Krik v. BP America, Inc. et al

Filing 410

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 8/25/2015: Krik's motion for a new trial 399 is denied. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES KRIK,
v.

Plaintiff,

Case No. 10-cv-07435

OWENS-ILLINOIS, INC., and
EXXONMOBIL OIL CORP.,

Judge Manish S. Shah

Defendants.
MEMORANDUM OPINION AND ORDER
Charles Krik sued Owens-Illinois and ExxonMobil, claiming that they
negligently exposed him to asbestos, which (at least in part) caused his lung cancer.
The jury returned a verdict for the defendants, finding that Krik’s tobacco smoking
was the sole proximate cause of his lung cancer. Krik moves for a new trial on two
grounds. He argues that the court’s exclusion of his proffered expert testimony was
erroneous and prejudicial. He also argues that Mobil’s investigation of a potential
pretrial contact between Krik and a sitting juror warrants a new trial.
I.

Legal Standards
“A new trial is appropriate if the jury’s verdict is against the manifest weight

of the evidence or if the trial was in some way unfair to the moving party.” Venson
v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014) (citing Willis v. Lepine, 687 F.3d
826, 836 (7th Cir. 2012)). To show unfairness—whether due to improper jury
contact or erroneous exclusion of evidence—Krik must show that he was prejudiced.
United States v. Olano, 507 U.S. 725, 739 (1993) (jury contact); Florek v. Vill. of

Mundelein, 649 F.3d 594, 602 (7th Cir. 2011) (exclusion of evidence); Fed. R. Civ.
P. 61.
II.

Analysis
A.

Exclusion of Krik’s Proffered Expert Testimony

Krik offered Dr. Arthur Frank to provide expert testimony that Krik’s lung
cancer was caused by his exposure to asbestos attributable to defendants. In
response to a Daubert challenge by the defense, Judge Lee barred opinion testimony
that each and every exposure to asbestos caused plaintiff’s cancer. Krik v. Crane
Co., 76 F.Supp.3d 747, 752–55 (N.D. Ill. 2014). At trial, Krik called Frank in an
attempt to elicit causation testimony that did not run afoul of the ruling on the
motion in limine. But, as became clear during a voir dire of the witness, his
causation testimony was not tied to the specific quantum of exposure attributable to
the defendants, but was instead based on his medical and scientific opinion that
every exposure is a substantial contributing factor to the cumulative exposure that
causes cancer. See [376], Trial Tr. at 262:13–16 (“. . . if there is exposure to a cancercausing agent, that becomes part of the totality of the exposure. Some may
contribute more, some may contribute less, but they are all part of the exposure.”);
id. at 262:8–9 (“If the exposure took place, it was part of the cumulative exposure
that someone had.”).1 This “cumulative exposure” testimony was no different than
the testimony proffered at the Daubert stage. See Krik, 76 F.Supp.3d at 752–53

Citations to the record are designated by the document number on the district court
docket, placed in brackets.
1

2

(quoting plaintiff’s counsel as describing the testimony as one based on cumulative
exposure).
Plaintiff’s motion for a new trial reiterates and preserves the arguments he
previously advanced for admission of Frank’s causation testimony, but provides no
basis to revisit the rulings. At trial, I concluded that both Federal Rules of Evidence
702 and 403 rendered Frank’s causation testimony inadmissible. To find a
defendant liable, plaintiff must prove causation attributable to that defendant. It
would be misleading and confusing for an expert to opine—particularly using the
legal terminology of “substantial contributing factor”—that Krik’s cancer was
caused by defendants when the foundation for the opinion was that every exposure
(without regard to dosage) contributes to cause cancer.2 For the reasons described in
Judge Lee’s opinion and on the record during the trial, the limits on Frank’s
testimony were not erroneous and do not warrant a new trial.3

See [376], Trial Tr. at 274:8–13 (Frank states that one minute of asbestos exposure would
be a substantial contributing factor to disease). Contrary to plaintiff’s argument, the limits
on Frank’s testimony did not unfairly undermine his authority as an expert. The witness
was allowed to testify that Krik had a type of cancer that is caused by cigarette smoking
and asbestos, id., Trial Tr. at 229:24–25, and that certain studies attributed lung cancer to
asbestos exposure. Id., Trial Tr. at 248–50.
2

