*1 port First, involvement the offense and related con- the record. Application Note 1(c) significant duct “will constitute evidence” 3E1.1 states that “voluntary § acceptance “Signifi- truthful responsibility. admission to authorities involve inment “presumption;” evidence” not a still offense cant is and related conduct” is appropriate an pre- less can it sentencing be considered to create a consideration. Apart from sumption light myriad factors false statements made to agents IRS 1989, the commentary holds relevant to an ac- the PSR showed a continued by failure ceptance responsibility finding. Brigman We to disclose the source of his cash disagree deposits; attempts therefore with the commentator excuse his acts on Brigman tragic based proposi- family on whom relies for this diffi culties; the attempt Hutchison, to excuse tion. “Highlights uр See cover the fact pipe stolen; was apparent Sentencing 1990 Amendments Federal continuation of a lifestyle Manual,” beyond his al Sentencing Guidelines Federal leged means; financial and less than full Manual Publishing Guidelines 1991 West cooperation in supplying financial informa Company ed. at xiii. probation tion to the Brigman officer. any event, the determination of willing to acknowledge only what was acceptance of responsibility remains a fac government known to the through its in one tual committed to the trial vestigation and provide did not any further which court accords greater def information. A coyness defendant’s erence than under the clearly erroneous lack of candor demonstrate an inadequate standard. United Buss, States v. acceptance of responsibility. United 150, (5th Cir.1991); 151-52 United States Barreto, v. States F.2d 511 Cir. Fabregаt, 331, v. Cir. 1989). Grudgingly cooperating with au 1990). As Brigman suggests, some of our merely thorities or going through the mo decisions have relied previous on the ver tions of contrition does not oblige a district sion commentary to review whether grant court to unrepentant criminal the the trial court’s against decision a two-level two-step reduction. United States v. Har acceptance of responsibility reduction was ris, 902, F.2d Cir.1989). Exer “utterly lacking in foundation.” e.g., cising great deference to the district United States Thomas, court’s finding, factual we will not reverse (5th Cir.1989). 176-77 The amendment has it. deleted the “without standard, foundation” For reasons, these imposed sentence it retained the but admonition that the trial by the district court is AFFIRMED. judge’s “great determination entitled to on deference” review. There has been no
practical difference in the our cases way applied
have these two standards. Review this case in particular change does not Mary SKOTAK, Faye Jerry George Sko Thus, virtue of the amendment. tak, Skotak, and Eric Norman Plain great deference, sup we review facts tiffs-Appellants, Cross-Appellees, porting the court’s district determination. RESINS, INC., TENNECO Brigman’s challenge the factu Defendant Appellee, Cross-Appellant. finding heavily al relies on the “rebuttable presumption”, rejected, we have which No. 90-1256. upon the court’s asserted reliance false United States Court of Appeals, statements Internal Revenue Service Fifth Circuit. that formed the basis of four evasion tax Feb. against challenges counts him. He also specific pro two or three comments Suggestion On for Rehearing En Banc questioned officer that bation his candor March regard to his overall financial condi decision, tion and assets. The trial court’s
however, sup- finds considerable additional *2 Wilson, Jorgenson, Gappelberg,
Rodney Tex., Hudnall, Dallas, plain- Fuqua & tiffs-appellants, cross-appellees. George Chapman, Berry, R. C. Michael Thompson Knight, Dal- Ashley, Luke G. Fulton, Hart, las, Tex., Joseph Dun- T.C. Rowe, City, for defen- York combe & New cross-appellant. dant-appellee, KING, WISDOM, Before BARKSDALE, Judges. Circuit BARKSDALE, Judge: Circuit George Sko- The widow children (the Skotaks), appeal tak Resins, Inc. judgment awarded Tenneco (TRI). pro- Because the did not Skotaks create a duce sufficient concerning issue of material the ade- fact issue, quacy judg- ment is AFFIRMED.
