David Stults v. International Flavors, etc

United States Court of Appeals
For the Eighth Circuit
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No. 14-3658
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David Stults; Barbara Stults
lllllllllllllllllllll Plaintiffs - Appellants
v.
American Pop Corn Company; ConAgra Foods, Inc.; General Mills, Inc.;
Givaudan Flavors Corporation
lllllllllllllllllllll Defendants
International Flavors & Fragrances, Inc.
lllllllllllllllllllll Defendant - Appellee
Sensient Flavors, LLC
lllllllllllllllllllll Defendant
Bush Boake Allen Inc.
lllllllllllllllllllll Defendant - Appellee
Symrise Inc.; CHR. Hansen, Inc.; Firmenich, Inc.; John Does 1-20
lllllllllllllllllllll Defendants
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: October 22, 2015
Filed: March 4, 2016
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Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
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RILEY, Chief Judge.
David Stults (Stults) consumed one to three bags of microwave popcorn each
day for approximately twenty years. In 2009, Stults was diagnosed with the lung
disease bronchiolitis obliterans, which he attributes to his consumption of a chemical
used to give the popcorn its butter flavor. In this diversity action, Stults and his wife
Barbara (the Stultses), residents of Michigan, sued numerous makers and distributors
of microwave popcorn and butter flavoring, alleging their products caused Stults’s
disease. See 28 U.S.C. § 1332(a)(1). This appeal pertains only to International
Flavors & Fragrances, Inc., a New York corporation, and its subsidiary, Bush Boake
Allen Inc., a Virginia and New York corporation (collectively, IFF). After a jury
found in favor of IFF, the Stultses moved for judgment as a matter of law or a new
trial. The district court1 denied the motions, and the Stultses appeal. Having
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Stults ate a lot of popcorn. For approximately twenty years, he practiced “a
ritual of slowly opening the freshly-popped bag as he breathed the aroma in through
his nose” one to three times per day. Stults originally estimated he stopped eating
popcorn around 2004, but later gave conflicting accounts of his popcorn consumption
history. A chemical named diacetyl that IFF once used in a butter flavoring for
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
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microwave popcorn has been shown to cause bronchiolitis obliterans, at least in
workers who are exposed to industrial quantities of diacetyl over long durations.
The Stultses sued numerous makers and distributors of microwave popcorn and
butter flavoring on theories of strict liability, negligence, and breach of implied
warranty under Michigan law. Only the Stultses’ breach-of-implied-warranty claim
against IFF, with a related loss-of-consortium claim, went to trial. IFF asserted,
among others, affirmative defenses of sole proximate cause and fault of others.
At trial, a number of expert witnesses agreed Stults has bronchiolitis obliterans.
Opinions differed as to whether the condition was caused by diacetyl exposure or an
unrelated autoimmune disease. One of the Stultses’ expert witnesses, Dr. David
Egilman, testified Stults’s bronchiolitis obliterans was caused by his inhalation of
microwave popcorn fumes containing diacetyl. Dr. Egilman acknowledged he wrote
the only published article supporting the theory that consumers—as opposed to
industrial workers—can get bronchiolitis obliterans from diacetyl. The article
appeared in a journal he edited.
The Stultses presented testimony from a second witness, Dr. Allen Parmet, an
occupational medicine expert who was familiar with bronchiolitis obliterans among
popcorn plant workers. He testified diacetyl was “the most probable cause” of
Stults’s condition. The Stultses’ third expert witness, pulmonologist Dr. Charles Pue,
testified Stults “definitely” had enough exposure to diacetyl to cause bronchiolitis
obliterans and his condition was “consistent with bronchiolitis obliterans caused by
diacetyl.”
IFF’s theory was that Stults’s bronchiolitis obliterans was caused by a
rheumatoid, autoimmune condition unrelated to diacetyl exposure. One of IFF’s
expert witnesses, Dr. Paul Wolters, testified Stults likely had an autoimmune
condition, based on his complaints of several potentially autoimmune symptoms in
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2008-2010. Dr. Wolters did not believe diacetyl was the culprit because Stults’s
symptoms did not develop until several years after he stopped eating microwave
popcorn regularly.
