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Krik v. Exxon Mobil Corp.

United States Court of Appeals, Seventh Circuit

August 31, 2017

Charles Krik, Plain tiff-Appellan t,
Exxon Mobil Corporation, et ah, Defendan ts-Appellees.

          Argued December 6, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-CV-07435 - Manish S. Shah, Judge.

          Before WOOD, Chief Judge, and ROVNER and Sykes, Circuit Judges.


         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 pretrial 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 (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. 111. 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, pageld 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 there- fore 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. 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. 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. 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 (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 have repeatedly emphasized that "no single factor is either required in the analysis or dispositive as to its outcome." Smith, 215 F.3d at 719; see also Kumho Tire Co., 526 U.S. at 151-52. The district court may apply these factors flexibly as the case requires. United States v. Brumley, 217 F.3d 905, 911 (2000). Indeed Daubert itself contemplated a flexible standard with broad discretion given to district court judges. Daubert, 509 U.S. at 593.

         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., 76 F.Supp.3d 747, 753 (N.D. 111. 2014) (hereinafter Krik, 76 F.Supp.3d 747 (J. Lee)), citing Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 493 (6th Cir. 2005) (maritime law); Thacker v. UNR Indus., Inc., 603 N.E.2d 449, 457 (111. 1992) (Illinois law). Judge Lee noted that asbestos-induced lung cancer is dosage dependent-that is, the risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. To determine whether any exposure constitutes a substantial contributing factor, therefore, one would have to understand the timing and amount of exposure. But rather than testifying that the particular dose of asbestos to which Krik had been exposed was a substantial contributing factor to his illness, Judge Lee explained, Dr. Frank's theory was based on a premise that each and every exposure to asbestos, including the first exposure, no matter how de minimis, "is a substantial contribution to the cumulative total." Krik, 76 F.Supp.3d at 753 (J. Lee). As Dr. Frank further explained: "Either it's zero or it's substantial; there is no such thing as not substantial." R. 66-3 at 23, pagelD 923. Even one minute of exposure, he opined, would be a substantial contributing factor to a person's ultimate disease. R. 376 at 273-74, pagelD 10146-47. Applying Daubert, the court concluded that the "any exposure" theory ignored fundamental principles of toxicology that illnesses like cancer are dose dependent. Krik's experts did not plan to offer any evidence about how much asbestos exposure Krik experienced and whether that dosage could have been a substantial contributing factor to lung cancer. In fact Krik's experts readily admitted in their depositions that they had not considered any information about amount of exposure in their analyses. Instead, Dr. Frank's asserted theory would be that any and all exposure to asbestos is a substantial contributing factor to lung cancer. The law of causation, however, required the plaintiff to prove that the defendants' acts or products were a "substantial contributing factor" to Krik's illness. De minimis exposure is not sufficient. Krik, 76 F.Supp.2d at 753 (Lee) (citing maritime and Illinois law). And substantial exposure that cannot be attributed to a particular defendant is likewise insufficient. Moreover, the experts, as Judge Lee described, had not presented any individualized analysis of the level of asbestos exposure, had provided only generalized citations to scientific literature with no indication that they were authorities upon which the experts would rely, did not identify any peer-reviewed scientific journal adopting this theory, did not cite any medical studies or discuss an error rate. Id. at 754. The experts used the theory with "little to no evaluation of the actual facts of this case." Id. In short, Krik failed to bear the burden of demonstrating that Dr. Frank's theory would satisfy the minimal requirements of Federal Rule of Evidence 702 and Daubert. Judge Lee thus precluded Krik from offering any expert testimony espousing such a theory at trial.

         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, 2015 WL 5050143, at *1 (J. Shah). In other words, causation requires that an expert connect the nature of the asbestos exposure and pair it with a Daubert-approved methodology that can be used to determine whether such an ...

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