On Suggestion for Rehearing En Banc March 26, 1992.
BARKSDALE, Circuit Judge:
The widow and children of George Skotak (the Skotaks), appeal the summary judgment awarded Tenneco Resins, Inc. (TRI). Because the Skotaks did not produce sufficient evidence to create a genuine issue of material fact concerning the adequacy of the warning in issue, the judgment is AFFIRMED.
George Skotak died as a result of liver cancer in 1986. The Skotaks sued TRI in district court under theories of strict liability, negligence, and breach of an implied warranty, alleging that the cancer was caused by Thorotrast, a drug manufactured between 1943 and 1953 by TRI's predecessor, Heyden Chemical Corporation, and used as a contrast medium in radiology; that Mr. Skotak underwent surgery in
TRI moved for summary judgment, including on the grounds that: (1) the Skotaks could not prove the essential elements of their strict liability and negligence claims; and (2) as a matter of law, TRI was not liable as the corporate successor to Heyden.
In response, the Skotaks submitted a brief (included in the record) and the following evidentiary materials: (1) affidavits by Mr. Skotak's sister and cousin, which stated that Dr. D'Errico performed surgery on Mr. Skotak in either 1946 or 1948 at Baylor Hospital; (2) some of Mr. Skotak's medical records, from another facility, prepared prior to the surgery; (3) excerpts from the deposition of Dr. Block, Mr. Skotak's subsequent physician, in which he testified that a 1958 x-ray report showed the presence of Thorotrast in Mr. Skotak's body; (4) excerpts from the deposition of plaintiff Mary Skotak, who married Mr. Skotak in 1953, in which she testified both (a) that Mr. Skotak told her that he received Thorotrast in 1947 and (b) that Dr. Groman, who treated Mr. Skotak at the time of his death, told her, based upon reading medical articles, that Thorotrast caused cancer; and (5) TRI's answers to interrogatories in this case and an earlier case, concerning the warnings that accompanied Thorotrast.
The district court held that TRI was not liable as the corporate successor of Heyden, because TRI had not expressly assumed liability for injuries caused by Thorotrast. The district court also held:
On appeal, the Skotaks contend that there are genuine issues of material fact, including with respect to (1) the adequacy of the warning; and (2) TRI's liability as the successor to Heyden. It is not necessary to address either successor liability or causation; the judgment is affirmed solely on the Skotaks' failure to show a genuine issue of material fact concerning the adequacy of the warning.
Summary judgment is proper "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 and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A "dispute about a material fact is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing a summary judgment, this court applies, de novo, the same test employed by the district court. Netto v. Amtrak, 863 F.2d 1210, 1212 (5th Cir.1989). And, contrary to the position urged by TRI, the district court's determination of state law is likewise reviewed de novo. Salve Regina College v. Russell, ___ U.S. ___, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).
In this diversity case, Texas law, of course, applies to the Skotaks' negligence and strict liability claims. For cases involving a drug manufacturer's duty to warn, Texas courts apply the "learned intermediary" doctrine. See Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591-92 (Tex. 1986). Under that doctrine, that duty is satisfied by warning the physician of the dangers of the drug. Id. at 591. "[O]nce the physician is warned, the choice of which drugs to use and the duty to explain the risks become that of the physician." Stewart v. Janssen Pharmaceutica, Inc., 780 S.W.2d 910, 911 (Tex.Ct.App. — El Paso 1989, writ denied). Therefore, in order to prevail under Texas law on their negligence and strict liability claims, the Skotaks had the burden of proving, among other things, that the warning accompanying Thorotrast was (1) inadequate; and (2) a "producing cause" of Mr. Skotak's death. Stewart, 780 S.W.2d at 911 (citing Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex.1972)).
