                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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