Anchor Packing Co. v. Grimshaw

DAVIS, Judge. This appeal involves four of the five mesothelioma cases consolidated for trial before the Circuit Court for Baltimore City under the caption Casimir Balonis, et al. v. ACandS, et al., Case No. 9526101. Nick Zumas, Patrick McCaffery, John Grimshaw, and Ethel Granski 1 all filed suits in the circuit court against numerous defendants, alleging that he or she contracted asbestos-related mesothelioma from either workplace or household exposure to defendants’ products. Trial began on September 21, 1995, and the jury returned verdicts on December 21,1995.

In Grimshaw, the jury returned verdicts in favor of Barbara Bullinger, personal representative of the estate, against Owens-Corning, f/k/a Owens-Corning Fiberglas Corporation (OC), Porter Hayden Company (Porter Hayden), and Anchor Packing Company (Anchor) in the amount of $1,100,000. Verdicts were also returned in favor of those defendants against cross-defendants Owens-Illinois, Inc. (O-I), Foster-Wheeler Corporation (Foster-Wheeler), Armstrong World Industries, Inc. (AWI), GAF Corporation (GAF), ACMC, Inc., ACandS, Inc. (ACandS), Hopeman Brothers, Inc. (Hopeman), Pitts ¹⁴⁵ burgh Corning Corporation (PCC), and Rapid-Ameriean Corporation (Rapid). The jury also returned a verdict in favor of OC against third-party defendant Westinghouse Electric Corporation (Westinghouse). In Granski, the jury returned verdicts in favor of Ethel Granski against OC in the amount of $2,210,531, plus $1,000,-000 for loss of consortium.

The jury also returned verdicts against cross-defendants O-I, Porter Hayden, Rapid, and PCC. In McCaffery, the jury returned a verdict in Elizabeth McCaffery’s favor, as personal representative of the estate, against OC in the amount of $3,137,943 in compensatory damages. The jury also awarded Ms. McCaffery $1,000,000 for her loss of consortium claim and $2,300,000 in her wrongful death action. The jury returned verdicts against cross-defendants ACandS, Foster-Wheeler, PCC, Porter Hayden, Rapid, and Westinghouse.

In Zumas, the jury returned a verdict in favor of Ann Zumas, as personal representative of the estate, against OC in the amount of $2,523,189 in compensatory damages. The jury also awarded Ms. Zumas $1,000,000 for her loss of consortium claim and $1,200,000 for her wrongful death action. In addition, the jury returned verdicts against cross-defendants Hopeman, AWI, ACandS, PCC, GAF, O-I, Rapid, and Westinghouse. The trial court entered final judgments in Granski and Zumas on March 11,1996, in Grimshaw on April 16,1996, and in McCaffery on April 17, 1996.

The final judgments reflect the effects of settlements by joint tort-feasors and by the Manville Personal Injury Settlement Trust (Trust). Anchor, OC, Porter Hayden, Hopeman, and Westinghouse all noted timely appeals. Three questions, presented for our review by appellants Anchor, OC, and Porter Hayden, pertain to all four cases on appeal. We restate them as follows: I. Does the statutory cap on noneconomic damages established by Md.Code (1974, 1995 Repl.Vol.), § 11-108 of ¹⁴⁶ the Courts & Judicial Proceedings Article (C. J.) apply to plaintiffs’ claims for wrongful death, loss of consortium, and personal injury damages resulting from exposure to asbestos?

II

Did the trial court err in refusing to produce confidential settlement agreements?

III

Did the trial court err by not reducing the final judgments in consideration of a federal order controlling the settlement of a third-party trust? The following questions, which we have restated, presented by Anchor, OC, and Porter Hayden, are common to all defendants in Grimshaw: IV. Did the trial court err when it denied a motion for remittitur or a new trial to conform the judgment to the amount of stipulated damages? V. Did the court err when it issued its final judgment declaring that third-party Westinghouse was an adjudicated joint tort-feasor, but its liability was not subject to adjudication?

The next question is presented by Porter Hayden in Grim-shaw. We restate it below: VI. Should the trial court have reduced the judgment based on the pro rata release of a third party against whom default had been entered? Two questions, presented by Anchor in Grimshaw, are restated by us as follows: VII.

Did the trial court err in submitting the issue of Anchor’s liability to the jury based on its finding that plaintiff produced sufficient evidence from which a jury could reasonably conclude that Anchor’s asbestos-containing products were a substantial factor in the development of plaintiffs mesothelioma?

VIII

Did the trial court err in submitting the issue of Anchor’s liability to the jury based on its finding that plaintiff produced sufficient evidence to establish that An ¹⁴⁷ chor knew or should have known that the gasket or packing products it sold were defective or unreasonably dangerous? The following questions presented by OC are restated below: IX. Did the trial court err in refusing to grant OC’s motion for judgment in Granski? X. Did the trial court err in denying OC’s motion for judgment in Zumas, or in the alternative, in granting plaintiffs’ motion for judgment notwithstanding the verdict in Zumas ?

The following question is presented by Hopeman in Zumas: XI. Did the trial court properly deny Hopeman’s motion for judgment and motion for judgment notwithstanding the verdict based on its finding that OC established legally sufficient evidence to support a jury finding that Hopeman’s use of asbestos-containing products was a substantial factor in causing Zumas’s mesothelioma? FACTS I. JOHN GRIMSHAW John Grimshaw was born on November 16, 1916. Grim-shaw married Edith Adelle on June 10, 1949, and the two were married for forty-nine years until her death on August 26, 1988.

The Grimshaws had two daughters, Barbara Bullinger and Joanne Strickline, three grandchildren, and one great-granddaughter. Grimshaw worked at Bethlehem Steel’s Sparrows Point Shipyard (Shipyard) from 1940 to 1947 and from 1951 to 1979. During his career, Grimshaw worked as a machinist and a ratesetter. While at the Shipyard, Grimshaw was exposed to asbestos-containing products.

Grimshaw began to feel ill in early June 1994, and he was diagnosed with mesothelioma later that month. Grimshaw died in January 1995. His de bene esse deposition was taken in October 1994, and the videotaped deposition was utilized at trial. ¹⁴⁸ II. ETHEL GRANSKI Ethel Granski was born on August 23, 1948.

From 1953 to 1963, Gene Abrams, Ethel Granski’s stepfather, was either living with or married to Granski’s mother, Rose Abrams. During this period of ten years, Abrams worked at various places, including Newport News Shipbuilding and Drydock, as an insulator, where, he claims, he was exposed to. asbestos-containing products. When Granski was eight or nine, she began washing Abrams’s work clothes, which allegedly were covered in asbestos dust when carried into their home. Gran-ski became ill as a result of asbestos exposure and was diagnosed with mesothelioma in August 1993.

Granski was still living at the time of trial. hi. Patrick McCaffery, sr. McCaffery was born on March 6, 1939; in 1959 he married Elizabeth. From 1968 to 1970, McCaffery was a sheet metal worker at the Shipyard.

During the course of his employment at the Shipyard, he was exposed to asbestos-containing products. McCaffery began feeling ill in November or December 1993 and was diagnosed with mesothelioma in January 1994. McCaffery died from mesothelioma on June 15, 1995, at the age of 56.

