Modern Holdings, LLC v. Corning, Inc.

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 25, 2024
• Docket: 23-5645
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0395n.06

Nos. 23-5612/5645 FILED UNITED STATES COURT OF APPEALS Sep 25, 2024 FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk

) MODERN HOLDINGS, LLC; WANDA ) BEASLEY; BRENDA CARTER; MELVIN ) HARRIS; JANET MITCHELL; SELLERS ) AND SELLERS COMPANY; DONNA ) SMITH, ) Plaintiffs-Appellants/Cross-Appellees, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF CORNING, INC., ) KENTUCKY Defendant, ) ) PHILIPS ELECTRONICS NORTH ) OPINION AMERICA CORPORATION, a Delaware ) Corporation, ) ) Defendant-Appellee/Cross-Appellant. )

Before: BUSH, NALBANDIAN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge. For years, Philips Electronics North America Corporation

operated a plant in a small Kentucky city. After the plant closed, local property owners claimed

that it had emitted dust that contaminated their lands with lead. But a jury disagreed. It found that

the property owners had not sued within the statute of limitations and that they had failed to prove

their nuisance and trespass claims. The district court then denied the owners’ motion for a new

trial. According to the district court, a reasonable jury could have found their claims untimely, the

court’s verdict form accurately conveyed the law, the jury adequately deliberated, and Philips had

not improperly used its peremptory strikes. On appeal, we conclude that the court reasonably Nos. 23-5612/5645, Modern Holdings, LLC, et al. v. Corning, Inc., et al.

resolved these four issues. And that holding allows us to avoid the parties’ various claims about

the district court’s rulings on the admissibility of the expert opinions. We affirm.

I

This case concerns a manufacturing plant in Danville, a city in rural Kentucky with fewer

than 20,000 residents. In 1952, Corning, Inc., built the plant to make glass. Corning owned and

operated the plant over the next three decades. In 1983, Corning sold the facility to Philips. For

several more decades, Philips used the plant to make glass for its light-bulb business. Philips

ultimately closed the plant in 2011. Corning bought it back two years later.

Corning and Philips both used lead to make some types of glass at the plant. During the

manufacturing process, lead particles could seep out in the dust that left the plant’s smokestacks.

When Corning first opened the facility, it lacked any pollution-control equipment to contain these

lead emissions. But it installed an “electrostatic precipitator” to help catch the lead in 1973. Once

Philips took over the facility, it relied on the same device. In 2006, it replaced the electrostatic

precipitator with a newer model. Philips reused the captured lead dust to make new glass.

In November 2013, two original plaintiffs filed this diversity suit against Corning and

Philips. The complaint asserted that the two companies had polluted neighboring properties

through the plant’s emissions of lead (among other materials). It added that this pollution would

likely cause the plant’s neighbors to suffer future health problems. As for legal theories, the

complaint alleged that Corning and Philips had created a nuisance by unreasonably interfering

with neighboring properties. It also alleged that Corning and Philips had committed a trespass by

invading their properties with the lead dust. The plaintiffs sought to certify a class of residents

that the emissions had affected.

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This case has proceeded through protracted litigation. After years of discovery, the district

court denied the plaintiffs’ request to certify a class action. In response, many more plaintiffs

joined the suit. When the court consolidated the case with a similar one, the number of plaintiffs

grew to over 100. The court later approved the parties’ request to follow a “Bellwether case

management approach.” Order, R.414, PageID 11691. It opted to hold an initial trial for the claims

of the seven plaintiffs in this appeal: Modern Holdings, LLC, Sellers and Sellers Company, Wanda

Beasley, Janet Mitchell, Donna Smith, Melvin Harris, and Brenda Carter. Because these plaintiffs

asserted only claims for damages to their properties, we will call them the “Property Owners.”

