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