Hearsay evidence that is inadmissible at trial cannot be considered when ruling on a motion for summary judgment.
Plaintiffs filed a negligence and breach of implied warranty action alleging that a medication caused a minor to develop toxic epidermal necrolysis. The defendants moved for summary judgment, and the district court granted the motions. On appeal, the court addressed whether the plaintiffs' interrogatory answers, which described anticipated expert testimony regarding causation, were sufficient to create a genuine issue of material fact. The court held that hearsay evidence inadmissible at trial cannot be considered on a motion for summary judgment. Because the plaintiffs' responses were mere descriptions of what an expert might testify rather than verified statements based on personal knowledge, they lacked probative force. The court affirmed the grant of summary judgment.
At page 50 Excluding inadmissible hearsay from summary judgment analysis719 citing cases“to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”
- Johnson v. City of Biddeford Police Dep't, No. 2:17-cv-00264 (D. Me. Mar. 30, 2023).(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Ortiz-Nieves v. Bernhardt, No. 3:19-cv-02085 (D.P.R. Sept. 28, 2022).(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Vega-Martinez v. Hosp. San Antonio, Inc., No. 3:18-cv-01055 (D.P.R. Sept. 28, 2022). (Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Fernando v. Fed. Ins. Co., No. 1:18-cv-10504, 2022 U.S. Dist. LEXIS 44315 (D. Mass. Mar. 14, 2022).(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Papkee v. Mecap LLC, No. 2:20-cv-00006 (D. Me. Feb. 18, 2022).(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Puig Martinez v. Novo Nordisk Inc., 992 F.3d 12 (1st Cir. 2021).published(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- MIT Fed. Credit Union v. Cordisco, No. 1:19-cv-11297 (D. Mass. Dec. 10, 2020). (Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment)
- Unibank for Sav. v. 999 Private Jet, LLC, No. 4:18-cv-40134 (D. Mass. Sept. 12, 2019).(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Rivera-Rivera v. Medina & Medina, Inc., 229 F. Supp. 3d 117 (D.P.R. 2017).published(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment)
- Goldstein v. Brigham & Women's Faulkner Hosp., Inc., 80 F. Supp. 3d 317 (D. Mass. 2015).published (Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
Show 196 more citing cases
- Brauchitsch-Monedero v. Puerto Rico Elec. Power Auth., 786 F. Supp. 2d 470 (D.P.R. 2011).published(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Rivot-Sanchez v. Warner Chilcott Co., Inc., 707 F. Supp. 2d 234 (D.P.R. 2010).published(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Reeder v. Harper, 788 N.E.2d 1236 (Ind. 2003).published (Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Teamcare Infusion Orlando, Inc. v. Humana Health Plans of Puerto Rico, Inc., 296 F. Supp. 3d 429 (2017).published(Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.)
- Collins-Huxtable, No. 1:24-cv-00159 (D.R.I. Sept. 18, 2026).“to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial”
- Zoryan Inst. for Contemporary Armenian Rsch. & Docum v. Fox Point Pictures, LLC; Theodore J. Bogosian; & Does 1-50, No. 1:24-cv-00109 (D.R.I. Sept. 16, 2026).STANDARD OF REVIEW The role of summary judgment is “to pierce the pleadings and to assess the proof to see whether there is a genuine need for trial.” , 950 F.2d 816, 822 (1st Cir. 1991) (quoting , 895 F.2d 46, 50 (1st Cir. 1990)).
- Whalen, No. 1:24-cv-00347 (D.R.I. Sept. 4, 2026).“to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial”
- Colombani, No. 3:24-cv-01528 (D.P.R. Aug. 27, 2026). Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Garside v. 23 Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Zoryan Inst. for Contemporary Armenian Rsch. & Docum v. Fox Point Pictures, LLC; Theodore J. Bogosian; & Does 1-50, No. 1:24-cv-00109 (D.R.I. Aug. 14, 2026).STANDARD OF REVIEW The role of summary judgment is “to pierce the pleadings and to assess the proof to see whether there is a genuine need for trial.” , 950 F.2d 816, 822 (1st Cir. 1991) (quoting , 895 F.2d 46, 50 (1st Cir. 1990)).
- U.S. Equal Emp. Opportunity Comm'n v. Atl. Prop. Mgmt. Corp. & Diversified Funding, Inc., No. 1:24-cv-10370 (D. Mass. Aug. 7, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Cruickshank, No. 1:20-cv-10196 (D. Mass. Aug. 6, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Farahani, No. 1:25-cv-13285 (D. Mass. Aug. 6, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Amica Mut. Ins. Co. v. Broan-NuTone LLC, No. 1:24-cv-00229 (D.R.I. May 27, 2026).“to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial”
- Maquet Cardiovascular LLC v. Abiomed, Inc., Abiomed R&D, Inc., & Abiomed Eur. GmbH, No. 1:17-cv-12311 (D. Mass. May 1, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Est. of Kuebler v. Kansas Vill. at Old Town, No. 128715 (Kan. Ct. App. Apr. 3, 2026).publishedYoung does not contend that her statements are not hearsay or that Freye's statements to her are not hearsay or that any exception to the hearsay rule applies. "[H]earsay testimony that would be inadmissible at trial may not be included in…
- Kerrissey, No. 1:21-cv-11277 (D. Mass. Mar. 31, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Lola’s Rendezvous, Inc. f/k/a Silhouettes; Miami Emp. Inc.; The Pink Bldg., Inc.; Steven Medeiros; & Shay DiPina v. Providence Police Dep't; The City of Providence; & Providence Bd. of Licenses, No. 1:22-cv-00416 (D.R.I. Mar. 30, 2026).“Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment”
- Glassie, No. 1:20-cv-00493 (D.R.I. Mar. 27, 2026).“to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial”
- Pressman, No. 1:24-cv-12885 (D. Mass. Mar. 27, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- Merritt, No. 1:23-cv-00509 (D.R.I. Mar. 20, 2026).STANDARD OF REVIEW The role of summary judgment is “to pierce the pleadings and to assess the proof to see whether there is a genuine need for trial.” , 950 F.2d 816, 822 (1st Cir. 1991) (quoting , 895 F.2d 46, 50 (1st Cir. 1990)).
