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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-Appellants-
Cross-Appellees,
v.
TENNECO RESINS, INC.,
Defendant-Appellee-
Cross-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 rehearing en banc (Federal Rule of Appellate Procedure
and Local Rule 35), the suggestion for Rehearing En Banc is DENIED.
The three February 3, 1992, opinions are revised as follows:

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Paragraph II.B. of my original opinion is withdrawn.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 plaintiffs introduced in the record copies of two
scientific articles and a letter to the Editor of Cancer bearing on
the relationship between cancer and Thorotrast.
a.
Article 1: Underwood & Hall, Thorotrast
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, Thorotrast-
Induced Angiosarcoma of Liver, N.Y. State J.
Med., pp. 751-53 (Apr. 1982).
* I have incorporated in this opinion a large part of the
opinion Judge King withdrew.
2

Article 1 referred to an April 1925 study (not introduced in the
record) entitled "Some unrecognized dangers in the use and handling
of radioactive substances". JAMA 85:1769-1776 (1925). The same
article noted that in 1932 the American Medical Association's
Council on Pharmacy and Chemistry disapproved of Heyden's
introduction of Thorotrast into the United States. Both Articles
1 and 2 referred to a 1947 report in the American Journal of
Pathology by McMahon, E., Murphy, A.S., and Bates, M.J., (not
introduced in the record) documenting the link between cancer and
Thorotrast. The report stated that the use of Thorotrast
noticeably declined in the 1950's and continued to decline. The
plaintiffs' attorney inartfully attached the articles as exhibits
to the Skotaks' opposition to a motion to dismiss for lack of
personal jurisdiction, apparently as part of the description of the
"background" of their lawsuit. The Skotaks did not suggest the
relevancy of the articles before or when TRI moved for summary
judgment and did not assert the importance of the articles until
they filed their reply brief in this court. It would seem likely
that the Skotaks' attorney expected to introduce the articles in
the trial on the merits. Nevertheless, they were in the record.
We should consider the record as a whole in determining whether
there was a dispute over a material fact.
Judge Barksdale would have the Court ignore these articles.
Based on the articles, a reasonable jury could make the
following findings:
(1) Thorotrast is a radioactive contrast medium first
developed and used in Germany in the 1920's.
3

(2) The relationship between radioactive chemicals and
cancer 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 Use 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 mid-
1950'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 evidence linking
radioactive chemicals and cancer, and for failing to mention
McMahon's finding, of a link between Thorotrast and liver cancer.
Even though the testimony of the actual treating physician is
unavailable, the timing of the marked decline in Thorotrast use
following the release of information on the cancer risk would
permit a reasonable jury to infer: (1) that most physicians were
unaware of the cancer risks associated with Thorotrast before the
information was released; and (2) once they became aware of the
cancer risk, the vast majority of physicians switched to a
4

substitute contrast medium. In the absence of specific evidence of
the treating physician's actual knowledge and likely response, a
jury could reasonably infer that Mr. Skotak's treating physician
was likely to have the same information available, and would
respond in the same manner, as the vast majority of physicians.
The articles, therefore, raise a genuine issue of material fact
with respect to the adequacy of the warning.
The result reached by Judge Barksdale is contrary to our
holdings in Higgenbotham v. Ochsner Foundation Hospital,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 determining 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 the
1 607 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

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 district court should have
considered a deposition filed but not singled out by the nonmovant
for attention, especially where (as here) the record was small. In
Frank C. Bailey Enterprises, Inc. v. Cargill, Inc.5 we did state
that "an appellate court, in reviewing 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 Frank C. Bailey, the
citations to Munoz v. International Alliance of Theatrical Stage
Employees7 and Garcia v. American Marine Corp.8 suggest that the
appellant/nonmovant had introduced at the appellate stage facts
that had never even been placed in the record before the district
5 582 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

court, for in those two cases the Court disapproved of such a
method of attacking a summary judgment.9 I agree entirely with the
holdings in Munoz 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 Houston12 state the accepted rule in this Circuit
cannot withstand scrutiny. First, Lavespere had nothing to do with
the problem in this case. At issue in Lavespere was whether the
district 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
passage Judge Barksdale quoted from Dorsett v. Board of Trustees
9 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

for State Colleges & Universities.14) Neither case considers
whether the procedure for opposing 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 Fields, 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 on summary
judgment does not abrogate the rule of Higgenbotham. None of the
cases dealt with the question of pointing out materials in the
summary judgment record. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp.17 held that the evidence produced by the
plaintiff in a predatory pricing case must tell a plausible story
14 940 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

of conspiracy -- which usually includes showing a rational motive
to conspire -- to create a genuine issue for trial. Anderson v.
Liberty Lobby, Inc.18 held that the evidentiary standard 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. Celotex Corp. v. Catrett19 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 reasoning of the trilogy cases actually supports that rule.
First, as the Court recognized in Celotex, Rule 56 places an
initial burden on the moving party to establish his right to
summary judgment.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 his
18 477 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

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 disproving 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
court -- that there is an absence of evidence to support the
nonmoving party's case."24 As explained by Professors Wright,
Miller, and Kane, "the movant may discharge his burden by
demonstrating 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 burden 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
warning issues. TRI filed affidavits and addressed the relevant
evidence in the record with respect to the issues of successor
22 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

liability and whether Thorotrast was actually administered in 1947,
but with respect to the warning issues TRI simply made a
"conclusory assertion" that "the following critical information
cannot be documented on the basis of the evidence and the medical
records that are available". TRI made this assertion even though
there was already evidence in the record which, together with the
details of the warning provided by the Skotaks in their response to
TRI's summary judgment motion, provided a circumstantial basis for
jury findings favorable to the plaintiff on the issues of warning
adequacy and warning causation. This approach is insufficient to
establish TRI's right to summary judgment on the warning issues.
In short, when the record already contains evidence that
creates a genuine issue of material fact, Celotex requires a moving
party to do more than simply answer that there is no evidence of
that fact, even if the nonmovant will bear the burden of proof on
that issue at trial. Celotex places the burden on the moving party
to demonstrate that, given "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any",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. A
27 Fed.R.Civ.P. 56(c).
11

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 Court does emphasize certain procedural
aspects of the summary judgment process, the Court distributes the
various summary judgment burdens in order to "isolate and dispose
of factually unsupported claims or defenses ...."29 Judge
Barksdale's rule would not serve that purpose, but would force us
to dispose of factually supported 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 evidentiary
28 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 Higgenbotham rule, we are obliged to
so read it.
29 Celotex Corp., 477 U.S. at 323-24.
12

material] 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."30
[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 Nissho-Iwai or Impossible
Electronic Techniques, Inc. v. Wackenhut Protective Serv., Inc.32
states the correct rule in 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 ignore
30 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

evidence that comes to its attention.33 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, but 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.
T h e
litigation explosion in the federal court system, the consequent
need 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.
33 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