IFF also presented evidence from Dr. Richard Meehan, a rheumatologist who
testified Stults had rheumatoid arthritis. Before Dr. Meehan testified, the parties
disputed whether Dr. Meehan had considered diacetyl in his differential diagnosis.
The district court permitted Dr. Meehan to testify to see if IFF could lay a proper
foundation after IFF’s counsel averred, “I’m confident you’re going to be satisfied.”
When Dr. Meehan took the stand, he began to testify about articles that had never
been provided to the Stultses’ counsel and the Stultses’ counsel objected. The jury
was excused and it came to light that Dr. Meehan had done additional research to
prepare for trial unbeknownst to IFF’s counsel. The district court said
I think I would be well within my discretion to exclude the witness . . . .
Wouldn’t even be a close call. But . . . as an alternative to doing
that . . . his testimony has to be limited to his disclosure report . . . . And
no one can ask him obviously about these additional articles. He can’t
refer at all to these additional articles. And I know it’s virtually
impossible, but you have to try and put them out of your head when you
answer and try and answer as if it was before you read the articles. You
know, it’s inhuman to ask that. All I can do is ask you to do the best you
can.
Dr. Meehan resumed his testimony before the jury. He testified he had not
considered whether diacetyl had caused Stults’s bronchiolitis obliterans because “he
had enough criteria of a systemic autoimmune disease that whether or not he used
popcorn was really irrelevant.” Following this concession that he had failed to
conduct a proper differential diagnosis, the district court struck all of Dr. Meehan’s
testimony. The jury was instructed: “I have just stricken all of Dr. Meehan’s
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testimony. You’re not to speculate as to the reason or reasons why. But you are
instructed that you have to disregard all of his testimony.”
The jury also heard deposition testimony from Dr. Richard Switzer, Stults’s
primary-care physician since 1993. Stults had reported several potentially rheumatoid
symptoms to Dr. Switzer over the years, and Dr. Switzer referred him to a
rheumatologist in 2008. Dr. Switzer testified he had no opinion as to whether Stults’s
diacetyl exposure caused his bronchiolitis obliterans.
Stults’s rheumatologist, Dr. Aaron Eggebeen, described Stults’s condition as
a non-specified atypical presentation of “a form of rheumatoid lung disease” or
“potentially a connective tissue disease.” Stults had alerted him to the potential
diacetyl connection, but Dr. Eggebeen could not identify a source of Stults’s disease.
He testified, “[w]hether or not the diacetyl has anything to do with it, I’m not sure
how to judge that.”
IFF also presented Dr. Coreen Robbins, an industrial hygienist who testified
“consumer exposure to diacetyl from popping microwave popcorn is insignificant.”
She testified about an “experiment” in which she popped popcorn to see when she
could put her nose in the bag, which she determined to be approximately one minute.
She also measured the temperature of the air coming out of the bag and determined
“[y]ou really can’t stick your nose right in it” because it is too hot. The experiment
portion of her testimony was stricken and the jury was instructed
there are just too many dissimilarities between what she did and what
Mr. Stults was doing. We don’t have the same popcorn bags. We don’t
have the same strength [microwave]. We don’t know how long it was
cooked for. There’s just a whole lot of variables that aren’t the same or
similar enough to make it admissible evidence.
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Following a jury verdict in favor of IFF, the Stultses moved for judgment as a
matter of law or a new trial. The Stultses sought a new trial based on Dr. Meehan’s
and Dr. Robbins’s stricken testimony and Dr. Wolters’s admitted testimony, arguing
the jury was improperly influenced by it despite the limiting instructions. The
Stultses based this assertion in part on juror interviews conducted after the trial. The
Stultses requested, as an alternative to a new trial, an evidentiary hearing to determine
whether juror misconduct occurred. The Stultses argued they were entitled to
judgment as a matter of law because “three elements of [their] breach of implied
warranty claim were not disputed and should not have been submitted to the jury.”
