UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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, occa-
sionally 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 ciga-
rettes 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 time-
barred. (J.A. at 164-78.)

The court of appeals reviews the district court's granting of sum-
mary judgement de novo. Farwell v. Un , 902 F.2d 282, 287 (4th Cir.
1990). Summary judgment is appropriate when "the pleadings, depo-
sitions, 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 corpo-
ration 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 jurisdic-
tion. 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, how-
ever, because we are persuaded that Collins maintained insufficient
contact with South Carolina to overcome application of the door-
closing 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 "caus-
ing" death in the instant case.

To highlight the insufficiency of Collins's contacts with South Car-
olina, 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 Col-
lins'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 Caro-
lina 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. Dex-
ter 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 Caro-
lina 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 counter-
vailing 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 deter-
mining whether the decedent could have maintained an action for the
injury, had he or she survived. S.C. CODE ANN. § 15-51-10 (Law. Co-
op. 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 dis-
cussion concerning whether the cause of action arose in South Caro-
lina 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 Caro-
lina 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. Co-
op. 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 diagno-
sis 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 Col-
lins'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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