In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3112
CHARLES KRIK,
Plaintiff‐Appellant,
v.
EXXON MOBIL CORPORATION, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10‐CV‐07435 — Manish S. Shah, Judge.
____________________
ARGUED DECEMBER 6, 2016 — DECIDED AUGUST 31, 2017
____________________
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
2 No. 15‐3112
by Owens‐Illinois, Inc., which he claimed exposed him to as‐
bestos fibers. And for two weeks, he worked as an independ‐
ent contractor at Exxon Mobil’s (Mobil) Joliet refinery replac‐
ing heaters that Krik claimed were insulated with asbestos.
Mobil presented counter‐evidence that the insulation at its re‐
finery 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 ciga‐
rettes 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 acquaint‐
ance, to verify and investigate information revealed by the ju‐
ror. 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 be‐
fore 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
1 Krik initially sued many other corporations, but only these two defend‐
ants remain. See R. 1 (All references are to the record in the district court.)
No. 15‐3112 3
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 fi‐
bers 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 suffi‐
ciently 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 offer‐
ing 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‐
2 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., 76 F. Supp. 3d 747, 756 (N.D. Ill. 2014).
4 No. 15‐3112
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 dis‐
trict court applied the Daubert framework properly is a ques‐
tion we review de novo but we review the decision to exclude
or admit the expert witness testimony for an abuse of discre‐
tion only. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 835
(7th Cir. 2015). The party seeking to introduce the expert wit‐
ness testimony bears the burden of demonstrating that the ex‐
pert witness testimony satisfies the standard by a preponder‐
ance 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‐
No. 15‐3112 5
fore review this decision and the decision to exclude the cu‐
mulative exposure‐based testimony for an abuse of discre‐
tion. 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 the‐
ory was sufficiently similar to the “each and every exposure”
theory such that Judge Lee’s pre‐trial ruling covered the for‐
mer 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 propri‐
ety of excluding Dr. Frank’s testimony.
Any assessment of the admissibility of expert witness tes‐
timony begins with Federal Rule of Evidence 702 and the Su‐
preme 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 educa‐
tion may testify in the form of an opinion or oth‐
erwise if:
6 No. 15‐3112
(a) the expert’s scientific, technical, or other spe‐
cialized 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 prin‐
ciples 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 substan‐
tially outweighed by the danger of … unfair prejudice, con‐
fusing the issues, [or] misleading the jury.” Fed. R. Evid. 403.
The Supreme Court has interpreted Rule 702 with a flexi‐
ble standard that boils down to two over‐arching require‐
ments for expert witness testimony. The expert testimony
must be “ground[ed] in the methods and procedures of sci‐
ence” and must “assist the trier of fact to understand or deter‐
mine a fact in issue.” Daubert, 509 U.S. at 590–91. Daubert re‐
quires the district court to act as an evidentiary gatekeeper,
ensuring that an expert’s testimony rests on a reliable founda‐
tion and is relevant to the task at hand. Id. at 589. To do this a
trial judge must make a preliminary assessment that the testi‐
mony’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 ex‐
pert opinion testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
No. 15‐3112 7
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). De‐
spite 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 flex‐
ibly 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. Ill. 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 (Ill. 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
8 No. 15‐3112
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, pageID 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, pageID 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
No. 15‐3112 9
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 con‐
tributing factor. Judge Shah concluded, however, that the “cu‐
mulative 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 ex‐
pert to opine—particularly using the legal ter‐
minology 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) con‐
tributes to cause cancer.
Krik, 2015 WL 5050143, at *1 (J. Shah). In other words, causa‐
tion requires that an expert connect the nature of the asbestos
exposure and pair it with a Daubert‐approved methodology
10 No. 15‐3112
that can be used to determine whether such an exposure was
a substantial cause of the defendant’s injury.
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 cumu‐
lative exposures he, meaning Krik, had to asbes‐
tos from any and all products containing any
and all fiber types would have contributed to
his developing these two conditions.” … So
does he mean as part of this opinion that any ex‐
posure to asbestos should be considered a sub‐
stantial factor to Mr. Krik’s ailment?