I. George Skotak died as a result of liver cancer 1986. The Skotaks sued TRI in district court under theories of strict liabili- ty, negligence, implied and breach of an warranty, alleging that the cancer was Thorotrast, by drug caused manufac- tured between 1943 and 1953 TRI’s predecessor, Heyden Corporation, Chemical and used as a in radiolo- contrast medium gy; surgery that Mr. Skotak underwent to have a vessel blood removed from The district court held that TRI was not neck; per- his that Dr. Albert D’Errico corporate liable as the Hey- successor of operations; formed the and that he either den, because TRI expressly had not as- Thorotrast, administered the or ordered it liability injuries sumed caused Tho- *3 to be administered. Dr. D’Errico died be- rotrast. The district court also held: fore this action was filed.
Assuming, arguendo, that Tenneco as in- summary judgment, TRI moved for sumed the predecessor, liabilities its (1) cluding grounds that: the Sko- on the the Skotaks’ case fails under elements prove could not the essential taks “learned intermediary” doctrine. Under liability negligence of their strict and doctrine, that a discharges manufacturer law, (2) claims; a matter of TRI was and duty by adequately its to warn warning corporate as the successor not liable prescribing physician. Koonce v. claimed, among other Heyden.1 TRI Quaker Safety Products & Manufactur сould not estab- things, that the Skotaks ing Company, 700, 717 (1) injec- received an lish: that Mr. Skotak Cir.1986); Alm Company v. Aluminum period 1943to during the tion of Thorotrast America, 588, 717 S.W.2d 591-92 by Hey- it manufactured when was (Tex.1986). plaintiff A prove must that den; (2) warning given by Hey- or that the inadequate an warning given and adequate. den was not inadequate that warning was the injury. is, cause of the That it must be response, the Skotaks submitted adequate warning shown that an would (included record) and fol- brief physician have caused the to act differ lowing (1) evidentiary materials: affidavits ently. Parke, See Stanback v. Davis cousin, by Mr. sister Skotak’s and which Company, and performed surgery stated that Dr. D’Errico Cir.1981) (Virginia law); Dunn v. Ced on Mr. in either Skotak 1948 at Laboratories, Mich.App. erle [121 73] (2) Baylor Hospital; some of Mr. Skotak’s (Mich.App.1982). N.W.2d records, facility, pre- medical from another (3) pared prior surgery; excerpts The Skotaks cannot meet their burden Blоck, deposition from the of Dr. Mr. Sko- They this issue. have not identified subsequent physician, tak’s in which he any certainty the doctor who admin- report x-ray a 1958 showed that testified istered Thorotrast to Mr. Skotak. The in Mr. Skotak’s Thorotrast presence of physician they one who have identified is deposition from the (4) excerpts body; deceased. There is no one who can testi- Mr. Skotak, married who Mary plaintiff fy identity physician, as to the testified both 1953, in she which Skotak any warning whether was received he re- her that told (a) Mr. Skotak that him, warning whether such was ade- (b) Dr. that 1947 and Thorotrast ceived quate, adequate warning at the Groman, Mr. Skotak treated who changed would have the actions her, upon death, told based of his time physician. The Skotaks have the burden articles, Thorotrast that reading medical proving inadequacy (5) answers cancer; TRI’s caused injury. causе of the Since have an earlier ease and in this interrogatories produced regard, no evidence in this sum- accom- warnings case, concerning mary granted must be on the warnings. theory inadequate Thorotrast. panied 1. TRI also moved for on the period had run on that claim. The Skotaks do implied warranty, Skotaks’ claim for breach of appeal ruling. and the district court held that the limitations state determination of district court’s timely appealed.2 The Skotaks de novo. Salve reviewed law is likewise — U.S. -, Russell, Regina College v. 1217, 1221, 113 L.Ed.2d 111 S.Ct. II. (1991).4 contend appeal, the Skotaks On fact, of material law, issues case, there are diversity Texas In this (1) adequacy including negligence course, applies to the Skotaks’ liability as (2) TRI’s warning; and liability For cases involv claims. and strict neces- It is not Heyden. warn, successor duty ing drug manufacturer’s liability or either successor sary *o address “learned intermedi apply the Texas courts *4 solely causation; is affirmed judgment Alm v. Aluminum Co. ary” doctrine. genuine to show a failure 588, (Tex. the Skotaks’ America, on 591-92 717 S.W.2d concerning the ade- fact doctrine, of material duty issue is 1986). Under warning.3 quacy warning physician of by satisfied “[Ojnce Id. at drug.