Finally, the Stultses asserted they were entitled to judgment as a matter of law
because IFF failed to prove its affirmative defenses of sole proximate cause and fault
of others. The district court denied the motions, and the Stultses appeal.
II. DISCUSSION
A. New Trial
A new trial may be granted on all or some issues “after a jury trial, for any
reason for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1)(A). We review the district court’s “denial of a new
trial for a ‘clear abuse of discretion,’ reversing only ‘to prevent a miscarriage of
justice.’” Behlmann v. Century Sur. Co., 794 F.3d 960, 963 (8th Cir. 2015) (quoting
Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 878 (8th Cir. 2015)).
The Stultses assert “the district court erred in denying the Stultses [sic] motion
for a new trial because the jury was allowed to hear improper testimony from
IFF/BBA’[s] retained experts” and because the verdict was against the weight of the
evidence. According to the Stultses, they are entitled to a new trial because
“‘improper questioning by counsel generally entitles the aggrieved party to a new trial
if it conveys improper information to the jury and prejudices the opposing litigant.’”
Blair v. Wills, 420 F.3d 823, 829 (8th Cir. 2005) (alteration omitted) (quoting
Silbergleit v. First Interstate Bank of Fargo, N.A., 37 F.3d 394, 398 (8th Cir. 1994)).
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“In appraising prejudicial remarks and conduct . . . , the court must consider ‘the
climate of the contest in which it occurred.’” Sanders-El v. Wencewicz, 987 F.2d
483, 485 (8th Cir. 1993) (quoting Westchester Fire Ins. Co. v. Hanley, 284 F.2d 409,
416 (6th Cir. 1960)). Relevant factors include the closeness of the case, whether
counsel acted in good faith, and whether the jury was left with the wrong impression.
Cf. id.
1. Dr. Meehan’s Testimony
The Stultses first argue they are entitled to a new trial because Dr. Meehan’s
stricken testimony was prejudicial, suggesting “[t]he significant amount of evidence
in [the Stultses’] favor demonstrates the prejudicial effect the improper testimony
had.” The Stultses also claim IFF’s counsel “intentionally chose not to be candid
with the Court and instead took any position necessary to get Dr. Meehan’s testimony
in front of the jury.” The Stultses maintain the district court’s curative instruction
was insufficient because it “told the jury to put [Dr. Meehan’s] testimony out of their
minds while admitting to them it knew that was impossible. Adding even more
confusion to the issue the court said Dr. Meehan had done nothing wrong.” The
Stultses propose the jury was left with the impression “Dr. Meehan was a saint whose
only mistake was to continue researching on the topic beyond some arbitrary court-
imposed deadline.” Finally, the Stultses contend they were entitled to an evidentiary
hearing because some jurors stated during post-trial interviews they had relied on Dr.
Meehan’s stricken testimony. We address the Stultses’ arguments in turn.
First, because the Stultses failed to object to the district court’s curative
instruction concerning Dr. Meehan’s testimony, they forfeited any error “absent a
showing of plain error.” Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765,
771 (8th Cir. 1998). “‘Plain error is a stringently limited standard of review,’
especially in the civil context, and must result in a miscarriage of justice in order to
compel reversal.” Id. (quoting Rush v. Smith, 56 F.3d 918, 925 (8th Cir. 1995) (en
banc) (Magill, J., dissenting)). “We normally presume that a jury will follow an
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instruction to disregard inadmissible evidence inadvertently presented to it, unless
there is an ‘overwhelming probability’ that the jury will be unable to follow the
court’s instructions.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (quoting
Richardson v. Marsh, 481 U.S. 200, 208 (1987)).
