Owens Corning v. Bauman

DAVIS, Judge. In this appeal, appellant Owens Corning, and amicus curiae, Maryland Defense Counsel, seek to have this Court revisit its decision in Anchor Packing Company v. Grimshaw, 115 Md. App. 134 , 692 A.2d 5 (1997), vacated in part on other grounds ⁴⁶³ sub nom. Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998). Owens Corning appeals from a jury award in favor of appellee, James R. Hammond, 1 in the amount of $1,286,000 in economic damages and $15,000,000 in noneconomic damages and judgment entered thereon.

Appellant had sought to have the trial judge impose the statutory cap, pursuant to Md.Code (1995 RepLVol., 1998 Supp.), Cts. & Jud. Proc. (C.J.), § ll-108(a)(2) and, alternatively, to reduce the noneconomic damages award because it exceeded the $10,000,000 requested in the ad damnum clause of appellee’s complaint. Appellant also had moved to exclude the testimony of appellee’s expert, Dr. Hammar, on the ground that it did not comport with the Frye/Reed 2 standard for admissibility of scientific evidence.

Subsequent to the jury verdict, in response to post-trial motions filed by appellant, the trial judge reduced the jury verdict to $10,000,000 to conform to appellee’s ad damnum clause in his complaint and also reduced the verdict by an additional $20,000 to reflect the amount received by appellee in a prior settlement. Owens Corning timely noted this appeal, whereupon appellee filed a cross-appeal challenging (1) the propriety of the reduction of the jury award to conform with the ad damnum clause and (2) the court’s refusal to submit the issue of punitive damages to the jury. On appeal, appellant raises the following issues that we restate for clarity: I. Whether a cause of action for personal injury “arises” for purposes of Maryland’s statutory cap on noneco-nomic damages when plaintiffs disease comes into existence or when it is diagnosed or manifests itself. ⁴⁶⁴ II. Whether the court properly accepted the testimony of Dr. Hammar regarding the onset date of appellee’s mesothelioma.

III

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

IV

Whether the jury award of noneconomic damages must be remitted on the grounds that it is excessive as a matter of law. Appellee asks us, in his cross-appeal, to address the following issues: I. Whether C.J. § 11-108 violates the Maryland Declaration of Rights and the Maryland Constitution.

II

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

III

Whether the trial court erred in refusing to submit the issue of punitive damages to the jury. Amicus curiae Maryland Defense Counsel replicates much of the argument of appellant, with special emphasis on the proposition that the event triggering application of the statute should be physical impairment of the plaintiff as part of the manifestation standard. There is also extensive overlay of the issues presented by amicus curiae, White Lung Association, with those raised by appellee; however, White Lung Association offers an exhaustive exposition in favor of current medical knowledge of tumor growth and metasticism and further in support of declaring the statutory cap unconstitutional. Because of our ultimate holding that knowledge of the state of the art by the medical community is of little assistance in our legal determination whether the cap statute embodies an onset-of-disease standard, our discussion of the medical data submitted is limited.

Likewise, because we believe the law is clear regarding the constitutionality of the statute, our discussion of this issue also will be limited. Because Article 28 of the Maryland Constitution guarantees the right to trial by jury where issues of fact are involved, however, we hold that, when the parties dispute the point in time that a latent ⁴⁶⁵ asbestos-related disease comes into existence, that determination, for purposes of applying the noneconomic statutory cap, must be made by the jury. FACTUAL BACKGROUND Appellee enlisted in the United States Navy in 1974 and was assigned to the USS Nimitz in April 1975 where he served until November 1978. Assigned the task of running a co-axial communication cable along a 600-foot passageway, appellee was exposed to pipes that had been insulated with the asbestos-containing kaylo pipe covering manufactured by Owens Corning.

In the course of installing the cable, appellee was required to sand the insulation around the pipes in order to gain access to the bulkheads along the passageway. Clouds of asbestos dust created by the sanding would hover in the small compartments where appellee worked. Over time, appellee developed pleural mesothelioma from exposure to the dust from the kaylo-type covering. He first experienced symptoms of cancer in the spring of 1994, at which time he developed an acute pain in his side that lingered for months.

Appellee developed respiratory problems in 1995 which, according to appellee, prevented him from walking up a “single flight” of stairs. He was diagnosed as suffering from pleural mesothelioma in May 1995 at the age of thirty-nine. Despite surgery intended to remove the pleura from around appellee’s lung, and subsequent intensive chemotherapy under the auspices of a clinical program that had been established by the National Institutes of Health, his symptomatology continued unabated and his cancer persisted up to and during the time of trial. DISCUSSION I. THE MARYLAND CAP ON NONECONOMIC DAMAGES Defining the Issue Citing principally the asserted uncertainty Owens Corning believes results from the Grimshaw construction of “arises” ⁴⁶⁶ and the asserted conflict between the Grimshaw standard and the language and purpose of the noneconomic damages cap, Owens Coming now asks us to reject the onset-of-disease standard of Grimshaw , thereby reversing that decision, and to adopt the manifestation of physical impairment/diagnosis standard 3 of Buttram v. Owens-Corning Fiberglas Corp., 16 Cal.4th 520 , 66 Cal.Rptr.2d 438 , 941 P.2d 71 (Cal.1997).

In asking us to reject the Grimshaw holding, Owens Coming points to the reversal of Peterson v. Owens-Corning Fiberglas Corp., 50 Cal.Rptr.2d 902 (1996), vacated, 71 Cal.Rptr.2d 214 , 950 P.2d 58 (1997), which, Owens Coming contends, provided the rationale underpinning our decision in Grimshaw . Additionally, appellant contends that the Grimshaw standard results in a “battle of the experts” in determining the applicability of the cap. Owens Corning further argues, citing Owens-Illinois v. Armstrong, 87 Md.App. 699, 734-35 , 591 A.2d 544 (1991) (Armstrong I), that under Maryland law, there can be no “legally compensable injury” in tort cases until such time as a plaintiff suffers physical or functional impairment. Arguing that we adopted a “bright-line” rule, i.e., the manifestation standard, in ACandS, Inc. v. Abate, 121 Md.App. 590 , 710 A.2d 944 , cert. denied, 350 Md. 487 , 713 A.2d 979 (1998), Owens Coming claims the result is that Grimshaw and Abate are inconsistent and we, accordingly, should reject our holding construing the meaning of “arises” in Grimshaw .

Owens Coming also contends that Ford Motor Co. v. Wood, 119 Md.App. 1 , 703 A.2d 1315 (1998), illogically draws a distinction between diseases that are not actionable in the absence of symptoms and other diseases that give rise to a cause of action immediately upon onset, even in the absence of symptoms. More specifically, Owens Corning sets forth the following footnote from Ford, which it contends “fails to reconcile the fact that the court in Grimshaw purported to apply the ⁴⁶⁷ onset-of-disease standard to asbestos-related disease generally”: If certain anatomical changes occur in a person as a result of a latent process, in some instances, the appearance of symptoms will make the condition a legally compensable injury. By contrast, a condition such as cancer is a compen-sable injury when it comes into existence even without symptomatology. Id. at 45 n. 11, 703 A.2d 1315 .

Our reiteration of the onset-of-disease standard, that Owens Corning complains Grimshaw “applies generally to asbestos-related diseases,” is found at 115 Md.App. at 160 , 692 A.2d 5 : We hold, therefore, that an injury occurs in an asbestos-related injury case when the inhalation of asbestos fibers causes a legally compensable harm. Harm results when the cellular changes develop into an injury or disease, such as asbestosis or cancer. We, therefore, reject appellants’ assertion that the injury or harm does not arise until the symptoms of the disease become apparent. Appellants argue that such an approach would be less speculative.

We disagree. We had reached this conclusion, in part, in reliance upon the decision of the Court of Appeals in Oxtoby v. McGowan, 294 Md. 83 , 447 A.2d 860 (1982). There, the Court of Appeals, interpreting the effective date clause of the Health Care Malpractice Claims Act requiring claimants to submit to arbitration before seeking judicial remedies, determined that the “[health care malpractice claims][a]ct is concerned with the invasion of legally protected interests coupled with harm.” Id. at 94 , 447 A.2d 860 . Initially, we are constrained to look first to the language of the statute and attempt, insofar as possible, to glean the legislative intent in its enactment.

