Benjamin v. Union Carbide
| Decision Date | 03 May 2005 |
| Docket Number | No. 959,959 |
| Parties | Elsie L. BENJAMIN, Individually, etc. v. UNION CARBIDE CORPORATION, et al. |
| Court | Court of Special Appeals of Maryland |
Timothy J. Hogan, Baltimore, for Appellant.
Laura A. Cellucci and Philip A. Kulinski (Steven J. Parrott, DeHay & Elliston, L.L.P.; George M. Church, Miler & Stockbridge, on the brief), Baltimore, for Appellee.
Panel: MURPHY, C.J., HOLLANDER and JAMES R. EYLER, JJ.
On March 20, 2003, Elsie L. Benjamin, appellant, as surviving spouse and on behalf of Robert L. Benjamin II and Carol Jeffers, surviving children of Robert L. Benjamin, Sr.,1 and as personal representative of the estate of Robert L. Benjamin, Sr., the decedent, filed suit in the Circuit Court for Baltimore City against various defendants, including Georgia Pacific Corporation and Union Carbide Corporation, appellees. In appellant's survival2 and wrongful death actions,3 appellant alleged that the decedent died on May 25, 1997, as a result of contracting mesothelioma caused by exposure to asbestos containing products manufactured by the defendants.4 Appellees moved for summary judgment on the ground that the actions were barred by limitations.
Appellant asserted below and continues to assert on appeal that there is no evidence that the decedent had actual knowledge that his disease was caused by exposure to asbestos, and there is no evidence that appellant or the decedent's children had actual knowledge that the disease was caused by exposure to asbestos, until late 2001 or early 2002. Appellant contends that actual express knowledge of (1) the nature of the disease, (2) exposure to asbestos, and (3) a causal connection between the disease and the exposure is necessary for the causes of action to accrue. Conversely, appellees asserted, and continue to assert, that the actual express knowledge possessed by the decedent and appellant, i.e., the diagnosis of mesothelioma, was sufficient to put them on inquiry notice, no later than the spring of 1997, that the decedent's exposure to asbestos was the cause of his mesothelioma.
The circuit court entered summary judgment in favor of appellees.5 The court reasoned that actual express knowledge of the diagnosis of mesothelioma and asbestos exposure was sufficient for the causes of action to accrue and concluded that the actions were barred by limitations. The court did not clearly distinguish between the survival and wrongful death actions in coming to its conclusion.
As we shall explain, we agree with the circuit court that express knowledge of mesothelioma and asbestos exposure was sufficient to put the decedent on inquiry notice in his lifetime. Thus, we shall affirm the judgment with respect to the survival action. Contrary to appellant's contention, express knowledge of a causal connection was not necessary for inquiry notice.
Contrary to appellees' contention, we conclude that express knowledge of the diagnosis of mesothelioma alone was insufficient to satisfy, as a matter of law, the inquiry notice requirement. Because there is no evidence that the express knowledge of appellant or that of the surviving children was more than the diagnosis of mesothelioma, we shall reverse the judgment with respect to the wrongful death action.
In the complaint and in answers to interrogatories, appellant asserted that the decedent was employed as a laborer and carpenter while (1) in the United States Navy from 1943 to 1945, (2) working for the L.H. Benjamin Co. from 1946 to 1961, and (3) working for the R.L. Benjamin Lumber Co. from 1961 to 1971. According to appellant, the decedent was exposed to asbestos containing products at various times throughout his employment, including while working for the Benjamin companies, which stocked and sold several products containing asbestos. The decedent was diagnosed with mesothelioma in early 1997, and he died on May 25, 1997.
Summary of medical reports, depositions, and affidavits
A medical report, dated January 27, 1997, indicates that the decedent was referred to Dr. M. Jesada because of an abnormal chest x-ray and CAT scan. The report states that the decedent had periodic chest x-rays prior to December 1996, which were normal. As a result of a fall in November 1996, the decedent had various tests. The test included a chest X-ray, which was abnormal, and which was followed by a CAT scan, which was abnormal. According to the report, the decedent advised the physician that he had a history of asbestos exposure. Dr. Jesada's impression was possible mesothelioma, and a biopsy was recommended.
Records from Harford Memorial Hospital reveal that the decedent was admitted on February 7, 1997, for a biopsy. An oncology report dated February 28, 1997, by Dr. Promila Suri, reflects a diagnosis of probable mesothelioma. The report indicates that the decedent stated that he had a history of exposure to asbestos in the workplace.
A report dated March 4, 1997, by Dr. Viroon Donavanik, indicates that the decedent was admitted to the Medical Center of Delaware on March 4. The report contains a confirmation of a diagnosis of mesothelioma and a recommendation that decedent be treated with radiation and chemotherapy. The report again reveals that the decedent disclosed a history of asbestos exposure while working in a machine shop. The report further noted that decedent worked in the roofing and siding business.
Appellant, in her affidavit, stated that she routinely attended medical appointments with the decedent in the spring of 1997, and neither she nor the decedent was informed of the causal connection between asbestos exposure and mesothelioma. Appellant stated that she first learned of the connection in 2002, when her daughter read an advertisement which referenced the connection and told appellant about it. Appellant testified that she never made any inquiries about the cause of mesothelioma prior to that time.
At the first motions hearing held on November 25, 2003, the court denied appellees' motion for summary judgment without prejudice, stating: Following the hearing, appellant was deposed on December 23, 2003. The pertinent testimony is as follows:
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