* Judge Duhé recused himself and did not participate in this

decision. Judges Benavides, Stewart and Parker were not members

of the court when this case was submitted to the court en banc

and did not participate in this decision.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 90-1807

_____________________

WILMA LITTLE,

Plaintiff-Appellant,

versus

LIQUID AIR CORPORATION, CHEVRON

CHEMICAL COMPANY, and VICTOR

MANUFACTURING COMPANY,

Defendants-Appellees.

*****************************************************************

LINDA CARTER, Mother and Next

Friend of ANIDRA CATRONE CARTER,

Plaintiff-Appellant,

versus

LIQUID AIR CORPORATION, CHEVRON

CHEMICAL COMPANY, and VICTOR

MANUFACTURING COMPANY,

Defendants-Appellees.

_________________________________________________________________

Appeals from the United States District Court for the

Northern District of Mississippi

_________________________________________________________________ (October 26, 1994)

Before POLITZ, Chief Judge, KING, JOHNSON, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKS DALE, EMILIO M.

GARZA, and DeMOSS, Circuit Judges. *1 These are the allegations set forth in the plaintiffs'

amended complaint that was before the district court. After the

motion for summary judgment was filed, however, the plaintiffs

moved to amend their complaint again to assert different facts

and new theories. Even though this motion was denied, the

plaintiffs continued to assert the facts and theories set forth

in their rejected proposed amended complaint. Our inquiry,

however, is limited to the summary judgment record and the

plaintiffs may not advance on appeal new theories or raise new

issues not properly before the district court to obtain reversal

of the summary judgment. Topalian v. Ehrman , 954 F.2d 1125, 1132

n.10 (5th Cir. 1992).

-2- PER CURIAM:

In this products liability case, we h old that the district

court appropri ately and fairly granted summary judgment for the

defendants. The plaintiffs are the heirs of Marvin Joe Little and

Charles Carter. Little and Carter were experienced welders working

in the wingtank of a barge. At some point, a gas hose leading to

their welding torch developed a leak. The welding torch was

manufactured by defendant Victor Manufacturing Company; the gas was

manufac tured by defendant Chevron Chemical Company and sold by

defendant Liquid Air Corporation. The plaintiffs contend that,

because of nasal fatigue, Little and Carter did not smell the gas,

and that Carter lit a cigarette, causing an explosion that resulted

in their deaths. 1 The heirs assert that Chevron and Liquid Air are

liable because the warning accompanying the gas failed to warn of

nasal fatigue; and that Victor is liable because a defective torch

caused a "flashback" and a tear in the gas hose line, which

resulted in t he gas leak, which was a proximate cause of the

deaths. When these allegations were put to the test of summary2 The wingtank is a watertight compartment below the deck of

the barge.

-3- judgment, however, the plaintiffs failed to come forward with any

evidence supporting their theory of reco very, that is, evidence

that Little an d Carter actually suffered nasal fatigue and that

nasal fatigue bore a causal conne ction to their deaths; they

likewise failed to establish liability against Victor. In our

opinion today, we emphasize that summary judgment should be granted

and will be affirmed by this court when the nonmoving party fails

to meet its burden to come forward with facts and law demonstrating

a basis for recovery that would support a jury verdict. We thus

reject the reasoning of the panel and affirm the district court.

I

In July 1988, Marvin Joe Lit tle and Charles Carter were

employed by Mainstream, Inc. where they were cleaning the wingtanks

of a barge. 2 Both Little and Carter were experienced welders who,

acc ording to their employer, had been properly trained and

instructed as to the proper use of propylene gas. In their work,

they were using a cutting torch manufactured by defendant Victor.

The torch was attached to two hoses, one for oxygen and one for

p ropylene gas, both of which were connected to tanks on the main

deck of the barge. The propylene gas was manufactured by Chevron,

which supplied it to Liquid Air, which provided it to Mainstream

through a distributor. Prior to distribution by Chevron, the3 The warning also stated that the "product presents an

extreme fire hazard," and the product should only be used "in

well ventilated areas."

-4- propylene gas was odorized with ethyl mercaptan, which gi ves the

gas the smell of rotten eggs.

Chevron had sold the propylene gas to Liquid Air in bulk tank

truckloads and, with each deliver y, provided Liquid Air with

Chevron's Material Safety Data Sheet ("MSDS") that included the

following warning:

Precautions if Material is Released or Spilled:

Eliminate all sources of ignition in vicinity of spill or

released vapor. Evacuate the area immediately and do not

allow anyone to return until it is safe to do so.

Persons entering the ar ea to correct the problem and

determine whether it is safe for normal act ivities to

r esume must comply with all instructions in Special

Protective Information. 3

When Liquid Air sold the propylene gas to Mainstream under its

own name through a distributor, it was accompanied by Liquid Air's

MSDS that provided in part:

STEPS TO BE TAKEN IN CASE MATERIAL IS RELEASED OR

SPILLED: Evacuate all personnel from affected area. Use

appropriate protective equipment. Do not get liquid in

eyes, on skin o r clothing. Shut off source of leak if

possible. Protect from ignition. Ventilate area

thoroughly. If leak is in user's equipment, be certain

to purge piping with an inert gas prior to attempting

repairs. If leak is in container or container valve,

contact the closest Liquid Air Corporation location.