Mr. McCoy: Yes, Judge. That’s right. That’s how
Dr. Frank would say, any exposure. All expo‐
sures 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 perspec‐
tive. 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 per‐
son or group is being written about. What they
always say is that the cumulative exposure is the
cause. So thatʹs why Dr. Frank is saying, each expo‐
No. 15‐3112 11
sure is [sic] substantial contribution to that cumula‐
tive total. That’s what he’s saying. And that’s
what—that’s what his testimony will be.
Id. at 33, pageID7369 (emphasis added).
Dr. Frank’s own testimony at his deposition about his the‐
ory 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 sub‐
stantial 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 recog‐
nized that any exposure above zero is a contrib‐
uting factor to the cumulative exposure.”
• “Since the exposures are cumulative, indi‐
vidual exposures cannot be ruled out as a
cause.”
• “No minimum duration 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
12 No. 15‐3112
cumulative exposure theory was no different from the “each
and every exposure” theory that had been excluded at the mo‐
tion in limine:
as became clear during a voir dire of the wit‐
ness, his causation testimony was not tied to the
specific quantum of exposure attributable to the
defendants, but was instead based on his medi‐
cal and scientific opinion that every exposure is
a substantial contributing factor to the cumula‐
tive exposure that causes cancer. See, Trial Tr. at
262:13–16 (“… 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. at 262:8–9 (“If the expo‐
sure took place, it was part of the cumulative ex‐
posure 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 plaintiffʹs
counsel as describing the testimony as one
based on cumulative exposure)
Krik, 2015 WL 5050143, at *1 (J. Shah) (emphasis added).
Thus, Judge Shah made clear that he was following Judge
Lee’s previous ruling when he made a determination in line
with that ruling—that is, that both theories are the same for
purposes of determining causation:
Judge Lee addressed the “cumulative expo‐
sure” testimony proposed by the plaintiff in his
opinion. And at pages 7 to 8 of his opinion, he
No. 15‐3112 13
quotes plaintiff’s counsel as saying that cumu‐
lative exposure is the cause, and that what Dr.
Frank is saying is that each exposure is a sub‐
stantial contribution to the cumulative total.
Judge Lee then held that, “This is not an ac‐
ceptable approach for a causation expert to
take.”
***
That is the “each and every exposure” theory
that Judge Lee has barred, and so Dr. Frank can‐
not 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 not an ac‐
ceptable approach for a causation expert to take, namely … to
take an approach based on cumulative exposure that’s in‐
formed by an each‐and‐every exposure opinion, it remains
clear to me in light of the factual proffer that Dr. Frank’s cu‐
mulative 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 ex‐
posure to carcinogens, if any, caused an illness. In other
words, just like “each and every exposure,” the cumulative
exposure theory does not rely upon any particular dose or ex‐
posure to asbestos, but rather all exposures contribute to a cu‐
mulative dose. The ultimate burden of proof on the element
of causation, however, remains with the plaintiff. Shelton v.
14 No. 15‐3112
Old Ben Coal Co., 933 F.2d 504, 508 (7th Cir. 1991); Nolan v.
Weil‐McClain, 233 Ill. 2d 416, 435 (Ill. 2009). Requiring a de‐
fendant to exclude a potential cause of the illness, therefore,
improperly shifts the burden to the defendants to disprove
causation and nullifies the requirements of the “substantial
factor” test. The Sixth and Ninth Circuits have likewise ex‐
cluded these cumulative and/or ”each and every exposure”
theories for similar reasons. As the Ninth Circuit explained:
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., 817 F.3d 1170, 1177 (9th Cir.
2016) (internal citations omitted). Lindstrom v. A‐C Prod. Liab.