The language of the statute is the focal point of our analysis, and we must accord the words their ordinary meaning as generally understood and as construed by Maryland appellate courts. The statute in question, C.J. § 11-108, provides: ⁴⁶⁸ (a) Definitions. — In this section: (1) “Noneconomic damages” means: (i) In an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non-pecuniary injury; and (ii) In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article; and (2) “Noneconomic damages” does not include punitive damages. (b) Limitation on amount of damages established. — (1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000. (Emphasis added.) Explication hereinafter as to how divergent cellular changes result from exposure to carcinogens and accordingly dictate different analyses in our recent decisions is necessitated because a major thrust of appellant’s argument is our alleged inconsistent application of the cap to 'latent diseases in those decisions.

Specifically, as we explain in the discussion that follows, our determination as to when mesothelioma, asbestosis, and pleural plaque “come into existence,” for purposes of applying the statutory cap, depends on the peculiar qualities of these diseases and how they affect cellular change. With respect to appellant’s reliance on appellate decisions from foreign jurisdictions interpreting a particular statute applicable in each of those jurisdictions, these decisions provide little, if any, assistance in a determination of the proper construction of a Maryland statute. Finally, while there can be no doubt— as evidenced by the authorities and legislative history we reference, infra — as to the principal policy considerations that ⁴⁶⁹ led to the enactment of C.J. § 11-108, the law contemplates that public policy issues be debated and decided in fora specifically designated to set public policy concomitant with the wide spectrum of interests involved. Grimshaw/Peterson/Armstrong II Appellant asserts, “[T]he Grimshaw opinion quotes Peterson extensively in rejecting concerns about the inherent questionable medical testimony necessitated by ‘an onset’ standard.... ” Appellant then sets forth a quotation from Grimshaw in which we noted that the Peterson court rejected the argument of Owens Corning that “a test hinging on the inception of an undetected disease will unnecessarily interject confusing and questionable medical testimony into asbestos trials, making outcomes uncertain and inviting speculation, manipulation of facts, and ‘statistical guessing.’” Grimshaw, 115 Md.App. at 161 , 692 A.2d 5 (quoting Peterson, 50 Cal.Rptr.2d at 909).

The court simply dismissed “this parade of horribles,” acknowledging that the onset-of-disease test will require testimony of medical experts in most, if not all, cases. See id. To be sure, Peterson had stood squarely for the proposition that, “[w]hen exposure to a toxic substance causes cancer in an individual, that person is injured or harmed by the acquisition of the disease, whether or not he is aware of its presence.” Peterson, 50 Cal.Rptr.2d at 907. Peterson had relied on the Restatement Second of Torts, § 7, sub.(d)(3) for the proposition that physical changes to the body constitute physical harm.

See id. at 906-07. In adopting the onset-of-disease test, Peterson fashioned the rule that an individual sustains an injury “when he has undergone a physiological change that will, to a reasonable degree of medical certainty, result in the condition giving rise to the cause of action.” Id. at 907 . The Court focused on cells which have “embarked upon an irreversible progression towards the disease, which is invariably fatal. At the point of that initial cellular change, the individual has experienced no symptoms and, because he [or she] is ⁴⁷⁰ unaware of his [or her] condition, has suffered no associated emotional distress or compensable fear of cancer.” Id. 4 Although we cited the court’s opinion in Peterson , a cursory reading of Grimshaw hardly leads to the conclusion that we ameliorated concern about the “inherently questionable” medical testimony necessitated by the onset standard by relying on Peterson extensively.

While the rationale of Peterson solidly supported the “onset test,” the decision in no way provided the foundation for Grimshaw . Our decision rested squarely upon the construction the Court of Appeals placed on the term “arises” in Owens-Illinois v. Armstrong, 326 Md. 107 , 604 A.2d 47 (Armstrong II), cert. denied, 506 U.S. 871 , 113 S.Ct. 204 , 121 L.Ed.2d 145 (1992). Notably, the Supreme Court of California, as will be discussed in detail, infra, expressly distinguished Armstrong II in its discussion in Buttram , upon which appellant would now have us rely. The Court of Appeals, in Armstrong II, had specifically held: We agree with the Court of Special Appeals’[s] conclusion that a cause of action in negligence or strict liability arises “when facts exist to support each element.” In a negligence claim, the fact of injury would seemingly be the last element to come into existence.

The breach, duty, and causation elements naturally precede the fact of injury. Likewise in a strict liability claim, the existence of the defective product and the causal connection will precede the resultant injury. Therefore, Armstrong’s noneconomic damages should be reduced under Section 11-108 of the Courts & Judicial Proceedings Article only if his “injury” came into existence on or after July 1, 1986. ⁴⁷¹ Armstrong II, 326 Md. at 121-22 , 604 A.2d 47 (citation omitted; emphasis added). Furthermore, in Grimshaw , we recapitulated our discussion, citing Armstrong II: To summarize thus far, a cause of action arises in an asbestos-related injury claim for purposes of determining the applicability of C.J. § 11-108 when each of the elements of the claim are met.

In Maryland, the injury element of a negligence claim is satisfied when a wrongful act is coupled with some harm. “To set forth a viable claim for negligence, a plaintiff must allege, inter alia, ‘damages.’ ” As we held in Armstrong I, a cause of action in an asbestos-related injury claim does not arise until the asbestos fibers inhaled into the lungs cause functional impairment. The Court’s analysis in Armstrong II implies that such an injury occurs when the individual acquires the asbestos-related disease. Although the Court in Armstrong II did not have to determine precisely when the asbestos-related “injury” occurred, it obviously looked beyond the date when plaintiff was exposed to asbestos and determined instead, when the earliest date of asbestosis would arise. Based on Armstrong and other case law discussed supra, the statutory cap is not applicable to appellees’ awards of noneconomic damages if their exposure to asbestos fibers caused them to develop mesothelioma prior to the effective date of the statutory cap, July 1,1986.

Grimshaw, 115 Md.App. at 163 , 692 A.2d 5 (citations omitted; emphasis added). Thus, contrary to appellant’s assertion, it was Armstrong II, rather than Peterson , upon which we bottomed our decision in Grimshaw . Additionally, to the extent that the Court of Appeals in Armstrong II was required to address the asserted “inherently questionable medical testimony,” the Court acknowledged the difficulty in pinpointing the onset of latent asbestos-related disease. Nevertheless, the Court referred to Lloyd E. Mitchell, Inc. v. Maryland Casualty Co., 324 Md. 44, 61-62, 595 A.2d 469 (1991), wherein it had considered the testimony ⁴⁷² of a clinician, Dr. Epstein, and a pathologist, Dr. Craighead, and concluded that when the latent disease comes into existence is a determination to be made based on the expert testimony provided.

The Decision in Buttram Appellant relies heavily on the decision of the Supreme Court of California in which that court was called upon to construe California’s Civil Code Section 1431.2, enacted by Proposition 51. The law provided that a cause of action for damages arising from the latent and progressive asbestos-related disease mesothelioma has “accrued,” for purposes of determining whether Proposition 51 can be prospectively applied, if the plaintiff was diagnosed with the disease for which damages are sought or otherwise discovered his illness or injury prior to Proposition 51’s effective date of June 4, 1986. Notably, in discussing respondent Buttram’s reliance on the decision of the Maryland Court of Appeals in Armstrong II, the Buttram court explicitly distinguished the issue before it and that before the Court in Armstrong II, explaining: “At issue in Owens-Illinois was Maryland’s statutory cap on noneconomic damages which, by its express terms, was made applicable ‘in any action for damages for personal injury in which the cause of action arises on or after July 1, 1986....’” Buttram, 66 Cal.Rptr.2d 438 , 941 P.2d at 82 . The Buttram court continued, observing that the Maryland Court of Appeals had reject[ed] [Owens-Illinois’s] argument that the discovery rule, used to establish accrual in the statute of limitations context in asbestos-related latent injury cases in [Maryland] ... should likewise be utilized to determine accrual for purposes of applying the ... statutory cap, the [Court of Appeals] concluded the statutory cap did not apply to a preexisting asbestosis condition although it was not diagnosed until after the statute’s effective date.

Id., 66 Cal.Rptr.2d 438 , 941 P.2d at 82 (citations omitted). Buttram undermines Owens Coming’s argument in two respects. First, much of the analysis devolves upon a consider ⁴⁷³ ation of lack of language manifesting the intent of the drafters of the initiative measure (Proposition 51) and the lack of indicia that the electorate considered the prospective versus retrospective application of Proposition 51. Thus, as a threshold matter, the California Supreme Court decided that no intent could be gleaned from the language or legislative history of the statute in question.

