Judge refuses new trial vs Owens, Exxon for pipefitter with lung cancer a jury found was caused by cigarettes, not asbestos

By Dan Churney | Aug 28, 2015

RJ Reynolds Tobacco Company is being sued by an individual claiming she developed mesothelioma because the company's cigarettes in the 1950s contained asbestos.   Shutterstock

A Chicago federal judge refused to grant a new trial Aug. 25 for a retired pipefitter from Braidwood, who failed to convince a jury earlier this year exposure to asbestos on corporate job sites, rather than a cigarette smoking habit, had caused his lung cancer.

Charles Krik filed suit in November 2010 in Chicago federal court against Owens-Illinois, ExxonMobil and others, claiming his lung cancer was caused, in part, because the companies negligently exposed him to asbestos while he worked as a pipefitter from the 1950s to the 1990s. Krik conceded his 30-year, pack-and-a-half-a-day cigarette habit was a factor in his cancer, but claimed there was a “synergistic effect” between his smoking and asbestos exposure.

By the time of trial in April 2015, Owens-Illinois and ExxonMobil were the only remaining defendants.

The companies said Krik’s cigarette use was the only cause of Krik’s cancer. On May 1, 2015, after a 10-day trial, a jury sided with the companies, finding Krik’s smoking was the “sole proximate cause” of his cancer.

Krik’s attorneys filed a motion for a new trial on the grounds Judge John Z. Lee erred when he limited the testimony of Krik’s expert witness, Dr. Arthur Frank. The doctor wanted to testify any exposure to asbestos, regardless of the amount of exposure, is a substantial contributing cause of cancer.

Attorneys for Owens-Illinois and ExxonMobil replied Frank’s view was not scientifically reliable and ignored a “fundamental principle of toxicology – that the dose makes the poison.” The attorneys asked the judge to prohibit Frank from testifying that any exposure to asbestos can contribute to cancer.

The attorneys filed a Daubert motion, asking Judge Lee to determine if the “any exposure” part of Frank’s potential testimony was scientifically valid and applied to the case. Lee ruled it was not valid, barring Frank from mentioning his “any exposure” theory during his testimony.

Judge Manish S. Shah, who presided over the trial, addressed Krik’s motion for new trial. The judge made short shrift of it, saying Krik’s attorneys relied on the same arguments they advanced earlier, and as those arguments failed the first time around with Judge Lee, they failed again with him for the same reason.

Krik’s attorneys also sought a new trial on the basis ExxonMobil may have had improper contact with a juror during the trial.

Krik said a woman, who was eventually chosen for the jury, said during jury selection she did not know anyone involved in the case. However the next day, after the woman was picked for the jury, she told Judge Shah she remembered she had once been at a birthday party for another pipefitter, and she wasn’t sure if Krik had also been present. Krik said he did not know the other pipefitter and was probably not in attendance at the party.

ExxonMobil and Owens-Illinois made a motion to eject the woman from the jury, but Shah refused.

After the verdict, Shah learned an investigator hired by ExxonMobil had questioned the other pipefitter about his birthday bash, with Owens-Illinois knowing of the investigation. However, Krik and his legal team were not aware, and alleged the investigator tainted the jury.

Shah posed the problem facing him: “The question is whether there is a reasonable possibility that the jury’s verdict was altered by the investigation.”

He answered that question with a negative.

Shah ruled the investigator did not contact the juror, but rather the other pipefitter, and that questioning did not address the merits of the case or pressure or intimidate the juror.

“The nature of this investigation was relatively benign,” Shah said.

Shah added that any question the investigation prejudiced the juror against Krik, was wiped out by the fact Krik’s case was “weak – perhaps fatally so . . because judgment in favor of the defendants was inevitable.”

The motion for a new trial was denied.

In a separate ruling Aug. 25, Shah ordered Krik to pay $23,191 to Owens-Illinois and $16,303 to ExxonMobil for costs connected to the suit.

Krik was represented by Cascino Vaughan Law Offices, of Chicago.

ExxonMobil was defended by Johnson & Bell, of Chicago and Blackwell Burke, of Minneapolis. Owens-Illinois was defended by SchiffHardin LLP, of Chicago and Quilling, Selander, Lowinds, Winslett Moser, of Dallas.

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Organizations in this Story

Blackwell Burke P.A. Cascino Vaughan Law Offices Ltd ExxonMobil Johnson & Bell, Ltd. Owens-Illinois QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. Schiff Hardin LLP

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