UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30383
Summary Calendar
MARY FRANCES WILSON, INDIVIDUALLY AND
ON BEHALF OF THE ESTATE OF BILLY E. WILSON;
DENNIS WILSON; HEDY WILSON HERTZOG,
Plaintiffs-Appellants,
v.
THE GROW GROUP, et al,
Defendants,
THE GROW GROUP INCORPORATED; GROWCO INCORPORATED;
NATIONAL AEROSOL PRODUCTS,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
(94-CV-307-R)
September 11, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
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Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Plaintiffs, the widow and children of Billy Wilson, appeal
the district court’s grant of summary judgment in favor of the
Defendants in their suit claiming Billy Wilson’s death was caused
by Defendants’ chemicals.
The Plaintiffs first argue that the district court prematurely
considered and decided defendants’ motion for summary judgment.
The Plaintiffs contend that the district court’s action was an
abuse of discretion in light of the Plaintiff’s last minute
discovery that their medical expert would not testify in their
behalf. The Plaintiffs assert that without this witness’s
testimony, they could not prove causation, a central element in
their prima facie case against the Defendants. Accordingly, the
Plaintiffs sought a continuance, which the district court denied.
The Plaintiffs then argue that the district court abused its
discretion in failing to grant a continuance.
We have reviewed the record and briefs and AFFIRM the district
court’s grant of summary judgment for the defendants. See The
Estate of Billy Wilson, et al v. The Grow Group, Inc. et al, No.
94-CV-307-R (E.D. La. Oct. 13, 1995). The district court granted
judgment because Plaintiffs failed to show that a genuine issue
exists as to whether the deceased was ever exposed to defendant’s
product, not for lack of proof of medical causation. The Plaintiffs
cannot rely on the mere allegations in their pleadings to defeat
the defendants’ motion for summary judgment. See Celotex v.
Catrett, 477 U.S. 317, 324 (1986). Moreover, the Plaintiffs cannot
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rely on an unsworn affidavit to raise a fact issue precluding
summary judgment. See Nissho-Iwai American Corp. v. Kline, 845
F.2d 1300, 1302 (5th Cir. 1988).
AFFIRMED.
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