Tr., 424 F.3d 488, 493 (6th Cir. 2005) (“The requirement, how‐
ever, is that the plaintiff make a showing with respect to each
defendant that the defendant’s product was a substantial fac‐
tor in plaintiff’s injury … . A holding to the contrary would
permit imposition of liability on the manufacturer of any
product with which a worker had the briefest of encounters
on a single occasion.”)
As Owens‐Illinois points out in its brief, more than thirty
other federal courts and state courts have held that this cumu‐
lative/”any exposure” theory is not reliable. See Brief of Ow‐
ens‐Illinois at 46–47 (citing cases); Notice of Supplemental
No. 15‐3112 15
Authorities, Appellate Court Record at 70. The district court
did not err and certainly did not abuse its discretion by ex‐
cluding this testimony.
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
evidentiary decisions, we review this decision for an abuse of
discretion. Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714,
722 (7th Cir. 2003). The Helsinki document is a statement de‐
veloped at an international public policy conference in Hel‐
sinki in 1997 by consensus by a group of nineteen experts in
the field of asbestos disease. R. 412‐4 at 1, pageID . One prop‐
osition within the Helsinki document states that “[c]umula‐
tive exposure on a probability basis should thus be consid‐
ered the main criteria for the attribution of a substantial con‐
tribution by asbestos to lung cancer risk.” R. 412‐4 at 4, pageID
13657. No party established that the Helsinki criteria came
from a learned treatise or was the result of any scientific stud‐
ies. As Dr. Frank himself testified, the document came from
the consensus of a number of experts and, indeed, Dr. Frank
disagreed with some of the statements in the document, par‐
ticularly the document’s probability‐based methodology that
concludes that the “likelihood that asbestos exposure has
made a substantial contribution increases when the exposure
increases.” Id. Dr. Frank did not refer to the document, let
alone rely on it. Judge Shah concluded that the generalness of
the document would end up being unfairly prejudicial and
would confuse the jury. Specifically, Judge Shah explained:
As a set of consensus principles announced by
an international public policy conference, these
16 No. 15‐3112
criteria were not substantive evidence of causa‐
tion; rather, they were materials that could be
relied upon by an expert. In this case, the Hel‐
sinki Criteria provided a backdrop to the his‐
tory of the study of asbestos and disease, and
fodder for cross‐examination of defendants’ ex‐
perts. But they were not admissible as inde‐
pendent exhibits of substantive evidence or as a
foundation for inadmissible causation testi‐
mony. Moreover, based on the ruling excluding
unreliable and non‐case‐specific causation testi‐
mony, 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’ liabil‐
ity 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 plain‐
tiff.
Krik, 2015 WL 5050143, at *1, n.3 (J. Shah). Many other courts
have rejected the Helsinki criteria for similar reasons. See, e.g.,
Rockman v. Union Carbide Corp., No. CV RDB‐16‐1169, 2017
WL 3022969, at *5 (D. Md. July 17, 2017); Bell v. Foster Wheeler
Energy Corp., No. CV 15‐6394, 2016 WL 5847124, at *3, n.3
(E.D. La. Oct. 6, 2016), reconsideration denied, No. CV 15‐6394,
2017 WL 876983 (E.D. La. Mar. 6, 2017); Watkins v. Affinia Grp.,
2016‐Ohio‐2830, ¶ 37, 54 N.E.3d 174, 182; Matter of James Wil‐
son Assoc., 965 F.2d 160, 173 (7th Cir. 1992); United States v.
Dixon, 413 F.3d 520, 524–25 (5th Cir. 2005); Yates v. Ford Motor
Co., 113 F. Supp. 3d 841, 862 (E.D.N.C. 2015); Betz v. Pneumo
No. 15‐3112 17
Abex, LLC, 44 A.3d 27, 47, 55 n.35 (Pa. 2012); Bostic v. Georgia‐
Pacific Corp., 439 S.W.3d 332, 356–57 (Tex. 2014). We cannot
say that it was an abuse of discretion for the district court to
do likewise.
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 wit‐
nesses. Juror McGregor reported that she did not know any‐
one 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 Scamen. 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, pageID 9547.