IV

NICK ZUMAS Zumas was born on October 14, 1925. In 1957 he married Anna Marie, from whom he was divorced in 1970. He remarried in 1982. From 1955 to 1987, Zumas worked as a machinist and millwright at the Shipyard.

During the course of his employment, Zumas was exposed to products containing asbestos. Zumas began feeling ill in October 1993 and was diagnosed with mesothelioma in July 1994. He committed suicide at the age of 69, on May 7, 1995. Zumas’s deposition testimony was presented at trial.

These facts will be supplemented throughout this opinion as needed. ¹⁴⁹ I APPLICATION OF THE STATUTORY CAP ON NONECONOMIC DAMAGES The jury awarded damages to plaintiffs for personal injury, loss of consortium, and wrongful death. The Grimshaw estate was awarded noneconomic damages of $1,000,000. Ms. Gran-ski was awarded noneconomic damages of $2,000,000 plus $1,000,000 for loss of consortium. The McCaffery estate was awarded noneconomic damages of $3,000,000, and Ms. McCaf-fery was awarded $1,000,000 for loss of consortium and $2,000,000 in noneconomic wrongful death damages.

The Zumas estate was awarded $2,500,000 in noneconomic damages, the loss of consortium damages were $1,000,000, and Mrs. Zumas was awarded noneconomic wrongful death damages of $1,000,000. Following the jury’s verdict, appellants filed motions to reduce the jury’s awards by applying the statutory cap on noneconomic damages set forth in C.J. § 11— 108. The trial court denied the motions without stating any reasons or issuing a written opinion. Appellants argue that the trial court erred when it failed to apply the statutory cap on noneconomic damages to the claims for damages asserted in the instant cases.

A. WRONGFUL DEATH CLAIMS Appellants 2 assert that the trial court erred when it failed to limit plaintiffs Zumas’s and McCaffery’s noneconomic recovery for wrongful death to $500,000, in accordance with the statutory cap set forth in C.J. § 11-108. Because both Zumas and McCaffery died after the effective date of the statute, appellants contend that the cap is applicable. Appellees, on the other hand, assert that the statute does not apply to asbestos-related cases, and in the alternative, that their cause of action for wrongful death arose prior to the October 1, 1994 effective date. ¹⁵⁰ As a preliminary matter, we first must determine whether the damages cap for wrongful death actions provided in C.J. § 11-108 applies to wrongful death actions resulting from asbestos-related injuries and from non-medical malpractice injuries. In construing any statute, one looks first to the words used by the legislature and, if they are clear and unambiguous, gives those words their commonly understood meanings.

Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995). The legislature stated plainly and unambiguously in C.J. § 11 — 108(b)(2)(i) that “in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.” 3 (Emphasis added). In addition, the legislative history of C.J. § 11-108 indicates that the General Assembly intended that the cap apply broadly, as opposed to only malpractice claims. In January 1986, Senate Bill No. 558 was introduced “for the purpose of imposing a certain limit on noneconomic losses in any action for personal injury.” See United States v. Streidel, 329 Md. 533, 547 , 620 A.2d 905 (1993).

The legislature intended the statutory limitation to promote the availability and affordability of liability insurance in response to a legislatively perceived insurance crisis caused in part by excessive noneconomic damage awards in personal injury cases. Oaks, 339 Md. at 35 , 660 A.2d 423 . The bill was referred to the Senate Committee on Judicial Proceedings. See Streidel, 329 Md. at 547 , 620 A.2d 905 .

The changes made by the Committee narrowed the type of actions subject to the cap to medical malpractice actions. See id. The House, however, refused to agree with the Senate’s changes and referred the bill to a conference committee. See id. at 548 , 620 A.2d 905 .

In the final version of the bill, the scope of the cap’s application was to personal ¹⁵¹ injury claims, including injuries other than those caused by medical malpractice. See id. at 549 , 620 A.2d 905 ; see also Potomac Electric Power Co. v. Smith, 79 Md.App. 591, 622 , 558 A.2d 768 (1989), overruled on other grounds by United States v. Streidel, 329 Md. 533 , 620 A.2d 905 (1993) (the scope of the cap as finally approved was broadened from medical malpractice claims to any action for personal injury). Moreover, the primary purposes in enacting the noneconomic damages cap were to alleviate the liability insurance crisis and to decrease unpredictable and speculative noneconomic damages awards. See id.

Appellees argue that according to Owens-Illinois, Inc. v. Armstrong, 326 Md. 107 , 604 A.2d 47 (1992) (hereinafter Armstrong II), the cap on noneconomic damages does not apply to the claim of an individual with asbestosis because of the latent nature of the disease. The Court, in Armstrong II, concluded that C.J. § 11-108 was not applicable in that case because the plaintiffs injury occurred prior to the July 1,1986 effective date. Id. at 124, 604 A.2d 47 . The Court did not conclude that the cap was inapplicable to all asbestos-related cases due to the latency of the disease, as appellees contend.

Instead, the Court determined that the cap did not apply under the particular facts and circumstances of the case. See id. at 122-124 , 604 A.2d 47 . First, the Court, in Armstrong II, distinguished between the time that a cause of action arises, for purposes of the statutory cap, and the time when a cause of action accrues. 4 Id. at 120-21 , 604 A.2d 47 . The Court held that the plaintiffs “noneconomic damages should be reduced under Section 11-108 ... only if his ‘injury’ came into existence on or after July 1, 1986.” Id. at 122 , 604 A.2d 47 .

Based on the evidence, the Court concluded that plaintiffs asbestos-related injury came into existence prior to the effective date of the statute, and therefore the award was not controlled by the cap on noneco-nomic damages. Id. at 124 , 604 A.2d 47 . ¹⁵² Thus, the Court’s holding in Armstrong II is not in conflict with the statutory interpretation of C.J. § 11-108 that requires the cap on noneconomic damages to apply to wrongful death claims resulting from any cause of action arising on or after October 1, 1994, including asbestos-related claims. Moreover, the legislative purposes discussed supra justify applying the statutory cap to wrongful death claims arising from not only medical malpractice, but also to claims arising from asbestos-related diseases. Appellants, however, note that in Cole v. Sullivan, 110 Md.App. 79 , 676 A.2d 85 (1996), we held that C.J. § 11-108 does not apply to awards stemming from the commission of intentional torts.

Looking beyond the usual meaning of the words of the statute and to the objective and purpose of the enactment, we concluded in Cole that the purpose of C.J. § 11-108 was to stabilize the spiraling cost of liability insurance and there is “no legislative intent to protect individuals from the economic consequences of intentional misconduct.” Id. at 94, 676 A.2d 85 . We also considered the fact that liability insurance does not generally cover intentional injuries. Id. To the contrary, the instant case does not involve intentional misconduct on the part of appellants, and unlike Cole , reaches issues that the legislature intended to address with the non-economic damages cap.

Appellees, however, state that the intent of the legislature is not achieved by limiting the amount of awards of widows of asbestos-related disease victims because of the latent characteristics of the injuries. As explored supra, the legislative history of C.J. § 11-108 indicates that one of the purposes of the statute and amendments was to decrease the number of unpredictable awards in any cause of action for wrongful death. We conclude that the cap on wrongful death damages provided by C.J. § ll-108(b)(2)(i) applies to wrongful death actions arising from asbestos-related diseases. Having determined that the statutory cap on noneconomic damages applies to wrongful death cases, we now must ¹⁵³ determine whether it applies to this particular case or whether the “cause of action [arose] on or after October 1, 1994.” C.J. § ll-108(b)(2)(i).

