Full opinion text
SUSAN L. CARNEY, Circuit Judge: Table of Contents I. BACKGROUND..........................................................79 A. MTBE and Its Effects.................................................80 B. The Clean Air Act and the Reformulated Gasoline Program................81 C. The City’s Water-Supply System .......................................81 D. The City’s Claims............................................ 82 E. The Trial ............................................................83 1. Phase I: Future Use of the Station Six Wells.........................83 2. Phase II: Peak MTBE Concentration in the Station Six Wells...........85 3. Phase III: Liability and Statute of Limitations........................86 a. Injury........................................................87 b. Causation.....................................................88 c. Damages.....................................................89 d. Statute of Limitations..........................................90 e. Phase III Jury Verdict.........................................91 F. Punitive Damages.....................................................91 G. Juror Misconduct.....................................................94 H. Post-Trial Motions....................................................95 II. DISCUSSION............................................................95 A. Preemption ..........................................................95 1. Federal Preemption of State Law....................................96 2. Conflict Preemption: the Impossibility Branch........................97 a. The Import of the Jury’s Finding on the City’s Design-Defect Claim......................................................98 b. Considering Ethanol as a Possible Alternative to MTBE...........100 3. Conflict Preemption: the Obstacle Branch...........................101 4. Tortious Conduct Beyond Mere Use of MTBE .......................103 B. Legal Cognizability of Injury..........................................104 1. Standing........................................................105 2. Injury As a Matter of New York Law...............................107 C. Ripeness and Statute of Limitations....................................109 D. Sufficiency of the Evidence as to Injury and Causation....................112 1. The Jury’s 10 ppb MTBE Peak Concentration Finding................113 2. The Jury’s Consideration of Market Share Evidence..................115 E. New York Law Claims................................................117 1. Negligence......................................................117 2. Trespass........................................................119 3. Public Nuisance..................................................121 4. Failure to Warn..................................................123 F. Juror Misconduct....................................................125 G. The City’s Cross-Appeals for Further Damages..........................126 1. Compensatory Damages Offset.....................................126 2. Punitive Damages................................................127 III. CONCLUSION..........................................................130 Exxon Mobil Corporation, Exxon Mobil Oil Corporation, and Mobil Corporation (collectively, “Exxon”) appeal from an amended judgment entered in favor of the City of New York, the New York City Water Board, and the New York City Municipal Water Finance Authority (collectively, “the City”) on September 17, 2010, in the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge), following an eleven-week jury trial and post-trial proceedings. The case was selected to serve as a bellwether trial in certain long-running multidistrict litigation, consolidated in the District Court, that concerns contamination of groundwater by the organic chemical compound methyl tertiary butyl ether (“MTBE”). As described in greater detail below, this extended litigation arose from the intensive use of MTBE as a gasoline additive by Exxon and other gasoline companies in the New York area from the 1980s through the first half of the 2000s, when a state ban on MTBE brought the era to an end. Treatment with MTBE increased the oxygen content of gasoline and mitigated harm to air quality caused by automobile emissions, thereby furthering the goals of the Clean Air Act, 42 U.S.C. §§ 7401-7671q, as amended from time to time. Because of spillage and leakage from gasoline stored in underground tanks, however, MTBE-treated gasoline was released into the ground, contaminating groundwater supplies. MTBE causes water to assume a foul smell and taste, and has been identified as an animal carcinogen and a possible human carcinogen. In 1990, Congress identified MTBE as one of several additives that gasoline suppliers might use to satisfy new federal oxygenate requirements set forth in amendments to the Clean Air Act, calling for the creation of a “reformulated gasoline” program. In 2005, however, Congress ended that program. In this suit, the City sought to recover from Exxon for harm caused by the company’s introduction of gasoline containing MTBE into a system of water wells in Queens known as the Station Six Wells. Although not currently operative, the City alleged that the Station Six Wells are a significant component of its overall plan to deliver potable water to its residents without interruption over many years to come. Without significant treatment of the water drawn by those wells, the City would be unable to rely on their eventual use, and it alleged that this inability constituted a serious and compensable harm under various State tort law and other legal theories. Because of the matter’s complexity, the trial proceeded in several phases. Phase I of the trial addressed whether the City established that it intends in good faith to use the Station Six Wells as a source of drinking water in the future. The jury-answered that question in the affirmative. In Phase II, the jury was asked whether MTBE will be in the Station Six Wells when those wells begin operating, and at what peak level MTBE will be found. Again answering in the affirmative, the jury concluded that the concentration of MTBE will peak at 10 parts per billion (“ppb”) in 2033. Phase III addressed questions of liability and damages. In Phase III, the jury found Exxon liable to the City under New York law for negligence, trespass, public nuisance, and failure-to-warn; the jury found that Exxon was not liable, however, on the City’s design-defect and private nuisance claims. The jury then calculated a gross compensatory award reflecting its assessment of the damage to the wells caused by MTBE contamination generally. It offset this award by amounts it attributed to the damage caused by the introduction of MTBE by companies other than Exxon and by preexisting contamination by other chemicals. The result was the jury’s finding—and the court’s imposition—of a damages award of $104.69 million, plus pre-judgment and post-judgment interest, for the City. After ruling that, as a matter of law, Exxon’s conduct provided an inadequate basis for assessing punitive damages in the City’s favor, the District Court did not permit the City to proceed with a proposed Phase IY, in which the jury would have addressed that question. The District Court then entered judgment on the claims submitted to the jury pursuant to Federal Rule of Civil Procedure 54(b), holding in abeyance any proceedings