Charles Krik has lung cancer. And like some people suffering from a devastating illness, he sought to know if someone or something was to blame. In his case, as in many, there are several sources at which to point a finger. Krik smoked a pack and a half of cigarettes every day for thirty years. From 1954 until 1960 Charles Krik also worked aboard navy vessels removing insulation produced by Owens-Illinois, Inc., which he claimed exposed him to asbestos fibers. And for two weeks, he worked as an independent contractor at
A. Dr. Frank’s expert witness testimony
The battle over the expert testimony began during pre-trial motions. Prior to trial, the defendants filed motions before Judge Lee of the Northern District of Illinois seeking to exclude Dr. Arthur Frank and other witnesses from testifying about a theory of causation often referred to as “each' and every exposure theory,” “any exposure theory,” “the single: fiber theory,” or “no safe level of exposure theory” among- others.
Before trial, the case was transferred to Judge Manish Shah. Despite the earlier Daubert ruling, Krik called Dr. Frank at trial, hoping that a newly packaged “cumulative exposure theory” would skirt Judge Lee’s. earlier ruling on the motion in li-mine. During voir dire of Dr. Frank, however, Judge Shah concluded that Dr. Frank’s testimony was still “not tied to the specific quantum of exposure attributable to the defendants, but was instead based on his medical and scientific opinion that every exposureis a substantial" contributing factor to the cumulative exposure that causes cancer.” Krik v. Owens-Illinois,
On appeal, we review a district court’s decision to deny a motion for a new trial for an abuse of discretion. United States v. Lawrence,
Krik does not dispute that the district court identified and applied the appropriate Daubert framework, rather, he argues that Judge Shah made an errant factual determination that the cumulative exposure theory was the same as the “each and every exposure” theory that Judge Lee had barrеd. We therefore review this decision and the decision to exclude the cumulative exposure-based testimony for an abuse of discretion. Judge Shah found that the cumulative exposure theory was the same as the “each and every exposure” theory and prohibited testimony based on this theory and the reasoning of Judge Lee supplemented by his own analysis.. We agree and therefore conclude that it was not an abuse of discretion to exclude the testimony nor to deny the motion for a new triaL
Subsumed within this question "of the expert testimony are really' four issues: First, whether the cumulative exposure theory was sufficiently-similar to the “each аnd every exposure” theory such that Judge Lee’s pre-trial ruling covered the former theory as well. Second, and relatedly, whether Judge Shah properly followed Judge Lee’s ruling; Third, whether Judge Shah abused his- discretion by refusing- to allow Dr. Frank to testify about a cumulative exposure theory, and fourth, whether he abused his discretion when he refused to grant a new trial. Because these issues are intertwined and overlap, we address them wholesale as we review the propriety of excluding Dr. Frank’s testimony.
Any assessment of the, admissibility of expert witness testimony begins with Federal- Rule of Evidence 702 and the Supreme Court’s opinion in Daubert,, as together they govern the admissibility of expert witness testimony. Rule 702 states:
A witness who is qualified as ah 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 appliéd the principles and methods to the facts of the case.
Fed. R. Evid. 702. In addition, Federal Rule of Evidence 403 overlays all other evidentiary rules by stating that a court may “exclude relevant evidence if its probative value is substantially outweighed by the danger of ... unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403.
The Supreme Court has interpreted Rule 702 with a flexible standard that boils down to two over-arching requirements for expert witness testimony. The expert testimony must be “ground[ed] in the methods and procedures of science” and must “assist the trier of fact to understand or determine a fact in issue.” Daubert,
Judge Lee’s pre-trial motion concluded that under both Illinois law and maritime law, a plaintiff must demonstrate that asbestos was a “substantial contributing factor” to his injury. Krik v. Crane Co.,
In light of Judge Lee’s ruling barring the use of “each and every exposure” testimony, Krik attempted to repackage Dr. Frank’s testimony as being based on a “cumulative exposure” theory. Under this theory, every minute of exposure adds to the cumulative exposure and thus becomes a substantial contributing factor. Judge Shah concluded, however, that the “cumulative exposure” theory was merely more of the same. He followed and then reiterated Judge Lee’s finding by noting:
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.
Krik,
We agree that Dr. Frank’s cumulative exposure theory was no different from the “each and every exposure” theory in all relevant ways. In fact, at the Daubert hearing, Krik’s counsel explained how they were the same:
THE COURT: Looking at the September 16, 2011 expert report ..., which states: “The cumulative exposures he, meaning Krik, had to asbestos from anyand all products containing any and all fiber types would have contributed to his developing these two conditions.” ... So does he mеan as part of this opinion that any exposure to asbestos should be considered a substantial factor to Mr. Krik’s ailment?
Mr. McCoy: Yes, Judge. That’s right. That’s how Dr. Frank would say, any exposure. All exposures contribute.
