                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-1482



ROBERT WATERHOUSE,

                                                Plaintiff - Appellant,

           versus


R.J. REYNOLDS TOBACCO COMPANY;         BROWN     &
WILLIAMSON TOBACCO CORPORATION,

                                               Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
02-2446-PJM)


Argued:   November 29, 2005                 Decided:   January 11, 2006


Before NIEMEYER, LUTTIG, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: George Aubrey Harper, Upper Marlboro, Maryland, for
Appellant. Robert H. Klonoff, JONES DAY, Washington, D.C., for
Appellees. ON BRIEF: Joseph G. Finnerty, Jr., George F. Ritchie,
IV, DLA PIPER RUDNICK GRAY CARY US, L.L.P., Baltimore, Maryland,
for Appellee Brown & Williamson Tobacco Corporation; Paul R.
Reichert, JONES DAY, Washington, D.C., for Appellee R. J. Reynolds
Tobacco Company.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

        Appellant Robert Waterhouse brought this action against Brown

& Williamson Tobacco Corporation and R.J. Reynolds Tobacco Company,

alleging that he developed lung cancer as a result of smoking

cigarettes manufactured and sold by the defendants.                The district

court granted summary judgment to defendants.               We affirm.



                                         I.

     The     facts,    recounted    in       the   light   most   favorable    to

Waterhouse, are as follows.         Waterhouse began smoking in 1947, at

age 17, and smoked continuously until December 1984.                 He smoked

Lucky Strikes and Pall Mall cigarettes until the late 1950s to

early 1960s, both of which were manufactured and sold by Brown &

Williamson.     He then switched to Winston cigarettes, manufactured

and sold by R.J. Reynolds.            As noted by the district court,

Waterhouse     was    admittedly    aware      that   cigarette    smoking    was

detrimental to his health.         During his teenage years, a coach at

his high school had warned him about smoking and his parents were

opposed to his smoking.        Throughout the period that he smoked,

various family members, friends, and physicians encouraged him to

quit for health reasons.           And, he was admittedly aware of the

warning labels which were placed on cigarette packs beginning in

1966.     See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 513-14

(1992) (discussing various warning labels mandated by the Federal


                                         2
Cigarette Labeling and Advertising Act).      However, Waterhouse did

not quit smoking until December 1984, when his son showed him

photographs of a smoker’s lungs.

     On June 24, 1999, nearly fifteen years after he quit smoking

“cold turkey,” Waterhouse was diagnosed with lung cancer.                Two

years later, he initiated this action in Maryland state court,

alleging that the cancer was caused by his 37-year history of

smoking the defendants’ cigarettes. Defendants removed the case to

federal district court based on diversity of citizenship.         On June

3, 2003, the district court granted in part and denied in part

defendants’ Rule 12(b)(6) motion.      See Waterhouse v. R.J. Reynolds

Tobacco Co., 270 F. Supp. 2d 678 (D. Md. 2003).

     Following discovery, defendants moved for summary judgment on

Waterhouse’s remaining claims of pre-1969 negligence and strict

liability for failure to warn.*    Following a hearing, the district

court held that defendants had presented evidence that the health

risks of smoking were common knowledge during the years that

Waterhouse   smoked,   which   Waterhouse   had   failed   to   refute    by


     *
      Waterhouse’s original complaint set forth claims of
negligence, strict liability, false representation, deceit and
fraudulent concealment, civil conspiracy, breach of express
warranty, intentional false and misleading advertising, and
punitive damages. On defendant’s Rule 12(b)(6) motion in 2003, the
district court had ruled that Waterhouse’s post-July 1, 1969
negligence claim based on failure to warn was preempted by the
Cigarette Labeling Act. See Waterhouse, 270 F. Supp. 2d at 683.
Waterhouse later conceded that he could not pursue the fraudulent
misrepresentation and conspiracy claims, and abandoned his design
defect claims at the summary judgment stage.

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sufficient evidence to the contrary, and that, even if a duty to

warn existed, Waterhouse had failed to present sufficient evidence

that a failure to warn proximately caused his injuries.                 See

Waterhouse v. R.J. Reynolds Tobacco Co., 368 F. Supp. 2d 432 (D.

Md. 2005).



                                     II.

     We review the district court’s grant of summary judgment se

novo, see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,

1167 (4th Cir. 1988), construing the evidence in the light most

favorable    to   the   nonmoving   party   and   drawing   all   reasonable

inferences in Waterhouse’s favor, see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).       The standard for granting summary

judgment is well settled.      Summary judgment should be granted only

“if 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 a judgment as a matter of law.”            Fed.

R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “The party seeking summary judgment has the initial burden

to show absence of evidence to support the nonmoving party’s case.”

Nguyen v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995) (internal

quotation marks omitted). Once he has done so, the nonmoving party

“may not rest upon mere allegations or denials,” id. (internal


                                      4
quotation marks omitted), but must “go beyond the pleadings and by

[his]   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.

