Owens Corning v. Walatka

ADKINS, Judge. This appeal involves two of six asbestos-related cases that were consolidated for trial before the Circuit Court for Baltimore City. At issue are the claims of Marian Walatka, surviving widow and personal representative of her deceased ³¹⁷ husband, Vernon Walatka, Sr., and the claims of Myrtle Adams, surviving widow of Bill Adams, and his co-personal representatives alleging injuries and death resulting from exposure to asbestos. 1 Mr. Walatka contracted the disease of mesothelioma (a type of cancer) from his exposure to asbestos and died at the age of seventy-four. Mr. Adams developed lung cancer after exposure to asbestos and died in 1995 at the age of seventy-three.

Following a trial, 2 the jury rendered its verdict awarding damages to Mrs. Walatka for $703,500 for personal injury in the survival action, $250,000 for loss of consortium, and $1,500,000 for wrongful death. In the Adams action, the jury rendered a verdict of $50,000 for wrongful death, $50,000 for loss of consortium, and $203,500 for personal injury in the survival action. With respect to the Walatka verdicts, appellants, 3 Owens Corning (OC) and Owens-Illinois, Inc. (Oil), filed motions requesting application of the statutory cap on noneconomic damages set forth in Maryland Code (1974, 1995 Rep.Vol., 1997 Supp.), § 11-108 of the Courts & Judicial Proceedings Article (hereinafter “statutory cap” or “cap”). No party requested that the jury make any factual determinations relative to the statutory cap, and the trial court ruled on the motions.

Pursuant to the cap, the trial court reduced the wrongful death award in the Walatka action to $515,000, but declined to reduce the personal injury and loss of consortium verdicts. The trial court ruled that appellants had the burden to establish that appellees’ causes of action arose after the effective ³¹⁸ date of the statutory cap. It found that there was no evidence introduced regarding the date on which the plaintiff acquired mesothelioma and, in the absence of such proof, held that the statutory cap was not applicable except to appellees’ actions for wrongful death, which did not arise until after the effective date of the statutory cap. After the trial court issued its decision regarding application of the statutory cap, OC sought to satisfy the burden of proof imposed upon it by the trial court by taking the deposition of Dr. Andrew Churg.

OC submitted Dr. Churg’s deposition transcript and a proffer of his expected testimony that “Mr. Walatka’s mesothelioma tumor developed no earlier than April, 1990.” At a hearing on November 4, 1997, the trial court expressed displeasure with the form of this proffer. After OC filed its notice of appeal on November 4, it filed a further proffer that Dr. Churg would testify that “at an outer limit, a mesothelioma tumor is present for five years before diagnosis.” On November 17, 1997, the trial court ordered that Dr. Churg’s deposition could not be used as a proffer. ISSUES ON APPEAL The parties raise and comprehensively brief a number of issues regarding application of Maryland’s statutory cap in latent disease cases; in particular, the statutory language providing that the statutory cap shall apply “[i]n any action ... in which the cause of action arises on or after July 1, 1986.... ” CJ § ll-108(b). Some of these arguments revolve around the methodology for determining the date on which “a cause of action arises,” e.g., whether the date should be determined by when the injured person first inhaled asbestos, when the disease came into existence according to the opinion of a qualified expert, or when the injured person first experienced clinical symptoms of the disease.

These same arguments were 'addressed in a very recent published decision of this Court, and for that reason, will not be addressed in this opinion. See Owens Corning v. Bauman, 125 Md.App. 454 , 726 A.2d 745 (1999) (holding that in a suit by a plaintiff who has suffered the disease of mesothelioma, the cause of action ³¹⁹ arose for purposes of application of the statutory cap when the disease came into existence, and the disease came into existence when, based on expert testimony, the carcinogen caused cellular changes which led to an irreversible, fatal, or disabling disease rather than the point in time when the plaintiff inhaled the asbestos, or when the plaintiff was diagnosed or manifested symptoms of such disease). The issues relating to the statutory cap that were not decided in Bauman and must be decided here are: 1) whether the burden of showing if the statutory cap applies rests with the plaintiff or the defendant; 2) what is the proper application of that burden under the circumstances of this case; and 3) whether the statutory cap violates the separation of powers clause in the Maryland Declaration of Rights. The only other issue raised in this appeal is OC’s contention that the plaintiffs in the Adams case failed to prove that an Owens Corning product was a substantial contributing cause of the asbestos-related disease suffered by Adams and his eventual death.

