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    THE JUDGE S ROLE AS GATEKEEPER: RESPONSIBILITIES & POWERS CHAPTER TWO Summary Judgment and Judicial Gatekeeping by James D. Walsh, Christopher T. Newkirk, and
    Message 1 of 1 , Sep 3, 2003

      Summary Judgment and Judicial Gatekeeping

      by James D. Walsh, Christopher T. Newkirk, and Eric D. Brown -
      Harvard Law School '99

      Judicial gatekeeping becomes possible only if the judge is
      given final say on a matter. And while today we take it for granted
      that judges decide questions of law, it was not until the 1840 case
      of Games v. Dunn that the U.S. Supreme Court barred a jury from
      trumping a judge on matters of law.(1) In that case, the Court
      declared, "When a matter of law is given by the court to the jury,
      it should be considered conclusive."(2) Thus, the distinction
      between questions of law and questions of fact assumed a new
      importance. By declaring a pending issue a question of law, a judge
      now held the power to decide that issue without regard to the jury.
      This was the critical first step in the development of summary
      judgment and the power to dispose of an entire case from the bench.

      The Precursor to Summary Judgment: Directed Verdict
      In Parks v. Ross (1850)(3), the Supreme Court asserted the
      judge's role as arbiter of evidentiary sufficiency by forbidding
      jurors to accept the validity of a material fact unsupported by
      evidence. Thus, if there were no evidence to support a fact central
      to the plaintiff's case, the judge could instruct the jury to find
      for the defendant.(4) The Court held that this taking of the case
      from the jury was not a violation of the Constitutional right to a
      jury trial. Proponents of the directed verdict maintained that the
      right to a jury trial did not include the right to have a jury
      determine matters of law. Thus, if the evidence evinces no issue of
      fact, a plaintiff has no right to a jury decision.(5)

      Enter Summary Judgment
      Both Rule 50 and Rule 56 of the Federal Rules of Civil
      Procedure invite the court to make the same determination: that
      there is no genuine issue of material fact and that the moving party
      is entitled to judgment as a matter of law. Historically, courts
      have demonstrated a willingness to direct a verdict for the
      defendant when the plaintiff's evidence at trial is insufficient to
      sustain the plaintiff's claim. However, prior to the mid-1980s, the
      use of summary judgment was relatively rare. This limited use may
      well have reflected hesitancy regarding the timing of a motion,
      which, if granted, would deny the nonmovant an opportunity to
      present its case.

      Though the widespread use of summary judgments is a recent
      development, the first instance of modern summary judgment procedure
      appears in England's 1855 Summary Procedure on Bills and Exchange
      Act, which sanctioned limited use of the procedure to reduce expense
      resulting from frivolous defenses. The Judicature Act of 1873
      widely extended the accepted use; nonetheless, the procedure still
      remained available only to plaintiffs (creditors) seeking to collect

      Before the advent of summary judgment procedure in this
      country, a trial was the only means available of obtaining a legal
      judgment. Crowded dockets led to agitation for summary procedure
      reform in the federal system as early as the 1880s while
      concurrently, several states passed statutes modeled on the English
      rule. These statutes, like the English model, were limited to
      plaintiffs' use in cases with documentary evidence, and the
      procedure was invoked sparingly.(7)

      In 1929, Professors Clark and Samenow published the seminal
      article The Summary Judgment advocating an expanded use of the
      procedure as a remedy for overburdened dockets.(8) They decried
      judicial hostility to applying the procedure beyond the realm of
      debt cases and predicted the coming of a more vital tool.

      The procedural reform movement culminated in the 1934 Rules
      Enabling Act; Rule 56 was subsequently drafted as an invitation to
      judicial gatekeeping. The new rule allowed defendants as well as
      plaintiffs to move for summary judgment and extended the procedure
      to all cases. In addition, Rule 56 required more than an affidavit
      declaring the grounds for opposition.(9) Rule 56 went into effect on
      September 16, 1938.

