Bombardiere v. Schlumberger Technology Corp.

934 F. Supp. 2d 843, 90 Fed. R. Serv. 859, 2013 WL 588940, 2013 U.S. Dist. LEXIS 19451
CourtDistrict Court, N.D. West Virginia
DecidedFebruary 13, 2013
DocketCivil Action No. 1:11-CV-50
StatusPublished
Cited by2 cases

This text of 934 F. Supp. 2d 843 (Bombardiere v. Schlumberger Technology Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. West Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bombardiere v. Schlumberger Technology Corp., 934 F. Supp. 2d 843, 90 Fed. R. Serv. 859, 2013 WL 588940, 2013 U.S. Dist. LEXIS 19451 (N.D.W. Va. 2013).

Opinion

ORDER RULING ON MOTIONS

JOHN PRESTON BAILEY, Chief Judge.

Pending before this Court are, inter alia, Defendants’ Motion in Limine to Exclude the Report and Testimony of Richard Lipsey, PH.D. (Docs. 216 & 221), Defendants’ Motion in Limine to Preclude Evidence of Plaintiffs Alleged Exposure to Corrosion Inhibitor A261 (Docs. 217 & 223), Defendants’ Motion in Limine to Preclude Evidence that Plaintiff Should Be Medically Monitored for Life and Motion to Strike Prayer for Medical Monitoring Costs (Doc. 218), Defendant’s Motion in [845]*845Limine No. 2, Motion of Defendant, SOS Staffing Services, Inc., to Preclude All Evidence that Plaintiff Should be Medically Monitored for Life and Motion to Strike Prayer for Medical Monitoring Costs (Doc. 213) and Defendant’s Motion in Limine No. 3, Motion of Defendant, SOS Staffing Services, Inc. Regarding Plaintiffs Alleged Exposure to Corrosion Inhibitor A261 (also Doc. 213). All Motions have been fully briefed. In addition, on February 4, 2013, this Court held a Daubert hearing concerning the testimony and report of Dr. Lipsey.

I. Motions to Exclude Dr. Lipsey

The admissibility of expert opinion testimony is governed by Federal Rule of Evidence 702, which 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.

The rules applicable to determining whether expert testimony should be admitted

are set forth in Westberry v. Gislaved Gummi AB, 178 F.3d 257 (4th Cir.1999): Expert testimony is admissible under Rule 702, then, if it concerns (1) scientific, technical, or other specialized knowledge that (2) will aid the jury or other trier of fact to understand or resolve a fact at issue. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The first prong of this inquiry necessitates an examination of whether the reasoning or methodology underlying the expert’s proffered opinion is reliable— that is, whether it is supported by adequate validation to render it trustworthy. See id. at 590 & n. 9, 113 S.Ct. 2786. The second prong of the inquiry requires an analysis of whether the opinion is relevant to the facts at issue. See id. at 591-92, 113 S.Ct. 2786. Thus, an expert’s testimony is admissible under Rule 702 if it “rests on a rehable foundation and is relevant.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (internal quotation marks omitted). ' '
A district court considering the admissibility of expert testimony exercises a gate keeping function to assess whether the proffered evidence is sufficiently reliable and relevant. See id. at 1174. The inquiry to be undertaken by the district court is “a flexible one” focusing on the “principles and methodology” employed by the expert, not on the conclusions reached. Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. In making its initial determination of whether proffered testimony is sufficiently reliable, the court has broad latitude to consider whatéver factors bearing on validity that the court finds to be useful; the particular factors will depend upon the unique circumstances of the expert testimony involved. See Kumho Tire Co., 119 S.Ct. at 1175-76 (footnote ' omitted). The court, however, should be conscious of two guiding, and sometimes competing, principles. On the one hand, the court should be mindful that Rule 702 was intended to liberalize the introduction of relevant expert ■ evidence. See Cavallo v. Star Enter., 100 F.3d 1150, 1158-59 (4th Cir.1996). And, the court need not determine that the expert testi[846]*846mony a litigant seeks to offer into evidence is irrefutable or certainly correct. See id. As with all other admissible evidence, expert testimony is subject to being tested by “[vigorous cross-examination, presentation of contrary evidence, and. careful instruction on the burden of proof.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. On the other hand, the court must recognize that due to the difficulty of evaluating their testimony, expert witnesses have the potential to “be both powerful and quite misleading.” Id. at 595, 113 S.Ct. 2786 (internal quotation marks omitted). And, given the potential persuasiveness of expert testimony, proffered evidence that has a greater potential to mislead than to enlighten should be excluded. See United States v. Dorsey, 45 F.3d 809, 815-16 (4th Cir.1995).

178 F.3d at 260-61.

The- first issue which must be addressed is whether Dr. Lipsey is “qualified as an expert by knowledge, skill, experience, training, or education” to render the opinions which he has proffered. “Under Rule 702, to be ‘qualified’ as an expert, a witness must have ‘knowledge, skill, experience, training, or education’ in the subject area in which he intends to testify. Fed.R.Evid. 702. An expert’s qualification depends on ‘the nature of the opinion he offers.’ See Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052 (4th Cir.1984).” Foster v. Legal Sea Foods, Inc., 2008 WL 2945561 (D.Md. July 25, 2008).

This Court has serious reservations concerning Dr. Lipsey’s qualifications and his apparent tendency to overstate those qualifications. While in his report (Doc. 221-2, p. 103), Dr. Lipsey states that he has a Ph.D. from the University of Illinois in toxicology, in fact his Ph.D. is in entomology. While he claims that Illinois did not have a toxicology department and that his degree is actually in toxicology, his doctoral program transcript discloses that he did not take a single course in toxicology. (Doc. 269-2, p. 13). He states that he took one course in his master’s degree program that was titled toxicology.

This Court also notes a progression in his curriculum vitae (“CV”). Dr. Lipsey’s CV from 1976 states that he obtained a Ph.D. in 1972 “in entomology with a minor in botany (plant ecology).” (Doc. 221-3, p. 23).

His CV from 1988, states that he obtained a Ph.D. in Environmental Toxicology/Entomology (Doc. 221-3, p. 27). In Í990, Dr. Lipsey’s CV also lists a Ph.D. in Environmental Toxicology/Entomology (Doc. 221-3, p. 35). His 1996 CV lists a Ph.D. in Toxicology (Doc. 221-3, p. 39).

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934 F. Supp. 2d 843, 90 Fed. R. Serv. 859, 2013 WL 588940, 2013 U.S. Dist. LEXIS 19451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bombardiere-v-schlumberger-technology-corp-wvnd-2013.