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Case 1:12-cv-02313-PGG-HBP Document 361 Filed 12/11/15 Page 1 of 19

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF NEW YORK

DOMENICO DE SOLE and ELEANORE DE SOLE,


individually and as assignees of LAURA DE SOLE,

No. 12 Civ. 2313 (PGG)

Plaintiffs,
v.
KNOEDLER GALLERY, LLC D/B/A KNOEDLER &
COMPANY, ANN FREEDMAN, GLAFIRA
ROSALES, JOSE CARLOS BERGANTINOS DIAZ,
MICHAEL HAMMER, 8-31 HOLDINGS, INC., and
JAIME ANDRADE,
Defendants.

PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TO


DEFENDANTS FREEDMAN AND KNOEDLERS MOTION TO EXCLUDE
THE TESTIMONY OF PLAINTIFFS EXPERT DR. ELIN LAKE-EWALD

Dated: December 11, 2015


New York, New York

CLARICK GUERON REISBAUM LLP


Gregory A. Clarick
Emily Reisbaum
Aaron H. Crowell
Sarah Louise Bishop
Courtney L. Milianes
220 Fifth Avenue, 14th Floor
New York, NY 10001
Phone: (212) 633-4310
Fax: (646) 478-9484
Attorneys for Plaintiffs Domenico and
Eleanore De Sole

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Table of Contents
Table of Authorities .....................................................................................................................ii
Preliminary Statement ..................................................................................................................1
Factual Background .....................................................................................................................3
Legal Standard .............................................................................................................................5
Argument .....................................................................................................................................6
I.

Dr. Lake-Ewalds Proposed Testimony Meets All of the Requirements for Expert
Testimony under Rule 702 and Daubert ....................................................................6
A. Dr. Lake-Ewald Possesses Unparalleled and
Unchallenged Qualifications .............................................................................7
B. Dr. Lake-Ewalds Testimony Will Help the Trier of Fact ...................................7
C. Dr. Lake-Ewalds Opinions Are Based on Sufficient Facts and Data .................8
D. Dr. Lake-Ewalds Opinions Are the Product of Reliable
Principles and Methods ........................................................................................9
1. Dr. Lake-Ewald Is No Ones Mouthpiece ............................................10
2. Dr. Lake-Ewald Clearly, Repeatedly, and Consistently Explained
the Role Provenance Plays in an Appraisal .............................................11
3. Dr. Lake-Ewald Did Not Characterize Any Part of Her Own
Methodology as Witchcraft ..................................................................12

II.

Dr. Lake-Ewalds Updating of her Appraisal to the Present Day Was


ProperIndeed RequiredUnder the Federal Rules ...............................................13

Conclusion ...................................................................................................................................15

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Table of Authorities
Cases
Amorgianos v. Natl RR. Passenger Corp.,
303 F.3d 256 (2d Cir. 2002)........................................................................................................ 6
Beller ex rel. Beller v. United States,
221 F.R.D. 689 (D.N.M. 2003) ................................................................................................. 14
Borawick v. Shay,
68 F.3d 597 (2d Cir. 1995).......................................................................................................... 6
Cook v. Rockwell Intl Corp.,
580 F. Supp. 2d 1071 (D. Colo. 2006) ...................................................................................... 14
Davis v. Carroll,
937 F. Supp. 2d 390 (S.D.N.Y. 2013)..................................................................................... 6, 9
Estate of Mitchell v. C.I.R.,
No. 17351-09, 101 T.C.M. 1435 (U.S.T.C. Apr. 28, 2011) ....................................................... 9
Floyd v. City of N.Y.,
861 F. Supp. 2d 274 (S.D.N.Y. 2012)......................................................................................... 6
Joseph P. Carroll Ltd. v. Baker,
889 F. Supp. 2d 593 (S.D.N.Y. 2012)......................................................................................... 9
Hoffman v. L&M Arts,
No. 10 Civ. 953 (N.D. Tex. Dec. 17, 2013) trial transcript, (Dkt. No. 676) ............................... 4
Keener v. United States,
181 F.R.D. 639 (D. Mont. 1998)............................................................................................... 14
Minebea Co. v. Papst,
231 F.R.D. 3 (D.D.C. 2005)...................................................................................................... 14
United States v. Williams,
506 F.3d 151 (2d Cir. 2007)........................................................................................................ 6