on the City’s additional claims under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2692 (creating liability for, inter alia, failing to inform the EPA of known risks associated with the use of a chemical), and under New York State Navigation Law § 181(5) (creating liability for oil spillage). On appeal, Exxon contends that: (1) the City’s claims are preempted by the Clean Air Act; (2) the City has suffered no cognizable injury; (3) the City’s claims are not ripe (or, in the alternative, are barred by the statute of limitations); (4) the City failed to prove injury or causation; (5) the City’s claims fail as a matter of New York law; and (6) the District Court abused its discretion by failing to declare a mistrial as a result of alleged juror misconduct. In its cross-appeal, the City contends that the District Court erred by: (1) declining to allow a punitive damages phase to proceed; and (2) requiring the jury to offset its gross damages finding by an amount attributable to preexisting contamination. For the reasons that follow, we AFFIRM the judgment of the District Court in its entirety. I. BACKGROUND We begin by setting forth in some detail the factual background and providing an account of the district court proceedings. We then turn to a discussion of the key legal issues raised by Exxon’s appeal: primarily, preemption, legal cognizability of injury, ripeness, and sufficiency of the evidence with regard to injury and causation and as to specific elements of each of the City’s New York state law tort claims. We next briefly address Exxon’s juror misconduct claim. Finally, we discuss the City’s arguments regarding the jury’s calculation of its damages and the District Court’s denial of its claim for punitive damages. Unless otherwise noted, the following facts are either undisputed or are viewed in the light most favorable to the City. See Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 561 n. 1 (2d Cir.2011). A. MTBE and Its Effects MTBE is an organic chemical compound derived from methanol and isobutylene. Until the mid-2000s, MTBE was widely used in certain regions of the United States, including in New York State, as a fuel oxygenate, i.e., an additive that reduces harmful tailpipe emissions by increasing the octane level in gasoline. By virtue of its chemical properties, however, spilled MTBE spreads easily into groundwater supplies. The Environmental Protection Agency (“EPA”) advises: MTBE is capable of traveling through soil rapidly, is very soluble in water ... and is highly resistant to biodegradation .... MTBE that enters groundwater moves at nearly the same velocity as the groundwater itself. As a result, it often travels farther than other gasoline constituents, making it more likely to impact public and private drinking water wells. Due to its affinity for water and its tendency to form large contamination plumes in groundwater, and because MTBE is highly resistant to biodegradation and remediation, gasoline releases with MTBE can be substantially more difficult and costly to remediate than gasoline releases that do not contain MTBE. Methyl Tertiary Butyl Ether (MTBE); Advance Notice of Intent to Initiate Rule-making Under the Toxic Substances Control Act to Eliminate or Limit the Use of MTBE as a Fuel Additive in Gasoline, 65 Fed.Reg. 16094, 16097 (proposed Mar. 24, 2000) (to be codified at 40 C.F.R. Part 755). Contamination of groundwater supplies by MTBE is undesirable because MTBE has a “very unpleasant turpentine-like taste and odor that at low levels of contamination can render drinking water unacceptable for consumption.” Id. Further, although MTBE has not been classified as a human carcinogen by either the EPA or the National Toxicology Program, see Testimony of Sandra Mohr (“Mohr Testimony”), Trial Transcript (“Tr.”) at 3055:7; id. at 3097:5-6, some toxicological studies “show [that MTBE] can cause [DNA] mutations,” Testimony of Kenneth Rudo (“Rudo Testimony”), Tr. at 3262:18-19, which “can possibly lead to cancer,” id. at 3267:22-23. But see Mohr Testimony, Tr. at 3104:20-21 (testifying that “MTBE is at best a weak mutagen and may not be particularly mutagenic at all”). New York law limits the concentration of contaminants permitted in drinking water. See N.Y. Comp.Codes R. & Regs. tit. 10, § 5-l.l(ap). If the concentration of a particular contaminant exceeds the relevant “maximum contaminant level” (“MCL”), the water may not be served to the public. See id. § 5-1.30. From 1989 through December 23, 2003, the MCL for MTBE was 50 ppb. N.Y. Comp.Codes R. & Regs. tit. 10, § 5-1.52 (2002). Effective as of December 24, 2003, the MCL for MTBE was reduced to 10 ppb. Id. § 5-1.52 (2003). Effective January 1, 2004, New York State banned the use of MTBE in gasoline. See N.Y. Agrie. & Mkts. Law § 192-g (2000). B. The Clean Air Act and the Reformulated Gasoline Program The Clean Air Act, 42 U.S.C. §§ 7401-7671g, first passed in 1955 and amended in 1965 to impose nationwide emission standards for automobiles, establishes a comprehensive regulatory scheme to “protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare” and “encourage and assist the development and operation of regional air pollution prevention and control programs.” 42 U.S.C. § 7401(b). See generally Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. New York State Dep’t of Envtl. Conservation, 17 F.3d 521, 524-28 (2d Cir.1994) (tracing development of Clean Air Act). In 1990, Congress amended the Clean Air Act to establish the Reformulated Gasoline Program (“RFG Program”). See Pub.L. No. 101-549, § 219, 104 Stat. 2399, 2492-2500 (1990). The RFG Program mandated the use of “reformulated gasoline”—gasoline enhanced with certain additives—in metropolitan areas with significant concentrations of ambient ozone. See 42 U.S.C. § 7545(k) (2000). Its goal was to obtain the “greatest reduction [achievable] in emissions of ozone forming volatile organic compounds (during the high ozone season) and emissions of toxic air pollutants (during the entire year).” Id. § 7545(k)(l). As relevant here, the RFG Program required that reformulated gasoline consist of at least two percent oxygen by weight. Id. § 7545(k)(2)(B). Refiners and suppliers met this requirement by adding oxygenates such as MTBE to their gasoline. The Clean Air Act did not mandate the use of any particular oxygenate. Rather, the EPA identified several additives, including MTBE, that refiners and suppliers could blend into reformulated gasoline and thereby satisfy the requirements of the RFG Program. See, e.g., 40 C.F.R. § 79.56(e)(4)(ii)(A)(l)(i) (2000); id. § 80.46(g)(9)®. Fifteen years later, in 2005, Congress altered its approach and again amended the Clean Air Act—this time, to eliminate the oxygenate requirement for reformulated gasoline. Energy Policy Act of 2005, § 1504, Pub.L. 109-58,119 Stat. 594, 1076-77 (amending 42 U.S.C. § 7545). C. The City’s Water-Supply System The City’s water-supply system provides drinking water to over eight million customers within City limits, and to one million customers in upstate New York. Phase III Joint Pretrial Order (“JPTO”) Statement of Undisputed Facts ¶41. The City’s system relies largely upon water that is drawn from three upland reservoir systems and then transported into the City through a network of aqueducts and tunnels. Id. ¶¶ 41-43. Major components of the City’s system are aging and in need of maintenance and repair. Id. ¶ 44. In the late 