C.J. § ll-108(a)(2) employs language, “in which the cause of action arises,” which has been construed by Maryland courts. Second, as a matter of statutory construction, the Buttram court accorded special significance to the fact that the issue before it was unlike that before the Maryland Court of Appeals which was required to determine the definition of the term “arises.” Observing that the “Owens-Illinois court’s holding appears to have turned to a large extent on the express wording of the statute there under scrutiny,” the Supreme Court of California concluded: Focusing on the term “arises,” the court applied the rule of statutory construction that would give that term its ordinary meaning, found that a cause of action “arises when it first comes into existence,” and therefore determined that the subclinical harm to the cells and tissues of the lungs caused by the disease asbestosis during its lengthy latency period was sufficient to establish that a cause of action had “arisen” within the meaning of the statute’s language. ... Here, in contrast, Civil Code section 1431.2, enacted by Proposition 51, contains no similar controlling language. Buttram, 66 Cal.Rptr.2d 438 , 941 P.2d at 82 (citations omitted; emphasis added).

Buttram ultimately distinguishes Armstrong II on the basis that the Court of Appeals had not considered “analogous policy considerations and purposes to be served in adopting an accrual rule that determines the applicability of a ... statute such as Proposition 51.” Id. Thus, Buttram holds that there should only be resort to the diagnosis/discovery of actual injury standard in the context of determining when a noneco-nomic statutory cap is applicable, because examination of the ⁴⁷⁴ language of the California statute itself — unlike the Maryland statute — is unavailing. As appellee points out and Buttram recognizes, we must presume that employment of the term “arises,” was deliberate, and there can be little doubt that “accrual” of a cause of action involves a different analysis. A claim “arises” when all of the elements of a claim first come into existence.

Armstrong II, 326 Md. at 121 , 604 A.2d 47 . A claim accrues when the victim “ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his [or her] injury.” Id. at 120-21 , 604 A.2d 47 . The Court of Appeals held, in Armstrong II , that a cause of action arises for the purposes of the cap statute when the victim suffers injury, but a cause of action accrues only when the injury is discovered. Id.

Assuming, without deciding, that adoption of a diagnosis/manifestation of symptoms approach would be less speculative as suggested by appellant, such an approach would require us to hold that a .cause arises and accrues at the same time. The ordinary meaning of “arises” is when the cause of action “comes into existence.” Buttram, 66 Cal.Rptr.2d 438 , 941 P.2d at 82 , citing Armstrong II, at 107, 604 A.2d 47 . The Maryland Court of Appeals explicitly delineated the meaning to be assigned “arises” in Armstrong II ; Owens-Illinois asks this Court to hold that a cause of action “arises” when it is discovered as opposed to when it comes into existence. In construing the CAP statute, “we assume that the words of the statute are intended to have their natural, ordinary and generally understood meaning in the absence of evidence to the contrary.” ...

According to Webster’s New World Dictionary (2d ed.) the word “arise” means “to come into being; originate.” Giving the word its ordinary meaning, we believe that a cause of action arises when it first comes into existence. Armstrong II, 326 Md. at 107 , 604 A.2d 47 (citation omitted). Thus, the approach advanced by Owens Corning is at odds with the most fundamental principle of statutory construction as well as with Armstrong II, Oxtoby v. McGowan, supra, and ⁴⁷⁵ other decisions of Maryland appellate courts that have considered the issue. Ancillary to an examination of the language of the statute in divining legislative intent is a consideration of the actions of the legislature subsequent to court decisions construing when a cause of action “arises” for purposes of the statutory cap.

Armstrong II , holding subclinical harm to cells and tissues of the lungs was sufficient to establish that a cause of action had arisen, was decided in 1992. Four years after the decision of the Court of Appeals in Armstrong II , the General Assembly amended the noneconomic cap statute, increasing the limit to $500,000 and extending its application to wrongful death claims. With full knowledge of the construction of “arises” by the Court of Appeals in Armstrong II , the legislature amended the statute, leaving intact the term, “arises.” 5 Clearly, the General Assembly has had and continues to have within its province the authority to modify the statute, requiring that manifestation of symptoms or diagnosis be the determining event as to which cases the cap applies. Finally, the Maryland Court of Appeals has been presented with the opportunity on several occasions 6 to revisit its deci ⁴⁷⁶ sion in Armstrong II , but instead has chosen to allow its designation of the event, which governs in applying the cap, to stand.

Grimshaw/Abate/Ford Appellant posits that there is an inconsistency between recent- decisions of this Court interpreting what constitutes a legally compensable injury. Appellant’s argument is as follows: Under Owens’ Coming’s interpretation, adopted in Abate , the determination of when a cause of action “arises” is straightforward and will produce uniform, easily understood and predictable results, because a claim will arise only upon the manifestation of symptoms of a latent disease or the clinical diagnosis of that latent disease____ Under [appel-lee’s] interpretation, adopted in Grimshaw , the determination of when a claim “arises” will not be straightforward or consistent, because it will depend in each ease on a question of fact — the date of onset of mesothelioma (or any other latent disease) — that is scientifically unknowable. Consequently, appellant urges that, because of these alleged inconsistencies, we should overrule Grimshaw and adopt the “straightforward” manifestation standard. Appellee rejoins that “[Owens Coming’s] attempt to claim that Grimshaw and Abate are inconsistent is specious [because] [b]oth cases apply the same standard in determining the applicability of the Cap Statute.” Our resolution of this issue requires us to analyze Grimshaw and its progeny, Ford Motor Co. v. Wood, 119 Md.App. 1 , 703 A.2d 1315 (1998) (Ford), and ACandS, Inc. v. Abate, 121 Md.App. 590 , 710 A.2d 944 , cert. denied, 350 Md. 487 , 713 A.2d 979 (1998) (Abate), to reconcile these three decisions.

In Grimshaw , we concluded that a “legally cognizable wrong arises when a negligent act is coupled with some harm.” Grimshaw, 115 Md.App. at 159 , 692 A.2d 5 . Quoting Armstrong I and the Restatement (Second) of Torts, we stated: ⁴⁷⁷ [Ejections 388 and 402A of The Restatement (Second) of Torts (1965) identify “harm” as one of the necessary elements of a cause of action in both negligence and strict liability. The Restatement, in Section 7(2), defines “the word ‘harm’ as used throughout the Restatement ... to denote the existence of loss or detriment in fact of any kind to a person resulting from a cause.” Comment b to section 7 further explains that “ ‘harm’ implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing....” Id. at 158 , 692 A.2d 5 (quoting Armstrong I, 87 Md.App. at 734 , 591 A.2d 544 ). Applying these principles to the facts in Grimshaw , we held that an injury occurs in an asbestos-related injury case when the inhalation of asbestos fibers causes a legally compensable harm.

Harm results when the cellular changes develop into an injury or disease, such as asbestosis or cancer. We, therefore, reject ... that the injury or harm does not arise until the symptoms of the disease become apparent. Id. at 160 , 692 A.2d 5 , quoted in Ford, 119 Md.App. at 48 , 703 A.2d 1315 . Therefore, regarding an asbestos-related injury case, our holding was that a legally compensable harm is not cognizable until cellular changes develop into either an injury or disease.

The cause of action arises at “the time at which the impairment occurred.” Id. at 163, 692 A.2d 5 . Less than one year later, in Abate, this Court again was confronted with the question of when an asbestos-induced injury or disease “arises” for purposes of the statutory cap on noneconomic damages. Appellant postulates, concerning our holding in Abate, “that the enforceability of the cap turns on the manifestation of symptoms, an easily verifiable point in time. This Court should discard the unsound Grimshaw standard in favor of the clear manifestation standard set forth in Abate and adopted by the Supreme Court of California.” Appellant, however, misinterprets Abate, which followed the standard reiterated in Grimshaw .

In fact, Abate relied upon the Grimshaw determination of when a cause of action arises ⁴⁷⁸ in an asbestos-related injury claim. In quoting our earlier decision, we recalled: “In Maryland, the injury element of a negligence claim is satisfied when a wrongful act is coupled with some harm____ A cause of action in an asbestos-related injury claim does not arise until the asbestos fibers inhaled into the lungs cause functional impairment.” Abate, 121 Md.App. at 695 , 710 A.2d 944 (quoting Grimshaw, 115 Md.App. at 163 , 692 A.2d 5 ). The day after we issued our opinion in Abate, January 8, 1998, we issued Ford and addressed the issue of legally compensable harm yet again. We discussed in Ford the apparent conflict between whether an asbestos-related injury becomes compensable when there is a functional impairment of the lungs or, before a disease is diagnosable, when the inhalation of asbestos fibers first causes injury to cells and tissue.