Plaintiff also mentions the exclusion of the “Helsinki Criteria” as a basis for a new trial.
As a set of consensus principles announced by an international public policy conference,
these criteria were not substantive evidence of causation; rather, they were materials that
could be relied upon by an expert. In this case, the Helsinki Criteria provided a backdrop to
the history of the study of asbestos and disease, and fodder for cross-examination of
defendants’ experts. But they were not admissible as independent exhibits of substantive
evidence or as a foundation for inadmissible causation testimony. Moreover, based on the
ruling excluding unreliable and non-case-specific causation testimony, Krik, 76 F.Supp.3d
at 753–54, it would have been confusing and unfairly prejudicial to allow the Helsinki
Criteria to stand as evidence from which a jury could infer defendants’ liability as to
causation. Finally, because the criteria were discussed during testimony several times
3

3

B.

Mobil’s Investigation of Juror McGregor

Jury selection began on April 20, 2015. The prospective jurors were
introduced to plaintiff Charles Krik and to counsel for all parties, and were asked
whether they recognized anyone involved in the case. [398] at 11:3–12:3. Juror
McGregor did not indicate that she knew Krik or anyone else involved. See id. at
12:2–15. Additionally, each prospective juror was given a list of names of people
involved in the trial, including parties and potential witnesses. Id. at 12:16–20.
Krik’s name was on the list. The prospective jurors were asked, collectively,
whether they recognized any name on the list; no one answered yes. Id. at 12:21–25.
Finally, McGregor individually reported that she did not know anyone on the list.
Id. at 24:24–25.
But, the next day, McGregor delivered a note to the court, stating: “While I do
not know Mr. Krik personally we might have been at a birthday party for a former
pipefitter and a good friend of mine last year. His name is Bob Scamen. I just
wanted you to be aware of this. I did not think about this until the ride home last
night.” [349] at 3. The note was read to counsel for all parties. [375] at 108:17–23.
Plaintiff’s counsel responded, “From plaintiff’s end, I don’t see that poses any
problem.” Id. at 24–25. Outside the presence of the jury, the court asked Krik
whether he knew Bob Scamen; Krik said that he did not, and that “[i]f [Scamen]
had a birthday party, I don’t think I was at it.” Id. at 109:21–110:2. McGregor was
brought into the courtroom, without the other jurors. She explained that she wasn’t
during the trial, the limitation on the use of one article during the direct examination of
Frank did not render the entire trial unfair to the plaintiff.

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sure whether she encountered Krik at Scamen’s birthday party. Id. at 114:14–17.
She said that Scamen was her only pipefitter friend and that her association with
him would not improperly influence her. Id. at 114:18–115:4. Defendants moved to
remove McGregor from the jury, but their motion was denied. Id. at 115:13–116:23.
Defendants then moved for a mistrial, and that motion was also denied. Id. at
116:24–117:8.
After the jury returned a verdict and was excused, I met with the jurors to
thank them for their service. See [392], Trial Tr. at 2009. During that conversation,
McGregor mentioned that she had learned that an investigator—who she believed
acted on behalf of the defendants—had contacted Scamen to ask about his birthday
party. [393] at 2:18–24. At a subsequent status hearing, counsel for Mobil confirmed
that the investigation was done at Mobil’s direction, and that the investigator spoke
with Scamen, who said that McGregor had attended his birthday party. Id. at 3:15–
24. Scamen could not say whether Krik was at the party, but did say that the name
“Krik” sounded familiar. Id. at 3:22–4:1. Owens-Illinois had known about the
investigation. Id. at 6:1–10. Plaintiff’s counsel was not aware of the Scamen contact
and interview. Id. at 2:14–17; 2:25–3:3; 6:12–13.
Plaintiff now argues that the investigation of the birthday party was
prejudicial and requires a new trial. To obtain a new trial based on improper
contact with the jury, the complaining party must show that it was prejudiced. See
Olano, 507 U.S. at 739 (The “ultimate inquiry” is “Did the intrusion affect the jury’s
deliberations and thereby its verdict?”). Accordingly, the Supreme Court “has long