We are not convinced there was “an overwhelming probability” the jury could
not follow the curative instruction provided here. See id. Although the Stultses are
technically correct that Dr. Meehan was “the only witness to testify that Mr. Stults has
rheumatoid arthritis,” three other witnesses were in substantial agreement that Stults’s
bronchiolitis obliterans was related to an autoimmune or rheumatoid process. Cf.,
e.g., Winter v. Novartis Pharm. Corp., 739 F.3d 405, 411 (8th Cir. 2014) (explaining
it is harmless error to admit inadmissible evidence that is cumulative of admissible
evidence). Dr. Wolters testified Stults’s condition was caused by an autoimmune
disorder, not diacetyl exposure. And Stults’s two treating physicians agreed Stults
suffered from an autoimmune disorder, and they did not connect his disease to
diacetyl. Finally, although what happened during Dr. Meehan’s testimony is
perplexing, we are not persuaded it was an intentional attempt by defense counsel to
put inadmissible evidence in front of the jury.
Second, the district court did not abuse its discretion by denying the Stultses’
request for an evidentiary hearing. See, e.g., United States v. Johnson, 495 F.3d 951,
981 (8th Cir. 2007) (“‘The district court has broad discretion in managing juror
misconduct allegations, and its decision whether to conduct an evidentiary hearing
over such allegations will be affirmed absent an abuse of discretion.’” (quoting
United States v. Wintermute, 443 F.3d 993, 1002 (8th Cir. 2006))). Federal Rule of
Evidence 606(b)(1) provides: “During an inquiry into the validity of a verdict . . . a
juror may not testify about any statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or
any juror’s mental processes concerning the verdict.” There are exceptions permitting
a juror to testify “about whether . . . extraneous prejudicial information was
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improperly brought to the jury’s attention . . . [or] an outside influence was
improperly brought to bear on any juror.” Fed. R. Evid. 606(b)(2)(A), (B).
We have described “extraneous information” as “objective events such as
‘publicity and extra-record evidence reaching the jury room, and communication or
contact between jurors and litigants, the court, or other third parties.’” Warger v.
Shauers, 721 F.3d 606, 611 (8th Cir. 2013) (quoting United States v. Krall, 835 F.2d
711, 716 (8th Cir. 1987)), aff’d 574 U.S. ___, ___, 135 S. Ct. 521, 525 (2014).
Stricken testimony does not constitute “extraneous information.” There is no need
for a juror to testify about “whether” stricken testimony was “brought to the jury’s
attention.” See Fed. R. Evid. 606(b). The existence of the stricken testimony is not
in doubt. Rather, a juror’s testimony that the jury relied on stricken evidence is
precisely what is barred by Rule 606(b): testimony concerning “the effect of anything
on that juror’s or another juror’s vote; or any juror’s mental processes.” Id. (emphasis
added); see also Warger v. Shauers, 574 U.S. ___, ___, 135 S. Ct. 521, 528 (2014)
(“[T]he ‘inquiry’ to which the Rule refers is one into the ‘validity of the verdict,’ not
into the verdict itself. The Rule does not focus on the means by which deliberations
evidence might be used to invalidate a verdict.”).
Furthermore, the Stultses’ position is at odds with the purpose of Rule 606(b).
Permitting inquiry into whether jurors failed to disregard stricken testimony would
invite scrutiny into many jury verdicts and seriously undermine the finality of
verdicts. See Warger, 721 F.3d at 612 (“In order to achieve finality in the litigation
process and avoid relentless post-verdict scrutiny and second guessing, occasional
inappropriate jury deliberations must be allowed to go unremedied.”). The district
court did not abuse its discretion by denying the Stultses’ motion for an evidentiary
hearing.