See Ford, 119 Md.App. at 45 , 703 A.2d 1315 . The appellant in Ford urged us to overrule Grimshaw , predicting that its analysis “invites disaster in the near future.” See id. at 48, 703 A.2d 1315 . The appellant’s concern was that Grimshaw’s holding regarding when a legally compensable injury arises would be difficult to apply if a diagnosis concluded that an individual’s “injury” first arose in July 1986. We disagreed with appellant, however, and concluded that, “[u]nder Grimshaw , we will uphold a trial court’s determination of when an injury arises as long as that determination is supported by legally sufficient evidence.” Id.

(citing Grimshaw, 115 Md.App. at 165 , 692 A.2d 5 ). In summarizing the standard from Grimshaw , our discussion observed that “[w]e chose to rely upon a determination of the date that an injury in fact came into existence, and rejected defendants’ contention that such an approach was too speculative----” Ford, 119 Md.App. at 47-48 , 703 A.2d 1315 . Immediately following, we quoted the standard enunciated in Grimshaw as being controlling in Maryland. Consequently, we agree with appellee’s assertion that Grimshaw’s pronouncement that “[h]arm results when the cellular changes develop into an injury or disease” is the standard used in both Ford and Abate to determine when a cause of action based on ⁴⁷⁹ an asbestos-related harm arises.

Our decision in Ford contradicts appellant’s contention that inconsistent standards have developed in Maryland for determining legally compensable harm. Although these decisions are in harmony regarding the applicable standard, differences among the three cases exist. The issue addressed in Grimshaw , and applied in Ford and Abate, involves the distinctive characteristics of the asbestos-related diseases, asbestosis and mesothelioma, as compared to the condition known as pleural plaques. Dispositive are the different points in time that a legally compensable harm arises when a plaintiff has pleural plaques as opposed to either of the diseases, mesothelioma or asbestosis.

In Grimshaw , we reviewed the medical condition known as pleural plaques: “Pleural plaques and thickening result from the scarring of the pleura, the thin membrane that keeps the lungs contained and configured to the chest wall and diaphragm.” Medical experts agreed that pleural thickening and plaques are an alteration of an otherwise healthy pleura, but do not constitute any loss or detriment. In addition, the medical experts testified that pleural plaques do not cause any pain and have no health significance. Grimshaw, 115 Md.App. at 158 , 692 A.2d 5 (citation omitted). Although there is alteration of the pleura, this change is not an injury and has no health significance.

Consequently, “[mjere exposure to asbestos and cellular changes resulting from asbestos exposure, such as pleural plaques and thickening, alone is not a functional impairment or harm, and therefore, do not constitute a legally compensable injury.” Id. at 159 , 692 A.2d 5 . Although pleural plaques are merely changes in the body that only become “injury” if symptoms develop, mesotheiioma and asbestosis are diseases that constitute com-pensable harm upon contraction. 7 ⁴⁸⁰ As we stated in Grimshaw , a “ ‘cause of action arises’ under the statutory cap ... when it first comes into existence, as distinguished from when a cause of action accrues.” Id. at 155 , 692 A.2d 5 . Each of the elements of a claim must be met before a cause of action arises and, as discussed previously, in Maryland, a negligent act must be coupled with some harm. See id. at 163 , 692 A.2d 5 .

In the context of an asbestos-related disease, the cause of action arises before the disease is diagnosed. See id. at 156 , 692 A.2d 5 . Because of the latent nature of the disease, the requisite elements exist before diagnosis or symptoms develop. Therefore, there is a distinction between disease and injury as to when harm first exists in an asbestos-related case.

This distinction does not make the Grimshaw standard, as appellant contends, arbitrary or inconsistent. Instead, a trial court in hindsight may use the plaintiffs state of health, whether it be a disease or the pleural plaque condition, to compute when the harm and cause of action first arose. Abate merely applied the distinction from Grimshaw between a plaintiff who contracted the disease of asbestosis or mesothelioma and a plaintiff who suffered from the pleural plaque condition. This Court stated that “the condition known as pleural plaques, or even generalized pleural thickening, unaccompanied by disabling consequences or physical impairment, is not a compensable injury as a matter of law.” Abate, 121 Md.App. at 666 , 710 A.2d 944 .

Abate did not change Grimshaw’s reasoning that “[h]arm results when the cellular changes develop into an injury or disease.” Grim-shaw, 115 Md.App. at 160 , 692 A.2d 5 . In Abate, the plaintiff Ciotta did not contract asbestosis or mesothelioma. Conse ⁴⁸¹ quently, no legally compensable harm occurred until the plaintiff exhibited symptoms as a result of the pleural plaque condition because there is no impairment until the symptoms arise. In Grimshaw , on the other hand, the plaintiff contracted mesothelioma, and the legally compensable harm arose at the time of contraction because the disease was fatal and irreversible at that point in time.

Abate and Grimshaw are not inconsistent concerning the standard for when a legally compensable harm occurs; rather, they were factually distinguishable because the plaintiffs did not suffer the same type of impairment and, therefore, the “harm” occurred at different stages of their cellular changes. In Ford , the appellant argued that only upon the date that the appellee began experiencing symptoms of asbestosis did the appellee’s cause of action arise. Again, we rejected this argument and relied upon Grimshaw for the proposition that a legally compensable injury is recognizable on “the date that an injury in fact came into existence.” Ford, 119 Md.App. at 47-48 , 703 A.2d 1315 . Ford also reasoned that, in conjunction with Grimshaw , [ t]he injury must be one that the law recognizes as compensable.

If certain anatomical changes occur in a person as a result of a latent process, in some instances, the appearance of symptoms will make the condition a legally compensable injury. By contrast, a condition such as cancer is a compensable injury when it comes into existence even without symptomatology. Id. at 45 n. 11, 703 A.2d 1315 . Ford followed Grimshaw’s holding concerning when a legally compensable injury arises and, therefore, is not inconsistent with either Grimshaw or Abate.

The California Court of Appeal, First District, succinctly summarized the dilemma regarding the onset of harm in an asbestos-related situation: The analytic difficulty in these cases is that the point at which compensable harm has been suffered will always have to be evaluated in retrospect. According to expert testimo ⁴⁸² ny given in this case, an individual will not be diagnosable with mesothelioma for some 10 to 15 years after his cells have embarked upon an irreversible progression towards the disease, which is invariably fatal. At the point of that initial cellular change, the individual has experienced no symptoms and, because he is unaware of his condition, has suffered no associated emotional distress or compensable fear of cancer. Peterson, 50 Cal.Rptr.2d at 907 (emphasis added). 8 When a plaintiff actually contracts an asbestos-related disease, the legally compensable harm may be retraced to the first moment of cellular change; however, when a plaintiff contracts the condition of pleural plaques, the legally compensable harm only arises with the onset of a symptom.

Therefore, the standard for determining harm is uniform, but an “injury” does not arise until symptoms are manifested while the harm for a fatal and irreversible “disease” arises as soon as the cellular change develops. Our recent decisions in Ford and Abate have followed the Grimshaw standard and, accordingly, Maryland law is clear as to when an asbestos-related injury becomes a legally compensable harm. In sum, mere exposure, without cellular change, does not constitute an injury or harm for which one may maintain a cause of action. Furthermore, cellular change without accompanying injury does not constitute harm or functional impairment that would give rise to a cause of action.

For purposes of the statutory cap, the crucial distinction is whether a plaintiff’s cellular change develops into an asbestos-related disease or simply into an asbestos-related condition. When cellular change later results in an asbestos-related disease, the harm was irreversible from the time of contraction, and the “injury” as well as the cause of action arose when the disease came into existence. Consequently, the presence or absence of symptomatology is irrelevant for ⁴⁸³ purposes of the statutory cap, because the cause of action arose when the disease was contracted. On the other hand, when a plaintiff becomes afflicted with an asbestos-related condition, such as pleural plaques, it is not until symptomatol-ogy is present that any functional impairment occurs.