ii

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Rules
Fed. R. Civ. P. 26 ............................................................................................................ 2, 5, 13, 14
Fed. R. Evid. 702 ........................................................................................................................ 5, 6
Other Authorities
Uniform Standards of Professional Appraisal Practice 2014-2015 ............................................ 1, 4

iii

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Plaintiffs Domenico and Eleanore De Sole submit this memorandum of law in opposition
to Defendants Ann Freedmans and Knoedler Gallery, LLCs motion to exclude the testimony of
Plaintiffs expert witness Dr. Elin Lake-Ewald (Dkt. Nos. 319 (Notice of Motion) and 320
(Memorandum of Law (Def. Br.))).
Preliminary Statement
Defendants do not challenge the actual methodology that Plaintiffs appraisal expert
Dr. Elin Lake-Ewald used to calculate the hypothetical present-day value of the De Sole
Rothko if it were real. Indeed, that Market Comparison and extraordinary assumption1
analysis is used throughout the art appraisal world and has been routinely accepted by federal,
state, and foreign courtsas, indeed, has Dr. Lake-Ewald herself. Moreover, Defendants
papers seeking to exclude Dr. Lake-Ewalds proposed expert testimony contain so many errors
and misrepresentations that it is difficult to believe they were submitted in good faith.
First, Defendants insist that Dr. Lake-Ewalds appraisal testimony is irrelevant because it
does not relate to Plaintiffs out-of-pocket damages for fraud. This is complete misdirection. In
making the argument, Defendants have overlooked both the existence of Plaintiffs claim for
breach of warranty and the hornbook rule that a contract plaintiff is entitled to prove and recover
damages reflecting the benefit of her bargain. (See infra I.B.)
Second, Defendants insist that Dr. Lake-Ewald did not identify the comparable
artworks upon which her appraisal of the De Sole Work was based. This is flat out false.

A term of art among appraisers, see, e.g., Uniform Standards of Professional Appraisal Practice
2014-2015, Standards Rule 7-2(f) (In developing a personal property appraisal, an appraiser
must . . . identify any extraordinary assumptions necessary in the assignment.), available at
http://www.uspap.org/
1

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Dr. Lake-Ewald specifically identified all of her selected comparables in her report and testified
at deposition about each of them. (See infra I.C.)
Third, Defendants claim that the only aspect of [Dr. Lake-Ewalds] methodology that
[she] could recite was her reliance on the statements of three unnamed art dealers. This is
incredibly and doubly false. Dr. Lake-Ewald testified that she reached her appraised value using
the widely-accepted comparative market approach, described that methodology in detail, and
specifically testified that she did not recall speaking to any market participants about the De Sole
Work. (See infra I.D, I.D.1.)
Fourth, Defendants falsely claim that Dr. Lake-Ewald simply would not answer a
question about the role of provenance in her appraisalwhen in fact she answered that exact
question at least ten times. (See infra I.D.2.)
Fifth, Defendants claim that Dr. Lake-Ewald described part of her methodology as
being like witchcraft. That is not what she said. Rather, she used that word in her description
of how people often speak about the experience of recognizing a high-quality Rothko painting
(as distinguished from a more ordinary Rothko painting). (See infra at I.D.3.)
Finally, Defendants feign outrage at Plaintiffs service of an updated report confirming
that the appraised value of the De Sole Work, had it been authentic, did not change between the
date of Dr. Lake-Ewalds original report and the date for service of pre-trial disclosures. The
best that can be said of this outrage is that it is obviously facetious. An update of exactly this
typeand on this time-frameis not only permitted but required by Rule 26. (See infra II.)
Dr. Lake-Ewald is one of the most distinguished art appraisers in the country. She has
appraised tens of thousands of artworks. She knows the relevant methodology and applies it
rigorously. She has testified numerous times at both trial and deposition, and no court ever has

