UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1814

JOHN H. QUILLIN; EVELYN M. QUILLIN, 

 Plaintiffs - Appellants, 

 v. 

C.B. FLEET HOLDING COMPANY, INCORPORATED; C.B. FLEET 

COMPANY, INCORPORATED; WAL-MART STORES, INCORPORATED; WALMART STORES EAST, INCORPORATED; WAL-MART STORES EAST, LP, 

 Defendants - Appellees. 

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Catherine C. Blake, District Judge. 

(1:07-cv-00503-CCB) 

Argued: March 26, 2009 Decided: May 14, 2009 

Before GREGORY and DUNCAN, Circuit Judges, and Jackson L. KISER, 

Senior United States District Judge for the Western District of 

Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

ARGUED: D. Michelle Douglas, KALBIAN & HAGERTY, LLP, Washington, 

D.C., for Appellants. Richard Matthew Barnes, GOODELL DEVRIES 

LEECH & DANN, LLP, Baltimore, Maryland, for Appellees. ON BRIEF:

Haig V. Kalbian, Aaron W. Knights, KALBIAN & HAGERTY, LLP, 

Washington, D.C., for Appellants. Thomas J. S. Waxter, III, 

Paula Krahn Merkle, Derek M. Stikeleather, GOODELL DEVRIES LEECH 

& DANN, LLP, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. 

2 
PER CURIAM: 

At his doctor’s instruction, plaintiff John H. Quillin 

(“Quillin”) ingested twice the recommended amount of the overthe-counter oral saline laxative Fleet Phospho-soda (“FPS”) the 

day before he underwent a routine colonoscopy. Following the 

procedure, he suffered severe complications and long-term renal 

failure. He sued C.B. Fleet Holding Co., Inc., the maker of 

FPS, and Wal-Mart Stores, Inc., Wal-Mart Stores East, LP, and 

Wal-Mart Stores East, Inc., where he purchased the product, 

(collectively “Fleet”) under both strict liability and 

negligence theories of products liability relating to design 

defects and failure to warn, and for breach of warranty and loss 

of consortium. The district court dismissed all of Quillin’s 

claims, finding that it was barred by the relevant Maryland 

statute of limitations. This conclusion was premised upon the 

application of Maryland’s discovery rule, which gives a 

potential plaintiff three years to file suit from the date that 

he knows or should have known that he had a cause of action. 

Finding that Quillin was on inquiry notice in March 2003, the 

district court found his January 2007 filing untimely. For the 

reasons that follow, we affirm. 

3 
I. 

On February 24, 2003, in preparation for a routine 

colonoscopy the next day, Quillin took two packets of FPS, an 

over-the-counter sodium phosphate solution sold as a laxative. 

Each packet contained 45 milliliters (mL) of FPS. In the dosage 

instruction on the back of the packaging, the product label 

instructs adult users “[NOT TO] TAKE MORE THAN THIS AMOUNT [20 

TO 45 ML] IN A 24-HOUR PERIOD.” J.A. at 211.1 Relying on 

instructions from his doctor, Quillin took twice the recommended 

dose. At the time of his colonoscopy, Quillin suffered from 

diabetes, hypertension, hyperlipidemia, arthritis, and coronary 

artery disease. He took a number of medications for those 

conditions. 

Following the colonoscopy procedure, Quillin became quite 

ill. Upon the instruction of his doctor, he checked himself 

into the hospital on February 27, 2003, where he was diagnosed 

with and treated for acute renal failure and remained for two 

weeks. He told doctors on his admission that he “had taken a 

significant amount of laxatives prior to his colonoscopy” and 

 1

In the same area of the label, the product also contains 

the instructions: “SINGLE DAILY DOSAGE: DO NOT TAKE MORE UNLESS 

DIRECTED BY A DOCTOR. SEE WARNINGS.” J.A. at 211. The 

instructions given to Quillin by his physician are not in the 

record, but it is undisputed that Quillin was instructed to take 

two packets of FPS, each containing 45 mL. See Appellant’s Br. 

at 3; Appellee’s Br. at 2-3, 23-24 (“Mr. Quillin purchased two 

45 mL bottles of [FPS], as directed by his physician.”). 

