Judge Neil Gorsuch, the Supreme Court and Product Liability Litigation

by Perkins Coie
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What does the nomination of Judge Neil Gorsuch for the U.S. Supreme Court mean for product liability litigation? Judge Gorsuch may be similar enough to the late Justice Antonin Scalia as to first principles that near-term case outcomes may not differ, though in implied preemption cases there may be differences. But whatever the short-term impact if Judge Gorsuch is confirmed, based upon his record at U.S. Court of Appeals for the Tenth Circuit record, he is likely to have a significant effect down the road on the development of the law in each of these areas:

  • Admissibility of expert testimony
  • Federal preemption
  • Personal jurisdiction

In this update, we review some of his rulings in the above areas and take a deeper look into the impact he might have on product liability litigation should he become the Court’s next associate justice.

Judge Gorsuch’s Style and Substance. Many have commented on Judge Gorsuch’s writing style, and review of the dozen or so opinions relevant here is consistent with the depictions of his strength as a writer. His opinions reveal an informal, reader-friendly, self-assured writing style and a clear emphasis upon explaining simply—and in some instances, untangling—complicated concepts and doctrines within any given legal dispute. But behind the informality, the reader consistently gets the impression that Judge Gorsuch has definite views of how the system is supposed to work, whether that is the system of the Constitution, a statutory scheme, or procedural rules.

As to style, there is sometimes a Rod Serling-esque, “Twilight Zone” feel at the beginning of opinions, as Judge Gorsuch attempts to suck the reader immediately into the case-as-story that he is telling. In opinions cited below (none of which were selected in search of interesting style points and some of which are unpublished), the opening lines include:

  • “Harnessing nuclear energy is a delicate business.”
  • “James Kirby says the jury’s award against him is too much.”
  • “One of the things they teach in driver education classes is that if your car begins to spin out you should turn the steering wheel in the direction of the skid.”

There is also an apparent fondness for repeating words somewhat in the manner of Bruce Willis’s character in the television show “Moonlighting,” who would rhetorically ask things like, “Do bees be? Do bears bear?” Judge Gorsuch, in turn, writes of what the “Founders found,” going past the “point of pointlessness,” and a “beside-the-point point,” in opinions cited below.

Judge Gorsuch cares about his style, he cares about the big picture and principles in any given dispute, and he brings to the table practical litigation experience regarding the pitfalls in our legal system.

Expert Testimony. Judge Gorsuch appears interested in the gatekeeping role of district courts regarding expert testimony and ensuring that it is done well. Even his unpublished opinions expend considerable discussion addressing the topic. See, e.g., Graves v. Mazda Motor Corp., 405 Fed. Appx. 296 (10th Cir. 2010) (affirming the district court’s exclusion of the plaintiff’s design expert); BancFirst v. Ford Motor Co., 489 Fed. Appx. 264 (10th Cir. 2010) (same).

Judge Gorsuch has also attempted to formulate guidance that requires meaningful engagement with Daubert issues by district court judges. In Storagecraft Technology Corp. v. Kirby, 744 F.3d 1183 (10th Cir. 2014), he wrote for the court: “We have yet to identify some unifying theory or principle for discerning the precise point at which a district court’s gate-keeping findings prove sufficient. But several lessons emerge from a review of our existing decisions.” Id. at 1190. He then summarized how district courts must explain themselves and address the objections raised concerning expert testimony, recognizing that “more complicated challenges demand lengthier discussions.”

Elsewhere he has emphasized that courts should not admit speculation just because it comes from a credentialed person: “[W]e appreciate and recognize Mr. Syson’s credentials and don’t doubt the value someone in his field can bring to defective design cases, [but] the evidence he proffered in this case rests on no more than his say so—and that isn’t good enough to require its admission.” Graves, 405 Fed. Appx. at 299.

Judge Gorsuch’s views regarding the admissibility of expert testimony may affect product liability litigation because expert testimony is commonplace. It is reasonable to expect that Judge Gorsuch will be on the side of a robust gatekeeping role for district court judges, and that he will press for meaningful engagement and review of expert testimony issues.

Federal Preemption. Many product liability cases turn upon whether state tort actions are preempted by federal law. Judge Gorsuch has at least two significant federal preemption decisions of note, as well as other decisions regarding federalism and administrative law that may affect his resolution of particular federal preemption questions.

With respect to express preemption cases, Judge Gorsuch will likely be a straightforward textualist who will not hesitate to apply what he considers the best interpretation of an express preemption clause. That is what he did in Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015), where the court held that a state tort suit alleging defective design and failure to warn regarding the off-label use of a prescription medical device was preempted. Judge Gorsuch began by expending considerable space attempting to explain the Supreme Court’s precedent regarding the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act. He may have done that in part to display his skills at reader-friendly exposition. But the subtext of the exposition is his finding fault with the Supreme Court for deviating from the normal understanding of the relevant language of the statute and thereby creating mass confusion in the lower courts. He then moved on to answer the preemption questions posed, and the opinion is thoroughly textualist.

In express preemption cases, expect textualism, which may bring more predictability in outcomes. But since he would replace the Court’s most textualist justice, in the short-term there would not likely be much change.