Although Little and Carter were never specifica lly advised

that propylene gas could cause nasal fati gue, every Mainstream

employee who testified stated that he knew to evacuate the wingtank

if they smelled gas or had a leak.-5-

On July 8, 1988, Little and Carter returned from lunch at

approximately 12:30 and climbed into the No. 9 wingtank to continue

their work. The wingtank hatch was a manhole approximately 18 to

20 inches in diameter, and a part of that hatch was occupied with

a ventilation fan. Earnest Hughes, a co-worker of Little and

Carter, walked to the hatch of the No. 9 wingtank some few minutes

after returning f rom lunch and was summoned by Little to get the

torch and hose out of the wingtank because the hose was leaking

gas. At that time, Carter was back into the wingtank so far that

Hughes could not see him and Little was partway down the ladder

leading into the fourteen-foot deep wingtank. Little was into the

wingtank--his head beneath the hatch about a foot or two--when he

told Hughes that there was a hole in the torch's gas line.

Hughes pulled the torch and gas lines out of the wingtank and

then laid them on the deck of the barge. He noticed the hole in

the gas line. Little, still on the ladder in the hole, then told

Hughes to get a repair kit to fix the hose. Hughes left to get the

repair kit and, about half a minute later, heard a noise. When he

looked back, he saw the fan--which had been attached at the top of

the hatch--being blown into the air and then saw Little being

propelled out of the wingtank. Hughes ran for help and cut all the

gas off. Little died immediately and Carter died several days

later as a result of burns that he received in the explosion.

II

A4 The complaints in both actions are essentially the same

and, for brevity, we refer to them both as the "amended

complaint."

-6- The families of Carter and L ittle initiated actions for

damages resulting from the explosion. The actions were

consolidated and, after som e initial discovery, the complaints

stated claims against Victor, Chevron, and Liquid Air. In the

amended complaint, 4 the plaintiffs alleged that

On July 8, 1988, Marvin Joe Littl e and co-employee

Charles Carter were working in the hold of a barge doing

repair work, including the use of a cutting and welding

torch manufactured by Victor. Little was also using

propylene (Fuel Gas) manufactured by Chevron and

distributed and sold by Liquid Air. The hold was an

enclosed area bel ow decks of the barge constructed for

the purpose of buoyancy. Except for a single hatch,

there was no ingress or egress to this hold. Little and

Carte r discovered a gas leak and decided to remove the

torch from the hold to repair the hose. A short time

a fter the hose was removed, no longer smelling the gas

and believing the area to be safe, Carter lit a

cigarette. This source of ignition led to an explosion

of the propylene gaseous mixture which blasted Little's

body through the hatchway of the hold, killing him

instantly. Carter was seriously burned by the explosion

and died several days later.

With respect to defendant Victor, the amended complaint alleged

that the gas leak was caused by the "defective and negligent design

of the torch"; specifically, the torch was defective in that it had

a leaking O-ring and a leaking check valve, which defects caused a

flashback that lead to a leak in the gas hose. The amended

complaint further alleged that the propylene gas manufactured and

distributed by Chevron and Liquid Air was d efective and

unreasonably dangerous because5 The amended complaint further alleged that Liquid Air and

Chevron were strictly liable because they "are in the business of

manufacturing and/or distributing the subject gas which is

defective and unreasonably dangerous in that Defendants failed to

warn of its propensity to cause nasal fatigue," and also liable

"because they negligently manufactured and/or sold the subject

gas and failed to warn the reasonably foreseeable user . . . of

the defective and unreasonably dangerous propensities of this

gas."

6 After the close of discovery, after Chevron filed its

motion for summary judgment and after the case had been set for

trial, the plaintiffs moved to amend their complaint again. The

proposed amended complaint significantly changed the theories of

the case, both as to the facts and the law. The proposed amended

complaint did not include the allegations that Little and Carter

ever smelled the gas or that Carter lit a cigarette, igniting the

gas. Further, while all of the previous complaints had relied

solely on the theory that nasal fatigue and the failure to warn

thereof had caused Little and Carter's deaths, the proposed

amended complaint also asserted that the gas was defective

because the

odorant (ethyl mercaptan) which Defendant Chevron added

to the odorless propylene oxidizes over time, which

diminishes the ability of the human nose to smell it.

In addition, the human nose is not an adequate safety

device because the ability to smell varies among

individuals; disease and upper respiratory infections

interfere with the ability to smell, smoking diminishes

the ability to smell, sensory distractions diminish the

ability of one to detect dangerous odors; certain

environments 'mask' a smell; and, some individuals have

little or no sense of smell.

-7- exposure to this gas leads to nasal fatigue to the extent

that a worker cannot reliably detect this gas by smell.

