UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RACHEL COLLINS, individually and as

Administrator (Personal

Representative) of the Estate of

John Henry Collins,

Plaintiff-Appellant,

v.

No. 95-2805

RJ REYNOLDS TOBACCO COMPANY;

THE AMERICAN TOBACCO COMPANY,

Defendants-Appellees,

and

RJR NABISCO, INCORPORATED,

Defendant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(CA-94-1563-3-17)

Argued: June 6, 1996

Decided: August 12, 1996

Before WILLIAMS and MICHAEL, Circuit Judges, and

JACKSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Edward Belding, Columbia, South Carolina, for

Appellant. Carl Belden Epps, III, TURNER, PADGET, GRAHAM &

LANEY, P.A., Columbia, South Carolina; Christopher James Daniels,

NELSON, MULLINS, RILEY & SCARBOROUGH, Columbia,

South Carolina, for Appellees. ON BRIEF: William A. Wehunt,

Jonesboro, Georgia, for Appellant. CHADBOURNE & PARKE,

L.L.P., New York, New York, for Appellee American Tobacco;

JONES, DAY, REAVIS & POGUE, Washington, D.C., for Appellee

R.J. Reynolds Tobacco.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Rachel Collins brought a wrongful death and personal

injury action against Appellees after her husband, John Henry Collins

("Collins"), died of chronic obstructive pulmonary disease ("COPD").

She appeals the district court's granting summary judgment against

her. For the following reasons, we affirm the district court's ruling.

I.

Appellant is a Georgia resident, as was her husband. In his capacity

as a truck driver, Collins travelled throughout the United States, occasionally accompanied by his son. Collins began smoking Appellees'

cigarettes in 1949. Appellant claims that Collins bought a significant

amount of Appellees' cigarettes on his weekly truck trips through

South Carolina; she further claims that he smoked some of the cigarettes in that state.

On October 3, 1986, in Georgia, a doctor advised Collins to stop

smoking because Collins had performed poorly on pulmonary func-

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tion tests. The same year, Collins acknowledged that he had a history

of emphysema. On February 25, 1987, Collins entered a hospital in

Georgia for treatment of respiratory distress. The medical records

show that he exhibited signs of COPD and that doctors advised him

that he must quit smoking. (J.A. at 189-92.) On July 7, 1991, Collins

died of COPD in Atlanta. (J.A. at 179.)

Appellant filed this action on June 2, 1994; service was effective

on July 3 of that year. Appellees are non-South Carolina corporations

that manufacture and market cigarettes in South Carolina. The district

judge granted summary judgment for Defendants-Appellees on the

ground that the South Carolina "door-closing statute" deprived the

court of subject-matter jurisdiction. S.C. CODE ANN. § 15-5-150 (Law.

Co-op. 1977). In the alternative, he found that the action was timebarred. (J.A. at 164-78.)

The court of appeals reviews the district court's granting of summary judgement de novo. Farwell v. Un , 902 F.2d 282, 287 (4th Cir.

1990). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c). We construe all facts and draw

reasonable inferences in the nonmovant's favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

II.

A.

South Carolina's door-closing statute precludes a nonresident of

the state from bringing suit in South Carolina against a foreign corporation unless the cause of action arises in the state or the state is the

site of the subject of the action. See Nix v. Mercury Motor Express,

Inc., 242 S.E.2d 683, 684-85 (S.C. 1978). The preliminary question

presented is whether the cause of action arose in South Carolina for

purposes of the statute. Appellant claims that Collins's purchase and

use of cigarettes in South Carolina is sufficient to establish jurisdiction. We disagree.

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This Circuit has not decided the issue of how to analyze contacts

with the forum in this context. We need not reach this question, however, because we are persuaded that Collins maintained insufficient

contact with South Carolina to overcome application of the doorclosing statute. Collins was a life-long resident of Georgia. He was

treated for COPD in Georgia and died in Georgia. His purchase and

use of cigarettes in South Carolina, which remains unproven except

for an insignificant percentage of the total packages he bought and

consumed throughout the country, is too tenuous to qualify as "causing" death in the instant case.

To highlight the insufficiency of Collins's contacts with South Carolina, Appellees point out that Appellant's deposition proves only that

Collins purchased one carton of cigarettes in South Carolina. (J.A. at

73.) Though Appellant stated in an affidavit that"almost all" of Collins's cigarettes were purchased in that state, she refuted that assertion

at deposition, when she testified that the statement in the affidavit had

not been based on personal knowledge. She testified instead that she

had never observed Collins purchase cigarettes in South Carolina, but

had merely seen him smoking cigarettes at home that he had bought

in South Carolina and saw one carton of cigarettes with a South Carolina stamp on it. (J.A. at 73, 76-78.) Similarly, Appellant's reliance

on the personal knowledge of the Collins's son Dexter is weak. Dexter testified vaguely that he had witnessed his father buy some cartons

of cigarettes in South Carolina. This statement loses its potential

weight by Dexter's failure to distinguish Collins's purchases in South

Carolina from those he witnessed throughout the United States. (J.A.

at 92-105.)

