Preclusion of Plaintiff’s Expert Witness and Defendant’s Investigation of Juror Do Not Warrant New Trial
In this federal case, the plaintiff, Charles Krik, sued Owens-Illinois and ExxonMobil and claimed they negligently exposed him to asbestos, causing his lung cancer. The case went to trial and a verdict was returned in favor of the defendants as the jury found that the plaintiff’s smoking was the sole cause of his lung cancer. The plaintiff subsequently moved for a new trial, arguing that the exclusion of his expert was in error and prejudicial and that Mobil’s investigation of contact between the plaintiff and a sitting juror called for a new trial.
The court found that the exclusion of the plaintiff’s expert, Dr. Arthur Frank, was appropriate since Dr. Frank was offering an opinion on “every exposure.” As the court held: “At trial, Krik called Frank in an attempt to elicit causation testimony that did not run afoul of the ruling on the motion in limine. But, 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 a substantial contributing factor to the cumulative exposure that causes cancer.”
The court also denied the plaintiff a new trial based on Mobil’s investigation, stating: “In this case, an investigator questioned a juror’s friend to determine whether the juror and the plaintiff attended the same birthday party. The juror did learn about the interview, but nothing about it had any bearing on the ultimate issues at trial. There was no intimidation of (or direct contact with) McGregor in the interview of Scamen. The juror previously brought the birthday party to the court’s attention herself, and she was questioned about it in open court, so she understood it was noteworthy; the fact that there was some follow up conducted by the defendants was not likely to influence her view of either party on the merits of the case. In sum, the nature of this investigation was relatively benign, and there is no proof that prejudice was reasonably likely.”
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