data.

More problematically, I have no way of assessing whether Ms.
Rogoff’s application of the comparative market data approach to
those facts was reliable. The Expert Report includes photos of the
destroyed artwork and the values assigned to those works, but lacks
any “actual calculations with detailed and complete information
elucidating how the expert arrived at the damage figure.”

Great

White Bear, LLC v. Mervyns, LLC, No. 06 Civ. 13358, 2008 WL
2220662, at *4 (S.D.N.Y. May 2, 2008) (excluding report for failure
to show “how” and “why” expert arrived at conclusions).

Indeed,

the report contains only two terse paragraphs explaining what the

3

The plaintiff notes that the defendant “has not designated
any expert witness to refute the[] values” established by Ms.
Rogoff. (Pl. Memo. at 1). The defendant does not bear any burden
to do so.
17

market comparison approach is, and fails to explain how Ms. Rogoff
applied that approach to the nature and quality of the works she
viewed in order to arrive at the dollar values she assigned to each
piece.

The

report

fails

to

provide

sufficient

information

regarding how Ms. Rogoff compared Mr. Cassini’s sketches to other
similar works in order to ascertain their value -- whether she
looked

at

occurred,

auctions
and

what

or

private

factors

were

sales,

when

considered

comparable
in

sales

selecting

comparable works and how those factors were weighed.

the

See, e.g.,

Davis, 937 F. Supp. 2d at 417 (rejecting expert testimony that
failed to explain how “the full set of [appraisal] factors . . .
interact or how much weight each factor is assigned in [the
damages] calculus”);

Joseph P. Carroll Ltd., 889 F. Supp. 2d at

600 (“In selecting artwork sales for comparison purposes, the
[USPAP] provides that an appraiser should use auction sales only,
if possible, and consider sales that are as close to the effective
date . . . as possible.”); Estate of Mitchell, 101 T.C. M. 1435, at
*12 (“Experts consider several different criteria in valuing art
that are not typically used in general property valuations. These
include thematic appeal, period of work, style, overall quality,
provenance, condition of artwork and market conditions.”).

And

while Ms. Rogoff made passing reference to industry appraisal
standards, she did not provide any insight into how she applied
those standards in this case.
Despite the presumption of admissibility, the plaintiff has
failed to establish that Ms. Rogoff’s expert testimony and report
18

are reliable under Rule 702 of the Federal Rules of Evidence and
the standards set forth in Daubert and Kumho Tire.4

4

Electrolux alleges that Oleg Cassini did not meet its
obligations under Rule 26 to provide an expert report with “a
complete statement of all opinions the witness will express and the
basis and reasons for them” and “the facts or data considered by
the witness in forming [her opinions].”
Fed. R. Civ. P.
26(a)(2)(B); (Def. Memo. at 8).
Oleg Cassini counters that
Electrolux failed to timely object to the report’s sufficiency and
that, in any event, it supplemented the report with additional
background information in February 2014 pursuant to Rule 26(e).
(Pl. Memo. at 5, 7-9).
If an expert fails to disclose information as required by Rule
26, it may be excluded at trial unless the failure to disclose “was
substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
Electrolux did not seek to preclude the Expert Report under Rule
37(c), however, until the end of its reply memorandum. (Reply at
4-5). While the Expert Report clearly falls below the standards
contemplated in Rule 26, see Jinghong Song v. Yao Brothers Group
LP, No. 10 Civ. 4157, 2012 WL 1557372, at *1-2 (S.D.N.Y. May 2,
2012) (rejecting expert report that failed to “adequately identify
the ‘facts or data’ considered by the witness in forming his
opinions”); Loyd v. United States, No. 08 Civ. 9016, 2011 WL
1327043, at *2 n.4 (S.D.N.Y. March 31, 2011) (precluding expert
witness where written report failed to provide “the basis for [the
expert’s] opinion” and “the data considered by [the expert] in
forming his opinion”); Great White Bear, LLC, 2008 WL 2220662, at
*3 (expert report must disclose “complete information elucidating
how the expert arrived at the damage figure”); Ferriso v. Conway
Organization, No. 93 Civ. 7962, 1995 WL 580197, at *2 (S.D.N.Y.
Oct. 3, 1995) (giving significant weight to “the formal
requirements of Rule 26” written expert reports), preclusion is a
“harsh sanction” and is not necessarily the appropriate remedy for
failure to meet the Rule 26 requirements. Sandata Technologies,
Inc. v. Infocrossing, Inc., Nos. 05 Civ. 9546, 06 Civ. 1896, 2007
WL 4157163, at *7 (S.D.N.Y. Nov. 16, 2007); see also Softel, Inc.
v. Dragon Medical & Scientific Communications, Inc., 118 F.3d 995,
961 (2d Cir. 1997).
In any event, because the plaintiff has not provided the
Court, as gatekeeper, with the information necessary to gauge the
reliability of the expert’s opinion, it has failed to meet its
burden of demonstrating admissibility under Rule 702 and Kumho
Tire, and I need not consider whether a violation of Rule
26(a)(2)(B) would also preclude admission of Ms. Rogoff’s testimony
and report.
19

Conclusion
For the reasons discussed, the plaintiff's motion in limine to
exclude the testimony of Phillis Rogoff (Docket no. 62) is granted.
SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Dated: New York, New York
April 15, 2014
Copies mailed this date:
Timothy Boyd Parlin, Esq.
Nicholas A. Vytell, Esq.
Carroll, McNulty & Kull L.L.C.
120 Mountain View Boulevard
Basking Ridge, NJ 07920
Christopher P. Kelly, Esq.
Reppert Kelly & Satriale, LLC
120 Mountain View Boulevard
Basking Ridge, NJ 07920
John P. Freedenberg, Esq.
Goldberg Segella LLP
665 Main Street, Suite 400
Buffalo, New York 14203
Marianne Arcieri, Esq.
Goldberg Segalla LLP
11 Martine Avenue, Suite 750
White Plains, NY 16060

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