“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Eighth Circuit judge Jonathan Kobes argued in dissent that the court should affirm a summary judgment ruling completely absolving a corporation from any liability for severe respiratory injuries caused by its nitric acid manufacturing plant. The two judges who rejected Kobes’ position and sent the case back for trial were both appointed by other Republican presidents, including one judge who was on President Trump’s original Supreme Court short list. The  July 2020 case is Scott v Dyno Nobel Inc.

 Dyno Nobel owns a plant in Missouri that converts ammonia into nitrogen oxide and dioxide (NOx), which the plant then combines with water under high pressure to produce nitric acid. In accord with a permit, Dyno discharges unconverted NOx gas into the air. When the plant is started up to resume nitric acid production after routine maintenance shutdowns, the plant “emits more NOx gas than normal.”

NOx is “extremely hazardous” and “toxic “and can cause “numerous respiratory problems” when inhaled. At high concentrations, it is dark and denser than air. If not contained, a “harmful concentration” of the gas in the air “will be reached very quickly.” Dyno generally takes “numerous precautions” to prevent NOx emissions from “coming into contact with persons on or near its plant facility,” including a neighboring facility known as the Calumet Plant. Teddy Scott worked at the Calumet Plant.

One morning, Dyno began a startup at 3:30 am, and then had to shut the plant down again due to equipment failure at 5:30 am. Dyno began the startup process again after 8 am, “during working hours at Calumet.”  At around 8:15, Scott and his co-workers saw a “dark cloud” emerge from Dyno’s smokestack and “settle on top of trees” near Calumet rather than rise into the air. Wind blew the cloud into the immediate Calumet area, “enveloping workers that included Teddy Scott.”  The result was “severe respiratory injuries” to Scott, and he and his wife sued for damages, claiming that Dyno was negligent.

A lower court dismissed their claims on summary judgment without a trial, and the Scotts appealed to the Eighth Circuit. The panel that heard the case included Kobes plus two other judges nominated by Republican presidents: James Loken, who was nominated by President George H.W. Bush, and Steven Colloton, who was nominated by President George W. Bush and was on President Trump’s first shortlist for the Supreme Court.

In a 2-1 opinion, Judge Colloton and Loken reversed the lower court. The issue was whether Dyno had been negligent under Missouri law, they explained, and the district court had ruled that the injury to Scott was not foreseeable as a matter of law, leading to its decision for Dyno on summary judgment without a trial. The majority continued, however, that whether an injury like Scott’s is foreseeable and thus whether Dyno should have taken additional precautions to prevent it was “a question for the jury”, and that a “reasonable jury” could well find that the risk of harm was sufficiently serious that Dyno should have but did not take “precautions to avoid it.” Among other issues, the majority noted, there was a dispute as to “whether Dyno adequately notified Calumet prior to the startup in question.”

Trump judge Kobes dissented, however, and would have upheld the dismissal of the Scotts’ claims against Dyno. He maintained that under Missouri law, the question of foreseeability was for a court to resolve “as a question of law.”

The majority clearly disagreed. They explained that based on their “close reading of Missouri cases,” including the primary decision relied upon by Kobes, “Missouri follows an approach that deems foreseeability a question for the jury, at least when varying inferences are possible” as in this case.

As a result of the majority decision by Judges Colloton and Loken, therefore, the Scotts will have the opportunity to present their case against Dyno for Teddy Scott’s “severe respiratory injuries” to a jury to decide. If it had been up to Kobes, however, their case would have been thrown out of court.