Two significant events occurred before the bellwether trial began. All plaintiffs settled

their claims against Corning. So the district court dismissed that company from the suit. The

Property Owners proceeded to trial against Philips alone. Next, each side filed several motions

to exclude the other side’s expert testimony under Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993). The court granted these Daubert motions in part and denied them in part.

The parties took twelve days to conduct the bellwether trial. But the jury took less than

two hours to reach a defense verdict. The jury first found that the Property Owners had not filed

their claims within the governing statute of limitations. On the merits, the jury next found that the

Property Owners had failed to prove that Philips had created a nuisance or trespassed on their

properties.

The Property Owners asked the district court to grant a new trial under Federal Rule

of Civil Procedure 59. The court denied this motion. See Mod. Holds., LLC v. Corning, Inc.,

2023 WL 3827666, at *5 (E.D. Ky. June 2, 2023).

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II

The Property Owners now seek a new trial from us. They primarily challenge the district

court’s rulings on the admissibility of the expert testimony under Daubert. In response, Philips

partially defends the district court’s Daubert order but also cross-appeals other aspects of this

order. That said, both sides concede that these alleged evidentiary errors mattered only to the

jury’s merits finding that Philips did not commit a trespass or create a nuisance—not to the jury’s

statute-of-limitations finding that the Property Owners sued too late. The errors thus could not

have mattered to the jury’s final verdict for Philips unless the Property Owners show that some

other error undermined the jury’s statute-of-limitations conclusion. See Morales v. Am. Honda

Motor Co., 151 F.3d 500, 514 (6th Cir. 1998).

On that front, the Property Owners raise four arguments. They say that this statute-of-

limitations conclusion contradicted the weight of the evidence. And they say that the district court

gave the jury a misleading jury-verdict form, that the jury violated its duty to deliberate, and that

Philips engaged in racial discrimination in its peremptory challenges. We disagree with these

arguments. We thus need not address the parties’ Daubert claims because any Daubert errors

would have been harmless. See id. We will start with the Property Owners’ weight-of-the-

evidence argument and then turn to their remaining three arguments.

A. Weight-of-the-Evidence Claim

The Property Owners argue that the district court should have granted them a new trial

under Federal Rule of Civil Procedure 59 because the jury’s statute-of-limitations verdict conflicts

with the weight of the trial evidence. Rule 59 allows district courts to grant new trials today “for

any reason” that courts have historically “granted” them “in an action at law in federal court[.]”

Fed. R. Civ. P. 59(a)(1)(A). And a trial judge could traditionally grant a new trial if the judge

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found the verdict “against the weight of the evidence.” Gasperini v. Ctr. for Humans., Inc.,

518 U.S. 415, 433 (1996) (citation omitted); see Felton v. Spiro, 78 F. 576, 582–83 (6th Cir. 1897)

(Taft, J.). Yet, given the winning party’s right to a jury trial under the Seventh Amendment, we

have described a grant of a new trial on weight-of-the-evidence grounds as a “rare” remedy.

Armisted v. State Farm Mut. Auto. Ins., 675 F.3d 989, 995 (6th Cir. 2012). District courts should

deny requests for new trials on these grounds whenever the jury rendered a reasonable verdict—

even if the judge would have ruled the other way. See Holmes v. City of Massillon, 78 F.3d 1041,

1047 (6th Cir. 1996); Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir. 1967).

Our appellate review is more limited still. At one time, legal authorities suggested that the

Seventh Amendment barred appellate courts from reviewing a trial court’s refusal to grant a new

trial on weight-of-the-evidence grounds. See Gasperini, 518 U.S. at 434; cf. id. at 450–58 (Scalia,

J., dissenting). While the Supreme Court has now approved of this appellate practice, it has done

so based on our deferential standard of review. See id. at 435–36 (majority opinion). Unlike

motions for judgment as a matter of law under Rule 50, a district court has discretion about whether

to grant a new trial under Rule 59. See J.C. Wyckoff & Assocs. v. Standard Fire Ins., 936 F.2d

1474, 1487 (6th Cir. 1991). So we review the court’s denial of a new trial only for an abuse of

discretion, asking whether the record leaves us convinced that the district court “committed a clear

error of judgment.” Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000)

(citation omitted). Applying this deferential standard of review, we see no clear error of judgment.