dangers of
warned,
the choice
physician is
Summary judgment
proper
“if
duty
explain
to
drugs to use and the
which
the pleadings, depositions, answers to inter
physician.”
that of the
the risks become
rogatories,
file,
and
together
admissions on
Pharmaceutica,
Inc.,
v. Janssen
Stewart
affidavits,
with the
any,
show that there
910,
Paso
(Tex.Ct.App.
911
780 S.W.2d
—El
genuine
is no
issue as
any
to
material fact
Therefore,
1989,
denied).
in order to
writ
and
moving
that the
party is entitled to a
negli
their
Texas law on
prevail under
as a matter of
law.”
Fed.
claims,
liability
the Sko
strict
gence and
56(c).
R.Civ.P.
“dispute
A
about a material
amоng
proving,
taks had
burden
‘genuine’
fact is
...
if the evidence is such
warning accompany
things, that the
other
that a
jury
reasonable
could return a ver
(2)
(1) inadequate; and
ing Thorotrast was
dict for the nonmoving party.” Anderson
death.
cause” of Mr. Skotak’s
“producing
v. Liberty
Inc.,
Lobby,
242, 248,
477 U.S.
Stewart,
Techni
(citing
at 911
780 S.W.2d
2505, 2510,
106 S.Ct.
(1986).
The materials submitted to TRI’s sum response Skotaks motion, identify two failed, in its TRI insufficient to were mary judgment motion were journals which medical from articles genuine is of a the existence demonstrate to the Skotaks’ as exhibits record examрle, no con fact. of material For sue to dismiss TRI’s motion opposition intro records were temporaneous medical more filed jurisdiction, personal lack administered to establish who duced its year TRI filed Skotak, when, a before than or even or to Mr. Thorotrast were articles motion. The in the late it administered support in Moreover, did not by the Skotaks the Skotaks then presented 1940s. deposi- or “background” expert affidavits witness description of the troduce of their however, out, pointed be should It concerning adequacy testimony tion THOROTRAST the elimination that they designated though warning, even following intravenous body, from responding to the expert witnesses before storage in the subsequent injection and supplemental desig- provided motion and un- system, is still reticuloendothelial response. nation, following their reliable investigation. No definitе der at- warning, the Skotaks Concerning the accepted con- as may be evidence issue of tempted to demonstrate published. has been clusive introducing certified fact, by material interrog- to an response TRI copy of a 1975 Therefore, it is recommended involving Thoro- case in a similar atory should conduct profession medical TRI stated: response, In that trast. the ultimate fate of studies on further intravenously injected THORO- indicate records Although accepted as its is before use TRAST Thorotrast regard Heyden did X-ray practice in the visualiza- routine effects, records side having harmful arteries, liver, spleen. tion of the versions of two that one do indicate accompanied forth below set may insert ... have been [first] Thorotrast. package each box earlier version of the one.... [second] possible Additional information as to side may effects have been forth vari- set [ 1 ] appearing ous from time to time articles indi- to date The clinical journals. The records indicate medical a valuable THOROTRAST cates that bibliography that these articles or a roentgenography, contribution *6 supplied such articles were to doctors expect- may be effects no harmful in- and medical who made institutions following its use. ed Heyden expressed quiries of or otherwise however, wish, point out We in The records interest Thorotrast. to the elimination question as x-ray sup- also indicate that at least one body, follow- from THOROTRAST ply company, X-Ray Electric General injection and subse- ing intravenous Corporation, part carried Thorotrast reticulo-endotheli- storage in the quent x-ray supplies of their and in that cat- investigation; under system, is still al 1935) alogue (copyrighted stated: and reliable no definite accepted as conclusive that could be some there is present time “At published. has been radioactivity controversy regarding our Therefore, in accordance intra- used material when of this rec- policy, we conservative established venously.” further profession to the ommend intra- fate of the ultimate study on the be- injected response, THOROTRAST without
venously interrogatory The 1975 accepted as rou- injection is more, fore such is insufficient demonstrate X-ray example, in visualization the Sko- practice For requisite tine fact issue. spleen, etc. fact is created disputed that a liver taks contend of the two in the first statement