Statutes that change a monetary limitation of recovery for personal injury are prospectively applied. Wittel v. Baker, 10 Md.App. 531, 541 , 272 A.2d 57 (1970). In Armstrong II, the Court stated that “a cause of action arises when it first comes into existence,” i.e. when all the elements of the claim are satisfied. Armstrong II, 326 Md. at 121 , 604 A.2d 47 .

A wrongful death action arises not from the injury or commission of the tort, but from the death of the injured party. Globe American Casualty v. Chung, 76 Md.App. 524, 535 , 547 A.2d 654 (1988). “No action for wrongful death can be maintained until death has occurred; a person or vessel is liable for damages when death ensues from the tort.” Wittel v. Baker, 10 Md.App. at 542 , 272 A.2d 57 (amendment broadening the measure of damages in a wrongful death action was not applicable to plaintiffs claim, because the death occurred prior to the effective date of the amendment); see also Harlow v. Schrott, 16 Md.App. 31, 42 , 294 A.2d 349 (1972). In an action for wrongful death, “the injury for which a plaintiff may recover is not that suffered by the decedent, but it is the loss that the plaintiff has suffered from the death of a spouse, child, or parent.” Lopez v. State Highway Admin., 327 Md. 486, 490, 610 A.2d 778 (1992). Thus, damages recoverable for wrongful death include damages from pecuniary loss, “mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education .... ” See C.J. § 3--904(d); Lopez, 327 Md. at 492 , 610 A.2d 778 .

Appellees rely on Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982) to support their assertion that the statutory cap should not be applied to the wrongful death claims in the instant case. The issue presented to the Court in Oxtoby was whether the Health Care Malpractice Claims Act, which requires arbitration before resorting to a court of law for final ¹⁵⁴ determination, was applicable to the causes of action. Id. at 86 , 447 A.2d 860 . The effective date clause provided that the Act “shall take effect July 1, 1976, and shall apply only to medical injuries occurring on or after that date.” Id. at 85 , 447 A.2d 860 .

The plaintiff suffered the harm and the personal injury action arose prior to July 1,1976. Id. at 97 , 447 A.2d 860 . Some of the monetary compensation sought by the plaintiff’s estate, however, was suffered after July 1,1976. Id.

The Court held that a “medical injury” occurs, within the meaning of the effective date clause, even though all of the resulting damage to the patient has not been suffered. Id. The Oxtoby Court then separately addressed the wrongful death claims and considered whether to split these claims from the court suit. Id.

If the wrongful death claims were separated from the personal injury action, they would undergo arbitration and potentially return to court at a later time. Id. at 98 , 447 A.2d 860 . The Court concluded that “[i]n cases like that at hand, both the plaintiffs and the defendant would have to endure the expense of concurrently litigating common questions in two different forums. Such a result violates one of the principle purposes of the Act” to reduce the costs of handling medical malpractice claims.

Id. The Court continued, “For the limited purpose of applying the effective date clause of the Act, we hold that where a medical injury has occurred to the patient prior to July 1, 1976, wrongful death actions based on the patient’s death as a result of that medical injury are not subject to the Act, regardless of when death occurs.” Id. at 99 , 447 A.2d 860 (emphasis added). The holding of Oxtoby , therefore, was based on the particular facts of the case and intended to effectuate the purpose of the Arbitration Act. The instant case does not present the same policy concerns associated with duplicative proceedings that was present in Oxtoby .

In the case at bar, the wives of Zumas and McCaf-fery brought actions in their individual capacity for wrongful death. McCaffery died on June 15, 1995 and Zumas died on May 7, 1995. Each wrongful death action arose when the plaintiffs spouse died, which was after October 1, 1994, the ¹⁵⁵ effective date of the statutory cap. Therefore, the statutory cap on noneconomic damages for wrongful death is applicable, and the trial court should have reduced the jury award for wrongful death to conform to the statutory cap.

B. LOSS OF CONSORTIUM AND OTHER PERSONAL INJURY DAMAGES Ms. Zumas, Ms. McCaffery, and Mr. Granski, spouses of injured plaintiffs, all filed loss of consortium claims in addition to the claims filed by their spouses for personal injury. Appellant s argue that the claims for personal injury and loss of consortium arose after July 1, 1986 but before October 1, 1994, and therefore, the $350,000 statutory cap set forth in C.J. § 11 — 108(b)(1) is applicable. Section 11 — 108(b)(1) provides that “[i]n any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.” Application of the statutory cap is triggered when “the cause of action arises.” Armstrong II, 326 Md. at 121 , 604 A.2d 47 . In Armstrong II , the Court held that a “cause of action arises” under the statutory cap set forth in C.J. § 11-108(b) when it first comes into existence, as distinguished from when a cause of action accrues.

Id. at 121, 604 A.2d 47 . A cause of action accrues when a plaintiff ascertains or should have ascertained “the nature and cause of his injury.’7d (citing Harig v. Johns-Manville Products Corp., 284 Md. 70, 83 , 394 A.2d 299 (1978)); see also Fetzer v. Wood, 211 Ill. App.3d 70 , 155 Ill.Dec. 626 , 569 N.E.2d 1237, 1243 (1991) (“Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another. However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware.”).

A cause of action arises in a negligence or strict liability case “when facts exist to support each element.” Id. at 121 , 604 A.2d 47 . In a negligence case the injury would be the last element to come into existence. ¹⁵⁶ Id. Therefore, in the instant case, as in Armstrong II , appel-lees’ noneconomic injuries award should be reduced under § 11-108 only if their “injuries” came into existence on or after July 1, 1986. Id. at 122, 604 A.2d 47 .

It is clear from the Court’s opinion in Armstrong II that a cause of action arises before the asbestos-related disease is diagnosed. “[Ijidentifying the time at which an asbestos-related injury came into existence is usually not a simple task ... [d]ue to the latent nature of asbestos-related disease, experts and courts alike have had difficulty in pinpointing its onset.” Armstrong, 326 Md. at 122 , 604 A.2d 47 . Based on the facts of the case, the Court, in Armstrong II , however, was not required to determine precisely when the asbestos-related injury came into existence. Armstrong was exposed to asbestos between 1943 and 1963, and an expert testified that asbestosis took between fifteen and twenty years to develop. Id. at 124 , 604 A.2d 47 .

Viewing the facts in the light most favorable to appellant, Owens-Illinois, the Court assumed that the initial damage occurred in 1963 and the latency period before developing asbestosis was twenty years. Id. Based on these facts, Armstrong’s disease would have developed by 1983, prior to the July 1,1986 effective date. Id.

Appellees contend that the last element of a negligence action, the injury, arises in an asbestos-related disease claim when an individual is first exposed to asbestos fibers causing cellular changes to begin. In Verbryke v. Owens-Coming Fiberglas Corp., 84 Ohio App.3d 388 , 616 N.E.2d 1162 (1992), the Court of Appeals of Ohio concluded, as appellees ask us to do, that pleural plaque or pleural thickening, an alteration to the lining of the lungs, satisfies the injury requirements of §§ 388 and 402A of the Restatement (Second) of Torts. The Ohio court concluded that impairment to the body, such as cellular changes caused from exposure to asbestos fibers, is an alteration to the structure of the body even if no other harm is caused. Id. at 395, 616 N.E.2d 1162 (citing Restatement (Second) of Torts §§ 7 and 15). ¹⁵⁷ In Maryland, however, “[t]o state a cause of action in negligence, a plaintiff must allege that the defendant had a duty of care which he breached, and that the breach proximately caused legally cognizable injury.” Faya v. Almaraz, 329 Md. 435, 448 , 620 A.2d 327 (1993) (citing Pennwalt Corp. v. Nasios, 314 Md. 433, 453 , 550 A.2d 1155 (1988)).