At the time he lit the cigarette, Carter could no longer

smell the gas because of nasal fatigue. Both Carter and

Little were unaware of the propensity of Defendants' gas product to cause nasal fatigue and were further unaware

that exposure to this gas reduces or eliminates the

ability to smell the gas. 5

After the parties had engaged in discov ery, the defendants

moved for summary judgment. 6 The plaintiffs responded, urgingThe proposed amended complaint further asserted that, as a

result of the imperfection of the human nose, the defendants

should have advised the use of electronic gas detectors in

confined areas instead of allowing users to depend on their sense

of smell. The district court denied the plaintiffs' motion for

leave to amend.

7 The panel's initial opinion is reported at 939 F.2d 1293

(5th Cir. 1991). That opinion was withdrawn and the panel's

final opinion is reported at 952 F.2d 841 (5th Cir. 1992). The

differences between the two opinions are not material to our

discussion here.

8 In the light of the late date at which the plaintiffs moved

to amend their complaint and the extensive legal and factual

changes included in the proposed amended complaint, we agree with

-8- that they should be allowed to amend their complaint to assert

different theories of liability and that, even without the proposed

amended complaint, there was sufficient evidence from which a jury

could reach a verdict in their favor. In a well-reasoned opinion,

the district court grante d the motions and dismissed the

plaintiffs' claims. The district court first held that Chevron and

Liquid Air were entitled to the bulk seller/sophisticated purchaser

defense. With respect to Chevron and Liquid Air, the district

court also held that the plaintiffs had failed to present proof of

the inadequacy of the warnings and the causative nexus between the

warning and the injury suffered. The district court finally held

that the plaintiffs had failed to offer proof that the defective

Victor torch was the proximate cause of their injury.

The panel 7 first held that the district court did not abuse

its discretion in denying the plaintiffs' motion to amend their

complaint. 8 952 F.2d at 845-47. Next, observing that summarythe panel decision and affirm the district court's denial of the

motion to amend for the reasons stated in the panel's opinion.

9 We question the panel's postulation because some of these

necessary "facts" have no support in the record and are only

speculation, not "facts" at all.

10 Indeed, it might have, thus undermining the plaintiffs'

sole theory that nasal fatigue was the reason the gas was not

smelled. No evidence supports either speculative theory.

-9- jud gment is rarely appropriate in products liability cases, the

p anel held that the burden did not shift to the plaintiffs to

produce summary judgment proof because the defendants did not

discharge their burden to establish that the plaint iffs did not

raise a genuine question of material fact. Bolstering this

conclusion, the panel majori ty postulated a set of "facts" 9 that,

according to the panel, would allow the plaintiffs to prevail at

trial in strict liability and negligence on the theory that the

warning was inadequate concern ing nasal fatigue: Little and

Carter discovered the leak and caused the hose to be removed from

the wingtank; they then could no longer smell the gas and, assuming

the fan had dissipated the odor, 1 0 remained in the wingtank

temporarily rather than following the leaky hose to the deck of the

barge; the wingtank then exploded as they attempted to leave.

Recognizing that circumstantial evidence is admissible in

Mississippi to establish strict liability, the panel n oted that

e vidence that Carter perhaps lit a cigarette is circumstantial11 There was no probative evidence that Carter did light a

cigarette. See infra at pp. 19-20. Nevertheless, the lighting

of a cigarette is an essential component of the plaintiffs'

theory as presented to the district court and as it comes to us

on appeal.

12 No evidence supports a finding that Little or Carter ever

attempted to leave the wingtank. The record evidence shows that,

from the time Little first directed Hughes to retrieve the hose

from the wingtank and repair it, he stood on the ladder below the

hatch. There is no evidence that he ever moved from that

position until propelled onto the barge by the explosion. The

only evidence as to Carter's position before the explosion is

that he was so far in the wingtank that he could not be seen.

13 The question whether Liquid Air and/or Chevron had actual

or constructive knowledge of the "nasal fatigue" phenomenon as it

was alleged by the plaintiffs (an allegation each of them denies)

is irrelevant in the light of the plaintiffs' failure to

demonstrate that Little and Carter actually suffered from nasal

fatigue and the failure to show any causal connection between

nasal fatigue and the deaths of Little and Carter.

-10- evi dence that he could no longer smell the gas; 1 1 evidence that

Little was standing on the ladder to the wingtank is circumstantial

evidence that he and Carter were attempting to leave. 12

Based on this strained and unsupported factual scenario, the

panel conclud ed that the warnings provided by Liquid Air and

Chevron were not inadequate as a matter of law, but also not so

conclusively adequate as to require summary judgment in their

favor. In summary, the panel held that a "jury should determine

whether the defendants' f ailure to warn that propylene can cause

nasal fatigue was a breach of their duty to warn of all dangers of

which they had actual or constructive knowledge." 952 F.2d at

850. 13-11-

With respect to defendant Victor, the panel held that the

district court erred in holding that the allegedly defective torch

was not the proximate cause of the accident because of the

intervening conduct of the plaintiffs in failing to follow the

warning to evacuate the tank immediately. The district court erred

because there was evidence to quest ion whether the failure of

Little and Carter to evacuate immediately was negligence or, on the

other hand, an attempt to follow the warning. 952 F.2d at 852.

