Owens Corning v. Bauman

Citation726 A.2d 745,125 Md. App. 454
Decision Date01 February 1999
Docket NumberNo. 744,744
PartiesOWENS CORNING v. Leroy A. BAUMAN, et al.
CourtCourt of Special Appeals of Maryland

Thomas G. Hungar (Mark A. Perry, Larry L. Simms, Wesley L. Hsu, Gibson, Dunn & Crutcher LLP, Washington, DC, John Parker Sweeney, Gregory L. Lockwood and Miles & Stockbridge, Baltimore, on the brief), for appellant.

Shepard A. Hoffman (Brian G. Parker, Douglas S. Reinhart and Gebhardt & Smith LLP on the brief), Baltimore, for appellees.

Steven G. Warm, Baltimore, for amicus curiae, White Lung Ass'n.

Thomas V. Monahan, Jr. and Goodell, DeVries, Leech & Gray, LLP, Baltimore, for amicus curiae, Maryland Defense Counsel.

Argued before MURPHY, C.J., and DAVIS and HARRELL, JJ. DAVIS, Judge.

In this appeal, appellant Owens Corning, and amicus curiae, Maryland Defense Counsel, seek to have this Court revisit its decision in Anchor Packing Company v. Grimshaw, 115 Md.App. 134, 692 A.2d 5 (1997), vacated in part on other grounds sub nom. Porter Hayden Co. v. Bullinger, 350 Md. 452, 713 A.2d 962 (1998)

. Owens Corning appeals from a jury award in favor of appellee, James R. Hammond,1 in the amount of $1,286,000 in economic damages and $15,000,000 in noneconomic damages and judgment entered thereon.

Appellant had sought to have the trial judge impose the statutory cap, pursuant to MD.CODE (1995 Repl.Vol., 1998 Supp.), CTS. & JUD. PROC. (C.J.), § 11-108(a)(2) and, alternatively, to reduce the noneconomic damages award because it exceeded the $10,000,000 requested in the ad damnum clause of appellee's complaint. Appellant also had moved to exclude the testimony of appellee's expert, Dr. Hammar, on the ground that it did not comport with the Frye/Reed2 standard for admissibility of scientific evidence.

Subsequent to the jury verdict, in response to post-trial motions filed by appellant, the trial judge reduced the jury verdict to $10,000,000 to conform to appellee's ad damnum clause in his complaint and also reduced the verdict by an additional $20,000 to reflect the amount received by appellee in a prior settlement. Owens Corning timely noted this appeal, whereupon appellee filed a cross-appeal challenging (1) the propriety of the reduction of the jury award to conform with the ad damnum clause and (2) the court's refusal to submit the issue of punitive damages to the jury.

On appeal, appellant raises the following issues that we restate for clarity:

I. Whether a cause of action for personal injury "arises" for purposes of Maryland's statutory cap on noneconomic damages when plaintiff's disease comes into existence or when it is diagnosed or manifests itself.

II. Whether the court properly accepted the testimony of Dr. Hammar regarding the onset date of appellee's mesothelioma.

III. Whether the trial court erred in refusing appellant's request to submit to the jury the question of the date of onset of appellee's mesothelioma.

IV. Whether the jury award of noneconomic damages must be remitted on the grounds that it is excessive as a matter of law.

Appellee asks us, in his cross-appeal, to address the following issues:

I. Whether C.J. § 11-108 violates the Maryland Declaration of Rights and the Maryland Constitution.

II. Whether the trial court erred by denying appellee's request for leave to amend the amount in the ad damnum clause to conform to the jury award.

III. Whether the trial court erred in refusing to submit the issue of punitive damages to the jury.

Amicus curiae Maryland Defense Counsel replicates much of the argument of appellant, with special emphasis on the proposition that the event triggering application of the statute should be physical impairment of the plaintiff as part of the manifestation standard. There is also extensive overlay of the issues presented by amicus curiae, White Lung Association, with those raised by appellee; however, White Lung Association offers an exhaustive exposition in favor of current medical knowledge of tumor growth and metasticism and further in support of declaring the statutory cap unconstitutional. Because of our ultimate holding that knowledge of the state of the art by the medical community is of little assistance in our legal determination whether the cap statute embodies an onset-of-disease standard, our discussion of the medical data submitted is limited. Likewise, because we believe the law is clear regarding the constitutionality of the statute, our discussion of this issue also will be limited. Because Article 23 of the Maryland Constitution guarantees the right to trial by jury where issues of fact are involved, however, we hold that, when the parties dispute the point in time that a latent asbestos-related disease comes into existence, that determination, for purposes of applying the noneconomic statutory cap, must be made by the jury.