1980s, an intergovernmental task force organized by the City’s Mayor (the “Task Force”) assessed the City’s long-term water supply needs and proposed ways for the City to meet those needs. Id. ¶ 26. Among other things, the Task Force recommended that the City investigate the feasibility of using groundwater from the Brooklyn-Queens Aquifer System—a thick layer of permeable soil and rock beneath Brooklyn and Queens through which groundwater moves—to supplement the City’s existing surface-water system. Id. ¶ 27. The investigation led to a report issued in 1999, recommending that the City use local groundwater for “potable drinking water supply” and that the City treat the groundwater at several regional treatment facilities, or “well clusters.” Id. ¶¶ 29-30. One of those well clusters is in Jamaica, Queens, and is known as Station Six (the “Station Six Wells”). The quality of the water at those wells is the subject of this appeal. Purchased by the City in 1996, the Station Six Wells were formerly managed by the Jamaica Water Supply Company. Most of the Station Six Wells draw from the shallowest aquifer beneath Queens. Id. ¶¶ 11,15-16, 76, 93. The City first detected MTBE in the Station Six Wells in April 2000, when readings from untreated water drawn from one well showed MTBE concentrations of 0.73 ppb and readings from another well showed MTBE concentrations of 1.5 ppb. Id. ¶¶ 108, 111. Testing conducted three years later, in January 2003, showed that MTBE levels had reached 350 ppb in one of the wells. Id. ¶ 109. At no point since acquiring them in 1996 has the City pumped water from any of the Station Six Wells into its drinking water distribution system. Id. ¶ 79. A treatment facility there is in the planning stages, but construction has not began. D. The City’s Claims In October 2003, the City sued Exxon and twenty-eight other petroleum companies, complaining of injuries to its water supply from gasoline containing MTBE. Over the following year, the City amended its complaint to include twenty-six additional petroleum company defendants. All defendants except Exxon settled before trial. The City’s Fourth Amended Complaint (the “Amended Complaint”), filed March 9, 2007, governed the claims against Exxon tried during the Station Six bellwether trial. In the Amended Complaint, the City sought to recover “all costs and damages ... that it has incurred, is incurring, and will incur from investigating, cleaning, detecting, monitoring, preventing, abating, containing, removing, and remediating” the harm caused by MTBE “to the City’s groundwater well system as a result of contamination of the soil and/or the aquifer from which these wells draw water.” Am. Compl. ¶ 1. The City alleged that the petroleum company defendants “distributed, sold, manufactured, supplied, marketed, and designed MTBE ... when they knew or reasonably should have known that MTBE ... would cause damage to the groundwater” in and around Jamaica, Queens. Id. ¶ 3. In particular, the City asserted that the petroleum company defendants knew at relevant times that MTBE was highly soluble in groundwater, see id. ¶ 100, that MTBE was highly prone to spreading widely from a spill point, see id. ¶¶ 88-89, and that underground gasoline tanks in which reformulated gasoline was stored leaked regularly, see id. ¶¶ 92-94. The City asserted the following ten causes of action: • strict liability for defective design of the gasoline, based on the “unreasonably dangerous and foreseeable risk to groundwater” posed by MTBE, id. ¶ 131; • strict liability for failure-to-warn, based on defendants’ “strict duty to warn against latent dangers resulting from foreseeable uses of [MTBE] that [defendants knew or should have known about,” id. ¶ 136; • negligence, based on defendants’ breach of their duty “not to place into the stream of commerce a product that was in a defective condition and ... unreasonably dangerous to groundwater resources,” id. ¶ 143; • civil conspiracy, based on an “industry-wide conspiracy to suppress information regarding the threat that [MTBE] posed to groundwater resources,” id. ¶ 150; • public nuisance, based on “interfere[nce] with and ... damage to a public or common resource that endangered public property, health, safety and comfort,” id. ¶ 161; • private nuisance, based on “contamination now interfering with the City’s rights as property owner,” id. ¶ 173; • trespass, based on the “placement of ... MTBE on and in property owned by the City without permission or right of entry,” id. ¶ 177; • violation of Section 181(5) of the New York State Navigation Law, which proscribes the “discharge [of] any kind or any form of petroleum, including wastes or byproducts of petroleum,” id. ¶ 182; • violation of Section 349 of the New York State General Business Law, based on defendants’ “statements and representations that MTBE was environmentally safe, when in fact they knew or should have known that MTBE posed a substantial threat to groundwater resources,” id. ¶ 188; and • violation of the federal Toxic Substances Control Act, 15 U.S.C. § 2614(3)(B), based on defendants’ failure to inform the EPA of the risks associated with MTBE, id. ¶¶ 196-202. The City sought compensatory damages of $300 million and punitive damages in an amount to be determined at trial. E. The Trial The City’s design-defect, failure-to-warn, negligence, public nuisance, private nuisance, and trespass claims were tried to a jury beginning in August 2009. The trial, which lasted for approximately eleven weeks, culminated in a jury verdict finding Exxon liable on four claims (failure-to-warn, negligence, public nuisance, and trespass), and acquitting Exxon of liability on two (design-defect and private nuisance). Portions of the trial proceedings relevant to this appeal are recounted below. 1. Phase /: Future Use of the Station Six Wells Phase I addressed a threshold issue: because the City was not using the Station Six Wells as a source of drinking water at the time of trial (nor is it now), the jury was asked to determine whether the City intended to use those wells for that purpose in the future. The District Court’s interrogatories to the jury instructed that, to recover on any theory, the City had to “prove[], by a fair preponderance of the credible evidence, that it intends, in good faith, to begin construction of the Station 6 facility within the next fifteen (15) years,” and that the City “intends, in good faith, to use the water from the Station 6 wells, within the next fifteen (15) to twenty (20) years, either to supply drinking water to its residents or to serve as a back-up source of drinking water if needed due to shortages in other sources of supply (or both).” Phase I Interrogatory Sheet. The City’s Phase I witnesses included James Roberts, the Deputy Commissioner of the New York City Bureau of Water and Sewer Operations of the New York City Department of Environmental Protection (“DEP”). Roberts testified that although the City was not then using the Station Six Wells, it had not abandoned them. Testimony of James Roberts (“Roberts Testimony”), Tr. at 339:3-4. To the contrary, Roberts explained, because the wells the City acquired from the Jamaica Water Supply Company are the “the so[le] source of water that lies within the [C]ity’s bounds that [the City] controls ... it’s a no-brainer that [the City] would want to be able to utilize that resource when and if necessary.” Id. at 340:24 to 341:2. Roberts