Georgia Pacific v. Benjamin, 52, September Term, 2005.

CourtCourt of Special Appeals of Maryland
Citation394 Md. 59,904 A.2d 511
Docket NumberNo. 52, September Term, 2005.,52, September Term, 2005.
PartiesGEORGIA-PACIFIC CORPORATION, et al. v. Elsie L. BENJAMIN, Individually, etc.
Decision Date02 August 2006
904 A.2d 511
394 Md. 59
Elsie L. BENJAMIN, Individually, etc.
No. 52, September Term, 2005.
Court of Appeals of Maryland.
August 2, 2006.

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Steven J. Parrott (Philip A. Kulinski and Ariel C. Gruswitz of DeHay & Elliston, L.L.P., Baltimore), for petitioners/cross-respondents.

Laura A. Cellucci (George M. Church of Miles & Stockbridge P.C., Baltimore), all on brief, for petitioners/cross-respondents.

Timothy J. Hogan (Law Offices of Peter T. Nicholl, Baltimore), on brief, for respondent/cross-petitioner.

Edward J. Lilly, Law Offices of Peter J. Angelos, P.C., Baltimore and Denis C. Mitchell, Stein, Mitchell & Mezines, Washington, DC, brief of Amicus Curiae Maryland Trial Lawyers Assoc., amicus curiae.



In this case we must interpret Md.Code (1974, 2002 Repl.Vol.), §§ 3-904(g)(2) and 5-113(b) to determine whether the "discovery rule" applies to toll the limitations period for filing wrongful death and survival actions relating to an occupational disease. In the present case, both the wrongful death and survival actions were filed more than three years after the injured person's death. The Circuit Court for Baltimore City determined that both actions were barred by the statute of limitations and granted the defendants' motion for summary judgment. On appeal, however, the intermediate appellate court concluded that although the survival action was barred, the wrongful death action was not barred by limitations. For reasons to be explained in this opinion, we affirm the judgment of the Court of Special Appeals.


On May 25, 1997, Robert L. Benjamin, Sr. (Mr. Benjamin) died of mesothelioma, a type of cancer in which a high percentage of cases are caused by asbestos exposure. On March 20, 2003, in the Circuit Court for Baltimore City, Mrs. Elsie Benjamin ("Mrs. Benjamin"), as personal representative of the estate of the decedent, Mr. Benjamin, filed a survival action against various defendants, including Georgia Pacific Corporation ("GP") and Union Carbide Corporation ("UC"). In the same complaint, Mrs. Benjamin and Mr. Benjamin's two surviving children, Robert L. Benjamin, II, and Carol Jeffers (collectively "the Benjamins"), filed a wrongful death action against the same defendants. Both UC and GP moved for summary judgment on the ground that both actions were barred by limitations. As to both motions, the trial court granted summary judgment.

On June 21, 2004, only Mrs. Benjamin, in her individual capacity and as personal representative for Mr. Benjamin, appealed to the Court of Special Appeals. On May 3, 2005, the Court of Special Appeals filed its opinion, in which it affirmed in part and reversed in part the trial court's judgment. In affirming the trial court's judgment, the intermediate appellate court held that Mrs. Benjamin's survival action was barred by limitations. The court reversed as to the

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wrongful death action. It held that, as to that action, the evidence was insufficient, as a matter of law, to constitute inquiry notice. We granted the petition for certiorari filed by GP, UC, and Mrs. Benjamin. Georgia-Pacific v. Benjamin, 388 Md. 404, 879 A.2d 1086 (2005).1

We affirm the judgment of the Court of Special Appeals and hold that application of the judicially developed discovery rule is consistent with the language contained in § 3-904(g)(2) of the Courts and Judicial Proceedings Article. Specifically, in cases involving workplace exposure to toxic substances, like asbestos, a claimant, including a wrongful death claimant, is on inquiry notice of the causation element of a cause of action to recover injuries resulting from an "occupational disease," e.g., mesothelioma when the claimant has knowledge that (1) the person whose injury forms the basis for the claim has been diagnosed with mesothelioma, and (2) the injured person was exposed to asbestos in the workplace. Further, we hold that in a survival action, if the decedent's knowledge is sufficient to satisfy the discovery rule, the decedent's knowledge is enough to trigger the running of the limitations period for the survival action.


We adopt, in large part, the facts as set forth by the Court of Special Appeals in its opinion:

Page 516

In the complaint and in answers to interrogatories, [the respondents]2 assert[ ] that the decedent was employed as a laborer and carpenter while (1) in the United States Navy from 1943 to 1945, (2) work[ed] for the L.H. Benjamin Co. from 1946 to 1961, and (3) work[ed] for the R.L. Benjamin Lumber Co. from 1961 to 1971. According to [the respondents], 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.

Benjamin v. Union Carbide, 162 Md.App. 173, 180, 873 A.2d 463, 467 (2005).

Mr. Benjamin's death certificate indicated that the cause of death was "cancer (metastatic mesothelioma)." The respondents testified, as revealed in the affidavits and deposition testimony filed in these proceedings, that they discovered the nexus between asbestos exposure and cancer in late 2001 to early 2002, after the decedent's daughter, Carol Jeffers, read an article that stated that a high percentage of mesothelioma cases were caused by asbestos exposure.

In Benjamin, the Court of Special Appeals summarized the evidence, as stated in pertinent part:

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.

[Mrs. Benjamin], in her affidavit, stated that she routinely attended medical appointments with the decedent in the spring of 1997, and that neither she nor the decedent was informed of the causal connection between asbestos exposure and mesothelioma. [Mrs. Benjamin] stated that she first learned of the connection. . . [as late as] 2002, when her

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daughter read an advertisement which referenced the connection and told [Mrs. Benjamin] about it. [Mrs. Benjamin] 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 [these] motion[s] [by GP and UC and the other defendants] for summary judgment without prejudice, stating:

"Well . . . I think the motion may be premature. And the reason I say that is that Mrs. Benjamin has not been deposed, and I gathered that from reading the papers, and I think that that ought to be done, because I don't want to make a decision in this case based upon an affidavit."

Following the hearing, [Mrs. Benjamin] was deposed on December 23, 2003. The pertinent testimony is as follows:

Q. Do you remember your husband telling Dr. Jesada that he had some exposure to asbestos in the past?

A. No.

Q. And you can't pinpoint one way or the other whether you were with your husband on January 27th, 1997 for that exam?

A. I can't remember the date.

* * * *

Q. I'm going to show you a report from Dr. Suri dated February 28th, 1997. Do you recall whether you were with your husband on February 28th, 1997 when he went to see Dr. Suri?

A. I was with him almost every time— as far as I know, every time he saw her.

Q. I'm going to show you the report, but there's some reference in the report to your husband being exposed to asbestos when he was a carpenter. Do you remember at any time when you went to see Dr. Suri your husband ever making any mention of the fact that he had been exposed to asbestos while he was working as a carpenter?

A. I do not remember.

* * * *

Q. Did there come a time when your husband, as a result of his cancer, went to the Medical Center of Delaware?

A. That's where he got the radiation treatments.

* * * *

Q. Did you accompany him to the Medical Center of Delaware—

A. Yes, I did.

Q. —for his radiation?

A. Yes.

Q. And there was one time when you didn't go because of the ice?

A. He went, but I didn't drive him.

Q. Do you know whether you accompanied him on March 4, 1997?

A. I don't know.

Q. I'm going to show you a report dated March 4, 1997 from Viroon Donavanik.

* * * *

Q. Do you know whether you accompanied your husband on that date to the medical center?

A. I don't know.

Q. And the report, and I've highlighted it, again makes reference to his...

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