concurring.
I concur in the result reached by the majority because the record properly before this court contains no evidence causally linking Miller’s many ailments with PCB exposure. I write because this case illustrates, perhaps as well as the many others I have reviewed recently, how “lethal” summary judgment has become. Monsanto Co. has artfully taken advantage of Ind.Trial Rule 56(C)’s designation requirement while Miller has absolutely failed to designate any portion of the record in opposition to the motion or to designate the genuine issues of material fact, even though Monsanto did not move for summary judgment until July 17, 1992, a year and one-half after the designation requirement became effective. Hence, aspects of the record which in the past would have been considered by the courts, and which show the true state of the evidence which would be submitted at a trial, have simply been excised. While this manner of adjudicating summary judgments may save the public the expense of a trial, it has not, in my view, simplified our review or furthered the search for the truth. And, the longer it takes the practicing bar to comprehend the significance of the amended trial rule, the greater is the likelihood that the judicial system will be brought into disrepute.
Among other things, plaintiff Miller alleged in his complaint that Monsanto negligently failed to warn him of the dangers associated with cumar, a substance containing polychlorinated biphenyls, a suspected carcinogen. Miller operated a dairy farm and fed his cattle silage stored in a silo, the interior of which had been coated with cu-mar. Miller alleges the use of the silo exposed him to the “PCB-containing cu-mar;” that his exposure was a proximate result of the negligent acts of Monsanto in failing to test the cumar for safety and in failing to warn him of the dangers of exposure; and that he has sustained injuries as a proximate result of Monsanto’s negligent acts.
Under our trial rule, for purposes of summary judgment, the facts alleged in Miller’s complaint are taken as true, except to the extent that they are negated by the evidentiary materials designated by Monsanto. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729, trans. denied. The burden is upon the moving party, Monsanto, to show in the manner required by the rule that there is no issue as to any material fact, and that it is entitled to a judgment as a matter of law. T.R. 56(C) (“[t]he judgment sought shall be rendered forthwith if the designated matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ... ”). The 1991 amend*546ments to T.R. 56(C) did not alter the structural burdens for summary judgment, i.e. the movant’s burden of showing no genuine, material, factual issue and entitlement to a judgment as a matter of law, or change the rule that a movant for summary judgment must support his motion by a prima facie showing. Jackson v. Blanchard (1992), Ind.App., 601 N.E.2d 411, 415-6; Chester v. Indianapolis Newspapers, Inc. (1990), Ind.App., 553 N.E.2d 137, trans. denied. Accordingly, the burden does not shift to Miller to do anything until these requirements have been met.
Monsanto moved for summary judgment on two grounds: (1) that Miller had no evidence his body had absorbed PCBs as a result of the alleged presence of PCBs in the coating of the silo on his farm; and (2) that Miller had no evidence that any symptom or injury had been caused by PCBs. In support of its motion, Monsanto offered and designated the affidavit of William J. Waddell, M.D., a professor and the chairman of the Department of Pharmacology and Toxicology at the School of Medicine, University of Louisville, who opined, to a reasonable degree of medical certainty, that the acute symptoms described by Mr. Miller in his deposition were a reaction to nitrogen oxide gases which naturally form from the corn silage in the silo, a process totally unrelated to the silo coating or to PCBs. Dr. Waddell also averred that he had studied the chemistry and physical behavior of PCBs with respect to potential pathways for entry into the body and opined, in short, that Mr. Miller could not have received a toxicologically significant dose of PCBs through inhalation or skin contact with the silo walls during his presence in the silo as described in his deposition.
Dr. Waddell does, however, acknowledge the possibility that Miller could have been exposed to a toxicologically significant dose by ingestion. Dr. Waddell then goes on to selectively refer to the testimony of Mr. Miller, that he did not ingest any of the milk produced by his cows, and to eliminate ingestion as a possible route of exposure. Were it not for the T.R. 56(C) designation requirement, the evidence which follows on the very same page as Mr. Miller’s testimony that he did not consume any of his milk, that is, Mr. Miller’s testimony that he did eat the meat of the cows in his dairy herd which no longer could produce milk, would have raised a genuine issue of material fact on the question of whether Miller had demonstrated that he had in fact been exposed in a toxicologically significant way to the PCBs in the cumar. Dr. Waddell’s affidavit establishes that one potential pathway of exposure can be via the cows, who have eaten the silage contaminated with cumar flakes and passed the PCBs on through their milk. Miller’s deposition testimony and deposition exhibits designated by Monsanto, had they been properly included in the record, establish that, in fact, the State Board of Health had sampled raw milk produced by Miller’s cows and found levels on some occasions better than 2.5 ppm, enough to move the State Board of Health to act. Dr. Waddell’s affidavit does not eliminate the possibility that PCBs can be stored in the animal’s tissue as well as secreted in the milk, though that is Monsanto’s burden as the movant.
Trial Rule 56(H) precludes this court from reversing on the basis of a genuine issue of material fact which has not been identified for the trial court by the nonmov-ant. Therefore, even if this court in reviewing the briefs and record would find a genuine issue of material fact, we may not reverse the judgment. A surprising number of the practicing bar are learning this lesson the hard way. I hope my admonition will save some other litigants from Mr. Miller’s fate.