4 
that he thought they “may have dried him out.” J.A. at 138. A 

March 11, 2003 renal biopsy revealed interstitial fibrosis and 

tubular injury. His discharge summary, dated March 12, 2003, 

contained a diagnosis of “acute renal failure, probably related 

again to dehydration with insult from ACE inhibitors and NSAIDs, 

and also from hydrochlorothiazide causing ATN or even acute 

interstitial nephritis.” J.A. at 145. A follow-up examination 

noted that the renal biopsy “confirmed some type of drugassociated diagnosis.” J.A. at 215. Since 2003, he has 

continued to suffer renal problems, which have resulted in the 

insertion of a stent and now-daily dialysis, and which may 

necessitate a kidney transplant. After his discharge from the 

hospital, there is no evidence that Quillin pursued any 

investigation into the cause of his injury. 

There has been a growing consensus that the use of FPS 

prior to certain procedures could cause kidney-related 

complications. Medical articles from as early as 1996 posited a 

correlation between oral sodium phosphate solutions and renal 

problems. In June 2004, a study was published by Dr. Glen S. 

Markowitz in the journal Human Pathology (“the Markowitz study”) 

that claimed to support “a novel association of acute 

nephrocalcinosis and acute renal failure (ARF) with colonoscopy 

preceded by a bowel-cleansing regimen consisting of oral sodium 

phosphate solution.” J.A. at 279. 

5 
In June 2006, Quillin learned from a newspaper article that 

there might be an association between FPS and kidney failure. 

Quillin filed his Complaint against Fleet in Maryland state 

court on January 17, 2007, alleging both strict liability and 

negligence theories of products liability relating to design 

defects and failure to warn, breach of warranty claims, and loss 

of consortium. Fleet filed for and was granted removal. In the 

Maryland District Court, Fleet moved for summary judgment on the 

ground of untimeliness. The district court granted the motion 

on October 11, 2007. The court found that Quillin’s cause of 

action accrued against Fleet on March 11, 2003, the date of the 

renal biopsy, and that his filing was therefore untimely under 

Maryland’s statute of limitations. Quillin moved for 

reconsideration on the basis of new evidence. The district 

court denied Quillin’s motion for reconsideration on July 18, 

2008. 

II. 

The district court exercised diversity jurisdiction over 

this case under 28 U.S.C. § 1332, and we now have jurisdiction 

over the appeal under 28 U.S.C. § 1291. A federal court 

exercising diversity jurisdiction must apply the substantive law 

of the state in which it sits. See Erie R.R. Co. v. Tompkins, 

204 U.S. 64, 79 (1938); see also Volvo Const. Equip. N. Am., 

6 
Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 599–600 (4th Cir. 

2004). Because this appeal is taken from a federal district 

court in Maryland, we apply Maryland state law. 

 We review a grant of summary judgment de novo with the 

facts taken in the light most favorable to the non-moving party. 

Meson v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 

2007). Summary judgment is properly granted only when there is 

no genuine issue of material fact. Celotex Corp. v. Catrett, 

477 U.S. 317, 322 (1986); see also Meson, 507 F.3d at 806. The 

party seeking summary judgment “bears an initial burden” to 

demonstrate the absence of a genuine issue of material fact. 

Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 

522 (4th Cir. 2003). Where the non-moving party bears the 

burden of proving an issue at trial, however, that party must 

“go beyond the pleadings and by her own affidavits, or by the 

depositions, answers to interrogatories, and admissions on file, 

designate specific facts showing that there is a genuine issue 

for trial.” Celotex, 477 U.S. at 324 (quotations and citations 

omitted). 

A. 