Similarly, in DiLeo v. Nugent, 88 Md.App. 59, 77 , 592 A.2d 1126 (1991), cert. granted, 325 Md. 18 , 599 A.2d 90 (1991), dismissed, 327 Md. 627 , 612 A.2d 257 (1992), we determined when a cause of action arose under the statutory cap, § 11-108, in a medical malpractice action. In DiLeo , we relied on the decision of the Court of Appeals in Hill v. Fitzgerald, 304 Md. 689 , 501 A.2d 27 (1985), which determined that a medical malpractice cause of action arises under C.J. § 11-108 when a negligent act, coupled with the resulting harm, amounts to a legally cognizable wrong. DiLeo, 88 Md.App. at 77 , 592 A.2d 1126 (citing Hill, 304 Md. at 696 , 501 A.2d 27 ). We concluded in DiLeo that plaintiffs cause of action arose on the date of the first negligent drug session instituted by her doctor.

Id.; see also Muenstermann v. U.S., 787 F.Supp. 499, 528 (D.Md.1992) (applying Armstrong II , in construing the applicability of the noneconomic damages cap, the court held that plaintiffs cause of action arose upon misdiagnosis and mismanagement of his labor). Asbestos-related disease cases, however, differ from cases in which the injury and harm result simultaneously. Mere exposure to asbestos fibers does not always result in asbestos-related disease even when the individual's body undergoes cellular changes. In Owens-Illinois v. Armstrong, 87 Md. App. 699, 734 , 591 A.2d 544 (1991), aff'd in part and rev’d in part, 326 Md. 107 , 604 A.2d 47 (1992) (hereinafter Armstrong I), we held, “To have a cause of action based on claims of product liability or negligence law submitted to the jury, the plaintiff must produce evidence of a legally compensable injury.” Id. at 734, 591 A.2d 544 (citing Wright v. Eagle-Picher Industries, 80 Md.App. 606, 615 , 565 A.2d 377 (1989)).

The plaintiffs in Armstrong I contended that the trial court erred when it instructed the jury that damages could not be award ¹⁵⁸ ed solely for the medical condition of pleural plaques or pleural thickening. Id. at 735 , 591 A.2d 544 . “Pleural plaques and thickening result from the scarring of the pleura, the thin membrane that keeps the lungs contained and configured to the chest wall and diaphragm.” Id. at 733 , 591 A.2d 544 . Medical experts agreed that pleural thickening and plaques are an alteration of an otherwise healthy pleura, but do not constitute any loss or detriment. Id.

In addition, the medical experts testified that pleural plaques do not cause any pain and have no health significance. Id. Based on this evidence, the court instructed the jury, “If you find that a plaintiff has only pleural plaques and/or pleural thickening and not asbestosis, then your answer to question one [on the verdict sheet] should be no as to that plaintiff. No damages may be awarded solely because of the pleural plaques or pleural thickening.” Id.

Plaintiffs in Armstrong I contended on appeal that their pleural scarring were nonconsented to alterations of their bodies, and as such, were grounds for compensation. Id. at 735 , 591 A.2d 544 . We held that mere alteration of the pleura is not a legally compensable injury, and thus the trial court’s instructions to the jury were proper. We reasoned that [sections 388 and 402A of The Restatement (Second) of Torts (1965) identify “harm” as one of the necessary elements of a cause of action in both negligence and strict liability.

The Restatement, in Section 7(2), defines “[t]he word ‘harm’ [as] used throughout the Restatement ... to denote the existence of loss or detriment in fact of any kind to a person resulting from a cause.” Comment b to section 7 further explains that “ ‘[h]arm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing---- In so far as physical changes have a detrimental effect on a person, that person suffers harm.” These definitions, as used in the Restatement (Second) of Torts, have been cited with approval in Maryland. ¹⁵⁹ Id. at 734 , 591 A.2d 544 . Mere exposure to asbestos and cellular changes resulting from asbestos exposure, such as pleural plaques and thickening, alone is not a functional impairment or harm, and therefore, do not constitute a legally compensable injury. 5 Id. In the instant case, Dr. Roggli testified for the plaintiffs that when asbestos fibers are inhaled they start causing cellular changes, but those cellular changes may not become mesothelioma, depending on the individual. Further, he stated that the cellular changes that occur before they become mesothelioma are not disease, according to Sted-man’s Medical Dictionary.

More recently, in Edmonds v. Cytology, 111 Md.App. 233 , 681 A.2d 546 , cert. granted, Rivera v. Edmonds, 344 Md. 330 , 686 A.2d 635 (1996), we interpreted the word “injury” within the context of C.J. § 5-109(a), the statute of limitations for medical malpractice claims. 6 Section 5-109(a) is triggered when the “injury” occurs. Id. at 257, 681 A.2d 546 . We stated, “A negligent misdiagnosis is not necessarily an ‘injury’ for purposes of limitations; a wrongful ‘act’ or ‘omission’ is not the same as an ‘injury’ ... the two need not necessarily occur simultaneously.” Id. at 257 , 681 A.2d 546 . We held that “[t]o determine whether an injury has been ‘committed’ so as to trigger the limitations period in C.J. § 5-109(a)(l), the touchstone of the inquiry is whether the patient has suffered harm that is legally cognizable.” Id. at 259, 681 A.2d 546 .

A legally cognizable wrong arises when a negligent act is coupled with some harm. Id. (citing Hill, 304 Md. at 696 , 501 A.2d 27 ). In reaching our conclusion in Edmonds, we also reasoned that, if ¹⁶⁰ plaintiffs had filed suit against appellees immediately after their allegedly negligent acts, the “suit may have been dismissed for lack of damages ... that could be proven with reasonable certainty.” Id. at 263, 681 A.2d 546 .

In Edmonds, we also relied on the holding of the Court of Appeals in Oxtoby. Id. at 259-60, 681 A.2d 546 . In Oxtoby , the Court of Appeals was asked to interpret the effective date clause of the Health Care Malpractice Claims Act, which requires claimants to submit to arbitration before seeking judicial remedies. Oxtoby, 294 Md. 83 , 447 A.2d 860 .

The Act provides an effective date of July 1, 1976 and states that it “shall apply only to medical injuries occurring on or after that date.” The Court rejected the definition of “injury” contained in § 7(1), comment a of the Restatement (Second) of Torts (1965), which states that the “invasion of a legally protected interest” could constitute an “injury,” even in the absence of harm. The Court stated that the “Act is concerned with the invasion of a legally protected interest coupled with harm.” The Court held that the invasion of the plaintiffs rights coupled with harm constitutes a medical injury and an actionable tort. Id. at 93, 447 A.2d 860 . 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.