- Hughes, No. 1:23-cv-10361 (D. Mass. Feb. 3, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
- J.S.H. v. Newton, 164 F.4th 142 (1st Cir. 2026).publishedWe are mindful that the role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Burt v. Bd. of Trs. of Univ. of R.I., 84 F.4th 42, 59 (1st Cir. 2023) (quoting…
- Foss, No. 4:20-cv-40057 (D. Mass. Jan. 6, 2026).Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
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- Lan Global, Inc. v. Alchemy Telco Solutions US, LLC, No. 1:22-cv-11732 (D. Mass. Sept. 26, 2024).
- Doelger v. JPMorgan Chase Bank, N.A., No. 1:21-cv-11042 (D. Mass. Sept. 27, 2024).
- Pimentel v. Amguard Ins. Co., No. 1:23-cv-11005 (D. Mass. Oct. 23, 2024).
- Insulet Corp. v. EOFlow, Co. Ltd., No. 1:23-cv-11780, 2024 WL 4635197 (D. Mass. Oct. 31, 2024).
- Durham v. City of Charlotte, No. 3:21-cv-00638 (W.D.N.C. Sept. 24, 2024).
- Benitez-Pons v. Fideicomiso de Conservacion de Puerto Rico, No. 3:22-cv-01256 (D.P.R. Mar. 26, 2024).
- Jiang v. Kobe Japanese Steakhouse, Inc., No. 1:22-cv-11867, 2024 WL 4872395 (D. Mass. Nov. 22, 2024).
- Buchanan v. Massachusetts Dep't of Corr., No. 1:23-cv-10192 (D. Mass. Dec. 23, 2024).
- Genesett Corp. v. Sun Life Assurance Co. of Canada, No. 1:23-cv-12276 (D. Mass. Feb. 28, 2025).
- Seeger v. Marshalls of MA, Inc., No. 1:23-cv-00314 (D.R.I. Mar. 17, 2025).
- Wright v. DeMoura, No. 1:21-cv-11428 (D. Mass. Mar. 27, 2025).
- Warren v. Zapata Computing, Inc., No. 1:23-cv-13197 (D. Mass. June 2, 2025).
- Nakanwagi v. Exec. Off. of the Trial Court, No. 1:23-cv-10533 (D. Mass. June 6, 2025).
- Watts v. Liberty Mut. Pers. Ins. Co., No. 1:23-cv-12845 (D. Mass. July 30, 2025).
- The Est. of Sarah Howard v. Select Portfolio Servicing, Inc., No. 1:24-cv-10859 (D. Mass. Aug. 1, 2025).
- MSP Recovery Claims, Series LLC v. Massachusetts Bay Ins. Co., No. 4:22-cv-40087 (D. Mass. Aug. 14, 2025).
- Allen v. Fuller, No. 1:23-cv-10549 (D. Mass. Aug. 20, 2025).
- Trasco Wellness, LLC v. Tampa Bay Spine & Sports Med., LLC, No. 8:23-cv-02536 (M.D. Fla. Sept. 15, 2025).
- Caban-Lopez v. Cortes-Feliciano, No. 3:22-cv-01220 (D.P.R. Sept. 30, 2025).
- Sparta Ins. Co. v. Pennsylvania Gen. Ins. Co., No. 1:21-cv-11205 (D. Mass. Sept. 30, 2025).
- Trs. of Dennis Pines Condo. Trust of Dennis v. Patten, No. 1:24-cv-10808 (D. Mass. Oct. 3, 2025).
- Wilcox Excavation & Dev. LLC d/b/a We Dig Dev. & We Dig Excavation & We Dig Indus. v. DiGregorio, Inc.; & We Dig Investments, LLC, No. 1:23-cv-00543 (D.R.I. Oct. 14, 2025).
- Nshimiyimana, No. 1:23-cv-00238 (D.R.I. Oct. 16, 2025).
- Diaz, No. 1:20-cv-12159 (D. Mass. Oct. 23, 2025).
- Jairo Renato Castro Rivera v. SharkNinja Operating LLC, No. 1:24-cv-11119 (D. Mass. Oct. 31, 2025).
At page 48 Defining genuine issues for summary judgment motions572 citing cases“at least one fact issue which is both 'genuine' and 'material.”
- Vega-Martinez v. Hosp. San Antonio, Inc., No. 3:18-cv-01055 (D.P.R. Sept. 28, 2022). Orssleff’s EFTF, 246 F.3d 32, 33 (1st Cir. 2001)(finding that, where a party fails to buttress factual issues with proper record citations, judgment against that party may be appropriate); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st C…
- Rathbun v. Autozone, Inc., 361 F.3d 62 (1st Cir. 2004).published (On issues where the non-movants bear the burden of proof ... they must reliably demonstrate that specific facts sufficient to create an authentic dispute exist.)
- Foraste v. Brown Univ., 248 F. Supp. 2d 71 (D.R.I. 2003).published (a ‘genuine’ issue exists if there is ‘sufficient evidence supporting the claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the truth at trial.’)
- United States v. Davis, 1 F. Supp. 2d 125 (D.R.I. 1998).published ([A] ‘genuine issue’ exists if there is ‘sufficient evidence supporting this claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the truth at trial.’)
- Fritz ex rel. Schneidereit v. May Dep't Stores Co., 866 F. Supp. 66 (D.R.I. 1994).published ([A] ‘genuine issue’ exists if there is ‘sufficient evidence supporting this claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the ‘truth at trial.’)
