Christensen v. Philip Morris USA Inc.

HOLLANDER, J. This appeal involves the interplay of the statute of limitations, the discovery rule, and the doctrine of equitable tolling, and the competing policies that support each one. Russell E. Christensen (“Christensen” or the “Decedent”), was diagnosed with lung cancer in mid 1998. Although Christensen had been a cigarette smoker for thirty years, he had ceased smoking more than twenty years before he was diagnosed with lung cancer, from which he died on January 17, 2001, at the age of seventy-three. On August 18, 2001, Nona Christensen, appellant, the Decedent’s widow, individually and as Christensen’s personal representative, brought a survival and wrongful death action 1 against a host of tobacco manufacturers and related entities.

They include appellees Philip Morris USA Inc. (“Philip Morris”); 2 Lorillard Tobacco Co.; and Liggett Group, Inc. (“Lig-gett”), manufacturers of cigarette products, and appellees Giant Food, LLC (“Giant”); Crown Service, Inc.; George J. Falter Co., Inc.; and A & A Tobacco Company, Inc., entities ⁶¹⁹ involved in the sale and distribution of cigarettes. 3 Ms. Christensen sought compensatory and punitive damages based on strict liability (failure to warn), fraudulent misrepresentation, fraud by concealment, loss of consortium, and conspiracy. The suit was amended on September 25, 2002, to add as plaintiffs the Decedent’s two adult children: appellants Eric Lowell Christensen (born August 14, 1963) and Lisa Marie Christensen Kelly (born December 10, 1960). With one exception, all of the appellees in this case had previously been sued in a class action brought in Maryland by smokers, former smokers, and their families. Although Christensen was not a named party in the class action, he was a potential class member.

The case sub judice was filed several months after the class action was decertified by the Court of Appeals in Philip Morris Inc. v. Angeletti, 358 Md. 689 , 752 A.2d 200 (2000). Appellees moved for summary judgment in this case, alleging that suit was barred by limitations because the Decedent knew in the Spring of 1998 that he had lung cancer, and thus was on inquiry notice at that time. In response, appellants claimed, inter alia, that Christensen’s claim did not accrue until September 1998, when he learned that his cancer was caused by cigarette smoking. Moreover, they suggested that, because Christiansen was an ex-smoker for more than two decades, he lacked sufficient knowledge at the time of diagnosis to link his lung cancer to smoking.

The circuit court granted appellees’ motion. Among other things, it concluded that the claims accrued more than three years before suit was filed, and that limitations was not tolled during the pendency of the unsuccessful class action suit. On appeal, appellants present the following three questions: ⁶²⁰ I. Did the trial court err in refusing to consider whether the statute of limitations was tolled during the pen-dency of the Maryland class action tobacco case?

II

Did the trial court err in granting summary judgment in favor of the defendants as to Appellant’s survival action on the ground that the action was barred by limitations?

III

Did the trial court err in declaring that Appellant’s wrongful death claims were barred by the statute of limitations? For the reasons set forth below, we shall reverse and remand. FACTUAL SUMMARY 4 Christensen was born in 1927 and was well educated. He worked for a period of time as a teacher and then as a school principal.

In 1970, he obtained his law degree. In May 1996, the case of Richardson v. Philip Morris Inc. was filed in the Circuit Court for Baltimore City against various manufacturers of tobacco, their Maryland distributors, and others, seeking damages on behalf of the named plaintiffs and similarly situated “Maryland residents (a) who have suffered or continue to suffer from physical injuries or disease caused by smoking cigarettes or using smokeless tobacco products, and/or (b) who are nicotine dependent and plead addiction as an injury.” Philip Morris Inc., 358 Md. at 700 , 752 A.2d 200 . The Richardson plaintiffs moved for class certification in September 1997. Id. at 701 , 752 A.2d 200 .

In January 1998, pursuant to Md. Rule 2-231 (b)(3), the circuit court approved for class action treatment some eight tort and contract causes of action, one consumer protection claim, and one claim for “medical monitoring.” Id. Thereafter, the circuit court issued an order certifying two classes. In general, the classes consisted of: a) Maryland residents (or their estates ⁶²¹ and families) who, as current or former smokers, sustained injury, illness, or death caused by cigarettes, and b) those who were “nicotine dependent persons.... ” Id. at 701 , 752 A.2d 200 . Unhappy with the class certification, the defendants filed a petition in the Court of Appeals for a writ of mandamus or prohibition, asking that Court to “direct” the circuit court to vacate the class certification.

Id. at 699 , 752 A.2d 200 . Christensen was not a named party in Richardson, nor did he move to intervene in the class action. However, he was a potential class member. Moreover, all of the appellees (except Giant) were aware of Christiansen’s status as a putative class member.

In particular, on May 11, 1999, Christensen provided an affidavit for the plaintiffs in the Richardson case, describing his smoking history and the history of his lung cancer. And, in June 1999, he provided a videotaped de bene esse deposition in the Richardson case. At his deposition, Christensen was represented by appellants’ present counsel, who were also the attorneys for the plaintiffs in Richardson. In an opinion dated May 16, 2000, issued in the Richardson case, the Court of Appeals granted the relief of mandamus and ordered the circuit court to decertify the class.

Philip Morris Inc., 358 Md. at 699, 787-88 , 752 A.2d 200 . Thereafter, on March 13, 2001, the parties in the Richardson case filed a “Stipulation of Dismissal” in the circuit court, in which they agreed that, for the purpose of limitations, any claims reasserted by the named parties within six months of the dismissal would be deemed filed on the same date that Richardson had been filed. The Stipulation, however, did not extend to the claims of the parties in the case sub judice. As noted, the suit at issue here was filed on August 13, 2001.