testified further that the Commissioner of DEP had decided that a treatment facility would be built at Station Six, id. at 358:12-18, and that the City was in the early stages of designing the facility, id. at 357:2-13. According to Roberts, design and construction costs would total approximately $250 million. Id. at 357:16-19. The jury also heard testimony from Kathryn Garcia, the Assistant Commissioner for Strategic Projects at DEP. Garcia described Station Six as “absolutely a priority matter” for the City. Testimony of Kathryn Garcia (“Garcia Testimony”), Tr. at 436:14. She testified that “Station 6 has always been a decision that has been made and to my knowledge has never been revisited,” and that she had “never heard any conversation about ... maybe we shouldn’t do Station 6.” Id. at 439:3-7. According to Garcia, the City had yet to construct a treatment facility at Station Six because “[w]e have been struggling with our capital budget in terms of having enough money for all of our needs.” Id. at 435:9-10. In 2008 and 2009, however, the Mayor and City Council approved budgets that included funding for the project. Id. at 440:5-24. William Meakin, the former Chief of Dependability and Risk Assessment at DEP, also testified about the impact of budget issues on Station Six. Meakin reiterated that the City is “committed to designing and building Station 6.” Testimony of William Meakin (“Meakin Testimony”), Tr. at 612:6-7. According to Meakin, the City had yet to do so for only one reason: “money, the funding.” Id. at 612:10. The City also presented the testimony of Steven Lawitts, the Acting Commissioner of DEP. Lawitts confirmed that he had approved the design and construction of a treatment facility at Station Six and that the Mayor and the City Council had ratified that decision by providing for a facility in the City’s budget. Testimony of Steven Lawitts (“Lawitts Testimony”), Tr. at 680:3-11. Lawitts agreed that “if the City had the money for Station 6, ... that project [would] go forward.” Id. at 681:10-12; see also id. at 683:2-5 (answering “yes” to the question, “From your perspective as [Commissioner, is money the only reason Station 6 hasn’t been built yet?”). When asked for his view about the importance of Station Six, Lawitts explained that: Station 6 will be a critical element in ensuring our ability to continue to deliver adequate quantities of water, because the Station 6 project will allow us to tap an additional source of water that we’re not currently tapping, and provide an additional 10 million gallons per day of treated drinking water to be able to be distributed throughout the New York City water system. Id. at 681:18-24. Lawitts explained that an additional 10 million gallons of water per day “would be enough water to supply on average about 80,000 people.” Id. at 682:2-3. At the conclusion of Phase I, the jury found that the City had proven its good faith intent to begin construction of the Station Six facility within the next fifteen years. The jury also found that the City intends to use the Station Six Wells within the next fifteen to twenty years as a backup (rather than primary) source of drinking water. 2. Phase II: Peak MTBE Concentration in the Station Six Wells In Phase II, the jury was asked whether the City had proven “that MTBE will be in the groundwater of the capture zone of the Station 6 wells when they begin operating]” as a back-up source of drinking water, with “capture zone” defined as “the groundwater that will be drawn into the Station 6 wells when they begin operation.” Phase II Interrogatory Sheet. It was also asked “[a]t what peak level will MTBE be found in the combined outflow of the Station 6 wells, and when that will occur,” with “combined outflow” defined as “the combination of all the water from all the wells that goes into the treatment facility.” Id. The City’s principal witness during Phase II was David Terry, a hydrogeologist who testified about two groundwater models he created to estimate future levels of MTBE contamination in the Station Six Wells. According to Terry, hydrogeologists use groundwater models “to understand the flow of groundwater and how contaminants move through the groundwater system.” Testimony of David Terry (“Terry Testimony”), Tr. at 1890:18-20. Terry explained that, in developing a groundwater model, [y]ou have certain inputs that you use, pumping rates of wells, locations of contamination sites and inside the computer there’s information sort of like a road network, but instead it tells about how groundwater flows under, where the aquifers are, which direction it’s traveling, how fast it moves. Then [it] can run a certain set of situations we want to investigate and get out there, such as where the contamination will move to, what concentration it will be, how long it will last at a certain location. Id. at 1891:6-14. The first of Terry’s two models was a “groundwater flow model.” Id. at 1893:22-1895:15. Terry used this model, which was developed by the United States Geological Survey and shows “where the groundwater flows” and “how fast it moves,” id. at 1893:23-24, to predict the likely size and shape of the Station Six capture zone, id. at 1895:21-1896:9. He did so by populating the model with a “proposed pumping scenario” provided by City planners. Id. at 1896:12-20. The “proposed pumping scenario” included information about the location of various wells at and near Station Six, their anticipated activation dates, and the anticipated rates at which they would pump. Id. at 1901:14-20. Terry explained that in estimating the Station Six capture zone, “[w]e really can’t look at Station 6 by itself because there are other wells near Station 6, and when those wells pump they affect the water flow direction at the wells near Station 6.” Id. at 1896:16-19. His testimony also made clear that his prediction of the size and shape of the Station Six capture zone was based on the City’s proposed pumping scenario, which could change over time. Id. at 1902-12; 2087:17-21; 2210:8-10. The second of Terry’s two models was a “transport model.” Terry explained that a transport model really rides on top of the flow model. [The transport] model describes how contaminants move through the groundwater system. So the flow model is actually describing the flow of groundwater from place to place and the transport model is sort of describing on top of that how the contamination moves through the system. Id. at 1894:17-23. Terry used the transport model to make “numerical projections” about “how high of a concentration of MTBE will occur at Station 6 in the future, and how long it will last.” Id. at 2013:2-5. Like his flow model, Terry’s transport model relied upon specific assumptions about proposed pumping scenarios that could change over time. Id. at 2013:17-21. Terry used his flow and transport models to perform two different analyses. His “Analysis 1” was designed to ascertain “future peak concentrations at Station 6.” Id. at 2016:9-10. Relying on actual ground water quality information gathered in 2004 for sample locations in the vicinity of Station Six, Analysis 1 predicted that the concentration of MTBE in the combined outflow of the Station Six Wells would peak at 35 ppb in 2024. Id. at 2067:17-19.' Terry’s “Analysis 2” was designed to determine how long MTBE contamination at Station Six would last if well usage began in 2016. Id. at 1906:8-18; 2015:9-11. As part of this