Judge Garwood dissented. He argued that the plaintiffs failed

to discharge their burden of coming forward with sufficient

evidence to permit a jury to find in their favor because it was

undisputed that Carter and Little knew of the gas leak, that they

knew it was present in the wingtank and that the explosion occurred

very shortly thereafter. Therefore, according to Judge Garwood, it

was "purest speculation" to assume that Little and Carter were

suddenly afflicted wi th nasal fatigue. Further, the warning was

not heeded when Carter lit a cigarette and also when Little and

Ca rter delayed their departure from the wingtank. Accordingly,

Judge Garwood would have affirmed the district court.

On suggestion for rehearing en banc, a majority of this court

reflected the view that because summary judgment w as so plainly

appropriate, en banc consideration was necessary so that district

courts will not be misdirected from the lesson of Celotex and its

progeny that summary judgment is and should be "an integral part of

the Feder al Rules as a whole, which are designed 'to secure the-12-

just, speedy and inexpe n sive determination of every action.'"

Celotex Corp. v. Catrett , 477 U.S. 317, 327 (1986).

B

For many years, we and other circuits viewed summary judgment

as a "disfavored procedural shortcut," ap plicable to a limited

class of cases. A rmstrong v. City of Dallas

, 997 F.2d 62 (5th Cir.

1993). See Fonten ot v. Upjohn Co. , 780 F.2d 1190, 1197 (5th Cir.

1986)(noting ambivalence toward summary judgment for fear that

trial judges use it as "catch penny contrivance to take unwary

litigants into its toils and deprive them of a trial"). Beginning

with its summary judgment "trilogy," Celotex Corp. v. Catrett

, 477

U.S. 317 (1986); Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242

(1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp

.,

475 U.S. 574 (1986), the Supreme Court, however, has made it clear

that our earlier approach to Rule 56 was wrong-headed because it

was simply inconsistent with the plain language of the rule.

The Supreme Court has instructed us that the purpose of Rule

56 is to "enable a party who believes there is no genuine dispute

as to a specific fact essential to the other side's case to demand

at least one sworn averment of that fact before the lengthy process

of litigation continues." Lujan v. National Wildlife Federation

,

497 U.S. 871, 888, 110 S.Ct. 3177, 3189 (1990). To be certain,

Rule 56 " m andates the entry of summary judgment, after adequa t e

time for discovery and upon motion, against a party w ho fails to

make a showing sufficient to establish the existence of an element-13-

essential to that party's case, and on which that party will bear

the burden of proof at trial." C elotex

, 477 U.S. at 322 (emphasis

added). Plainly, Rule 56 means what it says: "judgment . . .

shall be entered 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 and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c)(emphasis added).

Fur thermore, the party moving for summary judgment must

"demonstrate the absence of a genuine issue of material fact," but

need not negate the elements of the nonmovant's case. C elotex

, 477

U.S. at 323; see Lujan

, 110 S.Ct . at 3187. If the moving party

fails to meet this initial burden, the motion must be denied,

regardless of the nonmovant's response. If the movant does,

however, meet this burden, the nonmovant must go beyond the

pleadings and designate specific facts showing that there is a

genuine issue for trial. Celotex , 477 U.S. at 325.

This burden is not satisfied with "some metaphysical doubt as

to the material facts," M atsushita

, 475 U.S. at 586, by

"co nclusory allegations," L ujan

, 110 S.Ct. at 3180, by

"unsubstantiated assertions," Hopper v. Frank

, 16 F.3d 92 (5th Cir.

1994), or by only a "scintilla" of evidence, Davis v. Chevron

U.S.A., Inc. , 14 F.3d 1082 (5th Cir. 1994). We resolve factual

controversies in favor of the nonmoving party, but only when there

is an actual controversy, that is, when both parties have submitted14 Our cases have sometimes stated in dicta that summary

judgment is generally not appropriate in certain types of cases,

such as products liability or negligence. See , e.g., Lavespere

v. Niagara Machine & Tool Works, Inc. , 910 F.2d 167, 178 (5th

Cir. 1990); Trevino v. Yamaha Motor Corp. , 882 F.2d 182, 184-86

(5th Cir. 1989); Miller-Schmidt v. Gastech, Inc. , 864 F.2d 1181,

1185 (5th Cir. 1989). That dicta is essentially empty chatter,

however, inasmuch as we have never reversed a district court's

entry of summary judgment solely because it involved a particular

class of allegations. In any event, we reject any suggestion

that the appropriateness of summary judgment can be determined by

such case classification.

-14- evidence of contradictory facts. W e do not, however, in the

absence of any proof, assume that the nonmoving party could or

would prove the necessary f acts

. S ee Lujan

, 110 S.Ct. at 3188

(resolving actual disputes of material facts in favor of nonmoving

party "is a world apart from `assuming' that general averments

embrace the `specific facts' needed to sustain the complaint.

. . .