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excluded or limited her expert testimony. Defendants eagerness to exclude her testimony is
understandable, but their dishonesty in attempting to do so is not. The Court should deny their
motion.
Factual Background
Dr. Elin Lake-Ewald has been the president of OToole-Ewald Art Associates, Inc., one
of the largest art appraisal firms in New York City, since 1982. (Declaration of Dr. Elin LakeEwald (Ewald Decl.) at 1 & Ex. A; Def. Ex. 1 (Ewald Rep.) at 17.) She has been certified
and recertified in the Uniform Standards of Professional Appraisal Practice. (Ewald Decl. 2 &
Ex. A; Ewald Rep. at 17.) She is an elected member of the Royal Institution of Chartered
Surveyors (RICS), the oldest and largest appraisal organization in the world, and served as a
chair of its Arts and Antiques Board in the Americas. (Ewald Decl. 3-4 & Ex. A; see Ewald
Rep. at 17.) She has a masters degree and doctorate from New York University; her PhD
dissertation examined the market between the end of the Second World War and 1993 for
artworks by eight 20th century artists, including four Abstract Expressionistsone of whom was
Mark Rothko. (Ewald Decl. 5-6; see Ewald Rep. at 17; Def. Ex. 2 (Ewald Dep.) at 18:621:16.) She has written and published more than 40 articles about appraising fine art, and has
presented multiple lectures and seminars on the topic. (Ewald Decl. 7; see Ewald Rep. at 2-3,
18-19; Def. Ex. 3 (Ewald Suppl. Rep.) at 2.)
Dr. Lake-Ewald estimates that she has appraised over 100,000 artworks in her career,
including approximately 33,000 works by Abstract Expressionist artists. (Ewald Decl. 9; see
Ewald Dep. at 39:21-40:13.) She has served as an advisor to the New York Attorney General,
the New York and Westchester district attorneys, the FBI, the US Army Corps of Engineers, and
the government of Canada. (Ewald Decl. 8; Ewald Rep. at 19.) Over the past thirty years she

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has testified approximately 30 times, for both plaintiffs and defendants, in depositions, at
hearings, and at trial, in civil and criminal cases in multiple states and in Canada. (Ewald Decl.
11 & Ex. B.) No court ever has excluded Dr. Lake-Ewalds opinion testimony or found that
she was not qualified to serve as an expert witness. (Ewald Decl. 12; see Ewald Dep. at 97:416.) She has appraised at least twelve major works by Mark Rothko, and has testified about
works by him at least three times, most recently at a federal trial in the Northern District of
Texas. (Ewald Decl. Ex. B; Ewald Dep. at 41:3-24; see Transcript of Trial at 158-200, Hoffman
v. L&M Arts, No. 10 Civ. 953 (N.D. Tex. Dec. 17, 2013) (Dkt. No. 676).)
To arrive at her appraisal of the present value of the De Sole Work had it been real,2
Dr. Lake-Ewald and her team followed the industry-standard Market Comparison approach
using an extraordinary assumption (see Ewald Rep. at 7; see, e.g., Ewald Dep. at 56:19-61:6
(testifying concerning article she wrote about market comparison approach and researching
appropriate comparables), 47:4-50:22 (explaining some complexities of the market comparison
approach); see also Uniform Standards of Professional Appraisal Practice 2014-2015, Standards
Rules 7-2(f) (extraordinary assumption), 7-4(a) (sales comparison approach), available at
http://www.uspap.org/)):

They inspected the Work personally and in detail (Ewald Rep. at 4; see Ewald
Dep. at 75:16-77:22);

They researched and reviewed information relating to the fine art market in
general and the market for Abstract Expressionist works in particular (Ewald Rep.
at 7-9; see Ewald Dep. at 51:23-53:10, 223:4-224:14 (discussing market for
Rothko works in 2012-2013);

Dr. Lake-Ewalds May 2013 report included three opinions about each of the De Sole and
Howard Works. Given the settlement of the Howard case and to streamline trial in this case, the
De Soles intend to offer Dr. Lake-Ewalds testimony only regarding the present value of the
De Sole Work had it been authentic.
4

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They researched recent public auctions and private sales to identify sales of
comparable works (Ewald Rep. at 5, 7, 14-15; see Ewald Dep. at 57:23-61:6
(explaining, in context of De Kooning sold to John Howard, importance of
locating similar comparables)); and

They considered the comparables size, period, composition, coloration, quality,


and condition, as well as market conditions at the time of the sale (Ewald Rep. at
14-15; see, e.g., Ewald Dep. at 51:10-54:3; id. at 60:8-61:4 (explaining
significance of coloration); id. at 67:24-68:12 (explaining significance of quality
and darkness or lightness); 72:3-74:8 (explaining the significance of condition);
204:12-206:14 (discussing Rothko comparables).