The questions in this case arise concerning what Quillin 

knew, what he should have known, and when he knew or should have 

known it. Maryland has a three-year statute of limitations for 

7 
tort actions. Md. Cts. & Jud. Proc. Code Ann. § 5-101; Hartnett

v. Schering Corp., 2 F.3d 90, 92 (4th Cir. 1993). Under 

Maryland’s general discovery rule, the statute of limitations 

begins to run when the allegedly tortious conduct is discovered-

-that is, when the plaintiff “in fact knew or reasonably should 

have known of the wrong.” Pennwalt Corp. v. Nasios, 550 A.2d 

1155, 1160 (Md. 1988) (quoting Poffenberger v. Risser, 431 A.2d 

677, 680 (Md. 1981) (applying the discovery rule to all tort 

claims)). Actual knowledge, either express or implied, is 

required to find that a tort was discovered within the meaning 

of the rule. Poffenberger, 431 A.2d at 681. Because implied 

actual knowledge is sufficient to start the limitations period, 

courts consider the three years to begin when a plaintiff is on 

inquiry notice. Inquiry notice arises “when a plaintiff gains 

knowledge sufficient to prompt a reasonable person to inquire 

further.” Pennwalt, 550 A.2d at 1163. 

The district court concluded that Quillin was on inquiry 

notice in March 2003 and that a reasonable investigation 

undertaken at the time would have revealed information 

sufficient to support a claim. Quillin challenges both 

conclusions, which we address in turn. 

8 
1. 

 In medical products liability cases, Maryland employs a 

three-part test to determine whether a plaintiff had sufficient 

notice to start the statute of limitations period. A court asks 

whether the plaintiff knew or had reason to know that: (1) he 

had suffered an injury; (2) the injury was caused by the 

defendant; and (3) there was either wrongdoing by the 

manufacturer or a product defect. Pennwalt, 550 A.2d at 1161-

62, 1165; Hartnett, 2 F.3d at 92 n.1; see also Hartnett, 2 F.3d 

at 92 (holding that plaintiff must have been able to obtain 

“knowledge of the alleged tort”). Because the standard includes 

all of the facts an individual should have known, the plaintiff 

is charged with knowledge of everything that a reasonable 

investigation would have disclosed. Baysinger v. Schmid Prods. 

Co., 514 A.2d 1, 3 (Md. 1986). This includes, at a minimum, the 

facts that would have been disclosed by the relevant medical 

records. Harnett, 2 F.3d at 93. 

 The district court found that the latest date Quillin’s 

cause of action could have accrued, putting him on inquiry 

notice, was March 11, 2003, the date of his renal biopsy. Thus, 

the three-year statute of limitations began to run on that date 

and expired before he filed his case on January 17, 2007. 

Because of “the proximity in time” of Quillin’s kidney failure 

to the colonoscopy procedure and his ingestion of FPS, the 

9 
district court found that he “was on notice that he had suffered 

an injury and possible wrongdoing.” J.A. at 240. Thus, he was 

charged with any knowledge that a reasonable investigation 

undertaken at the time of the biopsy would have uncovered. 

Quillin argues that the district court’s finding that he 

was on inquiry notice of a possible cause of action based upon 

the temporal proximity of his FPS ingestion, his colonoscopy, 

and his renal problems was incorrect as a matter of law. He 

claims that the facts available as of March 2003 were not such 

that they would have caused a reasonable person to investigate 

further. In support of this claim, he cites the “drugassociated diagnosis” in his discharge report, which is given as 

“acute renal failure probably related to dehydration.” J.A. at 

145. The specific drugs that are mentioned as possibly being 

related to that failure are Quillin’s “ACE inhibitor, NSAID, 

hydrocholothlazide [sic], and the aspirin.” Appellee’s Br. at 

4. FPS is nowhere mentioned; and the only drugs named are those 

he was prescribed for pre-existing conditions. Quillin asserts 

that his extensive list of co-morbid diseases means that he 

could reasonably have assumed those disease and their associate 

drugs--not the combination of FPS and the colonoscopy--were the 

cause of his renal problems. Therefore, he had no knowledge that 

FPS could have been a cause of his injury. 