We are further persuaded that Appellant cannot sue in South Carolina by the considerations noted in Szantay v. Beech Aircraft Corp.,

349 F.2d 60 (4th Cir. 1965). In Szantay, we held that courts must bar

actions under the door-closing statute unless they find affirmative

countervailing federal considerations. Id. at 64. We refused to apply

the door-closing statute in that case in light of the following countervailing federal considerations: (1) the purpose in granting diversity

jurisdiction, which was to avoid discrimination against nonresidents;

(2) the policy of encouraging a state to enforce the laws of its sister

states; (3) the inability to serve one of the defendants outside South

Carolina. Id. at 65. The importance of the last factor is paramount. In

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Bumgarder v. Keene Corp., 593 F.2d 572 (4th Cir. 1979), we barred

an asbestosis action under the door-closing statute when the plaintiff,

a nonresident, could have maintained a suit in North Carolina, where

he lived, worked, and was exposed to asbestos. We barred a personal

injury claim on the same ground in Proctor & Schwartz, Inc. v.

Rollins, 634 F.2d 738 (4th Cir. 1980). We noted that the plaintiff's

choice of forum had been dictated by South Carolina's relatively long

statute of limitations, compared to Georgia, id. at 739, and found it

inconsequential that the statute of limitations in Georgia had elapsed:

"A plaintiff's failure to timely file suit in the more logical, convenient

forum does not constitute a countervailing consideration favoring the

exercise of federal jurisdiction." Id. at 740.

In the instant case, Georgia clearly constitutes an alternative forum

for Appellant, whose husband lived, received medical treatment, and

died there. Following Rollins, we find that the fact that the statute of

limitations in Georgia has lapsed is insufficient to overcome barring

this action under the door-closing statute. The district court properly

held that it lacked subject-matter jurisdiction over Appellees.

B.

Alternative grounds also existed to grant the motion for summary

judgment as to both the personal injury and wrongful death claims.

First, Appellant has no right to bring a claim pursuant to the South

Carolina wrongful death statute. In addition, we agree with the district

court's finding that Appellant's personal injury claim is time-barred.

The South Carolina wrongful death statute tests the right of an

administrator to maintain an action on behalf of a decedent by determining whether the decedent could have maintained an action for the

injury, had he or she survived. S.C. CODE ANN. § 15-51-10 (Law. Coop. 1977); Nix v. Mercury Motor Express, Inc. , 242 S.E.2d 683, 685

(S.C. 1978) (stating rule). This question returns us to our previous discussion concerning whether the cause of action arose in South Carolina for purposes of the door-closing statute. See supra part II.A. For

the same reasons that we hold that the door-closing statute bars the

action, we find that the Appellant had no right to file a claim against

Appellees under the South Carolina wrongful death statute.

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As to the personal injury claim, the parties agree that South Carolina law, which provides a statute of limitations of six years for claims

arising prior to April 5, 1988, applies. S.C. CODE ANN. § 15-3-530(5)

(Law. Co-op. Supp. 1995). The parties disagree as to the date of

accrual, which the statute defines as the date the decedent knew or by

exercise of reasonable diligence should have known that he had a

cause of action. S.C. CODE ANN. § 15-5-535 (Law. Co-op. Supp.

1995). Statutes of limitations on personal injury actions concerning

chronic diseases begin to run at diagnosis. Guy v. E.I. DuPont de

Nemours & Co., 792 F.2d 457, 459 (4th Cir. 1986). The time is tolled

for eight months after death. S.C. CODE ANN. § 62-3-109 (Law. Coop. 1987).

The district court found that the cause of action accrued on October

3, 1986. It reasoned that Collins effectively learned that he suffered

from pulmonary disease on that date because of his poor pulmonary

function tests and his doctor's advice to stop smoking. Accounting for

the eight-month tolling of the statute, the district judge properly found

that the statute of limitations lapsed on June 3, 1993, one year before

Appellant filed the action.

Appellant argues that Collins did not know that smoking caused his

injury.* However, while it is unclear whether the doctor formally

diagnosed Collins with COPD on October 3, 1986, the medical

records reveal that he told Collins of the poor pulmonary function test

results and that Collins should stop smoking. The inference between

proposed treatment of respiratory distress and the underlying diagnosis should have been obvious to Collins. Collins also acknowledged

his history of emphysema that same year. Accordingly, the district

court properly found that the claim was time-barred.

AFFIRMED

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*Collins died of COPD. During his lifetime, doctors discussed Collins's history of emphysema and the pulmonary distress from which he

was suffering. At oral argument, Appellant argued that causes of action

should not accrue until individuals are apprised of the exact disease that

caused death. We are unpersuaded by this argument. Regardless, since

COPD is a form of emphysema, the argument is unavailing.

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