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 In opinions cited below (none of which were selected in search of interesting style points and some of which are unpublished), the opening lines include: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...
