The court, in BOMBARDIERE v. SCHLUMBERGER TECHNOLOGY CORPORATION, Dist. Court, ND West Virginia 2013, dealt with the proposed expert testimony of a “toxicologist.”
The court excluded his testimony in part due to his lack of candor on his CV and also his methodology. The court stated:
This Court has serious reservations concerning Dr. X’s qualifications and his apparent tendency to overstate those qualifications. While in his report (Doc. 221-2, p. 103), Dr. X 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 vita (“CV”). Dr. X’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 1990, Dr. X’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). His 2012 CV lists a Ph.D. in Toxicology Fungicide poisoning (Entomology Department) (Doc. 221-3, p. 18). At the Daubert hearing, his doctorate was in “fungicide toxicology.”
A review of his current CV discloses that most of Dr. X’s work has involved pesticides, fungicides, and herbicides.
In his report in this case, Dr. X states that “I have been testifying as an expert witness in state and federal courts nationwide since 1976 and have always passed Daubert and Frye hearings as an expert, when present at the hearings, and always giving (sic) solid scientific opinions based of (sic) good science.” (Doc. 221-2, p. 103). This is misleading, since he has been excluded on Daubert grounds on several occasions. Apparently, the phrase “when present at the hearings” was added in response to the Judge Simon’s opinion in Aurand v. Norfolk & Southern Railway Co., 802 F.Supp.2d 950 (N.D. Ind. 2011). In Aurand, the Court stated:
Dr. X sets out the basis for his claimed expertise in his report. It notes, among other things, that he has a Ph.D. in toxicology, that he was a professor of toxicology, that he consulted in toxicology for the EPA and the Department of Agriculture, and that he is a member of the Society of Toxicology and the American College of Toxicology. DE 71-2, p. 2. Norfolk Southern raises some legitimate questions concerning Dr. X’s qualifications and expertise as a toxicologist. DE 71, p. 22. But more troubling is Dr. X’s claim that he has been acting as an expert witness since 1976 and has “always passed Daubert and Frye hearings as an expert with solid scientific opinions based of (sic) good science.” X’s Report of August 19, 2009, DE 71-2, p. 2. But this simply isn’t so. Norfolk Southern points me to four instances where Dr. X’s opinion testimony has been rejected, and the plaintiffs make no reply to these assertions. DE 71, pp. 23-24. And most glaringly, while rejecting Dr. X as an expert witness, one district judge in Florida excoriated him:
[T]his is the worst example that I have seen in my 15 years experience in the courts as a judge demonstrating what’s wrong with expert testimony in our courts of law. It’s obvious you can get a Ph.D. to say anything, and this one is prepared to say anything, gratuitous or otherwise … It’s just sheerly his opinion — and I do put that in quotes because, in my opinion, it’s absolutely pure and simple, unadulterated speculation, guesswork, just blown-in. There’s no scientific basis for any opinion that he has rendered, and I would consider him to be a false expert; and, therefore he will not be permitted in this court, unless the Eleventh Circuit directs otherwise. Williams v. Orkin Exterminating Co., Cause No. 3:95CV30511-LC, DE 275, pp. 55-56.
Similarly, in Hatton v. CSX Transp., Inc., 2004 WL 1459391 (Tenn. Ct.App. June 29, 2004), the Court stated:
The testimony of a proffered witness for the Plaintiff, Dr. Richard X, was excluded on a motion in limine. Dr. X “was to be the Plaintiff’s expert witness on toxicology.”