Therefore, when a plaintiff develops an asbestos-related condition, the statutory cap only is triggered upon the presence of symptoms, because there is no harm until the symptoms arise. In the case sub judice, however, appellee developed an asbestos-related disease and the irreversible harm arose when the disease came into existence. Requirement of Physical Impairment Both Owens Corning and amicus Maryland Defense Counsel insist that, to state a cause of action for damages, Maryland law requires a plaintiff to suffer a legally compensable injury in the form of symptoms or impairment of a person’s ability to function normally. Citing Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir.), cert. denied, 474 U.S. 864 , 106 S.Ct. 183 , 88 L.Ed.2d 152 (1985), amicus argues that there is no cause of action under the Federal Employer’s Liability Act (FELA) in tort until a plaintiff has suffered identifiable, compensable injury.

Significantly, Maryland Defense Counsel, characterizing its quotation from Schweitzer as, “what has become a landmark passage,” states: It is true that the possible existence of subclinical asbestos-related injury prior to manifestation may be of interest to a histologist. Likewise, the existence of such injury may be of vital concern to insurers and their insureds who have bargained for liability coverage triggered by “bodily injury.” We believe, however, that subclinical injury resulting from asbestos is insufficient to constitute the actual loss or damage to a plaintiffs interest required to sustain a cause of action under generally applicable principals of tort law. Moreover, we are persuaded that a contrary rule would be undesirable as applied in the asbestos-related tort context. If mere exposure to asbestos were sufficient to give rise to a F.E.L.A. cause of action, countless seemingly ⁴⁸⁴ healthy railroad workers, workers who might never manifest injury, would have tort claims cognizable in federal court.

It is obvious that proof of damages in such cases would be highly speculative, likely resulting in windfalls for those who never take ill and insufficient compensation for those who do. Requiring manifest injury as a necessary element of an asbestos-related tort action avoids these problems and best serves the underlying purpose of the tort law: the compensation of victims who have suffered. Id. at 942 . Maryland Defense Counsel, in reliance on this excerpt, posits that people who have experienced “no pain, no suffering, no inconvenience, and no loss of bodily function and who are not even aware that they may have subclinical cellular changes have, by definition, not suffered and, therefore, are not entitled to compensation.” The reliance upon Schweitzer and other cases 9 cited by amicus misses the mark.

The ⁴⁸⁵ quotation from Schweitzer itself contains, as part of its rationale, the fact that “countless seemingly healthy railroad workers ... who might never manifest injury” would have tort claims cognizable in federal court. This rationale is the antithesis of the decision in Armstrong II , which specifically addresses the Third Circuit’s concern in Schweitzer that the workers might never manifest injury: Fortunately, we have the benefit of hindsight in determining whether Armstrong’s cause of action existed prior to 1986. We now know that in 1987 Armstrong was diagnosed as having asbestosis, and we agree with the Court of Special Appeals’[s] conclusion that “[i]t is inconceivable that Armstrong’s asbestosis came into existence between July 1, 1986 and his medical examination in May 1987.” Armstrong II, 326 Md. at 123 , 604 A.2d 47 (emphasis added). Thus, the very excerpt from Schweitzer set forth by amicus Maryland Defense Counsel to support the manifestation standard highlights the distinction between diseases that inevitably come into existence and conditions that may not develop into disabling or fatal diseases.

More important, however, most of these cases do not involve attempts to fix a particular point in time after which statutorily imposed limitations apply. ⁴⁸⁶ Thus, the uncertainty of which Schweitzer is concerned is whether there can be a legally cognizable cause of action for a subclinical condition irrespective of whether it will result in symptoms or the impairment of the ability of plaintiffs to perform normal functions. These decisions, cited by Maryland Defense Counsel and Owens Corning, address whether a plaintiff has a cause of action for which he can seek relief. The ability of the fact finder to assess damages, of course, is essential to a proper adjudication of any tort claim. The point in time when the statutory cap is applicable in no way implicates the essential elements (including injury and resultant damages) that must be extant in order to pursue a civil remedy because, as Armstrong II points out, in a determination of application of the cap, we only consider cases in which the plaintiff already has suffered physical impairment and thus “we have the benefit of hindsight in determining whether [the] cause of action existed prior to 1986.” Armstrong II, 326 Md. at 123 , 604 A.2d 47 .

Thus, the central issue that Schweitzer and most of the other decisions cited, approving the manifestation standard, are concerned with is when all the elements are in place in order for an aggrieved party to seek relief in a civil proceeding. The point in time when one may seek relief is no longer an issue in cases in which, not only has the cause of action already accrued, but both liability and damages have been decided and the only matter left for determination is whether those damages will be rolled back, pursuant to the statutory cap. In the first instance, the inquiry addresses the ripening of a cause of action; in the other instance, the inquiry concerns the retrospective limitation of damages in a cause of action already pursued and for which damages exceeding the statutory maximum have been awarded. Notwithstanding the aforegoing, the short answer to when the cap is applicable is that that determination is to be made in accordance with the act of the legislature and any change in that act is most appropriately addressed to that body. ⁴⁸⁷ Public Policy Owens Corning and amicus next argue, “These [policy concerns] include the difficulties the ‘subclinical injury’ standard poses for judges and juries to administer, the resulting inconsistency of verdicts, and the tax of a trial within a trial — or battle of the experts — as to when the first subclinical changes that result in a disease took place.” A Citing Oaks v. Connors, 339 Md. 24 , 660 A.2d 423 (1995), and the Report of the Governor’s Task Force to Study Liability Insurance, Owens Corning states that the General Assembly’s express purpose in enacting the noneconomic damages cap was to make damage awards more predictable.

Similarly, amicus Maryland Defense Counsel argues that adoption of a “manifestation” standard in all latent disease cases furthers a primary purpose of the General Assembly in enacting the noneconomic damages cap, i.e., decreasing unpredictable and speculative damage awards. Amicus further claims that, for a law to have “any meaning at all,” a law must have certainty of outcome and consistency of results. Appellee responds that the rationale for the cap statute “is inapplicable to latent disease cases where the events giving rise to disease occurred decades ago,” as the insurance for those claims was purchased long before the cap statute was enacted. Appellee concludes that, because asbestos products have not been in production for many years, there is no need for companies to buy additional insurance and, thus, even if there were some questions regarding whether the cap statute applied to latent disease cases, that fact would not undercut the purpose of the legislation.

The Court of Appeals, in Murphy v. Edmonds, 325 Md. 342, 368-69 , 601 A.2d 102 (1992), recounted the considerations underlying the enactment of the cap statute: Section 11-108 was enacted in response to a legislatively perceived crisis concerning the availability and cost of liability insurance in this State. This crisis resulted in the ⁴⁸⁸ unavailability of liability insurance for some individuals and entities, especially those engaged in hazardous activities such as asbestos removal, and increasing difficulty in obtaining reinsurance. See Report of the Governor’s Task Force to Study Liability Insurance, 3-4 (Dec.1985). The crisis also affected the medical profession, resulting in excessive insurance premiums for doctors and declining services for patients, especially in high risk specialties such as obstetrics.

See Report of the Joint Executive/Legislative Task Force on Medical Malpractice Insurance, 5 (Dec.1985). In considering whether to enact the cap on tort damages, the General Assembly had before it the above-cited task force reports, both of which advocated a $250,000 cap on noneconomic damage awards. See Report of the Governor’s Task Force to Study Liability Insurance, supra, at 10-13; Report of the Joint Executive/Legislative Task Force on Medical Malpractice Insurance, supra, at 28-29. Neither task force believed that the cap should be extended to economic damages.

Ibid. The Report of the Governor’s Task Force to Study Liability Insurance stated that the cap would lead to greater predictability of damage awards, thus making the insurance market more stable and attractive to underwriters. The Report also noted that noneconomic damages are “impossible to ascertain with precision and are subject to emotional appeals to a jury,” so that a $250,000 cap would permit a more realistic recovery in this area. See Report of the Governor’s Task Force to Study Liability Insurance, supra, at 11.

(Footnote omitted.) The Court went on to observe that the General Assembly had received numerous letters and petitions supporting enactment of the cap from the public at large who feared that an insurance crisis would result in reduced availability of medical services and from members of the medical profession concerned about high insurance premiums. See id. at 369, 601 A.2d 102 . The General Assembly also had reports urging adoption of the cap by interest groups, including The Business Round Table and The Tort Policy Working Group. See id. ⁴⁸⁹ The legislature also considered existing and proposed tort reform and liability insurance legislation in all fifty states before enacting the cap.