In September 2003, appellees moved for summary judgment in the case sub judice, claiming that appellants’ claims were barred by limitations. According to appellees, Christensen had both actual and inquiry notice of his claims more than three years before suit was filed on August 13, 2001. Appel-lees asserted, in part: By his own admission, Mr. Christensen knew before August 13, 1998 that he had lung cancer, which he attributed to ⁶²² smoking, and was thus on notice of his possible claims more than three years before suit was filed. Indeed, Mr. Christensen had reason to suspect, as early as the Fall of 1997 and clearly no later than the Spring of 1998, that he might have been injured by smoking, and was thus on at least inquiry notice of his potential claims by that earlier time.

Plaintiffs’ survival claims, which were not filed until more than three years later, are thus time-barred. Further, because any direct claim by Mr. Christensen is time-barred, Plaintiffs’ wrongful death claim is also barred. This is a consequence of the plain language of Maryland’s Wrongful Death Act, which provides that if the decedent’s claim would be barred, any wrongful death claim by his beneficiaries also cannot succeed. In support of their motion, appellees submitted numerous exhibits, including the Decedent’s affidavit and deposition testimony from the Richardson case.

Appellees also provided the deposition testimony of the Decedent’s physicians and family members, as well as some of his medical records. In their opposition, appellants argued that Christensen did not have actual or inquiry notice of his lung cancer until September 1998, when he obtained the results of a needle biopsy that was performed on August 13, 1998. Further, they argued that the wrongful death claims were not barred because suit was filed within three years of Christensen’s death. In addition, they asserted that “[a]ll statutes of limitations applicable to the action filed by [appellants] were tolled by their membership in the Richardson Tobacco Class Action and no statute of limitations applicable to the Christensen action began to run until class decertification on June 15, 2000.” Appellants also submitted additional medical records and deposition testimony.

According to Christensen’s affidavit 5 and deposition, he began smoking cigarettes in 1940 or 1941, when he was ⁶²³ fourteen years old, “because it was the thing to do.” He changed brands over the years, and eventually his smoking habit increased to two packs a day. At some point during the 1950’s or 1960’s, Christensen “became aware generally” of the “health hazards associated with cigarette smoking.” Moreover, he was familiar with the Surgeon General’s warning on the side of the cigarette packaging. In approximately 1968, Christensen ceased smoking cigarettes in his home, car, and around his family, for a variety of reasons. During the early 1970’s, the effects of approximately thirty years of smoking began to affect Christensen’s health.

He averred in his affidavit that because he “developed an early morning cough,” he “attempted to cut back [his] cigarette consumption.” Ms. Christensen, who was employed by the Maryland Department of Health and Mental Hygiene in the 1970’s, enrolled her husband in the Johns Hopkins Lung Project (the “Project”), which was gathering data on smokers. Christensen joined the Project in approximately 1974 and remained a participant until 1982. He explained: Well, once a month we would go down and breathe in this — I don’t know what it was called, a machine, breathalyzer which injected saline solutions into your lungs, and you breathed on that until it caused you to dispense sputum, and then they would take that sputum and analyze it. They would send you home with little jars, and every morning you would sit over the stove and breathe your own concoction of saline solution, and then they would give you x-rays and take that data.

I never received a report. Basically that is what it was. According to Christensen, on January 15, 1976, a representative of the Project contacted him and told him that he had an unidentified “lung problem.” On that day, after thirty-five years of smoking, Christensen quit, “cold turkey.” Moreover, ⁶²⁴ he testified that he never resumed smoking cigarettes. Christensen recalled: “Certain days ... scare the hell out of you, and that was one of them.

You just don’t forget.” Christensen acknowledged that he was “fully aware” of the association between smoking and lung cancer when he received the call from Johns Hopkins in January 1976. The following deposition testimony is pertinent: [QUESTION]:[ 6 ] What was the result of your being advised you had a lung problem? [MR. CHRISTENSEN]: Well, since this was a study on the causes of smoking on your lungs, I immediately felt that there was a possibility of cancer, and as a result, I stopped smoking right that very day. [QUESTION]: .... Tell me why you decided to quit in 1976. [MR.

CHRISTENSEN]: Because I was scared to death. [QUESTION]: Why? [MR. CHRISTENSEN]: I had received a call from Johns Hopkins Hospital that I had a lung problem. That was the end of the conversation. They said we think you have a lung problem, and at that time I had just — I recall it like it was yesterday.

I had just purchased a pack of cigarettes, and I picked them up, crumbled them up and threw them in my waste paper basket, and that is the last cigarette I have ever bought or purchased or smoked. It was that simple. [QUESTION]: On the basis of that one telephone conversation with the doctor? [MR. CHRISTENSEN]: That is right. [QUESTION]: You threw them a,way and never picked up another cigarette in your entire time? ⁶²⁵ [MR. CHRISTENSEN]: Never.

(Emphasis added). Christensen learned more about his “lung problem” in a conversation with a Project employee a few weeks after the call in January 1976. The following deposition testimony is noteworthy: [QUESTION]: Tell me to the best of your recollection the substance of this second conversation regarding your lung problem. [MR. CHRISTENSEN]: The sum and substance of the conversation was that I had a spot on my lower right lung and a spot on the upper left lung. [QUESTION]: Do you recall them being described as spots or lesions? [MR.

CHRISTENSEN]: Well, I don’t recall. I think it was spots. [QUESTION]: During this second conversation that we’re speaking of, did you make inquiry as to the nature of these spots on your lungs? [MR. CHRISTENSEN]: No, I did not. I don’t believe it was necessary, because they made no big issue out of it.