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2. Dr. Robbins’s Testimony
The Stultses next theorize “the improper testimony of Dr. Robbins required a
new trial” because her “experiment” did “not constitute scientific knowledge” and
“invaded the province of the jury because it went to [Stults’s] credibility.” The
district court concluded the Stultses forfeited this claim because they failed to make
a contemporaneous objection. When the district court struck Dr. Robbins’s testimony
about her popcorn bag experiment, it asked if “the parties [were] satisfied with that
explanation” and the Stultses’ counsel said yes. Because the Stultses failed to object
to the district court’s decision to exclude only a portion of Dr. Robbins’s testimony,
they forfeited any error “absent a showing of plain error.” Horstmyer, 151 F.3d at
771. We identify no plain error in the district court’s decision to admit the rest of Dr.
Robbins’s testimony or its prompt and thorough curative instruction concerning the
stricken testimony. See, e.g., Greer, 483 U.S. at 766 n.8.
3. Dr. Wolters’s Testimony
The Stultses next argue the “improper testimony of Dr. Wolters requires a new
trial” “because he did not adequately rule out diacetyl as the cause of [Stults’s]
bronchiolitis obliterans.” The Stultses correctly observe “[a] failure to consider
alternative potential causes of an injury or symptom can render a differential
diagnosis scientifically invalid.” Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104,
1109 (8th Cir. 2014). According to the Stultses,
Dr. Wolters did not rule out diacetyl, instead he testified that he did not
know whether or not diacetyl could cause bronchiolitis obliterans. . . .
He needed to affirmatively consider it and rule it out. . . . [H]e did not
do this because he does not believe diacetyl can cause bronchiolitis
obliterans. So, put in a spot on the stand he took a shot at ruling it
out . . .
Dr. Wolters was asked at trial whether he had considered the possibility
Stults’s lung disease was caused by diacetyl in microwave popcorn and Dr. Wolters
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replied, “In my opinion, yes, I was able to rule it out.” He proceeded to explain his
reasons for this conclusion, including the fact that Stults’s “disease state occurred at
a time when he was not eating much popcorn, if any at all, per his deposition.” The
Stultses allege Dr. Wolters expressed incorrect medical opinions and “Dr. Egilman
confirmed this on rebuttal.” It is the province of the jury to decide which experts are
more credible and persuasive. See, e.g., United States v. Hodge, 594 F.3d 614, 618
(8th Cir. 2010) (“A jury’s credibility determinations are well-nigh unreviewable
because the jury is in the best position to assess the credibility of witnesses and
resolve inconsistent testimony.”). The Stultses’ disagreement with why Dr. Wolters
ruled out diacetyl as a cause of Stults’s illness is far from grounds for a new trial.
See, e.g., Behlmann, 794 F.3d at 963.
4. Weight of the Evidence
Finally, the Stultses suggest they are entitled to a new trial because the verdict
was against the weight of the evidence. See, e.g., White v. Pence, 961 F.2d 776, 780
(8th Cir. 1992). The Stultses assert “Dr. Meehan was the only witness willing to
testify to IFF/BBA [sic] theory of the case: that Mr. Stults’ bronchiolitis obliterans
was caused by rheumatoid arthritis. . . . Without this testimony, there was nothing to
support a sufficient defense.” The Stultses cite no record evidence or legal authority
in support of this claim, and their cursory argument suggests they misapprehend the
burden of proof in this case. See, e.g., Gregory v. Cincinnati Inc., 538 N.W.2d 325,
329 (Mich. 1995) (“A breach of warranty claim tests the fitness of the product and
requires that the plaintiff ‘prove a defect attributable to the manufacturer and causal
connection between that defect and the injury or damage of which he complains.’”
(quoting Piercefield v. Remington Arms Co., 133 N.W.2d 129, 135 (Mich. 1965))).
As IFF emphasizes, the Stultses had the burden to prove each element of their breach-
of-implied-warranty claim by a preponderance of the evidence. See, e.g., Barefield
v. La Salle Coca-Cola Bottling Co., 120 N.W.2d 786, 788 (Mich. 1963) (discussing
with approval the district court’s instructions concerning the burden of proof in a
breach-of-implied-warranty action).