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held that the remedy for allegations of juror partiality is a hearing in which the
[complainant] has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S.
209, 215 (1982).
Because Federal Rule of Evidence 606(b) prohibits most potential testimony
about what influenced a juror, the “hearing” to determine prejudice is limited. A
court can ask jurors whether the alleged communication was made and what it
contained—and nothing more. Hall v. Zenk, 692 F.3d 793, 806 (7th Cir. 2012)
(quoting Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991)).
Then, “without asking [the jurors] what role the communication played in their
thoughts or discussion,” the court should determine “whether there is a reasonable
possibility that the communication altered their verdict.” Id. A “presumption” of
prejudice may or may not apply, depending on whether the circumstances appear
inherently likely to improperly influence a jury. Hall, 692 F.3d at 800–01.
No hearing is required here because there is no dispute as to the existence or
content of the communication—and because Krik has not asked for one.4 See United
States v. Sanders, 962 F.2d 660, 672–73 (7th Cir. 1992) (no hearing required where
questioning jurors would not have revealed additional information); United States v.

Krik noted that the court has discretion to order a hearing ([409] at 14 n.28), but
affirmatively argued that no hearing is required ([399] at 5). Krik thus knowingly waived
any right he had to a hearing. To the extent Krik’s waiver of a hearing is a request for an
irrebuttable presumption of prejudice, the request is denied as contrary to law. See Phillips,
455 U.S. at 217 (“[D]ue process does not require a new trial every time a juror has been
placed in a potentially compromising situation.”); Remmer v. United States, 350 U.S. 377,
378 (1956) (noting that the Court originally sent the case back to the district court to
develop a factual record concerning prejudice). Krik has argued for a finding of prejudice on
the existing record, without a hearing.
4

6

Gilsenan, 949 F.2d 90, 97 (3d Cir. 1991) (no hearing required where the movant’s
version of the facts does not warrant a new trial). The question is whether there is a
“reasonable possibility” that the jury’s verdict was altered by the investigation,
McGregor’s knowledge of it, her perception that it was done by the defendants, and
the possibility that she told other jurors about it. See Hall, 692 F.3d at 806;
Sanders, 962 F.2d at 673. This question can be answered without a hearing.
There was no prejudice to Krik in Mobil’s interview of Scamen. In this
context, prejudice is demonstrated through conduct that leads to a compelling
inference of external pressure to return a verdict unfavorable to the movant. No
such inference is reasonable here because defendants did not directly contact the
juror and the subject of their interview with Scamen was entirely independent of
the merits of the case. Attempted or perceived bribes, or exposure to extraneous
information directly concerning a party’s liability would be prejudicial. Remmer v.
United States, 350 U.S. 377, 380–82 (1956); Parker v. Gladden, 385 U.S. 363, 365–
66 (1966). Threats and other indirect communications suggesting a party’s guilt also
prejudice the jury against that party. Owen v. Duckworth, 727 F.2d 643, 637–48
(7th Cir. 1984); Hall, 692 F.3d at 807. External contact that forces a verdict is also
prejudicial. Haugh, 949 F.2d at 916–19. Contact that has no obvious implication on
the outcome of the trial is not prejudicial. E.g., Olano, 507 U.S. at 737–741; Phillips,
455 U.S. at 220; Whitehead v. Cowan, 263 F.3d 708, 723 (7th Cir. 2001). For
example, there was no prejudice in United States v. Warner, 498 F.3d 666, 681 (7th