Based on her analysis, Dr. Lake-Ewald concluded that as of May 15, 2013, if the De Sole Work
had been authentic it would have been worth $25 million. (Ewald Rep. at 14.)
Defendants deposed Dr. Lake-Ewald for a full day on May 13, 2014. Over hours of
testimony, she repeatedly and clearly explained her inputs, her methodology, and her
conclusions. (See supra.)
In November 2015, consistent with the De Soles obligations pursuant to Rule 26, Dr.
Lake-Ewald prepared an update to her report to account for changes in the market and sales of
comparable works that occurred after the date of her original report. See Fed. R. Civ. P. 26(e)(2)
(requiring updates to information disclosed in expert report and deposition by the time the
partys pretrial disclosures . . . are due). In that supplemental report, Dr. Lake-Ewald concluded
that the De Sole Works value (if it were authentic) would still be $25 million as of November
17, 2015. (See Ewald Suppl. Rep. at 4-6, 9-17.)
Legal Standard
Under Rule 702 of the Federal Rules of Evidence, a witness 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
5

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reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702; see also
Amorgianos v. Natl RR. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002); Davis v. Carroll,
937 F. Supp. 2d 390, 412 (S.D.N.Y. 2013).
The proponent of expert testimony must establish its reliability and admissibility under
Rule 702 by a preponderance of the evidence. See United States v. Williams, 506 F.3d 151, 160
(2d Cir. 2007). Expert evidence is presumed to be admissible, 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 committees note; accord Floyd v. City of N.Y., 861 F. Supp. 2d 274,
287 (S.D.N.Y. 2012).
Argument
Dr. Lake-Ewalds proposed testimony meets all of the criteria under Rule 702 and
Daubert, because Dr. Lake-Ewald is supremely qualified to give that testimony, because it will
help the jury understand the present value of the De Sole Work if it were real, and because it is
based upon reliable application of a reliable methodology. Each of Defendants attacks on Dr.
Lake-Ewalds testimony is wrong. And, her supplemental report is entirely proper.
I.

DR. LAKE-EWALDS PROPOSED TESTIMONY MEETS ALL OF THE


REQUIREMENTS FOR EXPERT TESTIMONY UNDER RULE 702 AND
DAUBERT
Defendants do not undertake any systematic review of the standard for admissibility of

expert testimonylikely because there is no colorable challenge to the propriety of Dr. LakeEwalds testimony. A straightforward consideration of the relevant factors establishes that she
should be permitted to testify.
A.

Dr. Lake-Ewald Possesses Unparalleledand UnchallengedQualifications

Dr. Lake-Ewalds impressive credentials and long experience are set forth (in part)
above. (See supra; Ewald Decl. 1-10 & Ex. A.) Even Defendants do not suggest that
6

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Dr. Lake-Ewald lacks the knowledge, skill, experience, training, or education required by Rule
702nor could they. She is clearly qualified to testify as an expert concerning the appraisal of
the De Sole Work.
B.

Dr. Lake-Ewalds Testimony Will Help the Trier of Fact

To calculate Plaintiffs benefit of the bargain damages under their breach of warranty
claim, the jury will need to determine what the De Sole Work would have been worth today if it
were real. As a highly-qualified art appraiser with extensive experience appraising Abstract
Expressionist art and with specific experience appraising paintings by Mark Rothko, Dr. LakeEwald is well positioned to assist the jury in that inquiry.
Defendants raise two challenges to the relevance of Dr. Lake-Ewalds proposed
testimony (and thus implicitly its potential helpfulness to the jury). First, they assert that the
testimony is irrelevant to the calculation of damages under the De Soles fraud and RICO causes
of action. (Def. Br. at 11-13.) Second, they contend that the testimony is irrelevant because
Dr. Lake-Ewald assumes for purposes of her analysis that the De Sole Work was fully
authenticated. (Id. at 9-10.) Both are wrong.
In arguing that Dr. Lake-Ewalds testimony is irrelevant because Plaintiffs cannot recover
the present value of the De Sole Work on their fraud claims (id. at 11-13), Defendants simply
ignore the fact that the De Soles can recover present value on their breach of warranty claim.
This issue was fully briefed in the De Soles Pre-Trial Memorandum of Law, section IV.D,
which the De Soles incorporate by reference herein. Dr. Lake-Ewalds testimony is relevant
indeed, centralto the De Soles damages theory on their breach of warranty claim. There is no
basis to exclude her testimony on relevance grounds.
Defendants fare no better arguing that Dr. Lake-Ewalds proposed testimony lacks
relevance because it assumes a hypothetical world in which the De Sole Work had been
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authenticated and was accepted by the market as a work by the hand of the artist. (Def. Br. at
9-10; Ewald Rep. at 4; Ewald Dep. at 106:23-107:3, 109:5-21.) This argument is untenable,
because this is exactly what the jury needs to determine: what would the De Sole Work be worth
today if it were real. Put another way, Dr. Lake-Ewald was asked to assume for her Report (and
will assume for purposes of her testimony) exactly what Freedman and Knoedler told the
De Soles in person and guaranteed in writingthat the Work was by the hand of the artist, had
been authenticated by multiple experts, and would be included in an update to the Rothko
catalogue raisonn. Defendants related assertion that Dr. Lake-Ewalds testimony is irrelevant
because when it was sold . . . the works provenance was known to be incomplete (Def. Br. at
1) is frankly bizarre. While Freedman and Knoedler knew that the Works provenance was
incomplete (to put it mildly) when they sold it, the De Soles, of course, had no idea. In sum,
Dr. Lake-Ewald will testify about what the De Sole Work would be worth if the falsities
Freedman and Knoedler warranted actually had been truea clearly relevant opinion.
C.