analysis, Terry identified twenty-two known gasoline release sites in the vicinity of Station Six and assumed different release volumes at each site. Id. at 2073:7-16; 2074:6-8. Analysis 2 predicted that if no more than 50 gallons of gasoline were released at each site, MTBE concentration in the combined outflow of the Station Six Wells would be undetectable. PL Ex. 1682. But if 500 gallons of gasoline were released at each site, MTBE concentration would peak at approximately 6 ppb and last through at least 2040. Id. And if 2,000 gallons of gasoline were released at each site, MTBE concentration would peak at approximately 23 ppb and also last through at least 2040. Pl.Ex. 14862. Terry opined that the 2,000-gallon release scenario was “relatively conservative,” Terry Testimony, Tr. at 2075:19-20, but “probably the most realistic-of [the] scenarios,” id. at 2075:6-8. Exxon had no affirmative burden to establish an alternative measure of MTBE contamination at Station Six, and it did not proffer a competing model. It did, however, present the testimony of an expert who concluded that Terry’s models were “fatal[lly] flaw[ed],” Testimony of Thomas Maguire (“Maguire Testimony”), Tr. at 2432:20-22, and that the methods Terry employed were “scientifically [in]valid,” id. at 2444:2-5. At the conclusion of Phase II, the jury found that the City had proven that “MTBE will be in the groundwater of the capture zone of the Station 6 wells when they begin operation.” Phase II Interrogatory Sheet. The jury found further that the concentration of MTBE in the combined outflow of the Station Six Wells will peak at 10 ppb in 2033. Id. 3. Phase IIP Liability and Statute of Limitations Phase III dealt with liability and statute of limitations issues. As to liability, the jury was asked (1) whether the City “is, or will be, injured by the MTBE that will be in the combined outflow of the Station 6 wells”; (2) whether Exxon “was a cause of the City’s injury” as either a “direct spiller” of MTBE gasoline or a “manufacturer, refiner, supplier, or seller” of MTBE gasoline; (3) whether Exxon was liable on the City’s design-defect, failure-to-warn, trespass, private nuisance, public nuisance, and negligence claims; and (4) what amount of compensatory damages should be awarded to the City. Phase III Interrogatory Sheet. As to the statute of limitations, the jury was asked whether Exxon had proven “that the City did not bring its claims in a timely manner.” Id. a. Injury The jury was instructed that, in determining whether the City is or will be injured by MTBE contamination at Station Six, the “question is whether the [C]ity has proven by a fair preponderance of the credible evidence that a reasonable water provider in the [CJity’s position would treat the water to reduce the levels or minimize the effects of the MTBE in the combined outflow of the Station 6 wells in order to use that water as a back-up source of drinking water.” Tr. at 6604:5-10. In support of its claim that a reasonable water provider in its position would treat the water in the Station Six Wells, the City-presented a number of witnesses, including Dr. Kathleen Burns, who testified about the toxicological characteristics of MTBE. In Dr. Burns’s opinion, MTBE “is an animal carcinogen,” “a probable human carcinogen,” and “a probable human mutagen.” Testimony of Kathleen Burns (“Burns Testimony”), Tr. at 2809:10-22. Describing mutagenicity, Dr. Burns advised, “It only takes one molecule ... of MTBE interacting with DNA[ ] to start to initiate the sequence that will give us an abnormal reproducing cell line and ultimately lead to cancer.” Id. at 2829:12-14. Similarly, Dr. Kenneth Rudo, a toxicologist, testified that MTBE is both “mutagenic” and a “probable human carcinogen.” Testimony of Kenneth Rudo (“Rudo Testimony”), Tr. at 3265:28-3266:2. As a mutagen, MTBE can change the way human DNA is expressed. Id. at 3266:3-18. According to Dr. Rudo, at even the lowest levels of exposure in drinking water, MTBE can cause mutations that lead to cancer. Id. at 3267:21-24. The City also presented expert testimony about the taste and odor characteristics of MTBE. Harry Lawless, a professor in Cornell University’s food science department, testified about his review of the scientific literature regarding the proportion of the population that is sensitive to the taste and smell of MTBE in drinking water at various concentration levels. Testimony of Harry Lawless (“Lawless Testimony”), Tr. at 2888:20-25. Based on his review, Lawless opined that 50 percent of the population would detect MTBE in drinking water at 14 to 15 ppb; 25 percent of the population would detect MTBE in drinking water at 3 to 4 ppb; and 10 percent of the population would detect MTBE in drinking water at 1 to 2 ppb. Id. at 2889:18-22. Lawless also testified that “if [he] was in a consumer products company and 10 percent of the population noticed a change in the product, that would be a problem.” Id. at 2890:3-5. In addition, the City called Steven Schindler, Director of Water Quality for the City’s Bureau of Water Supply, whose responsibilities include monitoring the City’s water supply for quality issues and investigating consumer complaints relating to water quality. Testimony of Steven Schindler (“Schindler Testimony”), Tr. at 2927:19-22; id. at 2938:17-20. Schindler testified that consumers “expeet[] their water to be relatively free of taste and odor” and that “there is a very close link between how the water tastes and smells [and] public confidence.” Id. at 2942:13-19. According to Schindler, if “10 percent of the population ... detected] taste and odor in their water ... that’s going to undermine ultimately the public confidence] in our water supply.” Id. at 2943:9-13. For its part, Exxon presented the testimony of Dr. Sandra Mohr, who disputed Drs. Burns’s and Rudo’s account of MTBE’s effects on human health. Dr. Mohr testified that neither the EPA nor the National Toxicology Program has classified MTBE as a human carcinogen. Mohr Testimony, Tr. at 3055:7; id. at 3097:5-6. According to Dr. Mohr, “[t]here is no human data that MTBE is a carcinogen, and there is very limited animal data.” Id. at 3055:14-15. Indeed, in Dr. Mohr’s opinion, “MTBE is not carcinogenic in humans.” Id. at 3087:1; see also id. at 3056:3 (“I don’t think that it’s a carcinogen at all.”). As for MTBE’s mutagenic properties, Dr. Mohr testified that the scientific literature shows “that MTBE is at best a weak mutagen and may not be particularly mutagenic at all.” Id. at 3104:20-21. b. Causation The City advanced three theories of causation, each of which was tied to its theories of liability. First, it alleged that Exxon caused damage to the City as a “direct spiller” of gasoline containing MTBE. In this vein, the City asserted that Exxon owned or controlled underground storage tank systems at six gasoline stations in Queens, and that MTBE leaked from these tanks into the groundwater. Tr. at 6605:1-8. The jury was instructed that it should find that Exxon was a cause of the City’s injury as a “direct spiller” if the City showed by a preponderance of the evidence that (1) “[a]t the time that [Exxon] owned or controlled some or all of these underground storage systems, they leaked gasoline containing MTBE” and (2) “these leaks caused or will cause an injury to the [C]ity’s Station 6 wells.” Id. at 6605:8-15. The jury was also instructed that “[a]n act or omission is regarded as a cause