They didn’t tell me whether to stop smoking. As a matter of fact, they didn’t really want me to stop smoking, because that would defeat the purpose of the project. [QUESTION]: Did they tell you or did you ask what was the possible cause of these spots on your lungs? [MR. CHRISTENSEN]: I don’t believe I had to ask them. [QUESTION]: Why do you say that? [MR. CHRISTENSEN]: Because this project was to determine the effect of smoking on the person’s lung.

I think it’s self evident. [QUESTION]: You intuitively knew then, as I understand your testimony, that when you were advised of this lung problem, you were advised of these spots on your lungs, you intuitively knew that those spots and the lung problem were caused by your smoking; is that what you are saying? ⁶²⁶ [MR. CHRISTENSEN]: No, I’m not. I — when I received the phone call and knowing that this was a project for lung cancer — or for smoking, not lung cancer, but for smoking on a person’s lungs, I immediately assumed the worst. And had it been cancerous, I am certain that whomever I talked to would have told me that it was cancer.

I would have no other reason to believe otherwise. But when you are in a project that involves smoking and you come up with lung — spots on your lung, you tend to believe the worst, and I did. [QUESTION]: And you thought that at least there was a possibility that these spots on your lungs might be lung cancer, right? [MR. CHRISTENSEN]: There’s a possibility, yes. [QUESTION]: And you also kind of had this intuitive sense that one of the possible causes of those spots was your cigarette smoking, right? [MR. CHRISTENSEN]: It would be the only cause that I could think of.

(Emphasis added). Christensen informed his personal physician about the information he received concerning his lungs. The doctor also “received copies of the report.” According to Christensen, his doctor “didn’t seem concerned.” Nor did Christensen believe his “lung problem” was serious, given that he “was in good health” and “had no ill feelings.” Therefore, at that time, Christensen did not pursue any course of treatment for the “lung problem.” Moreover, Christensen averred in his affidavit that, until mid 1998, he believed he “was in generally excellent health.” Then, some twenty-two years after he quit smoking, Christensen experienced a progressive decline in his health. He recalled: “I noticed and observed that I was having increasing difficulty walking and attempting to climb.

I was suffering from shortness of breath and uncharacteristic fatigue.” ⁶²⁷ Ms. Christensen recalled that her husband’s condition “was getting progressively worse.... ” However, she thought at the time that it was perhaps emphysema; she did not think he had cancer. The following deposition testimony of the Decedent’s daughter is also pertinent: [QUESTION]: And when you say [the Decedent] was having some trouble breathing, I take it, from what you were saying, it was noticeable? [MS. KELLY]: Yes. [QUESTION]: Would he get winded from ordinary activities, or can you explain the type of difficulty he was having? [MS. KELLY]: He couldn’t walk across my back yard without being out of breath. [QUESTION]: Okay.

When did you first notice that? [MS. KELLY]: Well, datewise ... it was probably the previous Fall [i.e., 1997], because he was still trying to help me do lots of projects around this house. [QUESTION]: And was it something that was sporadic, or was it sort of something that was becoming more and more frequent, was it becoming a constant problem, the shortness of breath? [MS. KELLY]: The shortness of breath was pretty consistent. [QUESTION]: Did he complain about it at all? [MS. KELLY]: He complained by sitting down to catch his breath.

He just really couldn’t do anything. He would just sit down. * * * [QUESTION]: Did you discuss why he was getting short of breath? [MS. KELLY]: Oh, I would ask him. Suggest that he get it checked out, that that is not normal. ⁶²⁸ [QUESTION]: And what would he say to you?

Tell me about your conversation. [MS. KELLY]: He would just kind of put it on the back burner. * % * [QUESTION]: But, he was honest about it, if he felt sort [sic] of breath, he would sit down and tell you he needed a minute? [MS. KELLY]: Absolutely, he had to. He couldn’t function.

Further, Ms. Kelly testified that her father was coughing up phlegm and mucus. She stated: “I believe that he knew that that is what was happening, that the reason for his shortness of breath was because of his cigarette smoking.” Because of Christensen’s progressive breathing difficulties and fatigue, he sought treatment from Dr. Alan Shorofsky on April 24, 1998. Dr. Shorofsky testified that he conducted a physical examination and “was concerned after the examination that [Christensen] might have early emphysema or chronic obstructive pulmonary disease” (“COPD”). Therefore, he ordered a chest X-ray and “general blood work that [Christensen] was due to get.” Christensen had the chest X-ray on April 27, 1998.

It revealed a “5 x 8 mm nodule” in the left upper lobe of Christensen’s lung, which was “not seen in 1995.” 7 According to Ms. Kelly, her parents told her that the X-ray showed a “suspicious spot” on her father’s lung, “but nothing at that point was diagnosed on his lungs.” Nevertheless, she ⁶²⁹ said: “When I hear about a spot on a lung, I would assume it was cancer.” The following deposition testimony is pertinent: [QUESTION]: Did your dad ever tell you that, you know, he was, he had any concerns about the spot being cancer? [MS. KELLY]: I think he was concerned that it was cancerous, yes. [QUESTION]: And why do you say that? [MS. KELLY]: Because I believe that if he thought he had a spot on his lungs that it wasn’t just there, it was cancerous. [QUESTION]: And, then in your mind, was that something that could have been caused by smoking? [MS. KELLY]: I related them, yes. [QUESTION]: Do you know if your father also related them? [MS.

KELLY]: I believe he did. At his deposition, Christensen described the medical testing he underwent between May and August of 1998: During May, 1998, I had a physical examination and chest X-ray. I was informed by Dr. Bedon at the Greater Baltimore Medical Center that this testing showed that I had emphysema with a spot in my lung. In July of 1998 I underwent a sputum test and CT scan.