      In spite of the new rule, judicial caution remained a nearly
      hegemonic approach, likely the result of an otherwise
      laudable "institutional concern with preserving parties'
      rights."(10) As recently as 1975, the Second Circuit noted that
      summary judgment "is a drastic device since its prophylactic
      function, when exercised, cuts off a party's right to present his
      case to a jury."(11)

      With the call for a more "managerial" bench in the 1960s,
      summary judgment was briefly seen as a potentially powerful tool for
      disposing of issues and simplifying complex litigation. Yet, the
      Supreme Court quashed this hope in 1962, holding that "summary
      procedures should be used sparingly in complex antitrust litigation
      where motive and intent play leading roles, the proof is largely in
      the hands of the conspirators, and hostile witnesses thicken the

      In 1970, in Adickes v. S.H. Kress & Co., the Court continued
      its cautious approach to summary judgment.(13) The Adickes Court
      reversed the lower court's grant of summary judgment, holding that
      the defendant-movant had not met its burden of affirmatively
      refuting an essential element of the plaintiff's case. The plaintiff
      accused the defendant store of conspiring with the police to arrest
      her, alleging as part of her theory that an officer was in the store
      at the same time. Because the defendant, upon moving for summary
      judgment, was unable to establish that there were no officers in the
      store, the Court held that a jury might infer a conspiracy.(14) By
      holding that the nonmovant was not bound to respond when the movant
      failed to meet its initial burden, the Court maintained the systemic
      hostility toward summary judgment.

      Questions on the exact procedure called for under Rule 56
      likely contributed to judicial aversion to summary judgment. Who
      bore what burdens, and when? What was a "genuine issue" or
      a "material fact"? Ambiguities in the rule, restrictive
      interpretations, and institutional presumptions favoring jury trials
      combined to leave summary judgment regarded, in Chief Justice
      Rehnquist's words, "as a disfavored procedural shortcut" fifty years
      after its initial passage.(15)

      The sea change came in 1986 when the Supreme Court issued three
      decisions (the so-called trilogy) restructuring the burdens of
      plaintiffs and defendants in the summary judgment process.(16) The
      Court equated the standard for granting summary judgment with the
      directed verdict standard of FRCP 50(a). This meant that the
      governing standard for burden of persuasion applied at the summary
      judgment stage, requiring the plaintiff to proffer affirmative
      evidence to defeat the defendant's motion for summary judgment, and
      suggesting that the court assess the plaintiff's chance of
      prevailing at trial. The three cases redefined the Court's view of
      the value of summary judgment; a procedure, which Rehnquist said,
      should be seen as "an integral part of the Federal Rules as a whole,
      which [is] designed 'to secure the just, speedy, and inexpensive
      determination of every action.'"(17)In calling for expanded use of
      summary judgment, the Court effectively reversed the procedure's
      original intent. In the nineteenth century, summary procedure was
      created to dispose efficiently of frivolous defenses; in the mid-
      1980s summary judgment evolved into a powerful tool for the defense.

      The Celotex court held that a defendant-movant who does not
      bear the burden at trail, could meet its initial burden merely by
      pointing to the absence of evidence to support some essential
      element of the plaintiff's claim. This decision comes as an apparent
      contradiction to the Adickes notion that a movant must negate an
      essential element of the non-movant's case.(18) Celotex sought
      summary judgment, asserting that the plaintiff had not produced
      evidence to establish that her deceased husband had been harmed by
      exposure to Celotex's asbestos products. Though the Court found that
      summary judgment was appropriate in this case, Celotex does not
      stand for the notion that one-line, conclusory summary judgment
      motions are sufficient.(19) Just what that initial burden is remains
      a question after Celotex.(20)

      In Clark v. Coats & Clark, Inc.,(21) the Eleventh Circuit
      attempted to reconcile Adickes and Celotex. Rather than viewing the
      Supreme Court's holding in these cases to be in opposition, the
      Eleventh Circuit interpreted Celotex to provide another means by
      which a movant might meet its initial summary judgment burden where
      it does not have the ultimate burden of proof at trial. The Clark
      court recognized that such an alternative is necessary in the
      unusual event that neither party could prove either the affirmative
      or the negative of an essential element of the claim. Celotex could
      not negate the plaintiff's claim that the decedent had been exposed
      to Celotex's asbestos products just as the plaintiff could not
      affirm it. Thus, summary judgment remains a viable option in those
      unusual cases in which a defendant cannot meet the Adickes standard
      of disproving essential elements.(22)