Dr. Lake-Ewalds Opinions Are Based on Sufficient Facts and Data

Dr. Lake-Ewalds expert opinion concerning the present value of the De Sole Work is
based on exactly the type of data that is always used in a Market Comparison appraisal. That
is, it is based on the public estimates and actual sales prices of carefully-selected comparable
artworks.
Defendants know this. The comparables that Dr. Lake-Ewald used in her analysis are
specifically disclosed on pages 14 and 15 of her May 2013 expert report. (Ewald Rep. at 14-15
(listing works and citing sources).) Moreover, Defendants questioned Dr. Lake-Ewald at length
about them during her deposition. (See, e.g., Ewald Dep. at 225:3-229:12.)
In this context, it is frankly astonishing that Defendants now represent to the Court that
Dr. Lake-Ewald did not identify the comparables she used in her analysis. (Def. Br. at 1.)
8

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This assertion appears to be the only challenge Defendants have mustered to the facts and data
underlying Dr. Lake-Ewalds opinionand it is so obviously untrue that Plaintiffs can only
construe it as a drafting error. Regardless, the Court should ignore it.
D.

Dr. Lake-Ewalds Opinions Are the Product of Reliable Principles and


Methods

Defendants do not challenge the propriety of the comparative market analysis


methodology Dr. Lake-Ewald actually used. Indeed, that approach has repeatedly been accepted
by courts in cases calling for art appraisal. See, e.g., Joseph P. Carroll Ltd. v. Baker, 889 F.
Supp. 2d 593, 600-01 (S.D.N.Y. 2012) (describing appraisal experts use of the market
comparison approach); Estate of Mitchell v. C.I.R., No. 17351-09, 101 T.C.M. 1435, at *12-14
(U.S.T.C. Apr. 28, 2011) (same); Davis, 937 F. Supp. 2d at 415 ([A]rt appraisal is a
professional field governed by norms of expert practice. . . . [A]ppraisers . . . rely upon
compliance with [ASA and USPAP] standards, among others, to produce expert art appraisal
opinions that reflect accepted professional wisdom and methodological rigor.).
The reality, as Dr. Lake-Ewald set forth in her Report and described in detail at her
deposition, is that she properly and assiduously applied the comparative market analysis
methodology to her appraisal of the De Sole Work, just as she has done tens of thousands of
times in the past. (See, e.g., Ewald Dep. at 48:14-54:3, 204:12-206:14, 222:3-229:12, 239:23241:19.) Defendants do not confront her actual application of the methodology. Instead, they
mischaracterize her testimony in an effort to invent three peripheral issues. Even if these
accusations were true, they would go at the most to the weight to be accorded Dr. Lake-Ewalds
testimony. And they are not truethey are willful misstatements of the record.

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1.