On August 13, 1998 I underwent a cat scan guided needle biopsy performed by Dr. Cockey at Greater Baltimore Medical Center which established that the spot in my lung is cancer. Additional lymph node biopsies showed that my cancer is metastatic. As indicated, Christensen’s chest X-ray was “followed up” with a CAT scan (computed axial tomography) on May 6, 1998. It “revealed a 1.5 by 1.5 centimeter right paratracheal node and a 3.3 by 2.7 centimeter pleural based mass within the right lobe superior segment.” Thus, while the chest X-ray found a “nodular problem” in the left upper lobe, the CAT scan “showed a mass in the right lobe.” Dr. Shorofsky ⁶³⁰ discussed the results of the CAT scan with Mr. Christensen on or about May 6, 1998, but he (the doctor) did not recall the particulars of the discussion.

The doctor noted that he “probably” told the Decedent that he “possibly” had lung cancer, and advised Christensen to see a “pulmonary specialist for further testing.” While Dr. Shorofksy “was very worried about cancer,” he maintained that he would not have made those concerns known to Christensen. Conceding that he “would have been very surprised” if Christensen did not have cancer, the doctor added: “I’ve been surprised before.” He also testified: “I point out to patients that until we really know, we don’t know. So I try to give some hope that it might be something else, which sometimes it happens.” When questioned about his discussion of the CAT scan results with Christensen, Dr. Shorofsky stated: What I recall again is when I get the results of the CAT scan like that, when I get a result of a chest X-ray that shows something, I talk to the patient, saying that listen, the chest X-ray showed something. You got to understand an X-ray is just a confluence of shadows.

There might be something there, there might not be something there. We’ve got to do more specific tests. When I got the results of the CAT scan I probably told him well, there is something specific there and we really have to look into it further, and that’s why I’m sending you to the pulmonary specialist. But again, the way I usually do it is to raise the, bring up — if they don’t bring up cancer I bring up cancer because they’re thinking about cancer, and I try to let them know until we actually have a definitive diagnosis you don’t know what it is.

(Emphasis added). Ms. Christensen testified about her discussions with her husband after he learned the results of the CAT scan in May 1998: [QUESTION]: And what were you informed the results of the CAT scan showed? ⁶³¹ [MS. CHRISTENSEN]: That there was something in his lung. [QUESTION]: So this was related to you by Mr. Christensen? [MS. CHRISTENSEN]: Yes. [QUESTION]: And did he tell you what the, if there was a concern as to what it was that the CAT scan showed in his lung? [MS.

CHRISTENSEN]: Yes. [QUESTION]: And what did he say? [MS. CHRISTENSEN]: That it was cancer. [QUESTION]: And that at that time when he got the results from the CAT scan, was it also the thought that this would be a cancer related to his cigarette smoking ? [MS. CHRISTENSEN]: At the time they sa,id that it was cancer/',] I would not have at that moment said it was related to smoking. [QUESTION]: Why not? [MS. CHRISTENSEN]: Because the word cancer is just enough to throw you that you don’t think about all the ramifications of that at that particular moment in time. [QUESTION]: Did you discuss with Mr. Christensen when the CAT scan was performed, when the results came in, whether he believed at that time that the cancer was caused by the cigarette smoke? [APPELLANT’S COUNSEL]: Objection.

If you can answer it. [MS. CHRISTENSEN]: Here again, I think the trauma of knowing that it was cancer, that neither one of us stood there and said that’s because he had smoked. [QUESTION]: At some point in time thereafter— [MS. CHRISTENSEN]: Yes. ⁶³² [QUESTION ]: — when you would— [MS. CHRISTENSEN]: Very shortly after.

(Emphasis added). Christensen was referred to Dr. George A. Bedon, a pulmonary specialist, for further evaluation. He met with Dr. Bedon on June 15, 1998. Dr. Bedon’s “Initial Consultation Note,” dated June 15, 1998, describes Christensen’s “HISTORY OF PRESENT ILLNESS.” Dr. Bedon also described his “IMPRESSION” of Christensen, noting that Christensen was to “undergo some sputum tests for cytology as well as acid fast bacilli and routine cultures.” Regarding the mass revealed in the CAT scan, Dr. Bedon stated that Christensen would undergo a “needle biopsy” or “repeat the CAT scan in four to six months.” The following deposition testimony of Dr. Bedon is pertinent: [QUESTION]: Okay.

When you first met with Mr. Christensen, Dr. Bedon, did you discuss this CT with Mr. Christensen? [DR. BEDON]: Yes. [QUESTION]: What, if anything, did you tell him about it? [DR. BEDON]: Basically what is described in my note. Here is a man that is an ex-smoker, he has positive PPD and he has new manifestations of the pulmonary symptoms — cough and shortness of breath — and the basic thing is — and he was telling me also that, you know, these shadows, et cetera, they were there before.

And so was all this again, is this TB or is this a cancer, and we need to, you know, find out what this all about. We discussed, you know, all the — so he knew about it, you know, that. The CAT scan, incidentally, was there during the visit. I usually when I see the patient I see them with the CAT scan there, and I usually go over with the patient, I show them.

So he knew that, you know, that was the situation, essentially. And we discussed on how to find out, you know, what is all about it. Basically, just the outline was the major thing. ⁶³³ The simplest way to start with analyze the sputum. He’s bringing up so much there.

Number two, are these changes new or old? And I have to respect him because he was telling me that, you know, he was there before, he had some abnormalities, density, this is what he was telling me. And then the third was that if we didn’t know, then a biopsy tissue diagnosis needed to be done. [QUESTION]: Based on the size of the pleural mass, the 3.3 by 2.7, and the fact that there was the paratracheal involvement, did this appear to be cancer to you? [DR. BEDON]: Yes.

