                            UNPUBLISHED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; WAL-
MART 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 over-

the-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     drug-

associated      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    “drug-

associated 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     time-

barred);      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
                              IV.

     For the reasons stated above, the judgment of the district

court is

                                                      AFFIRMED.




                              23