R. 295 at 29-30, pageID 7365-66 (emphasis added). Counsel went on to explain:
... the cumulative exposure is considered the cause from the scientific and medical perspective. You don’t open up scientific publications and read these articles, and the articles saying, well, this two days doing this is a cause, and this two days doing this is a cause of whatever person or group is being written about. What they always say is that the cumulative exposure is the cause. So that’s why Dr. Frank is saying, each exposure is [sic] substantial contribution to that cumulative total. That’s what he’s saying. And that’s what—■ that’s what his testimony will be.
Id. at 33, pageID 7369 (emphasis added).
Dr. Frank’s own testimony at his deposition about his theory conflated “each and every exposure” with a cumulative exposure theory as highlighted below. During the deposition, Krik’s counsel asserted several positions one after another and asked his opinion on each one. He agreed with each of the following statements:
• “Once the cancer has been attributed to asbestos,' each exposure can be considered a substantial contributing cause of lung cancer.”
• “The cumulative exposure to asbestos from each and every product of any and all fiber types contributes to asbestos caused lung cancer.”
• It is virtually never possible to know the exact dose from any product, but it is recognized that any exposure above zero is a contributing factor to the cumulative exposure.”
• “Since the exposures are cumulative, individual exposures cannot be ruled out as a cause.”
• “No minimum duratiоn is needed for an asbestos exposure to be a cause if the cancer is attributed to cumulative exposure.”
R. 328-3, 167-68, pageID 8733 (emphasis added).
Based on Dr. Frank’s own testimony and Krik’s counsel’s position, Judge Shah readily and correctly concluded that the cumulative exposure theory was no different from the “each and every exposure” theory that had been excluded at the motion in limine:
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 á substantial contributing factor to the cumulative exposure that causes cancer. See, Trial Tr. at 262:13-16 (“... if there is exposurе to a cancer-causing 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.”). This “cumulative exposure” testimony was no different than the testimony proffered at the' Daubert stage. See Krik,76 F.Supp.3d at 752-53 (quoting plaintiffs counsel as describing the testimony as one based on cumulative exposure)
Krik,
Judge Lee addressed the “cumulative expоsure” testimony proposed by the plaintiff in his opinion. And at pages 7 to 8 of his opinion, he quotes plaintiffs counsel as saying that cumulative exposure is the cause, and that whát Dr. Frank is saying is that each exposure is a substantial contribution to-the cumulative total. Judge Lee then held that, “This is not an acceptable approach for a causation expert to take.”
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That is the “each and every exposure” theory that Judge Lee has barred, and so Dr. Frank cannot give a'similar response to a hypothetical in this case. ... So I am not expanding Judge Lee’s ruling in any way. I am simply implementing it.
R. 336 at 4-6, pageID 9409-9411. See also R. 376 at 354, PageID 10227. (“As was clear when Judge Lee said that it is nоt an acceptable approach for a causation expert to take, namely ... to take an -approach based on cumulative exposure that’s informed by an eaeh-and-every exposure opinion, it remains clear to me in light of the factual proffer that Dr. Frank’s cumulative exposure testimony is based on the each-and-every-exposure theory above ...")
' To summarize, the principle behind the “each and every exposure” theory and the cumulative exposure theory is the same— that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness. In othеr words, just like “each and every exposure,” the cumulative exposure theory does not rely- upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.- The ultimate burden of proof on the element of causation, however, remains with the plaintiff. Shelton v. Old Ben Coal Co.,
such a theory of liability would render the substantial-factor test essentially meaningless. Allowing causation to be established through testimony like [the expert’s] would “permit imposition of liability on the manufacturer of any [asbestos-containing] product with which a worker had the briefest of encounters, on a single occasion.” This is precisely the sort of unbounded liability that the substantial factor test was developed to limit. .
McIndoe v. Huntington Ingalls Inc.,
As Owens-Illinois-points out in its brief, more than thirty other federal courts and state courts have held that this cumulative/“any exposure” theory is not reliable.
The final piece of Krik’s expert witness argument is that the district court errantly excluded a document entitled “the Helsinki document,” which Krik’s counsel sought to offer to support the “cumulative exposure” theory. As with the other evi-dentiary decisions, we review this decision for an abuse of discretion. Chemetall GMBH v. ZR Energy, Inc.,
As a set of consensus principles announced by an international public policy cоnference, 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 evidencе from which a jury could infer defendants’ liability as to causation. Finally, because the criteria were discussed during testimony several times 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.
Krik,
B. The juror investigation issue
During jury selection, the prospective jurors were asked both collectively and individually if they recognized anyone involved in the case, including the parties and potential witnesses. Juror McGregor reported that she did not know anyone on the list. The next day, however, McGregor delivered a note to the court in which she stated: “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 Seamen. I just wanted you to be aware of this. I did not think about this until the ride home last night.” R. 349 at 3, pagelD 9547.
