IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 90-1256

______________________

MARY FAYE SKOTAK, GEORGE JERRY SKOTAK,

and ERIC NORMAN SKOTAK,

Plaintiffs-AppellantsCross-Appellees,

v.

TENNECO RESINS, INC.,

Defendant-AppelleeCross-Appellant.

______________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

______________________________________________________________ ( March 26, 1992)

ON SUGGESTION FOR REHEARING EN BANC

Opinion February 3, 1992, 5 Cir., 1992, 953 F.2d 909

Before WISDOM, KING and BARKSDALE, Circuit Judges.

PER CURIAM:

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 r ehearing 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:* I have incorporated in this opinion a large part of the

opinion Judge King withdrew.

2 BARKSDALE, Circuit Judge:

Paragraph II.B. of my original opinion is withdrawn.

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 plaintiff s 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.

a. Article 1: Underwood & Hall, T horotrast

Associated Hepatic Angiosarcoma with 36 Years

Latency

, Cancer 42: 2610-12 (Dec. 1978);

b. Letter to editor, Thorium Dioxide and Liver

Cancer

, JAMA

, Vol. 246, No. 16 (Oct. 16,

1981); and

c. Article 2: Benjamin & Albukerk, T horotrastInduced Angiosarcoma of Liver

, N.Y. State J.

Med. , pp. 751-53 (Apr. 1982).3

Article 1 referred to an April 1925 study (not introduced in the

record) entitled "Some unrecognized dangers in the use and handling

o f 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 A merican Journal of

Pathology by McMahon, E., Murphy, A.S., and Bates, M .J., (not

introduced in the record) documenting the link between cancer and

T horotrast. 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

t hat 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 artic les, a reasonable jury could make the

following findings:

( 1) Thorotrast is a radioactive contrast medium first

developed and used in Germany in the 1920's.4

(2) The relationship between radioactive chemicals and

c ancer was documented in a 1925 article by Martland,

H.S., Conlan, P., and Knef, J.P. in the Journal of the

American Medical Association entitled "Some Unrecognized

Dangers in the Us e and Handling of Radioactive

Substances". JAMA 85:1769-1776 (1925).

(3) In 1932, based primarily on the findings of

Martland, H.S., Conlan, P., and Knef, J.P. the American

Medical Association's Council on Pharmacy and Chemistry

disapproved of the introduction of Thorotrast in the

United States.

(4) The relationship between Thorotrast and liver cancer

was documented in a 1947 article by McMahon, E., Murphy

A.S., and Bates, M.J., "Endothelial Cell Sarcoma of the

Liver Following Thorotrast Injections". Am. J.

Pathology, 23:586-611 (1947).

(5 ) Following the 1947 findings, a large number of

reports surfaced linking cancer with previous

administration of Thorotrast.

(6) As a result of these reports, the use of Thorotrast

as a contrast medium quickly decreased, and by the mid1950's Thorotrast was no longer used in the United States

as a contrast medium.

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 evidenc e 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 T horotrast use

following the release of information on the cance r 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

c ancer risk, the vast majority of physicians switched to a1 607 F.2d 653 (5th Cir. 1979).

2 614 F.2d 406 (5th Cir. 1980).

3 695 F.2d 839 (5th Cir. 1983).

4 See Higgenbotham , 607 F.2d at 656-57; Keiser , 614 F.2d at

410; Nicholas Acoustics , 695 F.2d at 846. Professors Wright,

Miller, and Kane agree: "The parties need not formally offer

their outside matter as evidence or have it marked as an exhibit

at the hearing on the motion. Given this process, the court is

obliged to take account of the entire setting of the case on a

Rule 56 motion. In addition to the pleadings, it will consider

all papers of record, as well as any material prepared for the

motion that meets the standard prescribed in Rule 56(e)." 10A

Wright, Miller & Kane, Federal Practice and Procedure § 2721, at

44 (2d ed. 1983).