- Giamo v. Cong. Motor Inn, Corp., 847 F. Supp. 4 (D.R.I. 1994).published ([A] ‘genuine issue’ exists if there is ‘sufficient evidence supporting this claimed factual dispute’ to require a choice between ‘the parties’ differing versions of the truth at trial.’)
- Escher, No. 1:25-cv-10389 (D. Mass. Aug. 21, 2026). Co. v. Barracuda Networks, Inc., 160 F.4th 1 , 8 (1st Cir. 2025) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)).
- Qualls, No. 1:23-cv-10435 (D. Mass. Mar. 31, 2026).A fact is “material” if it “need[s] to be resolved before the related legal issues can be decided.” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (alteration in original) (quoting Mack v. Great Atl. & Pac.
- Axis Ins. Co. v. Barracuda Networks, Inc., 160 F.4th 1 (1st Cir. 2025).publishedA "genuine" issue exists only if there is "sufficient evidence supporting the claimed factual dispute" to require a choice between "the parties' differing versions of the truth at - 12 - trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 48…
- Ahern v. Shinseki, 629 F.3d 49 (1st Cir. 2010).published
Show 190 more citing cases
- Zayas v. Bacardi Corp., 524 F.3d 65 (1st Cir. 2008).published
- Foote v. Town of Bedford, 642 F.3d 80 (1st Cir. 2011).published
- Hannon v. Beard, 645 F.3d 45 (1st Cir. 2011).published
- Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139 (1st Cir. 2012).published
- Nieves-Romero v. United States, 715 F.3d 375 (1st Cir. 2013).published
- Morales v. Sociedad Española De Auxilio Mutuo Y Beneficencia, 524 F.3d 54 (1st Cir. 2008).published
- Vineberg v. Bissonnette, 548 F.3d 50 (1st Cir. 2008).published
- Castro-Medina v. Procter & Gamble Com. Co., 565 F. Supp. 2d 343 (D.P.R. 2008).published
- Access Cardiosystems, Inc. v. Fincke (In Re Access Cardiosystems, Inc.), 438 B.R. 16 (Bankr. D. Mass. 2010).published
- Rodriguez-Robles v. Pfizer Pharm., LLC, 561 F. Supp. 2d 180 (D.P.R. 2008).published
- Rivera Maldonado v. Hosp. Alejandro Otero Lopez, 614 F. Supp. 2d 181 (D.P.R. 2009).published
- Huongsten Prod. Imp. & Exp. Co. v. Sanco Metals LLC, 810 F. Supp. 2d 418 (D.P.R. 2011).published
- Romero-Perez v. U.S. Dep't of Just., 780 F. Supp. 2d 162 (D.P.R. 2011).published
- Gutierrez v. Toledo, 780 F. Supp. 2d 171 (D.P.R. 2011).published
- Alberti v. Univ. of Puerto Rico, 818 F. Supp. 2d 452 (D.P.R. 2011).published
- Febus-Rodriguez v. QUESTELL-ALVARADO, 660 F. Supp. 2d 157 (D.P.R. 2009).published
- STEFANIK v. Town of Huntington, 536 F. Supp. 2d 106 (D. Mass. 2008).published
- Cardona v. Potter, 536 F. Supp. 2d 172 (D.P.R. 2008).published
- Figueroa-Flores v. Acevedo-Vila, 606 F. Supp. 2d 212 (D.P.R. 2009).published
- Ramos-Echevarría v. Pichis, Inc., 698 F. Supp. 2d 262 (D.P.R. 2010).published
- Pramco Cv 9, LLC v. Pesquera-Sanchez, 669 F. Supp. 2d 209 (D.P.R. 2009).published
- Méndez-Aponte v. Puerto Rico, 656 F. Supp. 2d 277 (D.P.R. 2009).published
- Sanchez v. Davila, 648 F. Supp. 2d 250 (D.P.R. 2009).published
- Rosa v. Hosp. Auxilio Mutuo De Puerto Rico, Inc., 620 F. Supp. 2d 239 (D.P.R. 2009).published
- Kane v. Autogermana, Inc., 620 F. Supp. 2d 271 (D.P.R. 2009).published
- Acevedo-Padilla v. Novartis Ex Lax, Inc., 740 F. Supp. 2d 293 (D.P.R. 2010).published
- Duchesne v. Banco Popular De Puerto Rico, Inc., 742 F. Supp. 2d 201 (D.P.R. 2010).published
- Marrero-Saez v. Mun. of Aibonito, 756 F. Supp. 2d 215 (D.P.R. 2011).published
- Carrelo v. Advanced Neuromodulation Sys., Inc., 777 F. Supp. 2d 303 (D.P.R. 2011).published
- Ciampi v. Zuczek Ex Rel. Town of Westerly, 598 F. Supp. 2d 257 (D.R.I. 2009).published
- Feliciano v. Diaz, 641 F. Supp. 2d 120 (D.P.R. 2009).published
- Martinez v. Puerto Rico, 641 F. Supp. 2d 123 (D.P.R. 2009).published
- Lugo v. Avon Prods., Inc., 777 F. Supp. 2d 275 (D.P.R. 2011).published
- Vazquez v. Mun. of Juncos, 756 F. Supp. 2d 154 (D.P.R. 2010).published
- Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d 487 (D. Mass. 2008).published
- Cachola-Bonilla v. Wyndham El Conquistador Resort & Country Club, 577 F. Supp. 2d 566 (D.P.R. 2008).published