The court read the note to counsel for all parties. Krik’s
counsel responded, “From plaintiff’s end, I don’t see that
poses any problem.” R. 375 at 108, pageID 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 Scamen and that he did not
think he was at the birthday party. McGregor stated that she
was not sure whether she encountered Krik at Scamen’s birth‐
day party, that Scamen 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 subse‐
quent motion for a mistrial. We review a district court’s deci‐
sion to deny the request for a new trial for an abuse of discre‐
tion. United States v. Hilliard, 851 F.3d 768, 778 (7th Cir. 2017).
18 No. 15‐3112
After the jury returned the verdict, Judge Shah met with
the jurors to thank them for their service. During that conver‐
sation, McGregor revealed that she had learned that an inves‐
tigator, whom she believed to be working for the defense, had
contacted her friend Scamen to ask about his birthday party.
No one had ever approached the court about such an investi‐
gation, 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 re‐
ceived 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, pageID 12731. The defense counsel
further admitted that it was aware of the risk that the investi‐
gation might have 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, pageID 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 Scamen 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 dur‐
ing the course of a trial.
To obtain a new trial based on improper contact with a ju‐
ror, the complaining party must show prejudice. United States
v. Olano, 507 U.S. 725, 739 (1993) (the ultimate inquiry is “Did
No. 15‐3112 19
the intrusion affect the jury’s deliberations and thereby its
verdict?”) The party seeking a new trial bears the burden of
demonstrating the likelihood of prejudice, and it is a heavy
burden at that. Aldridge v. Forest River, Inc., 635 F.3d 870, 876
(7th Cir. 2011).
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, 455 U.S. 209, 215 (1982). But the hearing must walk
a fine line. Our system stringently protects the confidential
deliberations of juries both for the sake of finality and lest ju‐
rors be chilled from frank discussion in their deliberations
and subject to continual harassment by those wishing to set
aside a verdict. See, e.g. Tanner v. United States, 483 U.S. 107,
119–20 (1987). This protection is embodied in Federal Rule of
Evidence 606(b) which prohibits most testimony about what
influenced a juror. The rule states:
(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 dur‐
ing the jury’s deliberations; the effect of any‐
thing on that juror’s or another juror’s vote; or
any juror’s mental processes concerning the ver‐
dict or indictment. The court may not receive a
20 No. 15‐3112
juror’s affidavit or evidence of a juror’s state‐
ment on these matters.
(2) Exceptions. A juror may testify about
whether:
(A) extraneous prejudicial information was im‐
properly brought to the jury’s attention;
(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 re‐
quired hearing and Rule 606(b)’s prohibitions, a court must
limit the questions asked the jurors to whether
the communication was made and what it con‐
tained, and then, having determined that com‐
munication took place and what exactly it said,
to determine—without asking the jurors any‐
thing 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, 692 F.3d 793, 806 (7th Cir. 2012) (citing Haugh v.
Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991)).
The district court determined that no hearing was re‐
quired in this case, both because Krik had not asked for one,
and more importantly, there was no dispute as to the exist‐
ence or content of the communication. See United States v.
No. 15‐3112 21
Sanders, 962 F.2d 660, 673 (7th Cir. 1992) (no hearing required
where questioning jurors would not have revealed additional
information). The only question is one that cannot be helped
by a hearing—whether there is a reasonable possibility that
the jury’s verdict was altered by the investigation in any man‐
ner. That question could only be answered by asking the ju‐
rors the quintessential forbidden question as to what role the
communication played in their thoughts or discussion. See
Hall, 692 F.3d at 806.
In this case, the district court determined that:
There was no prejudice to Krik in Mobil’s inter‐
view of Scamen. In this context, prejudice is
demonstrated through conduct that leads to a
compelling inference of external pressure to re‐
turn a verdict unfavorable to the movant. No
such inference is reasonable here because de‐
fendants did not directly contact the juror and
the subject of their interview with Scamen was
entirely independent of the merits of the case.