Before we undertake that review, though, we must set the stage with the governing Kentucky law.

1. Kentucky Statute-of-Limitations Law

We have found the Property Owners’ weight-of-the-evidence challenge difficult to

evaluate because the parties’ appellate briefs do not identify the legal principles that apply to this

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statute-of-limitations question. Most basically, the briefs do not cite the governing Kentucky

statute of limitations. The district court instructed the jury that a five-year statute of limitations

applied to the nuisance and trespass claims. The court appears to have relied on Kentucky Revised

Statutes § 413.120. This section establishes a five-year limitations period for a “trespass” action

starting from when the “cause of action accrued[.]” Id. § 413.120(4). Kentucky courts appear to

interpret the statute to cover nuisance claims too. See Hubbard v. Prestress Servs. Indus., LLC,

2020 WL 6375187, at *4 (Ky. Ct. App. Oct. 30, 2020) (citing Lynn Mining Co. v. Kelly, 394

S.W.2d 755, 757 (Ky. 1965)). Given that both parties seemingly agree that this limitations period

governs, we will apply it here. See United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020);

AtriCure, Inc. v. Meng, 12 F.4th 516, 525 (6th Cir. 2021). The Property Owners sued on November

27, 2013. The statute of limitations thus barred their claims if the claims “accrued” before

November 27, 2008.

The briefs also fail to identify the law that governs when these nuisance and trespass claims

accrued and triggered this limitations period. The district court’s order denying the Property

Owners’ motion suggested that “federal law”—not state law—determined when the state claims

accrued. Mod. Holds., 2023 WL 3827666, at *2. But the court relied on a decision suggesting

that the same accrual rules applied in that case under either federal law or state law (so this

difference did not matter). Martello v. Santana, 874 F. Supp. 2d 658, 673 (E.D. Ky. 2012), aff’d,

703 F.3d 309, 314–15 (6th Cir. 2013). And Martello, in turn, relied on a circuit decision that

considered the accrual rule only for federal claims. See Winnett v. Caterpillar, Inc., 609 F.3d 404,

408 (6th Cir. 2010) (per curiam). Yet our caselaw leaves no doubt that state law, not federal law,

determines accrual questions when, as here, the plaintiffs pursue state-law claims. See Cahio

v. Drexel Chem. Co., 2022 WL 1698386, at *3 (6th Cir. May 27, 2022); see, e.g., Wolfe v. Perry,

6 Nos. 23-5612/5645, Modern Holdings, LLC, et al. v. Corning, Inc., et al.

412 F.3d 707, 715 (6th Cir. 2005) (Michigan law); Gilmore v. Davis, 185 F. App’x 476, 480–83

(6th Cir. 2006) (Tennessee law); Imes v. Touma, 784 F.2d 756, 758 (6th Cir. 1986) (Kentucky

law); Lutz v. Chesapeake Appalachia, LLC, 717 F.3d 459, 464–65 (6th Cir. 2013) (Ohio law).

We thus should consider when these claims accrued under Kentucky law. Courts typically

choose between two rules to identify the date when a statute of limitations begins to run: the

“occurrence” rule and the “discovery” rule. See Reguli v. Russ, 109 F.4th 874, 879 (6th Cir. 2024)

(per curiam); Wal-Mart Real Est. Bus. Tr. v. Hopkins Cnty. Coal, LLC, 2020 WL 7418992, at *4

(Ky. Ct. App. Dec. 18, 2020). Under the “occurrence” rule, courts start the limitations period on

the first day that the plaintiff has a complete cause of action and can sue on the claim in court. See

Reguli, 109 F.4th at 879. Under the “discovery” rule, courts push back the start date to when the

plaintiff knew or should have known certain facts about the claim. See id. The district court’s

decision here reveals some uncertainty about which of these rules applies. The court inconsistently

invoked both rules. Its initial reliance on federal law led it to suggest that we should apply the

discovery rule. Mod. Holds., 2023 WL 3827666, at *2. To rebut one of the Property Owners’

specific arguments, though, it later switched to the occurrence rule. See id. at *2 n.2.

