IRVING R. KAUFMAN, Circuit Judge:
This appeal, taken by the mother of the young man whose tragic and untimely death precipitated this litigation, requires us to determine whether the district judge correctly granted the defendants' motion for summary judgment. Unmistakably, summary judgment is a drastic device because its prophylactic function, when exercised, cuts off a party's right to present his case to the jury. Yet, if the case is totally devoid of an issue of fact there is no reason why the curtain should rise on the trial. After a careful review, we conclude that the affidavits submitted by the parties revealed no genuine issue as to any material fact. Accordingly, we affirm the judgment below.
The factual setting of this case is relatively brief. David Foy, a resident of Miami Beach, Florida, where his mother Mary Donnelly resided, was a student at the Canterbury School in New Milford, Connecticut. David, who was sixteen years old, suffered from Marfan's syndrome, a congenital condition affecting the connective tissues. In many instances Marfan's syndrome leads to the formation of an aneurysm which if it ruptures may cause death.
Misfortune struck on the morning of January 31, 1969. David was found in his bed, apparently lifeless, by another student at the Canterbury School. Dr. Robert McDonald, the school physician and also medical examiner for New Milford, was summoned and upon examining the young man concluded he was dead. Dr. McDonald knew from the school's medical records that David suffered from Marfan's syndrome but he concluded that an autopsy was necessary to determine with certainty the cause of David's death because there were no external indications of its cause. Accordingly, the body was transported to the New Milford Hospital Morgue, where an autopsy was performed by Dr. Ernest Izumi, a pathologist in private practice designated by H. Gibson Guion, the county coroner, to perform autopsies. This autopsy revealed that the death resulted from a "Ruptured saccular aneurysm due to Marfan's syndrome."
Whatever initial feelings Mrs. Donnelly experienced,
After Judge Blumenfeld denied a motion, pursuant to Rule 12(b) (6), F.R. Civ.P., to dismiss the action for failure to state a claim upon which relief could be granted, the defendants moved for summary judgment on all claims under Rule 56, F.R.Civ.P. The parties submitted affidavits in support of, and in opposition to, the motion. Among other things, Dr. McDonald's affidavit stated that he concluded that an autopsy was necessary to determine the cause of death because David's medical history, including his most recent X rays and his recent general health, revealed no aneurysm formation and because there were no external indications of the cause of death. In sum, he stated "the common indications of death from Marfan's were not present and I felt for this reason that I could not state the cause of death with any degree of certainty unless an autopsy was performed." In response to Dr. McDonald's sworn assertions, Mrs. Donnelly's affidavit stated:
Judge Blumenfeld decided that no genuine issue as to any material fact survived, as required by Rule 56, and that Dr. McDonald's conclusion that the cause of death was uncertain did not constitute wanton and wilful misconduct.
Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact". Mrs. Donnelly argues that her affidavit indicated a genuine issue of material fact as to whether the cause of David's death was obscure. Although the portions of the affidavits referred to above do reveal a difference of opinion among the parties, the rule requires that the opposing party present some evidence which supports the bald assertion that there is a dispute. The concluding two sentences of Rule 56(e), added in 1963, specify that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response . . . must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." This clarifying amendment
Dr. McDonald's affidavit explicitly stated facts which he believed supported his conclusion that the cause of death was obscure. He said there had been no past evidence of aneurysm formation either in David's most recent X-rays or in his recent state of health and that there had been no external indications of the cause of death. In response to this physician's statement, Mrs. Donnelly merely asserted the conclusion, without supplying any supporting reasons, evidence, or facts for its basis, that the cause of death was not obscure when David's medical record was considered. Thus, her affidavit presented no facts to contest Dr. McDonald's findings. If this case had proceeded to trial and nothing remained in the case but Mrs. Donnelly's vague and conclusory allegations, unsupported by evidence, it is clear that a directed verdict would have been appropriate. If, indeed, evidence was available to underpin her conclusory statement, Rule 56 required her to come forward with it. A party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial, for in doing so he risks the possibility that there will be no trial. A summary judgment motion is intended to "smoke out" the facts so that the judge can decide if anything remains to be tried.
This conclusion, however, does not end our consideration. Judge Blumenfeld interpreted the Connecticut statutes as authorizing Dr. McDonald to order the autopsy because the doctor believed the cause of death was "obscure" and, in addition, the statutes did not require the coroner Guion to view the body before such an autopsy.
The Connecticut statutes we are considering are not models of clarity.
When read in connection with § 6-57, which requires the medical examiner to notify the coroner only when criminality is suspected, § 6-59 would seem to indicate that in cases where the cause of death is obscure, the medical examiner may order an autopsy without a relative's consent and without a view and inquiry by the coroner. The logic of this interpretation is supported by § 6-56, which requires the medical examiner to sign the death certificate and to state the cause of death in all cases except where he suspects criminality. A fortiori, the medical examiner would be unable to state the cause of death without an autopsy if it could not be determined from external indications or medical records.
It is unfortunate that the law cannot furnish a balm for the grief which Mrs. Donnelly has endured, although we suspect that money could never compensate her adequately for this loss. But the law's requirements, however harsh, were set forth clearly in this case. Dr. McDonald acted well within the scope of his authority under Connecticut law when he ordered the autopsy to determine the cause of David's death and there was no legal duty for Guion, the coroner, to view the body before the autopsy was performed. Accordingly, Judge Blumenfeld was correct in granting summary judgment in favor of Dr. McDonald and Guion.