      Summary Judgment and Circumstantial Evidence
      A summary judgment motion by the defense raises a difficult
      question in circumstantial evidence cases. Though the Rule 56
      standard is similar to the Rule 50 standard, some state courts have
      rejected the notion that they are identical with respect to
      circumstantial evidence. The Minnesota Court of Appeals has
      stated, "Where the evidence is circumstantial and sustains two or
      more inconsistent inferences with equal weight, a directed verdict
      may be appropriate (because the burden of proof had not been
      sustained and a contrary verdict would be based on speculation), but
      a summary judgment would not be."(23)

      Compare the above with Matsushita, in which the U.S. Supreme
      Court willingly characterized one inference of the circumstantial
      evidence as "implausible" (in spite of five experts' testimony to
      the contrary) and sustained summary judgment for the defendant.
      Plaintiff Zenith alleged a predatory pricing conspiracy on the part
      of 24 Japanese companies over a period of 30 years. Zenith proffered
      evidence of numerous parallel actions by the defendants, from which
      it argued a jury could infer a conspiracy. The district court
      granted the defendants summary judgment, deeming the plaintiff's
      theory unreasonable. The appellate court reversed as to 21
      defendants, holding that Zenith had sufficient evidence to allow a
      jury to draw an inference of conspiracy. The Supreme Court reversed
      this ruling, relying heavily on numerous economics articles arguing
      that predatory pricing schemes are rarely successful. Based on this
      information, the Court concluded the defendants had "no rational
      economic motive to conspire."(24)

      The Court further stated that even if an inference of
      conspiracy had been plausible, the defendant's conduct
      was "consistent with other, equally plausible explanations" and that
      alone was enough to sustain a summary judgment for the defendants.
      (25) That is, if the judge determines that circumstantial evidence
      places two inferences in equipoise, summary judgment for the
      defendant is appropriate unless the plaintiff produces more

      This is only one possible reading of Matsushita, and by no
      means has it carried the day. For example, this circumstantial
      evidence rule may be limited to antitrust cases. In any event, this
      broad reading of Matsushita echoes the long discredited (but never
      overruled) "equal inferences" directed verdict rule of the 1933 case
      of Pennsylvania R.R. v. Chamberlain.(26) At least at the federal
      level, the convergence of Rule 56 standards with those of Rule 50
      seems complete in circumstantial evidence cases. At the state level,
      the situation remains murky.

      Summary Judgment as Gatekeeping
      Summary judgment is in essence a gatekeeping tool of the
      judiciary: it allows judges to filter out cases that do not merit
      (or would not benefit from) consideration by a jury. Judges and
      lawyers have struggled with the application of summary judgment just
      as courtroom actors are beginning to wrangle with judicial
      gatekeeping regarding expert testimony. The questions treated above
      concerning summary judgment, such as burden of proof, choosing a
      standard for making determinations, and the appropriateness of
      judicial intervention, are all issues that arise in the context of
      Daubert gatekeeping as well.

      Summary Judgment and Admissibility Rulings
      A judge's decision whether or not to admit expert opinion aimed
      at showing causation is often intertwined with summary judgment
      proceedings. Is one opinion admitted to prove causation, is that
      automatically enough to carry the case to the jury? Or can a judge
      still make a summary judgment ruling by considering the whole body
      of evidence and determining that no reasonable jury could rely on
      the long opinion as a foundation for a decision? If there is more
      than one opinion admitted does a trial judge have any power to weigh
      conflicting admissible opinions? The nexus of admissibility rulings
      and summary judgment can be quite complex; for example, what if a
      judge chooses to characterize an admissible opinion as
      a "scintilla," and what exactly does this vague quantum of
      measurement mean?