of an injury if it is a substantial factor in bringing about the injury; that is, if it has such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Id. Second, the City alleged that Exxon caused damage to the Station Six water supply as a “manufacturer, refiner, supplier, or seller” of gasoline containing MTBE. Under this theory, Exxon could be held liable for manufacturing, refining, supplying, or selling MTBE-treated gasoline that leaked or spilled from service stations not owned or controlled by Exxon. Thus, the jury was instructed that it should find that Exxon was a cause of the City’s injury as a “manufacturer, refiner, supplier or seller” of MTBE gasoline if the City showed by a preponderance of the evidence that Exxon’s “conduct in manufacturing, refining, supplying or selling gasoline containing MTBE was a substantial factor in causing the [Cjity’s injury.” Id. at 6606:2-11. The jury was further instructed that, “[i]n making this decision, you should consider how much, if any, of the gasoline containing MTBE that was delivered to the locations that are the sources of the MTBE that injured or will injure the Station 6 wells came from gasoline containing MTBE that was manufactured, refined, supplied or sold by [Exxon].” Id. at 6606:12-17. And it was informed that, in deciding whether Exxon’s conduct was a significant factor in bringing about the City’s injury, it could “consider as circumstantial evidence [Exxon’s] percentage share of the retail and/or supply market for gasoline containing MTBE in Queens or [in] any other region that [it] determine[d] is relevant.” Id. at 6606:17-20. Third, the City alleged that Exxon could be liable as a “contributor” to the City’s injury pursuant to an alternative theory— known as the “commingled product theory” or “manufacturer or refiner contribution”—developed by the District Court for purposes of the underlying MDL. Pursuant to this theory, which the jury would consider only if it rejected the City’s other two theories of liability: when a plaintiff can prove that certain gaseous or liquid products (e.g., gasoline, liquid propane, alcohol) of many refiners and manufacturers were present in a completely commingled or blended state at the time and place that the harm or risk of harm occurred, and the commingled product caused plaintiffs injury, each refiner or manufacturer is deemed to have caused the harm. A defendant [can] exculpate itself by proving that its product was not present at the relevant time or in the relevant place, and therefore could not be part of the commingled or blended product. Thus, the District Court instructed that jury that it “will find that [Exxon] contributed to the [C]ity’s injury in its capacity as a manufacturer or refiner” if the City showed by a preponderance of the evidence that: [1] the MTBE that injured or will injure the [C]ity comes from many refiners and manufacturers, whether because the gasoline from any source is co-mingled at the source and includes [Exxon] MTBE product, or because the MTBE product in the ground came from multiple sourcesf ] [o]ne of which is an [Exxon] source and is now co-mingled in the groundwater; [2] that the combined co-mingled MTBE product of many refiners and manufacturers injured or will injure the [C]ity; and [3] that when the co-mingled MTBE product injured or will injure the [C]ity, it included or will include some MTBE from gasoline containing MTBE that was manufactured or refined by [Exxon]. Id at 6607:15-6608:6. c. Damages The jury was instructed that if it found Exxon liable on any of the City’s causes of action, “then [it] must award the [C]ity sufficient damages to compensate the [C]ity for losses caused by [Exxon’s] conduct.” Tr. at 6634:20-22. This damages determination took place in four stages. First, the jury was instructed to determine the “sum of money that compensates [the City] for all actual losses the [C]ity proves, by a fair preponderance of the credible evidence, that it has sustained, or will sustain in the future, as a result of MTBE in the Station 6 wells.” Id at 6635:8-13. Next, in view of Exxon’s contention that the water in the Station Six capture zone was also polluted with non-MTBE contaminants such as perchloroethylene, the jury was instructed to reduce the City’s damage award by any amount attributable to the “cost of treating [the] other contaminants [at Station Six] in isolation.” Id at 6637:11-15. Next, the jury was provided a list of the petroleum companies that had settled with the City prior to trial and instructed to “decide the percentage of the total fault borne by these other companies as compared to [Exxon’s] fault.” Id at 6638:1-4. Finally, the jury was asked to determine whether “the [C]ity was negligent in its use of gasoline containing MTBE and, if so, whether the [CJity’s negligent conduct was a substantial factor in causing its own injury.” Id. at 6638:17-20. If the jury found that the City’s negligence was a substantial factor in causing its own injury, then it was instructed to “apportion the fault between the [C]ity, [Exxon], and any other companies [it found] liable.” Id. at 6639:7-10. In an effort to quantify its damages, the City called Marnie Bell, a groundwater treatment expert who testified about the cost of treating the MTBE at Station Six. Bell explained that it is “standard engineering practice to design a treatment system to treat the water to below an MCL” because “[designing a treatment system to treat the water to just below an MCL would place a water utility at risk for violating the MCL and possibly delivering contaminated water to its customers.” Testimony of Marnie Bell (“Bell Testimony”), Tr. at 5881:14-18. In addition, Bell explained, New York State “require[s] that treatment systems for the removal of organic contamination [such as MTBE] be designed to remove the contaminant to the lowest practical level.” Id. at 5881:19-22. Bell identified two “proven and reliable technologies” for removing MTBE from groundwater: granular-activated carbon (“GAC”) and air-stripping. Id. at 5861:5-7. She estimated that, assuming the concentration of MTBE at Station Six peaked at 10 ppb, as the jury concluded during Phase II, building and operating a GAC facility would cost approximately $250 million in 2009 dollars, id. at 5886:9-10, while building and operating an air-stripping facility would cost approximately $127 million in 2009 dollars, id. at 5896:5-8. According to Bell, however, “[t]here are a number of factors that may make [air-stripping] less desirable,” including noise and the size of the necessary equipment. Id. at 6044:4-9. In arriving at her estimates, Bell projected the costs of a treatment facility over a forty-year timeframe because “Terry’s modeling ... showed MTBE concentration sustaining at significant levels out to 2040. And we projected those trends outwards to try and identify the entire timeframe in which Station 6 would need to provide MTBE treatment.” Id. at 5885:16-20. In addition, Bell testified that, although she understood Station Six would be used as a back-up source of drinking water (as the jury concluded during Phase I), the “only reasonable assumption to make [in projecting the cost of a treatment facility] was that the facility would need to operate continuously.” Id. at 5886:21-22. As Bell explained, “[t]he [C]ity has a number of planned repairs on its tunnels and aqueducts. There is the potential for a failure of that supply. And when the