- Maldonado-Ortiz v. Lexus De San Juan, 775 F. Supp. 2d 389 (D.P.R. 2011).published
- Gilroy v. Kasper, 654 F. Supp. 2d 44 (D.N.H. 2009).published
- Perez Cordero v. Wal-mart Pr, Inc., 646 F. Supp. 2d 214 (D.P.R. 2009).published
- Candelario Del Moral v. UBS Fin. Servs. Inc., 691 F. Supp. 2d 291 (D.P.R. 2010).published
- Fedelich v. Am. Airlines, 724 F. Supp. 2d 274 (D.P.R. 2010).published
- Mojica v. El Conquistador Resort & Golden Door Spa, 714 F. Supp. 2d 241 (D.P.R. 2010).published
- Sterling Merchandising, Inc. v. Nestle, S.A., 724 F. Supp. 2d 245 (D.P.R. 2010).published
- Lopez & Medina Corp. v. Marsh USA, Inc., 694 F. Supp. 2d 119 (D.P.R. 2010).published
- Maldonado v. Cooperativa De Ahorro, 685 F. Supp. 2d 264 (D.P.R. 2010).published
- Wetherell v. Hosp. Interamericano De Medicina Avanzada, Inc., 609 F. Supp. 2d 186 (D.P.R. 2009).published
- Escribano-Reyes v. Prof'l HEPA Certificate Corp., 817 F.3d 380 (1st Cir. 2016).published
- Feliciano-Munoz v. Rebarber-Ocasio, 970 F.3d 53 (1st Cir. 2020).published
- Ashe v. Distribuidora Norma, Inc., 7 F. Supp. 3d 134 (D.P.R. 2014).published
- United States v. 323 \Quintales\" of Green Coffee Beans", 21 F. Supp. 3d 122 (D.P.R. 2013).published
- Polak v. Riverside Marine Constr., Inc., 22 F. Supp. 3d 109 (D. Mass. 2014).published
- Kimmel & Silverman, P.C. v. Porro, 53 F. Supp. 3d 325 (D. Mass. 2014).published
- Tian v. Aspen Tech., Inc., 53 F. Supp. 3d 345 (D. Mass. 2014).published
- Williams v. City of Brockton, 59 F. Supp. 3d 228 (D. Mass. 2014).published
- Meagher v. Andover Sch. Comm., 94 F. Supp. 3d 21 (D. Mass. 2015).published
- Arraj v. United States, 95 F. Supp. 3d 150 (D. Mass. 2015).published
- Morales v. Venegas Constr. Corp., 99 F. Supp. 3d 238 (D.P.R. 2015).published
- Cosme-Perez v. Mun. of Juana Diaz, 110 F. Supp. 3d 357 (D.P.R. 2015).published
- Suero v. Fed. Home Loan Mortg. Corp., 123 F. Supp. 3d 162 (D. Mass. 2015).published
- Nanje v. Chavez, 134 F. Supp. 3d 544 (D. Mass. 2015).published
- Williams v. City of Brockton, 146 F. Supp. 3d 290 (D. Mass. 2015).published
- García-Matos v. Bhatia-Gautier, 156 F. Supp. 3d 245 (D.P.R. 2016).published
- Diaz-Morales v. Rubio-Paredes, 170 F. Supp. 3d 276 (D.P.R. 2016).published
- Niles v. Town of Wakefield, 172 F. Supp. 3d 429 (D. Mass. 2016).published
- Merisier v. Ellender, 197 F. Supp. 3d 310 (D. Mass. 2016).published
- Fed. Deposit Ins. Corp. v. Arrillaga-Torréns, 212 F. Supp. 3d 312 (D.P.R. 2016).published
- Liu v. Boehringer Ingelheim Pharm., Inc., 230 F. Supp. 3d 3 (D. Mass. 2017).published
- Padro Octaviani v. GlaxoSmithKline Consum. Healthcare, 239 F. Supp. 3d 398 (D.P.R. 2017).published
- Potvin v. Speedway LLC, 264 F. Supp. 3d 337 (D. Mass. 2017).published
- Aluma Constr. Corp. v. Puerto Rico Ports Auth., 265 F. Supp. 3d 158 (D.P.R. 2017).published
- Thomas v. Town of Salisbury, 277 F. Supp. 3d 161 (D. Mass. 2017).published
- Pirinate Consulting Grp., LLC v. Avoca Bement Corp. (In re Newpage Corp.), 517 B.R. 508 (Bankr. D. Del. 2014).published
- González-Droz v. González-Colón, 717 F. Supp. 2d 196 (D.P.R. 2010).published
- Carr v. Puerto Rico Ports Auth., 806 F. Supp. 2d 494 (D.P.R. 2011).published
- Thomas Diaz, Inc. v. Colombina, S.A., 831 F. Supp. 2d 528 (D.P.R. 2011).published
- Titus v. Town of Nantucket, 840 F. Supp. 2d 404 (D. Mass. 2011).published
- García v. Sprint PCS Caribe, 841 F. Supp. 2d 538 (D.P.R. 2012).published
- Pinero v. United States, 844 F. Supp. 2d 232 (D.P.R. 2012).published
- Rodriguez-Machado v. Dep't of Vets. Affairs, 845 F. Supp. 2d 429 (D.P.R. 2012).published
- Navedo v. Nalco Chem., Inc., 848 F. Supp. 2d 171 (D.P.R. 2012).published
- Mendez-Martinez v. Caribbean All. Ins., 851 F. Supp. 2d 336 (D.P.R. 2012).published
- Reyes-Reyes v. Toledo-Davila, 860 F. Supp. 2d 152 (D.P.R. 2012).published
- United States v. 434 Main Street, 862 F. Supp. 2d 24 (D. Mass. 2012).published
- Robinson v. Cook, 863 F. Supp. 2d 49 (D. Mass. 2012).published