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Cir. 2007), where the extraneous information was “unrelated to the facts of the case
or the defendants’ guilt.”5
In this case, an investigator questioned a juror’s friend to determine whether
the juror and the plaintiff attended the same birthday party. The juror did learn
about the interview, but nothing about it had any bearing on the ultimate issues at
trial. There was no intimidation of (or direct contact with) McGregor in the
interview of Scamen. The juror previously brought the birthday party to the court’s
attention herself, and she was questioned about it in open court, so she understood
it was noteworthy; the fact that there was some follow up conducted by the
defendants was not likely to influence her view of either party on the merits of the
case.6 In sum, the nature of this investigation was relatively benign, and there is no
Middleby Corp. v. Hussman Corp., No. 90 C 2744, 1992 WL 398442 (N.D. Ill. Dec. 23,
1992), cited by Krik, involved a communication directly with the jury about a pivotal piece
of evidence. That is quite unlike this case, where the contact was not with the juror and had
no connection to the merits of plaintiff’s case. United States v. White, 78 F.Supp.2d 1025,
1027–1028 (D.S.D. 1999), also cited by Krik, involved a criminal defendant’s investigator
contacting jurors’ neighbors and, in one instance, a prospective juror. Although it was not
shown that any particular juror had been intimidated, the court remained concerned,
because: “it is not farfetched to expect jurors to feel intimidated by or prejudiced toward a
defendant [in a criminal drug case] who, they learn, has conducted an investigation of their
personal lives. . . .” Id. at 1028. Krik’s asbestos suit does not have the same inherent
capacity to intimidate (and the concern in White was that the jury would be prejudiced
against the party doing the investigation, which in this case would be the defendants, not
Krik). Moreover, in White, the investigation came to light before trial and the court’s
remedy was to impanel a new jury—a remedy consented to by the defendant and imposed
under the court’s authority to manage the voir dire process. Id. at 1028. Accordingly, the
White court did not have to find prejudice, the standard here.
5

Sinclair v. United States, 279 U.S. 749 (1929), addressed the subject of jury surveillance in
the context of a contempt finding, a different situation than the present case. In Sinclair,
the question was whether the surveillance was done with the intent to impede the due
administration of justice. Whether the verdict was actually compromised was not a
necessary element of contempt. In Dow v. Carnegie-Illinois Steel Corp., 224 F.2d 414, 430–
31 (3d Cir. 1955), a then-widely used tactic of investigating jury pools by interviewing
neighbors and friends and gathering intel about potential jurors’ political views (a service
6

8

proof that prejudice was reasonably likely. See Whitehead, 263 F.3d at 726; Delvaux
v. Ford Motor Co., 764 F.2d 469, 471–74 (7th Cir. 1985).
Finally, in determining whether a party was prejudiced, a court can consider
the strength of the party’s case. Hall, 692 F.3d at 807; Sanders, 962 F.2d at 673–74;
United States v. Paneras, 222 F.3d 406, 411–12 (7th Cir. 2000). Krik provided little
to no evidence to show that his lung cancer was caused by exposure to OwensIllinois’s product or at Mobil’s premises (as opposed to other potential causes, most
notably his substantial tobacco smoking). As discussed above, Krik’s proffered
expert testimony on causation did not meet the standards of Federal Rule of
Evidence 702 and Daubert, so excluding it was proper. Without expert testimony on
causation, Krik’s case was weak—perhaps fatally so. See Higgins v. Koch Dev.
Corp., — F.3d —, No. 14–2207, 2015 WL 4394895, at *2–4 (7th Cir. July 20, 2015);
Myers v. Ill. Cent. R. Co., 629 F.3d 639, 643 (7th Cir. 2010); Korte v. ExxonMobil
Coal USA, Inc., 164 Fed. App’x 553, 557–58 (7th Cir. 2006). Krik was not prejudiced
by Mobil’s investigation because judgment in favor of the defendants was inevitable
once it became clear that Krik could not prove causation. Accordingly, that
investigation does not require a new trial.7

sold to lawyers) was not prejudicial where it was done to inform the lawyers, rather than to
pressure the jurors. These historical examples are a useful reminder of the lengths some
will go to pry into the lives of jurors. But the question of whether Krik is entitled to a new
trial is about the integrity of the verdict in this particular case. Here, plaintiff’s suggested
inferences of prejudice ([399] at 8–9, [409] at 11–12) are not persuasive, and it is not
reasonably likely that the interview of a friend about a birthday party had any effect on the
verdict.
Whether it was a good idea for the defendants to conduct an investigation (without court
permission) that was likely to lead to an out-of-court communication with the juror about
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III.

Conclusion
Krik’s motion for a new trial [399] is denied.

ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: 8/25/15

the trial is another matter—one that is outside the question presented by the motion for a
new trial. The denial of Krik’s motion should not be read as an endorsement of defendants’
choices.

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