In this regard, contrary to the contention of the Adams appellees, we hold that OC’s appeal was timely filed. FACTS RELATING TO WALATKA APPEAL-MEDICAL EXPERT TESTIMONY Three medical witnesses testified in the Walatka case on behalf of appellees — Dr. Samuel Hammar, a pathologist who reviewed pathology materials from Mr. Walatka, Dr. Sheldon Gottlieb, a treating physician who specializes in internal medicine, cardiovascular disease, and geriatric medicine, and Dr. Arnold Brody, a lung pathologist who did not review any of Mr. Walatka’s pathology materials and did not testify specifically about Mr. Walatka. Appellants called no medical witnesses. Dr. Samuel Hammar Dr. Hammar received tissue obtained from Mr. Walatka’s 1995 biopsy and performed tests on that tissue.

In his ³²⁰ opinion, the results confirmed a diagnosis of mesothelioma. He also opined that Mr. Walatka’s mesothelioma was attributable to his exposure to asbestos. When Dr. Hammar was asked on cross-examination whether he could say within a reasonable degree of medical certainty how long before June of 1995 Mr. Walatka had mesothelioma, he replied: There has only actually been one study that had looked at how fast mesotheliomas grow and how — what their doubling time is, and that study might not even be reliable,____ [Mesothelioma] is the type of tumor that might not be known for a long time until we get some better methods, because it doesn’t grow as a spherical mass, it grows as a rind, and it is very hard to see the change in size over time which is necessary to calculate how fast a tumor grows. Dr. Sheldon Gottlieb Dr. Gottlieb originally saw Mr. Walatka in 1989, in connection with cardiac problems.

After Mr. Walatka underwent bypass surgery, Dr. Gottlieb followed his condition, seeing him every three to six months. Dr. Gottlieb testified that, in June 1995, Mr. Walatka “presented for a routine visit and there was some fluid on physical examination.” This fluid was removed, and when Walatka returned for a visit later in June, Gottlieb found that “he was more short of breath. He was having trouble getting around because of shortness of breath.” He also lost weight since his earlier June visit. Mr. Walatka consulted a lung specialist, and Dr. Gottlieb learned “that he had a kind of cancer called mesothelioma.” Gottlieb continued to see Mr. Walatka during the course of the mesothelioma.

Dr. Arnold Brody Dr. Brody, who is a pathologist (not a medical doctor) testified generally about mesothelioma and its development. He explained that long before a patient has mesothelioma, there is cell division in the person’s lungs. The cell division occurs as part of the body’s normal process of replacing lung cells. Without any injury to the lung, the cells should divide at the rate of one out of one hundred cells, which he character ³²¹ izes as a “very low rate of cell division.” When there is lung injury, which can be caused by asbestos or other factors, there will be an increased rate of cell division.

Cancer is only formed, however, according to Brody, when the genetic structure of the cells change, and the cells lose control of their growth. With cancer, Brody said, “you injure the genes that control cell growth.” Asbestos exposure, he said, can cause gene mutation. He further explained that, “I don’t know the genes, precisely, in mesothelioma and lung cancer that will be mutated, but we know some of the ways, at least one or two of the ways that asbestos can cause these mutations.” He went on to explain that the purpose of cell division is to create two cells from one. In order to create the new cell, all of the genetic material (chromosomes) that is contained in the nucleus of each cell must be duplicated.

Sometimes, where the lungs have been exposed to asbestos, as the cells divide and half of the chromosomes go to the new cell, “some of the chromosomal material has attached to the asbestos fibers and is not moving to its normal position.” This abnormal chromosomal separation is known as aneuploidy. The “body defense mechanisms are very good at removing cells that are aneuploid, ... but the person who gets a cancer has not removed all of those cells.” “Sometimes it takes 40 years after an exposure for an individual to come to the clinic with a cancer. That is because it has taken all of these years for that cell with those errors to finally grow out into a tumor.” He explained that a person has mesothelioma when me-sothelial cells located on the outside covering of the lung become cancer cells. He did not testify to any range of time period within which mesothelioma would develop or a tumor grow.