Some jurisdictions have concluded that a cause of action arises in asbestos-related disease cases when the asbestos fibers are inhaled. Cole v. Celotex Corp., 599 So.2d 1058 (La.1992) (pinpointing the date that a cause of action arises “if dependent upon the date of contraction of the disease ... would require a hearing and the presentation of extensive medical evidence, and would work administrative havoc on our already burdened system”); see also Koker v. Armstrong ¹⁶¹ Cork, Inc., 60 Wash.App. 466 , 804 P.2d 659, 662-63 (1991) (held tort reform statute, which applies “to all claims arising on or after July 26, 1981, inapplicable to asbestos-related disease claims when the ‘injury-producing’ event, i.e. exposure to asbestos fibers, occurs prior to the effective date of the statute”); Krivanek v. Fibreboard Corp., 72 Wash.App. 632 , 865 P.2d 527 (1993) (harm results from the continuous exposure to asbestos fibers). In Peterson v. Owens-Coming Fiberglas Corp., 43 Cal.App.4th 1028 , 50 Cal.Rptr.2d 902 (1993), review granted, 54 Cal.Rptr.2d 693 , 918 P.2d 997 (1996), a California court apparently rejected the concerns set forth in Cole. The court in Peterson stated that “[defendant] objects that a test hinging on the inception of an undetected disease will unnecessarily interject confusing and questionable medical testimony into asbestos trials, making outcomes uncertain and inviting speculation, manipulation of facts, and ‘statistical guessing.’ Of this parade of horribles, we agree that the test we set forth here will in most, if not all, cases require the testimony of medical experts.” Id. at 1039, 50 Cal.Rptr.2d 902 .

Other jurisdictions follow a similar approach in determining when a plaintiffs cause of action in an asbestos-related injury claim arises. In Hawaii, a federal district court, applying Hawaiian law, found on the evidence that pleural plaques or pleural thickening represented no functional impairment, and thus, no cause of action had arisen. See In re Hawaii Fed. Asbestos Cases, 734 F.Supp. 1563, 1567-68 (D.Haw.1990). Likewise, the Arizona intermediate appellate court held that plaintiffs’ claims for personal injuries could not be maintained absent evidence of physical impairment, which was not shown merely because plaintiffs have asbestos fibers in their lungs which are causing changes in the lung tissue.

Burns v. Jaquays Mining Corp., 156 Ariz. 375 , 752 P.2d 28, 30 (Ct.App.1987). Similarly, the Supreme Court of Maine was required to construe the effective date clause of a manufacturer liability statute. Bernier v. Raymark Industries, Inc., 516 A.2d 534 (Me.1986). The clause provided that the “Act shall not be ¹⁶² construed to affect any cause of action arising prior to the effective date of this Act.” Id. at 541 .

The court stated that there is no cause of action until a plaintiff has suffered an identifiable compensable injury. “In the context of asbestos-related injuries, it can take anywhere from ten to forty years from the time of actual asbestos fiber inhalation for injuries or diseases, if any, to manifest themselves.” Id. at 542 . The court concluded that an actionable harm arises when the disease manifests in the body and not from mere exposure to the potentially hazardous substances. Id. at 542 ; see also Simmons v. Pacor, Inc., 543 Pa. 664 , 674 A.2d 232, 237 (1996) (pleural thickening, absent physical impairment, is insufficient to sustain a cause of action). Similarly, the California intermediate appellate court, citing Armstrong II with approval, held that an “injury” occurs when a physiological change takes place that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action.

Peterson, 50 Cal.Rptr.2d at 912-914. Finally, appellees rely on Mitchell, Inc. v. Maryland Casualty Co., 324 Md. 44 , 595 A.2d 469 (1991) to support their position that an “injury” occurs when asbestos fibers are inhaled. In Mitchell, the Court of Appeals, interpreting the meaning of “bodily injury” within an insurance policy, held: Considering the plain meaning of the term “bodily injury,” as used in the policy, and in light of the medical evidence concerning the development of asbestos-related diseases, we align ourselves with the overwhelming weight of authority in the country and conclude that “bodily injury” occurs when asbestos is inhaled and retained in the lungs. Id. at 62 , 595 A.2d 469 (emphasis added).

Injury, however, may be interpreted differently depending upon the context in which it is being used. This interpretation is not applicable to the instant case. We follow the reasoning espoused in Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P.2d 28 (Ct.App.1987) (quoting Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir.1985)): ¹⁶³ [T]he possible existence of subclinical asbestos-related injury prior to manifestation may be ... of vital concern to insurers and their insureds who have bargained for liability coverage triggered by “bodily injury.” We believe, however, that subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiffs interest required to sustain a cause of action under generally applicable principles of tort law. Id. 752 P.2d at 30 .

To summarize thus far, a cause of action arises in an asbestos-related injury claim for purposes of determining the applicability of C.J. § 11-108 when each of the elements of the claim are met. In Maryland, the injury element of a negligence claim is satisfied when a wrongful act is coupled with some harm. See Armstrong I, 87 Md.App. 699 , 591 A.2d 544 . “To set forth a viable claim for negligence, a plaintiff must allege, inter alia, ‘damages.’ ” Edmonds, 111 Md.App. at 261 , 681 A.2d 546 . As we held in Armstrong I , a cause of action in an asbestos-related injury claim does not arise until the asbestos fibers inhaled into the lungs cause functional impairment.

The Court’s analysis in Armstrong II implies that such an injury occurs when the individual acquires the asbestos-related disease. Armstrong II, 326 Md. at 124 , 604 A.2d 47 . Although the Court in Armstrong II did not have to determine precisely when the asbestos-related “injury” occurred, it obviously looked beyond the date when plaintiff was exposed to asbestos and determined instead, when the earliest date of asbestosis would arise. Id.

Based on Armstrong and other case law discussed supra, the statutory cap is not applicable to appellees’ awards of noneconomic damages if their exposure to asbestos fibers caused them to develop mesothelioma prior to the effective date of the statutory cap, July 1,1986. Appellees argue that we have the benefit of hindsight and thus are aware that cell changes were permanent and caused functional impairment. Although that proposition may be true, the time at which the impairment occurred is still the date on which the cause of action arises. Prior to that date, ¹⁶⁴ appellees would have had no cause of action had they filed a complaint.

Thus, we must determine whether the mesothelio-ma existed prior to 1986. The expert witnesses testified that, generally, mesothelioma begins to grow ten years prior to diagnosis. The time between development of cancer and diagnosis, however, could be anywhere from five to ten years. One expert testified that the cancer began, at the earliest, three years prior to diagnosis.

At trial, an expert witness for the plaintiffs, Dr. Mark, a pathologist, testified about Granski’s exposure to asbestos. Dr. Mark testified that every exposure that occurs prior to the tumor becoming malignant contributes to the development of the tumor. Dr. Mark further stated that typically the interval between the tumor starting and the diagnosis of mesothelioma is between six months and three years. Dr. Gabrielson testified on direct that “probably sometime around 10 years before that cancer was recognized by the doctors, there was a tiny little cancer growing.” Dr. Gabriel-son also stated that the latency period for mesothelioma, the time from initial exposure to the time of diagnosis of the disease, ranges anywhere from eighteen to fifty years.