In order to satisfy its initial burden under Rule 56(c), TRI bore "the initial responsibility
TRI satisfied its burden. In its motion, it pointed out that the record contained no evidence on whether the Thorotrast administered to Mr. Skotak was accompanied by a warning and, if so, whether the warning would have added to the administering physician's knowledge of the risks of using Thorotrast. TRI also pointed to the absence of evidence in the record regarding, among other things: when and where the Thorotrast administration occurred; the identity of the prescribing physician; and whether Mr. Skotak would have received Thorotrast even if the physician had full knowledge of the risks.
TRI failed, in its motion, to identify two articles from medical journals which were in the record as exhibits to the Skotaks' opposition to TRI's motion to dismiss for lack of personal jurisdiction, filed more than a year before TRI filed its summary judgment motion. The articles were presented then by the Skotaks in support of their description of the "background" of their lawsuit; they were not relevant to the issues raised in TRI's motion to dismiss for lack of personal jurisdiction. Prior to TRI's moving for summary judgment, the Skotaks never suggested that the articles were relevant to the issues of warning and causation. (In fact, as discussed infra, the Skotaks did not assert until their reply brief in this court that the articles create a genuine issue of material fact regarding inadequate warnings.) Therefore, the fact that TRI failed to identify those articles in its summary judgment motion does not establish a failure by TRI to meet its initial burden under Rule 56(c).
As is well established, "[w]hen a motion for summary judgment demonstrates the absence of evidence as to a material fact on which the nonmovant will bear the burden of proof at trial, the nonmovant must come forward with evidence which would be sufficient to enable it to survive a motion for directed verdict at trial." Transco Leasing Corp. v. United States, 896 F.2d 1435, 1444 (5th Cir.1990). "The test is identical to that used for a directed verdict: `whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Chiari v. City of League City, 920 F.2d 311, 314-15 (5th Cir.1991) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512).
The evidentiary materials submitted by the Skotaks in response to TRI's summary judgment motion were insufficient to demonstrate the existence of a genuine issue of material fact. For example, no contemporaneous medical records were introduced to establish who administered the Thorotrast to Mr. Skotak, or when, or even whether it was administered in the late 1940s. Moreover, the Skotaks did not introduce expert witness affidavits or deposition
Concerning the warning, the Skotaks attempted to demonstrate a genuine issue of material fact, by introducing a certified copy of a 1975 TRI response to an interrogatory in a similar case involving Thorotrast. In that response, TRI stated:
The [first] insert ... may have been an earlier version of the [second] one.... Additional information as to possible side effects may have been set forth in various articles appearing from time to time in medical journals. The records indicate that these articles or a bibliography of such articles were supplied to doctors and medical institutions who made inquiries of Heyden or otherwise expressed an interest in Thorotrast. The records also indicate that at least one x-ray supply company, General Electric X-Ray Corporation, carried Thorotrast as part of their x-ray supplies and in that catalogue (copyrighted 1935) stated:
The 1975 interrogatory response, without more, is insufficient to demonstrate the requisite fact issue. For example, the Skotaks contend that a disputed fact is created by the statement in the first of the two warnings that "no harmful effects may be expected following [Thorotrast's] use." But, there is no evidence as to which of the two warnings accompanied the Thorotrast that Mr. Skotak allegedly received in the late 1940s. Moreover, the Skotaks failed
The Skotaks contend that other evidence before the district court on the summary judgment motion showed that Thorotrast injections are associated with a significant increase in liver cancer, and that the American Medical Association's Council on Pharmacy and Chemistry disapproved of the use of Thorotrast as early as 1932. That evidence consists of the earlier discussed medical journal articles attached to the Skotaks' earlier, separate, response to TRI's motion to dismiss for lack of personal jurisdiction. That response was filed more than a year before TRI filed its summary judgment motion. Although these articles are part of the total record, the Skotaks never referred to them in their response in district court to TRI's motion for summary judgment, nor did they argue in district court in their summary judgment response brief that such evidence created a genuine issue of fact concerning the adequacy of the warning. As stated, under Rule 56(e), the Skotaks were required to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (emphasis added). See, e.g., Dorsett v. Board of Trustees for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir. 1991) ("an opposing party cannot establish a genuine issue of material fact by resting on the mere allegations of his pleadings").