      Under Maryland law, sellers are strictly liable for physical

harm caused by a product “in a defective condition unreasonably

dangerous to the user.”           Restatement (Second) of Torts § 402A

(1965). Under the consumer expectation test, however, a product is

“unreasonably dangerous” only if it is “dangerous to an extent

beyond that which would be contemplated by the ordinary consumer

who   purchases    it,   with    the   ordinary          knowledge   common     to   the

community as to its characteristics.”                  Id., cmt. I; see Phipps v.

General Motors Corp, 363 A.2d 955, 963 (Md. 1976) (noting that

Maryland has adopted the strict liability principles of § 402A of

the Restatement (Second) of Torts).                   Similarly, a manufacturer or

seller of a product cannot be held liable under a negligent

failure-to-warn claim if the danger of the product was obvious to

the consumer.      See Mazda Motor of Am., Inc. v. Rogowski, 659 A.2d

391, 397 (Md. App. 1995) (noting that there is no duty to warn of

obvious or commonly-known dangers).

      In this case, defendants presented an expert opinion by Robert

J. Norrell, Ph.D., a historian with the University of Tennessee.

Dr.   Norrell     conducted     research        into     the   question    of   public


                                            5
awareness throughout the twentieth century about the health risks

of smoking.     He concluded that “between 1947 and 1969 there was

widespread common knowledge among ordinary people that cigarette

smoking      could     cause     serious    life-threatening     diseases.”

Waterhouse, 368 F. Supp. 2d at 436.

       In   response,    Waterhouse    offered   the     affidavit of Allan

Feingold, M.D., a pulmonologist, who stated that “most smokers did

not have a real understanding of the risk of cigarette smoking”

during these years.       Id. (internal quotation marks omitted).        The

district court, however, ruled that Dr. Feingold, in contrast to

Dr. Norell, “reache[d] his conclusion without establishing what his

mode of historical analysis is or whether that mode is generally

considered reliable or acceptable,” “failed to demonstrate his

competence to offer an opinion in the matter,” and, by his own

admission, “ha[d] no education or experience in polling, surveying,

or otherwise assembling data upon which historians or other experts

base   opinions      regarding   public    awareness.”     Id.   at   436-37.

Accordingly, the court concluded that Waterhouse’s evidence was

insufficient.

       Under the circumstances, we are constrained to agree that

Waterhouse failed to offer sufficient and competent evidence to

contradict the defendants’ assertion that the dangers of smoking

were commonly known.           Waterhouse therefore failed to create a

genuine issue of fact sufficient to survive summary judgment.


                                       6
     We likewise reject Waterhouse’s contention that the district

court erred in granting summary judgment for defendants based upon

plaintiff’s failure to prove that the lack of a warning prior to

July 1, 1969, proximately caused his lung cancer.      In order to

establish a failure-to-warn claim under Maryland law, Waterhouse

was required to present evidence “to prove not only that [he] would

have read, understood, and remembered the warning, but also that

[he] would have altered [his] conduct to avoid the injury.” Eagle-

Picher Indus., Inc. v. Balbos, 604 A.2d 445, 468 (Md. 1992)

(internal quotation marks omitted).    There is a presumption in

strict liability cases that a plaintiff would have read and heeded

an adequate warning if it had been given.        See id. at 469.

However, the presumption may be rebutted where there is “evidence

that the personalities or dispositions of the [plaintiffs] were

such that they clearly would have ignored warnings.”   Id.

     In light of Waterhouse’s admissions regarding his knowledge of

the ill-effects of smoking cigarettes, the district court held that

Waterhouse had failed to forecast sufficient evidence from which a

jury could find a causal connection between any failure to warn and

his subsequent development of lung cancer.   On appeal, Waterhouse

points to his affidavit, filed after his deposition and in response

to the defendants’ motion for summary judgment. In that affidavit,

Waterhouse averred that he “did not learn that smoking causes lung

cancer until 1965, when Nat King Cole died of lung cancer caused by


                                7
cigarette smoking,” and that “[i]f [he] had known that cigarette

smoking could cause lung cancer, [he] would have never begun

smoking.”    J.A. 209.

     The    district   court   rejected   the   claim   that   this   “late-

conceived affidavit” was sufficient to create a genuine issue of

material fact on the issue of causation, see Waterhouse, 368 F.

Supp. 2d at 438 (holding that Waterhouse “cannot generate a genuine

issue of material fact by making statements in an affidavit that

directly contradict his sworn deposition testimony given in the

case”) (citing Rohrbough v. Wyeth Lab., Inc., 916 F.2d 970, 975

(4th Cir. 1990)), and ruled that, by Waterhouse’s own admissions,

the presumption that Waterhouse would have read and heeded an

adequate warning if it had been given, had been rebutted.

     Having reviewed the record and the district court’s opinion,

we find no reversible error.       Because no reasonable juror could

find that defendants’ alleged failure to warn of the hazards of

smoking proximately caused Waterhouse’s lung cancer and other

injuries, we affirm the grant of summary judgment on this basis as

well.



                                   III.

     For the foregoing reasons, the judgment of the district court

is hereby affirmed.

                                                                  AFFIRMED


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