Nor did he explain when or how the process of cell division in the lungs can be considered an irreversible step in the development of mesothelioma. The facts relating to the Adams case will be set forth separately as we discuss that case in Section IV. ³²² DISCUSSION I. Statute of Limitations Appellants urge us to adopt a rule under which the statutory cap will be presumed to apply, unless the plaintiff proves that his cause of action arose prior to July 1, 1986 (“the effective date”). Appellees urge that we apply the opposite rule, under which the statutory cap will only apply if the defendant proves that the cause of action arose subsequent to the effective date. The arguments of appellants rest upon the language and purpose of the statutory cap, the public policy underlying its enactment, and common law principles regarding allocations of burdens of proof generally.

Appellees also rely on the common law, specifically the burden imposed on the proponent of a motion, as well as cases in which the defendant sought to mitigate or reduce the plaintiffs damages. We have not found any decision of the Court of Appeals or of this Court that has previously addressed this particular issue. After carefully examining the arguments advanced by each side, we conclude, for the reasons set forth below, that the burden of proof to show that the statutory cap is not applicable rests with the plaintiff. In addition to arguments about which rule should be adopted, each party has concerns about the fairness of applying a rule adverse to its position under the particular circumstances of this case.

For the reasons discussed below, we conclude that the general rule imposing the burden on the plaintiff should be applied in this case against appellees. A. THE BURDEN TO ESTABLISH THAT THE STATUTORY CAP DOES NOT APPLY FALLS UPON THE PLAINTIFF The Statute and Public Policy We begin with the text of the statute itself, as we attempt to discern the legislative intent regarding who shall bear the burden of proof to establish the applicability of the statutory cap. See Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d ³²³ 423 (1995) (“The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.”). The statutory cap enunciates that “[i]n any action for damages for personal injury in which the cause of action arises on or after July 1,1986, an award for noneconomic damages may not exceed $350,000.” 4 CJ § ll-108(b).

The cap is broadly applied with a single limitation amount covering both the direct victim of tortious conduct and also all persons who claim injury through that victim. See CJ § ll-108(b)(3)(i). The cap is less restrictive in a wrongful death action in which there are two or more claimants, although even in that instance an award may not exceed one hundred and fifty percent of the usual cap. See CJ § 11 — 108(b)(3)(ii).

The statute directs that in a “jury trial, the jury may not be informed of the limitation” and mandates that if the verdict exceeds the limitation, “the court shall reduce the amount to conform to the limitation.” CJ § ll-108(d)(2) (emphasis added). The statutory directive to the court to apply the cap is mandatory, and there is no suggestion that a defendant is required to make a motion to trigger court action in this regard. The major point that we glean from our review of the statutory language is that the legislature has made a strong policy statement placing limits upon the recovery of noneconomic damages in personal injury actions. Although in some instances the legislature resolves the evidentiary burden on a particular issue, see, e.g., Md.Code (1975, 1997 Repl.Vol.), § 1-201(8) of the Commercial Law Article; Md.Code (1957, 1996 ReplVol.), § 298 of Article 27; Joseph F. Murphy, Jr., Maryland Evidence Handbook § 400, at 150 (2d ed. 1993), we find no explicit language in this statute addressing the evidentiary burden to prove whether a particular cause of action is subject to the statutory cap. ³²⁴ Common Law Regarding Burden of Proof When the legislature has not spoken regarding the burden of proof, judicial decision as to the burden is required.

