John Crane, Inc. v. Puller

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). As is almost inevitable from the very nature of asbestos-related litigation, this is an unwieldy appeal. We might as readily be dealing with separate appeals from separate trials involving separate and non-overlapping sets of litigants. The respective defendants have filed separate appellant’s briefs.

The respective sets of plaintiffs have filed separate appellee’s briefs. By way of our own internal organization, we will proceed as if we were considering distinct and essentially unrelated appeals. Only when we come to three verbatim ⁹ issues raised by each of the two sets of plaintiffs in identical cross-appeals will we consolidate our discussion and disposition. The two original plaintiffs, both now deceased mesothelioma victims represented by surviving family members and personal representatives, were 1) Milton Cichy (Cichy) and 2) Reginald Puller (Puller).

Both of their claims were heard, in a consolidated trial, by a Baltimore City jury, presided over by Judge Allen L. Schwait, that ran from April 15, 2004, through May 5, 2004. The Cichy Case One of the cases was brought by Milton Cichy and his wife, Jeanette Cichy, in 2002 against John Crane, Inc. (and against 18 other corporate defendants, not one of which remains as a party to this appeal) as part of the “Bethlehem Steel Cases Master Complaint.” Cichy died on January 25, 2003. His claim is now being pursued by 1) Jeanette Cichy, individually and as Personal Representative of Cichy’s Estate; 2) Jeanette Cichy, as surviving spouse of Cichy; and 3) Maria CichyKnight, surviving child of Cichy (collectively, “the Cichy plaintiffs”). On May 5, 2004, the jury returned verdicts in favor of the Cichy plaintiffs and against the appellant-defendant, John Crane, Inc., which, when adjusted by post-trial motions, amounted to $1,025,554.60.

Aggrieved at the award in favor of the Cichy plaintiffs, Crane raises the contentions 1. that the evidence was not legally sufficient to prove that exposure to John Crane’s products was a substantial contributing factor to the development of Cichy’s mesothelioma; 2. that Judge Schwait erroneously ruled that the Cichy plaintiffs were not barred from relitigating certain dispositive issues by the doctrine of collateral estoppel; 3. that Judge Schwait erroneously failed to apply Maryland’s cap on non-economie damages to the survival claim; and ¹⁰ 4. that Judge Schwait erroneously admitted into evidence testimony and exhibits in violation of the Maryland Rules of Evidence. The Puller Case The other case now before us was brought by Reginald Puller and his wife, Olivia Taylor Puller, against Garlock Sealing Technologies, LLC (and, by our best reckoning, 46 other corporate defendants, not one of which remains as a party to the appeal) as part of the “Other Asbestos Cases Master Complaint” on December 5, 2001. Puller died on November 9, 2002. His claim is now being pursued by Olivia Taylor Puller, surviving spouse, and David Puller, surviving child and Personal Representative of Puller’s Estate (collectively, “the Puller plaintiffs”).

On May 5, 2004, the jury returned verdicts in favor of the Puller plaintiffs and against the appellant-defendant, Garlock Sealing Technologies, LLC, which, when adjusted by post-trial motions, amounted to $2,551,763.68. Aggrieved at the awards in favor of the Puller plaintiffs, Garlock raises the contentions 5. that the evidence was not legally sufficient to support the verdict in favor of the Puller plaintiffs for economic damages; 6. that Judge Schwait erroneously failed to dismiss the claim of Olivia Taylor Puller based on the fact that she was not legally married to Puller at the time he filed his claim; 7. that Judge Schwait erroneously denied Garlock’s motion for judgment as to its cross-claims against the erstwhile defendants 1) Keeler Boiler Corp. and 2) Uniroyal, Inc.; and 8. that Judge Schwait erroneously failed to submit to the jury the question of the application of Maryland’s statutory cap on non-economic damages. ¹¹ The Cross-Appeals Both the Cichy plaintiffs and the Puller plaintiffs have raised precisely the same three issues on cross-appeal. All three concern the applicability of the statutory cap. Both sets of plaintiffs contend 9. that the statutory cap was erroneously applied to the awards for non-economic damages for the loss of consortium; 10. that a single cap was erroneously applied to the verdicts for 1) loss of consortium and 2) wrongful death; and 11. that the statutory cap should not have been applied to the wrongful death claims.

I. Cichy v. John Crane, Inc. Milton Cichy went to work for the Bethlehem Steel Corporation in Sparrow’s Point in 1947. He worked there continuously for 42 years, retiring in 1989. He worked initially as an electrical lineman but shortly thereafter transferred to the pipe fitters shop. He continued to work in the pipe fitters department, first as a pipe fitter helper and then as a master pipe fitter, for most of his 42 years with Bethlehem Steel.

In the course of that employment, he worked virtually everywhere in the plant. 1. Legal Sufficiency of the Evidence Crane moved for a judgment in its favor on the issue of whether there was enough evidence to go to the jury to permit a finding that Cichy’s exposure to Crane’s products was a substantial contributory factor to the development of Cichy’s mesothelioma. Judge Schwait denied the motion, and Crane now contends that that denial was erroneous. In denying the post-trial motion in which Crane again raised the question of the legal sufficiency of the evidence on this issue, Judge Schwait ruled: Defendants correctly state that in order to establish necessary proximate causation in an asbestos related case, plaintiffs must introduce evidence that the conduct of the ¹² Defendants was a substantial factor in bringing about the injuries.

Eagle-Picher Indus. v. Balbos, 326 Md. 179 , 604 A.2d 445 (1992). In order to find substantial factor causation the fact finder must evaluate the nature of the product, the frequency of its use and the regularity of the plaintiffs exposure to that product over an extended period of time. The Court agrees with the plaintiffs that the totality of evidence was sufficient to meet the Balbos standard and the jury could have and did reach that conclusion. (Emphasis supplied).

In affirming that ruling, we find dispositive the decision of this Court in Garlock, Inc. v. Gallagher, 149 Md.App. 189 , 814 A.2d 1007 , cert. denied, 374 Md. 359 , 822 A.2d 1224 (2003). Both in terms of this precise issue and in terms of the cast of expert witnesses, what is now before us essentially replicates what was before us in Garlock v. Gallagher. In that case, the deceased mesothelioma victim had been a pipe fitter for Bethlehem Steel at Sparrows Point from 1946 until his retirement in 1979. In that case, the defendant, as here, was John Crane, Inc. In a videotaped de bene esse deposition, taken on October 28, 2002 and played for the jury at trial, Cichy testified that he regularly worked on pipes that contained steam, acid, water, and hydraulic fluids.

He regularly installed and replaced both gaskets and packing, which he identified as being manufactured by Crane. The gaskets were cut from sheets of gasket material and the process required the sheet to be beaten with a hammer. That action caused the release of dust in the area in which Cichy was breathing. Cichy sometimes used a gasket cutter, which also produced dust when the sheets were cut.

When a new gasket had to be installed, Cichy would have to scrape off the old gasket. He testified that the old gaskets were usually difficult to remove, particularly on steam lines, because they were baked on. When Cichy used a scraper to remove an old gasket, it invariably caused dust. Sometimes he used a wire brush which was powered by electricity or air ¹³ pressure and that procedure created substantial dust.

Cichy testified that while attempting to remove an old gasket, he was surrounded by floating dust. On almost every job that he worked on, there were gaskets that had to be removed. It was established that during the years of Cichy’s employment, the gaskets used by Bethlehem Steel were manufactured by John Crane, Inc.; by Garlock; and by a few other unnamed manufacturers. Cichy testified that he also regularly worked on valves, and that he used asbestos packing to keep the valves from leaking.

When working on a valve, Cichy had to remove the packing, a process that created dust. Sometimes he blew out the valves with an air hose, which caused substantial dust. He also used the air hose to blow the asbestos dust off of his clothing. During the pertinent time of Cichy’s employment, the packing used by Bethlehem Steel was manufactured by John Crane, Inc. and by Garlock.

Cichy testified that on virtually every job on which he worked, he was required to remove and install John Crane, Inc. products. In Garlock v. Gallagher, 149 Md.App. at 196-97 , 814 A.2d 1007 , the videotaped deposition of the deceased Richard Gallagher was essentially indistinguishable from Cichy’s videotaped deposition in this case. The labyrinth of pipes in the steel plant carried steam and corrosive fluids, which needed to be contained and not released into the surrounding environment. For the better part of Gallagher’s work life, the plant used asbestos, a natural mineral product, to insulate the pipes and maintain the flow of materials.

Gallagher’s primary asbestos exposure derived from gaskets, which pipe fitters use to seal the “flanges,” or connections, between pipes. Gallagher explained that he cut and shaped gaskets prior to installation, and removed old gaskets by hand scraping or power grinding, two processes that produced visible dust. He identified Crane gaskets, as well as some other brands, and testified to working with these products “everyday.” Moreover, ¹⁴ Gallagher described his asbestos exposure from insulation, pipe covering, and cement products. (Emphasis supplied).

