How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Sun Chemical Corp v. Fike Corp

Court: US Court of Appeals for the Third Circuit

Docket: 18-1062

Opinion Date: November 27, 2020

Judge: Thomas L. Ambro

Areas of Law: Consumer Law, Personal Injury, Products Liability

Sun made news ink at its East Rutherford facility and purchased a dust-collection system that included a Fike suppression system to contain explosions in case of a fire in the collection system. On the first day the system was fully operational, the dust-collection system caught fire. The suppression system activated an alarm that workers did not hear. After workers saw flames and extinguished the fire, an explosion sent flames out of the dust-collector system’s ducts, severely injuring several Sun employees and causing significant property damage. The ensuing government investigations caused Sun to end production at the facility. Sun sued Fike under the New Jersey Consumer Fraud Act (CFA), N.J. Stat. 56:8-1, alleging that Fike misrepresented that: the suppression-system alarm would be audible and would comply with a specific industry standard; Fike would provide training to Sun employees; the suppression system had never experienced failures in the field; and the system was capable of preventing an explosion from entering the facility. The Third Circuit certified an issue to the New Jersey Supreme Court, then, consistent with the response, held that some of Sun’s CFA claims are absorbed and precluded by the New Jersey Products Liability Act, N.J. Stat. 2A:58C-1, and some are not. As to Sun’s remaining CFA claims, the court concluded that Sun demonstrated a genuine issue of material fact and remanded for further proceedings.

Blanco Ayala v. United States

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1862

Opinion Date: December 2, 2020

Judge: James Harvie Wilkinson, III

Areas of Law: Government & Administrative Law, Personal Injury

Plaintiff filed suit under the Federal Tort Claims Act (FTCA) against the United States for wrongful investigation, arrest, and detention. Plaintiff's claims stemmed from his arrest, detention, transportation, and removal from the country by immigration officers based on an incorrect citizenship determination. The Fourth Circuit affirmed the district court's determination that the discretionary function exception to the FTCA's waiver of sovereign immunity operated to defeat plaintiff's claims. The court explained that, in deciding whom to investigate, detain, and then remove, DHS officers must make all the kinds of classic judgment calls the discretionary function exception was meant to exempt from tort liability. Applying the Berkovitz analysis, the court concluded that the decisions to detain and remove are discretionary and DHS officers' decisions in investigating and responding to potential violations of immigration law are infused with public policy considerations. Because the discretionary function exception applies so plainly here, the court need not consider the government's other arguments.

Broidy Capital Management v. State of Qatar

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-56256

Opinion Date: December 2, 2020

Judge: Daniel P. Collins

Areas of Law: International Law, Personal Injury

Plaintiffs Elliot Broidy and his investment firm filed suit against the State of Qatar and various other defendants after Qatari agents allegedly hacked into plaintiffs' computer servers, stole their confidential information, and leaked it to the media in a retaliatory effort to embarrass plaintiff and thereby to neutralize his ability to continue to effectively criticize the Qatari regime and its alleged support of terrorism. The Ninth Circuit affirmed the district court's dismissal based on lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA). The panel concluded that neither the FSIA's exception to immunity for tortious activity nor its exception for commercial activity applied in this case and thus Qatar was immune from jurisdiction. The panel explained that all of plaintiffs' tort claims were barred under the discretionary function exclusion from the tortious activity exception because the challenged conduct was discretionary in nature or involved an element of judgment or choice, and the judgment was of the kind that the exception was designed to shield. Furthermore, plaintiffs' claims were based on the alleged surreptitious intrusion into their servers and email accounts in order to obtain information and the dissemination of such information to others, including persons in the media. The panel explained that such conduct did not qualify as commercial activity under the FSIA.

Sabetian v. Exxon Mobile Corp.

Court: California Courts of Appeal

Docket: B297107(Second Appellate District)

Opinion Date: November 30, 2020

Judge: Feuer

Areas of Law: Personal Injury

The Court of Appeal affirmed the trial court's grant of summary judgment in favor of Chevron and Exxon in an action brought by plaintiff on behalf of her deceased husband, in an action alleging claims for negligence, premises liability, and loss of consortium. Plaintiff claimed that her husband contracted mesothelioma caused by exposure to asbestos while he was an Iranian citizen working for the National Iranian Oil Company (NIOC) in facilities controlled by defendants. The court held that plaintiff failed to raise a triable issue of fact as to the negligence and premises liability claims. In this case, plaintiff failed to raise a triable issue of fact as to the Chevron and Exxon defendants' ownership, possession, or control of the Iranian facilities, which would impose a duty on defendants under Civil Code section 1714 to protect refinery workers like plaintiff's husband from exposure to asbestos. Furthermore, plaintiff failed to raise a triable issue of fact that the 1954 contractual agreement between the Iranian government and a consortium of international oil companies, including defendants' predecessors in interest, created a special relationship between defendants' predecessors and plaintiff's husband. The court also held that the trial court did not abuse its discretion in awarding monetary and evidence sanctions to the Exxon defendants.

Gillespie v. Edmier

Court: Supreme Court of Illinois

Citation: 2020 IL 125262

Opinion Date: December 3, 2020

Judge: Thomas L. Kilbride

Areas of Law: Personal Injury, Products Liability

Gillespie was working on a dump trailer manufactured and sold by East and leased by his employer. It was loaded with mulch. Using the front cast iron side steps, Gillespie climbed on top of the trailer and lowered himself inside. After leveling the mulch, Gillespie crawled to the front, positioned his right knee on the aluminum cap, placed his left foot on the first step, and attempted to place his right foot on the second step. His hands slid off the top of the trailer, and his left foot slipped, causing him to fall off the stairs. He landed on his feet and felt a sharp pain in his back. He reported his injury before returning to work. Gillespie alleged that East is strictly liable for, and acted negligently in, designing, manufacturing, and selling a defective and unreasonably dangerous product that lacked adequate safety features; that East failed to warn consumers about foreseeable dangers from unsafe modifications; and that the product did not undergo product testing for safety. In a deposition, Gillespie's expert, Hutter, opined that the steps were defective and unreasonably dangerous; the spacing and width of the steps and the lack of side rails did not comply with the recommended practices of the Occupational Safety and Health Administration (OSHA), the American National Standards Institute, the Federal Motor Carrier Safety Regulations, and the Truck Trailer Manufacturers Association. The circuit court granted the defendant summary judgment, ruling that OSHA does not apply to trailers, that industry standards are not mandatory, and that third-party modifications demonstrated that the trailer was not unreasonably dangerous when it left East’s control. The appellate court reversed. The Illinois Supreme Court affirmed. Hutter’s deposition testimony was sufficient to create a genuine issue of material fact as to whether the trailer was unreasonably dangerous.