10 
Fleet argues that Quillin had sufficient facts in March 

2003 to have led a reasonable person to inquire further, 

including knowledge that the dose of FPS he took was twice the 

daily limit, that the injury that occurred following his 

colonoscopy was unusual, and that a connection existed between 

the laxatives he took and the dehydration that was cited as the 

cause of his injury. In particular, Fleet emphasizes Quillin’s 

suspicions that his dehydration prior to the colonoscopy 

contributed to his complications. The hospital discharge report 

cites dehydration as Quillin’s diagnosis, and he made statements 

to doctors that taking the FPS may have “dried him out.” J.A. 

at 138. The packaging for FPS indicated that users should 

“[s]top using this product and consult a doctor if you . . . 

[h]ave no bowel movement after use as dehydration may occur.” 

J.A. at 211 (emphasis added). 

In this case, we find that Quillin had sufficient 

information to know that he had suffered an injury and that 

Fleet’s product may have been a cause of the injury. 

Complications from his colonoscopy led him to check himself into 

the hospital, where he remained for two weeks. While there, he 

was given a diagnosis of renal failure, and he has continued to 

suffer health problems as a result of the procedure in the years 

that followed. The injury in this case was thus clear, and a 

reasonable person would have undertaken an investigation into 

11 
its cause. See Hartnett, 2 F.3d at 92 (it is the knowledge of 

injury, not the knowledge of its cause that gives rise to the 

duty to investigate). 

The fact that Quillin may not have been certain that his 

injury was a result of his ingestion of FPS did not free him 

from the obligation to investigate the cause of his injury if he 

was reasonably on notice that some wrongdoing may have occurred. 

In an analogous case, a patient was deemed to be on notice of 

the improper medical care she received following a visit to her 

doctor from which she “came away . . . with a belief that 

something wrong had been done.” Lutheran Hosp. of Md. v. Levy, 

482 A.2d 23, 27 (Md. Ct. Spec. App. 1984) (quotations omitted). 

Under Maryland law, it was immaterial that “the wrong she then 

thought existed . . . was not the wrong ultimately established.” 

Id. Some uncertainty about the cause of an injury does not 

alleviate an individual of the responsibility to inquire. 

Holding otherwise would eviscerate the requirement of a 

reasonable investigation. To be on inquiry notice, a potential 

plaintiff must only know or have reason to know of an injury, 

its cause, and the wrongdoing which gave rise to it. 

2. 

For limitations purposes, once a plaintiff has knowledge of 

an injury, he or she is charged with knowledge of what a 

12 
reasonably diligent investigation would have uncovered. 

Pennwalt, 550 A.2d. at 452 (the discovery rule starts the 

limitations period running based upon what the plaintiff “knows 

or through the exercise of due diligence should know”); Harnett, 

2 F.3d at 92 (A plaintiff “should have known of a cause of 

action if . . . an investigation pursued with reasonable 

diligence would have led to knowledge of the alleged tort.”) 

(quotations and citations omitted). Given that Quillin was on 

inquiry notice in March 2003, there remains the question of what 

information a reasonably diligent investigation would have 

revealed. 

In order for the statute of limitations to commence 

running, an investigation undertaken at the time Quillin was on 

notice--March 11, 2003 at the latest--must have revealed 

sufficient information to begin the limitations period, 

including that information there was “either manufacturer 

wrongdoing or product defect.” Pennwalt, 550 A.2d at 1165. The 

district court found that a reasonable investigation in March 

2003 would have revealed evidence to support Quillin’s intuition 

that the dehydration he suffered was related to his ingestion of 

FPS. J.A. at 244. Further, medical literature was available 

that linked the ingestion of oral sodium phosphate solutions 

with renal problems. J.A. at 244 n.3 (citing several of the 

studies, whose titles alone indicate such a connection). 

