Sketches by late fashion designer Oleg Cassini. Other such drawings and artwork by Cassini were damaged in a fire at his mansion that was allegedly caused by a defective dryer. ()
A proposed expert in a dryer fire case won’t be able to testify about the value of damaged and destroyed sketches, drawings and other artwork by the late fashion designer Oleg Cassini.
A federal magistrate judge held there was a lack of supporting facts and data for the report by the expert, who herself lost research materials during Hurricane Sandy, to testify for the designer’s company as it seeks to recover damages from dryer manufacturer Electrolux.
Two years after his death, Cassini’s Oyster Bay Cove mansion was extensively damaged in a 2008 fire allegedly triggered by the defectively designed dryer—a Frigidaire Gallery Supreme Series GSEQ642AS.
Among the damages alleged in Cassini v. Electrolux Home Products, Inc., 11 Civ. 1237, was more than $233,360 worth of sketches, drawings and artwork that had been stored in the mansion’s basement.
In 2010, prior to filing suit, Oleg Cassini Inc. retained professional appraiser Phillis Rogoff to examine and assess the value of the artwork. Rogoff produced a report that included her qualifications, 150 pages of photos of the damaged work and a short narrative analysis of Cassini and his art, including fashion sketches, hand paintings, room renderings and furniture designs. As part of her appraisal, Rogoff found the “majority” of the pieces unsalvageable.
But on Tuesday, Magistrate Judge James Francis (See Profile) granted a motion in limine for Electrolux in advance of trial in the case before Judge Lorna Schofield (See Profile). Francis said the photos weren’t labeled “nor are they correlated or indexed in any way to the numbered items in the appraisal report.”
During a deposition, Rogoff was asked to discuss the methodology she used to assign value to the artwork, and she answered that it was “based on comparable items of property of a similar kind, quality and condition.”
Francis found the explanation wanting.
“[T]he 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,” Francis said.
Rogoff also could not remember at deposition what sources or comparisons, explaining there was not a “general market for the type of sketches” at issue, and she could not think of another designer with Cassini’s “notoriety of his genre, of his era.”
The judge also faulted Rogoff for relying, in some instances, solely on photographs of the damaged items.
A further problem emerged at the deposition when Rogoff relied only on her report and did not furnish underlying materials that the Electrolux attorneys requested.
She explained that her supporting data had been destroyed by flooding during Hurricane Sandy and that digital recovery efforts were unsuccessful. She also said she could replace or recreate the original research, which the judge said she did in February.
In evaluating her as an expert witness under Rule 702 of the Federal Rules of Evidence, Francis first rejected an argument by Electrolux that Rogoff did not qualify as an expert because she has not maintained an active career doing appraisals.
Francis found Rogoff has “significant trainingin relevant fields,” is an active member of the Appraisers Association of America and has been valuing property of the kind at issue in the litigation for decades. The judge also found her testimony relevant to the case.
But Francis rejected the offered testimony after applying the methodology.
“She apparently appraised some items that she did not view in person and others, such as manuscripts and press books, that seemed beyond her expertise and required consultation with other individuals,” he said. “Additionally, the report does not contain any references to the sources and materials that Ms. Rogoff relied upon in assessing her artwork, nor do her deposition or declaration provide any such comparative data.”
And the judge, in excluding her testimony, said, “More problematically, I have no way of assessing whether Ms. Rogoff’s application of the comparative market data approach to these face was reliable.”
John Freedenberg of Goldberg Segalla in Buffalo represents Electrolux.
J. Vincent Reppert of Reppert Kelly and Nicholas Vytell of Carroll McNulty & Kull represent Oleg Cassini, Inc.
Both sides declined comment.