by the may be “no harmful effects warnings that [ 2 ] use.” following expected [Thorotrast’s] to which But, that THO- no evidence as indicates there is Clinical evidence the Thorotrast wаrnings accompanied a valuable contribution ROTRASTis two allegedly received arter- Skotak roentgenography, particularly that Mr. ' Moreover, failed Skotaks iography hepatosplenography. 1940s. late party’s pleadings; rather, proof that the above present any totally to must, either inadequate.6 submitting opposing warnings evi- were
dentiary documents or by referring to evidentiary documents already in the record, specific set out showing facts The Skotaks contend that other evidence genuine that a issue exists. the district court on the before Lavespere Niagara Mach. & Tool judgment motion showed that Thorotrast Works, Inc., 910 F.2d Cir. injections significant are associated with a 1990) added). (emphasis See, e.g., Dorsett cancer, increase in liver and that the Amer- v. Board Trustees Colleges State Phar- for on Council ican Medical Association’s Universities, Cir. of the use Chemistry disapproved macy and 1991) (“an opposing party cannot establish That evi- early as 1932. Thorotrast as by resting issue of material fact earlier discussed consists of the dence allegations on pleadings”). the mere of his attached to the journal articles medical earlier, response to separate, Because the Skotaks failed to refer to Skotaks’ person- dismiss for lack TRI’s motion to these articles in district court in their sum response filed mary judgment response, That jurisdiction. al the articles were TRI filed its sum- year properly than a before in deciding more before that court Although these motion; mary judgment grant therefore, motion. record, the part of the total articles are will not be considered here.7 Al in their to them referred though Skotaks never summary judgment on the record is motion novo, court to TRI’s response district reviewed de for obvious they argue reasons, summary judgment, nor did argu will not consider evidence or presented ments that were not court their dis district ruling trict court for its consideration such evidence created response brief that the motion. See Nissho-Iwai American concerning ade- fact genuine issue of Kline, stated, under warning. As quacy of Cir.1988)(where nonmovant “failed to des 56(e), required to the Skotaks were Rule to, ignate, any way deposi or in refer showing that there specific forth facts “set support tion as the source of factual *7 Fed.R.Civ.P. genuine issue for trial.” is a response summary her to motion [the] [for 56(e). judgment,] deposition the was made never part competent summary judgment discharge nonmoving party cannot court”). record before the Colony See also by referring to the “mere burden Creek, Corp., Ltd. v. Resolution Trust 941 allegations nonmoving or denials” of the meeting proof, impose upon the duty their burden of 6. To assist not the district court a to sift response argue through in this case to that TRTs Skotaks the record in search of evidence to interrogatory support party’s with the opposition summary judg- is inconsistent a similar a out, however, ment, where, here, response. pointed especially nonmoving its As TRI 1975 the upon response based information is well 1975 was aware of the existence of such Heyden’s response duty Its to the in- evidence. Rule 56 from records. allocates that to the motion, opponent required terrogatory actions; its own who is in this case was based on evidence, point out Tho- the albeit evidence that is because never manufactured TRI record, already rotrast, that creates an issue of gave any warnings regarding it never it. Kline, Therefore, inconsistency. any fact. Nissho-Iwai American v. there is no event, (5th Cir.1988) (it if the Skotaks F.2d were dissatisfied with the 845 1307 is not case, they necessary answer filed in this should have "that the entire record in the case answer; compel supplemental moved to must be searched and found bereft of a did not do so. summary judgment issue of material fact before entered”). may properly be prohibited The district court was not from However, considering Rule does the articles. 56 916 grant of sum- from a appeal This is an Cir.1991) (quoting (5th 1323, 1326 F.2d review Although we (5th mary judgment. 698, 710 Louisiana, F.2d v.