Appellee enlisted in the United States Navy in 1974 and was assigned to the USS Nimitz in April 1975 where he served until November 1978. Assigned the task of running a co-axial communication cable along a 600-foot passageway, appellee was exposed to pipes that had been insulated with the asbestos-containing kaylo pipe covering manufactured by Owens Corning. In the course of installing the cable, appellee was required to sand the insulation around the pipes in order to gain access to the bulkheads along the passageway. Clouds of asbestos dust created by the sanding would hover in the small compartments where appellee worked.

Over time, appellee developed pleural mesothelioma from exposure to the dust from the kaylo-type covering. He first experienced symptoms of cancer in the spring of 1994, at which time he developed an acute pain in his side that lingered for months. Appellee developed respiratory problems in 1995 which, according to appellee, prevented him from walking up a "single flight" of stairs. He was diagnosed as suffering from pleural mesothelioma in May 1995 at the age of thirty-nine.

Despite surgery intended to remove the pleura from around appellee's lung, and subsequent intensive chemotherapy under the auspices of a clinical program that had been established by the National Institutes of Health, his symptomatology continued unabated and his cancer persisted up to and during the time of trial.


Citing principally the asserted uncertainty Owens Corning believes results from the Grimshaw construction of "arises" and the asserted conflict between the Grimshaw standard and the language and purpose of the noneconomic damages cap, Owens Corning now asks us to reject the onset-of-disease standard of Grimshaw, thereby reversing that decision, and to adopt the manifestation of physical impairment/diagnosis standard3 of Buttram v. Owens-Corning Fiberglas Corp., 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71 (Cal.1997). In asking us to reject the Grimshaw holding, Owens Corning points to the reversal of Peterson v. Owens-Corning Fiberglas Corp., 50 Cal.Rptr.2d 902 (1996), vacated, 71 Cal.Rptr.2d 214, 950 P.2d 58 (1997), which, Owens Corning contends, provided the rationale underpinning our decision in Grimshaw. Additionally, appellant contends that the Grimshaw standard results in a "battle of the experts" in determining the applicability of the cap.

Owens Corning further argues, citing Owens-Illinois v. Armstrong, 87 Md.App. 699, 734-35, 591 A.2d 544 (1991) (Armstrong I), that under Maryland law, there can be no "legally compensable injury" in tort cases until such time as a plaintiff suffers physical or functional impairment. Arguing that we adopted a "bright-line" rule, i.e., the manifestation standard, in ACandS, Inc. v. Abate, 121 Md.App. 590, 710 A.2d 944, cert. denied, 350 Md. 487, 713 A.2d 979 (1998), Owens Corning claims the result is that Grimshaw and Abate are inconsistent and we, accordingly, should reject our holding construing the meaning of "arises" in Grimshaw. Owens Corning also contends that Ford Motor Co. v. Wood, 119 Md.App. 1, 703 A.2d 1315 (1998), illogically draws a distinction between diseases that are not actionable in the absence of symptoms and other diseases that give rise to a cause of action immediately upon onset, even in the absence of symptoms. More specifically, Owens Corning sets forth the following footnote from Ford, which it contends "fails to reconcile the fact that the court in Grimshaw purported to apply the onset-of-disease standard to asbestos-related disease generally":

If certain anatomical changes occur in a person as a result of a latent process, in some instances, the appearance of symptoms will make the condition a legally compensable injury. By contrast, a condition such as cancer is a compensable injury when it comes into existence even without symptomatology.

Id. at 45 n. 11, 703 A.2d 1315.

Our reiteration of the onset-of-disease standard, that Owens Corning complains Grimshaw "applies generally to asbestos-related diseases," is found at 115 Md.App. at 160, 692 A.2d 5:

We hold, therefore, that an injury occurs in an asbestos-related injury case when the inhalation of asbestos fibers causes a legally compensable harm. Harm results when the cellular changes develop into an injury or disease, such as asbestosis or cancer. We, therefore, reject appellants' assertion that the injury or harm does not arise until the symptoms of the disease become apparent. Appellants argue that such an approach would be less speculative. We disagree.

We had reached this conclusion, in part, in reliance upon the decision of the Court of Appeals in Oxtoby v. McGowan, 294 Md. 83, 447 A.2d 860 (1982). There, the Court of Appeals, interpreting the effective date clause of the Health Care Malpractice Claims Act requiring claimants to submit to arbitration before seeking judicial remedies, determined that the "[health care malpractice claims][a]ct is concerned with the invasion of...

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