Judges v. General Public Utilities Corp., No. 00-8056 (April 30, 2001), that discovery was…

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-1520
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IN RE: TMI CASES CONSOLIDATED II
LEVIN - 1706 PLTFS; TARASI - 350 PLTFS;
NEESON - 4 PLTFS; HYMAN - 1 PLTF;
KNIGHT - 2 PLTFS; HAAZ - 2 PLTFS;
MIRIN - 1 PLTF; DEVITO - 4 PLTFS;
BOZARTH - 1 PLTF; WALWYN - 3 PLTFS;
SHEIN - 2 PLTFS; HARRIS - 3 PLTFS
v.
GENERAL PUBLIC UTILITIES CORPORATION; BABCOCK & WILCOX COMPANY;
PENNSYLVANIA ELECTRIC COMPANY; JERSEY CENTRAL POWER & LIGHT
COMPANY; METROPOLITAN EDISON COMPANY; MCDERMOTT INCORPORATED;
RAYTHEON CONSTRUCTORS INC.; BURNS AND ROE ENTERPRISES, INC.;
DRESSER INDUSTRIAL VALVE AND INSTRUMENT DIVISION OF DRESSER
INDUSTRIES, INC.
Levin - 1706 Pltfs, Tarasi - 350 Pltfs
and Hyman - 1 Pltf, Appellants
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 88-cv-01452)
District Judge: The Honorable Sylvia H. Rambo
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ARGUED October 31, 2002

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*Honorable Joseph E. Irenas, United States District Judge for the District of New Jersey,
sitting by designation.
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BEFORE: NYGAARD and WEIS, Circuit Judges and IRENAS,* District Judge.
(Filed December 3, 2002)
Laurence S. Berman, Esq. (ARGUED)
Arnold Levin, Esq.
Levin, Fishbein, Sedran & Berman
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Lee C. Swartz, Esq.
Tucker Arensberg & Swartz
111 North Front Street
P. O. Box 889
Harrisburg, PA 17108
Louis M. Tarasi, Jr., Esq.
Tarasi, Tarasi & Fishman
510 Third Avenue
Pittsburgh, PA 15219
Counsel for Appellants
Alfred H. Wilcox, Esq. (ARGUED)
Pepper Hamilton
18th and Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
Counsel for Appellees
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellants, who are the “Non-Trial Plaintiffs,” argue on appeal that the
District Court erred by entering summary judgment against them. A complete recitation of
the complicated factual basis and procedural history of this protracted litigation was recited
fully and carefully in the District Court’s opinions leading up and granting summary
judgment, and in our earlier opinion, In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999). In
that opinion we affirmed the summary judgment entered against the Trial Plaintiffs based
on their inability to establish a prima facie case. Following a second appeal, we held in All
Plaintiffs v. General Public Utilities Corp., No. 00-8056 (April 30, 2001), that discovery
was closed as to the Non-Trial Plaintiffs, and, that they must proceed on the theory or
theories in place by the close of discovery. We nonetheless reversed the summary
judgment against the Non-Trial Plaintiffs because we could not tell if they had agreed to
proceed solely on the theory used by the Trial Plaintiffs.
On remand, and based on the record before it, the District Court properly
recognized that the Non-Trial Plaintiffs’ theory at the close of discovery suffered the same
deficiencies that led to summary judgment against the Trial Plaintiffs. Thus, the District
Court entered summary judgment against them too. The Non-Trial Plaintiffs appeal again,
arguing that summary judgment was tantamount to a discovery sanction. We disagree. They
are stuck with the record that was created before the close of discovery, and which does not
support their argument. We agree with the District Court that the Non-Trial Plaintiffs have

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failed to establish a prima facie case and conclude that summary judgment is appropriate.
We will affirm.

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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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