Our own review of Kentucky law suggests that the Kentucky Supreme Court presumptively

applies the occurrence rule and saves the discovery rule for cases involving “medical malpractice

or latent injuries or illnesses.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010); see

Wal-Mart, 2020 WL 7418992, at *4. This framework might suggest that the proper rule

here depends on whether the Property Owners alleged latent injuries. In that respect, we have

refused to apply the discovery rule to a Kentucky-law trespass claim alleging water contamination.

See Newberry v. Serv. Experts Heating & Air Conditioning, LLC, 806 F. App’x 348, 358 (6th Cir.

2020). We instead held that the claim accrued on the date that “blackish brown materials”

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appeared in the plaintiffs’ water, even if they did not know the seriousness of the contamination at

that time. Id. That said, the Kentucky Supreme Court issued an unpublished (and apparently

nonbinding) decision applying the discovery rule to other water-contamination claims. See

Cantrell v. Ashland Oil, Inc., 2010 WL 1006391, at *10 (Ky. Mar. 18, 2010); cf. Hubbard, 2020

WL 6375187, at *7. Even applying the discovery rule, however, the Kentucky Supreme Court

held that the statute of limitations started to run when the plaintiffs learned that the defendant had

caused a potential water-contamination problem—even if they did not know the exact “harmful

materials” that were in the water. See Cantrell, 2010 WL 1006391, at *10.

Given the lack of briefing on these legal issues, the “party presentation” principle leaves

us hesitant to conclusively decide the governing law on our own. Sineneng-Smith, 590 U.S. at

375. We thus will apply the following legal principles for this appeal. To begin, the jury

instructions allow us to assume that the discovery rule applies because Philips does not challenge

that rule in this appeal. See Reguli, 109 F.4th at 880. The unchallenged instructions described the

key question as whether each plaintiff “knew, or by the exercise of reasonable care should have

known,” before November 27, 2008, that the plaintiff’s “property may have been contaminated

with lead dust particles emanating from the Facility.” Instructions, R.695, PageID 28624. That

said, Cantrell seemingly offers the best evidence as to how the Kentucky Supreme Court would

apply this discovery rule to the facts of this case. Under Cantrell’s version of the discovery rule,

the Property Owners did not need to know that the dust contained lead. They just needed to know

generally of the potential pollution problem. See 2010 WL 1006391, at *10.

One last point. When choosing the applicable statute-of-limitations rules, Kentucky courts

distinguish between permanent and temporary nuisances and continuing and isolated trespasses.

See Lynn Mining, 394 S.W.2d at 757–60; Hubbard, 2020 WL 6375187, at *4–7; see also Huffman

8 Nos. 23-5612/5645, Modern Holdings, LLC, et al. v. Corning, Inc., et al.

v. United States, 82 F.3d 703, 705 (6th Cir. 1996). For example, if a defendant operated a plant in

an “improper” manner but could have fixed its pollution problem at “reasonable expense,” a

nuisance qualifies as temporary and a plaintiff can recover for five years of harms dating back

from the date of the suit. Lynn Mining, 394 S.W.2d at 759 (emphasis omitted). But the Property

Owners did not identify this law, so we need not consider the nature of their nuisance and trespass

claims. See Sineneng-Smith, 590 U.S. at 375–76.