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Contrary to the Stultses’ assertion that IFF failed to “support a sufficient
defense,” IFF in fact had no obligation to rebut a presumption Stults’s bronchiolitis
obliterans was caused by diacetyl. See, e.g., Gregory, 538 N.W.2d at 329; Barefield,
120 N.W.2d at 788. IFF advances several reasons the jury could have decided the
Stultses failed to meet their burden, such as Stults’s “overall lack of credibility, as
demonstrated by the insincerity with which he changed his popcorn consumption
history to make it coincide with the time his lungs were deteriorating” and the
weaknesses in Dr. Egilman’s testimony. The Stultses, on the other hand, do not point
to any specific evidence in the record to support their assertion that the evidence
favored them “overwhemingly.” We conclude the district court did not abuse its
discretion because the Stultses have failed to show “‘the outcome is against the great
weight of the evidence so as to constitute a miscarriage of justice’” necessitating a
new trial. See Warger, 721 F.3d at 610 (quoting Bair v. Callahan, 664 F.3d 1225,
1230 (8th Cir. 2012)).
B. Judgment as a Matter of Law
“Judgment as a matter of law is appropriate when ‘there is no legally sufficient
evidentiary basis for a reasonable jury to find for [the prevailing] party,’” Wash
Solutions, Inc. v. PDQ Mfg., Inc., 395 F.3d 888, 892 (8th Cir. 2005) (quoting Fed. R.
Civ. P. 50(a)(1) (2005) (amended 2006)), that is, “all of the evidence points one way
and is ‘susceptible of no reasonable inference sustaining the position of the
nonmoving party.’” Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d 991, 995 (8th
Cir. 2010) (quoting Keenan v. Comput. Assocs. Int’l, Inc., 13 F.3d 1266, 1269 (8th
Cir. 1994)). In deciding a motion for judgment as a matter of law, the court shall
(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume
as true all facts supporting the nonmovant which the evidence tended to
prove, (3) give the nonmovant the benefit of all reasonable inferences,
and (4) deny the motion if the evidence so viewed would allow
reasonable jurors to differ as to the conclusions that could be drawn.
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Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985) (quoting Lackawanna Leather
Co. v. Martin & Stewart, Ltd., 730 F.2d 1197, 1200 (8th Cir. 1984)). We conduct
de novo review. See Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1504-05 (8th Cir.
1992).
The Stultses claim they are entitled to judgment as a matter of law because
“three elements of [their] breach of implied warranty claim were not disputed and
should not have been submitted to the jury.” It appears the Stultses are referring to
the questions of whether: (1) “diacetyl fumes emitted from the heated butter
flavoring were potentially hazardous to breathe,” (2) “[d]iacetyl-free butter
flavorings, which did not emit fumes that were potentially hazardous to breathe, were
available for use in microwave popcorn,” and (3) “the butter flavorings were in [the
popcorn Stults ate] at the time that David Stults was injured.”
These issues were not uncontested. As IFF points out, its position “concerning
any hazards arising from heated diacetyl fumes was repeatedly, and steadfastly,
limited to the workplace environment . . . where large amounts of chemical flavorings
existed in vats.” There was also conflicting evidence from Stults himself concerning
the timing of his microwave popcorn consumption in relation to the onset of his
disease. These factual disputes were properly submitted to the jury. See, e.g., Hunt
v. Neb. Pub. Power Dist., 282 F.3d 1021, 1029 (8th Cir. 2002) (“Where conflicting
inferences reasonably can be drawn from the evidence, it is the role of the jury, not
the court, to determine which inference shall be drawn.”).
Second, in the Stultses’ view, the district court should have granted judgment
as a matter of law because IFF “did not present evidence to support the sole
proximate cause defense” or “the fault of others defense.” As the jury verdict
form—which the Stultses do not challenge—clearly indicated, it was unnecessary for
the jury to proceed to the question of affirmative defenses because the jury found in
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IFF’s favor on the Stultses’ breach-of-implied-warranty claim. The Stultses cite no
legal authority supporting their improbable proposition. We find none.
III. CONCLUSION
The judgment of the district court is affirmed.
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