Fletcher v. Doig

• Decision Date: 21 July 2016
• Docket Number: 13 C 3270
• Parties: Robert FLETCHER and Bartlow Gallery Ltd., Plaintiffs, v. Peter DOIG, Defendant.
• Court: U.S. District Court — Northern District of Illinois

196 F.Supp.3d 817

Robert FLETCHER and Bartlow Gallery Ltd., Plaintiffs,

v.Peter DOIG, Defendant.

13 C 3270

United States District Court, N.D. Illinois, Eastern Division.

Signed July 21, 2016

William Frederick Zieske, Zieske Law, Crystal Lake, IL, William Frederick Zieske, Zieske Law, Harvard, IL, for Plaintiffs.

Anthony S. Kammer, Matthew Seldin Dontzin, Tibor Ludovico Nagy, Patrick R. McGee, Dontzin Nagy & Fleissig LLP, New York, NY, Suyash Agrawal, Agrawal Evans LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Robert Fletcher and Bartlow Gallery Ltd. brought this diversity suit against Peter Doig, his art dealer, and his attorneys. Doc. 1. The suit concerns a painting ("the Work") owned by Fletcher that, according to Plaintiffs, Doig painted in the mid-1970s. Count I alleges that Defendants committed tortious interference with prospective economic advantage by falsely telling Leslie Hindman Auctioneers that Doig did not paint the Work, with the knowledge that this would lead Hindman to decline to auction it on Plaintiffs' behalf. Id. at ¶¶ 54-62. Count II seeks a declaratory judgment that Doig painted the Work. Id. at ¶¶ 63-68.

The court dismissed Doig's art dealer and attorneys for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), but denied Doig's motion to dismiss for lack of personal jurisdiction and for forum non conveniens. Docs. 74-75 (reported at 125 F.Supp.3d 697 (N.D.Ill.2014) ). After discovery concluded, the court in an oral ruling denied Doig's summary judgment motion. Doc. 198. A bench trial is set for August 8, 2016. Doc. 210. Now before the court is Doig's motion in limine under Federal Rule of Evidence 702 to exclude the testimony of Peter Bartlow and Victor Wiener, whom Plaintiffs offer as expert witnesses. Doc. 212. The motion is denied.

Discussion

Rule 702 provides: "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702 ; see Whole Woman's Health v. Hellerstedt , ––– U.S. ––––, 136 S.Ct. 2292, 2316, 195 L.Ed.2d 665 (2016) ; Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) ; United States v. Hill , 818 F.3d 289, 296 (7th Cir.2016). The district court serves as the "gate-keeper who determines whether proffered expert testimony is reliable and relevant before accepting a witness as an expert," Winters v. Fru – Con Inc. , 498 F.3d 734, 741 (7th Cir.2007) (internal quotation marks omitted), and "has ‘broad latitude’ to determine how to evaluate expert testimony," Hill , 818 F.3d at 297 (quoting Kumho Tire , 526 U.S. at 153, 119 S.Ct. 1167 ). That latitude is particularly broad in a bench trial, where "the usual concerns of [Rule 702 ]—keeping unreliable expert testimony from the jury—are not present." Metavante Corp. v. Emigrant Sav. Bank , 619 F.3d 748, 760 (7th Cir.2010). "The purpose of Daubert [v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ] was to require courts to serve as gatekeepers so that unreliable expert testimony does not carry too much weight with the jury. Judges, on the other hand, are less likely to be swayed by experts with insufficient qualifications." United States v. Ozuna , 561 F.3d 728, 737 (7th Cir.2009) (citation omitted); see also In re Salem , 465 F.3d 767, 777 (7th Cir.2006) ("It is not that evidence may be less reliable during a bench trial; it is that the court's gatekeeping role is necessarily different. Where the gatekeeper and the factfinder are one and the same—that is, the judge—the need to make such decisions prior to hearing the testimony is lessened."). The expert's proponent bears the burden of proving by a preponderance of the evidence that the expert's testimony satisfies Rule 702. See United States v. Saunders , 826 F.3d 363, 368-69, 2016 WL 3213039, at *4 (7th Cir. June 10, 2016) ; Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir.2009).