Crane’s argument in this case essentially duplicates the argument it made in Garlock v. Gallagher: Crane argues plaintiffs failed to meet that burden of proof because they presented “no evidence” of the frequency of Gallagher’s use of Crane’s products, and “no competent expert testimony” that Crane’s products, particularly its gaskets, produced respirable asbestos fibers in amounts sufficient to cause disease. 149 Md.App. at 200 , 814 A.2d 1007 . The testimony of Cichy, as a fact witness, could not alone establish the case for the Cichy plaintiffs. It was supplemented, however, by the expert testimony of Dr. John McCray Dement, a professor of occupational and environmental medicine at the Duke University Medical Center. Dr. Dement testified that in the context of the Bethlehem Steel plant, visible dust would indicate a concentration of asbestos in excess of the established standards for a healthy work environment and would indicate that the process was not well controlled and it is likely that a health hazard would have existed.

He testified: Q. And, Doctor, do you have an opinion based upon a reasonable degree of scientific certainty as an industrial hygienist if an individual were working with an asbestos-containing product, that he described to this jury seeing visible dust, do you have an opinion as to whether or not that dust would be over that five million particles per cubic foot of air level? A. Well, there is a good probability that it is. Hygienists, historically [looking] for things like asbestos and silica and other types of dusts, have used a visible dust cloud, a cloud in the area as an indication when the process is not well controlled and it [is] likely that a health hazard exists. ¹⁵ Q. And does that type of situation, seeing visible dust clouds from an asbestos product, increase one’s risk for developing mesothelioma? A. Certainly it would indicate an exposure of increased risk, yes.

(Emphasis supplied). With respect to the significance of visible dust, this Court specifically observed in ACandS, Inc. v. Abate, 121 Md.App. 590, 672 , 710 A.2d 944 (1998): Dr. John McCray Dement, an expert witness for the plaintiffs, testified to the effect that, whenever any asbestos-containing product is manipulated to the extent that it creates visible dust, “a very significant health hazard” is presented. (Emphasis supplied). Important links in the chain of evidence wrought by the Cichy plaintiffs were two expert witnesses: 1) Dr. William Longo, a doctor of engineering specializing in materials science; and 2) Dr. James R. Millette, a Ph.D. in environmental science from the School of Engineering of the University of Cincinnati.

Dr. Longo testified to having performed tests on gaskets and packing to measure fiber release during the types of operations described by Cichy. Dr. Longo had analyzed Crane asbestos sheet gaskets and found that the material contained asbestos. He also analyzed Crane packing and found that it contained asbestos. Dr. Longo’s testing of the gaskets involved using a wire brush or an electric wire brush to clean a flange surface.

The measuring equipment revealed that significant amounts of asbestos fibers were released into the subject’s breathing zone. He further testified that gaskets used on acid piping, which Cichy had also described, would have contained crocidolite asbestos, because chrysolite asbestos, used in the majority of gaskets, could not withstand the corrosive effects of acid. Dr. Longo also performed a valve packing study, which involved removing and replacing the packing in valves. As ¹⁶ bestos fibers were released into the breathing zone of the person performing the operation.

During the removal and installation of gaskets, the air sampling monitor showed exposure to asbestos of approximately 440 times background rate. He also testified as to the results of air sampling during the removal and installation of packing. The monitor showed exposure to asbestos 20-30 times the background level. Dr. Millette was accepted as an expert in environmental sciences, microscopy, identification and analysis of asbestos fibers, and material science.

He examined Crane sheet gaskets and found asbestos fibers protruding from the sheet packing, which was proof that the asbestos is not fully encapsulated by the binder. He determined that Crane gaskets contained asbestos and that the fibers would be released into the air if the sheet material were disturbed. He cut the material and observed microscopically that asbestos fibers were released. He also demonstrated that asbestos fibers would be released by Crane gaskets when the gaskets were simply tapped with a screwdriver.

Dr. Millette also performed a test in which a valve was disassembled in a closed chamber and the gasket was removed in the manner described by Cichy’s testimony in this case. The removed gaskets, which were essentially the same as the Crane gaskets, were found to contain very high concentrations of asbestos. The air, after sixteen minutes of scraping the old gaskets, had a fiber content 35 times background and 14,000 times ambient air. Dr. Millette also tested Crane packing and found that it contained 50% asbestos.

He performed a study involving the removal of packing from valves and found that the packing material released asbestos fibers. The result was an asbestos content of the air 33 times background and 20,000 times that found in ambient air. In ACandS v. Abate, 121 Md.App. at 671 , 710 A.2d 944 , we had observed with respect to similar testimony by Dr. Millette: Dr. James R. Millette, who testified as an expert witness for the cross-plaintiffs and whose testimony was adopted by the ¹⁷ plaintiffs, testified that gaskets and packings, in general, are not considered ‘friable’—that is, they do not emit respirable asbestos fibers—but they become friable if “cut or tom. ” (Emphasis supplied). In Garlock v. Gallagher, 149 Md.App. at 197-98 , 814 A.2d 1007 , both Dr. Longo and Dr. Millette offered essentially the same conclusions that they offered in this case.

Along with setting out Gallagher’s exposure history, plaintiffs sought to establish the dangerousness of the asbestos products. First, William Longo, Ph.D., testified as an expert in the evaluation of asbestos-containing materials. He studied Crane gaskets and determined them to contain between sixty and seventy percent chrysotile asbestos. Second, James Millette, Ph.D., testified as an expert in environmental science, microscopy, and the identification and quantification of asbestos fibers.

He also studied a certain type of Crane gasket and determined it to contain about eighty percent chrysotile asbestos. Dr. Millette offered more complete testimony than Dr. Longo, because besides testing the asbestos content of Crane gaskets, he had studied the amount of asbestos fiber emitted into the air when workers used those gaskets in the course of routine pipe fitting. Both experts supplemented their complicated testimonials with videotaped demonstrations. (Emphasis supplied).

From the combination of different witnesses, each supplying a different perspective and a different fragment of the total case, the jury in Garlock v. Gallagher found in favor of the Gallagher plaintiffs. The jury found that asbestos caused Gallagher’s mesothelioma, Crane’s products were a substantial contributing factor in the development of the disease, and that Crane was both negligent in, and strictly liable for, the use of its products. 149 Md.App. at 199 , 814 A.2d 1007 . We had no difficulty in finding the evidence to be legally sufficient to support the ¹⁸ verdict in that case. We similarly have no difficulty in reaching the same conclusion in this case.

Crane’s reliance on Bartel v. John Crane, Inc., 316 F.Supp.2d 603 (N.D.Ohio 2004), is misplaced. That case is totally inapposite. In that non-jury case, the fact-finding judge was not persuaded to find in favor of the plaintiffs as a matter of fact. The fact-finding jury in this case, on the other hand, was so persuaded.

The issue before us, however, has absolutely nothing to do with the burden of persuasion. This issue concerns only the burden of production, which is the only burden that can be decided as a matter of law. The Cichy plaintiffs met their burden of production, and the fact-finding jury, like the fact-finding judge in Bartel v. John Crane, Inc., was on its own to go in whatever direction it was persuaded to go, free of further legal impediment. Once the burden of production has been satisfied, the appellate deference that is due to the unfettered discretion of the ultimate fact finder has been well expressed by Garlock v. Gallagher.

We must review this claim of insufficient evidence through the lens of a motion for judgment, because that is how it surfaced at trial. A court may grant a motion for judgment only after it “consider[s] all evidence and inferences in the light most favorable to the party against whom the motion is made.” Thus, we are not [privileged] to dissect the evidence and weigh the credibility of its messengers, which is what Crane has asked us to do. See Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 521 , 682 A.2d 1143 (1996) (stating that “it is not the province of an appellate court to express an opinion regarding the weight of the evidence”). Plaintiffs presented evidence of: (1) Gallagher’s exposure to asbestos, in the form of his deposition testimony and his co-worker’s live testimony; (2) the asbestos content of Crane’s gaskets, through the testimony of a handful of experts; and (3) how the exposure caused the development of cancer in Gallagher, with the testimony of another handful of experts.

That there were weaknesses in the presenta ¹⁹ tion of this evidence cannot concern us; only the jury had the task of sorting out the evidence, that which was weak and that which was strong. We will not disturb its conclusion. 149 Md.App. at 200-01 , 814 A.2d 1007 (emphasis supplied). Nor will we disturb the jury’s conclusion in this case. 2. Collateral Estoppel In a nutshell, Crane contends that the Cichy plaintiffs were “barred from relitigating certain dispositive issues [against Crane] by the doctrine of collateral estoppel.” On or about April 28, 1988, Milton Cichy (along with Jeanette Cichy, his wife) sued John Crane, Inc. and nineteen other corporate defendants in the Circuit Court for Baltimore City on the ground that he had been “diagnosed as having asbestos lung disease” after having worked at the “Bethlehem Steel Sparrows Point Steel Plant” where he had been exposed to asbestos “from 1947 through [1988].” Crane’s collateral estoppel claim hinges on the fact that, on March 9, 1992, Judge Marshall A. Levin signed an order accepting the voluntary dismissal with prejudice of the Cichy claim against John Crane, Inc. When Milton and Jeanette Cichy, in 2002, filed the present claim against John Crane, Inc., and 18 other corporate defendants, alleging that Cichy had been “diagnosed with mesothelioma on March 1, 2002,” 1 Crane countered with the defense of collateral estoppel. ²⁰ The Historic Litigational Context Before we turn to the nuances of collateral estoppel law, we need to place that voluntary dismissal of March 9, 1992, in proper historic perspective.

