Skotak v. Tenneco Resins, Inc., 90-1256

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, KING, and BARKSDALE; BARKSDALE; KING; WISDOM; Barksdale; Barksdale; Before WISDOM, KING and BARKSDALE; PER CURIAM
Citation953 F.2d 909
Parties, Prod.Liab.Rep. (CCH) P 13,061 Mary Faye SKOTAK, George Jerry Skotak, and Eric Norman Skotak, Plaintiffs-Appellants, Cross-Appellees, v. TENNECO RESINS, INC., Defendant-Appellee, Cross-Appellant.
Docket NumberNo. 90-1256,90-1256
Decision Date03 February 1992

Page 909

953 F.2d 909
22 Fed.R.Serv.3d 636, Prod.Liab.Rep. (CCH) P 13,061
Mary Faye SKOTAK, George Jerry Skotak, and Eric Norman
Skotak, Plaintiffs-Appellants, Cross-Appellees,
v.
TENNECO RESINS, INC., Defendant-Appellee, Cross-Appellant.
No. 90-1256.
United States Court of Appeals,
Fifth Circuit.
Feb. 3, 1992.
On Suggestion for Rehearing En Banc
March 26, 1992.

Page 910

Rodney Gappelberg, Wilson, Jorgenson, Fuqua & Hudnall, Dallas, Tex., for plaintiffs-appellants, cross-appellees.

Michael R. Berry, George C. Chapman, G. Luke Ashley, Thompson & Knight, Dallas, Tex., Joseph T.C. Hart, Fulton, Duncombe & Rowe, New York City, for defendant-appellee, cross-appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, KING, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

The widow and children of George Skotak (the Skotaks), appeal the summary judgment awarded Tenneco Resins, Inc. (TRI). Because the Skotaks did not produce sufficient evidence to create a genuine issue of material fact concerning the adequacy of the warning in issue, the judgment is AFFIRMED.

I.

George Skotak died as a result of liver cancer in 1986. The Skotaks sued TRI in district court under theories of strict liability, negligence, and breach of an implied warranty, alleging that the cancer was caused by Thorotrast, a drug manufactured between 1943 and 1953 by TRI's predecessor, Heyden Chemical Corporation, and used as a contrast medium in radiology; that Mr. Skotak underwent surgery in

Page 911

1947 to have a blood vessel removed from his neck; that Dr. Albert D'Errico performed the operations; and that he either administered the Thorotrast, or ordered it to be administered. Dr. D'Errico died before this action was filed.

TRI moved for summary judgment, including on the grounds that: (1) the Skotaks could not prove the essential elements of their strict liability and negligence claims; and (2) as a matter of law, TRI was not liable as the corporate successor to Heyden. 1 TRI claimed, among other things, that the Skotaks could not establish: (1) that Mr. Skotak received an injection of Thorotrast during the period 1943 to 1953, when it was manufactured by Heyden; or (2) that the warning given by Heyden was not adequate.

In response, the Skotaks submitted a brief (included in the record) and the following evidentiary materials: (1) affidavits by Mr. Skotak's sister and cousin, which stated that Dr. D'Errico performed surgery on Mr. Skotak in either 1946 or 1948 at Baylor Hospital; (2) some of Mr. Skotak's medical records, from another facility, prepared prior to the surgery; (3) excerpts from the deposition of Dr. Block, Mr. Skotak's subsequent physician, in which he testified that a 1958 x-ray report showed the presence of Thorotrast in Mr. Skotak's body; (4) excerpts from the deposition of plaintiff Mary Skotak, who married Mr. Skotak in 1953, in which she testified both (a) that Mr. Skotak told her that he received Thorotrast in 1947 and (b) that Dr. Groman, who treated Mr. Skotak at the time of his death, told her, based upon reading medical articles, that Thorotrast caused cancer; and (5) TRI's answers to interrogatories in this case and an earlier case, concerning the warnings that accompanied Thorotrast.

The district court held that TRI was not liable as the corporate successor of Heyden, because TRI had not expressly assumed liability for injuries caused by Thorotrast. The district court also held:

Assuming, arguendo, that Tenneco assumed the liabilities of its predecessor, the Skotaks' case fails under the "learned intermediary" doctrine. Under that doctrine, a manufacturer discharges its duty to warn by adequately warning the prescribing physician. Koonce v. Quaker Safety Products & Manufacturing Company, 798 F.2d 700, 717 (5th Cir.1986); Alm v. Aluminum Company of America, 717 S.W.2d 588, 591-92 (Tex.1986). A plaintiff must prove that an inadequate warning was given and that the inadequate warning was the cause of the injury. That is, it must be shown that an adequate warning would have caused the physician to act differently. See Stanback v. Parke, Davis and Company, 657 F.2d 642, 645 (4th Cir.1981) (Virginia law); Dunn v. Lederle Laboratories, [121 Mich.App. 73] 328 N.W.2d 576, 582 (Mich.App.1982).