2. Application of these Legal Principles

This view of the law makes this case straightforward. While the Property Owners testified

that they did not subjectively know about the lead on their properties until experts took soil samples

during this litigation, the law as set forth in Cantrell did not require that detailed level of

knowledge. See 2010 WL 1006391, at *10. Rather, the statute of limitations began when the

Property Owners knew (or should have known) that dust particles from the plant were landing on

their properties—even if they did not know of “the presence” of lead. Id. And many Property

Owners conceded that they had long recognized that the plant was expelling black dust onto

neighboring properties. The jury also could find that the other Property Owners reasonably should

have known of this fact. We will address the Property Owners in turn.

Melvin Harris and Brenda Carter. Harris testified that he saw “dust” coming out of the

plant’s smokestacks while growing up in Danville. Harris Tr., R.764, PageID 31761. When he

played outside in the snow as a child, the snow “had black dirt all over it” because of these

emissions. Id. His mother would prohibit him from making ice cream out of the snow because it

was not “healthy.” Id., PageID 31761–62. As a result, he assumed that there was something

“wrong” with the plant’s emissions. Id., PageID 31768–69. Carter told a nearly identical story.

As a child, she recalled seeing “dust particles” from the plant in her snow-covered yard. Carter

9 Nos. 23-5612/5645, Modern Holdings, LLC, et al. v. Corning, Inc., et al.

Tr., R.764, PageID 31796. And her parents likewise told her that she could not make “snow

cream” because of the dangers from this dust. Id. The district court did not abuse its discretion

by concluding that this testimony allowed the jury to find that Harris and Carter knew that dust

from the plant was falling on local properties long before 2008. See Barnes, 201 F.3d at 820.

Wanda Beasley, Janet Mitchell, and Donna Smith. Three other Property Owners worked

at the plant. Beasley began working there in 1986. She knew that Philips used lead in its glass

production, and she wore protective gear when cleaning up the lead dust. She also “always” saw

smoke coming from the plant. Beasley Tr., R.761, PageID 30983–84. Similarly, Mitchell worked

at the plant from 1983 until 2011. During her work, she conceded that she saw dust “going out

the window.” Mitchell Tr., R.763, PageID 31535. And while Smith did not testify, the parties

stipulated that her testimony would have been “virtually identical” to Mitchell’s. Stipulation,

R.683, PageID 28578. The district court again did not abuse its discretion by concluding that this

work-related testimony allowed the jury to find that these individuals knew the plant was emitting

potentially harmful dust onto neighboring properties. See Barnes, 201 F.3d at 820.

Modern Holdings and Sellers and Sellers. The claims of Modern Holdings and Sellers and

Sellers perhaps presented the closest calls. Robert Allen testified on behalf of Modern, which

owned nearby property in Danville. He had lived in Danville for decades. But he “never paid any

attention” to dust from the plant landing on his property. Allen Tr., R.764, PageID 31735. Kristin

Schneider testified on behalf of Sellers, which owned industrial property “right next” to the plant.

Schneider Tr., R.764, PageID 31678–79. She grew up in Danville and inherited this business from

her father. Her father spent substantial time at the Sellers property and sometimes walked across

to the Philips property. For example, he often took Schneider’s brother on “treasure hunt[s]”

looking for pieces of glass on that property. Id., PageID 31685. At one point, Philips also asked

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Schneider’s father to install “groundwater monitoring wells” on the Sellers property to monitor

Philips’s emissions. Id., PageID 31690. Especially when considered against the other testimony

about the ubiquitous nature of the dust, this evidence would allow a reasonable jury to find that

agents of Modern and Sellers “should have” known of it. Cantrell, 2010 WL 1006391, at *10

(citation omitted).

In response, the Property Owners highlight the testimony of two experts who opined about

how the plant emissions had affected local property values. Based on the media attention from

this lawsuit, these experts picked August 2015 as “the date of knowledge” in the general

“community” in Danville. Wilson Tr., R.766, PageID 32207. But this testimony does not help

the Property Owners for two reasons. For one thing, our conclusion rests on specific evidence tied

to each Property Owner—not on any general theory about when the “entire community” learned

of the emissions. Appellants’ First Br. 38 (emphasis added). For another thing, the limitations

period starts to run when a plaintiff should have known of the contamination—not just when the

plaintiff did in fact know of it. See Cantrell, 2010 WL 1006391, at *10.