Having filed his initial claim, based on having contracted asbestosis, as early as April of 1988, Cichy was one of the relatively early asbestos claimants. His claim ultimately became part of a much larger group of complaints embraced within what became known as the “Bethlehem Steel Cases Master Complaint.” It was consolidated with and became a part of the case of Abate, et al. v. ACandS, Inc., et al., Consolidated Case No. 89236705, “known to the Maryland asbestos litigation industry as Abate I.” ACandS v. Godwin, 340 Md. 334, 341 , 667 A.2d 116 (1995). In ACandS v. Godwin, 340 Md. at 341-42 , 667 A.2d 116 , Judge Rodowsky described how a small residual but representative part of what had once been a much larger Abate I came to trial before Judge Levin from February 18 through August 10,1992. Abate I is the first trial after the consolidation in the Circuit Court for Baltimore City of 8,555 actions involving claims for personal injuries or wrongful death allegedly resulting from exposure to asbestos.

In that trial, held from February 18 to August 10,1992 before Judge Marshall A. Levin, certain common issues relating to liability were decided, as well as all issues between six illustrative plaintiffs and certain nonsettling, trial defendants. (Emphasis supplied). Our present concern is with the infinitely larger part of what had initially been Abate I that did not come to trial. In ACandS v. Godwin, Judge Rodowsky described the litigational tidal wave that was threatening to overwhelm the Baltimore City court system as early as 1990. ²¹ In September 1987, when there were approximately 1,000 asbestos case filings in the Circuit Court for Baltimore City, Judge Levin was administratively designated as the “judge in charge” of asbestos litigation in that court.

By April 1990 the number of such cases in Baltimore City had increased to more than 1,900. It was anticipated that asbestos cases would continue to be filed at the rate of up to fifty cases per week. Judge Levin had been applying alternative dispute resolution techniques, but with only limited success. The case management plan in April 1990 called for trying on all issues batches of ten plaintiffs’ actions per consolidated trial.

This represented an increase from five plaintiffs’ actions per consolidated trial caused by a reduction to two judges from the four judges previously available to try asbestos cases. If these cases were heard eleven months of the year, and if a new consolidation were set for trial in each of those eleven months before each of the two available judges, a maximum of 220 Baltimore City asbestos cases would be disposed of by trial or, with the incentive of a fixed trial date, by settlement. But the queue of undisposed of cases would lengthen into the Twenty-first Century, because annual new filings were approximately ten times greater than the number of cases that could be tried in the same period. 340 Md. at 342 , 667 A.2d 116 (emphasis supplied). Judge Levin’s approach, in macrocosm, was to consolidate the claims and then to address the overall problem with a coherent grand strategy.

Against that background Judge Levin determined to consolidate the common issues of all of the Baltimore City asbestos cases into one trial. The initial mass consolidation order of April 1990 applied to all asbestos personal injury and wrongful death cases in the Circuit Court for Baltimore City filed as of April 1,1990 in which process was served by June 1, 1990. The principal ²² common issues to be decided in the consolidated phases of the trial were “state of the art” and punitive damages. Also pending as of April 1990 were more than 3,000 asbestos cases, in total, in the circuit courts for Baltimore, Prince George’s, Allegany, and Washington Counties.

These cases were transferred to the Circuit Court for Baltimore City pursuant to Maryland Rule 2-327(d) for pretrial and for trial of common issues as part of the same consolidation. 340 Md. at 342-43 , 667 A.2d 116 (emphasis supplied). Quite obviously, 8,555 individual claims against over one hundred corporate defendants could not be litigated in a single trial. The trial venue could have been nothing less than a football stadium and the trial itself would have exceeded the life expectancies of all judges, jurors, attorneys, and litigants condemned to endure it. It would self-evidently have been an absurdity.

Accordingly, Judge Levin’s strategy was to leave thousands of particularized factual issues unlitigated for the moment and to focus on a relatively few common issues that could, once decided, serve as stare decisis for the myriad of trials that would inevitably follow in Abate I’s wake. Judge Levin, in molding the consolidation, determined that the claims of six plaintiffs should proceed to complete disposition on all issues. Three plaintiffs were selected by agreement of counsel for the consolidated plaintiffs, and three plaintiffs were selected by agreement of counsel for the consolidation trial defendants. The purpose of trying these six illustrative claims in full was to give the jury a better understanding of the issues involved in an asbestos case.

Over one hundred different defendants had been sued, cumulatively, in the 8,555 actions that were consolidated. Prior to trial, however, the plaintiffs voluntarily dismissed their claims against all but fifteen of the defendants originally named. 340 Md. at 343 , 667 A.2d 116 (emphasis supplied). That historic perspective will be important, as we are called upon to examine, pursuant to collateral estoppel principles, ²³ what precise factual issues have actually been litigated on their merits and which have not. On the Cichy claim of 1988 specifically and in Abate I generally, nothing with respect to the appellant-defendant John Crane, Inc., was ever actually litigated.

On the Cichy claim of 1988 specifically and in Abate I generally, nothing with respect to the original plaintiff Milton Cichy was ever actually litigated. Res Judicata and Collateral Estoppel Compared In arguing collateral estoppel, Crane wanders blithely back and forth across a line that should pose a more formidable boundary between two very distinct bodies of law. In framing its contention, Crane uses, as it must, the language of collateral estoppel. It immediately seeks to apply to its collateral estoppel problem, however, a body of rules that is unique to res judicata.

Our first job must be one of getting the categories straight. As early as LeBrun v. Marcey, 199 Md. 223, 226-28 , 86 A.2d 512 (1952), the Court of Appeals focused on the distinction between res judicata and collateral estoppel. “The scope of the estoppel of a judgment depends upon whether the question arises in a subsequent action between the same parties upon the same claim, or demand or upon a different claim or demand. In the former case a judgment upon the merits is an absolute bar to the subsequent action. In the latter the inquiry is whether the point or question to be determined in the later action is the same as that litigated and determined in the original action”.... “In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action.

It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.... But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or ²⁴ points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” (Emphasis supplied).

In Sterling v. Local 438, 207 Md. 132, 140-41 , 113 A.2d 389 (1955), the Court of Appeals again noted the distinction between res judicata and collateral estoppel. “... If the second suit is between the same parties and is upon the same cause of action, a judgment in the earlier case on the merits is an absolute bar, not only as to all matters which were litigated in the earlier case, but as to all matters which could have been litigated [res judicata]. If, in a second suit between the same parties, even though the cause of action is different, any determination of fact, which was actually litigated in the first case, is conclusive in the second case [collateral estoppel].” (Emphasis supplied). See also MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486 (1977); Frontier Van Lines v. Maryland Bank & Trust Co., 274 Md. 621, 624 , 336 A.2d 778 (1975); Travelers Insurance Co. v. Godsey, 260 Md. 669, 676 , 273 A.2d 431 (1971).

In Parklane Hosiery Co. v. Shore, 439 U.S. 322 , 326 n. 5, 99 S.Ct. 645 , 58 L.Ed.2d 552 (1979), the United States Supreme Court described the same distinction. Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of ²⁵ issues actually litigated and necessary to the outcome of the first action. (Emphasis supplied).

The legal consequences of res judicata are far more sweeping than are those of collateral estoppel, as was noted by MPC, Inc. v. Kenny, 279 Md. at 33 , 367 A.2d 486 . Suffice it to say that the question whether this is a case of res judicata on the one hand or collateral estoppel on the other is one of critical importance. If, for example, the two causes of action are the same, and res judicata is therefore applicable, the first judgment would bar appellants, as urged by appellee, from raising any matters which could have been decided in that case, including the claim for contribution being maintained here. If, however, we are not dealing with the same cause of action, collateral estoppel rather than res judicata would apply and only those determinations of fact or issues actually litigated in the first case are conclusive in this action.

(Emphasis supplied). After reciting the history of the distinction in Maryland, Judge Wilner, in Klein v. Whitehead, 40 Md.App. 1 , 389 A.2d 374 (1978), constructed a simple checklist for determining which doctrine applies in a given case. With this background, it is possible to construct a simple comparative checklist for determining which, if either, of the two doctrines is applicable. For either to apply, the second action must be between the same parties or those in privity with them.

For direct estoppel to apply, it must be shown, in addition, that the two causes of action are the same. Collateral estoppel does not require that the causes of action be the same, but it applies only with respect to issues of fact actually determined in the earlier proceeding. 40 Md.App. at 15 , 389 A.2d 374 (emphasis supplied). As Judge Adkins recently reiterated for this Court in Thacker v. City of Hyattsville, 135 Md.App. 268, 287 , 762 A.2d 172 (2000), “issue preclusion” is perhaps an apter term ²⁶ than collateral estoppel, just as “claim preclusion” is probably a better descriptive term than res judicata. In order to preclude the relitigation of a factual issue in a subsequent case between the same parties, the sine qua non is that the factual issue was actually litigated on its merits in the earlier case.