John
novo,
de
summary judgment
summary
grants
opposing
Cir.1985)) (The party
56 stan-
judg-
same Rule
summary
is,
the
under
attack
“cannot
court, in
issues
raising
by the district
distinct
used
by
as are
dards
on appeal
ment
court”);
apply the
district
still
the
we
proceedings
not before
Rule 56
were
Houston, 922 F.2d
of review
City
South
standard
v.
Fields
manifest-error
Cir.1991)
(quoting John
Thus
rulings.
evidentiary
court’s
trial
710) (“[Materials
Louisiana, 757 F.2d at
summary judgment
appeal of
an
for con-
court
the district
presented
two
evidentiary issues raises
presenting
judg-
summary
motion
of a
sideration
level, we
At the
inquiry.
levels
first
the review-
properly before
are never
ment
evidentiary rul-
court’s
the trial
review
Enterprises,
court.”);
Bailey
Frank C.
ing
summary judg-
the
which
ings,
define
333, 334
Inc.,
F.2d
Cargill,
Inc.
rulings
record,
give these
we
ment
summary judg-
Cir.1978) (in reviewing
lev-
At the second
due
their
deference.
matters
only
those
ment,
consider
we “can
review
we
defined,
el,
the record
court”).8
to the district
presented
judgment de-
court’s
the trial
the contested evi-
cision de novo. When
failed, in
stated,
the Skotaks
because
As
cause of action
is essential to the
dence
to,
any
court,
designate,
district
has excluded
evi-
and the trial court
the
journal articles
way, refer to
medical
dence,
aрpeal
at the
may
we
decide
time on
for the first
upon
them
relied
solely
basis of
first
level
“part
articles never became
those
appeal,
evidentiary ruling. For
soundness
summary judgment
competent
uphold
exclusion of essential
we
Nissho-Iwai,
before the court.”
record
evidence,
inquiry be-
the second-level
use of
F.2d at 1307. Nissho-Iwai’s
comes academic.
“competent
term
added;
(emphasis
ments,
did not refer
Finally,
we will not
the Skotaks
reverse
ap-
opening
district
unless it
brief on
ruling
made
articles
their
these
noted,
erroneous,
though we
first mention
manifestly
was
peal; as
record,
mani-
reply
“In
absence
making a
novo review
their
brief.
de
are
not consider
court will
injustice,
en
decision in fest
in our recent
banc
as noted
belatedly
appellees
raised after
Corp.,
arguments
Allied-Signal
Christophersen v.
v. First
Cir.1991):
Najarro
have filed their
brief.”
*8
Cir.1983)
Louisiana,
698,
case,
and
evidence in
John v.
757
court held
In a 1979
712-13,
noted,
resolve,
reviewing
the court
the
but did not
be considered
must
record
the
brought
possible
Higgenbotham
to the
specifically
conflict between
Im-
and
if not
Higgenbotham
possible
light
Supreme
v.
Electronic.
In the
of the
district court.
of the
attention
653,
judgment
trilogy
656-
Hospital, 607 F.2d
Court’s
1986
Foundation
Ochsner
However,
(Anderson
Inc.,
242,
Cir.1979).
Impossible Elec-
Liberty Lobby,
(5th
v.
477 U.S.
57
2505,
(1986);
Protective
Wackenhut
106
Techniques, Inc.
S.Ct.