It will not do to `presume' the missing facts because without them

the affidavits would not establish the injury that they generally

allege").

Moreover, the nonmoving party's burden is not affected by the

type of case; summary judgment is appropriate in any case "where

critical evidence is so weak or tenuous on an essential fact that

it could not support a judgment in favor of the nonmovant." 1 4

Armstrong v. City of Dallas , 997 F.2d 62 (5th Cir. 1993). If the

nonmoving party fails to meet this burden, the motion for summary

judgment must be granted.

Our applic ation of Rule 56 today--mandated by the Supreme

Court--finds support in principl es of fairness and judicial-15-

economy, particularly in the light of backlogs in the district

courts and the high cost of litigation. A plaintiff should not be

required to wait indefinitely for a trial when the defendant has a

meritless defense that can be res olved on motion for summary

judgment. Nor should a defendant be required to bear the

unnecessary costs of delay and trial to defend against a claim that

has no merit. Neither party should be required to bear the costs

of trying all of the issues in a case when some can and should be

resolve d on summary judgment. Nor is it fair to require other

cases to languish on the district courts' trial dockets because of

cases that present no genuine questions of material fact. As Judge

Rubin stated for this court in Fontenot

, 780 F.2d at 1195, "[T]rial

would be a bootless exercise, fated for an inevitable result but at

continued expense for the parties, the preemption of a trial date

that might have been used for other litigants waiting impatiently

in th e judicial queue, and a burden on the court and the

taxpayers."

Notwithstanding the long history of summary judgment

procedure, some parties will always complain that summary judgment

unfairly deprives a party of the righ t to have the case heard by

the trier of fact. No one, however, should be heard to question

the fairness of requiring a party to meet basic evidentiary and

procedural burdens in the trial of a case. Summary judgment

requires no more. If, after adequate time for discovery, a party

cannot produce proof that it has facts to support its case, then15 The plaintiffs' allegations sound in negligence and strict

liability, both of which require proof of a causal connection

between the defective product and the plaintiffs' injuries. See

Daniels v. GNB, Inc. , 629 So.2d 595, 600 (Miss. 1993)(strict

liability); Ford Motor Co. v. Matthews , 291 So.2d 169 (Miss.

1974)(negligence). Because our analysis focuses on the absence

of facts on this common element, we consider both claims

together. See Swayze v. McNeil Laboratories, Inc. , 807 F.2d 464,

467 & n.3 (5th Cir. 1987).

-16- the case should be resolved at that point, and this is true

irrespective of the type of case.

With these principles in mind, we turn to examine this case.

C

The plaintiffs' claims, both before the distric t court and

before this court, are framed by their allegations and theories

reflected in the amended complaint--the propylene gas manufactured

by Chevron and distributed by Liquid Air was defective in only one

respect : the failure to warn of nasal fatigue. 1 5 In order to

recover under this theory, obviously there must be a causal

connection between the defect and the injury. W yeth Laboratories,

Inc. v. Fortenberry

, 530 So.2d 688, 691 (Miss. 1988)(plaintiff must

show that adequate warning would have altered conduct); Thomas v.

Hoffman-LaRoche, Inc.

, 949 F.2d 806 (5th Cir. 1992)(same); Fairley

v

. American Hoist & Derrick Co.

, 640 F.2d 679, 681 (5 th Cir.

1981)(showing defect is not enough if it did not cause or

contribute to cause of injury). S ee also Willett v. Baxter

International, Inc.

, 929 F.2d 1094, 1098 (5th Cir. 1991)(defective

aspect of product must cause injury in failure to warn case). The16 In their motions for summary judgment, Liquid Air and

Chevron asserted this absence of facts supporting the elements of

the plaintiffs' theory of recovery. Because the moving parties

do not bear the burden of proof on these issues at trial, they

were not required to negate the existence of facts, and they

satisfied their burden under Celotex

. See Fontenot , 780 F.2d at

1195. The panel was mistaken and apparently applied an incorrect

standard when it held to the contrary. 952 F.2d at 847. Under

Celotex , the burden therefore shifted to the plaintiffs to come

forward with evidence that can uphold a jury verdict. The

plaintiffs, however, clearly failed to meet this burden.

-17- plaintiffs' argument fails because no evidence supports that Little

or Carter suffered nasal fatigue and, co nsequently, there is no

evidence that nasal fatigue was the proximate cause o f their

deaths. 16

The plaintiffs concede that th ey offered no direct evidence

that Little and Carter ever actually suffered from nasal fatigue.

They argue, however, that we can infer that Carter and Little

suffered nasal fatigue from the facts that they did not evacuate

and that Carter lit a cig arette. Any inference drawn from these

facts, even assuming that the underlying facts are supported in the

record, at best proves only that the cause of their injuries was

the failure to smell the gas, not that the cause of their failure

to smell the gas was nasal fatigue. Thus, evidence establishing a

causal connection between the alleged defect in the warning and the

injury suffered is lacking.

