Krik v. Exxon Mobil Corp.
2017 U.S. App. LEXIS 16795
| 7th Cir. | 2017Background
- Plaintiff Charles Krik, a long-term smoker diagnosed with lung cancer, alleged asbestos exposure from Owens-Illinois (navy ship insulation, 1954–1960) and a two-week subcontract at Mobil’s Joliet refinery caused his cancer; defendants blamed smoking.
- Pretrial, Judge Lee excluded expert testimony based on the “each-and-every exposure” / “any exposure” theory under Daubert/Rule 702 as unreliable and inconsistent with the substantial-factor causation standard.
- At trial Krik sought to present Dr. Arthur Frank under a rebranded “cumulative exposure” theory; Judge Shah, following Judge Lee, excluded Frank’s causation testimony as materially identical to the barred theory.
- The district court also excluded a stand-alone exhibit (the “Helsinki document”) as non‑case‑specific and potentially confusing/prejudicial.
- After trial a juror disclosed that Mobil had hired a private investigator who contacted the juror’s acquaintance about a possible prior social encounter with Krik; Mobil and Owens-Illinois knew of the investigation but did not disclose it to plaintiff’s counsel.
- The jury nevertheless found smoking was the sole cause; Krik appealed, arguing trial unfairness from expert exclusion and the juror investigation. The Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Frank’s "cumulative exposure" causation testimony | Cumulative theory is distinct and admissible; should survive pretrial Daubert ruling | Theory is functionally identical to previously excluded "each-and-every"/any-exposure theory and is unreliable under Daubert/Rule 702 | Exclusion affirmed — cumulative theory equated with barred any-exposure theory and properly excluded as unreliable |
| Use of Helsinki document as independent causation evidence | Helskinki criteria support cumulative causation and should be admitted | Document is non‑case‑specific, not a learned treatise here, and would mislead/jury-confuse | Exclusion affirmed — admissible only as background relied‑upon material, not as independent substantive evidence |
| Whether a new trial is required because Mobil hired an investigator to question a juror’s acquaintance | Investigator’s contact could have intimidated or distracted juror, prejudicing verdict | Contact was limited, indirect (non-juror interviewed), benign, and not shown to affect deliberations | No new trial — plaintiff failed to show a reasonable likelihood of prejudice; district court did not abuse discretion |
| Whether district judges properly applied Daubert and precedents when excluding expert testimony | Judges misapplied factual distinctions; should have allowed tailored testimony | Judges correctly applied Daubert, Rule 702, and prior in limine ruling; plaintiff bore burden to show reliability | Affirmed — district courts properly performed gatekeeping and did not abuse discretion |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (expert‑testimony admissibility requires reliable methods and relevance)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (trial court has broad discretion as gatekeeper under Daubert for all expert testimony)
- Lindstrom v. A‑C Prod. Liab. Trust, 424 F.3d 488 (6th Cir.) (plaintiff must show each defendant’s product was a substantial factor)
- McIndoe v. Huntington Ingalls, Inc., 817 F.3d 1170 (9th Cir.) (rejecting any‑exposure/cumulative theory as rendering substantial‑factor test meaningless)
- Smith v. Phillips, 455 U.S. 209 (juror bias inquiry requires a hearing but protects jury deliberation secrecy)
- Tanner v. United States, 483 U.S. 107 (limits on juror testimony about deliberations to protect finality and candid deliberation)
- Olano v. United States, 507 U.S. 725 (party seeking relief for juror contact bears burden to show prejudice)
- Hall v. Zenk, 692 F.3d 793 (7th Cir.) (limits on jury inquiry: ask only what extraneous communication occurred and whether it might reasonably have affected verdict)