- Puerto Rico Am. Ins. v. Burgos, 867 F. Supp. 2d 216 (D.P.R. 2011).published
- Sweat v. Grondolsky, 898 F. Supp. 2d 347 (D. Mass. 2012).published
- Gonzalez v. United States, 898 F. Supp. 2d 410 (D.P.R. 2012).published
- Hall v. Centro Cardiovascular De Puerto Rico Y Del Caribe, 899 F. Supp. 2d 106 (D.P.R. 2012).published
- Rodriguez-Fonseca v. Baxter Healthcare Corp., 899 F. Supp. 2d 141 (D.P.R. 2012).published
- Casco Sales Co. v. Maruyama U.S., Inc., 901 F. Supp. 2d 311 (D.P.R. 2012).published
- Neponset Landing Corp. v. Nw. Mut. Life Ins., 902 F. Supp. 2d 149 (D. Mass. 2012).published
- Massachusetts Prop. Ins. Underwriting v. LG Elec. U.S.A., Inc., 902 F. Supp. 2d 173 (D. Mass. 2012).published
- Mercado-Velilla v. Asociacion Hosp. Del Maestro, 902 F. Supp. 2d 217 (D.P.R. 2012).published
- Cortes v. Burset, 909 F. Supp. 2d 91 (D.P.R. 2012).published
- Patterson v. Novartis Pharm. Corp., 909 F. Supp. 2d 116 (D.R.I. 2012).published
- Gonzalez v. Hurley Int'l LLC, 920 F. Supp. 2d 243 (D.P.R. 2013).published
- Lopez-Cruz v. FPV & Galindez, PSC, 922 F. Supp. 2d 225 (D.P.R. 2013).published
- Speleos v. BAC Home Loans Servicing, L.P., 937 F. Supp. 2d 177 (D. Mass. 2013).published
- Rios v. Mun. of Guaynabo, 938 F. Supp. 2d 235 (D.P.R. 2013).published
- Maldonado-Rodriguez v. St. Luke's Mem'l Hosp., Inc., 940 F. Supp. 2d 30 (D.P.R. 2013).published
- Ortiz-Lebron v. United States, 945 F. Supp. 2d 261 (D.P.R. 2013).published
- Nationwide Book Indus., LLC v. A & S Booksellers, Inc., 950 F. Supp. 2d 264 (D. Mass. 2013).published
- Brown v. Massachusetts, 950 F. Supp. 2d 274 (D. Mass. 2013).published
- Bryan v. Wal-Mart Puerto Rico, Inc., 951 F. Supp. 2d 236 (D.P.R. 2013).published
- United States Fid. & Guar. Co. v. Cobian-Guzman, 961 F. Supp. 2d 375 (D.P.R. 2013).published
- Barbosa v. Conlon, 962 F. Supp. 2d 316 (D. Mass. 2013).published
- Corcino-Rodríguez v. State Ins. Fund, 965 F. Supp. 2d 187 (D.P.R. 2013).published
- Soto-Feliciano v. Villa Cofresi Hotels, Inc., 967 F. Supp. 2d 529 (D.P.R. 2013).published
- Cordell v. Howard, 972 F. Supp. 2d 101 (D. Mass. 2013).published
- Gonzalez v. Sears Holding Co., 980 F. Supp. 2d 170 (D.P.R. 2013).published
- Bridge Street Auto., Inc. v. Green Valley Oil, LLC, 985 F. Supp. 2d 96 (D. Mass. 2013).published
- Levine-Diaz v. Humana Health Care, 990 F. Supp. 2d 133 (D.P.R. 2014).published
- Fontanillas-Lopez v. Morel Bauza Cartagena & Dapena LLC, 995 F. Supp. 2d 21 (D.P.R. 2014).published
- David A. Casey & Joan Quinn Casey v. Mistral Condo. Ass'n, Inc.: Dolphin Developers, LLC Panhandle Getaways, 380 So. 3d 1278 (Fla. 1st DCA 2024).published
- Thomas v. Town of Salisbury, No. 1:14-cv-13726 (D. Mass. Jan. 3, 2018).
- Massacani v. Kelly Servs., Inc., No. 3:16-cv-30069, 2018 WL 443448 (D. Mass. Jan. 16, 2018).
- Tarbell v. Rocky's Ace Hardware, No. 1:15-cv-10033 (D. Mass. Mar. 20, 2018).
- Brettell v. Omron Sci. Tech., Inc., No. 1:14-cv-13936 (D. Mass. Mar. 27, 2018).
- Easthampton Congregational Church v. Church Mut. Ins. Co., No. 3:17-cv-30061 (D. Mass. May 10, 2018).
- McDonald v. City of Boston, No. 1:15-cv-11915 (D. Mass. Sept. 20, 2018).
- Bangura v. Dep't of Vet. Affairs, No. 1:16-cv-10614 (D. Mass. Sept. 26, 2018).
- Amirault v. City of Malden, No. 1:16-cv-10158 (D. Mass. Sept. 28, 2018).
- Formulatrix, Inc. v. Rigaku Automation, Inc., No. 1:15-cv-12725 (D. Mass. Nov. 1, 2018).
- Fraser v. Prudential Ins. Agency, LLC., No. 1:14-cv-14161 (D. Mass. Dec. 20, 2018).
- Kurtz v. Kripalu Ctr. for Yoga & Health, Inc., No. 3:17-cv-30109 (D. Mass. Feb. 5, 2019).
- Persson v. Boston Univ., No. 1:15-cv-14037, 2019 WL 917205 (D. Mass. Feb. 25, 2019).
- Sullivan v. Dumont Grp., LLC, No. 1:16-cv-10713 (D. Mass. Mar. 7, 2019).
- Amaral Enter. LLC v. Gian, No. 3:17-cv-30053 (D. Mass. June 18, 2019).
- Olson v. Chao, No. 3:17-cv-10970, 2019 WL 4773884 (D. Mass. Sept. 30, 2019).
- Allstate Ins. Co. v. Fougere, No. 1:16-cv-11652, 2019 WL 4776986 (D. Mass. Sept. 30, 2019).
- Allstate Ins. Co. v. Fougere, No. 1:16-cv-11652 (D. Mass. Mar. 26, 2020).