The facts of this case fail to reveal any explanation for the

conduct of Little and Carter or the cause of the accident. Indeed,

the evidence does not reveal with any degree of certainty whether17 We note, however, that, in their rejected amended

complaint, the plaintiffs have withdrawn the allegation that

Carter and Little smelled the gas, an omission that would be

fatal to the nasal fatigue theory.

18 At en banc oral argument, the plaintiffs' counsel agreed

that, assuming that Little and Carter failed to smell the gas,

that failure could have been caused by nasal fatigue, the

ventilation system, a failure of the odorant or other reasons.

19 Speculation concerning such grossly negligent conduct

could be fueled by testimony that, three weeks before the

accident, Little had been reprimanded for actually using an

oxygen torch to blow-clean his workplace, conduct that the

-18- Carter and Little did or did not smell the gas. 17 In this respect,

the record is clear on only one point: they were aware of the gas

leak because they had discovered the hole in the gas hose. Beyond

that, the facts in the record lead on ly to speculation as to why

Little an d Carter did not immediately evacuate the wingtank when

they knew of the gas leak. Nasal fatigue is only one speculative

theory, neither more nor less supportable in this record than any

of the other speculative theories. 18

There was, for example, testimony speculating that the gas may

have sufficiently dissipated so that it was on the floor and could

not be sm elled; there was testimony speculating that the

ventilating fan may have drawn out the odor from the tank; and

there was testimony speculating that the odorant may have failed

altogether. Furthermore, it is equally easy to speculate that

Little and Carter may have smelled the gas but remained in the tank

temporarily rather than climbing out because they did not

anticipate an igniting source. 19employer characterized as dangerous. Therefore, it is possible

that, as long-time, experienced welders constantly exposed,

without accident, to the dangers of gas in confined areas, Little

and Carter had become indifferent to routine safety precautions

that would have saved their lives.

20 Colver merely opined that nasal fatigue happened in this

case because "it always happens," although he did not know the

degree to which it occurred.

21 The testimony is undisputed that the lunch hour ended at

12:30 and that the explosion occurred at approximately 12:45,

although the plaintiffs' counsel acknowledged at oral argument

that these times were "best guestimates."

-19- Moreover, when placed in the context of this case, the

testimony of the plaintiffs' expert on nasal fatigue, Charles

Phillip Colver, does not support nasal fatigue as a theory

explaining why Little and Carter rema ined in the wingtank. 2 0 He

testified that whether and when nasal fatigue may occur depends on

the length of time of exposure and the strength of the odorant, as

well as the particular individual who is exposed to the odorant.

Yet, the record is silent concerning how any of these factors apply

in this case. The record contains no facts concerning time of

exposure, 21 the volume of the gas leaked, the temperature, the

effect of the ventilation fan and , consequently, the strength of

the odorant at the time of exposure. Nor do we know to what extent

Little's and Carter's individual olfactory senses were susceptible

to the phenomenon of nasal fatigue.

Finally, we cannot infer th at Carter and Little smelled the

gas from the alleged fact that Carter lit a cigarette because no

evidence was adduced before the district court that Carter did22 The absence of evidence supporting the theory that Carter

lit a cigarette is underscored by the plaintiffs' last-minute

efforts to amend their complaint and withdraw this allegation.

These efforts suggest that the plaintiffs either must have

assumed that they could not prove that Carter lit a cigarette or

that the lighting of the cigarette supplied the defendants with

possible defenses to the plaintiffs' claims.

23 The record also shows that Carter had a lighter for his

torch in the wingtank, but that lighter was still in his trousers

pocket after the explosion. It is inconceivable that he would

have been able to put the igniter back in his pocket after the

explosion.

24 The plaintiffs' nasal fatigue expert testified that no

individual cigarettes were found in the wingtank, although the

source of his information is unclear.

-20- light a cigarette. 22 At best, the record shows that Carter was a

smoker, that he had smoked earlier in the day, that he bought a

p ack of cigarettes and perhaps a lighter at lunch and that there

were smoked cigarette butts on the floor of the wingtank after the

explosion. 23 These facts, however, are not evidence sufficient from

which a jury could conclude that the source of the ignition was

Carter's attempt to light a cigarette in the wingtank. For

example, there is no evidence that there was an unsmoked cigarette,

or parts of an unsmoked cigarette, on the floor of the wingtank; 24

no evide nce that the flash explosion would have destroyed the

cigarette that Carter allegedly tried to light; no evidence

regarding whether a cigarette lighter or matches were found in the25 The plaintiffs' nasal fatigue expert also testified that

"there was found matches that he obtained during the lunch hour,"

although he does not state where they were found. Also, he

testified that Carter purchased a cigarette lighter at lunch, but

there was no further evidence concerning the lighter.

26 The plaintiffs, as we have noted, also asserted claims

against Victor in strict liability and negligence. The district

court granted Victor's motion for summary judgment on the grounds

that (1) with respect to the negligence claim, Carter and

Little's failure to evacuate and Carter's lighting a cigarette

were superseding causes that relieved Victor of liability and,

(2) with respect to the strict liability claim, Carter and Little

assumed the risk by failing to evacuate the wingtank.