13 
The district court distinguished its ruling that Quillin 

was on inquiry notice from other cases by relying on Quillin’s 

failure to make any investigation into the cause of his kidney 

failure, as well as the close temporal proximity of the kidney 

failure to “defendant’s [Fleet’s] alleged improper conduct,” 

which “indicate[d] wrongdoing.” J.A. at 242. As of March 11, 

2003, there was “sufficient information . . . to support a 

possible claim,” J.A. at 243, including: medical records stating 

dehydration as the likely cause of his renal failure; and 

medical literature establishing “a connection between oral 

sodium phosphate laxatives . . ., dehydration, and acute renal 

failure.” J.A. at 244. Based upon this information, the 

district court concluded that a reasonable investigation 

performed at the time Quillin was placed on inquiry notice, in 

March 2003, would have revealed enough evidence to support a 

cause of action. His January 17, 2007 filing was therefore 

untimely because the three-year statute of limitations period 

expired in March 2006. 

Under the standard for granting summary judgment, once 

Fleet had met its “initial burden of demonstrating the absence 

of any material issue of fact,” Ruffin v. Shaw Inds., Inc., 149 

F.3d 294, 301 (4th Cir. 1998) (citing Celotex 477 U.S. at 323), 

by citing the evidence available to Quillin in March 2003, it 

became Quillin’s responsibility to demonstrate that an issue 

14 
remained for trial. The Supreme Court has cautioned that the 

party moving for summary judgment does not have to definitively 

prove the absence of an issue of material fact. Celotex, 477 

U.S. at 322 (finding a Court of Appeals holding to the contrary 

“inconsistent with the standard . . . set forth in Rule 56(c)”); 

id. at 323 (no requirement that the moving party “negat[e] the 

opponent’s claim”). Instead, 

the plain language of Rule 56(c) mandates the entry of 

summary judgment, after adequate time for discovery 

and upon motion, against a party who fails to make a 

showing sufficient to establish the existence of an 

element essential to that party's case, and on which 

that party will bear the burden of proof at trial. 

Id. 

We are mindful of the fact that the running of the 

limitations period is an affirmative defense, which Fleet would 

bear the burden of proving at trial. See Ver Brycke v. Ver 

Brycke, 843 A.2d 758, 775 (Md. 2004) (citing Newell v. Richards, 

594 A.2d 1152, 1156 (Md. 1991) (“[T]he party raising the defense 

of the statute of limitations has the burden of showing that the 

defense has merit.”)). However, where a party asserts that the 

discovery rule applies to vitiate or delay the normal 

limitations period, that party bears the burden of proving that 

the discovery rule applies. Newell, 594 at 1156; Finch v. 

Hughes Aircraft Co., 469 A.2d 867, 893 (Md. Ct. Spec. App. 

15 
1984). Quillin therefore had the burden to show that his filing 

was timely. 

Once Fleet made a motion for summary judgment accompanied 

by the kind of support required by Rule 56(c), it fell to 

Quillin to show that a factual dispute remained as to whether he 

was on inquiry notice. Thus, it was his responsibility to 

provide evidentiary support for his opposition to the summary 

judgment motion. Fleet provided all that was required to 

support its allegation that no genuine issue of material fact 

existed as to this element. Quillin had the opportunity to 

refute this claim but the evidence he entered into the record 

failed to prove that a genuine issue of material fact continued 

to exist. Because Quillin failed to meet this burden under the 

summary judgment standard, the district court did not err in 

granting Fleet’s motion. 

B. 

Quillin also argues that the question of whether he was on 

inquiry notice could only properly be determined by a jury, not 

by the district court at the summary judgment phase of trial. 

In most instances, disputes about when a plaintiff is on inquiry 

notice are factual questions best left to the jury’s 

determination. Baysinger, 514 A.2d at 4 (“That ultimate fact 

[of when the plaintiffs were on notice] is ordinarily a question 

16 
for the trier of facts going to the merits.”) (quotations and 

citations omitted); see also Pennwalt, 550 A.2d at 450 (noting 

with approval the reversal of a grant of summary judgment where 

the factual question of inquiry notice was in dispute). 