The court read the note to counsel for all parties. Krik’s counsel responded, “From plaintiffs end, I don’t see that poses any problem.” R. 375 at 108, pagelD 9980. Outside the presence of the jury, the Judge questioned both Krik and McGregor about the events set forth in the note. Krik told the court that he did not know Bob Seamen and that he did not think he was at the birthday party. McGregor stated that she was not sure whether shе encountered Krik at Seamen’s birthday party, that Seamen was her only pipefitter friend, and that her association with him would not improperly influence her. The defendants moved to remove McGregor from the jury, but the district court denied their motion as well as a subsequent motion for a mistrial. We review a district court’s decision to deny the request for a new trial for an abuse of discretion. United States v. Hilliard,
After the jury returned the verdict, Judge Shah met with the jurors to thank them for their service. During that conversation, McGregor revealed that she had learned that an investigator, whom she believed to be working for the defense, had contacted her friend Seamen to ask about his birthdаy party. No one had ever approached the court about such an investigation, and thus it came as a surprise to the district court judge. Consequently, several days later the court, sua sponte, scheduled an unusual post-trial status conference in which the judge advised all counsel of the information he had received from juror McGregor. Counsel for Mobil confessed to having sent out the investigator, admitting in the process that it researched the permissibility and found nothing directly on point, and that it had considered advising the court but opted against it. R. 399-11 at 3, pagelD 12731. The defense counsel further admitted that it was aware of the risk that the investigation might hаve an impact on a sitting juror, that it might be deemed to be an invasion of her privacy, and that it was willing to take the risk nevertheless. Id. at 4-5, pagelD 12732-33. Owens-Illinois was also aware of the investigation, but neither defense counsel informed Krik’s counsel.
Krik argues that the investigation prejudiced the trial and filed a motion requesting a new trial. Krik’s arguments can be summarized as follows: the questioning of Seamen could have influenced McGregor by intimidating her, by causing her to worry about her privacy and potential harassment, and by distracting her with details of a private investigation during the course of a trial.
To obtain a new trial based on improper contact with a juror, the сomplaining party must show prejudice. United States v. Olano,
In order to determine whether there was such prejudice, the Supreme Court dictates that in the face of allegations of juror influence, the court should hold a hearing in which the complainant has the opportunity to prove actual bias. Smith v. Phillips,
(b) During an Inquiry Into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment; The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to .the jury’s attеntion;
(B) an outside influence’was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
Fed. R. Evid. 606.
To balance those competing interests between the' required hearing and Rule 606(b)’s prohibitions, a court must
limit the questions asked thé jurors to whether the communication was made and what it contained, and then, having determined that communication took place and what exactly it said, to determine—without asking the jurors anything further and emphatically without asking them what role the communication played in their thoughts or discussion—whether there is a reasonable possibility that the communication altered their verdict.
Hall v. Zenk,
The district сourt determined that no hearing was required in this case, both because Krik had not asked for one, and more importantly,-there was no dispute as to the , existence or content of the communication. See United States v. Sanders,
In this case, the district .court, determined that:
There was no prejudice to Krik in Mobil’s interview оf Seamen. 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 Seamen was entirely independent of the merits of the case.
Krik,
Despite our holding in this case, we note that in general investigating a sitting juror is fraught with danger—such an investigation could be seen by the juror as intimidation or harassment. Such an investigation might lead a juror to be concerned that the continued investigations might reveal embarrassing or private details of her life, or worry that even a benign short investigation might be just the beginning of a much more thorough and invasive one. This could breed resentment, anxiousness, or distract a juror from the task at hand. See Sinclair v. United States,
For this case, however, we need not rule about the propriety of such a practice because we have determined that there was no prejudice to Krik and that the investigation could not have altered the course or outcome of the trial. The investigator questioned McGregor’s friend and not McGre-gor. McGregor herself notified the court about the birthday party, thus indicating that she recognized that it might be relevant, and decreasing the chance that its revelation would bring about any embarrassment or surprise for her. As the district court noted, the “nature of the investigation was relatively benign and there is no proof that prejudice was reasonably likely.” See Krik,
In determining whether a party was prejudiced, a court also may consider the strength of the party’s case. See Hall,
The Appellee’s Motions to Strike Appellant’s Letter of Supplemental Authority is denied. The decision of the district court is affirmed in all respects, including the assignment of costs and fees.
Notes
. Krik initially sued many other corporations, but only these two defendants remain. See R. 1 (All references are to the record in the district court.)
, In the second part of the motion, Mobil sought to bar Dr. Frank "from offering any specific causation testimony regarding Mobil.” R. 140 at 1, pageID 2618. Judge Lee held that "to the extent that Plaintiff will present facts at trial that he was exposed to asbestos at ExxonMobil facilities and Dr[s]. Frank and Parker will rely upon such facts at trial, the experts will be permitted .to testify at trial regarding such exposure, subject to the Court’s ruling precluding testimony as to the "Any Exposure” theory.” Krik v. Crane Co.,