On appeal, the plaintiffs devote hardly any space or time to

their claims against Victor--some two-plus pages in their opening

brief, none in their reply brief, and none in their supplemental

en banc brief. To be sure, they do not even address the district

court's ruling dismissing the strict liability claim on grounds

of assumption of risk; any challenge to the district court's

ruling on that point is therefore deemed waived. United States

v. Valdiosera-Godinez , 932 F.2d 1093, 1099 (5th Cir. 1991).

Although at en banc argument the plaintiffs disavowed any intent

to completely abandon their claims against Victor, we note that

they spent no time addressing those claims. Indeed, in an effort

to bolster their argument that the gas itself was defective

-21- wingtank; 25 and no evidence that an opened, new pack of cigarettes

with one missing was found in the wingtank or on Carter.

In sum, even if it is assumed that Carter and Little did not

smell the gas, the re is no evidence that fact would support a

jury's conclusion that nasal fatigue was the reason. The record

simply supplies no answers of any kind whatsoever, and does not

begin to suggest which of the spe culative theories for their

remaining in the tank is most plaus ible. In the absence of

evidence on the various points we have noted above, nasal fatigue

remains only one of many speculative reasons why Carter and Little

remained in the wingtank, knowing that there had been a gas leak. 26because of odorant fade, they seemed to embrace the opinion of

Victor's expert that the tear in the gas line was caused by an

external heat source at some earlier time in the morning and was

not caused by a defective torch.

Assumption of the risk is a valid defense under Mississippi

law. See Saxton v. Rose , 29 So.2d 646 (Miss. 1947).

Notwithstanding the sometime musings of the Mississippi Supreme

Court concerning the continued vitality of the defense in the

light of contributory negligence and Mississippi's adoption of

comparative fault, see Braswell v. Economy Supply Co. , 281 So.2d

669 (Miss. 1973), the doctrine has been reaffirmed in unequivocal

terms, Nichols v. Western Auto Supply Co. , 477 So.2d 261 (Miss.

1985), and actually extended to apply to products liability

cases. Id

. In its most recent pronouncements, the Mississippi

Supreme Court, sitting en banc, reaffirmed the doctrine, McDaniel

v. Ritter , 556 So.2d 303 (Miss. 1989), with only one justice

dissenting. 556 So.2d at 319 (Sullivan, J., dissenting).

To the extent that contributory negligence and assumption of

the risk are distinguished by degree, contributory negligence

crosses the pale into assumption of risk when the plaintiff's

conduct is not merely negligent--or even grossly negligent--but

instead, the plaintiff's conduct is a wilful, venturous challenge

to a fully-appreciated danger to his own self-interest and

safety. This distinction is reflected by Mississippi's

definition of the elements of assumption of risk: "(1)

Knowledge on the part of the injured party of a condition

inconsistent with his safety; (2) appreciation by the injured

party of the danger of the condition; and (3) a deliberate and

voluntary choice on the part of the injured party to expose his

person to that danger in such a manner as to register assent on

the continuance of the dangerous condition." Alley v. Praschak

Machine Co. , 366 So.2d 661 (Miss. 1979).

In this case, as pled and argued by the plaintiffs, it is

undisputed that Little and Carter knew that Victor's

malfunctioning torch had caused a gas leak that created an

imminently dangerous situation. Their knowledge of the gas

leak, alleged to have been caused by Victor, and the specific

instructions directly given to them by their employer to evacuate

immediately under these circumstances, combined with their

experience as welders, put them "in possession of fact[s] from

which [they] would be legally charged with appreciation of the

danger." Alley v. Praschak Machine Co. , 366 So.2d 661 (Miss.

1979). Finally, the undisputed facts show conclusively that

Little and Carter, accepting this known danger, chose not to

evacuate but instead remained in the wingtank. Their knowledge

and experience taught only that they should evacuate immediately

upon learning of a gas leak; they nonetheless chose to risk the

-22-danger and stayed in the wingtank after they had full knowledge

of the torch's malfunction.

Given these undisputed facts, and given the fact that the

plaintiffs have effectively waived the district court's

application of the assumption of risk doctrine to these facts, it

is clear that this legal principle bars the plaintiffs' recovery

against Victor in all respects. Although the district court

dismissed the negligence claim on another ground, it is

appropriate for us to affirm the district court on any basis

supported by the record. Morales v. Department of Army , 947 F.2d

766 (5th Cir. 1991). We thus affirm the district court's entry

of summary judgment in favor of Victor.

-23- Consequently, the district court was correct in determini ng that

the plaintiffs failed to satisfy their burden of coming forth with

evidence that would support a jury verdict.

III

In conclusion, we reiterate that, as the case was pled and

presented to the district court, the plaintif fs based their sole

theory of recovery on the premise that Little and Carter suffered

from nasal fatigue and that their deaths resulted from Liquid Air

and Chevron's failure to warn them of this phenomenon. In response

t o motions for summary judgment, it was therefore incumbent u pon

them to present evidence--not just conjecture and speculation--that

nasal fatigue did occur and that it bore some causal connection

with the deaths of Little and Carter.