B. Remaining Claims

Apart from their weight-of-the-evidence challenge, the Property Owners seek a new trial

because three other errors allegedly tainted the statute-of-limitations verdict. They are mistaken.

Verdict Form. The Property Owners first argue that the verdict form contained

“inaccuracies” that led the jury astray. Appellants’ First Br. 44. The parties disagree about the

standard of review that applies to this claim. The Property Owners concede that they did not timely

object to the verdict form below but suggest that we should review this forfeited claim for plain

error. See Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1012 (6th Cir. 2022); Fed. R. Civ.

P. 51(d)(2). Philips responds that the Property Owners consented to the verdict form and thus

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waived this argument. If so, this waiver would altogether bar our review of this claim. See

Bannister, 49 F.4th at 1011. We need not resolve this debate. Even if we accept the Property

Owners’ view, they have not met the “very high” plain-error standard. Maday v. Pub. Librs. of

Saginaw, 480 F.3d 815, 820 (6th Cir. 2007); see Lee v. Metro. Gov’t of Nashville & Davidson

Cnty., 432 F. App’x 435, 449 (6th Cir. 2011).

The Property Owners first complain that the verdict form did not instruct the jury that

Philips bore the burden of proof on its statute-of-limitations defense. The form asked the jurors to

decide whether they “believe by a preponderance of the evidence that” the Property Owners knew

or should have known of the potential contamination before November 27, 2008. Form, R.696,

PageID 28634 (emphasis added). The form’s questions about the nuisance and trespass claims, by

contrast, asked if the Property Owners had “proven” these claims “by a preponderance of the

evidence[.]” Id., PageID 28634–35 (emphasis added). Unlike the statute-of-limitations question,

then, these questions confirmed that the Property Owners bore this burden.

This argument wrongly considers the verdict form in isolation. We treat verdict forms as

part of the jury instructions. See Coggins v. KLLM, Inc., 146 F. App’x 9, 11–12 (6th Cir. 2005);

Sorenson v. Robert B. Miller & Assocs., Inc., 1996 WL 515351, at *3 (6th Cir. Sept. 10, 1996);

see also Moody v. United States, 958 F.3d 485, 491 (6th Cir. 2020). We thus must consider the

form and instructions together. See Armisted, 675 F.3d at 997. And the jury instructions left no

doubt that “Philips must prove by a preponderance of the evidence” that the Property Owners did

not file their claims in time. Instructions, R.695, PageID 28624. We also must presume that

the jury followed these instructions. See Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 574

(6th Cir. 2019). The district court thus did not commit plain error in the way that the court

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conveyed Philips’s burden to prove its statute-of-limitations defense. See Bannister, 49 F.4th at

1012.

The Property Owners next point to a typographical error in the verdict form. The form told

the jury to “PROCEED TO QUESTION 2” (a question about the merits) if the jury found that a

Property Owner’s claim was untimely. Form, R.696, PageID 28634. Conversely, it told the jury

to “PROCEED TO THE NEXT VERDICT FORM” (involving another Property Owner) if they

found it timely. Id. Yet the form should have conveyed the opposite: to proceed to the merits if

the claims were timely and ignore them if the claims were untimely. The Property Owners

speculate that the jury might have rejected their claims on the merits based solely on its statute-of-

limitations finding because the court had instructed that the statute of limitations represented a

complete defense. But we need not consider this prejudice theory because we uphold the judgment

based on the statute-of-limitations verdict alone. The Property Owners do not argue that this error

could have wrongly prejudiced that independent verdict. See Coggins, 146 F. App’x at 12.