However, where a reasonable trier of fact could reach only one 

conclusion concerning the point at which the limitations period 

began to run, summary judgment is appropriate. Pennwalt, 550 

A.2d at 450 (stating that summary judgment on limitations 

grounds is appropriate where “reasonable men could not find 

otherwise” than that plaintiff’s cause of action is timebarred); see also Levy, 482 A.2d at 27 (upholding summary 

judgment where “a reasonable fact finder could only conclude” 

that plaintiff was on inquiry notice more than three years 

before filing her claim); Hartnett, 2 F.3d at 93 (affirming a 

grant of summary judgment where the district court found as a 

matter of law that plaintiff was on inquiry notice more than 

three years before the filing of the suit). 

In the instant case, the district court correctly found as 

a matter of law that Quillin was on inquiry notice in March 

2003. Unlike the Baysinger case, which Quillin cites to support 

his claim, Quillin did not have medical information that 

contradicted his theory of his injury. In Baysinger, the 

plaintiff brought a products liability action against the maker 

of her intrauterine contraceptive device (“IUD”) more than three 

17 
years after she suffered injury. She had pursued an initial 

investigation into the cause of her injury within the 

limitations period and specifically asked her physicians whether 

the IUD could have been the cause of the injury. At that time, 

her doctors informed her that they did not know whether the IUD 

was related to the injury and could not determine the injury’s 

cause. The court therefore found that, under those facts, 

“[w]hether a reasonably prudent person should have undertaken a 

further investigation is a matter about which reasonable minds 

could differ, and it was therefore inappropriate for resolution 

by summary judgment.” 514 A.2d at 4. Based upon the record in 

this case, no such factual disputes remain. Quillin had no 

information that contradicted his theory of his injury; in fact, 

he failed to make any inquiry at all into its cause. He is 

therefore charged with the knowledge that would have resulted 

from a reasonable inquiry; and it is undisputed that, as of 

March 11, 2003, such an inquiry would have revealed sufficient 

facts to inform him of the existence of a cause of action. 

III. 

 Quillin also claims infirmities in the district court’s 

disposition of his motion for reconsideration, filed after the 

grant of summary judgment. We address each of his objections in 

turn. 

18 
A. 

Quillin first asserts that the district court erred by 

denying his motion for reconsideration on the basis that he 

presented new evidence to the court. Fed. R. Civ. P. 59. We 

review a denial of a motion for reconsideration for abuse of 

discretion. Boryan v. United States, 884 F.2d 767, 771 (4th 

Cir. 1989). New evidence is a ground for reconsideration 

recognized in this circuit. Hutchinson v. Staton, 994 F.2d 

1076, 1081 (4th Cir. 1993). The standard for granting a Rule 59 

motion based on newly discovered evidence is high. The moving 

party must show: 

(1) the evidence is newly discovered since the 

judgment was entered; (2) due diligence on the part of 

the movant to discover the new evidence has been 

exercised; (3) the evidence is not merely cumulative 

or impeaching; (4) the evidence is material; and (5) 

the evidence is such that is likely to produce a new 

outcome if the case were retried, or is such that 

would require the judgment to be amended. 

Boryan, 884 F.2d at 771 (citing Fed. R. Civ. P. 60). 

 In this case, Quillin made his motion on the basis of an 

affidavit filed by Fleet in another proceeding in a different 

jurisdiction (“the Holzka Affidavit”). The affidavit, submitted 

by Denise Holzka, who Quillin alleges is “a member of Fleet’s 

national legal team,” Appellant’s Br. at 6, contains information 

relating to the date at which Fleet learned of the connection 

between FPS and nephrocalcinosis. Specifically, the Holzka 

19 
Affidavit purports to show that Fleet itself had no knowledge of 

the link between FPS and nephrocalcinosis before 2004, when Dr. 

Markowitz informed the company of a study he had conducted 

showing evidence of such a link. Quillin argues that this 

information meets the standard for new evidence because the 

Holzka Affidavit demonstrates that no one was aware of the link 

between FPS and renal problems until 2004, at the earliest. 