Judicial allocation of the burden will often rest on the policy enunciated in the statute. See Murphy, supra, § 400, at 150. According to Lynn McLain, Maryland Evidence § 300.1, at 134 (1987), “[I]f for public policy reasons certain claims or defenses are favored or disfavored, the parties will be allocated the burdens of proof and given lighter or heavier burdens accordingly.” (Citations omitted); accord McCormick on Evidence, § 343, at 454 (J. Strong, ed. 4th ed. 1992); see also 9 Wigmore, Evidence § 2486, at 291 (1981) (“It is merely a question of policy and fairness____”). The Court of Appeals has examined the statute and its legislative history and determined that “[sjection 11-108 was enacted in response to a legislatively perceived crisis concerning the availability and cost of liability insurance in this State.” Murphy v. Edmonds, 325 Md. 342, 368 , 601 A.2d 102 (1992).

According to the Court, the underlying objective of the General Assembly 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.” Id. at 369 , 601 A.2d 102 . In examining the constitutionality of the statute, the Court found it “significant that the cap applies to all personal injury claimants equally rather than singling out one category of claimants.” Id. at 370 , 601 A.2d 102 . These statements in Murphy suggest to us that the Court of Appeals contemplated that a broad application of the statute was appropriate in order to serve the legislative purpose. Relying on the statute and the Murphy decision, appellants argue: Allocation of the burden of proof to defendants on the issue of the cap statute’s enforceability would, in effect, create a presumption that the cap statute is ordinarily not enforced, absent proof to the contrary.

That result would fly directly in the face of the General Assembly’s intent that ³²⁵ the cap be enforced broadly against all classes of personal injury plaintiffs. We find this argument persuasive, and think that it is consonant with the common law principles concerning allocation of the burden of proof. We also agree with appellants’ contention that when the legislature has established a policy, the courts should implement the policy to the fullest extent. Accordingly, when the legislature has adopted a public policy that noneconomic damage awards must be limited, we should not impose a burden of proof, not contained in the statute, that handicaps achievement of the result favored by the statute.

Other common law principals regarding the burden of proof also support placement of the burden upon the plaintiff. Before explaining these, we pause to review what is meant by the term “burden of proof.” The broad concept of “burden of proof’ consists of at least two component parts. One is the burden of production — the duty of going forward with the evidence in order to avoid the direction by the judge of an adverse judgment at the close of the evidence. The other is the burden of persuasion — the standard of proof by which a party must satisfy the fact-finder in order to win a verdict in that party’s favor.

See Murphy, supra, § 400, at 149; McLain, supra, § 300.1, at 132. 5 The plaintiff bears the burden of proof in most civil actions to establish the facts supporting a cause of action and damages. See McLain, supra,, § 300.1, at 134 (“[Bjoth fairness and efficiency dictate that ... the plaintiff in a civil case must bear the burden of producing evidence to support [the plaintiffs] allegations before a defendant should be asked to defend.”); Murphy, supra, § 416(A), at 179 (“[I]n a personal injury case arising out of an auto accident, the plaintiff has the burden of persuasion on the issue of the defendant’s negligence and on the issue of the plaintiffs damages.”); McCormick, supra, § 337, at 428 (“The burdens of pleading and ³²⁶ proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.”). Imposition of the burden on the plaintiff is based on practicalities of proof and fairness. See McLain, supra, § 300.1, at 134.

Maryland cases have often recognized a plaintiffs burden to prove a prima facie cause of action and damages. See, e.g., Wood v. Abell, 268 Md. 214, 233 , 300 A.2d 665 (1973) (holding that plaintiffs have the burden to prove negligence and damages); Jones v. Federal Paper Bd. Co., Inc., 252 Md. 475, 485 , 250 A2d 653 (1969) (holding in a negligence action that “plaintiffs had the burden of proving their damages beyond mere conjecture and speculation____”); Brock Bridge Ltd. Partnership, Inc. v. Development Facilitators, Inc., 114 Md.App. 144, 157 , 689 A.2d 622 (1997) (holding in an action for breach of contract that “the plaintiff bears the burden of adducing sufficient evidence from which the amount of damages can be determined____”). The burden of proving a fact is often placed upon the party who presumably has peculiar means of knowledge enabling him to prove its falsity, if it is false.

