Summary Judgment

Question 1

When will summary judgment be granted?

Answer 1

• When there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. OR
• When discovery is complete (including expert reports) and an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require submission to a jury.

Question 2

How can you make a motion for summary judgment?

Answer 2

Either through written briefs or “outside normal procedure” when it makes sense. (E.g., a motion in limine knocks out essential evidence.)

Question 3

How can you oppose a motion for summary judgment?

Answer 3

Identify one or more issues of fact arising from:

• evidence in the record controverting the evidence cited in support of the motion; OR
• credibility of one or more witness testifying in support of the motion.

Question 4

What is the “Nanty-Glo” Rule?

Answer 4

Oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a GIMF.

• It’s a credibility issue. Let the jury decide.

Question 5

When does the Nanty-Glo rule apply?

Answer 5

Only in PA cases in which

1. the plaintiff does state a cause of action AND
2. the defendant relies exclusively on the oral testimony of its own witnesses.