Mastro Lawsuit Update

[Eric]

Lack of intent seen in flubs at auctions

BY MICHAEL O'KEEFFE
DAILY NEWS SPORTS WRITER
Sunday, July 15th 2007, 4:00 AM

An Indiana judge ruled last week that while a sports collectibles auction house misrepresented some of the 2,000 autographed photographs it sold to memorabilia dealer Bill Daniels, there was no evidence that Mastro Auctions intended to defraud the collector.

The ruling dealt a blow to Daniels' attempts to hold the hobby's largest auction house accountable for what he claimed were items that were misrepresented or possibly fakes. He had purchased 2,000 photos of athletes from Mastro Auctions in 2004.

Boone County Superior Court Judge Matthew C. Kincaid ordered Mastro Auctions to pay Daniels $9,000 for the photos he purchased that did not match the description in Mastro's December 2004 catalogue. But Kincaid ruled that Daniels presented no evidence that Mastro intended to defraud him, and it's a significantly smaller award than Daniels had hoped for.
Mastro president Doug Allen said he hopes the award will be slashed after an appeal. "I feel this is a big victory for us," Allen said.

Kincaid also ordered Daniels to pay Mastro Auctions $1,000 for making defamatory statements about the Burr Ridge, Ill., company to the media, although the judge declined to impose punitive damages. Daniels was also ordered to pay $2,000 for failing to produce documents during discovery.
Daniels declined to discuss Kincaid's decision. His attorney, S. Andrew Burns, did not return a phone call for comment.

In the lawsuit filed last year, Daniels said he had spent almost $20,000 to win a lot containing more than 2,000 color autographed 8x10 photos of athletes, including pictures of Mickey Mantle, Michael Jordan and Muhammad Ali. But when Daniels received the lot, according to Kincaid's ruling, he found that 123 photos were either black-and-white or smaller than the 8x10 cited in Mastro's catalogue. Daniels also claimed that some of the autographs on the photos may be fakes.

Daniels contacted Mastro Auctions and demanded his money back. Allen said the company offered to take back any photos that were undersized or black-and-white and refund Daniels' money for those pictures. Daniels turned down the deal, and filed his lawsuit.

Both sides presented their evidence to Kincaid in March, but the judge did not issue a ruling until Wednesday.

The testimony of two experts hired by Daniels to testify that some of the autographs on the photos were forgeries was excluded by the judge. Kincaid said neither Richard Simon nor Stephen Koschal "possess sufficient skill, knowledge or experience in the fields in which they were asked to render opinions."

[hblakewolf]

What's also interesting is the judge's comments that the two "experts" hired were not qualified in their field. I'm not an autograph collector, however, who are Richard Simon and Stephen Koschal?

Howard Wolf
hblakewolf@patmedia.net

[hblakewolf]

Here is a link to Richard Simon. According to his web site, he is indeed an expert!
http://richardsimonsports.com/authentication.htm

Howard Wolf
hblakewolf@patmedia.net

[hblakewolf]

And here is Stephen Koschal's site. From the information listed, these folks appear to have extensive experience in the autograph field. Seems odd as to why the judge not allow them to testify?

http://stephenkoschal.com/BIO.htm

Howard Wolf
hblakewolf@patmedia.net

[allstarsplus]

Mastro president Doug Allen said he hopes the award will be slashed after an appeal. "I feel this is a big victory for us," Allen said.

Interesting comments from Doug Allen of Mastro that he sees it as a big victory.

I don't know how much Bill Daniels spent in time, travel, hiring experts, and lawyers fees, etc., but it seems like a BIG LOSS for Bill Daniels.

Most people would have sucked up their losses, and I give Bill credit for pursuing what he thought was right.

In my opinion, it seems to me that the route to pursue would be against the consignor as the auction houses seem to get that extra bit of protection against "intent to defraud" as they were the middle man.

It shows just how difficult "intent to defraud" is to prove and with the exclusion of the 2 experts it made the case even more difficult.

Just some of my thoughts. Andrew

[David]

I don't know the other guy, but Richard Simon is a well known and reputable * VINTAGE * sports autograph expert and dealer. If you ask serious vintage baseball autograph collectors and dealers, most will have heard of him and says he has a good reputation as an expert. The suit was was primarily over the condition of the autographs not the authenticity, and Simon was a witness concerning the condition. The autograph lot was all modern stuff (Michael Jordan, Tiger Woods, etc) and Simon is exclusively vintage autographs. He told the court that he's not an expert on modern autographs, which he isn't.

[David]

I should add that the obvious question is why Simon was called as witness if the autographs are outside his areas of authenticity. He used to work for an art and collectibles appraisal company, his expertise being autographs. I assume he was called as a witness concerning value, damage and how the damage effected the value. The suit, after all, was about $$.

[sammy]

Simon was called as a witness, as was Koschal, because the other five so called "experts" turned Mr. Daniels down. ;)

The consignor of these photos was Zach Rullo, an authenticator at PSA/DNA.