Yes. [QUESTION]: And you discussed that with Mr. Christensen? [DR. BEDON]: Yes. (Emphasis added). The sputum cytology test was performed on July 29, 1998.

The lab results indicated the presence of “atypical glandular cells [, which were] highly suspicious for adeno-carcinoma.” At his deposition, Christensen stated that he learned in July 1998 that he had lung cancer: [QUESTION]: When did you find out that you had lung cancer? [MR. CHRISTENSEN]: I found out in the latter part of July [1998], And as a result of a meeting with a Dr. Bedon who is a pulmonary specialist, and as a result of some sputum tests, it was determined that I had cancer. I then, to further things along, I had a needle biopsy on my lung where it was also determined that the tumor was malignant. Moreover, in his affidavit, Christensen averred: During July, 1998, my doctors told me that I had no more than 14 months to live.

My terminal prognosis was confirmed by doctors after courses of chemotherapy and radiation therapy. ⁶³⁴ I believe that my lung cancer and emphysema were caused by years of cigarette smoking.... * * * It was very difficult for me to quit smoking. I believe I became addicted to cigarette smoke. From the 1940’s to the present I have always felt and to this day, still feel the urge to smoke.... Dr. Bedon met with Christensen on or about August 5,1998, to discuss the results of the sputum cytology.

He indicated to Christiansen that further testing was needed. The following deposition colloquy is relevant: [QUESTION]: Did you discuss this report with Mr. Christensen? [DR. BEDON]: Oh, yes. Definitely.

Oh, yes. [QUESTION]: Based on this and what you learned from the CT what did you tell him? [DR. BEDON]: That we needed to have a biopsy to have it 100 percent. [QUESTION]: But in your view this clearly was cancer? [DR. BEDON]: Yes. [QUESTION]: And you discussed that with Mr. Christensen? [DR. BEDON]: Yes, I did.

(Emphasis added). Dr. Bedon maintained, however, that he would not have discussed the cause of the Decedent’s cancer until he received a definitive pathologic report confirming the presence of a cancer and an identification of the cancer’s cell type. According to Dr. Bedon, he did not inform Christensen or his wife that the cancer was caused by cigarette smoking until after Christensen underwent a needle biopsy on August 13, 1998; that procedure established that the lung cancer was, indeed, caused by cigarette smoking. ⁶³⁵ It was not until September 1998 that Dr. Bedon met with Christensen to discuss the results of the needle biopsy. 8 According to appellants, “[i]t was at that meeting that Dr. Bedon for the first time connected Mr. Christensen’s lung cancer with his previous smoking history.” The following deposition testimony of Dr. Bedon is pertinent: [QUESTION]: So you, to make sure I understand your answer, you would have related his cancer to his smoking? [DR. BEDON]: Yes.

As part of the type of the cells and all that, yes. [QUESTION]: You would have discussed that with Mr. and Mrs. Christensen? [DR. BEDON]: Yes. [QUESTION]: Both in the initial meeting in June as well as when— [DR. BEDON]: Once we had the biopsy. Once we have the true tissue diagnosis — and that was in, is that September?

Well, let’s see. So he had the biopsy.... It was in August [of 1998]. Then he had all the studies done.

Okay. So — and then he was seen in September. So that is when we discussed that, in September [of 1998]. [QUESTION]: I believe you testified, didn’t you, Dr. Be-don, that you all talked [in August 1998] about cancer when you got the sputum cytology results? [DR. BEDON]: Yes, we did. [QUESTION]: At that time did you relate Mr. Christensen’s condition to his cigarette smoking? [DR.

BEDON]: I did not talk about that at that point, no. When he got the sputum test, no, I did not talk about that. ⁶³⁶ It was at the time of the biopsy. At the time of the meeting in September, sometime around, you know, when we got together. [QUESTION]: Do you recall, Dr. Bedon, when you met with Mr. and Mrs. Christensen when you received the sputum cytology, did they mention the cigarette smoking? [DR. BEDON]: I don’t remember that.

(Emphasis added). Subsequent lymph node biopsies performed in September 1998 by Dr. Paul M. Leand, a thoracic surgeon, showed that Mr. Christensen’s lung cancer was metastatic. As we indicated, Mr. Christensen died on January 17, 2001. The court held a motion hearing on November 12, 2003.

Thereafter, on November 19, 2003, the court issued an Opinion and Order granting appellees’ summary judgment motion as to all claims. In its ruling concerning the survival claims, the court applied the “discovery rule” with respect to the statute of limitations. It found that the “undisputed facts” supported the conclusion that “[t]he conditions necessary to place Mr. Christensen on inquiry, if not actual, notice of a potential claim against [appellees] existed more than three years before Mrs. Christensen filed suit.” The court pointed out that, between July 29 and August 5, 1998, the Decedent was told that he “clearly had cancer.” Of significance here, the court also determined that the Decedent “immediately attributed his lung cancer to smoking.” Moreover, the court was of the view that Christensen “had every reason to suspect, and did suspect, as early as the spring of 1998 that he may have been injured by cigarettes.” In this regard, the court noted that the Decedent was “fully aware” of the “association between cigarette smoking and lung cancer” by January 1976. The court said: The period of limitations on filing suit is not delayed (or tolled) until the conclusion of an investigation or, as here, pending a conclusive diagnosis or opinion as to the cause of ⁶³⁷ the injury or illness....

Of course, this clearly means that a person who suspects wrongdoing must file suit within the time of the statute of limitations. Inquiry notice exists when the facts and circumstances would have caused a reasonable person in the plaintiffs’ position to investigate in such a manner so that the investigation, if pursued with reasonable diligence, would have revealed the alleged claim. Pennwalt Corp., supra, 314 Md. at 448-49, 550 A.2d at 1163. In cases involving medical illness, Maryland courts have held that a plaintiff is on inquiry notice, and the statute of limitations begins to run, when the plaintiff has knowledge that he may have been harmed....

