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
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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
The Levins point to Dalva's submission of proposed jury 1

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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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"). 
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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 choiceof-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 choiceof-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-ofstate 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 choiceof-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
Dawson was decided under a predecessor version of the current 2

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.

The Levins have not challenged the Dawson gloss as an 3

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).

The Levins waived the argument that the fine art statute did 4

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). 

There is a substantial argument that determining whether the 5

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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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. The Levins contend that this instruction was erroneous 3

because the grandfather clock is not a piece of fine art within the

meaning of the statute. On appeal, the parties treat this issue 4

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."
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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,
The instruction stated: 6

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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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. We review this claim de novo. See Forgie- 6

Buccioni v. Hannaford Bros, Inc., 413 F.3d 175, 178 (1st Cir.
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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
"Authorship" includes statements assigning a work of fine art 7

to a specific period. See N.Y. Cult Affairs Law. § 11.01 (3).

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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." Mem. of the Att'y Gen. 7

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
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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
The Levins also dispute a ruling preventing one of their 8

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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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). While the court likely could have allowed Fallwell 8

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
-22-

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