L.Ed.2d 202
91
Celotex
tronic
Cir.1982),
Inc.,
Catrett,
317,
2548,
Pathology Murphy, A.S., KING, Bates, M.J., (not Judge, concurring Circuit in the introduced in the record) judgment: documenting link between can- cer and Thorotrast. report The stated that my original opinion I withdraw and con- the use of noticeably Thorotrast declined in judgment opinion. cur in the without the 1950’s and continued to decline. The plaintiffs’ attorney inartfully attached the WISDOM, Judge, Senior Circuit articles as exhibits to opposi- the Skotaks’ dissenting: tion to a motion to dismiss for lack of I my original dissenting withdraw opin personal jurisdiction, apparently part following opinion:** ion substitute the description “background” their lawsuit. The suggest Skotaks did not respectfully I dissent. relevancy of the articles before or when Judge Barksdale, majority for the TRI moved for summary and did Court, holds plaintiffs failed to importance hot assert of the articles show that there was a issue for they reply until filed their brief in this adequacy trial with court. It likely would seem that the Sko- manufacturer’s of the risk of can- attorney expected taks’ to introduce the using cer from Thorotrast. in the articles trial on the merits. Never- plaintiffs introduced record theless, were the record. We copies of two scientific articles and a letter should consider the record as a whole in bearing Editor of Cancer on the determining dispute whether there was a relationship between cancer and Thoro- over a material fact. trast. Judge Barksdale would have the Court Hall, a. Article 1: Underwood Thoro- ignore these articles. trast Hepatic Associated Angiosar-
coma with 36 Years Latency, Based on the articles, Can- jury reasonable *9 cer (Dec. 42: 1978); 2610-12 could make following findings: editor, b. Letter to (1) Thorium Dioxide Thorotrast is a radioactive contrast Cancer, and JAMA, Liver Vol. medium developed first and in used Ger- (Oct. 16, No. 16 1981); and many in the 1920’s. * ** original opinion Paragraph II.B. of is with- I incorporated have opinion in large part this a drawn. opinion of Judge King withdrew. finding, a link be- McMahon’s mention relationship radioactive between
(2) The
cancer.
and liver
Thorotrast
tween
was documented
cancer
and
chemicals
Conlan,
H.S.,
Martl'and,
a 1925 article
Knef,
in the Journal
P.,
J.P.
and
actual
though
testimony of the
Even
entitled
Association
Medical
American
unavailable,
tim-
treating physician is
Dangers in the Use
Unrecognized
“Some
use
in Thorotrast
ing
the marked decline
Sub-
Radioactive
Handling of
and
information on
following the release of
(1925).
85:1769-1776
stances”.
JAMA
jury
a reasonable
permit
cancer risk would
un-
(1)
physicians were
infer:
that most
the find-
primarily on
(3) In
based
risks associated
of the cancer
aware
P.,
Conlan,
Martland, H.S.,
and
ings of
re-
the information was
Thorotrast before
Medical Associa-
Knef,
American
J.P.
leased;
(2)
aware of
once
became
and
Pharmacy
Chemis-
and
tion’s Council
risk,
physi-
majority of
cancer
the vast
the introduction
disapproved of
try
me-
to a substitute contrast
cians switched
States.
in the United
Thorotrast
specific evidence
In the
dium.
absence
knowl-
treating physician’s actual
Thorotrast
(4)
relationship
between
rea-
likely response,
jury
a
could
edge and
in a
documented
cancer was
and liver
treating
sonably infer that Mr. Skotak’s
McMahon, E., Murphy
1947 article
infor-
likely to have the same
physician was
M.J.,
Bates,
Cell
A.S.,
“Endothelial
and
available,
mation
respond
and would
Following Thoro-
of the Liver
Sarcoma
manner,
same
as the
majority
phy-
vast
Pathology,
Am.J.
Injections”.
trast
articles,
therefore,
sicians. The
raise a
(1947).
23:586-611
genuine issue of
material fact with
adequacy
warning.