system needs to operate, it needs to operate continuously for as long as it is needed.” Id. at 5886:22-5887:1. d. Statute of Limitations The jury was also asked to consider Exxon’s contention that the City had failed to bring its claims within the applicable three-year statute of limitations. As to this issue, the jury was instructed that Exxon bore the burden of showing by a preponderance of the evidence that, at some time before October 31, 2000, ie., more than three years before the City filed suit, (1) “there was a sufficient level of MTBE in the capture zone of the Station 6 wells such that if the wells were turned on, the level of MTBE in the combined outflow of the Station 6 wells would have injured the [C]ity at that time,” and (2) “the [C]ity knew at that time or reasonably should have known that there was a sufficient level of MTBE in the capture zone of the Station 6 wells ... to cause an injury.” Tr. at 6631:16-6632:2. In support of its contention that the City’s claims were time-barred, Exxon relied principally on the testimony of William Yulinsky, the Director of Environmental Health and Safety in DEP’s Bureau of Waste Water Treatment. Yulinsky testified that, as early as September 1999, he received a memorandum from a City consultant who noted that, “considering that numerous potential sources of MTBE exist within [one] mile of Station 6, the need to treat for MTBE should be anticipated, particularly in conjunction with the high concentrations of PCE reported nearby.” Testimony of William Yulinsky (‘Yulinsky Testimony”), Tr. at 5781:24-5782:8. Yulinsky also testified that by August 2000, the City was “looking at station modifications for Station 6 to treat a variety of things,” including MTBE. Id. at 5768:1-9. Yulinsky explained, however, that in 1999 and 2000 “it was way too soon to determine what we were going to need to treat for.” Id. at 5772:6-8. e. Phase III Jury Verdict At the close of Phase III, the jury found that the City “is, or will be injured” by the MTBE that will be in the combined outflow of the Station Six Wells. Phase III Interrogatory Sheet. It also found that Exxon was a cause of the City’s injury as both a direct spiller of gasoline containing MTBE and as a manufacturer, refiner, or seller of such gasoline. Id. In view of these findings, it did not consider whether Exxon could be held liable as a “contributor” to the City’s injury pursuant to a “commingled product theory” of liability. Id. As for the City’s substantive claims, the jury found that the City had proven Exxon’s liability for failure-to-warn, trespass, public nuisance, and negligence, but not design-defect or private nuisance. Id. After concluding that Exxon had failed to prove that the City’s claims were untimely, the jury turned to the question of damages. Id. First, the jury concluded that the City would be fairly and reasonably compensated by an award of $250.5 million. Id. Next, it determined that the cost associated with reducing levels of nonMTBE contaminants in the Station Six Wells was $70 million. Id. Finally, it attributed 42 percent of the fault for the City’s injury to petroleum companies other than Exxon. Id. The jury’s final award to the City was therefore $104.69 million. F. Punitive Damages As previously noted, the City also sought punitive damages based on Exxon’s allegedly reckless disregard of the risks and dangers inherent in supplying gasoline containing MTBE. In support of its claim for punitive damages, the City pointed to certain evidence it had adduced during Phase III, as well as other evidence it proffered and intended to adduce during a punitive-damages phase of the trial. The City’s evidence fell into six general categories. The first category of evidence pertained to Exxon’s knowledge of the effect of MTBE on the taste and odor of drinking water. The City argued that its evidence raised an inference that Exxon knew, as early as the mid-1980s, that the presence of MTBE might render water undrinkable. For example, Robert Scala, former director of the Research and Environmental Health Division at Exxon, testified that in 1984 he drafted a paper for Exxon and the American Petroleum Institute in which he raised concerns about the taste and odor of MTBE and other gasoline-associated compounds, and that others at Exxon shared his concerns. Testimony of Robert Scala (“Scala Testimony”), Tr. at 3239:11-3239:20. The City also pointed to an internal memorandum prepared by Exxon employee Barbara Mickelson in 1984, in which Mickelson concluded that “low, nonhazardous, analytically non-detectable levels of MTBE continue to be a source of odor and taste complaints in affected drinking water.” Pl.Ex. 272. In addition, the City cited a memorandum prepared by Exxon employee Jack Spell in 1984, in which Spell described to his Exxon supervisors a Shell Oil report concluding that “approximately 5 parts per billion (in water) is the lower level of detectability” for MTBE. Pl.Ex. 5506. The second category of evidence pertained to Exxon’s knowledge of the health effects of MTBE. Although the parties disagree about the impact of MTBE on human health, the City presented evidence that, construed in its favor, raised an inference that as early as the 1980s, Exxon knew that MTBE posed potential health risks. For example, the City cited a memorandum Spell forwarded to his Exxon supervisors in early 1987, which advised that “MTBE has been identified as a health concern at the state and federal level when it is a contaminate [sic] in either ground water or air.” PLEx. 5506. The City also highlighted a slideshow prepared by Exxon in 1995, in which Exxon stated that its strategy was to “continue to monitor data on MTBE in groundwater” and to participate in ongoing studies of MTBE’s toxicity. PLEx. 477. In addition, the City introduced a 1999 Exxon study that observed, “With uncertain human health and environmental potential effects, public concerns about the need for control or elimination of MTBE in gasoline has accelerated.” PLEx. 580. The third category of evidence pertained to Exxon’s knowledge of the difficulties of remediating MTBE spills. For example, in the same 1984 memorandum in which she remarked upon MTBE’s taste and odor characteristics, Barbara Mickelson also noted that “MTBE, when dissolved in ground water, will migrate farther than BTX [another petrochemical] before soil attenuation processes stop the migration.” PLEx. 272. In a memorandum prepared the following year, Mickelson explained that “the inclusion of MTBE in Exxon gasoline is of concern as an incremental environmental risk” in part because “MTBE has a much higher aqueous solubility than other soluble gasoline components,” “MTBE has a higher differential transport rate than other soluble gasoline components,” and “MTBE ... cannot be removed from solution to below detectable levels by carbon adsorption and must be treated by more complicated and expensive ail’ stripping columns.” Pl.Ex. 292. Based on these considerations, in the 1985 memorandum Mickelson “recommend[ed] that from an environmental risk point of view[,] MTBE not be considered as an additive to Exxon gasolines on a blanket basis throughout the United States.” Id. The fourth category of evidence pertained to Exxon’s knowledge that its own underground storage tanks leaked gasoline. For example, in a 1984 memorandum to his supervisors, Jack Spell identified a series of “ethical and environmental concerns that are not