Focusing on collateral estoppel or issue preclusion, Janes v. State, 350 Md. 284, 295 , 711 A.2d 1319 (1998), provided a good working definition. Collateral estoppel, or issue preclusion, began life and retains life as a common law doctrine. A common and well-established articulation of the doctrine is that “[wjhen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Murray International v. Graham, 315 Md. 543, 547 , 555 A.2d 502, 504 (1989), quoting from Restatement (Second) of Judgments, § 27 (1982). (Emphasis supplied).

What matters for purposes of collateral estoppel is not that a suit or a cause of action has been dismissed, by some modality or another and with or without prejudice. The Supreme Court pointed out in Ashe v. Swenson, 397 U.S. 436, 443 , 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970), that the applicability of the doctrine depends exclusively upon whether an issue of ultimate fact has once been determined by a valid and final judgment. “Collateral estoppel” is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. (Emphasis supplied).

See also Gibson v. State, 328 Md. 687, 693 , 616 A.2d 877 (1992) (“The collateral estoppel doctrine operates to a preclusive end, so that when an issue of ultimate fact has been determined once by a valid and final judgment, ²⁷ that issue cannot be litigated again between the same parties in a future action.”); Cousins v. State, 277 Md. 383, 398 , 354 A.2d 825 (1976) (“Collateral estoppel prevents the State from litigating a second time an issue of ultimate fact where there has already been a final determination of that issue in the accused’s favor.”). And see Colandrea v. Wilde Lake Community Assoc., Inc., 361 Md. 371 , 761 A.2d 899 (2000). In Burkett v. State, 98 Md.App. 459 , 633 A.2d 902 (1993), cert. denied, 334 Md. 210 , 638 A.2d 752 (1994), this Court went to great lengths to point out that the core concern of res judicata law is with the legal consequences of a final judgment in terms of precluding the subsequent relitigation of the same case. Res judicata looks to a final judgment on the merits earlier entered in the same case or same cause and to the necessary legal consequences of that judgment. ...

A claim that has once been litigated, or that could have been litigated, in the same case by the same parties or their privies, cannot, in the interests of finality and repose, be re-litigated. ... [I]t is a plea in bar, which is interposed in advance of trial so as to bar the defendant even from being brought to trial in a subsequent and sequential effort to relitigate a matter already legally settled. 98 Md.App. at 464 , 633 A.2d 902 (emphasis supplied). By contrast, the concern of collateral estoppel law is with the preclusion of duplicative fact-finding. Collateral estoppel shares with res judicata the requirement that the earlier litigation and the later litigation be between the same parties or their privies.... At that point, however, the two related legal doctrines part company.

Collateral estoppel is concerned with the factual implications of an earlier litigation of a different case whereas res judicata is concerned with the legal consequences of a judgment entered earlier in the same case. Collateral estoppel is concerned, therefore, not with the legal consequences of a judgment but only with the findings of ultimate fact, when they can be discovered, that necessar ²⁸ ily lay behind, that judgment. Res judicata, by contrast, is concerned with the legal consequences of a judgment regardless of whether the judgment was based on the ultimate factual merits or on the basis of a legal ruling having nothing to do -with the ultimate factual merits. 98 Md.App. at 464-65 , 633 A.2d 902 (emphasis supplied). The distinction is between “what happened legally” and “why it may have happened factually.” Collateral estoppel is concerned only coincidentally with what happened legally; its special concern is with why it happened in terms of fact finding.

Res judicata, by contrast, is concerned with what happened legally—-with the entering of a final judgment and with the legal consequences of that judgment. It does not matter why the judgment was entered in terms of antecedent fact finding. Its claimpreclusive effect arises out of its very existence, and there is no necessity to probe for its probable fact-finding basis. The effect of collateral estoppel, when that doctrine is applicable, is that of issue preclusion (meaning an issue of ultimate fact).

A finding of ultimate fact that has once been made in favor of a party cannot later be relitigated adversely to that party, even in the trial of a different case. 98 Md.App. at 465 , 633 A.2d 902 (emphasis supplied). In resolving this contention, we must ask on which side of the res judicata-coWaterd) estoppel boundary line do we find ourselves? Unlike John Crane, Inc., we may not casually amble back and forth, picking first an attractive principle from one category and then a tempting morsel from the other. It is either a case of claim preclusion or one of issue preclusion, each with a different set of rules.

It is not an undifferentiated mixture of both. Asbestosis Versus Mesothelioma: Separate and Distinct Claims Which set of measuring devices we bring to bear on this contention depends on the relationship between two claims: 1) ²⁹ the earlier claim filed by Cichy and his wife against John Crane, Inc. on April 28, 1988 and voluntarily dismissed by them on March 9, 1992; and 2) the subsequent claim against John Crane, Inc., filed in 2002 and on which the Cichy plaintiffs prevailed on May 5, 2004. Were those claims one and the same? If so, we are properly in the world of res judicata.

Or were they different claims? If so, we are in the very different world of collateral estoppel. The respective claims were, to be sure, between the same parties or those in privity with them. The plaintiff in each case was either Cichy or Cichy’s relatives and survivors.

The defendant on both occasions was John Crane, Inc. The trials of the two cases, had they both come about, would have involved, moreover, a heavy overlap of factual issues. Notwithstanding these significant common features, however, the two claims were not the same. One difference between the two claims, of course, is that Milton Cichy was alive throughout the pendency of the first claim. It was dismissed on March 9, 1992, and he did not die until January 25, 2003.

The second claim, prosecuted by the Cichy plaintiffs and resulting in the jury award as of May 5, 2004, included a wrongful death count for the benefit of Cichy’s surviving spouse and surviving child. That, however, is not the critical difference on which we ground our holding that the two claims, the two cases, the two causes of action, were not one and the same. The first claim brought by Cichy against Crane was based on the allegation that he had contracted asbestosis from being exposed to Crane’s asbestos-bearing products. It was not until March 1, 2002, that Cichy was diagnosed with mesothelioma.

The second claim was predicated exclusively on the allegation that, as a result of his exposure to Crane’s asbestos-bearing products, Cichy had contracted mesothelioma. Ingeniously, Crane seeks to embrace both asbestosis and mesothelioma under the all-embracing umbrella term “asbestos-related disease.” Notwithstanding the linguistic camouflage, the distinction between the two is both discernible ³⁰ and dispositive. A claim based on asbestosis is a different case or cause of action from a claim based on mesothelioma. Our conclusion in that regard is a synthesis of Smith v. Bethlehem Steel Corp., 303 Md. 213 , 492 A.2d 1286 (1985), and Pierce v. Johns-Manville Sales Corp., 296 Md. 656 , 464 A.2d 1020 (1983).

In Pierce v. Johns-Manville, the Court of Appeals had to decide whether the running of the statute of limitations on a claim based on asbestosis would bar the filing of a subsequent claim based on mesothelioma. In holding that claims based on those respective medical conditions were separate and distinct, the Court of Appeals relied in part on the affidavit of Dr. Russell S. Fisher, Chief Medical Examiner for the State of Maryland, in which he explained: “The diseases of mesothelioma and lung cancer are also associated with prior exposure to asbestos by inhalation. Lung cancer is a malignant disease that involves the cells found within the substance of the lung and the airways of the lung. It is a progressive disease which nearly always kills the victim within a year of its diagnosis, in the inoperable state.

The duration of the developmental process of lung cancer from inception to gross clinical manifestation cannot be stated with absolute certainty but modern medical opinion indicates this time lag to be of the order of months to a year or two at the extreme. “This kind of disease process is entirely different from the disease process involved with asbestosis, though they both may be associated with an individual’s exposure to the mineral asbestos. “It is a medically accepted fact that an individual who has been diagnosed with the disease of asbestosis will not inevitably contract either of the cancers mentioned above. It is also true that individuals who have been exposed to asbestos and who develop lung cancer or mesothelioma, as a result of such exposure, may well not have significant asbestosis. These two situations are possible because, although all three diseases are associated with the inhalation of asbestos fibers, there is at the present time no medically ³¹ accepted link between the development of malignant diseases and the development of asbestosis.” Quoted at 296 Md. at 660 -61 n. 4, 464 A.2d 1020 (emphasis supplied). From the evidence, the Court of Appeals concluded: Here the record shows that asbestosis and lung cancer are separate and distinct latent diseases that are not medically linked. 296 Md. at 664 , 464 A.2d 1020 (emphasis supplied).

Notwithstanding an earlier cause of action based on asbestosis, a cause of action based on lung cancer (mesothelioma) only accrues with the discovery of the lung cancer. [W]hen exposure to asbestos initially results in the manifestation of asbestosis, and subsequently results in the manifestation of lung cancer, a separate, distinct latent disease, and no tort recovery has been sought for the harm resulting from asbestosis, a cause of action for the harm resulting from lung cancer accrues when lung cancer is or reasonably should have been discovered. 296 Md. at 668 , 464 A.2d 1020 (emphasis supplied). And cf. Owens-Illinois v. Gianotti, 148 Md.App. 457, 478-81 , 813 A.2d 280 (2002). Before Crane seeks unwarranted solace in that opinion’s apparent qualification “and no tort recovery has been sought for the harm resulting from asbestosis,” it behooves us to turn immediately to Smith v. Bethlehem Steel’s gloss on Pierce v. Johns-Manville. In Smith v. Bethlehem Steel there was a later claim based on an asbestos-related colon cancer, but there had also been an earlier claim based on asbestosis.