Dr. Lake-Ewald Is No Ones Mouthpiece

Defendants claim that Dr. Lake-Ewald is merely parroting the assessments of art dealers
to whom she spoke (Def. Br. at 3-5, 8-9) is simply untrue. Indeed, it grossly misrepresents her
testimony.
As Dr. Lake-Ewald testified repeatedly at her deposition, she never relies on any other
persons valuation of a work that she is appraising, and did not do so here. (Ewald Dep. at
88:17-21, 92:9-93:3.) Dr. Lake-Ewald did explain that she and her colleagues do at times, after
they have come up with a value for a work, engage in a sort of market-check by mentioning that
value in casual conversation to other market participants, to see if the person they are speaking to
has any negative reactions or comments. (Id. at 84:13-85:7; 89:16-20; 93:16-94:18; see Ewald
Decl. 13-14.) Dr. Lake-Ewald enforces a strict rule at her firm to never discuss an appraisal
with any outside source before having come up with an independent valuation of the work at
issue. (Ewald Decl. 13; see Ewald Dep. at 84:20-85:7 (I will make my colleagues, and I will
do the same, come up with a value, thats a rule in our office, you come up with a value, and then
if you want to [talk to an outside source], you can do it then. But never ask anyone for a
value.).)
Dr. Lake-Ewald explicitly testified that in this case, consistent with her usual practices,
she performed her own appraisal of the De Sole and Howard Works. (Ewald Dep. at 85:5-7; see
id. at 88:17-21 (I always come up with my own values . . . .); Ewald Decl. 15.) She also
testified that she could specifically recall only one discussion of her appraisals in this case with
any market participant, and that conversation concerned only the Howard Work. (Ewald Dep. at
93:12-95:7; see Ewald Decl. 16.)
Given Dr. Lake-Ewalds unequivocal testimony that she always determines her appraised
value before discussing it with any market participant and that she cannot even recall discussing
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her appraised value for the De Sole Work with any market participant, Defendants accusation
that her opinion consists of parroting others opinions cannot be taken seriously.
2.

Dr. Lake-Ewald Clearly, Repeatedly, and Consistently Explained the


Role Provenance Plays in an Appraisal

Defendants assert that at her deposition, Dr. Lake-Ewald simply would not answer the
question of how provenance factored into her methodology. (Def. Br. at 6.) This is not true.
Dr. Lake-Ewald answered this question during her deposition more than ten times.
To begin with, very shortly after the passage Defendants quote in their brief, where
Dr. Lake-Ewald was plainly struggling to understand counsels implausible hypothetical
question, she testified explicitly that an exceptional provenance might increase the appraised
value of a work. (Ewald Dep. at 70:21-72:2; see id. at 64:5-19, 65:16-69:15.) She explained,
however, that she did not make provenance-based adjustments to the prices drawn from her
selected comparables in this particular casebecause provenance bears primarily on the
question of authenticity, and her analysis for this lawsuit required her to assume that the De Sole
Work was fully authenticated. (Id. at 65:16-66:16; see 165:19-166:20 (explaining that taking
into account provenance of comparables would have skewed the appraisal because Report
required her to presume that works were accepted as authentic); see also id. at 70:25-71:3 (noting
that if comparable had very little provenance, I would wonder why it hadnt been exhibited,
why it hadnt been written about); id. at 267:16-21 (noting that analysis of provenance is part
of the authenticity process).)
Defendants counsel then asked Dr. Lake-Ewald ten times whether she adjusted her
appraisal based on the fact that each comparables provenance was different from that of the
De Sole and Howard Works; each time, she answered (again) that she did not adjust her
appraisal for this case based on differences in the provenances. (Id. at 127:18-22; 154:2411

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155:10, 159:11-17; 165:10-22; 190:17-191:4; 194:10-12; 198:24-199:5; 202:22-203:8; 211:9-12;


217:22-218:3.) Defendants counsel did not protest that any of these answers was nonresponsive.
To claim that Dr. Lake-Ewald refused to answer a question that she actually answered
more than ten times is shockingly disingenuous. More importantly, for present purposes,
Dr. Lake-Ewalds treatment of the provenance of her identified comparable works was wholly
appropriateand, even if it were not, that circumstance would bear, at most, on the weight to be
accorded her testimony.
3.