After the completion of discovery and extensive briefing here

and in the distri ct court, however, these salient facts emerge:

(1) there was a gas leak in the wingtank; (2) Carter and Little

knew of the gas leak; (3) there was an explosion; and (4) if Carter

and Little had followed their employer' s instructions, and the-24-

warning provided by the defendants, to evacuate in the event of a

leak, they would not have died. Beyond these facts, what happened,

why it happened, and how it happened is only speculation. The

plaintiffs simply did not meet their burden to adduce evidence upon

which a juror could determine what caused Little and Carter to

ignore explicit warnings and safety precautions to evacuate the

wingtank when they discovered a gas leak.

Although the panel maj ority attempted to assume facts and

present a theory upon which the plaintiffs might have recovered, it

was not free to amend the plaintiffs' pleadings or to assume facts

that might be proved but are not established by the record.

The absence of evidence to support the plaintiffs' theories of

recovery made this case clearly and plainly appropriate for summary

judgment. The district court fairly and thoroughly considered the

plaintiffs' claims and determined that the compla int should be

dismissed. The district court was correct and is therefore

A F F I R M E D.

JOHNSON, Circuit Judge, with whom POLITZ, Chief Judge, joins,

dissenting:

The majority opinion herein does not cont est the panel

majority's principal conclusion. That conclusion was that there

was a genuine issue of material fact as to whether the warnings on

this product were inadequate because they did not warn of the

danger that "nasal fatigue" could degrade an individual's ability27 Because direct evidence of the facts that underlie a

strict liability claim is seldom available, Mississippi law has

determined that circumstantial evidence of the allegations in a

strict liability case is competent proof. BFGoodrich, Inc. v.

Taylor , 509 So.2d 895, 903 (Miss. 1987).

28 The majority attacks the strength of the evidence

supporting the view that Carter lit a cigarette in the tank and

that this ignited the gas. The evidence shows, however, that

Carter was a smoker, that he had purchased cigarettes and perhaps

a lighter earlier that day and that there were smoked cigarette

butts on the floor of the wingtank after the explosion.

Moreover, as the problem with the welder had caused a break in

the work, it is not unlikely that Carter would take advantage of

that work stoppage to smoke a cigarette. Finally, there was

testimony that there was no other ignition source in the tank

which could have set off the explosion which led witnesses to

conclude that Carter must have lit a cigarette. Surely, from

this circumstantial evidence, a jury could reasonably conclude,

and not just speculate, that Carter did, in fact, light a

cigarette.

-25- to detect the presence of the odorized gas. 952 F.2d 841, 850 (5th

Cir. 1992). Instead, the majority concludes that the evidence that

the decedents were affected by nasal fatigue and that nasal fatigue

bore a causal relation to the accident was too speculative to

survive summary judgment. Maj. op. at 2-3.

However, there was circumstantial evidence to support both of

these conclusions. 27 That evidence showed that the decedents

initially smelled the gas in that they discovered the leak. There

was also testimony that nasal fatigue is a phenomenon that always

occurs, at least to some extent, and that it works to diminish your

ability to detect an odor. Additionally, there was evidence that

Carter lit a cigarette some time after the leak was discovered

which suggests that the decedents could no longer smell the gas. 28-26-

From this circumstantial evidence, a jury could readily infer that

the decedents' inability to smell the gas, which was obviously

present in sufficient quantities to cause the explosi on, was

caused, at least in part, by nasal fatigue.

Viewed in a light most fa vorable to the plaintiffs, this

writer concludes that this view of the evidence was reasonable, not

merely speculative, and for a jury to accept or reject. S ee Baton

Rouge Bldg. & Constr. Trades Council v. Jacobs Constructors, Inc.

,

804 F.2 d 879, 881 (5th Cir. 1986) (per curiam) (in reviewing a

summary judgment, we must review the evidence and any inferences to

be drawn therefrom in a light most favorable to the non-moving

party). If this view of the evidence is accepted, then it would be

sufficient to raise a genuine issue of material fact as to whether

the decedents did, in fact, experience nasal fatigue and whether

this bore a causal relation to the accident. Fed. R. Civ. P.

56(c). For these reasons, and for the reasons stated in the panel

majority opinion, this writer adheres to the view that summary

judgment in this case was inappropriate.

Even if this conclusion is incorrect, though, it is difficult

to see why this case merited en banc review. This case announces

very little new law. Instead, it simply reiterates the familiar

summary judgment standard flowing from the Supreme Court's trilogy

of summary judgment cases and then applies that standard to the

facts of this case. C elotex Corp. v. Catrett

, 477 U.S. 317 (1986);

Anderson v. Liberty Lobby , Inc. , 477 U.S. 242 (1986); M atsushita-27-

Electric Industrial Co. v. Zenith Radio Corp.

, 475 U.S. 574 (1986).

T he only real difference between the majority and the dissent

herein is the application of the facts of this particular case to

that familiar standard. This hardly seems worthy of en banc

consideration.

For this additional reason as well, this writer dissents.