In Smith , the defendant Bethlehem Steel Corp. sought precisely such solace in Pierce’s apparent qualification. There is, however, a legal question on the undisputed facts in this case. The worker in Pierce never sued in tort for damages far asbestosis. Glen Smith has pending in the federal court a claim in tort against the original defendants for damages based on asbestosis.

The Appellees argue that this is a material distinction between Pierce and the in ³² stant matter. They point out that at least eight times in the course of the opinion in Pierce reference was made to the absence of any effort to recover in tort damages based on asbestosis. 303 Md. at 233 , 492 A.2d 1286 (emphasis supplied). Judge Rodowsky, however, promptly laid that ghost of errant and gratuitous dicta to rest. Our review of Pierce convinces us that the fact that the claimant there had not previously sued in tort for damages for asbestosis was not a factor material to the holding.

The rule in Pierce is precedent on the legal aspects of the Smiths’ claims for damages based on colon cancer. 303 Md. at 234 , 492 A.2d 1286 (emphasis supplied). The Court of Appeals left no doubt that a cause of action claiming damages for asbestos-related lung cancer is separate and distinct from one claiming damages for asbestosis. We emphasize that the starting point for Pierce was the medical evidence that lung cancer was a latent disease, separate and distinct from asbestosis. If Glen’s colon cancer is similarly a latent disease, separate and distinct from his asbestosis, then under the rationale of Pierce the claims of the Smiths based on Glen’s colon cancer assert causes of action separate from those claiming damages for asbestosis.

Id. (emphasis supplied). And see Sopha v. Owens-Corning Fiberglas Corp., 230 Wis.2d 212 , 601 N.W.2d 627 (1999). A Separate Cause of Action We have labored perhaps unnecessarily to establish this intermediate premise that a claim based on asbestosis and a claim based on mesothelioma are not the same claim, because Crane has arguably conceded this point by expressly framing its contention as one based on “the doctrine of collateral estoppel.” If Crane thought that the two claims were one and the same, it would presumably have invoked the doctrine of res judicata, which it did not.

The problem nonetheless persists that Crane seems to amalgamate the two doctrines ³³ into an overarching super doctrine with no acknowledgment that they are distinct. The claim based on asbestosis which the Cichys voluntarily dismissed against John Crane, Inc., on March 9, 1992, is NOT THE SAME CLAIM as that on which the Cichy plaintiffs recovered a judgment on May 5, 2004. The fact that two separate claims share a significant number of common factual issues did not fuse them into a single claim. Crane, in effect, concedes as much when, in its brief, it refers to Maryland as a “two-disease” state.

The consequence of being a “two-disease” state is that each of the two diseases gives rise to a different claim. By definition, then, res judicata does not apply. Claim preclusion only operates to preclude subsequent attempts to relitigate THE SAME CLAIM. It does not preclude the subsequent litigation of A DIFFERENT CLAIM.

Collateral estoppel or issue preclusion may cross the line from one claim to another claim sharing a common factual issue, but res judicata may not. Crane nonetheless doggedly relies on the res judicata cases of Claibourne v. Willis, 347 Md. 684, 692 , 702 A.2d 293 (1997) (“The dismissal with prejudice ... has the same res judicata effect as a final adjudication on the merits favorable to the defendant.”); Langhoff v. Marr, 81 Md.App. 438, 445 , 568 A.2d 844 (1990); Bodnar v. Brinsfield, 60 Md.App. 524, 538 , 483 A.2d 1290 (1984); Parks v. State, 41 Md.App. 381, 386 , 397 A.2d 212 (1979) (“A dismissal ‘with prejudice’ has been held to be as conclusive of the rights of the parties as if the action had been prosecuted to a final adjudication on the merits adverse to the complainant.”); Byron Lasky & Assoc. v. Cameron-Brown, 33 Md.App. 231, 234 , 364 A.2d 109 (1976) (“A dismissal with prejudice is a final adjudication.”). The problem with that impressive array of case law is that it is utterly beside the point. Those cases all deal with res judicata law, not with collateral estoppel law.

Crane insists, with evangelical fervor, that a voluntary dismissal with prejudice is an absolute and final disposition of a case or a claim. Of course, it is! We fully agree. It is an absolute and final ³⁴ disposition of the case or claim that was dismissed.

Any further claim based on asbestosis would, of course, have been precluded. That is what claim preclusion means. The voluntary dismissal with prejudice that finally and absolutely disposes of the same claim, however, has no dispositive effect on a different claim. The cases relied on by Crane may all be in the right pew as far as dispositive effect is concerned, but they are in the wrong church.

They are in the res judicata church, whereas we, in this case, are called upon to apply the dogma preached in the collateral estoppel church. What Is Meant By “Actually Litigated”? At trial, Crane was unquestionably entitled to whatever protection was afforded by the doctrine of collateral estoppel. What precisely, however, is the scope of such protection?

Crane was protected from having the Cichy plaintiffs attempt to re-litigate against it any issue of fact that had actually been litigated in its favor in the earlier suit. That is the extent of the protection. The pivot for marking off that protection is the participial phrase “actually litigated.” What does it mean? And what does it not mean?

In MPC, Inc. v. Kenny, 279 Md. at 33 , 367 A.2d 486 , the Court of Appeals referred to the critical character of that criterion. If, however, we are not dealing with the same cause of action, collateral estoppel rather than res judicata would apply and only those determinations of fact or issues actually litigated in the first case are conclusive in this action. (Emphasis supplied). In Welsh v. Gerber Products, 315 Md. 510, 516 , 555 A.2d 486 (1989), Judge McAuliffe pointed to actual litigation as the sine qua non of issue preclusion.

A second aspect of the finality of judgments between the parties is the concept of issue preclusion. This principle, known as collateral estoppel, is that in a second suit between the same parties, even if the cause of action is different, any determination of fact that was actually liti ³⁵ gated, and was essential to a valid and final judgment is conclusive. (Emphasis supplied). In Murray International v. Graham, 315 Md. 543, 547 , 555 A.2d 502 (1989), the Court of Appeals again defined collateral estoppel in terms of an issue’s having been actually litigated. “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” (Emphasis supplied).

The distinction which Crane stubbornly refuses to recognize is that even a final and binding legal resolution of a case does not necessarily entail any actual litigation of factual issues. Crane continues to conflate the two very different phenomena. In the context, however, of collateral estoppel law and when the issue sought to be precluded is one of fact, the actual litigation of an issue of fact refers not to legal actions or rulings, which may have sweeping legal consequences, but only to the deliberative process of fact-finding by a fact-finding jury or judge. The fact finder receives and considers evidence on controverted issues of fact, assesses the credibility of the sources of the evidence, weighs the evidence, and, explicitly or implicitly makes findings of fact. 2 This is the core activity from which issue preclusion proceeds.

It is not coterminous with the larger process of resolving a legal action. It is merely one aspect of one modality that sometimes (but not always) enters into that larger process. There are a number of legal actions, procedures, and rulings that may have sweeping claim-preclusive consequences but ³⁶ that do not remotely entail any actual litigation of factual issues. In United Book Press, Inc. v. Maryland Composition Co., Inc., 141 Md.App. 460, 477 , 786 A.2d 1 (2001), Judge James Eyler quoted with approval from Comment (e) to the Restatement (Second) of Judgments, § 27 (1980). “In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated.

Therefore, the rule of [issue preclusion] does not apply with respect to any issue in a subsequent action.” (Emphasis supplied). And see Welsh v. Gerber Products, Inc., 315 Md. at 520-21, 555 A.2d 486 (citing Restatement (Second) of Judgments, § 27 and holding that a consent judgment does not have issue preclusive effect); Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998) (default judgment does not have preclusive effect where issues of fact were not actually litigated); Jones v. Baltimore City Police, 326 Md. 480, 488 , 606 A.2d 214 (1992) (probation before judgment does not have issue preclusive effect). By a precise parity of reasoning, a civil plaintiff may dismiss with prejudice a cause of action or the State may nol pros a criminal charge even when the supporting evidence for the action or the charge might be overwhelmingly abundant. The legally binding consequences of the dismissal, when applicable, do not necessarily correlate in any way to evidentiary inadequacy on underlying factual issues.

The thing that all of these binding legal actions—a nol pros, a confessed judgment, a consent judgment, a default judgment, a voluntary dismissal with prejudice—have in common is that they are not necessarily dependent on the actual litigation of any factual issue. The legal action, therefore, does not necessarily imply anything with respect to arguably subsumed factual issues. Our concern, on this contention, is exclusively with the actual litigating of factual issues, if there was any such litigating. The approach prescribed by Judge Eyler in United Book v. Maryland Composition, 141 Md.App. at 479 , 786 A.2d 1 , for searching for evidence of actual litigating is highly pertinent. ³⁷ In determining whether an issue has been actually litigated, courts may look beyond the judgment to examine the pleadings and evidence presented in the prior case.