See Lake v. Callis, 202 Md. 581, 587 , 97 A.2d 316 (1953); Singewald v. Singewald, 165 Md. 136, 141 , 166 A. 441 (1933); see also McLain, supra, § 300.1, at 134 n. 8; McCormick, supra, § 337, at 429-30. Because the applicability of the statutory cap turns upon when the injured party’s disease came into existence, see Bauman at 468, 726 A.2d 745 , the issue will be largely determined according to what expert testimony can be introduced, based on the applicable facts, to establish such date of onset. While both sides to a personal injury action have access to experts who can examine the medical records of an injured party, it is fair to say that the injured party and those claiming through him have better information about the history and development of his disease. See Fitzgerald v. Wright, 155 N.J.Super. 494 , 382 A.2d 1162 (App.Div.1978) (allocating to plaintiff the burden of proving the extent of the injury so as to reach no- ³²⁷ fault threshold based on superior knowledge of the injured party, not statutory terminology).

In the first place, the plaintiffs have unique knowledge about the times and extent of the injured person’s exposure to asbestos, and whether it occurred at more than one period during his life. These circumstances could be highly relevant to determine when the disease came into existence. 6 Second, the injured party is better positioned to know about his personal medical history, including past medical exams and tests, and any conditions, diseases, or symptoms experienced. All of these historical facts may shed light on what caused the current injury or condition. Yet, the defendant can only learn about these historical facts, many of which occurred years previously, through discovery, a procedure that depends upon disclosure by the injured person or those claiming through him.

In light of the parties’ relative levels of knowledge about the facts that will determine applicability of the statutory cap,. it is both fair and practical to impose upon the plaintiff the burden of proof on this issue. Further, if the defendant were to have the burden, it would be its obligation to prove the negative fact that the injured party did not have the disease prior to the effective date of the statutory cap. It is the normal rule that the party who asserts the affirmative of an issue bears the burden of proof. See Singewald, 165 Md. at 140 , 166 A. 441 ; McLain, supra, § 800.1, at 134 n. 8 (citing 10 M.L.E. Evidence § 21, at 101 (1961), and Chesapeake & Potomac Tel.

Co. v. Hicks, 25 Md.App. 503, 523 , 337 A.2d 744 , cert. denied, 275 Md. 750 (1975)). 7 To require a defendant to prove affirmatively that an injured person had not contracted the disease prior to the ³²⁸ effective date would require it to prove a negative fact resting in large part within the knowledge of its opposing party. Such a burden would not be fair or consistent with either the statutory goals or common law principles. Appellees argue that the burden should be placed upon defendants because those seeking reduction of compensatory damages bear the burden of going forward initially with some evidence. In support of their contention, appellees cite Kru-vant v. Dickerman, 18 Md.App. 1 , 305 A.2d 227 (1973), Bau-blitz v. Henz, 73 Md.App. 538 , 535 A.2d 497 (1988), and Blanchfield v. Dennis, 292 Md. 319 , 438 A.2d 1330 (1982). 8 We explain with respect to each case why it does not support appellees’ contention.

Kruvant involved the burden of proof in establishing damages to a motor vehicle that was damaged but not destroyed. ³²⁹ See Kruvant, 18 Md.App. at 2 , 305 A.2d 227 . Previous case law had established the measure of damages as the reasonable cost of repairs, provided that the cost was less than the diminution value of the vehicle due to the injury. See id: at 2-3, 305 A.2d 227 . The plaintiff proved the cost of repairs, but not the diminution in value, and the issue presented on appeal was whether the plaintiff also had the burden to prove that the cost of repairs did not exceed the diminution in value.

We held that “when a plaintiff has established a prima facie case by proving his damage, according to one acceptable measure of damage, it becomes the obligation of the defendant to offer evidence that the damage would be less under a different acceptable measure of damage.” Id. at 7 , 305 A.2d 227 . That principal is not applicable under the circumstances of this case because we are not presented with two acceptable measures of damages, both potentially applicable in every case. Here, the legislature has declared that the cap on damages is in the public interest and necessary in order to avert an impending insurance crisis. Given this legislative mandate and its purpose, application of the cap must logically be viewed as preferable to non-application.