Krik, 2015 WL 5050143 at *3 (J. Shah). The district court sur‐
veyed the types of contact that might be deemed prejudicial—
attempted or perceived bribes, exposure to extraneous infor‐
mation directly concerning liability, threats, indirect commu‐
nications suggesting a party’s guilt, and external contact that
forces a verdict. See Id. (citing cases). The court noted that con‐
duct that has no obvious implication on the outcome of the
trial is not prejudicial.
Despite our holding in this case, we note that in general
investigating a sitting juror is fraught with danger—such an
22 No. 15‐3112
investigation could be seen by the juror as intimidation or har‐
assment. Such an investigation might lead a juror to be con‐
cerned that the continued investigations might reveal embar‐
rassing or private details of her life, or worry that even a be‐
nign short investigation might be just the beginning of a much
more thorough and invasive one. This could breed resent‐
ment, anxiousness, or distract a juror from the task at hand.
See Sinclair v. United States, 279 U.S. 749, 765 (1929) (“The mere
suspicion that he, his family, and friends are being subjected
to surveillance by such persons is enough to destroy the equi‐
librium of the average juror and render impossible the exer‐
cise of calm judgment upon patient consideration.”) It could
also be viewed by a court as a bad faith attempt to purposely
create prejudice and thus have an unwanted juror removed
from the jury. In this case, just after McGregor sent her note,
the defendants moved unsuccessfully to have her removed
from the jury. A cynical court might view the investigation of
the juror as a back‐door attempt to create prejudice. Moreo‐
ver, there is no reason why counsel for Mobil could not have
asked the court for permission to conduct this limited inves‐
tigation. From the discussion during the post‐trial proceed‐
ing, it appears that Mobil’s counsel was either hoping that its
investigation would not be discovered or banking on the pos‐
sibility that it could ask for forgiveness later rather than be
denied permission up front. We do not condone such behav‐
ior and would encourage, as the district court proposed, that
such a practice be evaluated by the court’s rules committee or
chief judge. We also do not think that, in the normal course of
events, a judge’s admonition that “anything that you have
seen or heard outside the courtroom is not evidence and must
No. 15‐3112 23
be entirely disregarded” cures this particular potential prob‐
lem. The curative instruction is unlikely to remedy the ills of
a distracted, unnerved, or embarrassed juror.
For this case, however, we need not rule about the propri‐
ety 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 investiga‐
tor questioned McGregor’s friend and not McGregor.
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 be‐
nign and there is no proof that prejudice was reasonably
likely.” See Krik, 2015 WL 5050413 at *4 (J. Shah). Moreover,
the facts of this case are far from that of Sinclair, upon which
Krik relies. In Sinclair, the jurors themselves were surveilled
from the moment they left the courtroom until they went to
sleep. Sinclair, 279 U.S. at 758. In this case, an investigator ap‐
proached a non‐juror and asked a few benign questions that
had no bearing on the substance of the case and there was no
evidence that the juror was intimidated or pressured by the
investigation.
In determining whether a party was prejudiced, a court
also may consider the strength of the party’s case. See Hall, 692
F.3d at 807 (“If, hypothetically, the legitimate evidence pre‐
sented by the State in a habeas petitioner’s case was over‐
whelming, and the trial judge in such a case gave a stern pre‐
verdict warning to the jurors to only consider facts that were
presented during trial, concerns about the prejudicial impact
24 No. 15‐3112
of extraneous information might be lessened.”). As we con‐
cluded above, Krik’s proffered expert testimony on causation
did not meet the standards required under Federal Rule 702
and Daubert and without it his case was fatally weak. Krik,
2015 WL 5050413 at *4 (J. Shah). Krik was not prejudiced by
Mobil’s investigation because judgment in favor of the de‐
fendants was inevitable once it became clear that Krik could
not prove causation.
The Appellee’s Motions to Strike Appellant’s Letter of Sup‐
plemental Authority is denied. The decision of the district
court is affirmed in all respects, including the assignment of
costs and fees.