(“[F]or the doctrine of collateral estoppel to apply, the probable fact-finding that undergirds the judgment used to estop must be scrutinized to determine if the issues raised in that proceeding were actually litigated, or facts necessary to resolve the pertinent issues were adjudicated in that action.”). (Emphasis supplied). Having now appropriately narrowed the scope of the search, it is self-evident that Crane has no collateral estoppel defense. In the earlier case brought by Cichy and his wife against John Crane, Inc., no issue of fact was ever litigated in Crane’s favor that the later suit sought to re-litigate.

Indeed, no factual issue involving either Cichy or Crane was ever litigated at all. The very purpose of Judge Levin’s grand strategy in negotiating for Cichy and for 8,548 other plaintiffs to dismiss their suits against over 85 corporate defendants was to avoid any necessity for any actual litigation of any factual issues in that multitude of dismissed actions. Except for the six plaintiffs and 15 defendants who actually went to trial in ACandS v. Godwin (Abate I), none of whom is involved in this case, there was no actual litigation of any factual issue. Consequently, there was no predicate for any conceivable claim of collateral estoppel.

Judge Schwait’s ruling in that regard was eminently correct. 3. Maryland Cap on Non-Economic Damages Crane’s third contention is that Judge Schwait erroneously declined to apply Maryland’s statutory cap on non-economic damages to the jury award on the survival claim. The Alpha and Omega of controlling law is Maryland Code, Courts and Judicial Proceedings Article, § ll-108(b), the “cap statute.” (b) Limitation on amount of damages established.—(1) In any action for damages for personal injury in which the ³⁸ cause of action arises on or after July 1,1986, an award for noneconomic damages may not exceed $350,000. (2) (i) Except as provided in paragraph (3)(ii) of this subsection, 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.

(ii) the limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive. (3) (i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim. (ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.

The jury made three awards to the Cichy plaintiffs. With respect to two of those awards, Judge Schwait, post-trial, imposed the cap on the non-economic portions of the awards for wrongful death and for loss of consortium. 3 For non- ³⁹ economic loss, the jury had awarded the surviving spouse $1,000,000 and the surviving child $500,000 in the wrongful death action. It had also awarded the surviving spouse $2,000,000 for the loss of consortium. Computing first the cap with respect to the surviving spouse, Judge Schwait calculated the initial cap figure as $500,000, pursuant to subsection (2)(i).

He then, pursuant to subsection (2)(ii), raised the cap by $15,000 per year for each of the eight years between October 1, 1995, and Cichy’s death on January 25, 2003, for an additional amount of $120,000 ($15,000 per year times 8). When added to the initial $500,000, that brought the total figure for the surviving spouse to $620,000. Pursuant to subsection (3), the additional wrongful death award for the second claimant (the surviving child) was allowed to increase the combined award from $620,000 by an additional 50%, for an increase of $310,000 to the surviving child and a combined total award of $930,000 for wrongful death and loss of consortium. Crane has lodged no objection to that application of the cap. 4 The third award to the Cichy plaintiffs was for the survival action, brought on behalf of Cichy by the personal representative of his estate.

The initial jury award for non-economic loss in the survival action was for $4,000,000. Judge Schwait declined to apply the statutory cap to that award and it is from that decision that Crane appeals. As the cap statute itself makes clear, the critical date for applying the cap on non-economic damages is July 1, 1986. What we measure in terms of that temporal milepost is not whether the cause of action accrues “on or after” that date but whether the cause of action ARISES “on or after” that date.

Crane v. Scribner, 369 Md. at 390, 800 A.2d 727 , exhorts us to ⁴⁰ be aware of “the distinction made by the Legislature between when an action arises and when it accrues.” The early and late ends of the spectrum make the application of the statutory cap easy. It is in the intermediate range that application is more problematic. Judge Wilner set out with precision the three pertinent time periods. We thus hold that, in actions for personal injury founded on exposure to asbestos, the court, as an initial matter, may look, for purposes of § 11—108(b)(1), to the plaintiffs last exposure to the defendant’s asbestos-containing product.

If that last exposure undisputedly was before July 1, 1986, § ll-108(b)(l) does not apply, as a matter of law. If the only exposure was undisputedly after July 1, 1986, then obviously the cap applies as a matter of law. In those hopefully rare instances in which there was exposure both before and after July 1,1986, and there is a genuine dispute over whether either exposure was sufficient to cause the kind of cellular change that led to the disease, the trier of fact will have to determine the issue based on evidence as to the nature, extent, and effect of the pre- and post-July 1, 1986 exposures. 369 Md. at 394 , 800 A.2d 727 (emphasis supplied). We are not at either end of that spectrum, either where the “last exposure undisputedly was before July 1, 1986” or when the “only exposure was undisputedly after July 1, 1986.” Cichy’s case does not exactly straddle the line, for the overwhelming bulk of his exposure was during his 39 years at Bethlehem Steel before July 1, 1986.

His exposure to asbestos-bearing products produced by Crane may, however, have tiptoed across the July 1,1986 line, and that is the occasion for the present dispute. In those cases where there is significant exposure both before and after July 1, 1986, Crane v. Scribner, 369 Md. at 394 , 800 A.2d 727 , provides that “the trier of fact will have to determine the issue [of when the cause of action arose] based ⁴¹ on evidence as to the nature, extent, and effect of the pre- and post-July 1,1986 exposures.” 5 Judge Schwait’s ruling now under review was his decision not to submit to the jury the issue of when Cichy’s cause of action arose. As Judge Wilner pointed out in Crane v. Scribner, 369 Md. at 394 , 800 A.2d 727 , there are two prerequisites for the generation of a mandatory jury issue: 1. “Exposure both before and after July 1,1986”; and 2. “A genuine dispute over whether either exposure was sufficient to cause the kind of cellular change that led to the disease.” Arguably, there may have been some exposure of Cichy to Crane-manufactured asbestos after July 1, 1986. Our affirmance of Judge Schwait’s decision is based on our conclusion that there was no genuine dispute as to the sufficiency of the pre-1986 exposure to cause the kind of cellular change that led to Cichy’s mesothelioma, as opposed to the very minimal exposure that might have occurred after July 1, 1986.

We cannot say that Judge Schwait abused his discretion in making that determination. In reaching our conclusion, we do not place the heavy reliance that the Cichy plaintiffs do on the fact that Crane stopped manufacturing asbestos-containing products in 1985. There would be no exposure of a pipefitter to asbestos in installing new Crane gaskets and packing after 1985, of course, but there would still be exposure in removing older Crane gaskets and packing, that have a life expectancy of 12 to 15 years. It is true that with each passing year and with each replacement of an old product with a new product, there would be a gradual lessening of the Crane-asbestos presence in the total Bethlehem Steel environment, but there would not ⁴² be a total disappearance for several decades.

The minimalization relied on by the Cichy plaintiffs would be, at best, a very peripheral factor in our analysis. Our primary focus is on Cichy himself. He went to work for Bethlehem Steel in 1947 and, for most of the next four decades, worked as a pipefitter with massive daily exposure to asbestos fibers and asbestos dust. As of the critical meridian of July 1, 1986, Cichy had been working at Bethlehem Steel for 39 years and was 63 years old.

He did not retire for another two or three years, to be sure, but he was transferred, for his last three or four years on the job, to the fabrication shop. Ideally, we would like to have seen this developed more fully, but in his videotaped deposition Cichy testified: “Question: The last few years you worked just in the shop fabricating; is that right?” “Answer: Yeah. Fabricating.” “Question: So the last couple years you were there, you would not have done much work with gaskets?” “Answer: Well, like I said, you know, when I fabricated, sometimes I put in my own jobs. So you go to the steel side.

Most of the time for big jobs were the steel side.” All of the testimony about asbestos exposure had been with respect to the work of a pipefitter in installing and removing gaskets and packing. There was no indication anywhere in the record that the fabrication shop or the life of a fabricator involved any exposure to asbestos. There may have been no exposure at all of Cichy to asbestos after July 1, 1986. If there were any such exposure, it may have been very minimal.

Judge Schwait did not abuse his discretion in declining to submit this issue to the jury. In terms of the generation of a jury question, Crane v. Scribner, 369 Md. at 394 , 800 A.2d 727 , modifies the noun “dispute” with the qualifying adjective “genuine.” Our reading of “genuine dispute” is that a plausible likelihood of either of two events gives rise to a genuine dispute, but that an overwhelming likelihood of one versus a mere conceivable ⁴³ possibility of the other does not. A dispute, maybe. But hardly a genuine one.

