Celotex On Remand: Determining The Plaintiff’s Burden.
In Celotex, the Supreme Court determined that Celotex had met its “initial responsibility” in its motion for summary judgment. 477 U.S. at 323. But the Court did not decide whether summary judgment was ultimately proper. As the Court stated, “the Court of Appeals declined to address either the adequacy of the showing made by respondent in opposition to petitioner's motion for summary judgment, or the question whether such a showing, if reduced to admissible evidence, would be sufficient to carry respondent's burden of proof at trial.” Id. at 327. For that reason, the Court remanded the case to the D.C. Circuit to make that determination.
The D.C. Circuit again divided on the question of whether summary judgment was appropriate. At issue was whether plaintiff (the non-moving party), Mrs. Catrett, had demonstrated that her husband was exposed to Celotex products. To avoid summary judgment:
Mrs. Catrett (twice) submitted [a] letter from Mr. Hoff, [an] Anning-Johnson executive. This letter chronicles Mr. Catrett’s work for Anning-Johnson, reporting that he worked for the company for “one calendar year ending, 12/22/71.” According to the Hoff letter, Mr. Catrett’s “duties were to supervise and train crews in the application of Firebar Fireproofing.” Thus, on its face, the letter reflects knowledge by a specific Anning-Johnson official of the deceased employee’s exposure to Firebar fireproofing. The letter further relates an “understanding” that the manufacturer of Firebar was now owned by Celotex.
Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 37 (D.C. Cir. 1987) (internal citations omitted). “Confronted with this potentially damning piece of evidence, Celotex argue[d] that the Hoff letter should be ignored by virtue of its asserted inadmissibility at trial.” Id.
Judge Kenneth Starr, writing for the majority, found that summary judgment was inappropriate because the Hoff letter presented a triable issue of fact:
In the circumstances of this case, we believe that the Hoff letter should be considered. The inadmissibility of the letter, despite Celotex’s contention to the contrary, is by no means obvious (although we need not and do not pass judgment on its admissibility). . . . Celotex never objected to the District Court’s consideration of the Hoff letter. To the contrary, in the hearing on Celotex’s two motions, counsel for Celotex discussed in detail the substance of the Hoff letter, and at one point the letter was handed in open court to the District Judge (at his request) for his examination. . . .
In this situation, it could scarcely be clearer that the letter was before the District Court; what is more, in the absence of even a hint to the contrary from the trial court (much less a ruling), we can only presume that the document was duly considered by the court in reaching its ruling. . . . [I]t is well established that “inadmissible documents may be considered by the court if not challenged[.]” . . .
In her supplemental interrogatory responses, Mrs. Catrett listed Hoff as a witness. There can, of course, be no doubt that this response is properly considered in ruling on a summary judgment motion. . . . Taking this response together with the Hoff letter, the record, dispassionately viewed, reflects the existence of a witness who can testify with respect to Mr. Catrett’s exposure to Firebar. Thus, even if the Hoff letter itself would not be admissible at trial, Mrs. Catrett has gone on to indicate that the substance of the letter is reducible to admissible evidence in the form of trial testimony. See Celotex Corp. v. Catrett, 106 S. Ct. at 2553 (“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”).
Id. at 37-38 (internal citations omitted).
Judge Robert Bork dissented, arguing that because the materials on which plaintiff relied were inadmissible, defendant’s motion for summary judgment was proper. Judge Bork noted that Rule 56(e) requires the moving party to set forth “specific facts” showing a triable issue and that Mrs. Catrett had failed to do so here:
It would seem apparent that the mere listing of [Mr. Hoff as] a potential witness, without more, does not constitute setting forth specific facts. Here plaintiff has never claimed that Mr. Hoff has any personal knowledge that her husband was exposed to asbestos during his year of work at this company, and indeed did not specify the grounds of his possible testimony at all, except to say that he would be able to testify about “facts relevant to the subject matter of this lawsuit.” . . .
The majority concludes, however, that we should interpret plaintiff's listing of Mr. Hoff as a witness in light of his letter to the insurance company, thereby finding enough evidence to stave off the equivalent of a motion for directed verdict on causation. This conclusion is incorrect for two reasons. First, the sum total of all this “evidence” falls far short of showing, or even suggesting, that anyone has been identified who can testify from personal knowledge about any asbestos exposure. That lack alone requires that defendant's motion for summary judgment be granted.
In addition, and also dispositive, the letter itself is inadmissible as evidence and thus cannot be considered by this court in evaluating the summary judgment motion. Rule 56 indicates that a trial judge should decide a summary judgment motion based on “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” . . . and “by examining the pleadings and the evidence before it and by interrogating counsel.” . . . It is settled law that the judge may consider only these specific materials or other evidence that would be admissible at trial.
Id. at 41 (Bork, J., dissenting) (internal citations omitted). As the debate between Judge Starr and Judge Bork shows, the Supreme Court’s decision in Celotex spoke only to whether the moving party met its burden in its motion for summary judgment; the case did not constitute the final word as to when summary judgment is appropriate.