- Sec. & Exch. Comm'n v. Chan, 465 F. Supp. 3d 18 (D. Mass. 2020).published
- Jaho Inc. v. Adagio Teas, Inc., 501 F. Supp. 3d 7 (D. Mass. 2020).published
- Pittner v. Selene Fin., LP, No. 1:17-cv-11009 (D. Mass. Apr. 14, 2021).
- Harris v. The Wheatleigh Corp., No. 3:18-cv-30114 (D. Mass. Aug. 27, 2021).
- Echavarria v. Roach, 565 F. Supp. 3d 51 (D. Mass. 2021).published
- Cosenza v. City of Worcester, No. 4:18-cv-10936 (D. Mass. Nov. 4, 2021).
- King v. McDonough, 596 F. Supp. 3d 206 (D. Mass. 2022).published
- Am. Civil Liberties Union of Massachusetts v. United States Dep't of Homeland Sec., No. 1:19-cv-12564 (D. Mass. Dec. 19, 2023).
- LaBelle v. MarineMax Ne., LLC, No. 1:22-cv-11185 (D. Mass. Jan. 17, 2024).
- Cox v. City of Boston, 734 F. Supp. 3d 173 (D. Mass. 2024).published
- LaVallee v. Town of Dedham, No. 1:22-cv-10554 (D. Mass. June 7, 2024).
- Gladu v. Maine Dep't of Corr., No. 1:18-cv-00268 (D. Me. Oct. 8, 2019).
- Confederacion Hipica de Puerto Rico, Inc. v. Confederacion de Jinetes Puertorriquenos, Inc., No. 3:16-cv-02256 (D.P.R. Sept. 30, 2019).
- Confederacion Hipica de Puerto Rico, Inc. v. Confederacion de Jinetes Puertorriquenos, Inc., No. 3:16-cv-02256 (D.P.R. Dec. 4, 2019).
- United States Dep't of Agric. (Farm Serv. Agency) v. Morales Quinones, No. 3:18-cv-01387 (D.P.R. Mar. 6, 2020).
- Lopez v. United States, No. 3:19-cv-01219 (D.P.R. May 1, 2020).
- Seda Martinez v. Nat'l Univ. Coll., No. 3:18-cv-01975 (D.P.R. Apr. 21, 2020).
- Lahens v. AT&T Mobility Puerto Rico, Inc., No. 3:18-cv-01776 (D.P.R. Sept. 8, 2020).
- Feliciano Munoz v. Rebarber Ocasio, No. 3:16-cv-02719 (D.P.R. Nov. 13, 2020).
- Lahens v. AT&T Mobility Puerto Rico, Inc., No. 3:18-cv-01776 (D.P.R. Sept. 4, 2020).
- Casta v. Citi Int'l Fin. Servs., LLC, No. 3:17-cv-02359 (D.P.R. Dec. 23, 2020).
- Xynergy Healthcare Capital II LLC v. Municipio de San Juan, No. 3:18-cv-01208 (D.P.R. Jan. 29, 2021).
- Fleming, Jr. v. Robinson Aviation (RVA), Inc., No. 3:18-cv-01511 (D.P.R. June 8, 2021).
- Vazquez-Velazquez v. Puerto Rico High. & Transp. Auth., No. 3:15-cv-01727 (D.P.R. Aug. 9, 2021).
- Palomino-Alonso v. StoneMor Puerto Rico LLC, No. 3:19-cv-01052 (D.P.R. Apr. 29, 2021).
- Rivera-Rosa v. Centro mas Salud Dr. Gualberto Rabell, Corp., No. 3:18-cv-01953 (D.P.R. July 16, 2021).
- Roosevelt Cayman Asset Co. v. Davila-Perez, No. 3:17-cv-02058 (D.P.R. Aug. 2, 2021).
- Roca v. LM Waste Servs. Corp., No. 3:19-cv-01044 (D.P.R. Mar. 29, 2022).
- Ayala-Martinez v. Puerto Rico CVS Pharmacy, LLC, No. 3:19-cv-02098 (D.P.R. Apr. 29, 2022).
- Ayala v. Kia Motors Corp., 633 F. Supp. 3d 555 (D.P.R. 2022).published
- Roldon-Barrios v. Dep't of Vets. Affairs, No. 3:19-cv-01334 (D.P.R. Feb. 15, 2023).
- Castillo v. Guardian Ins. Co., Inc., No. 3:20-cv-01262 (D.P.R. Jan. 30, 2023).
- Lopez Collazo v. Ruiz Feliciano, No. 3:21-cv-01553 (D.P.R. Sept. 1, 2023).
- Camacho Ortiz v. Municipio de San Juan, No. 3:19-cv-01671 (D.P.R. Sept. 14, 2023).
- Sanchez-Quinones v. Hosp. de La Concepcion, No. 3:20-cv-01546 (D.P.R. Sept. 18, 2023).
At page 49 Summary judgment requires admissible evidence of causation110 citing casesa mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax
- Albright v. FDIC, 21 F.3d 419 (1st Cir. 1994).unpublished ([A] mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax.)
- Hodgens v. Gen. Dynamics Corp., 963 F. Supp. 102 (D.R.I. 1997).published ([A] mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax)
- Murphy v. Timberlane Reg'l Sch. Dist., 22 F.3d 1186 (1st Cir. 1994).published(court of appeals [may] affirm a judgment on any indepen- dently sufficient ground)
- Nos. 91-1681, 91-1682, 960 F.2d 200 (1st Cir. 1992).published (a mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax)
- United States v. Plat 20, Lot 17, 960 F.2d 200 (1st Cir. 1992).published (a mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax)
- Prostar Wireless Grp., LLC v. Domino's Pizza, Inc., 360 F. Supp. 3d 994 (N.D. Cal. 2018).published“a mere promise to produce admissible evidence at trial does not suffice to thwart summary judgment.”