The question before Judge Sehwait was precisely the question as framed by Crane v. Scribner, 369 Md. at 383 , 800 A.2d 727 : Whenever an action is filed any significant time after July 1, 1986, and is based upon a disease with a long latency period, as all of the current asbestos-exposure cases are, the predominant question that arises under that statute is when the cause of action “arose.” Cichy was diagnosed with mesothelioma on March 1, 2002. In Crane v. Scribner, 369 Md. at 381 , 800 A.2d 727 , Judge Wilner was discussing the time lapse between the diagnosis of mesothelioma and the first exposure to the cancer-causing agent. With respect to mesothelioma, Dr. Hammar stated that about 90 to 95% of the cases fall within a 20 to 50 year range, with the average being 30 to 40 years. He explained that carcinogens, such as asbestos, act over many years to cause cellular changes that lead to the development of a malignant cell, and that once a cancer cell, about 10 micrometers in diameter, is formed, it may take 10 to 15, or as many as 30, years for that cell to proliferate and form a tumor the size of a golf ball.

Judge Wilner thoroughly analyzed the three approaches that have been taken in determining when a cause of action based on an asbestos-related injury arises. 369 Md. at 390-93 , 800 A.2d 727 . In first rejecting the manifestation approach, which looks to the ultimate diagnosis of disease, the Court of Appeals noted that the existence of the injury precedes, perhaps by a considerable period of time, its discernible manifestation. It is virtually conceded, even by asbestos-action defendants, that diseases such as cancer and asbestosis exist in the ⁴⁴ body before they become symptomatic and before they are capable of clinical diagnosis. 369 Md. at 390 , 800 A.2d 727 (emphasis supplied). Crane v. Scribner, 369 Md. at 390 , 800 A.2d 727 , opted for the exposure approach, which is “the earliest in time and looks to when the plaintiff first inhaled asbestos fibers that caused cellular changes leading to the disease.” The opinion spelled out what the plaintiff initially must show.

We start, then, with the requisite premise that the plaintiff has established to the satisfaction of the trier of fact that he or she has an injury that was proximately caused by exposure to the defendant’s asbestos-containing product. Whether the injury sued upon is cancer or asbestosis, the plaintiff must, at the outset, establish that he or she has that disease and that it was caused, in whole or substantial part, by exposure to the defendant’s asbestos-containing product. The question, for purposes of § 11—108(b)(1), is when that injury came into existence. 369 Md. at 392 , 800 A.2d 727 (emphasis supplied). The Cichy plaintiffs clearly satisfied that first part of the test.

In trying to pinpoint when the cause of action arose, the time of inhalation of the asbestos fibers is the key starting point. What the evidence in nearly all of the cases reveals is that, (1) inhalation of asbestos fibers causes cellular damage, (2) the cellular damage occurs shortly after inhalation, (3) with respect to cancer, the exposure of the cells to asbestos fibers causes the cells to divide, (4) the increased cellular division increases the risk of cellular genetic error, and (5) that, in turn, increases the risk of one or more cells turning cancerous. The evidence establishes, as well, that the greater the exposure, at one time or over time, the greater is the cellular damage, the greater is the chance that the ordinary body defenses will be unable to cope with that damage, and the greater is the likelihood of disease formation. The evidence, viewing the process in hindsight, is that, if the plaintiff in fact has a disease that he or she ⁴⁵ establishes is traced to exposure to asbestos, it developed from the cellular damage caused by the asbestos inhalation.

Although it is as impossible to ascertain which fiber ultimately caused which cell, over time, to escape the body’s defenses and turn cancerous, as it is to determine when that occurred, the certainty is that it did occur. In Mitchell, we regarded that cellular damage, caused by the inhalation of asbestos fibers, and which later produced the disease, as a bodily injury. 369 Md. at 392-93 , 800 A.2d 727 (emphasis supplied). For the plaintiff who has ultimately contracted mesothelioma, pinpointing the time of exposure is the most practical and reasonable way to determine the inevitably elusive question of when the cause of action arose. Given the practical impossibility of ascertaining with any degree of precision when that onset actually occurred, we consider it to be more reasonable to look back to the exposure that ultimately produced the disease, which cannot, of course, be later than the last exposure, than to engage in “guesstimates” of when the first cell became diseased, “guesstimates” based on contradictory expert testimony—the plaintiffs’ experts invariably moving the date back and the defendants’ experts just as invariably moving it forward—all of which, in any event, seems to be founded upon uncertain assumptions. 369 Md. at 393 , 800 A.2d 727 (emphasis supplied).

In this case, Dr. Edward Gabrielson, professor of pathology and oncology at the Johns Hopkins Medical School, testified as to the likely time lapse between the first damaging exposure and the ultimate manifestation of mesothelioma. A. And there’s good data looking at people who were exposed to asbestos and when they get their cancers, and that latency period with first exposure until clinical diagnosis of cancer, it is always at least twenty years, almost always twenty. There are cases of eighteen or nineteen, but almost always twenty years or more. Typically it is thirty or forty years.

It takes a long time. ⁴⁶ Q. And if an individual were exposed to asbestos, say, up until 1985 or 1980 and had never had any other exposure to asbestos, what asbestos would have caused the cancer? A. Well, it would be these earlier exposures. In fact, dealing with the situation such as that, which is very common, we expect exposures prior to 1985 to be the exposures that are causing cancers now twenty years or so later. (Emphasis supplied).

The overwhelming likelihood is that Cichy was exposed to the asbestos fibers that caused the first cellular change at some time during the course of his 39 years as a pipefitter at Bethlehem Steel. The suggestion that he suffered no latent injury during all of those 39 years as a pipefitter but only suffered cellular change during his last two or three years on the job, after he had been transferred to the fabrication shop, is speculative to the point of fantasy. That Judge Schwait did not invite the jury to engage in such fantasizing was not an abuse of discretion. 4. Evidentiary Issues Crane’s final contention challenges three of Judge Schwait’s evidentiary rulings.

It claims that Judge Schwait committed error when he 1) permitted expert testimony about crocidolite asbestos and admitted evidence about the presence of crocidolite asbestos in Crane products; 2) permitted expert testimony that Crane products responded to testing in the same manner as did the products of other asbestos manufacturers; and 3) overruled Crane’s objection to certain hypothetical questions. As we approach the contention, we note initially that these are evidentiary judgment calls of a type that are ordinarily entrusted to the broad discretion of the trial judge. Crocidolite Asbestos Crane objects that the Cichy plaintiffs should not have been permitted to mention in any way the very word “crocidolite” with respect to a Crane product to which Cichy may have been exposed. It claims that there was no evidentiary predicate for ⁴⁷ any inference that any Crane products to which Cichy might have been exposed contained crocidolite.

Our short answer is to agree with Judge Schwait that there was such an evidentiary predicate. In responding to this issue in the course of ruling on Crane’s post-trial motions, Judge Schwait ruled: Defendants argue that the introduction of evidence regarding Crocilidate asbestos containing products misled and confused the jury and is a ground to set aside the jury’s verdicts and require a new trial. Based on the video tape deposition of Mr. Cichy, the testimony of Dr. Longo and Dr. Dement (plaintiffs expert witnesses), John Crane’s response to Requests for Admissions, Crane’s Product catalogue and Crane’s packing advertisement dated June 1965, the evidence was abundantly sufficient for the jury to conclude that Mr. Cichy was exposed to Crane products containing Crocilidate. (Emphasis supplied).

Even if it were otherwise, however, we can conceive of no possible prejudice. Crane certainly fails to establish any. In 1721 pages of record extract, Crane can come up with a few scattered instances where the word was even mentioned, in passing, in the presence of the jury. In the instances pointed out to us, “crocidolite” was not even the subject of the sentence that contained it, let alone the subject of an elucidating paragraph.

The subject of brief discussion, in those scattered instances we can find, was “chrysolite.” The basic tenor of the testimony was that chrysolite, while not as potent as crocidolite or amosite, was nonetheless potent enough to cause mesothelioma. This issue is trivial in the extreme. We cannot picture jurors, poised like dedicated archeologists ready to pounce upon the smallest fossil, waiting eagerly for the softest whisper of the word “crocidolite” and then seizing upon it as if it were the Holy Grail. We are persuaded that the subject did not even dimly pierce the consciousness of the jurors, let alone influence their verdict.

It is burdensome to waste scarce judicial resources on such a contention. ⁴⁸ The Process of Fiber Release One of the concepts that had to be communicated to the jury was the process by which the removal and the installation of gaskets and packing would release asbestos fibers into the surrounding air. To communicate the concept, the plaintiffs utilized the testimony of Dr. James R. Millette and Dr. William Longo, industrial hygienists, who testified as to the general phenomenon of fiber release in the course of such operations. Their conclusions were based upon tests which they had conducted with respect to asbestos-containing gaskets and packing material generically, not specifically with Crane products. Crane protests that the test results should not have been admitted into evidence because the tests were not conducted on Crane products specifically.

It had been established that the Crane gaskets and packing material contained asbestos. Dr. Longo testified with a reasonable degree of scientific certainty that all the gasket companies, including Crane, made the same sort of product for high temperature and high pressured steam lines and that the products of the various manufacturers were comparable to each other and could be used interchangeably. He testified that the same was true of packing material made by various manufacturers and that the packing materials from the different manufacturers would behave in the same way under, testing. Both experts testified that the generic tests were fairly representative of the Crane product.

