November 30, 2017 Articles

Lawyers Investigate Juror Without Court’s Knowledge or Permission

Learn how Exxon Mobil counsel put a case at risk with potential juror intimidation

By Michael R. Lied

Charles Krik has lung cancer. He sued Owens-Illinois, Inc., and Exxon Mobil Corp. as asbestos defendants. Causation was murky. Krik smoked a pack and a half of cigarettes every day for 30 years, but he also worked aboard navy vessels removing insulation produced by Owens-Illinois, which he claimed exposed him to asbestos fibers. For two weeks, he worked as an independent contractor at Exxon Mobil’s Joliet, Illinois, refinery replacing heaters that Krik claimed were insulated with asbestos.

After a seven-day trial, a jury found that cigarettes were the sole cause of Krik’s cancer. On appeal, Krik claimed that two rulings by the district court deprived him of a fair trial. First, he asserted that the district court erred by excluding testimony about medical causation from his expert, Dr. Arthur Frank. But that is not the focus of this article, because it is specific to asbestos-related injuries. Second, Krik claimed 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.

As is routinely the case, during jury selection, prospective jurors were asked if they recognized anyone involved in the case. Juror McGregor reported that she did not know anyone on the list. The next day, though, 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 Seamen.”

The court read the note to counsel for all parties. 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 Seamen and that he did not think he was at the birthday party. McGregor stated that she was not sure whether she encountered Krik at Seamen’s birthday party, that Seamen 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 later motion for a mistrial.

After the jury returned its verdict, the judge met with the jurors to thank them for their service. During that conversation, McGregor said that she had learned that an investigator, whom she believed to be working for the defense, had contacted her friend Seamen to ask about his birthday party. Several days later, the court, sua sponte, scheduled a post-trial status conference in which the judge advised all counsel of the information he had received from McGregor. Counsel for Mobil confessed to having sent out the investigator, admitting that counsel researched the permissibility and found nothing directly on point. Counsel also said it had considered advising the court but opted against it. Counsel further admitted that it was aware of the risk that the investigation might have an impact on a sitting juror, that the investigation might be deemed to be an invasion of her privacy, and that it was willing to take the risk nevertheless. Owens-Illinois was also aware of the investigation, but neither defense counsel informed Krik’s counsel.

Krik argued that the investigation prejudiced the trial and filed a motion requesting a new trial. To obtain a new trial based on improper contact with a juror, the complaining party must show prejudice. 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.

The trial court determined that no hearing was required, both because Krik had not asked for one and, more importantly, because there was no dispute as to the existence or content of the communication.

According to the appeals court, the only question was one that could not be helped by a hearing—whether there was a reasonable possibility that the jury’s verdict was altered by the investigation in any manner. That question could be answered only by asking the jurors the “quintessential forbidden question” as to what role the communication played in their thoughts or discussion.

The court noted that conduct that has no obvious implication on the outcome of the trial is not prejudicial. That being said, the appeals court remarked that investigating a sitting juror is fraught with danger because an investigation could be seen by the juror as intimidation or harassment. An investigation might lead a juror to be concerned that the continued investigation might reveal embarrassing or private details of her life, or to worry that even a benign, short investigation might be just the beginning of a much more thorough and invasive one.

As noted, 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.” In addition, there was no reason why counsel for Mobil could not have asked the court for permission to conduct this limited investigation. It appeared that Mobil’s counsel was either hoping that its investigation would not be discovered or counting on the possibility that it could ask for forgiveness later, rather than be denied permission up front. The court of appeals said it did not condone such behavior and would encourage that such a practice be evaluated by the court’s rules committee or chief judge.

Regardless, the court had determined that there was no prejudice to Krik and that the investigation could not have altered the course or outcome of the trial. In addition, the investigator 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, decreasing the chance that its revelation would bring about any embarrassment or surprise for her. As the trial court noted, the nature of the investigation was relatively benign and there was no proof that prejudice was reasonably likely.

Finally, in determining whether a party was prejudiced, a court can also consider the strength of the party’s case. Krik’s proffered expert testimony on causation did not meet the standards required under Federal Rule of Evidence 702 and Daubert, and without it, his case was fatally weak. Krik was not prejudiced by Mobil’s investigation because judgment in favor of the defendants was inevitable once it became clear that Krik could not prove causation.

The takeaway? Mobil’s counsel was playing with fire in conducting the investigation without the court’s knowledge or permission.

The case is Krik v. Exxon Mobil Corp., 870 F.3d 669 (7th Cir. 2017).

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