(5) Following
findings,
large
the 1947
linking
reports surfaced
can-
number of
by Judge Barksdale is
The result reached
of Tho-
previous
cer
administration
holdings in
contrary
Higgenbotham
to our
rotrast.
Hospital,1 Keiser
v. Ochsner Foundation
Inc.,2
Nich-
Properties,
and
Coliseum
reports, the use
these
(6) As a result of
Specialty Co. v. H & M
olas Acoustics &
contrast medium
as a
of Thorotrast
that,
cases we held
Co.3
those
Constr.
decreased,
by the mid-1950’s
and
quickly
(as
is small
it is
at least where the record
longer used in the
no
Thorotrast
case),
reviewing
must consider
court
contrast medium.
as a
United States
determining
the entire record
jury
permit
is a
issue of material fact.4
would
there
This information
warnings
possible
except
Fifth
Although,
Higgenbotham,
for
either of
find that
opinion)
touching
question
on this
are
Judge
Barksdale’s
Circuit cases
(quoted
failing to
conclude,
inadequate
clarity,
not models of
I
unlike
been
would have
Barksdale,
linking radioactive
circumstances
Judge
the evidence
mention
failing to
cancer,
precedent
case
in the Fifth Circuit
of this
chemicals
Cir.1979).
side matter as evidence or have it marked as an
1. 607 F.2d
hearing
exhibit at the
on the motion. Given this
process,
obliged
the court is
to take account of
Cir.1980).
2.
6.
Id. at 334.
Cir.1991).
F.2d 1183
7.
8.
10.845
920 obligation of the holding no about by contains urged the according rule
John
the
party to direct
district
nonmoving
case,
the
finding instead that
in that
defendant
in the record
attention to evidence
court’s
by
moving
the
issues raised
the factual
summary judgment.
could defeat
to en- which
sufficient
in its motion were
party
summary
overcome
able the nonmovant
requiring
Far from
that we discard the
Fields, that case
Returning to
judgment.16
reasoning
the
Higgenbotham,
rule of
problem as Laves-
same
presented the
trilogy
actually supports
the
cases
that
evi-
could introduce
a
pere—whether
First,
recognized in
rule.
Court
the
in a motion for
first
dence for the
time
Celotex,
places an initial
on
Rule 56
burden
summary judgment.
reconsideration
right
moving party to establish his
the
the record is
summary judgment.20 When
Third,
Supreme
trilogy
1986
Court’s
support
of evidence that would
bare
summary judgment
does
of cases
not
plaintiff,
de-
pleading allegations of the
a
abrogate
Higgenbotham.
the rule of
None
“may
upon
complete
rely
fendant
ab-
question
of the cases dealt
proof
sence of
of an essential element
pointing
summary
out
materials
21
satisfy this
party’s
the other
case”
judgment record.
Elec.
Matsushita
Indus.
right
and establish his
burden
Corp.17
Co., Ltd. v. Zenith
held
Radio
that
judgment.22
nonmoving party
If
will
plaintiff
a
produced
the evidence
trial,
proof
at
the mov-
bear
burden
plausible
tell a
must
pricing case
predatory
ing party need
introduce evidence af-
usuаlly in
conspiracy
story of
—which
disproving
firmatively
an element of
to con
rational motive
showing a
cludes
Rather,
non-moving party’s case.23
“the
for trial.
genuine issue
a
spire
create
—to
moving party may
dis-
burden on the
be
Inc.18 held
Lobby,
v. Liberty
Anderson
is,
charged by ‘showing’
pointing out
proof that
evidentiary
—that
standard
there is an
applies
also
to the district
ab-
at trial
court—that
be used
would
motion,
nonmoving
support the
so sence of evidence to
ruling on a
explained by
party’s
ac
case.”24 As
Profes-
in a libel
figure plaintiff
public
Kane,
Miller,
Wright,
“the
find actu
sors
movant
jury could
show that a
must
tion
discharge
may
burden
demonstrat-
“convincing clarity” in order
his
al malice with
ing
if the
to trial there
case went
summary judgment.
a motion
to defeat
competent
to support
be no
exclu would
focuses
Corp. v. Catrett19
Celotex
opponent.”25
burden,
for his
party’s
moving
sively on
1190,
Co.,
John,
Upjohn
712.