See id. The Court of Appeals declared the statute’s express purpose: The General Assembly’s objective in enacting the cap was to assure the availability of sufficient liability insurance, at a reasonable cost, in order to cover claims for personal injuries to members of the public. This is obviously a legitimate legislative objective. A cap on noneconomic damages may lead to greater ease in calculating premiums, thus making the market more attractive to insurers, and ultimately may lead to reduced premiums, making insurance more affordable for individuals and organizations performing needed services.

The cap, therefore, is reasonably related to a legitimate legislative objective. See, e.g., Davis v. Omitowoju, supra, 883 F.2d [1155] at 1158 [(1989)] (“Clearly the ... decision to curb, through legislation, the high costs of malpractice insurance and thereby promote quality medical care ... provides a rational basis for capping the amount of damages that can be awarded a plaintiff’); Hoffman v. United States, supra, 767 F.2d [1431] at 1437 [(1985)] (the “Legislature had a ‘plausible reason’ to believe that the limitations on noneconomic recovery would limit the rise in ... insurance costs”)---- Id. at 369-70, 601 A.2d 102 . From the above, predictability of damage awards and concerns about the availability of liability insurance were considerations leading to the enactment of C.J. § 11-108. It would be disingenuous for us, or appellee, to portend otherwise.

Whether the legislature believed predictability and availability of liability insurance could best be achieved by an “onset” test rather than a “manifestation” standard is yet another matter. It is also clear, however, from the above, that many interest groups lobbied the legislature for the enactment of the cap statute, but we must assume, as well, that other interest groups just as vehemently opposed its enactment. It was in ⁴⁹⁰ that arena that the policy considerations regarding the statutory cap should have been debated and resolved. While appellant and amicus Maryland Defense Counsel make much of the clearly expressed purposes as recounted in Murphy v. Edmonds, it follows that how the cap should be implemented was part and parcel of the process leading to its enactment and, considering what was apparently an extensive and thorough review of submissions from all sides, the General Assembly employed language it felt would achieve those purposes.

The Court of Appeals, in Armstrong II , has construed that language and, the General Assembly, although having amended the statute, nevertheless has decided not to disturb the judicial construction of “arises” in Armstrong II . B Owens Coming next contends that, “given the understandable lack of any medical consensus, various medical experts have given and will continue to give disparate opinions, but these opinions will not be grounded in the facts of the particular plaintiffs disease.” Echoing these sentiments, amicus Maryland Defense Counsel proclaims, “under a ‘subclinical injury standard, unpredictability and uncertainty will be the natural consequence of a case-by-case battle of the experts of when a disease first appeared.” Maryland Defense Counsel alludes to what it considers the “scientific unsoundness of that standard” by pointing out that three experts rendered different opinions in Grimshaw , divergent testimony existed between Drs. Hammar and Gabrielson in the instant case, and that different opinions were rendered by Dr. Hammar in the case sub judice and another case, Baltimore City v. Walatka [No. 385, Sept. Term, 1998], presently pending on appeal before us. Appellee rejoins that Dr. Hammar consistently has testified that it is impossible to give “hard and fast opinions” as to the precise date that mesothelioma begins to develop within a given patient.

Appellee adds that sufficient information exists to conclude generally that appellee’s cancer began to develop ⁴⁹¹ at least ten years prior to its clinical diagnosis. Dr. Hammar’s conclusion is strikingly similar to the approach employed by the Court of Appeals in Armstrong II : We need not decide exactly when Armstrong contracted asbestosis. Given that Armstrong was exposed to large amounts of asbestos from 1943 to 1963, his asbestosis probably had its genesis relatively early in the course of his exposure. Owens-Illinois’[s] expert testified that “asbestos does not develop immediately after exposure.

It takes many, many years, and usually the kind of latency period that we are talking about is probably at the minimum 15 years but more ordinarily 20 or more years. Diming unusual circumstances less than that could cause the disease.” Based on Owens-Illinois’[s] expert’s testimony, it is reasonable to assume that Armstrong’s asbestosis took approximately twenty years to develop. Since his exposure began in the early 1940’s, the most reasonable conclusion is that his asbestosis developed at least by the mid-1960’s. Even assuming that the initial damage to Armstrong occurred in 1963, the last year in which he worked in the shipyards, the disease “ordinarily” would have developed by 1983 and under “unusual” circumstances even earlier.

The only reasonable conclusion, even viewed in the light most favorable to Owens-Illinois, is that Armstrong had asbestosis prior to July 1,1986. Armstrong II, 326 Md. at 123-24 , 604 A.2d 47 . Admittedly, although the determination that Armstrong had contracted asbestosis prior to July 1, 1986 was reached as a result of testimony fraught with some imprecision, the Court of Appeals, at least implicitly, has given its imprimatur to basing the date of onset on less than definitive expert opinion. Amicus White Lung Association (White Lung) invites our attention to a deposition of Grover Hutchins, M.D.

(whom White Lung asserts is an expert witness for Owens Corning) wherein the deponent indicated that the Ohio plaintiff had ⁴⁹² developed a mesothelioma “probably in the ten or fifteen year range” prior to its diagnosis. Citing a myriad of treatises from the medical community, amicus White Lung Association refers to “a tumor doubling time” in an attempt to support its assertion that there is a general consensus in the medical community as to the growth rate and the metasticism of tumors. After a discussion of the length of the sdbclinical induction period to distinguish between remission and “complete curing” and what it asserts is the established scientific methodology designed to quantity the doubling times of clinical tumors, amicus White Lung concludes that mesothelioma has a measurable doubling time. Notwithstanding the exhaustive compendium of articles and treatises referenced by amicus White Lung, there can be no dispute that, as we said in Grimshaw, 115 Md.App. at 161 , 692 A.2d 5 (quoting Peterson, 50 Cal.Rptr.2d at 909), “the test we set forth here will in most, if not all, cases require the testimony of medical experts.” We are not convinced, however, that this “battle of the experts” is any more deleterious or savages resources any more than the countless other instances in which litigants rely on expert testimony to establish essential elements of their causes of action or defenses.

(See, for example, Lloyd E. Mitchell, Inc. v. Maryland Casualty Co., supra.) C Citing Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424 , 117 S.Ct. 2113 , 138 L.Ed.2d 560 (1997), appellant and amicus Maryland Defense Counsel contend that a reason underlying the Supreme Court’s adoption in Buckley of a manifestation standard for FELA claims for emotional distress was the “special ‘difficulty for judges and juries’ in separating valid, important claims from those that are invalid or ‘trivial.’ ” Buckley, 521 U.S. at 433 , 117 S.Ct. 2113 (quoting Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 557 , 114 S.Ct. 2396 , 129 L.Ed.2d 427 (1994)). ⁴⁹³ The gravamen of this contention is that judges and juries are not qualified to make determinations requiring the processing of highly technical scientific data that appellant and amicus assert are “scientifically uncertain at best, and scientifically unknowable at worst.” The precise issue the Supreme Court decided is critical in placing the holding in Buckley in the proper context: The critical question before us in respect to Buckley’s “emotional distress” claim is whether the physical contact with insulation dust that accompanied his emotional distress amounts to a “physical impact” as this Court used that term in Gottshall . In Gottshall , an emotional distress case, the Court interpreted the word “injury” in FELA § 1, a provision that makes “every common carrier by railroad ... liable in damages to any person suffering injury while ... employed” by the carrier if the “injury” results from carrier “negligence.” 45 USC § 51 . Buckley, 521 U.S. at 428-29 , 117 S.Ct. 2113 . The Supreme Court ultimately held: Yet, given the difficulty of separating valid from invalid emotional injury claims, the evidence before us may typify the kind of evidence to which parties and the courts would have to look.

The Court in Gottshall made a similar point: “[ T]esting for the ‘genuineness’ of an injury alone ... would be bound to lead to haphazard results. Judges would be forced to make highly subjective determinations concerning the authenticity of claims for emotional injury, which are far less susceptible to objective medical proof than are their physical counterparts. To the extent the genuineness test could limit potential liability, it could do so only inconsistently.” 512 U.S. at 552 [ 114 S.Ct. 2396 ]. And JUSTICE GINSBURG, too, in her opinion concurring in the judgment and dissenting in part, seems to recognize this problem, for she would limit recovery in emotional injury cases to those who can show more objective evidence ⁴⁹⁴ than simply having expressed fear and concern to supervisors.