Because the Skotaks failed to refer to these articles in district court in their summary judgment response, the articles were not properly before that court in deciding whether to grant the motion; therefore, they will not be considered here.
As stated, because the Skotaks failed, in district court, to designate, or to, in any way, refer to the medical journal articles relied upon by them for the first time on appeal, those articles never became "part of the competent summary judgment record before the court." Nissho-Iwai, 845 F.2d at 1307. Nissho-Iwai's use of the term "competent summary judgment record" is particularly appropriate here; this rule is consistent with, for example, our rule that in reviewing summary judgments, we will not reverse an evidentiary ruling made by the district court, unless it was manifestly erroneous, even though we are making a de novo review of the record, as noted in our recent en banc decision in Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.1991):
939 F.2d at 1109 (emphasis added; citations omitted).
Finally, the Skotaks did not refer to these articles in their opening brief on appeal; as noted, the first mention was in their reply brief. "In the absence of manifest injustice, this court will not consider arguments belatedly raised after appellees have filed their brief." Najarro v. First
Proof of an inadequate warning was an essential element of the Skotaks' case. Because they failed to designate specific facts showing that there was a genuine issue for trial with respect to that element, TRI was entitled to summary judgment. Accordingly, the judgment of the district court is
KING, Circuit Judge, concurring in the judgment:
I withdraw my original opinion and concur in the judgment without opinion.
WISDOM, Senior Circuit Judge, dissenting:
I withdraw my original dissenting opinion and substitute the following opinion:
I respectfully dissent.
Judge Barksdale, for the majority of the Court, holds that the plaintiffs failed to show that there was a genuine issue for trial with respect to the adequacy of the manufacturer's warning of the risk of cancer from using Thorotrast.
The plaintiffs introduced in the record copies of two scientific articles and a letter to the Editor of Cancer bearing on the relationship between cancer and Thorotrast.
Article 1 referred to an April 1925 study (not introduced in the record) entitled "Some unrecognized dangers in the use and handling of radioactive substances". JAMA 85:1769-1776 (1925). The same article noted that in 1932 the American Medical Association's Council on Pharmacy and Chemistry disapproved of Heyden's introduction of Thorotrast into the United States. Both Articles 1 and 2 referred to a 1947 report in the American Journal of Pathology by McMahon, E., Murphy, A.S., and Bates, M.J., (not introduced in the record) documenting the link between cancer and Thorotrast. The report stated that the use of Thorotrast noticeably declined in the 1950's and continued to decline. The plaintiffs' attorney inartfully attached the articles as exhibits to the Skotaks' opposition to a motion to dismiss for lack of personal jurisdiction, apparently as part of the description of the "background" of their lawsuit. The Skotaks did not suggest the relevancy of the articles before or when TRI moved for summary judgment and did not assert the importance of the articles until they filed their reply brief in this court. It would seem likely that the Skotaks' attorney expected to introduce the articles in the trial on the merits. Nevertheless, they were in the record. We should consider the record as a whole in determining whether there was a dispute over a material fact.
Judge Barksdale would have the Court ignore these articles.
Based on the articles, a reasonable jury could make the following findings:
This information would permit a jury to find that either of the possible warnings (quoted in Judge Barksdale's opinion) would have been inadequate for failing to mention the evidence linking radioactive chemicals and cancer, and for failing to mention McMahon's finding, of a link between Thorotrast and liver cancer.