- BMG Music v. Martinez, 74 F.3d 87 (5th Cir. 1996).published
- Com. Drapery Contractors, Inc. v. United States, 133 F.3d 1 (D.C. Cir. 1998).published
- Rodriguez Pinto v. Cirilo Tirado, No. 92-1648 (1st Cir. Jan. 5, 1993).published
- Damiani v. Puerto Rico, No. 92-1070 (1st Cir. Feb. 24, 1993).unpublished
Show 95 more citing cases
- Desmond v. Dept. of Def., No. 92-2201 (1st Cir. Mar. 19, 1993).unpublished
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v.
OSCO DRUG, INC., Et Al., Defendants, Appellees
In this diversity case, appellants calum-nize the district court for taking too grudging a view of alternative liability under Massachusetts tort law. But they are attempting to slide into home plate without ever having reached second base.
I
Appellants, plaintiffs below, are Milissa Garside, a minor, and her parents. In April 1982, a physician prescribed amoxicil-lin to treat Milissa’s ear infection. She was simultaneously taking phenobarbital for seizures. On April 23, prescriptions for both drugs were filled at a nearby pharmacy. Milissa took the medication as prescribed. A week later, a rash began to develop. At her physician’s direction, amoxicillin was discontinued and erythro-mycin substituted. Mrs. Garside discarded the amoxicillin vial and the unused pills.
Notwithstanding the changed regimen, the rash worsened. Shortly, Milissa was diagnosed as having contracted toxic epidermal necrolysis (T.E.N.). The consequences were fearsome; Milissa became blind, suffered a significant hearing loss, and is badly scarred.
Plaintiffs sued in state court alleging that the T.E.N. syndrome was caused by an adverse reaction to amoxicillin and/or phenobarbital. Eventually, the defense lineup included the pharmacy, Oseo Drug; the alleged manufacturer of the phenobarbital, McKesson Corp.; and the present appel-lees, Hoffman-LaRoche, Inc. and Beecham, Inc. (who, plaintiffs alleged, manufactured[*48] amoxicillin and supplied it to Oseo). McKesson, the last player in the game, removed the case to federal district court. See Garside v. Osco Drug, Inc., 702 F.Supp. 19 (D.Mass.1988) (procedural ruling denying motion to remand).
The third amended complaint contains sixteen counts, four aimed at each defendant. Without exception, the claims are premised on theories of negligence or breach of implied warranty. After considerable discovery, Hoffman and Beecham moved for summary judgment. In a thoughtful rescript, the district court noted that, viewing the record most hospitably to appellants, they could prove only that Hoffman and Beecham “are the two possible manufacturers of the amoxicillin that [Mil-issa] ingested;” [1] that appellants bore the burden of proving that a given defendant’s acts or omissions caused the harm complained of; that, absent identification evidence, appellants could not satisfy this burden; and that Massachusetts would not, on the facts of this case, adopt some neoteric theory of alternative liability “to shift the burden of proving causation/identification from the plaintiff[s] to the two pharmaceutical companies.” [2] Accordingly, the district court granted appellees’ motions and ordered the entry of final judgment in their favor. See Fed.R.Civ.P. 54(b).
II
Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R. Civ.P. 56(c). The movant must put the ball in play, averring “an absence of evidence to support the nonmoving party’s ease.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both “genuine” and “material.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Brennan v. Hendri-gan, 888 F.2d 189, 191 (1st Cir.1989); Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). A “genuine” issue is one “that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Put another way, a “genuine” issue exists if there is “sufficient evidence supporting the claimed factual dispute” to require a choice between “the parties’ differing versions of the truth at trial.” Hahn, 523 F.2d at 464 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)). A “material” issue is one that “affect[s] the outcome of the suit,” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, that is, an issue which, perforce, “need[s] to be resolved before the related legal issues can be decided.” Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989).
Our review of summary judgments is plenary. Id. In performing that function, we take the record in the light most amiable to the nonmovants and indulge all reasonable inferences favorable to them. See id.; see also Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir.1987); Finn, 782 F.2d at 15. On issues where the nonmovants bear the burden of proof, however, they must reliably demonstrate that specific facts sufficient to create an authentic dispute exist. Catrett, 477 U.S. at 322-26, 106 S.Ct. at 2552-54. Lastly, in appraising summary[*49] judgments, as in other matters, a court of appeals is not wedded to the district court’s reasoning. Rather, “[w]e are free, on appeal, to affirm a judgment on any independently sufficient ground.” Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir.1987); see also Chongris v. Board of Appeals, 811 F.2d 36, 37 n. 1 (1st Cir.), cert. denied, 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987).
Ill
It is hornbook law that to succeed on any of the legal theories pleaded here appellants must be prepared to show, at a minimum, (i) that Milissa ingested amoxicillin, which (ii) alone or in combination with phenobarbital caused T.E.N. to develop, (iii) under circumstances where provision of the medication was actionable, and (iv) that ap-pellees provided it (or, alternatively, can be held legally responsible for its provision). Appellants argue vehemently as to the fourth component — but we see no legally adequate evidence that the second criterion has been met. [3] That omission, as appellees pointed out below and on appeal, is fatal to plaintiffs’ case.
Applying summary judgment jurisprudence to the elements of plaintiffs’ cause of action, it is plain that, on any theory, plaintiffs bore the burden of adducing some evidence, admissible at trial, supporting their allegation that amoxicillin caused Mil-issa’s adverse reaction. See Finn, 782 F.2d at 16; 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2727 at 133-37 (2d ed.1983). And, plaintiffs defaulted on this obligation.
We have scoured the record and find that the sole “evidence” of causation consists of an interrogatory answer supplied by the Garsides. [4] This two sentence response reads in its entirety:
[Plaintiffs’ expert] Dr. Theodarides will testify that Milissa Garside suffered an adverse drug reaction which induced Toxic Epidermal Necrolysis (“TEN”). Dr. Theodarides will further testify that the causative agents of Milissa Garside’s TEN were the combination of amoxicillin and phenobarbital ingested by her.