More important, the physical contact at issue here — a simple (though extensive) contact with a carcinogenic substance — does not seem to offer much help in separating valid from invalid emotional distress claims. That is because contacts, even extensive contacts, with serious carcinogens are common. Id. at 434, 117 S.Ct. 2113 (citations omitted; emphasis added). Thus, the Buckley Court simply concluded that a pipefitter, who had been exposed on his job to insulation dust that contained asbestos, but had suffered from no asbestos-related disease and had exhibited no physical symptom of exposure, could not recover damages under FELA for negligently inflicted emotional distress.

The Court reached this conclusion because the “physical impact” referred to in Consolidated Rail Corp. v. Gottshall, which permitted recovery for negligent infliction of emotional distress, did not include a simple physical contact with a substance that might cause a disease at a substantially later time. In a nutshell, Buckley stands for the proposition that, under FELA, mere exposure to a carcinogen without proof of any underlying physiological basis of any real or threatened harm would not support a claim for negligently inflicted emotional distress. The focus in Buckley was whether the exposure to asbestos, without more, constituted physical impact under Gottshall . This issue is patently distinguishable from the asserted difficulty in pinpointing the time at which an asbestos-related disease came into existence.

Amicus Maryland Defense Counsel next cites several authorities 10 — including Buttram — intended to demonstrate how courts have expressed “difficulty in determining the date of onset in asbestos-related latent disease cases.” As we observed supra, these cases, for the ⁴⁹⁵ most part, involve accrual of a cause of action, not when an irreversible disabling or fatal disease comes into existence. In an attempt graphically to demonstrate its point, amicus sets forth excerpts from a pending asbestos proceeding in which Dr. Hammar acknowledged that “induction and promotion would be phases in carcinogenesis that you can’t observe, so it’s hard to have hard and fast opinions on when they occur.” To be sure, it is with a certain degree of resignation that courts apply the subclinical standard. The Court of Appeals, in Armstrong II , observed: “Unfortunately, identifying the time at which an asbestos-related injury came into existence is usually not a simple task. Due to the latent nature of asbestos-related disease, experts and courts alike have had difficulty in pinpointing its onset.” Armstrong II, 326 Md. at 122 , 604 A.2d 47 .

Similarly, in Grimshaw , we quoted a passage from Peterson wherein the California Court of Appeal referred to “confusing and questionable medical testimony,” uncertain outcomes, and “speculation [and] manipulation of facts.” See Grimshaw, 115 Md.App. at 161 , 692 A.2d 5 (quoting Peterson, 50 Cal.Rptr.2d at 909). As noted supra, the Peterson court concluded: “Of this parade of horribles, we agree that the test we set forth here will in most, if not all, cases require the testimony of medical experts.” Id. Notwithstanding the recognized difficulty in pinpointing the onset of a latent disease, the asserted inconsistency of verdicts, and how a legislative enactment affects a civil court proceeding, the difficulty of its implementation is a matter of policy. Like the recurring themes in Ravel’s “Bolero” or Beethoven’s “Fifth Symphony,” we sound our refrain that C.J. § 11-108 is a legislative act.

The law eschews invasion of the legislative prerogative in matters of public policy absent inherent authority to declare public policy. Many of the arguments of Owens Corning and amicus regarding implementation of C.J. § 11-108 are more properly addressed to the legislature, which could have, and still may, amend the law as to when a cause of action “arises.” ⁴⁹⁶ Alternatively, matters of policy in the judicial arena are relegated to Maryland’s highest court — the Court of Appeals. As we have noted, the Court of Appeals has been presented with several opportunities to revisit its decision construing “arises” in Armstrong II and has declined to do so. The manner in which to determine the point in time the statutory cap applies was spelled out in clear and unmistakable terms in 1992 in Armstrong II .

Until and unless either avenue of redress available to appellant and amicus Maryland Defense Counsel is pursued, it is not within our purview to usurp the legislative function of the General Assembly or to overrule a decision of the Court of Appeals. Maryland Declaration of Rights and Maryland Constitution Amicus White Lung Association, citing Murphy v. Edmonds, and acknowledging that “the Maryland cap statute has withstood previous constitutional challenges,” argues “since the decision in those two cases [Murphy v. Edmonds, supra, and Edmonds v. Murphy, 83 Md.App. 133 , 573 A.2d 853 (1990) ] numerous courts in other jurisdictions have addressed similar cap statutes and found those statutes unconstitutional on these or other grounds,” and, therefore, we should consider their position and “restore to injured plaintiffs the right to obtain full compensation.” This argument will not detain us long. Judge Eldridge, speaking for the Court of Appeals in Murphy v. Edmonds, concluded that, “[tjhere is a distinction between restricting access to the courts and modifying the substantive law to be applied by the court,” and that the cause of action based on negligence was not abolished by C.J. § 11-108, but rather simply “modifies the law of damages to be applied in tort cases.” Murphy, 325 Md. at 366 , 601 A.2d 102 . The Court concluded that even if “ § 11-108 were to be viewed as some degree of restriction upon access to the courts, it would be an entirely reasonable restriction,” id. at 366-67, 601 A.2d 102 , because “the legislative classification drawn by § 11-108 between tort claimants whose noneconomic damages are less than $350,000 and tort claimants whose noneconomic damages are greater than $350,000, and who are thus subject ⁴⁹⁷ to the cap, is not irrational or arbitrary.” Id. at 370, 601 A.2d 102 .

We are satisfied that, contrary to amicus White Lung’s assertion that circumstances have changed since the decision in the Court of Appeals in Murphy v. Edmonds, the reasoning of that decision is in no way affected by the constitutional arguments advanced by amicus White Lung. We therefore adopt the reasoning in Murphy v. Edmonds and rely on the discussion therein. See 325 Md. at 365-70 , 601 A.2d 102 .

II

COMPETENCY OF EVIDENCE With respect to the onset-of-disease Grimshaw standard, appellant contends that the only competent evidence compels a finding that appellee’s cause of action arose after July 1, 1986 even under the Grimshavj standard. Its contention is grounded on the assertion that the testimony of appellee’s pathology expert, Dr. Hammar, did not meet the Frye/Reed test and that Dr. Hammar’s testimony was discredited because it had changed in contrast to the testimony of Dr. Gabrielson’s, which Owens Corning contends was consistent. The admission of expert testimony regarding a new scientific technique depends on whether the technique is “generally accepted as reliable within the expert’s particular scientific field.” Reed v. State, 283 Md. 374, 381 , 391 A.2d 364 (1978) (citing Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923)). Despite the United States Supreme Court’s enunciation of a more liberal admissibility test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993), Maryland courts consistently have utilized the Frye/Reed rule of general acceptance within the field. 11 See Schultz v. State, 106 Md.App. 145 , 664 A.2d 60 ⁴⁹⁸ (1995).

The Court of Appeals commented after Daubert that use of the Frye/Reed rule is “well settled in Maryland.” United States Gypsum Co. v. Mayor and City Council, 336 Md. 145, 182 , 647 A.2d 405 (1994). A Appellant argues that, under the Frye/Reed test, appellee failed to meet his burden of proving the general acceptance of the scientific technique used by Dr. Hammar. Appellee counters by asserting that Dr. Hammar’s medical opinion testimony was not subject to the Frye/Reed test because it did not involve a new scientific technique, but rather, a medical opinion. Appellee further contends that appellant waived its right to contest the admissibility of the expert testimony, alleging that appellant failed to make a timely objection to Dr. Hammar’s testimony.

We agree with appellee’s first assertion and decline to consider whether appellant properly preserved the issue for review. In Myers v. Celotex Corp., 88 Md.App. 442, 594 A.2d 1248 (1991), this Court addressed a dispute over whether it was proper for the trial court to exclude certain opinion testimony of a medical expert because the testimony was not proven as generally accepted by the medical community. The expert testified at trial without objection that, based on an electrical charge theory, he believed that asbestos, rather than cigarette smoking, caused plaintiffs cancer. See id. at 455 , 594 A.2d 1248 .

After the expert stated on cross-examination that the electrical charge theory was his opinion, not the consensus of the medical community, defense counsel moved to have the testimony stricken. See id. at 456 , 594 A.2d 1248 . In granting defense counsel’s motion, the trial judge stated, “[H]e has to be able to say within a reasonable medical certainty. ⁴⁹⁹ That’s the definition of reasonable medical certainty. It’s what is accepted within the medical community.” Id. at 457 , 594 A.2d 1248 .