21.Fontenot
1195
F.2d at
16.
757
(5th Cir.1986).
1348,
574,
L.Ed.2d
89
538
106 S.Ct.
17. 475 U.S.
(1986).
324,
Corp.,
at
106
at
477 U.S.
S.Ct.
22.See Celotex
2505,
242,
L.Ed.2d 202
2553.
18. U.S.
106 S.Ct.
(1986).
325,
2548,
317,
tains evidence that creates a
issue
directs
considering
a court
Celotex,
record. to rest were on their evidentiary only if ment pleadings, material] introduced “[the unverified but had *13 affidavits, any, together with file, that, together with evidence genuine as to no issue show that there is already record, created a moving par- fact and that the any material respect warning. issue with to the There as a matter of to a ty is entitled large was no record to scour. For these Judge As [Emphasis law.”30 added] reasons, gen- the scientific articles create a Higgenbotham: in Rubin wrote uine issue of fact to the issue warning. litigation explosion in distinguish between does “[Rule 56] system, consequent the federal court merely filed and those sin- depositions efforts, economy judicial need for and special for atten- gled out counsel advantage procedures, simplifying tion.” especially in the overburdened district Thus, agree either I cannot Nissho- courts, argue strongly increasing for use Techniques, Impossible Electronic Iwai or summary judgments ex- not at the —but Sys., Protective Inc.32 Inc. v. Wackenhut pense quality justice. The first rule in this circuit. In- states the correct rule of the Federal Rules Civil Proce- stead, in Hig- I the earlier decision believe dure admonishes courts that the rules (which followed in Reiser genbotham Acoustics) requires this Nicholas shall be just, construed to secure the Court to consider record evidence to which speedy, inexpensive determination of nonmoving party has failed to refer. every action. Acoustics, I As in Nicholas believe that an ignore free to appellate court is not evi- justice this case cries out for a trial on Thus, dence that comes to its attention.33 the merits. my journal in articles must view the be determining considered in proper. judgment was ON SUGGESTION FOR REHEARING Admittedly, specific if a issue is not EN BANC.
raised
the district
may
then we
appropriately
plain
resort to the
error stan-
March
1992.
dard if
attempts
to raise that issue
But,
on appeal.34
case,
WISDOM,
Before
the Skotaks
KING and
pointed
to the
BARKSDALE,
issue that
Judges.
would
Circuit
sel-
[Plaintiff's
did
56(c).
counsel]
not ... call
While scientific articles
30. Fed.R.Civ.P.
the court’s attention memorandum or oth-
specifically
the list of
are not
mentioned in
deposition
erwise to the
56(c),
in the record. De-
Rule
to be considered under
materiаls
fense counsel
foundation,
was content
would,
to submit its case
given
proper
be
articles
posture
the most favorable
803(18).
alerting
without
Fed.R.Evid.
at trial under
admissible
the court
path
minefield in
such,
resolving
he
they
can be considered
As
invited the court to take.
summary judgment,
the trial
unless
motion for
Treating suggestion rehearing, it is panel petition as a
banc rehear- panel petition
ordered panel member No
ing is DENIED. of this service regular active Judge
nor be the Court having requested Court (Federal Rule rehearing banc en
polled 35), Local Rule Procedure Appellate *14 Rehearing En Banc suggestion B, February three DENIED. as follows: revised are
opinions Phillips, and Carrie PHILLIPS
Earl K.
Plaintiffs-Appellants, OF COMPANY
The WESTERN al., AMERICA, et NORTH Defendants-Appellees. 90-4704.
No. Appeals, Court States
United Circuit.
Fifth 5, 1992.
Feb. 9, 1992.
Rehearing Denied March