5 substitute contrast medium. In the absence of specific evidence of

the treating physician's actu al knowledge and likely response, a

j ury could reasonably infer that Mr. Skotak's treating physician

was likely to have the same infor mation 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 cont rary to our

holdings in Higgenbotham v. Ochsner Foundation Hospital

, 1 Keiser v.

Coliseum Properties, Inc.

, 2 and Nicholas Acoustics & Specialty Co.

v. H & M Constr. Co. 3 In those cases we held that, at least where

the record is small (as it is in this case), a reviewing court must

consider the entire record in det ermining whether there is a

genuine issue of material fact. 4 Although, except for

Higgenbotham

, Fifth Circuit cases touching on this question are not

models of clarity, I conclude, unlike Judge Barksdale, that in the5 582 F.2d 333 (5th Cir. 1978) (per curiam).

6 Id . at 334.

7 563 F.2d 205 (5th Cir. 1977).

8 432 F.2d 6 (5th Cir. 1970) (per curiam).

6 circumstances of this case precedent in the Fifth Circuit compels

consideration of the evidence the Skotaks failed to point out.

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 there that the distr ict 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. 5 we did st ate

that "an appellate court, in revi ewing a summary judgment order,

can only consider those matters presented to the district court." 6

It is unclear in that case, however, whether the nonmovant (1)

failed to point out evidence to the district court; (2) made a new

argument on appeal; or (3) referred on appeal to evidence which was

never in the summary judgment record. The per curiam opinion

recites no facts relating to this issue and is conspicuously silent

on the nature of the nonmovant's default. In F rank C. Bailey

, the

c itations to M unoz v. International Alliance of Theatrical Stage

Employees 7 and G arcia v. American Marine Corp. 8 suggest that t h e

appellant/nonmovant had introduced at the appellat e stage facts

that had never even been placed in the record before the district9 See Munoz , 563 F.2d at 209; Garcia , 432 F.2d at 8.

10 845 F.2d 1300 (5th Cir. 1988).

11 910 F.2d 167 (5th Cir. 1990).

12 922 F.2d 1183 (5th Cir. 1991).

13 Lavespere , 910 F.2d at 172-73.

7 court, for in those two cases the Court disapproved of such a

method of attacking a summary judgment. 9 I agree entirely with the

holding s in M unoz and Garcia (and with Bailey, if I read it

correctly ), but introducing evidence before an appellate court that

was never in the district court record is entirely different from

failing to point out evidence that is already in the record.

Judge Barksdale's assertion that Nissho-Iwai American Corp. v.

Kline

, 10 Lavespere v. Niagara Mach. & Tool Works, Inc. 11 and Fields

v. City of South Houston 12 state the accepted rule in this Circuit

cannot withstand scrutiny. First, L avespere had nothing to do with

the problem in this case. At issue in L avespere was whether the

distr ict court could consider evidentiary materials submitted by

the opponent of summary judgment for the first time in a Fed. R.

Civ. P. 59 motion for reconsideration. 13 Judge Barksdale apparently

focuses on the elaboration in Lavespere on Rule 56(e)'s language,

but the court was merely repeating the uncontroversial proposition

that a nonmoving party cannot defeat summary judgment by resting on

its pleadings or allegations. (This is also the import of the

p assage Judge Barksdale quoted from D orsett v. Board of Trustees14 940 F.2d 121 (5th Cir. 1991).

15 757 F.2d 698 (5th Cir. 1985).

16 See John , 757 F.2d at 712.

17 475 U.S. 574 (1986).

8 for State Colleges & Universities

. 14 ) Neither case considers

whether the procedure for opp osing summary judgment set forth in

Rule 56(e) necessarily precludes appellate consideration of

evidence in the record that might defeat summary judgment, but

which the nonmovant neglected to bring to the attention of the

district judge.