Upon review, we established that “[t]he standard for the admissibility of medical expert opinion testimony is reasonable medical probability.” Id. at 458 , 594 A.2d 1248 (citing Andrews v. Andrews, 242 Md. 143, 152 , 218 A.2d 194 (1966)). Our conclusion was that the expert should have been allowed to testify as to how asbestos fibers cause cancer despite not being able to state that his electrical charge theory was generally accepted by the medical community. See id. at 455, 594 A.2d 1248 . We reasoned that the Frye/Reed test “generally applies to the admissibility of evidence based upon novel scientific techniques or methodologies.” Id. at 458 , 594 A.2d 1248 .

The expert’s testimony in Myers , however, concerned how asbestos caused cancer, which was not a novel or controversial assertion, and was based upon the expert’s “personal observations and professional experience, and thus required only a reasonable degree of medical probability.” Id. Furthermore, “[t]he holding in Reed v. State has not been extended to medical opinion evidence which is not ‘presented as a scientific test the results of which were controlled by inexorable, physical laws.’ ” Id. at 458-59 , 594 A.2d 1248 (quoting State v. Allewalt, 308 Md. 89, 98 , 517 A.2d 741 (1986)). Consequently, the jury merely had to assess the expert’s credibility in weighing his opinion, and his testimony was admissible even if a majority of his professional colleagues disagreed with it. See id. at 459-60, 594 A.2d 1248 .

In the case sub judice, appellant argues that “the trial court erred in admitting and crediting the testimony of Dr. Ham-mar, because plaintiff did not offer any evidence tending to demonstrate the general acceptance and reliability of Dr. Hammar’s new testimony under the Frye/Reed test.” The basis for appellant’s argument is that Dr. Hammar allegedly admitted he testified in another trial that he could not determine the date on which mesothelioma was contracted with any ⁵⁰⁰ reasonable medical certainty. 12 Appellant relies on N.B.S., Inc. v. Harvey, 121 Md.App. 334 , 709 A.2d 162 (1998), calling it “remarkably similar” to the instant ease. In Harvey , defendants in a lead-paint exposure case relied on Myers for the assertion that their expert should not have been excluded from testifying. The trial judge, however, excluded the testimony because he was not satisfied with the doctor’s qualifications as an expert after she had been retired for ten years. See id. at 339, 709 A.2d 162 .

We commented that the judge excluded the testimony because there was no factual basis supporting it and, “although [plaintiffs] endeavored to exclude [the doctor’s] testimony on the basis of the Frye/Reed standard, the trial court’s exclusion of that testimony was based upon Maryland Rule 5-702.” Id. Consequently, appellant’s reliance on Harvey in the instant case is misplaced. Harvey does not stand for the proposition that Dr. Hammar needed to offer evidence that the medical community generally accepted his methodology. Harvey involved a doctor’s insufficient qualifications as an expert, not the inability to proffer that a medical opinion has gained general acceptance in the medical community.

Therefore, as we evaluate Dr. Hammar’s testimony, we do so under the standard enunciated in Myers that the opinion testimony be given to a reasonable degree of medical certainty. Initially, we note that Dr. Hammar was offered, without objection, as an expert in the field of pulmonary pathology ⁵⁰¹ and particularly with pathology of asbestos-related diseases. After testifying, Dr. Hammar was recalled by de bene deposition. 13 The following exchange occurred: Q In the case of mesothelioma with a latency period of about 20 years or more, do you have an opinion as to how long before that mesothelioma is diagnosed, the mesothelioma cancer first starts to grow? A I do have an opinion, yes.

Q And what is that opinion? A That that tumor had been growing for at least 10 years before it was diagnosed clinically. Q And what is the basis for that opinion? A It is based on many things.

It is based on my assumption that the tumorigenic process with respect to the development of mesothelioma is multifactoral, not a multifactoral process, but a multistaged process that occurs over a period of time, and that there are injuries to cells, repairs of cells and injuries that eventually change a normal cell to a malignant cell. It is based on my knowledge of growth rates of other tumors in which good information is available, such as lung cancer. It is based on my knowledge that the majority of mesotheliomas have a relatively low S phase and usually are deployed with respect to their DNA index, and it is based on some cases that I have seen of people who have histories of pleural effusions, over sometimes as great as 15 years, in which they eventually — in which they have eventually been diagnosed with mesothelio-ma. Dr. Hammar gave his opinion based upon information regarding mesothelioma and his experience in seeing over 2,500 cases of mesothelioma.

His opinion of the growth rate of mesothelioma was not based on any novel techniques or new ⁵⁰² scientific tests. Rather, it was given based on his expert medical experience. This testimony was subject to the standard from Myers , not Frye/Reed, and the court properly allowed the jury to weigh the credibility of Dr. Hammar’s testimony. Appellant argues that Dr. Hammar could not testify to a reasonable degree of medical certainty as to how long before diagnosis a person’s mesothelioma develops.

The following occurred during the recall by de bene deposition: Q Dr. Hammar, if I asked you to assume a case of mesothelioma where the occupational exposure to asbestos took place in approximately 1975, and the mesotheli-oma was diagnosed in approximately May of 1995 with symptoms of that mesothelioma seemingly having presented in the fall of 1994, do you have an opinion to a reasonable degree of medical certainty as to how far back in time that person’s mesothelioma cancer first arose? [APPELLANT’S COUNSEL]: Objection. THE COURT: Overruled. A I think that the tumor would have started to grow at least 10 years before it was diagnosed in 1994, so that would be in 1984. Appellant’s contention is that Dr. Hammar’s statement that “I don’t think anybody can tell you exactly when his tumor started,” demonstrates that his testimony was mere “speculation and guesswork.” Appellant misconstrues Dr. Hammar’s inability to determine “exactly” when the tumor started as speculation.

Based on the passage referenced earlier in which Dr. Hammar summarized the basis for his opinion, we disagree with appellant. The court properly allowed Dr. Ham-mar to provide his own opinion to a reasonable degree of medical certainty based on his expertise as a pulmonary pathologist. ⁵⁰³ B Appellant additionally contends that the trial court should have accepted Dr. Gabrielson’s testimony instead of Dr. Hammar’s. A trial court’s decision whether to admit expert testimony is within its discretion and will only be disturbed on appeal only upon an abuse of that discretion. See Quinn v. Quinn, 83 Md.App. 460, 470 , 575 A.2d 764 (1990).

When a court is confronted with two experts, “the trier of fact must evaluate the testimony of both of them and decide which opinion, if any, to accept.” Id. Appellant relies on Dr. Gabrielson’s statement that, when an individual manifests discernible symptoms of mesothelioma, the person “probably had a very small cancer five years ago, or maybe even six or seven years ago.” Because appellee was diagnosed with mesothelioma in 1995, appellant asserts that Dr. Gabrielson’s testimony supports a finding that the onset of mesothelioma could not have occurred before 1987, after the effective date of the cap statute. Despite this assertion, appellant provides no evidence, and our review of the experts’ testimony reveals none, demonstrating that it was clearly erroneous for the trial court to credit Dr. Hammar’s testimony over Dr. Gabrielson’s. Dr. Gabrielson’s comment came in response to a hypothetical question not concerning appellee, and he was not asked to give a response with a reasonable degree of medical certainty.

Dr. Gabrielson’s testimony, as appellee contends, addressed what role asbestos exposure plays in the development of mesothelioma rather than how long before diagnosis the mesothelioma first develops. In the trial court’s memorandum opinion, the court noted the conflicting expert testimony concerning the date of the onset of mesothelioma and the difficulty in the medical community in pinpointing the onset date for an asbestos-related disease. The judge appeared to give more credibility to Dr. Hammar’s testimony because of the potential of an inaccurate diagnosis. The court reasoned: Logic dictates that some tumors can be present not only long before diagnosis but long before the onset of symptoms ⁵⁰⁴ as well.

The experts in the instant case based their hypotheses of when the tumor was born on the date of diagnosis. Thus, an untimely diagnosis may cause an inaccurate assessment of when the disease developed. For instance, a doctor may mis[-]diagnose a symptomatic patient and thus delay the diagnosis of mesothelioma. Or, a patient may be asymptomatic for years with a mesothelioma tumor growing inside him.

There is no evidence or argument that convinces us that the court was clearly erroneous in seemingly accepting Dr. Ham-mar’s testimony over Dr. Gabrielson’s.

III

CONSTITUTIONAL RIGHT TO A