Faulise v. Smithkline Beecham Corp.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1899
PATRICIA FAULISE, Deceased, by and through
personal representative, Joe Faulise, husband,
Plaintiff - Appellant,
versus
SMITHKLINE BEECHAM CORPORATION, d/b/a
Glaxosmithkline,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cv-00200)
Submitted: March 14, 2007 Decided: April 5, 2007
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Richard J. Lutzel, LUTZEL GANDY & BROADWAY, PLLC, Mooresville,
North Carolina, for Appellant. Frederick W. Rom, Michael T. Wood,
WOMBLE, CARLYLE SANDRIDGE & RICE, PLLC, Research Triangle Park,
North Carolina; Madeleine M. McDonough, Steven M. Thomas, SHOOK
HARDY & BACON, L.L.P., Kansas City, Missouri, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joe Faulise (Faulise) filed a civil action against
SmithKline Beecham Corporation (d/b/a GlaxoSmithKline) on behalf of
his late wife, Patricia Faulise (Patricia), alleging that she was
injured and later died because she used Imitrex, a GlaxoSmithKline
product. Specifically, the action alleged claims of products
liability, negligence, breach of express and implied warranty,
unjust enrichment and loss of consortium with respect to Patricia’s
initial heart attack and later death. GlaxoSmithKline then filed
a motion for summary judgment, arguing that Faulise failed to
timely file his action. The district court agreed and granted
summary judgment to GlaxoSmithKline. Faulise timely appealed.
We review de novo a district court’s grant of summary
judgment. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment may only be granted when
“there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c).
A three-year statute of limitations governs Faulise’s
claims as they relate to Patricia’s personal injuries. See N.C.
Gen. Stat. § 1-52(1) and (5). However, “[u]nless otherwise
provided by statute, [a cause of action] for personal injury . . .
shall not accrue until bodily harm to the claimant or physical
damage to his property becomes apparent or ought reasonably to have
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become apparent to the claimant, whichever event first occurs.”
N.C. Gen. Stat. § 1-52(16). As Faulise filed the instant action
more than three years after Patricia acknowledged that she
suspected Imitrex caused her heart problems, we conclude that the
claims related to Patricia’s personal injuries were not timely
filed. Moreover, while Faulise argues that Patricia incurred
congestive heart failure within the three-year limitations period,
“[f]urther damage incurred after the date of accrual is only an
aggravation of the original injury and does not restart the
statutory limitations period.” Pembee Mfg. Corp. v. Cape Fear
Constr. Co., 329 S.E.2d 350, 354 (N.C. 1985).
A two-year statute of limitations governs the claims with
respect to Patricia’s death. See N.C. Gen. Stat. § 1-53. However,
“whenever the decedent would have been barred, had he lived, from
bringing an action for bodily harm because of the provisions of
G.S. 1-15(c) or 1-52(16), no action for his death may be brought.”
Id. As the claims for Patricia’s injuries that occurred before her
death were not filed in a timely fashion, we conclude that Faulise
is barred from asserting his claims with respect to Patricia’s
death.
Based on the foregoing, we affirm the district court’s
order granting summary judgment to GlaxoSmithKline. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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