Second, Judge Barksdale's quotation from Fields is actually a

quotation from John v. State of Louisiana

, 15 in which the court was

quoting the argument of the defendant/movant. But we did not

resolve John according to the rule urged by the defendant in that

case, finding instead that the factual issues raised by the moving

party in its motion were sufficient to enable the nonmovant to

overcome summary judgment. 16 Returning to F ields

, that case

presented the same problem as Lavespere

-- whether a party could

introduce evidence for the first time in a motion for

reconsideration of summary judgment.

Third, the Supreme Court's 1986 trilogy of cases o n 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. M atsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp. 17 held that the ev idence produced by the

plaintiff in a predatory pricing case must tell a plausible story18 477 U.S. 242 (1986).

19 477 U.S. 317 (1986).

20 477 U.S. at 323; see also id . at 328 (White, J.

concurring). Because Justice White was the fifth vote, his

understanding of the case "would seem to be controlling". Id . at

329 n.1 (Brennan, J. dissenting) (citing Marks v. United States

, 430 U.S. 188, 193 (1977)).

21 Fontenot v. Upjohn Co. , 780 F.2d 1190, 1195 (5th Cir.

1986).

9 of conspiracy -- which usually includes showing a rational motive

to conspire

-- to create a ge nuine issue for trial. A nderson v.

Liberty Lobby, Inc. 18 held that the evidentiary stand ard of proof

that would be used at trial also applies to a ruling on a summary

judgment motion, so that a public figure plaintiff in a libel

action must show that a jury could find actual malice with

"convincing clarity" in order to defeat a motion for summary

judgment. C elotex Corp. v. Catrett 19 focuses exclusively on the

moving party's burden, and contains no holding about the obligation

of the nonmoving party to direct the district court's attention to

evidence in the record which could defeat summary judgment.

Far from requiring that we discard the rule of Higgenbotham

,

the re asoning 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. 20 When the record is bare of evidence that would

support the pleading allegations of the plaintiff, a defendant "may

rely upon the complete absence of proof of an essential element of

the other party's case" 21 to satisfy this burden and establish his22 See Celotex Corp. , 477 U.S. at 324.

23 Id. at 325.

24 Id.

25 10A Wright, Miller, & Kane, Federal Practice and

Procedure § 2727, at 130.

26 Celotex , 477 U.S. at 328 (White, J., concurring).

10 right to summary judgment. 22 If the nonmoving party will bear the

burden of proof at trial, the moving party need not introduce

evidence affirmatively disp roving an element of the non-moving

party's case. 23 Rather, "the burden on the moving party may be

discharged by 'showing'

-- that is, pointing out to the district

c ourt

-- that there is an absence of evidence to supp ort the

nonmoving party's case." 24 As explained by Professors Wright,

Miller, and Kane, "the movant may discharge his burden by

demonst rating that if the case went to trial there would be no

competent evidence to support a judgment for his opponent." 25

It will not always be enough for the moving party just to deny

that there is sufficient evidence, even when the nonmoving party

will bear the burden of proof at trial. As Justice White explained

in his concurrence in Celotex :

[T]he movant must discharge the bur den the Rules place

upon him: It is not enough to move for summary judgment

without supporting the motion or with a conclusory

assertion that the plaintiff has no evidence to prove his

case. 26

Yet that is exactly the tack taken by TRI with respect to the

w arning issues. TRI filed affidavits and addressed the relevant

evidence in the record with respect to the issues of successor27 Fed.R.Civ.P. 56(c).

11

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 m ore 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. C elotex 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", 27 there is not sufficient evidence to create

a genuine issue with respect to a material fact. This holding is

consistent with the Higgenbotham rule. Both decisions require the

district court to consider the entire record in deciding whether

summary judgment is appropriate

-- Celotex implicitly by placing an

initial burden on the moving party to demonstrate his right to

judgment as a matter of law, and Higgenbotham explicitly. A28 The Celotex Court also stated:

The import of these subsections [of Rule 56]

is that, regardless of whether the moving

party accompanies its summary judgment motion

with affidavits, the motion may, and should,

be granted so long as whatever is before the

district court demonstrates that [there is no

genuine issue of material fact].