The Skotaks cannot meet their burden on this issue. They have not identified with any certainty the doctor who administered Thorotrast to Mr. Skotak. The one physician who they have identified is deceased. There is no one who can testify as to the identity of the physician, whether any warning was received by him, whether such a warning was adequate, and whether an adequate warning would have changed the actions of the physician. The Skotaks have the burden of proving inadequacy of warning and cause of the injury. Since they have produced no evidence in this regard, summary judgment must be granted on the theory of inadequate warnings.

Page 912

The Skotaks timely appealed. 2

II.

On appeal, the Skotaks contend that there are genuine issues of material fact, including with respect to (1) the adequacy of the warning; and (2) TRI's liability as the successor to Heyden. It is not necessary to address either successor liability or causation; the judgment is affirmed solely on the Skotaks' failure to show a genuine issue of material fact concerning the adequacy of the warning. 3

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A "dispute about a material fact is 'genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing a summary judgment, this court applies, de novo, the same test employed by the district court. Netto v. Amtrak, 863 F.2d 1210, 1212 (5th Cir.1989). And, contrary to the position urged by TRI, the district court's determination of state law is likewise reviewed de novo. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). 4

In this diversity case, Texas law, of course, applies to the Skotaks' negligence and strict liability claims. For cases involving a drug manufacturer's duty to warn, Texas courts apply the "learned intermediary" doctrine. See Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591-92 (Tex.1986). Under that doctrine, that duty is satisfied by warning the physician of the dangers of the drug. Id. at 591. "[O]nce the physician is warned, the choice of which drugs to use and the duty to explain the risks become that of the physician." Stewart v. Janssen Pharmaceutica, Inc., 780 S.W.2d 910, 911 (Tex.Ct.App.--El Paso 1989, writ denied). Therefore, in order to prevail under Texas law on their negligence and strict liability claims, the Skotaks had the burden of proving, among other things, that the warning accompanying Thorotrast was (1) inadequate; and (2) a "producing cause" of Mr. Skotak's death. Stewart, 780 S.W.2d at 911 (citing Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex.1972)). 5

A.

In order to satisfy its initial burden under Rule 56(c), TRI bore "the initial responsibility

Page 913

of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believe[d] demonstrate[d] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Russ v. International Paper Co., 943 F.2d 589, 592 (5th Cir.1991). Because the Skotaks bore the burden of proof at trial on the issues of adequacy of the warning and causation, TRI was not required to "produce evidence negating the existence of a material fact"; rather, TRI's burden was "only [to] point out the absence of evidence supporting the nonmoving party's case." Latimer v. Smithkline & French Laboratories, 919 F.2d 301, 303 (5th Cir.1990).

TRI satisfied its burden. In its motion, it pointed out that the record contained no evidence on whether the Thorotrast administered to Mr. Skotak was accompanied by a warning and, if so, whether the warning would have added to the administering physician's knowledge of the risks of using Thorotrast. TRI also pointed to the absence of evidence in the record regarding, among other things: when and where the Thorotrast administration occurred; the identity of the prescribing physician; and whether Mr. Skotak would have received Thorotrast even if the physician had full knowledge of the risks.

TRI failed, in its motion, to identify two articles from medical journals which were in the record as exhibits to the Skotaks' opposition to TRI's motion to dismiss for lack of personal jurisdiction, filed more than a year before TRI filed its summary judgment motion. The articles were presented then by the Skotaks in support of their description of the "background" of their lawsuit; they were not relevant to the issues raised in TRI's motion to dismiss for lack of personal jurisdiction. Prior to TRI's moving for summary judgment, the Skotaks never suggested that the articles were relevant to the issues of warning and causation. (In fact, as discussed infra, the Skotaks did not assert until their reply brief in this court that the articles create a genuine issue of material fact regarding inadequate warnings.) Therefore, the fact that TRI failed to identify those articles in its summary judgment motion does not establish a failure by TRI to meet its initial burden under Rule 56(c).

As is well established, "[w]hen a motion for summary judgment demonstrates the absence of...

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