Further, the court reasoned: As these undisputed facts show, Mr. Christensen was on inquiry notice more than three years before the lawsuit was filed. He understood for more than 20 years that cigarettes could cause him harm, including lung cancer. More than three years before the suit was filed, Mr. Christensen had been told by his physician, and believed, that he had lung cancer, which he attributed to smoking. Indeed, both he and his physicians began to suspect he might have cancer in the Spring of 1998 based on Mr. Christensen’s chronic shortness of breath, difficulty engaging in normal activities such as walking across the back yard, and his continued and progressive abnormal test results.

Based on these and the other facts in Mr. Christensen’s possession as of that time, ... an objectively reasonable person would have been prompted to investigate further, which Mr. Christensen did. The court also determined that appellants’ wrongful death claims were barred by limitations. Noting that such a claim is derivative in nature, it reasoned that if Christensen’s individual claims were time-barred, the wrongful death claims were also barred. The court explained: [C]ourts have long recognized that a wrongful death claim in Maryland is a derivative [action] and that the decedent’s claims must have been viable, had he survived, in order for a beneficiary to bring a wrongful death claim.... ⁶³⁸ Any ground that would bar a direct claim by a decedent thus bars a wrongful death claim brought by the decedent’s statutory beneficiaries....

This includes the bar of the statute of limitations.... Thus, if a decedent’s claim against a particular defendant would be time-barred, the alleged wrongful conduct underlying that claim cannot constitute a “wrongful act” that would support a claim under the Wrongful Death Act. That is the case here. Mr. Christensen would not have been entitled to maintain an action and recover damages as of the date the Complaint was filed, had he not died, because his claims were time-barred.

As a matter of law, therefore Plaintiffs cannot establish the requisite “wrongful act” required by the plain language of the Wrongful Death Act and summary judgment-is proper. In addition, the court noted that Maryland law does not recognize equitable tolling of the statute of limitations during the pendency of a class action. It said: Statutes of limitations are strictly construed and any exceptions to them must be created by the Maryland legislature. Since the Maryland legislature has not spoken on this precise matter, the Maryland three-year statute of limitations is not tolled because the plaintiffs’ decedent had previously joined a class action suit.

On December 2, 2003, the circuit court issued an “Order Directing Entry of Judgment in Favor of Defendants.” This appeal followed. DISCUSSION I. Appellants contend that limitations was tolled during the pendency of the Richardson class action suit, which was filed in May of 1996 and decertified in a ruling issued by the Court of Appeals in May of 2000. While recognizing that no Maryland appellate case specifically recognizes the doctrine of ⁶³⁹ equitable class action tolling, 9 as announced in Am. Pipe & Constr.

Co. v. Utah, 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974) and its progeny, appellants nevertheless urge us to adopt the doctrine of class action tolling in the context of this case. If limitations was tolled during the pendency of the Richardson class action litigation, then appellants’ suit was timely filed. Appellees counter that because Maryland has not recognized class action tolling, and the federal class action tolling doctrine is “not controlling authority” here. In urging us to reject appellants’ position, appellees point out that the judicial creation of exceptions to statutes of limitations is “directly contrary to Maryland law,” and they remind us that the Maryland appellate courts have “consistently refused requests to create equitable tolling for statutes of limitations where no legislative enactment has permitted such tolling.” Appellees also maintain that, because Giant was not a defendant in Richardson, tolling would not apply in any event to any claims asserted against Giant.

Maryland’s class action mechanism is found in Maryland Rule 2-231. 10 Our rule is almost identical to Rule 23 of the ⁶⁴⁰ Federal Rules of Civil Procedure (“FRCP”), from which it derives. See Source note to Rule 2-231 (noting that the Maryland rule “is derived from the 1966 version of Fed. R.Civ.P. 23,” in whole or in part). 11 The “primary purpose” of the class action rule “is to overcome the impracticalities of overtly cumbersome joinder requirements.” Kirkpatrick v. Gilchrist, 56 Md.App. 242, 249 , 467 A.2d 562 (1983). Moreover, the rule “helps to promote the objectives of judicial economy and access to the legal system, particularly for persons with small individual claims.” Philip Morris, Inc., 358 Md. at 732 , 752 A.2d 200 . As the Supreme Court recognized in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617-18 , 117 S.Ct. 2231 , 138 L.Ed.2d 689 (1997): [C]lass-action practice has become ever more “adventuresome” as a means of coping with claims too numerous to secure their “just, speedy, and inexpensive determination” ⁶⁴¹ one by one.

See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. The class action tolling doctrine effectuates the goals of the class action rule, because it fosters the efficiency and economy of litigation.

In analyzing the concept of class action tolling, however, we must also keep in mind the purpose for which statutes of limitations are enacted. In general, statutes of limitations represent a legislative policy determination of an appropriate and reasonable time for a person of ordinary diligence to initiate a legal action. See Pennwalt Corp. v. Nasios, 314 Md. 433, 437 , 550 A.2d 1155 (1988); Goldstein v. Potomac Elec. Power Co., 285 Md. 673, 684 , 404 A.2d 1064 (1979).

These statutes “are designed to balance the competing interests of each of the potential parties as well as the societal interests involved.” Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 665 , 464 A.2d 1020 (1983). For example, statutes of limitations “assure fairness to a potential defendant by providing a certain degree of repose.” Id. They also provide a degree of certainty to defendants by limiting a plaintiffs ability to file stale claims, thereby reducing the inconvenience and hazards associated with delay, such as lost evidence, failed memory, unavailable witnesses, and the difficulty in planning for the future because of “the uncertainty inherent in potential liability.” Id.; see Pennwalt, 314 Md. at 437-38 , 550 A.2d 1155 . Plaintiffs, too, are served by such statutes, because they generally assure potential litigants adequate time to bring their claims, so long as they act with reasonable diligence.

