Krik v. Exxon Mobil Corp.

870 F.3d 669

Charles KRIK, Plaintiff–Appellant,

v.EXXON MOBIL CORPORATION, et al., Defendants–Appellees.

No. 15-3112.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2016

Decided August 31, 2017

Robert G. McCoy, Attorney, Michael P. Cascino, Attorney, CASCINO VAUGHAN LAW OFFICES, Chicago, IL, for Plaintiff–Appellant.

Garrett L. Boehm, Jr., Attorney, David Francis Fanning, Attorney, Howard Patrick Morris, Attorney, JOHNSON & BELL, LTD., Chicago, IL, for Defendant–Appellee Exxon Mobil Corporation.

Robert H. Riley, Attorney, Edward Casmere, Attorney, Matthew J. Fischer, Attorney, Joshua Douglas Lee, Attorney, Brian O'Connor Watson, Attorney, RILEY SAFER HOLMES & CANCILA LLP, Chicago, IL, for Defendant–Appellee Owens–Illinois, Inc.

Before Wood, Chief Judge, and Rovner and Sykes, Circuit Judges.

Rovner, Circuit Judge.

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 Exxon Mobil's (Mobil) Joliet refinery replacing heaters that Krik claimed were insulated with asbestos. Mobil presented counter-evidence that the insulation at its refinery did not contain asbestos. Nevertheless, Krik's position was that Owens–Illinois and Mobil exposed him to asbestos which was a substantial cause of his lung cancer.¹ Before a district court and jury, the defendants maintained that cigarettes and not asbestos exposure caused Krik's lung cancer. After a seven-day trial, the jury found that cigarettes were the sole cause of Krik's cancer. Krik now claims that two rulings by the district court deprived him of a fair trial. First, he claims that the district court erred by excluding testimony about medical causation from his expert, Dr. Arthur Frank, and second, that he was denied a fair trial when Mobil, with the knowledge of Owens–Illinois, hired a private investigator to secretly conduct an interview of a sitting juror's acquaintance, to verify and investigate information revealed by the juror. Because we hold that neither issue was prejudicial and denied Krik a fair trial, we affirm the judgment of the district court in all respects.

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.² These theories posit that any exposure to asbestos fibers whatsoever, regardless of the amount of fibers or length of exposure constitutes an underlying cause of injury to the exposed individual. At the conclusion of the presentation of these pre-trial motions, Judge Lee concluded that Krik had not established that the "any exposure" theory was sufficiently reliable to warrant admission under Rule 702 and the Supreme Court's seminal case on the admissibility of expert witness testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Judge Lee precluded Krik from offering any expert testimony espousing such a theory at trial. Krik does not challenge that ruling through this appeal.

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 limine. 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 exposure is a substantial contributing factor to the cumulative exposure that causes cancer."

Krik v. Owens–Illinois, Inc. , No. 10-CV-07435, 2015 WL 5050143, at *1 (N.D. Ill. Aug. 25, 2015) (hereinafter Krik , 2015 WL 5050143 (J. Shah) ). He cited, as examples, the following statements of Dr. Frank: "... If there is exposure 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. (citing R. 376 at 262, pageId 10135); and "If the exposure took place, it was part of the cumulative exposure that someone had." Id . Judge Shah indicated that he was following the pre-trial determination of Judge Lee and that the "cumulative exposure" testimony was no different than the testimony proffered in front of Judge Lee. Krik , 2015 WL 5050143, at *1 (J. Shah).

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 , 788 F.3d 234, 244 (7th Cir. 2015). Whether the district court applied the Daubert framework properly is a question we review de novo but we review the decision to exclude or admit the expert witness testimony for an abuse of discretion only. C.W. ex rel. Wood v. Textron, Inc. , 807 F.3d 827, 835 (7th Cir. 2015). The party seeking to introduce the expert witness testimony bears the burden of demonstrating that the expert witness testimony satisfies the standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 705 (7th Cir. 2009).

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 barred. 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 and 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 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. 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 , 509 U.S. at 590–91, 113 S.Ct. 2786. Daubert requires the district court to act as an evidentiary gatekeeper, ensuring that an expert's testimony rests on a reliable foundation and is relevant to the task at hand. Id. at 589, 113 S.Ct. 2786. To do this a trial judge must make a preliminary assessment that the testimony's underlying reasoning or methodology is scientifically valid and properly applied to the facts at issue. Id. at 592–93, 113 S.Ct. 2786. The district court holds broad discretion in its gatekeeper function of determining the relevance and reliability of the expert opinion testimony. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Our circuit has given courts the following guidance to determine the reliability of a qualified expert's testimony under Daubert , stating that they are to consider, among other things: "(1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community." Baugh v. Cuprum S.A. de C.V. , 845 F.3d 838, 844 (7th Cir. 2017) ; see also Smith v. Ford Motor Co. , 215 F.3d 713, 719 (7th Cir. 2000). Despite the list, we...