The lot also came with an authentication letter from PSA/DNA. :rolleyes:

[allstarsplus]

I got this in an email tonight:


http://www.mastroauctions.com/images/Mastro-logo.gif (http://www.mastroauctions.com/)


Dear Customer:

As a firm, we have always preferred to handle disputes with professionalism and discretion, even in the infrequent occasion that it is necessary to resolve them in court. Recently, we had what became a very public dispute with a former customer, autograph dealer Bill Daniels. Due to the public nature of this dispute, a number of you have asked about the legitimacy of his claims. Last week, the Honorable Matthew C. Kincaid from the Boone (Indiana) Superior Court issued a 46-page ruling. We thought it appropriate to communicate his findings, and resolution of this dispute, to our customers. Following is a synopsis of the judgment that the Court issued.

The Court found that Daniels’ statements that Mastro Auctions defrauded him, and conspired with PSA/DNA to do so, were defamatory. The Court also found that Daniels “affirmatively sought republication of defamatory statements in national media outlets such as Barron’s and New York Daily News.” In particular, the Court characterized Daniels’ conduct as “picayune, foolish, errant, resultant from a lack of understanding of his rights to publicly declare his complaints outside of a judicial proceeding and overzealous.” As a result, the court held Daniels liable for damages to Mastro Auctions’ reputation in the amount of $1,000.

The Court found that the proposed experts Daniels produced at trial – Richard Simon and Stephen Koschal (whom Daniels had testify that Mastro Auctions sold him forgeries) – were not qualified to render expert opinions. In particular, the Court found that Simon had undergone a “wholesale demolition in his deposition” and that Koschal was “not qualified to render an opinion on anything having to do with autographs.” Simon and Koschal were offered as witnesses after five other proposed experts “all refused to testify on [Daniels’] behalf.”

The Court sanctioned Daniels for his conduct of the litigation during discovery, specifically citing Daniels’ failure to disclose relevant documents timely and to “represent his claimed harm accurately.” As a result, Daniels was fined $2,000.

The Court found that Daniels presented “no evidence” of fraud and that Daniels’ claims that Mastro Auctions defrauded him—and conspired with PSA/DNA to do so--were “false.” The Court entered judgment against Daniels on those claims and awarded no damages.
Daniels was given $608.85 because a small portion of the 2,012 photos Daniels purchased in December 2004 were not as described in the lot description. Mastro Auctions offered to replace those photos shortly after the auction, but Daniels refused.

The only negative of the judgment was that an additional award to Daniels was made on the basis that our catalog stated “LOA from James Spence & Steve Grad / PSA DNA,” but Steve Grad was the only one to physically sign the LOA on behalf of the PSA/DNA team. Our attorneys will ask the judge to reconsider that portion of the ruling.
Overall, Mastro Auctions is very happy with this result. Although it is unfortunate that this dispute had to go all the way to trial, we are pleased that the judge sent what we believe to be a resounding message against Mr. Daniels’ exaggerated claims and conduct of his lawsuit.



Sincerely,


Doug Allen
President
Mastro Auctions

[both-teams-played-hard]

It shows just how difficult "intent to defraud" is to prove and with the exclusion of the 2 experts it made the case even more difficult.


Does anyone know the criteria to be considered an "expert" in a court of law? Sports memorabilia, antiques and art included.

[David]

For autographs, there may be approval processes, but use in a case is at the discretion of the judge. It's up to the judge to accept or dismiss an autograph expert. Many judges are wary of autograph experts.

In other specific areas, an expert can be formally courts approved. This means he or she has been approved by whatever state or district body as an exert in the area. With medical or psychology experts, for examples, they often have been approved by the state as as 'court worthy.'

[sammy]

High Court ruling sides with Forensic Document Examiners as Experts rather than practical experience.

Kumbo Tire Co Ltd v Carmichael, 526 US 137 (1999)

The Supreme Court by an 8–1 ruling told Federal trial judges to screen out dubious testimony by expert witnesses when opinions are not based in science.

The ruling extends to all manners of experts, engineers, psychologists, accountants or handwriting analysts.

Before they are permitted to testify to juries, experts must show that their opinions are based on “scientific principals,” the justices said, not just a hunch based on years of practical experience.

The high court has shown a skepticism toward hired experts.

Six years ago, the Supreme Court said that lower courts should act as “gatekeepers” and to carefully examine testimony by scientific experts. Judges should look beyond scientists’ qualifications and examine the basis of their conclusions.

For years, dealers have served as their own authenticators relying on their experience to render an autograph authentic or not. Their reputation and experience have been readily accepted by collectors, auction houses and other dealers.

Unfortunately, their opinions are not based on “scientific methods”. They do not have a laboratory, they have not apprenticed under anyone trained, and they are not Court Qualified and Board Certified. Their opinions are based solely on their experience.

If a dealer-authenticated autograph is disputed and taken to court, it will not hold up. Unless the dealer used scientific forensic techniques, the dealer will not be allowed to testify because they are not considered experts by the court.

The Federal courts will rely on Court Qualified & Board Certified Forensic Document Examiners as their experts.