too well defined at this point,” including the “possible leakage of SS [service station] tanks into underground water systems of a gasoline component that is soluble in water to a much greater extent.” Pl.Ex. 247. Similarly, Barbara Mickelson noted in another 1984 memorandum that Exxon had “62 ground water clean up activities underway.” PI. Ex. 271. The following year, in a memorandum in which she “reviewed the environmental risks from retail service station underground storage systems associated with the addition of MTBE,” Mickelson noted that MTBE’s elevated aqueous solubility “can be a factor in instances where underground storage tanks develop a leak which ultimately may find its way to the underground aquifer.” Pl.Ex. 283. For his part, Robert Scala testified that he was aware by the 1980s that Exxon had begun to replace underground storage tanks “[presumably because they either leaked or had a potential to leak.” Scala Testimony, Tr. at 3229:5-8; see also Pl.Ex. 228 (Underground Tank Failure Report 1982 Year-End Summary); Pl.Ex. 782 (Underground Tank Program). These tank problems extended well into the 1990s. In March 1998, for example, Exxon prepared a slide show in which it noted that “268 UST [underground storage tank] system releases occurred between 1993-1996.” Pl.Ex. 1026. The slides reflect both Exxon’s belief that future MTBE releases were likely through tank failure, and that the company had plans and training in place to minimize the risk of releases. The fifth category of evidence pertained to Exxon’s knowledge of MTBE contamination in New York. On this score, the City offered a 1998 survey, completed by Exxon employee Mike Meóla, of MTBE contamination levels at potable and monitor wells near 98 retail sites in the state. Pl.Ex. 3074. The survey showed average MTBE concentrations of 50,000 to 100,000 ppb, with peak concentrations reaching 1,000,000 ppb in some monitor wells. Id. The survey did not suggest, however, that Exxon understood precisely how MTBE contamination would affect groundwater located some distance away from a leaking tank. Indeed, a 1987 Exxon memorandum introduced by the City suggests that at that time Exxon theorized that MTBE’s “apparent faster migration ... is mitigated by the rapid dilution of the material and its faster disappearance from a site.” PI. Ex. 2636. Nor did the City present evidence suggesting that, before 1998, Exxon knew that MTBE contamination in New York State occurred at significant levels. The final category of evidence pertained to Exxon’s candor about its knowledge regarding MTBE. The City presented disputed evidence that, construed in the City’s favor, suggested Exxon hid its knowledge of MTBE’s deleterious characteristics from regulators, gas station owners and operators, and others. For example, when asked in deposition whether Exxon informed independent station owners that its gasoline contained MTBE, Robert Larkins, the Exxon executive who approved MTBE’s use in the mid-1980s, responded that Exxon “didn’t uninform them.” Deposition of Robert P. Larkins, 467:23-468:04, Mar. 6, 2008 (emphasis added). The City also offered evidence suggesting that Exxon minimized MTBE’s dangers in public statements. For example, in 1987, the Oxygenated Fuels Association’s MTBE Committee, acting on behalf of Exxon and others, told the EPA that “there is no evidence that MTBE poses any significant risk of harm to health or the environment.” Pl.Ex. 5507. At the close of Phase III of the trial, Exxon moved to preclude the jury from considering an award of punitive damages, arguing that the City’s evidence was insufficient as a matter of law to establish the requisite degree of malice, recklessness, or wantonness. The District Court granted Exxon’s motion, reasoning that the City had not shown that Exxon’s conduct “created either significant actual harm or a substantial risk of severe harm to the Station Six wells.” G. Juror Misconduct During the jury’s Phase III deliberations, the District Court received a telephone call from Juror No. 2, who reported that Juror No. 1 had “cursed,” “insulted,” and threatened to “cut” her. Tr. at 6994:10-13. Juror No. 2 also reported that “[everybody is afraid of’ Juror No. 1 and “[njobody is willing to stand up to her.” Id. at 6995:1-2. The next day, Exxon moved to excuse Juror No. 1 from further service, and requested that the District Court ask the remaining jurors whether, in Juror No. l’s absence, they felt “they [could] reach a decision based on their own views, own conscientious views, rather than on threats, coercion or duress.” Id. at 6992:11-22. After observing that Juror No. 1 “has been a worrisome juror for a long time” and suggesting that “she is the juror whose voice we can hear through the doors as being loud and being abusive,” the District Court proceeded to ask each juror individually whether he or she felt able to deliberate without fear of duress or threat. Id. at 6993:1-7. After several jurors denied feeling threatened and responded unequivocally that they could reach their own verdicts, the District Court stated that it had “occurred” to the court “that Juror No. 2 is very fragile and that rather than excusing Juror No. 1, it might be Juror No. 2 has an overblown view of what’s occurring,” recalling a prior occasion when Juror No. 2 had cried in court. Id. at 7007:13-24. The District Court then questioned Juror No. 2, who stated, “I can’t make my own decision.” Id. at 7011:2. After completing the interviews, the District Court concluded that it was “absolutely confident that nobody feels threatened other than Juror No. 2, [who] says she no longer feels she can reach her own verdict[,] [s]o it strikes me that she ought to be excused.” Id. at 7013:2-5. Counsel for Exxon agreed that “if [Juror No.] cannot go forward, then she needs to be excused,” id. at 7013:24-25, but moved for the dismissal of Juror No. 1 “for threatening [Juror No. 2] with physical violence,” id. at 7014:3-4. The District Court denied the motion, expressing its view that the “violence” may partly be in [Juror No. 2’s] mind. There were ten people deliberating and nobody felt threatened at all. I watched their demeanor. They seemed calm. They seemed reasonable. They really thought it was, you know, just almost surprising that I was talking to them. I sensed no concern on any other juror’s part. Id. at 7014:5-10; see also id. at 7015:15-17 (“If there had been a threat of violence, somebody else would have reported it. Nobody did.”). At defense counsel’s request, the District Court then agreed to re-interview Juror No. 2 so that the contents of the previous night’s telephone call could be placed on the record. During this second interview, Juror No. 2 recounted that the previous day the other members of the jury “said I was stupid, I can’t form my own opinion because it doesn’t match the rest of them. And I feel—I feel that I’m not safe.” Id. at 7017:9-12. She also stated that she had been “threatened to be cut” earlier in the week, and “threatened with a fork” one to two weeks earlier. Id. at 7017:17-7018:21. After formally dismissing Juror No. 2, the District Court summoned the other jurors for a “talk about civility” during which it instructed them to “[mjake every attempt ... to reach a verdict, and to do so without ... shouting, without cursing, without any threatening, if that has happened, and I can’t know that, I wasn’t there.” Id. at 7020:11-7022:9. After the jury resumed it