Duty to Deliberate. The Property Owners next suggest that the jury violated its “duty to

deliberate.” The Supreme Court has held that courts may instruct jurors that they must discuss the

evidence with each other and listen to other points of view during their deliberations. See Allen

v. United States, 164 U.S. 492, 501–02 (1896); see also Bhat v. Univ. of Cincinnati, 23 F. App’x

280, 288–89 (6th Cir. 2001) (per curiam); United States v. Baker, 262 F.3d 124, 130 (2d Cir. 2001).

The district court here thus told the jurors that they had a “duty” “to consult with one another and

to deliberate” with the goal of reaching a unanimous verdict. Instructions, R.695, PageID 28632.

The Property Owners argue that the jurors violated this duty in two ways. First, they

complain about how fast the jurors reached their verdict. Although the trial took twelve days, the

jury found for Philips in about an hour and a half. Yet the district court did not abuse its discretion

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in refusing to grant a new trial on this ground. See Barnes, 201 F.3d at 820. As a legal matter, the

Property Owners do not cite a single decision holding that the general duty to deliberate requires

the jurors to deliberate for a minimum period. Cf. United States v. Anderson, 561 F.2d 1301, 1303

(9th Cir. 1977) (per curiam); Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967). As a

factual matter, the statute-of-limitations verdict (the verdict on which we rely) raised a

straightforward question: When should each Property Owner reasonably have known about

the possible contamination? This question largely turned on the Property Owners’ own

testimony—which took up a small fraction of the trial. And it was not the type of question that

would require jurors to contemplate for hours if they did not view the issue as close.

Second, the Property Owners complain about sleeping jurors. Their motion for a new trial

included affidavits from a lawyer and paralegal who saw several jurors repeatedly dozing off

during the trial. But the district court again did not abuse its discretion by rejecting this ground

for a new trial. See Barnes, 201 F.3d at 820. Even in criminal cases, district courts have

“considerable discretion” in how they deal with this issue because they have witnessed the trial

and have a better sense for how the misconduct affected the verdict. United States v. Embry,

644 F. App’x 565, 572 (6th Cir. 2016). And here, the district court reasonably held that the

Property Owners should have raised this issue during the trial so that it could remedy the problem

while it was happening. The Property Owners should not have taken a wait-and-see approach by

flagging the issue only after the verdict did not go their way. Cf. Cummings v. Dep’t of Corr.,

757 F.3d 1228, 1235 (11th Cir. 2014).

Peremptory Strikes. The Property Owners also claim that Philips unconstitutionally used

its peremptory challenges to strike two African American jurors. They correctly note that the Fifth

Amendment bars private attorneys from engaging in racial discrimination when using these strikes.

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See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991). But the Property Owners did

not flag this issue during the voir dire process and instead saved it for their new-trial motion. And

the district court did not abuse its discretion by rejecting this argument on the ground that the

Property Owners raised it too late. See United States v. Reid, 764 F.3d 528, 533 (6th Cir. 2014).

Indeed, the record leaves the basic facts unclear. Cf. United States v. Ramamoorthy, 949 F.3d 955,

962–63 (6th Cir. 2020). For example, we do not even know if Philips struck the two jurors. As

the district court explained, its random draw of the broader pool of jurors might not have selected

them to sit on the jury after the parties had exhausted their strikes.

* * *

The Property Owners lastly assert that the “cumulative error” doctrine justifies a new trial

because all the alleged errors—when considered collectively—prejudiced them. See Beck v. Haik,

377 F.3d 624, 644–45 (6th Cir. 2004), overruled on other grounds by Adkins v. Wolever, 554 F.3d

650 (6th Cir. 2009) (en banc). But our conclusions have rendered this cumulative-error doctrine

beside the point. The doctrine applies only if a court identifies errors to “cumulate.” See United

States v. Sypher, 684 F.3d 622, 628–29 (6th Cir. 2012). And other than the single (harmless)

typographical error on the verdict form, the district court committed no mistakes.

We affirm.