Owens-Illinois, Inc. v. Gianotti

SALMON, Judge. This case concerns the late John Gianotti, a worker whose exposure to asbestos manufactured by appellant, Owens-Illinois, Inc. (“Owens-Illinois”), and others caused him to contract mesothelioma. Mr. Gianotti died from mesothelioma after trial but before a final judgment was entered in this matter. Several of the important issues briefed and argued in this case were answered in a decision by the Court of Appeals in the case of John Crane, Inc. v. James Scribner, 369 Md. 369 , 800 A.2d 727 (2002).

At issue in Scribner was the applicability of the “cap” statute set forth in section 11-108 1 of the Courts ⁴⁶³ and Judicial Proceedings Article of the Maryland Code (1998 RepLVol.). That statute limits the amount of noneconomic damages a plaintiff may recover in a personal injury case. The statute, however, is applicable only to causes of action that arise after July 1, 1986. A major issue presented below was whether Mr. Gianotti’s injuries “arose” — for purposes of the “cap” statute-before July 1, 1986.

The jury was asked to decide that issue, and it decided that Mr. Gianotti’s injuries did arise prior to July 1, 1986. Therefore, the trial court refused to reduce the jury’s award for noneconomic damages to Mr. Gianotti or the joint loss of consortium award in favor of Mr. Gianotti and his wife. The Scribner Court held that, for purposes of section 11-108(b)(1), the proper manner of determining the date when a ⁴⁶⁴ cause of action “arises” in a case founded on exposure to asbestos is the date when the plaintiff first inhaled asbestos fibers that caused cellular changes. 869 Md. at 394, 800 A.2d 727 . The medical basis for this holding was (1) inhalation of asbestos fiber causes cellular damages and (2) such damage occurs “shortly after inhalation.” Id. at 392 , 800 A.2d 727 .

The Court noted: Although the medical evidence shows that cancers take time to develop and may remain in situ and non-invasive for long periods of time, it has not been seriously urged, and we would not be prepared to accept it if it were urged, that an in situ and non-invasive cancer is not an injury; an undetectable tumor is an injury. Id. (emphasis added). Penultimately, the Scribner Court held: [I]n actions for personal injury founded on exposure to asbestos, the court, as an initial matter, may look, for purposes of § 11 — 108(b)(1), to the plaintiffs last exposure to the defendant’s asbestos-containing product.

If that last exposure undisputedly was before July 1, 1986, § 11— 108(b)(1) does not apply, as a matter of law. If the only exposure was undisputably after July 1,1986, then obviously the cap applies as a matter of law. In those hopefully rare instances in which there was exposure both before and after July 1, 1986, and there is a genuine dispute over whether either exposure was sufficient to cause the kind of cellular change that led to the disease, the trier of fact will have to determine the issue based on evidence as to the nature, extent, and effect of the pre- and post-July 1, 1986 exposures. Id. at 394, 800 A.2d 727 .

Scribner overruled this Court’s decision in Anchor Packing Co. v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 (1997), and several other cases in which we held that (1) in asbestos cases, a worker’s cause of action, for purposes of the “cap” statute, arose when the plaintiff suffered an injury; (2) an “injury occurs in such cases when the inhalation of asbestos fibers ⁴⁶⁵ causes a legally compensable harm”; and (3) a legally cognizable “[h]arm results when the cellular changes develop into an injury or disease, such as asbestosis or cancer.” Grimshaw, 115 Md.App. at 160 , 692 A.2d 5 . Thus, under Grimshaw , one looks to when the disease itself first arose in the body, while under Scribner one looks to when the worker first inhaled the fibers that caused the damage. Scribner, 369 Md. at 390 , 800 A.2d 727 ; Grimshaw, 115 Md.App. at 159 , 692 A.2d 5 . In the case at hand, Mr. Gianotti was last exposed to asbestos in 1974.

Thus, as a matter of law, the cap statute was not applicable to his case. Although the Scribner decision resolves the central issue in this case, several other matters must be determined. The Gianottis did not marry until 1986. Therefore, the following question arises: If a worker marries after the date of his last exposure to asbestos, but before any symptoms of his mesothelioma appear, do the worker and his spouse have a viable joint claim for loss of consortium as a consequence of the mesothelioma?

The answer to that question is complicated, because in the Grimshaw case one of our holdings was that, for purposes of applying the cap statute, a loss of consortium claim arises at the same time as does the underlying personal injury to the spouse who inhaled the asbestos. Grimshaw, 115 Md.App. at 166-67 , 692 A.2d 5 . And, previously, we also have indicated that a marital relationship must exist at the time of the underlying personal injury in order for the spouses to later bring a joint loss of consortium action. Gillespie-Linton v. Miles, 58 Md.App. 484, 495 , 473 A.2d 947 (1984).

Other questions presented by Owens-Illinois in this appeal are: Did the trial court abuse its discretion in failing to grant a mistrial after plaintiffs’ counsel, in closing argument, mentioned the “cap” statute? Did the trial judge misinterpret the meaning of the release signed by John Gianotti and his wife on July 8, 1994? ⁴⁶⁶ The Gianottis present the following question in their cross-appeal: Did the trial court err in reducing judgments in their favor under the UCATA [Maryland Uniform Contribution Among Tortfeasors Act] based upon a previous default judgment entered against third-party defendant, Babcock and Wilcox (“B & W”)? I. PROCEDURAL BACKGROUND Five asbestos-related personal injury claims were tried jointly in the Circuit Court for Baltimore City. The plaintiffs were John Gianotti and his wife, Shirley, along with the personal representatives and widows of Harry Cook, Sr.; Aristide Nardone; Donald R. Schrader; and George E. Worthen.