Celotex , 477 U.S. at 323 (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 Higgenbothamrule, we are obliged to

so read it.

29 Celotex Corp. , 477 U.S. at 323-24.

12 review, on appeal, of whether the moving party has satisfied its

initial Celotex burden necessarily encompasses consideration of the

entire record. 28

While the Celotex Cou rt 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 un supported claims or defenses ...." 2 9 Judge

Barksdale's rule would not serve that purpose, but would force us

to dispose of factually suppor ted claims. I find such a rule

inconsistent with the Celotex Court's explanation of the purposes

behind the summary judgment process.

Finally, the plain language of Rule 56(c) directs a court

considering a summary judgment motion to examine the entire record.

Rule 56 authorizes summary judgment only if "[the evidentiary30 Fed.R.Civ.P. 56(c). While scientific articles are not

specifically mentioned in the list of materials to be considered

under Rule 56(c), the articles would, given a proper foundation,

be admissible at trial under Fed.R.Evid. 803(18). As such, they

can be considered in resolving a motion fur summary judgment,

unless the trial judge specifically rules that they would not be

admissible.

31 Higgenbotham , 607 F.2d at 656. I heartily agree with

Judge Rubin's comment in note 3 of Higgenbotham :

In this instance, as in many, we reverse the

court for error in a matter in which it did

not receive the assistance it was due from

counsel.... [Plaintiff's counsel] did not

... call the court's attention by memorandum

or otherwise to the deposition in the record.

Defense counsel was content to submit its

case in the most favorable posture without

alerting the court to the minefield in the

path he invited the court to take.

607 F.2d at 656 n.3.

32 669 F.2d 1026 (5th Cir. Unit B 1982).

13 material] on file

, together with the affidavits, if any, show that

there is no genuine issue as to any material fact a nd that the

moving party is entitled to a judgment a s a matter of law." 3 0

[Emphasis added] As Judge Rubin wrote in Higgenbotham :

"[Rule 56] does not distinguish between depositions

merely filed and those singled out by counsel for special

attention." 31

Thus, I cannot agree that either N issho-Iwai or Impossible

Electronic Techniques, Inc. v. Wa ckenhut Protective Serv., Inc. 3 2

states the correct rule i n this circuit. Instead, I believe the

earlier decision in Higgenbotham (which was followed in Keiser and

Nicholas Acoustics ) requires this Court to consider record evidence

to which the nonmoving party has failed to refer. As in Nicholas

Acoustics

, I believe that an appellate court is not free to ignore33 See Nicholas Acoustics , 695 F.2d at 846.

34 See, e.g.

, Impossible Electronics Techniques, Inc. v.

Wackenhut Protective Sys., Inc. , 669 F.2d 1026, 1033 n.7 (5th

Cir. Unit B 1982).

14 evidence that comes to its attention. 3 3 Thus, in my view the

journal articles must be considered in determining whether the

summary judgment was proper.

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. 34 But, in this

case, the Skotaks pointed to the warning issue that would preclude

the grant of summary judgment. They were not attempting to rest on

their unverified pleadings, bu t had introduced evidence that,

together with the evidence already in the record, created a genuine

issue with respect to the warning . There was no large record to

scour. For these reasons, the scientific articles create a genuine

issue of fact with respect to the issue of the warning. The

litigation ex plosion in the federal court system, the consequent

nee d for economy of judicial efforts, and the advantage of

simplifying procedures, especially in the overburdened district

courts, argue strongly for increasing use of summary judgments --

but not at the expense of the quality of justice. The first rule

of the Federal Rules of Civil Procedure admonishes courts that the

rules

shall be construed to secure the just, speedy, and

inexpensive determination of every action.

In this case justice cries out for a trial on the merits.