Pennwalt, 314 Md. at 437-38 , 550 A.2d 1155 ; Pierce , 296 at 665, 464 A.2d 1020 . In addition, statutes of limitations “serve society by promoting judicial economy.” Hecht v. Resolution Trust Corp., 333 Md. 324, 333 , 635 A.2d 394 (1994); see Pennwalt, 314 Md. at 437-38 , 550 A.2d 1155 ; Goldstein, 285 Md. at 684 , 404 A.2d 1064 . Quoting Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314 , 65 S.Ct. 1137 , 89 L.Ed. 1628 (1945), the Court of Appeals ⁶⁴² explained in Walko Corporation v. Burger Systems, Inc., 281 Md. 207, 210 , 378 A.2d 1100 (1977): “Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles.

They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.... (citation omitted). They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation.

They represent a public policy about the privilege to litigate.” The applicable statute of limitations for this case is found in § 5-101 of the Courts & Judicial Proceedings Article (“C.J.”) of the Maryland Code (1974, 2002 Repl.Vol.). It states: “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.” Additional sections of the Code set forth alternative statutes of limitations for specified actions. 12 The Code also provides for tolling under certain circumstances. See, e.g., C.J. § 5-201 (persons under a disability); C.J. § 5-202 (time between debtor’s insolvency petition and dismissal of petition); C.J. § 5-205 (absence from State or moving from county). To be sure, tolling of limitations for class representatives or class members is not specifically mentioned.

However, when, as here, a Maryland procedural or evidentiary rule is derived from, and closely mirrors, a federal rule, our appellate courts have looked to federal law to interpret the corresponding Maryland rule. In Jackson v. State, 340 Md. 705, 716 , 668 A.2d 8 (1995), for example, the Court of Appeals remarked ⁶⁴³ that when a Maryland evidentiary rule has a counterpart in the federal rules, it is proper to “look to federal cases interpreting the federal rule for guidance in interpreting” the Maryland Rule. See also Garay v. Overholtzer, 332 Md. 339, 355 , 631 A.2d 429 (1993) (noting that when a Maryland rule of procedure derives from a federal rule, “interpretations of that federal rule are persuasive as to the meaning and proper applications of the Maryland rule”); Beatty v. Trailmaster Prods., Inc., 330 Md. 726 , 738 n. 8, 625 A.2d 1005 (1993) (observing that, “[bjecause the Maryland summary judgment rule is derived from the federal rule, judicial interpretations of the federal rule are persuasive as to the meaning and proper application of the Maryland rule”). In Snowden v. Balt.

Gas & Elec. Co., 300 Md. 555, 562 , 479 A.2d 1329 (1984), the Court of Appeals considered whether an order denying class certification constituted a final judgment for purposes of appeal. In its analysis, the Court found “instructive” the Supreme Court’s opinion in Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978). Relying on that decision and other federal appellate decisions, the Court of Appeals concluded that an order denying class certification is not immediately appealable.

See also Pollokoff v. Md. Nat’l Bank, 288 Md. 485, 491-94 , 418 A.2d 1201 (1980)(analyzing Md. Rule 209, the predecessor to our current class action rule, and referring to the Supreme Court’s interpretation of FRCP 23); Johnson v. Chrysler Credit Corp., 26 Md.App. 122 , 337 A.2d 210 (1975) (looking to the Supreme Court’s opinion in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 , 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974), to aid in our interpretation of Md. Rule 209). More recently, the Court of Appeals remarked in the Richardson class action case that “[t]here [was] a dearth of authority in Maryland analyzing the specific requirements” of Md. Rule 2-231. Philip Morris, 358 Md. at 724 , 752 A.2d 200 . Yet, the Court acknowledged that “there exists an abundance of cases from other jurisdictions, federal and state, that have analyzed class action rules either identical to or similar to Maryland’s rule.” Id.

Of significance here, the Court specifi ⁶⁴⁴ cally drew on those federal and state cases to “aid [its] analysis in determining whether” the circuit court “applied the correct legal standards in reaching its decision” with respect to class certification. Id. at 726 , 752 A.2d 200 . In reaching its conclusion that the circuit court erred with regard to class certification, the Court took into account an “almost unanimous reluctance” of a “myriad of federal and state courts” to certify class actions for mass tort tobacco litigation. Id. at 729 , 752 A.2d 200 .

Because the Court of Appeals in Richardson looked for guidance to. the federal courts and other state courts with comparable class action rules to analyze the propriety of the class certification, we believe it is also appropriate for this Court to review the “abundance” of cases from other courts that have considered class action tolling. These cases guide our analysis. In 1974, the Supreme Court first considered the issue of equitable tolling in class action suits brought under FRCP Rule 23. Am.

Pipe & Constr. Co. v. Utah, 414 U.S. 538 , 94 S.Ct. 756 , 38 L.Ed.2d 713 (1974), involved a federal antitrust action brought by the State of Utah on behalf of itself and other public agencies. The suit was filed eleven days before the applicable statute of limitations was to expire. During the course of the litigation, the federal district court ruled that the suit could not proceed as a class action.

Eight days after the trial court denied class certification, numerous Utah towns, municipalities, and water-and-sewer districts moved to intervene in the suit. Id. at 543-44 , 94 S.Ct. 756 . Ruling that limitations had expired, the district court denied the motion. Id. at 544 , 94 S.Ct. 756 .