The legislature set a date for implementation of the new policy and determined applicability with respect to each case based on the date the plaintiffs cause of action arose. Given our interpretation in previous cases of when a cause of action arises, we must determine applicability based on the plaintiffs medical history, not measurement of damages. See Bauman, at 468, 726 A.2d 745 . Accordingly, Kruvant is inapposite.

With respect to appellees’ reliance on Baublitz, we agree with appellants that Baublitz “does not even discuss the allocation of a burden of proof, but instead stands only for the unremarkable proposition that a party is not entitled to a jury instruction in the absence of evidence sufficient to justify the instruction.” In Baublitz, the defendant appealed from the trial court’s refusal to instruct the jury that damages awarded for loss of future earnings must be reduced to present value. See Baublitz, 73 Md.App. at 549 , 535 A.2d 497 . We affirmed the trial court because there was no expert testimony or tables ³³⁰ introduced into evidence that would explain to the jury how to make the calculation to reduce future sums to present value. See id. at 549-50 , 535 A.2d 497 .

It was our belief that the jury should not be asked to make a calculation that is beyond the understanding and capability of most lay persons without evidentiary information as to how to do so. See id. at 550 , 535 A.2d 497 . Considerations of how to allocate the burden .of proof to show whether a statutory damage limitation should apply simply did not enter our decision. See id. at 549-50 , 535 A.2d 497 .

For the same reason, the Court of Appeals decision made six years earlier, in Blanchfield , is not supportive of appellees’ argument. In Blanchfield , the Court declined to address substantively a similar issue, simply saying, in a footnote, that “we mention, without comment as to its necessity, that respondent did not proffer any evidentiary basis, expert or otherwise, to underpin his requested present value instruction.” Blanchfield, 292 Md. at 322 n. 3, 438 A.2d 1330 . Appellees also argue that appellants have the burden to show that the statutory cap applies because appellants made the motion to reduce damages awarded by the jury. They cite the following cases requiring the proponents of various types of motions to bear the burden of establishing that a motion should be granted: Urquhart v. Simmons, 339 Md. 1, 17-18 , 660 A.2d 412 (1995) (motion to transfer action); Butler v. State, 335 Md. 238, 254 , 643 A.2d 389 (1994) (motion to dismiss criminal case on ground of collateral estoppel); Mejia v. State, 328 Md. 522, 533 , 616 A.2d 356 (1992) (challenge to jury selection); Webb v. Joyce Real Estate, Inc., 108 Md.App. 512, 522 , 672 A.2d 660 (1996) (motion for summary judgment); Thomas v. Ramsburg, 99 Md.App. 395, 400 , 637 A.2d 863 (1994) (motion to dismiss for lack of prosecution); Shunk v. Walker, 87 Md.App. 389, 398 , 589 A.2d 1303 (1991) (motion for modification of child custody); Nationwide Mut.

Ins. Co. v. Hart, 73 Md.App. 406, 410 , 534 A.2d 999 (1988) (motion for interlocutory relief). All of the motions in those cases differ from the appellants’ motion in the instant case because none of them rests upon a mandatory legislative directive to the court that it “shall reduce the amount [of the verdict] to conform to ³³¹ the limitation.” CJ § ll-108(d)(2)(i). None rests upon legislation comparable to that presented here, pronouncing an absolute rule, based on public policy, that “[i]n any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed [the cap].” CJ § 11 — 108(b)(1).

All of the matters raised in the motions cited by appellees can be waived if not raised by motion because the relief requested is relief that benefits only the individual litigant. The statutory cap, on the other hand, is not designed to relieve any individual litigant, but rather to avoid “a legislatively perceived crisis concerning the availability and cost of liability insurance in this State.” Murphy, 325 Md. at 368 , 601 A.2d 102 . To be fully effective, enforcement of the statutory cap cannot depend upon the diligence and timeliness of any individual litigant in making a motion for enforcement. For this reason, we believe that the legislature intended that a court impose the statutory cap regardless of whether the defendant requested that it do so.

