The Sixth Circuit’s recent decision and resulting partial dissent in LidoChem, Inc. v. Stoller Enterprises, Inc., Case No. 10-1686, provide an interesting analysis of an appellate court’s ability to consider facts contained in a summary judgment record but not specifically presented to the district court. The district court granted summary judgment in favor of defendants, on plaintiff’s Lanham Act, tortious interference, injurious falsehood, civil conspiracy, and defamation claims.  The Sixth Circuit affirmed the district court as to LidoChem’s claims against two defendants, but reversed as to several others.

Importantly, the majority and the dissent sparred over the ability of the court “to consider facts in the summary judgment record that counsel did not mention specifically to the district court.” Judge Thapar’s partial dissent disagreed with the majority’s decision to reverse the grant of summary judgment as to the claims against defendant Dave Alexander.  He argued that the facts relied upon by the majority were never presented to the district court.  Under a de novo review, the “appellate court takes the facts as presented to the court below and reviews whether summary judgment is justified without giving special deference to the decision below.”  Judge Thapar would have found LidoChem’s failure to present the facts in the record as fatal to its argument.

The majority defended its position, arguing that under the de novo standard, it may “review the summary judgment record taken as a whole,” and that it must apply the same Rule 56 standard that was applied by the district court, including Fed. R. Civ. P. 56(c)(3).   It noted that “while our rules and cases may not require us to consider that evidence, there is nothing in them that supports the notion that an appellate court must blind itself to germane evidence.”