Later, on cross-examination, defendants’ attorney asked Dr. Gabriel-son about his testimony concerning the latency period prior to diagnosis of mesothelioma. Dr. Gabrielson stated that “the time that [sic] cell has produced a clinically recognized tumor is on the order of five to ten years, probably more likely ten years ... I don’t think there is any absolute measure of that.” Similarly, Dr. Roggli testified that “it takes on average approximately 10 years for the tumor to become diagnosable clinically from the time it starts growing its individual cancer cell.” Dr. Roggli further explained that sarcomatoid tumors, which Grimshaw had, grew at a faster rate than biphasic variants of a mesothelioma, and begin growing sometime within five years prior to diagnosis. He further stated that epithelial cell-type mesothelioma, like that observed in Zumas, begin to grow sometime within ten years prior to diagnosis. ¹⁶⁵ Unfortunately, we are without the benefit of the trial court’s reasoning in denying appellants’ motion to apply the statutory cap to noneconomic damages.

We, therefore, must assume that the trial court denied appellants’ motion to apply the statutory cap based on the expert testimony that mesothelioma occurred prior to July 1, 1986. Such a finding is not clearly erroneous because there is evidence in the record to support it. Dr. Gabrielson and Dr. Roggli testified that, typically, mesothelioma exists ten years prior to diagnosis. Although there was evidence in the record contrary to that of Dr. Gabrielson and Dr. Roggli, it was up to the trial court, as the trier of fact on that issue, to weigh the evidence and reach a final determination.

Plaintiffs Grimshaw, McCaffery, and Zumas were all diagnosed with mesothelioma in 1994, and plaintiff Granski was diagnosed with mesothelioma in 1993. Their causes of action, however, for purposes of C.J. § 11-108, arose when their bodies developed cancers, which was at least seven years prior to diagnosis in the case of Granski, and at least eight years prior to diagnosis in the cases of the other three plaintiffs. The record supports such a finding; therefore, we affirm the trial court’s holding that the statutory cap for noneconomic damages for personal injury does not apply to the instant case. Finally, appellants argue that, even if the statutory cap does not apply to the underlying personal injury claims, it must still apply to the consortium claims.

The spouses of Zumas, McCaffery, and Granski all filed loss of consortium claims. “A claim for loss of consortium arises from the loss of society, affection, assistance, and conjugal fellowship suffered by the marital unit as a result of the physical injury to one spouse through the tortious conduct of a third party.” Oaks v. Connors, 339 Md. 24, 33-34 , 660 A.2d 423 (1995) (citing Deems v. Western Maryland Railway Company, 247 Md. 95, 100 , 231 A.2d 514 (1967)). The statutory cap, provided at C.J. § 11-108, applies to noneconomic damages. Section ll-108(a) states: (1) “Noneconomic damages”: ¹⁶⁶ (i) In an action for personal injury, means pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury. In Oaks , the Court of Appeals held that “a loss of consortium claim is derivative of the injured spouse’s claim for personal injury, and therefore, a single cap for noneconomic damages applies to the whole action.” Oaks, 339 Md. at 38 , 660 A.2d 423 .

Loss of consortium is not a separate action. The Court reasoned that allowing a separate cap for loss of consortium claims “would circumvent the Legislature’s intent to limit noneconomic damages and avoid double recoveries----” Id. at 38 , 660 A.2d 423 . In the case at bar, each plaintiff exposed to asbestos suffered personal injury when he or she developed mesothelioma, which was prior to 1986. It is true, however, that some of the harm plaintiffs suffered as a result of those personal injuries, i.e., loss of consortium, did not occur until after the effective date of the statute.

The record indicates that the Granskis’ marital life changed when Mrs. Granski entered the hospital in the summer of 1993. Mrs. McCaffery testified that her husband was fine until October 1993 when he was admitted to the hospital and underwent a biopsy and doctors discovered that he had mesothelioma. A videotaped deposition of Mr. Zumas taken prior to trial was played at trial. Mr. Zumas testified that up until 1992 his health was good.

Zumas testified that, beginning in October 1993, his health was a “lousy, living, hell.” Mr. Zumas underwent an operation in July 1994 when he was diagnosed with mesothelioma. Although plaintiffs continued to suffer damages, as a result of their personal injuries, after the effective date of the statute, as in Oaks, the cause of action arose prior to the effective date. Oxtoby, 294 Md. at 97 , 447 A.2d 860 (the fact that some of the monetary compensation sought was for harm arising after the effective date, did not make the statute applicable when the cause of action arose prior to the effective date); see also Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549 , 429 A.2d 538 (1981); Dennis v. Blanchfield, 48 ¹⁶⁷ Md.App. 325, 428 A.2d 80 (1981), modified, 292 Md. 319 , 438 A.2d 1330 (1982) (both these cases stand for the proposition that a medical injury occurs, within the meaning of the effective date clause, even though all of the resulting damage to the patient has not been suffered prior to the Act’s effective date). Therefore, we conclude that appellees’ claims for damages resulting from their personal injuries, including damages for loss of consortium, arose prior to the effective date of the statute and, therefore, are not subject to the statutory cap.

Damages resulting from appellees’ wrongful death claims, however, should be reduced in accordance with C.J. § 11-108(b). II CONFIDENTIALITY OF THE SETTLEMENT AGREEMENTS Following the jury verdicts, the trial court made statutory adjustments to compensatory damages. The Uniform Contribution Among Tort>-Feasors Act (UCATA), Md. Code (1957,1994 Repl.Vol.), Art. 50, § 19 provides: A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. The purpose of the Act is to prevent double recovery.

Armstrong II, 326 Md. at 126 , 604 A.2d 47 . Thus, “[t]he amount recoverable from the nonsettling defendant when added to the amount recoverable from the settling defendant cannot exceed the plaintiffs verdict.” Id. In the instant case, at the conclusion of trial, the court adjusted the amount of judgments entered in favor of each of ¹⁶⁸ the parties to take into account the various settlements. The court asked the parties “to prepare for the Court final judgments in each of these cases taking into account all of the settlements are [sic] involved ... please submit to the court no later than ...

January 2nd so that the Court can then enter final judgments.” As a result of the court’s instructions, plaintiffs submitted proposed final judgments, as did defendant O-I. Appellants, however, argue that the information needed to make a determination under Md.Code (1957, 1994 RephVol.), Art. 50, § 19 was supplied to the court ex parte, and sealed without notice or stated justification. Appellants argue that the trial court erred when it denied Porter Hayden’s motions to compel production of the information that was delivered ex parte and used to adjudicate the defendants’ liability. Appellees argue that plaintiffs have never been required to provide defendants with settlement information, because of the ongoing nature of the litigation. In fact, appellees contend, both parties have an interest in non-disclosure of settlement amounts because such information may affect future settlement negotiations in other cases.

Such a practice of confidentiality, appellees contend, is customary in asbestos-related cases in Baltimore City. We conclude that appellees’ submissions were not ex parte. Ex parte communication is a communication about a case that an adversary makes to the decision maker without notice to an affected party. A judicial proceeding, order, or injunction is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only and without notice to or contestation by, any person adversely interested.

See generally Caldwell v. State, 51 Md.App. 703 , 445 A.2d 1069 (1982). Here, both parties were given the opportunity to submit information to the court with regard to settlement releases and proposed final judgments. Moreover, O-I did' submit proposed orders. Thus, appellants’ rights were not denied under Md. Rule 1-351 (delineates circumstances when court may proceed ex parte ). ¹⁶⁹ Prior to the entry of any final order, appellants had notice that the materials were submitted to the court for review.