With respect to implied preemption, Judge Gorsuch may be significantly more difficult to predict. His opinion in Cook v. Rockwell Intern. Corp., 790 F.3d 1088 (10th Cir. 2015), regarding the Rocky Flats nuclear weapons production facility, displays the difficulty. The court rejected express and implied preemption of state nuisance lawsuits. In considering whether the actions were implicitly preempted by the Price-Anderson Act, Judge Gorsuch emphasized background principles of federalism, invoking the “presumption against preemption” when “Congress’s statutory direction is susceptible to more than one reading.” Id. at 1094. He also emphasized that the “duty” to disfavor preemption in those circumstances is “heightened” in areas of “traditional state regulation like public health and safety,” into which he included the nuisance actions at issue. Id. In so doing, there was nothing grudging about his acceptance of those background principles, and in other opinions, he seems to make clear when he is grudgingly applying a particular doctrine. See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (discussed below). And he acknowledged that he was splitting with other circuits in finding no implied preemption.

There may be several different influences at play in a difficult implied preemption case. Judge-Gorsuch-the-textualist (and defender of the separation of powers) may believe that it is appropriately Congress’s job to say expressly whether there should be preemption. Indeed, textualists have carved back implied rights of action with similar reasoning. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001). Judge-Gorsuch-the-federalist may also be sensitive toward protecting the sovereign regulatory spheres of the states. Perhaps that is behind his apparent opposition to dormant commerce clause jurisprudence, see Energy & Env't Legal Inst. v. Epel, 793 F.3d 1169 (10th Cir. 2015), though that may just be based on originalism grounds or the fact that the doctrine is kind of a morass, as he explains. At the very least, Judge Gorsuch does not hesitate to emphasize the “cooperative federalism that has traditionally defined our law.” Browder v. City of Albuquerque, 787 F.3d 1076, 1086 (10th Cir. 2015) (Gorsuch, J., concurring). That sounds like something his former boss and potential new colleague, Justice Anthony Kennedy, would write.

Finally, preemption cases may frequently bring into play Judge Gorsuch’s skeptical view of judicial deference to agency interpretations of statutes. On that point, he differs significantly from Justice Scalia, the Court’s strongest advocate of deference to administrative agency interpretations of ambiguous statutory provisions, what is typically called “Chevron deference” after Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). In Caplinger, for example, Judge Gorsuch dismissed the views of the FDA summarily, noting the FDA’s flip-flopping over recent years and the “textual and precedential acrobatics” that would be required to agree with the FDA’s then-current view. Caplinger, 784 F.3d at 1346. Elsewhere, as noted by many commentators, Judge Gorsuch has openly called for revisiting the Supreme Court’s decisions in Chevron and Nat'l Cable & Telecomms. Ass’n v. Brand X Internet Servs. (Brand X), 545 U.S. 967 (2005). See Gutierrez-Brizuela, 834 F.3d at 1149 (Gorsuch, J., concurring) (“[T]he fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”).

Litigants in preemption cases sometimes expend great energy seeking the agreement of a federal regulatory agency or the United States that a particular tort action is or is not preempted. Judge Gorsuch is not likely—as least as a doctrinal matter—to give that conclusion much weight. In his conspicuous call for Chevron to be revisited, he signaled that he believes the Court should be answering the statutory questions for itself, not permitting a delegation to the agency to legislate.

Personal Jurisdiction. Product liability cases can raise thorny issues of personal jurisdiction, especially concerning products and their components entering the so-called “stream of commerce,” and even more so the stream of internet commerce. The Supreme Court has yet to consider a personal jurisdiction case based upon internet commerce, but that day will come.

Judge Gorsuch, however, has written an extensive opinion involving sellers on eBay. Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 514 F.3d 1063 (10th Cir. 2008). He found personal jurisdiction in Colorado over out-of-state defendants who had contacted eBay to stop the auctioning of an item sold by the plaintiff sellers in Colorado. In so doing, he emphasized the requirement of intentional conduct by the defendants directed at the forum state and was careful to say that “we do not remotely hold that jurisdiction is proper simply based on plaintiffs’ decision to hold an eBay auction of materials that allegedly infringe defendants’ copyrights.” Id. at 1074. In crafting jurisdictional rules that do not make sellers and manufacturers subject to jurisdiction in any state where someone orders their product through the internet, there must be fine line-drawing. Judge Gorsuch seems committed to maintaining those lines, and he has some experience in attempting to draw them.

When the time comes for the Supreme Court to address internet commerce, or to re-visit the stream of commerce theory of jurisdiction, expect Judge Gorsuch to display the most knowledge as to the issues that arise and where lines might be drawn to prevent the mere sale of a product or component to give rise to jurisdiction wherever it lands.

Looking More Broadly. There are obviously other issues relevant to product liability litigation. In preparing this analysis, searches regarding punitive damages and excessive damages, for example, did not turn up any cases of note. Whether Judge Gorsuch follows Justice Scalia’s dissent from judicial review of punitive damages awards will be an issue to watch. Given his concerns over fair notice and the separation of powers, perhaps he will find the legislative quality of those awards troubling. Or perhaps he will let stare decisis be his guide, which is always a significant issue for any new justice.

Lastly, Judge Gorsuch does seem to care whether his decisions come across as showing empathy for the victims of tragic accidents. One decision ends as follows: “Enduring the death of a close family member in tragic circumstances is among life’s bitterest challenges. The loss Ms. Apolinar’s family has suffered is beyond words.” Espinoza v. Arkansas Valley Adventures, LLC, 809 F.3d 1150, 1158 (10th Cir. 2016). Another concludes: “Losing a child is a nightmare of the darkest sort and the suffering the Browder family has had to endure is beyond words.” Browder v. City of Albuquerque, 787 F.3d 1076, 1085 (10th Cir. 2015) (Gorsuch, J., concurring). In neither of those cases does it appear that those sentiments played a role in the legal reasoning, other than perhaps extra care in thoroughly examining the issues. Whether the desire to show empathy would affect his legal reasoning in any particular case is probably impossible to predict.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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