Crane, indeed, had prepared a comparison chart, which listed the gaskets and packing material made by other manufacturers and identified the comparable Crane products which could be used interchangeably with them. It is important to note that Judge Schwait gave Crane’s counsel wide latitude in cross-examining Dr. Longo concerning the similarity or dissimilarity of the asbestos-containing materials. Crane had the opportunity to present evidence, if any existed, that its products were significantly different from the ⁴⁹ products of other manufacturers. No such evidence was introduced.

In the post-trial motions, Crane raised this issue in a slightly altered form. In rejecting it, Judge Schwait ruled: In ACandS v. Abate, 121 Md.App. 590 , 710 A.2d 944 (1998), Crane raised this issue and it was rejected by the Court of Special Appeals. Here, as in prior cases, there was more than sufficient evidence to establish that Mr. Cichy was exposed to asbestos dust from Crane products. We see no error.

Hypothetical Questions The Cichy plaintiffs presented expert testimony by Dr. Laura Welch and Dr. Edward Gabrielson to show that Crane’s products were a substantial contributing factor in the causation of Cichy’s mesothelioma. Crane now contends that the hypothetical questions posed to the two experts lacked the required evidentiary basis. The very full response given to this contention by Judge Schwait when it was raised again in post-trial arguments satisfies us that the evidentiary rulings were not in error. Here the hypothetical questions appear in the trial transcripts at pp 631-638 (Dr. Gabrielson) and pp 1499-1504 (Dr. Welch).

Crane claims that plaintiffs did not offer evidence to prove that Mr. Cichy was exposed to Crane materials containing asbestos and, therefore, the evidence failed to comport to the hypothetical posed to plaintiffs’ experts. I find that a factual basis existed in the record for each hypothetical question asked. The evidence established that asbestos was used in the type of gaskets and packing with which Mr. Cichy worked from 1950 to 1989. Longo testimony @ T. p. 1289.

Crane brochures (Exs. 20, 91, 91A and B and 93) establish the use of asbestos containing packing and gaskets present in Mr. Cichy’s work environment. ⁵⁰ The Crane catalogue also included the use of asbestos containing products on a steam line around which Mr. Cichy worked. Mr. Cichy also testified that this work environment over a period of years had dust in it from scraping of gaskets and other activities. Accordingly, there was sufficient testimony to form a factual predicate for the jury to consider the hypothetical questions asked. (Emphasis supplied).

And see Nolan v. Dillon, 261 Md. 516, 532 , 276 A.2d 36 (1971); Gordon v. Opalecky, 152 Md. 536, 548-49 , 137 A. 299 (1927).

II

Puller v. Garlock Sealing Technologies, LLC For all intents and purposes, the case of Reginald Puller and now the Puller plaintiffs against Garlock Sealing Technologies, LLC has given rise to a completely separate and distinct appeal. Reginald Puller was for most of his life a resident of Washington, D.C. On his high school graduation day in June of 1969, Puller enlisted in the United States Navy. His first “hitch” in the Navy was one of four years. He served most of that time as a boiler technician aboard the U.S.S. Hermitage.

Following his discharge from the Navy in 1973, Puller went to work for the National Institute of Health for the two year period of 1973-1975. He worked primarily in the power plant as a boiler technician. Puller reenlisted in the Navy in 1975 and served through 1978. He worked again as a boiler technician, for that second “hitch” aboard the U.S.S. Spiegel Grove.

While assigned to the Spiegel Grove, Puller also worked on the aircraft carrier U.S.S. Nimitz, as it was being built at the Newport News, Virginia, shipyard. During that second period of Navy service, Puller was also assigned to work, for a period of somewhat less than a year, to the Bethlehem Steel Shipyard on Key Highway in Baltimore. The evidence established that during his service as a boiler technician during both of his tours in the Navy and during his ⁵¹ employment at NIH, Puller was exposed to asbestos-containing gaskets and packing material manufactured by Garlock. Puller was diagnosed with mesothelioma on October 1, 2001.

He died of mesothelioma on November 9,2002. 5. Evidentiary Sufficiency of Proof of Economic Loss Garlock challenges the legal sufficiency of the evidence to support the verdict in favor of the Puller plaintiffs for economic damages. The jury had awarded the plaintiffs $100,000 for the loss of household services and $144,000 for lost wages. Garlock bases its challenge on evidence that Puller may have been addicted to cocaine for some period during the last years of his life.

Garlock’s present contention is that Judge Schwait erroneously failed to grant its post-trial motion for 1) a judgment notwithstanding the verdict on this issue, 2) a new trial on the ground that the evidence of economic loss was against the weight of the evidence, or 3) a remittitur on the award for economic loss. We have gone over with a fine-toothed comb the motion for judgment made by Garlock on May 3, 2004 at the close of the plaintiffs case, and, although three other issues were raised, there was no remote suggestion of the nuanced argument now being made. Similarly, there was no hint of any such argument in the motion for judgment made at the close of the entire case. Our disposition of the judgment N.O.V. contention, therefore, is a no-brainer.

Maryland Rule 2-532(a) is dispositive. In a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. (Emphasis supplied). Garlock attempts to counter this glaring lapse by pointing to subsection (c): ⁵² A motion for judgment notwithstanding the verdict may be joined with a motion for a new trial.

Indeed, it may, if it is otherwise properly in the case. Subsection (c), however, dealing with the formality of the pleading, does not relieve a motion for judgment n.o.v. of the procedural prerequisites and limitations ordinarily attached to it. Both the granting of a remittitur or the intertwined awarding of a new trial based on the alleged excessiveness of the verdict for economic loss are matters entrusted to the wide discretion of the trial judge. In terms of the width, the virtually boundless width, of “wide discretion,” as recently as 1992 Owens-Illinois v. Zenobia, 325 Md. 420, 449 , 601 A.2d 633 , quoted with approval from Kirkpatrick v. Zimmerman, 257 Md. 215, 218 , 262 A.2d 531 (1970). “[A]n abuse of that discretion may be reviewed by an appellate court ... but ... ‘[w]e know of no case where this Court has ever disturbed the exercise of the lower court’s discretion in denying a motion for [a] new trial because of the inadequacy or excessiveness of [compensatory] damages.’ ” (Emphasis supplied).

And see Buck v. Cam’s Broadloom Rugs, 328 Md. 51, 59 , 612 A.2d 1294 (1992) (“Because the exercise of discretion under these circumstances depends so heavily upon the unique opportunity the trial judge has to closely observe the entire trial, complete with nuances, inflections, and impressions never to be gained from a cold record, it is a discretion that will rarely, if ever, be disturbed on appeal.”); Banegura v. Taylor, 312 Md. 609, 624 , 541 A.2d 969 (1988); Conklin v. Schillinger, 255 Md. 50, 69 , 257 A.2d 187 (1969) (“[T]he trial judge should extend the fullest consideration possible to the amount returned by the jury before it concludes that it shocks his conscience, is ‘grossly excessive,’ or is ‘excessive.’”); State, Use of Shipley v. Walker, 230 Md. 133, 137 , 186 A.2d 472 (1962) (“It is well settled that the granting or refusal of a new trial, conditional or otherwise, is not reviewable except under extraordinary circumstances.”); Darcars v. Borzym, 150 Md. ⁵³ App. 18, 78-83, 818 A.2d 1159 (2003); Owens-Illinois v. Hunter, 162 Md.App. 385, 414-16 , 875 A.2d 157 (2005). In pointing out not simply the deference owed by the appellate court to the trial judge but the deference owed by the trial judge, in turn, to the verdict of the jury, Buck v. Cam’s Rugs, 328 Md. at 59-60, 612 A.2d 1294 , quoted with approval from Boscia v. Massaro, 365 Pa.Super. 271 , 529 A.2d 504, 508 (1987): [A] jury’s verdict should not be casually overturned. In our system of justice, the jury is sacrosanct and its importance is unquestioned. The members of a jury see and hear the witnesses as they testify.

They watch them as they sweat, stutter, or swagger under the pressure of cross-examination. This enables the jury to develop a feel for the case and its personal dynamics which cannot be conveyed by the cold printed page of a record reproduced for appellate review. ... We must afford the judge great discretion in making this decision because he too is present in the courtroom as the evidence is presented. As does the jury, he develops a feel for the human pulse of the case.

In short, our seemingly simple decision to uphold the grant of a new trial is actually the end result of a highly complex process involving the interaction of judge, jury, and attorneys. This process has developed over centuries and its complicated dynamics belie its surface simplicity. However, the greatest tribute to its success is probably the extent to which we take it for granted as the ultimate guarantor of justice. (Emphasis supplied).

In ruling on this argument as it arose in the course of the hearing on the post-trial motions, Judge Schwait ruled: Based on the testimony of the Pullers, the jury could have (and obviously did) determine that Mr. Puller’s income was not (and would not have been in the future) impacted by his alleged addictions. This factual inquiry is totally within the province of the jury and should not be disturbed. (Emphasis supplied). Seeing no abuse of discretion, we affirm that ruling. ⁵⁴ 6.

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