The Supreme Court disagreed, concluding that the motions to intervene were not time-barred. It reasoned that unless the filing of a class action tolled limitations, potential class members would be induced to file motions to intervene or to join in the suit, merely to protect themselves in the event of the denial of class certification. Am. Pipe, 414 U.S. at 553 , 94 S.Ct. 756 .

In its view, such a result would thwart two key ⁶⁴⁵ goals of the class action procedure: promotion of efficiency and economy of litigation. Id. Therefore, to protect the policies undergirding the class action procedure, the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id. at 554 , 94 S.Ct. 756 . Writing for the majority, Justice Stewart said: Under present Rule 23 . .. the difficulties and potential for unfairness which, in part, convinced some courts to require individualized satisfaction of the statute of limitations by each member of the class, have been eliminated, and there remain no conceptual or practical obstacles in the path of holding that the filing of a timely class action complaint commences the action for all members of the class as subsequently determined.1- ] Whatever the merit in the conclusion that one seeking to join a class after the running of the statutory period asserts a “separate cause of action” which must individually meet the timeliness requirements, such a concept is simply inconsistent with Rule 23 as presently drafted.

A federal class action is no longer “an invitation to joinder” but a truly representative suit designed to avoid, rather than encourage, unnecessary filing of repetitious papers and motions. Under the circumstances of this case, where the District Court found that the named plaintiffs asserted claims that were “typical of the claims or defenses of the class” and would “fairly and adequately protect the interests of the class,” Rule 23(a)(3),(4), the claimed members of the class stood as parties to the suit until and unless they received notice thereof and chose not to continue. Thus, the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs. To hold to the contrary would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judg ⁶⁴⁶ ment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties-precisely the multiplicity of activity which Rule 23 was designed to avoid in those cases where a class action is found “superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3).

Id. at 550-51 , 94 S.Ct. 756 (emphasis added) (some citations omitted). Further, the Supreme Court said: We hold that in this posture, at least where class action status has been denied solely because of failure to demonstrate that “the class is so numerous that joinder of all members is impracticable,” the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.... A contrary rule allowing participation only by those potential members of the class who had earlier filed motions to intervene in the suit would deprive Rule 23 class actions of the efficiency and economy of litigation which is a principal purpose of the procedure.... Id. at 552-53 , 94 S.Ct. 756 (emphasis added).

In the Court’s view, the result was “in no way inconsistent with the functional operation of a statute of limitations.” Id. at 554 , 94 S.Ct. 756 . It reasoned: “Since the imposition of a time bar would not in this circumstance promote the purposes of the statute of limitations, the tolling rule we establish here is consistent both with the procedures of Rule 23 and with the proper function of the limitations statute.” Id. at 555 , 94 S.Ct. 756 . Moreover, the Court expressly rejected the contention that limitations is the sole prerogative of Congress, because it constitutes a “ ‘substantive’ element” of a claim. Id. at 556 , 94 S.Ct. 756 .

To the contrary, it concluded that “the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not ⁶⁴⁷ restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.” Id. at 559 , 94 S.Ct. 756 . Accord Eisen v. Carlisle & Jacquelin, 417 U.S. 156 , 176 n. 13, 94 S.Ct. 2140 , 40 L.Ed.2d 732 (1974) (recognizing that American Pipe “established that commencement of a class action tolls the applicable statute of limitations as to all members of the class”). In Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 , 103 S.Ct. 2392 , 76 L.Ed.2d 628 (1983), decided nine years later, Parker claimed that his employer discriminated against him on the basis of race, in violation of Title VII. He procured a “right to sue” letter from the Equal Employment Opportunity Commission (“EEOC”).

While Parker’s complaint was pending before the EEOC, other former employees initiated a class action against the employer, claiming discrimination. Parker subsequently filed an action in federal court, within ninety days of the date that class certification was denied, but two years after obtaining his “right to sue” letter. Id. at 347-48 , 103 S.Ct. 2392 . The employer argued that American Pipe was limited to intervenors, and did not toll limitations for class members who filed their own actions.

The district court awarded summary judgment to the employer, ruling that Parker had failed to file his suit within ninety days of receiving his “right to sue” letter, as required under Title VIL Id. at 348 , 103 S.Ct. 2392 . The Supreme Court considered whether the filing of a class action tolls the applicable statute of limitations, so as to permit “all members of the putative class to file individual actions in the event that class certification is denied,” so long as it is accomplished within the time that remained on the limitations period. Id. at 346-47 , 103 S.Ct. 2392 . Relying on American Pipe, it ruled that Parker’s suit was timely.

Id. at 351-52 , 103 S.Ct. 2392 . The Court said: “While American Pipe concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the statute of limitations ‘as to all asserted members of ⁶⁴⁸ the class,’ not just as to intervenors.” Id. at 350 , 103 S.Ct. 2392 (citation omitted). In reaching its conclusion, the Supreme Court underscored the role of class action tolling in facilitating the important objectives of FRCP 23.

It said, id. at 350-51 , 103 S.Ct. 2392 : A putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations. The result would be a needless multiplicity of actions — precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid. Further, the Court reasoned that a tolling rule does not frustrate the objectives of statutes of limitations, stating: The Court noted in American Pipe that a tolling rule for class actions is not inconsistent with the purposes served by statutes of limitations. 414 U.S. at 554 , 94 S.Ct. 756 . Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, but these ends are met when a class action is commenced.

Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class members to rely on the named plaintiffs to press their claims. And a class complaint notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. The defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification.

Id. at 352-53, 103 S.Ct. 2392 (internal quotations and some citations omitted). The Supreme Court concluded, id. at 353-54 , 103 S.Ct. 2392 : ⁶⁴⁹ We conclude, as did the Court in American Pipe, that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to