      In a Daubert gatekeeping context summary judgment can come into
      play in three major ways:

      (1) A trial judge decides that no opinions offered to show causation
      are admissible. Summary judgment follows as a matter of course.
      (2) A judge finds one expert opinion to be reliable, but there is an
      incomplete "fit," such that the opinion does not carry to the
      ultimate issue. In the absence of other evidence, the judge rules on
      a summary judgment motion based on failure to establish causation.

      (3) A judge admits one expert opinion that passes the reliability
      and "fit" prongs of the Daubert test. Is this lone opinion enough to
      carry the case to the jury? Can the trial judge consider the full
      spectrum of opinions and weigh the power of the admitted opinion? If
      the judge finds that the lone opinion would be an insufficient
      foundation for a jury finding, can she throw out the case on summary

      As the standards and application of both summary judgment
      rulings and expert opinion gatekeeping are redefined and refined by
      higher courts, the bonds that connect summary judgment rulings and
      Daubert gatekeeping will shift and settle. For now, judges must
      navigate the relatively uncharted waters of admissibility rulings
      before reaching the as yet murky depths of summary judgment


      1. 14 Pet. (39 U.S.) 322, 326 (1840), as cited in William Wirt
      Blume, Origin and Development of the Directed Verdict, 48 Mich. L.
      Rev. 555, 570 (1950).
      2. Id.
      3. 11 How. (52 U.S.) 361, 372-373, as cited in Blume, supra note 1,
      at 570.
      4. Id. at 571.
      5. Id. at 573-574.
      6. William W. Schwarzer, Alan Hirsch, and David J Barrrans, The
      Analysis and Decision of Summary Judgment Motions: A Monograph on
      Rule 56 of the Federal Rules of Civil Procedure, 139 F.R.D. 441, 446
      7. Id.
      8. 38 Yale L.J. 423 (1929).
      9. The 1963 amendment to Rule 56(e) made explicit that the party
      opposing summary judgment could not simply rely on the pleadings.
      10. Schwarzer et al., supra note 6, at 448.
      11. Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d
      Cir. 1975) (as cited in Schwarzer et al., supra note 6, at 448).
      12. Poller v. CBS, 368 U.S. 464, 473 (1962).
      13. 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
      14. James V. Chin, Clark v. Coats & Clark, Inc.: The Eleventh
      Circuit Clarifies the Initial Burden in a Motion for Summary
      Judgment, 26 Ga. L. Rev. 1009, 1011 (1992).
      15. Celotex v. Catrett, 477 U.S. 317, 327 (1986).
      16. Matsushita v. Zenith, 475 U.S. 574 (1986); Anderson v. Liberty
      Lobby, 477 U.S. 242 (1986); and Celotex, 477 U.S. 317.
      17. 477 U.S. at 327 citing FRCP 1.
      18. Melissa L. Nelken, One Step Forward, Two Steps Back: Summary
      Judgment After Celotex, 40 Hastings L. J. 53, 71-72 (1988).
      19. 477 U.S. at 328 (White, J., concurring).
      20. Nelken, supra note 18, at 62-63.
      21. 865 F.2d 1237 (11th Cir. 1989).
      22. Chin, supra note 12, at 1022, 1023. The Fifth circuit has
      endorsed the Clark interpretation of the rules governing summary
      judgment. See Russ v. Int'l Paper Co., 943 F.2d 589 (5th Cir. 1991).
      23. Howie v. Thomas, 514 N.W.2d 822, 825 (Minn. Ct. App. 1994)
      (citing Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 68 (1985)).
      24. 475 U.S. at 596.
      25. Id. at 596-597.
      26. Pennsylvania R.R. v Chamberlain, 288 U.S. 333 (1933), stood for
      the principle that if evidence equally supported opposing inferences
      and a verdict for the plaintiff would be the result of jury
      speculation, then a directed verdict may be appropriate. The holding
      was complicated by the Supreme Court's consideration of the
      reliability of a witness for the plaintiff.

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