In addition, appellants were not prejudiced by the court’s refusal to produce the information submitted by appellees because they possessed the information necessary to determine the correct application of UCATA. In the cases of Zumas, McCaffery, and Granski, all parties were aware of the total value of the judgment, the number of joint tort-feasors, the pro rata share amount, the release types, and the fact that no settlement exceeded the pro rata share amount. In the Grimshaw case, seven settlements exceeded the pro rata share amount and two did not. The court properly reviewed the settlement amounts and applied the provisions of UCATA to determine the appropriate set-offs.

Finally, we find no merit in appellants’ argument that the trial court improperly sealed the information used to reach its determination. In Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 530 , 682 A.2d 1143 (1996), the Court followed this same procedure when adjusting the compensatory award under the UCATA. Id. at 531 , 682 A.2d 1143 (the precise terms of the settlement were sealed by the trial judge and not made a part of the record on appeal). Appellants rely on Baltimore Sun v. Colbert, 323 Md. 290, 305-6 , 593 A.2d 224 (1991) (notice must be provided prior to counsel’s request to seal).

Baltimore Sun is not analogous to the case at bar. Nor is there merit in appellants’ argument that sealing the information deprived defendants of their opportunity to move, pursuant to Md. Rule 2-535, to correct any error made in calculating the judgment. Because the information was properly sealed, appellants’ rights were not denied under Md. Rule 2-535. Ill MANVILLE TRUST Each of the plaintiffs involved in this appeal settled a claim for mesothelioma against Johns- Manville Corporation with the Manville Personal Injury Trust (Trust).

The Trust was created in 1988, pursuant to the bankruptcy-court-approved Second ¹⁷⁰ Amended and Restated Plan of Reorganization of Manville, and it assumed liability for all health claims brought against Manville and “Other Asbestos Obligations” of Manville. Plaintiffs in the case at bar are beneficiaries of the Trust, as are codefendants, formerly joined with Manville in asbestos-related litigation. 7 The number of claims filed against the Trust were far greater than the bankruptcy court anticipated, and as a result, the Trust became insolvent, which led to a series of cases beginning in November 1990 to restructure the Trust. In Re Joint Eastern & Southern Dist. Asbestos Litig., 982 F.2d 721 (2d Cir.N.Y.1992), modified, 993 F.2d 7 (2d Cir.N.Y. 1993).

The class action brought against Manville was settled during trial. The Settlement Agreement provides that the rights and duties of the Trust and all class members are governed by the Trust Distribution Process (TDP). The TDP sets forth the procedures for processing and evaluating claims against the Trust “with the intention of paying all claimants over time as equivalent a share as possible of their claims’ value.” In Re Joint Eastern & Southern Dist. Asbestos Litig., 78 F.3d 764, 769 (2d Cir.N.Y.1996) (hereinafter Manville V).

TDP provides that any unresolved dispute about the value of a claim is subject to arbitration, and if the dispute is not resolved by arbitration, the claimant may pursue a tort suit against the Trust. Id. at 770 . The TDP also governs code-fendant claims against the Trust by providing set-off and contribution rules. The Trust is to be treated as a joint tort-feasor without the need to introduce any proof.

Section H.3 of the TDP refers to local law for the calculation of the set-off. In Manville V, the court stated that the TDP recognizes different rules in three categories of states: ¹⁷¹ pro tanto states, in which the judgment against non[-]settling defendants is reduced by the amount paid or agreed to be paid by a released party; pro rata states, in which the total liability is divided equally among all defendants held to be legally responsible tort[-]feasors, and the judgment is reduced by a released party’s pro rata share of liability; and apportionment states, in which liability is apportioned by the faet[ jfinder among those found to be tort[-]feasors, and the amount of the judgment is to be reduced with reference to the apportioned share of a released or absent tort[-]feasor. Id. at 770-71 . In pro rata and pro tanto states, the TDP alters state set-off rules by “indemnifying the Trust against contribution claims arising from judgments obtained by health claimants, if a set-off credit is awarded by the trial court in accordance with the TDP and local law.” Id. at 771 .

Only one issue was left unresolved by the Settlement Agreement. Plaintiffs who resided in Maryland contended that the set-off provisions of the TDP dealt with them in a way unpermitted by Maryland law, and that they were treated unfairly in comparison with other plaintiffs. The parties agreed that the TDP set-off provisions would be inapplicable to claims arising under Maryland law and the parties consented to have the federal court determine appropriate set-off rules that should be applied in claims arising under Maryland law. Id. at 771 .

On February 21, 1996, the Second Circuit issued an order requiring the district court to resolve this issue by predicating “how the Maryland Court of Appeals would apply Maryland set-off principles ... in the context of the present Settlement.” Id. On May 13, 1996, the federal district court, interpreting Maryland law, held: In cases tried to verdict, the Trust shall not be counted as a joint tort[-]feasor in calculating the value of the statutory pro rata shares of the verdict. If the plaintiff has settled his or her claim with the Trust at or before the time judgment is entered, the judgment against any non-settling ¹⁷² tort[~]feasors shall be reduced by the amount of the settlement. Where there is more than one such non-settling tort[-]feasor, they shall share the benefit of such reduction on a pro rata basis.

Manville VI, 929 F.Supp. 1 (E.D.N.Y. and S.D.N.Y.1996). The court held that its interpretation should be applied in Maryland asbestos cases involving the Trust. Meanwhile, the jury returned special verdicts in favor of plaintiffs against codefendants on December 21, 1995 in the Circuit Court for Baltimore City. The trial judge, taking account of appropriate release and settlement agreements, made statutory adjustments to compensatory damages and issued final judgments in Zumas and Granski on March 11, 1996, in McCaffery on April 15, 1996, and in Grimshaw on April 16, 1996.

The court accounted for the Trust in McCaf-fery and Zumas by taking a pro tanto reduction. Similarly, in Grimshaw, the court stated that under the terms of the Manville bankruptcy, the Trust is considered to be a joint tort-feasor, but “that the judgment in the instant case is only to be reduced by the actual amount of the settlement by the Trust.” Likewise, in Granski the court stated that the Trust is to be considered a joint tort-feasor and the defendant is entitled to a pro tanto deduction in the amount of $20,000 from the damages awarded by the jury. The court entered final judgments after the Second Circuit had remanded the Manville Trust proceedings to the New York district court to decide the appropriate application of Maryland law under the settlement agreement. In addition, the circuit court was aware of the Second Circuit’s decision when, on March 11,1996, OC filed an objection to, and motion to stay, entry of final judgment pending the decision by the federal court.