More was required. After all, a mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax. Finn, 782 F.2d at 16; Soar v. National Football League Players’ Association, 550 F.2d 1287, 1289 n. 4 (1st Cir.1977).
Rule 56(c) provides that a trial court may properly “consider the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in ruling on a summary judgment motion. The operative word, we suggest, is “consider.” Just as nonmovants “may not rest upon the mere allegations or denials of [their] pleading” to oppose summary judgment, Fed.R.Civ.P. 56(e), they cannot expect the court, in considering answers to interrogatories, to give weight to averments not made upon personal knowledge or those which are in a form patently inadmissible at trial.
In summary judgment proceedings, answers to interrogatories are subject to exactly the same infirmities as affidavits. See H.B. Zachry Co. v. O’Brien, 378 F.2d 423, 425 (10th Cir.1967). Although such answers may be given effect so far as they are admissible under the rules of evidence, they should be accorded no probative force where they are not based upon personal knowledge or are otherwise deficient. Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 n. 1 (2d Cir.1968); Zachry, 378 F.2d at 425-26; S & S Logging Co. v. Barker, 366 F.2d 617, 624 n. 7 (9th Cir.1966). Interrogatory answers,[*50] like affidavits, can block brevis disposition only insofar as they are “made on personal knowledge, ... set forth such facts as would be admissible in evidence, and ... show affirmatively that the [signing party] is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e).
Plaintiffs’ interrogatory answer cannot withstand such scrutiny. Expert opinion is admissible and may defeat summary judgment only where it appears that the affiant is competent to give an expert opinion. See, e.g., Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir.1985). In this case, the purported substance of Dr. Theodarides’ testimony was not verified by him. A third party’s description of an expert’s supposed testimony is not suitable grist for the summary judgment mill. See Fowle v. C & C Cola, A Div. of ITT-Continental Baking Co., 868 F.2d 59, 67 (3d Cir.1989); Vidrine v. Enger, 752 F.2d 107, 109-10 (5th Cir.1984) (per curiam); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1608-09, n. 17, 26 L.Ed.2d 142 (1970) (unsworn statement does not meet requirements of Rule 56(e)).
In short, what we have here — the Garsides’ account of what they think (or hope) that Dr. Theodarides’ testimony might be — amounts to inadmissible hearsay. It is crystal clear that Mrs. Garside had no scientific knowledge as to causation and was incompetent to testify to any of the matters stated. Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment. See Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 570 n. 4 (7th Cir.1989); Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 549 (5th Cir.1987); Pink Supply Corp. v. Hiebert, Inc., 788 F.2d 1313, 1319 (8th Cir.1986); Finn, 782 F.2d at 16-17; Blair Foods. Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 667 (9th Cir.1980); Daily Press, Inc. v. United Press International, 412 F.2d 126, 133 (6th Cir.), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969); Morrissey v. Procter & Gamble Co., 379 F.2d 675, 677 n. 2 (1st Cir.1967). Thus, absent a showing of admissibility — and none was forthcoming here — appellant may not rely on rank hearsay, whether or not embodied in an interrogatory answer, to oppose proper motions for summary judgment.
A case squarely in point is Vidrine v. Enger, supra, 752 F.2d 107. There, plaintiff served an answer to interrogatory describing how a particular doctor would testify. Id. at 109-10. The Fifth Circuit held this answer to be inadequate to defeat defendant’s Rule 56 motion, observing:
[Plaintiff] presented no affidavit or deposition from Dr. Rein.... His quotation of Dr. Rein is pure hearsay. We have repeatedly held that, while notice pleading is sufficient to open the federal courthouse door, a party opposing a motion for summary judgment, properly put, may not ask the court to try the case in order to determine the facts....
Id. at 110. So here: the hearsay account of Dr. Theodarides’ anticipated testimony was too thin a buckler against the force of appellees’ motions. See Mack, 871 F.2d at 181 (evidence relied on to sidetrack summary judgment “cannot be conjectural or problematic [but] must have substance”); see also Fed.R.Civ.P. 56 advisory committee’s note (“The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.”).
IV
Plaintiffs’ cause of action arose in 1982. They have been pressing their civil action in one court or another since March of 1984, represented throughout by experienced attorneys. They have had ample time for investigation, discovery, research and assessment. [5] We were told at oral argument that Dr. Theodarides was not unavailable. Yet, plaintiffs have not been able to adduce any proof of a critical element of their cause of action apart from[*51] the interrogatory answer — which is no proof at all.
We need go no further. We will not allow appellants to reap a wholesale return of surmise on so trifling an investment in fact.
Affirmed.
. At the eleventh hour, Oseo served a supplementary interrogatory answer (not called to the court’s attention before it ruled). In light thereof, appellees suggest that there were six possible sources of the drug, not two. Because of our view of the case, see infra, we need not dwell upon this aspect of the matter.
. The district court considered, and rejected, alternative liability under the doctrine of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948); see also Restatement (Second) of Torts, § 433B(3) (1965), and under a market share theory, see, e.g., Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980).
. Appellees contend that plaintiffs also failed to make the requisite showing on the third prong because the record is barren of evidence that amoxicillin was negligently manufactured or marketed, or that an implied warranty was violated. We do not reach the issue.
. This response is contained in a document entitled "Plaintiffs’ Further Answers to Defendant Hoffman-LaRoche, Inc.'s Interrogatories.” The copy in the record on appeal is unsigned and undated. We assume for the sake of argument, as indicated in a transmittal letter accompanying the filing, that Milissa’s mother intended to sign the further answers.
. When the summary judgment motions were served, plaintiffs could have sought additional time to marshal evidence essential to their opposition. See Fed.R.Civ.P. 56(f). They elected not to do so.