Even though the testimony of the actual treating physician is unavailable, the timing of the marked decline in Thorotrast use following the release of information on the cancer risk would permit a reasonable jury to infer: (1) that most physicians were unaware of the cancer risks associated with Thorotrast before the information was released; and (2) once they became aware of the cancer risk, the vast majority of physicians switched to a substitute contrast medium. In the absence of specific evidence of the treating physician's actual knowledge and likely response, a jury could reasonably infer that Mr. Skotak's treating physician was likely to have the same information available, and would respond in the same manner, as the vast majority of physicians. The articles, therefore, raise a genuine issue of material fact with respect to the adequacy of the warning.
The result reached by Judge Barksdale is contrary to our holdings in Higgenbotham v. Ochsner Foundation Hospital,
Higgenbotham appears to have been the Circuit's first attempt to delineate the responsibilities of district and appellate judges in summary judgment proceedings when the nonmoving party neglects to point out evidence in its favor. In that case Judge Rubin, for the Court, held that the district court should have considered a deposition filed but not singled out by the nonmovant for attention, especially where (as here) the record was small. In Frank C. Bailey Enterprises, Inc. v. Cargill, Inc.
Judge Barksdale's assertion that Nissho-Iwai American Corp. v. Kline,
Second, Judge Barksdale's quotation from Fields is actually a quotation from John v. State of Louisiana,
Third, the Supreme Court's 1986 trilogy of cases on summary judgment does not abrogate the rule of Higgenbotham. None of the cases dealt with the question of pointing out materials in the summary judgment record. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.
Far from requiring that we discard the rule of Higgenbotham, the reasoning of the trilogy cases actually supports that rule. First, as the Court recognized in Celotex, Rule 56 places an initial burden on the moving party to establish his right to summary judgment.
Yet that is exactly the tack taken by TRI with respect to the warning issues. TRI filed affidavits and addressed the relevant evidence in the record with respect to the issues of successor liability and whether Thorotrast was actually administered in 1947, but with respect to the warning issues TRI simply made a "conclusory assertion" that "the following critical information cannot be documented on the basis of the evidence and the medical records that are available". TRI made this assertion even though there was already evidence in the record which, together with the details of the warning provided by the Skotaks in their response to TRI's summary judgment motion, provided a circumstantial basis for jury findings favorable to the plaintiff on the issues of warning adequacy and warning causation. This approach is insufficient to establish TRI's right to summary judgment on the warning issues.
In short, when the record already contains evidence that creates a genuine issue of material fact, Celotex requires a moving party to do more than simply answer that there is no evidence of that fact, even if the nonmovant will bear the burden of proof on that issue at trial. Celotex places the burden on the moving party to demonstrate that, given "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any",
While the Celotex Court does emphasize certain procedural aspects of the summary judgment process, the Court distributes the various summary judgment burdens in order to "isolate and dispose of factually unsupported claims or defenses...."
Finally, the plain language of Rule 56(c) directs a court considering a summary
Thus, I cannot agree that either Nissho-Iwai or Impossible Electronic Techniques, Inc. v. Wackenhut Protective Sys., Inc.
Admittedly, if a specific issue is not raised in the district court, then we may appropriately resort to the plain error standard if a party attempts to raise that issue on appeal.
In this case justice cries out for a trial on the merits.
ON SUGGESTION FOR REHEARING EN BANC.
March 26, 1992.
Before WISDOM, KING and BARKSDALE, Circuit Judges.
Treating the suggestion for rehearing en banc as a petition for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Federal Rule of Appellate Procedure and Local Rule 35), the suggestion for Rehearing En Banc is DENIED. The three February 3, 1992, opinions are revised as follows:
[Editor's Note: These changes have been incorporated into the opinion.]
Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (emphasis added). I find the phrase "whatever is before the district court" to read most naturally as "whatever is in the record", rather than Judge Barksdale's suggested reading of "whatever is in the record that is specifically referred to by the parties during the summary judgment process". But it is not essential that my reading be the most natural, or even the only natural, reading of the phrase. As long as the Supreme Court's opinion can reasonably be read as consistent with the Higgenbotham rule, we are obliged to so read it.
607 F.2d at 656 n. 3.