Dr. Lake-Ewald Did Not Characterize Any Part of Her Methodology


as Witchcraft

In what can only be described as an unsuccessful gotcha argument, Defendants pretend


that Dr. Lake-Ewald described part of her methodology as like witchcraft. (Def. Br. at 1, 7.)
But that is not what she said.
In the portion of her testimony that Defendants reference, Dr. Lake-Ewald was asked to
explain whether, if the De Sole Work had been real, she would have considered it to be a
mediocre example [of a Rothko] or an unusual and rare example. (Ewald Dep. at 287:15-19.)
Dr. Lake-Ewald responded that, based on her broad knowledge of the market for Rothko works
and experience appraising them, the De Sole Work, had it been authentic, would have been
mid-level in terms of quality and desirability. (Id. at 287:24-288:3.) She noted that the
De Sole Work was flat and would not have qualified as a great workand she elaborated that
a great Rothko work has a certain kind of feeling, a lightness, and what people call
transcendence . . . . Its almost as if at his best . . . even his blacks kind of lift up, rise up off [the
canvas]. . . . Its a certain weird combination of colors . . . in a really good one, they vibrate.
(Id. at 288:11-289:11; see id. at 291:3-13 (explaining what she means by a mid-level Rothko
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work).) It was this sense of vibrancy in Rothkos greatest works that Dr. Lake-Ewald said
sounds like witchcraft (id. at 288:13), not any part of her methodology.
Dr. Lake-Ewald has been appraising art for decades. She is not practicing witchcraft,
and she did not remotely suggest that she was. Defendants argument is a cheap shot, and it
should not be countenanced.
II.

Dr. Lake-Ewalds Updating of her Appraisal to the Present Day Was


ProperIndeed RequiredUnder the Federal Rules

Defendants protests regarding Dr. Lake-Ewalds Supplemental Report are not well
taken. The Federal Rules of Civil Procedure require that an expert must update her report before
trial in the event of any changes in the information disclosed in her initial report or deposition,
see Fed. R. Civ. P. 26(a)(2)(E), 26(e)and Dr. Lake-Ewald did exactly that.
Here, the Court denied summary judgment on September 30, 2015, and ultimately
required that the parties exchange pre-trial disclosures by November 24. As soon as the pre-trial
schedule was established, Plaintiffs promptly asked Dr. Lake-Ewald to update her report. She
did so, and Plaintiffs served it in strict compliance with Rule 26(e) (requiring supplemental
disclosure by partys expert by the time the partys pretrial disclosures under Rule 26(a)(3) are
due).
Dr. Lake-Ewalds Supplemental Report was appropriate because the art market changes
over time, and almost two and a half years had elapsed between Dr. Lake-Ewalds original
appraisal and the present day. During that time, it was reasonable for Plaintiffs to believe that
the value of a hypothetical authentic version of the De Sole Work might have changed. In any
event, it is plainly true that many sales of Rothko works have occurred, some of which might
constitute appropriate comparables for purposes of Dr. Lake-Ewalds appraisal. It should have

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come as no surprise to Defendants that an opinion of present value written in May 2013 would
need to be updated for purposes of a trial to be held in January 2016.
Indeed, the very case law Defendants cite in fact demonstrates the propriety of Dr. LakeEwalds Supplemental Report here. The cases they cite all describe the quite different
circumstance where a party attempts to smuggle into evidence in the guise of a Rule 26(a)(2)(E)
supplement a new expert disclosure based on information that was readily available to the
expert witness when preparing his or her original reportbut which the expert initially failed to
disclose. See Minebea Co. v. Papst, 231 F.R.D. 3, 6 (D.D.C. 2005) (excluding some portions of
supplemental report but allowing others, and noting that Rule 26(e) permits supplemental
reports . . . for the narrow purpose of . . . adding information that was not available at the time of
the initial report); Cook v. Rockwell Intl Corp., 580 F. Supp. 2d 1071, 1169-70 (D. Colo. 2006)
(noting that Rule 26 permits, indeed requires, that an expert supplement his report and
disclosures in certain limited circumstances (emphasis added); excluding supplemental
disclosure because it offers new or expanded opinions and discussion based largely on
information that was available at the time of [the experts] initial disclosures); Beller ex rel.
Beller v. United States, 221 F.R.D. 689, 691 (D.N.M. 2003) (noting that side-by-side
comparison of the original and supplemental report . . . demonstrates that the second report is not
simply a supplement to the first); Keener v. United States, 181 F.R.D. 639, 640 (D. Mont. 1998)
(limiting expert testimony to opinions expressed in original report where partys supposedly
supplemental report in fact set forth . . . the information, reasoning, and opinions that were
required to be set forth in initial report). That tactic would indeed be improperbut that is not
what happened here.

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