Further, Quillin claims that even if the link had been known, no 

knowledge of wrongdoing would have been revealed until the 2004 

study upon which the information in the Holzka Affidavit is 

based. 

 Quillin bore the burden of demonstrating that to the 

district court that the evidence offered by the Holzka Affidavit 

met the standard for new evidence. 

[T]o support a motion for reconsideration, the movant 

is obliged to show not only that this evidence was 

newly discovered or unknown to it until after the 

hearing, but also that it could not with reasonable 

diligence have discovered and produced such evidence 

at the hearing. . . . Evidence that is available to a 

party prior to entry of judgment, therefore, is not a 

basis for granting a motion for reconsideration as a 

matter of law. 

Boryan, 884 F.3d at 771 (quotations and citations omitted). 

Quillin failed to meet this burden or even to meaningfully 

address the Boryan standard. He did not show that the Holzka 

Affidavit contained information not available prior to Fleet’s 

motion for summary judgment. Whether or not nephrocalcinosis is 

20 
appropriately the diagnosis under consideration,2 Quillin did not 

carry his burden to show that the evidence in question could 

properly be considered. The district court therefore did not 

abuse its discretion in denying his motion for reconsideration. 

B. 

Quillin also appeals the district court’s denial of his 

Rule 59 motion on the basis that he was not permitted to take 

discovery prior to the court ruling on the motion for summary 

judgment. We review that judgment under an abuse of discretion 

standard. Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 

214, 244 (4th Cir. 2002). 

Quillin claims that Fleet’s rapid filing of its motion for 

summary judgment, less than two months after all of the 

defendants had filed their Answers, precluded him from being 

able to conduct discovery. “Generally speaking, ‘summary 

judgment [must] be refused where the nonmoving party has not had 

the opportunity to discover information that is essential to his 

opposition.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 

 2

In their filings, the parties debate at length whether 

nephrocalcinosis, the diagnosis of kidney problems connected 

with FPS in the Markowitz study, is properly a subject of this 

litigation, since Quillin received a different diagnosis. 

Because we find that Quillin has failed to show that the Holzka 

Affidavit is new evidence under Boryan, we need not reach this 

question. 

21 
U.S. 242, 250 n.5, (1986)). However, Quillin failed to file a 

Rule 56(f) affidavit before the grant of summary judgment. See

Fed. R. Civ. P. 56(f) (providing that the proper procedure is 

for a party opposing a motion for summary judgment to “show[] by 

affidavit that, for specified reasons, it cannot present facts 

essential to justify its opposition”). “[T]he party opposing 

summary judgment cannot complain that summary judgment was 

granted without discovery unless that party had made an attempt 

to oppose the motion on the grounds that more time was needed 

for discovery.” Harrods, 302 F.3d at 244 (quotations and 

citations omitted). We have repeatedly admonished plaintiffs 

that 

we ‘place great weight on the Rule 56(f) affidavit’ 

and that ‘“[a] reference to Rule 56(f) and the need 

for additional discovery in a memorandum of law in 

opposition to a motion for summary judgment is not an 

adequate substitute for a Rule 56(f) affidavit.”’ 

Evans [v. Techs. Applications & Serv. Co., 80 F.3d 

954, 961 (4th Cir. 1996)] (quoting Paddington Partners 

v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)). 

Indeed, ‘“the failure to file an affidavit under Rule 

56(f) is itself sufficient grounds to reject a claim 

that the opportunity for discovery was inadequate.”’ 

Id.

Harrods, 302 F.3d at 244. Though it may sometimes be 

appropriate to overturn a grant of summary judgment in the 

absence of a Rule 56(f) affidavit, see id., in this case we 

decline to find that the district court abused its discretion in 

denying Quillin’s motion for reconsideration. 

22 
23 

IV. 

For the reasons stated above, the judgment of the district 

court is 

AFFIRMED.