In addition, on May 14, 1996, Porter Hayden filed a motion to revise the April 16, 1996 judgment in the Grimshaw case, pursuant to Md. Rule 2-535, to comply with the controlling May 13, 1996 order of the federal district courts. The circuit court, however, did not exercise its reviso-ry powers. ¹⁷³ Appellants assert that “the judgments in each of these cases fails to appreciate federal jurisdiction over this question, and fails to apply the controlling order in determining the effect of the Trust settlements on the judgments below.” The trial court, in our view, had fundamental jurisdiction to adjust compensatory damages and issue a final judgment in the instant cases. Fundamental jurisdiction is “the power residing in [a] court to determine judicially a given action, controversy, or question presented to it for decision.” Pulley v. State, 287 Md. 406, 415 , 412 A.2d 1244 (1980) (quoting Fooks' Executors v. Ghingher, 172 Md. 612, 621 , 192 A. 782 (1937)). “If by that law which defines the authority of the court, a judicial body is given the power to render a judgment over that class of cases within which a particular one falls, then its action cannot be assailed for want of subject matter jurisdiction.” First Federated Commodity Trust Corp. v. Comm’r of Sec., 272 Md. 329, 335 , 322 A.2d 539 (1974). In Pulley , the Court also stated that “merely because a trial may continue when an appeal is taken from an interlocutory order does not mean that a trial judge should normally do so.... ” Pulley, 287 Md. at 417 , 412 A.2d 1244 .

In Pulley , the Court held that the defendant’s filing of an interlocutory appeal, challenging the denial of a motion to dismiss based on double jeopardy grounds, absent a stay, rule or statute, did not suspend the trial court’s jurisdiction during the pendency of the appeal. A trial court’s fundamental jurisdiction may be interrupted by statute, rule, or a stay granted by an appellate court or the trial court. Id. at 417 , 412 A.2d 1244 ; see also McNeil v. State, 112 Md.App. 434, 459-460 , 685 A.2d 839 (1996). In the case at bar, no stay order requiring the court to suspend its jurisdiction pending the federal decision was granted.

Therefore, the lower court did not have to consider the federal district court’s interpretation of the settlement release before issuing a final judgment under the UCATA against the nonsettling defendants. In addition, the federal court’s decision does not control the circuit court’s ultimate conclusion. Maryland set-off rules aim to have each defendant pay its pro rata share and the plaintiff ¹⁷⁴ to receive the full amount of his or her judgment from the responsible tort-feasors. The assumption under the Maryland’s statutory scheme is that nonsettling codefendants can seek contribution from settling defendants. 8 The trial court’s conclusion was not dependent upon the conclusion reached in the federal court.

The circuit court had, inter alia, the authority to “distribute” the verdict reached by the jury between the codefendants in accordance with the UCATA. The settlement agreement makes clear that the Trust is a joint tort-feasor. According to the TDP, the Trust paid ten percent of its pro rata share. The court, thus, treated the Trust as a pro tanto releasee.

Pro rata share is not defined in the UCATA. In Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579 , 398 A.2d 490 (1979), we stated that “pro rata” is a generic term meaning in a proportion, related in legal use to dollars as often as it is to people. Id. “A pro rata contribution by its most extended colloquial connotation means no more than an aliquot division, i.e., that no one person will be compelled to bear the whole, or more than his just share of the common binder or obligation.” Id. at 619 , 398 A.2d 490 . A pro tanto release, on the other hand, means partial payment made on a claim.

A pro tanto set-off does not extinguish a joint tort-feasor’s right of contribution against a settled joint tort-feasor. Md.Code (1957,1994 Repl. VoL), Art. 50, §§ 19 and 20. Appellant does not specifically assert that the circuit court’s ruling with respect to application of Maryland set-off rules ¹⁷⁵ was error, but that the court did not have the authority to determine the question addressed because authority over that question was vested in federal district courts and “the interpretation of the Trust settlement employed into the judgments has been definitively rejected” by the federal court in Man-ville VI.

No appeal is taken from the trial court’s decision other than it should not have decided the issue when it did and it should have conformed to the federal court’s decision. For the reasons stated supra, we disagree and affirm the circuit court’s judgment with respect to the Manville Trust. IV STIPULATED DAMAGES IN GRIMSHAW Appellants argue that the trial court erred in denying appellant Porter Hayden’s unopposed motion in the Grimshaw case for remittitur, or in the alternative, a new trial. The motion requested the court to conform the judgment for economic damages, awarded by the jury, to the amount stipulated by the parties.

At trial, the parties stipulated that the total amount of medical expenses was $18,017.74. There is no evidence of economic loss other than the stipulated medical expenses. In Bloom v. Graff, 191 Md. 733 , 63 A.2d 313 (1949), the Court held that “[w]here such a stipulation is agreed to by counsel the orderly trial of the case demands that the parties be bound thereby.” Id. at 736 , 63 A.2d 313 . In Bloom , during trial, the attorney for plaintiff stated in open court that it was stipulated and agreed between counsel for the parties that if a verdict is returned in favor of the plaintiff, it should be in the amount of $896.09.

Id. at 735-6 , 63 A.2d 313 . The jury returned a verdict in favor of the plaintiff for $250. Id. The Court, quoting Inloes v. American Exchange Bank, 11 Md. 173, 185 (1857), stated, “[Fjinding of fact must be left to the jury; but this is not necessary when the case is tried upon admissions at the bar.

The jury may discredit the testimony, but cannot find contrary to the agreement of the parties.” Id. at 737, 63 A.2d 313 ; see also State v. Broberg, 342 Md. 544 , ¹⁷⁶ 559, 677 A.2d 602 (1996) (parties are bound by their stipulations). A trial court, however, may decline to accept a stipulation if it finds that the facts of the stipulation are untrue, or if one of the parties can show that the stipulation should be set aside based on contract principles of collusion, fraud, mutual mistake, or other grounds that would justify setting aside of a contract. See Peddicord v. Franklin, 270 Md. 164 , 310 A.2d 561 (1973) (“Ordinarily, courts have no power to permit juries to make findings contrary to the terms of a stipulation of the parties in the case.”); see also C & K Lord, Inc. v. Carter, 74 Md.App. 68, 94 , 536 A.2d 699 (1988). In the case at bar, appellees did not object to the stipulation at trial, nor did they oppose appellants’ motion for remittitur.

Moreover, appellees make no argument on appeal and thus do not assert any reason why the stipulation should not be accepted. We hold that the stipulation is binding on the parties, and, therefore, that the trial court abused its discretion when it denied appellants’ motion for remittitur to reduce the jury award of $100,000 for medical expenses to the stipulated amount of $18,017.74. That error, however, does not require a new trial. The liability of the parties has been determined by the verdict of the jury and the amount of damages by the stipulation.

The Grimshaw case is remanded to the trial court to enter judgment on economic damages consistent with this opinion. y WESTINGHOUSE’S LIABILITY IN GRIMSHAW In Grimshaw, the jury returned a verdict against third-party defendant Westinghouse in favor of third-party plaintiff, Owens-Corning (OC). On March 11, 1996, the lower court entered final judgment in Grimshaw, stating that, although plaintiff never sued Westinghouse, the jury found it to be a joint tort-feasor, and the court would consider Westinghouse in adjusting the verdicts for compensatory damages in accor ¹⁷⁷ dance with Md.Code (1957, 1994 Repl.Vol.), Art. 50, §§ 16-24. On April 1, 1996, OC filed a notice of appeal to this Court. On April 10, 1996, Westinghouse simultaneously filed a notice of appeal and a motion requesting the trial court to revise its judgment in the Grimshaw case to state that Westinghouse is not a joint tort-feasor.

On April 16, 1996, the court issued a subsequent order vacating the verdict against Westinghouse in favor of OC “because Westinghouse erroneously appeared on the verdict form as a third-party defendant after all claims against Westinghouse had been waived or withdrawn by Owens-Corning Fiberglas.” The final judgment, nevertheless, counted