Accordingly, any motion made by a defendant to bring to the court’s attention its obligation to enforce the cap must be viewed in a category different from the types of motions cited by appellees that seek relief only for the benefit of the litigant and therefore are waivable. B. APPELLEES DID NOT MEET THEIR BURDEN Appellees argue that, regardless of how we allocate the burden of proof generally, the statutory cap should not apply in this case because the law existing at the time the verdict was rendered was that the “cap did not apply to latent disease asbestos cases,” citing Owens-Illinois, Inc. v. Armstrong, 326 Md. 107 , 604 A.2d 47 (1992) (“Armstrong II ”). Based on this premise, appellee Walatka seems to make two claims. First, appellee argues that the rule of Anchor Packing Co. v. Grim-shaw, 115 Md.App. 134 , 692 A.2d 5 (1997), vacated on other grounds sub nom.

Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998), which was decided after the verdict in this case, should be applied only prospectively. Second, appellee contends that because neither party introduced evi ³³² dence of when Mr. Walatka’s disease came into existence, the issue regarding application of the cap has not been preserved for appellate review. Appellee’s premise, and the two arguments flowing therefrom, are without merit. Appellees have misinterpreted Armstrong II.

The plaintiff in Armstrong II was diagnosed with the disease of asbestosis in May 1987, during a medical examination. See Armstrong II, 326 Md. at 123 , 604 A.2d 47 . He had been exposed to large amounts of asbestos from 1942 to 1963. See id. at 111 , 604 A.2d 47 .

The Court of Appeals quoted the testimony of the expert witness for Owens-Illinois explaining that asbestosis 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. During unusual circumstances less than that could cause the disease. Id. at 124 , 604 A.2d 47 .

The Court concluded from this testimony that “it is reasonable to assume that Armstrong’s asbestosis took approximately twenty years to develop.” Id. The Court went on to apply a practical analysis regarding Mr. Armstrong’s disease: 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. Id.

Thus, the Court relied on expert testimony presented by the defendants, and used it against them to reach its conclusion. Contrary to appellees’ assertion, the Court of Appeals did not set down a rule of law that the statutory cap does not apply to latent asbestos related diseases. Thus, our decision in Grimshaw, holding that the cap applied unless the disease came into existence prior to the effective date, was completely consistent with Armstrong II . Accordingly, there is no reason ³³³ to consider the issue of prospective or retrospective application of Grimshaw.

Appellees argue that the rule that applicability of the cap rests upon evidence regarding onset of the disease should not be applied here because neither party introduced expert testimony to establish the onset of Mr. Walatka’s mesothelioma or requested a jury instruction or special verdict by the jury, and therefore the issue is not preserved for appellate review. This argument begs the question. Appellee’s argument depends upon two erroneous assumptions: first, that the burden of proof rests with appellants; and second, that the issue must be decided by the jury. We have already said that the burden to produce evidence that is probative with respect to when the plaintiffs disease came into existence rests with the plaintiff.

Given allocation of this burden, appellees’ concession that they introduced no evidence on this issue merely reinforces our conclusion, based upon a review of the record, that appellees failed to meet this burden. We discuss the evidence below. Second, like most factual issues, the factual issues involved in this determination may be decided by the jury, but if the court fails to submit an issue to the jury, a party waives the right to a trial by jury on that issue unless it demands submission prior to the time the jury retires. See Md.Rule 2-522; Bauman, at 518, 726 A.2d 745 .

Notwithstanding appellees’ concession that there was no evidence regarding the time of onset of Mr. Walatka’s disease, appellee nonetheless suggests that the testimony of Dr. Brody, a microbiologist, was sufficient to establish that Mr. Walatka’s mesothelioma was in existence prior to the effective date. We do not agree. Mr. Walatka suffered from mesothelioma and the disease was diagnosed in 1995, nine years after the effective date of the statutory cap. Dr. Brody expressed no opinion on how long mesothelioma takes to develop, ie. the length of the period from the point when cancer cells form and the mesothelioma becomes irreversible, until the point when the cancer is clinically identified.

Dr. ³³⁴ Brody only stated that “[sjometimes it takes 40 years after an exposure for an individual to come to the clinic with a cancer.” This statement may reflect a high-end example of the time period between asbestos exposure and the appearance of clinical symptoms. It is very clear, however, that the time period between exposure and clinical