I. Peter Bartlow

Bartlow prepared a report under Civil Rule 26(a)(2) and was deposed. Doc. 215-2; Doc. 215-4. Bartlow has over four decades of experience in the fine arts world. Doc. 215-2 at 6-7. He earned an undergraduate degree and completed one year of graduate work in art history. Id. at 6. He has worked at an art gallery specializing in the "fine prints of well-known artists," including Pablo Picasso, Joan Miro, and Marc Chagall; as an art dealer responsible for sales of works by those and other major artists; and, since 1991, as the owner of his eponymous gallery, which has fostered his "[c]ontinued specialization" in major modern artists with "an emphasis on finding and promoting artists new to [the Chicago] market." Ibid. Over the course of his career, Bartlow has "authenticated thousands of works by hundreds of artists." Doc. 230-1 at ¶ 13.

Bartlow's report concludes that "[t]here can be no question that the Disputed Painting was painted by the hand of Peter M. Doig, based upon numerous factors," including "several idiosyncratic forms" common to the Work and Doig's acknowledged paintings, the "color and texture of the paint," and purported stylistic similarities so numerous that Bartlow opines that "[t]here are so many Peter Doig elements in this painting that it could be the most typical of all of his works." Id. at 25. Doig argues that Bartlow's knowledge, skill, experience, training, and education do not qualify him as an expert "with Doig's works." Doc. 215 at 12-13. Doig further contends that Bartlow's methodology is unreliable because it was invented for use in this litigation, because the purported common features he cites "are too generic to reliably establish authenticity," and because he "has failed to establish that any of the purported generic features ... are either unique or even common in Doig's works." Id. at 6–8, 14–17. These arguments fail to persuade in the context of a Rule 702 motion.

First, as to expertise, Bartlow's analysis of the Work and his authentication opinion rest primarily on his study of Doig's work and his experience as a gallerist and authenticator of modern art. Doc. 215-2 at 10, 21, 24, 26. "Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness's testimony." Gayton v. McCoy , 593 F.3d 610, 616 (7th Cir.2010) (internal quotation marks omitted). Bartlow's forty years of experience with the authentication and marketing of modern art easily meet this standard.

Doig retorts that Bartlow is unqualified to authenticate the Work because he had no experience with Doig's work prior to this case and because at his deposition he was "unable to answer basic questions about Doig's oeuvre. " Doc. 215 at 13-14; Doc. 235 at 8-9. True enough, the question the court asks under Rule 702"is not whether an expert witness is qualified in general, but whether his qualifications provide a foundation for [him] to answer a specific question." Gayton , 593 F.3d at 617 (internal quotation marks omitted, alteration in original). Yet Bartlow's education and experience give him the foundation necessary to opine on the provenance of a work of modern art based on his analysis of the piece and a comparison with the artist's other acknowledged work. See United States v. Parra, 402 F.3d 752, 758 (7th Cir.2005) ("[W]hile extensive academic and practical expertise in an area is certainly sufficient to qualify a potential witness as an expert, Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience.") (internal quotation marks omitted). The ability to authenticate art, particularly given his experience with modern painting, is essential to Bartlow's professional activities, and he used that skill to prepare his report and reach his opinions. The distinction between Doig's work and that of other painters with whom Bartlow had more experience prior to this case bears on the weight given to his opinions, but does not render them inadmissible. See Gayton , 593 F.3d at 617 (noting that "courts often find that a physician in general practice is competent to testify about problems that a medical specialist typically treats") (collecting cases); Diefenbach v. Sheridan Transp. , 229 F.3d 27, 31 (1st Cir.2000) (affirming the admission of expert testimony on the "docking and undocking" of ships even though the "case concern[ed] an accident" on a type of vessel on which the expert had not served as a crew member); see also Levin v. Dalva Bros., Inc. , 459 F.3d 68, 78 (1st Cir.2006) ("[E]xpert witnesses need not have overly specialized knowledge to offer opinions.").

The decisions cited by Doig, Doc. 215 at 13, do not counsel a different result. In Levin v. Dalva Brothers, Inc. , the First Circuit affirmed a decision barring the testimony of a furniture appraiser as to the origins of an antique clock because the expert "had insufficient experience with Regence-era furniture to authenticate the clock." 459 F.3d at 78–79. By contrast, Bartlow has over forty years of experience with contemporary paintings. Similarly, in United States v. Chang , 207 F.3d 1169 (9th Cir.2000), the Ninth Circuit affirmed a ruling that barred an expert from authenticating a financial instrument because he had expertise in the history of such instruments but no experience authenticating them. Id. at 1172 & n. 2. By contrast, Bartlow has extensive experience authenticating contemporary art. Doc....