In each case the actions were brought against numerous defendants, including Owens-Illinois and ACandS, Inc. The plaintiffs claimed damages for the development of mesothelioma, which resulted from asbestos exposure. At the time the cases were submitted to the jury, ACandS was defending all five cases, but Owens-Illinois was defending only the Gianotti case. The jury returned verdicts against Owens-Illinois and ACandS in the Gianotti case, awarding Mr. Gianotti $5,500,000 in damages, and Mr. and Mrs. Gianotti $1,000,000 (jointly) for loss of consortium. Judgments were also entered against ACandS in the four other cases.

As a result of post-trial proceedings, the court entered judgments on November 1, 2000. The judgments in favor of the Gianottis were reduced by the pro rata releases of adjudicated joint tort-feasors, and a default judgment against Babcock and Wilcox Company, a third-party defendant in the Gianotti case. Reductions were also made pursuant to confirmed plans of reorganization of several bankrupt defendants. In pertinent part, the court ultimately entered judgments as follows: ⁴⁶⁷ Gianotti Case as to ACandS and Owens-Illinois Jointly $1,050,499.71 John Gianotti 175,653.74 John & Shirley Gianotti for loss of consortium Post-judgment motions were filed by ACandS and Owens-Illinois.

Those motions included ACandS’s and Owens-Illinois’s motions for JNOV and for a partial new trial, which were denied on January 9, 2001. Appeals were filed by ACandS and Owens-Illinois. A timely cross-appeal was then filed by the plaintiffs in the Cook, Nardone, and Gianotti cases. Subsequent to oral argument before us, ACandS settled with the plaintiffs and dismissed its appeal.

II

ISSUES RESOLVED BY THE SCRIBNER DECISION Owens-Illinois contends that the trial judge erred by denying their motions for judgment as to the cap issue, as well as their later post-trial motions. According to Owens-Illinois, those motions should have been granted because (a) the Gianottis failed to prove that their claims “arose” before July 1, 1986, and (b) the court wrongfully allowed counsel for the Gianottis to introduce expert testimony and to argue to the jury that the Gianottis’ injuries “arose” prior to July 1, 1986. The law applicable to appeals is that existing at the time the case is decided. See American Trucking Associations, Inc. v. Goldstein, 312 Md. 583, 591 , 541 A.2d 955 (1988).

The brief of Owens-Illinois, as well as the amicus brief filed by the Maryland Defense Council, Inc., were well-researched and their arguments were persuasively presented. Unfortunately, those briefs were filed several months before June 13, 2002 — the date the Scribner case was decided. Although the jury in the case at hand decided that Mr. Gianotti was injured prior to July 1, 1986, it was unnecessary for the jury to even consider that issue because it was undisputed that the last date of asbestos exposure of Mr. Gianotti was before July 1, 1986. Applying the dictates of the Scribner case to the facts of this case, the plaintiffs met their burden of proof as to the cap issue.

No evidentiary ruling ⁴⁶⁸ concerning expert testimony as it related to the issue of when the worker’s injury arose could possibly have prejudiced Owens-Illinois because, under Scribner , the cap statute was inapplicable as a matter of law. See Bradley v. Hazard Technology Co., 340 Md. 202, 206 , 665 A.2d 1050 (1995) (explaining that to succeed on appeal, the appellant must show not only error but must show, as well, that prejudice resulted from that error.) III. Did the Trial Court Abuse Its Discretion in Denying Owens-Illinois’s Motion for Mistrial? Section ll-108(d) of the Courts and Judicial Proceedings Article, which is a part of the cap statute, provides that “the jury may not be informed of the limitation [on noneconomic damages] imposed by subsection (b)” of section 11-108.

After a two and one-half week trial, counsel for the Gianottis, in closing argument, made the following remarks: Ask yourselves if he [expert called by the defendants] is qualified, first of all, to render that opinion, and if he can render the opinion without knowing something about when the disease occurred in these fellows’ cases. And by that I mean when it was diagnosed and when the symptoms first appeared. He didn’t know any of that, but the opinion was still offered. Now, the testimony about the cap, about the 1986 date— (Emphasis added.) Immediately after the mention of the word “cap,” counsel for Owens-Illinois, Ms. Tostanoski, objected.

Counsel then approached the bench and the following exchange occurred: THE COURT: You can’t mention that. MR. FLERLAGE [PLAINTIFFS’ COUNSEL]: I know. MS.

TOSTANOSKI: Your Honor, I move for mistrial. I am serious. ⁴⁶⁹ MR. FLERLAGE: I think that can be cured with an instruction, if you think it is necessary at all, because they don’t know what a cap is. MS.

TOSTANOSKI: Of course, they know what a cap is. Of course, they know. There are salary caps on sports teams, and there is no way they don’t know what a cap is, Judge. What they don’t know is that they have no idea why they are making this decision.

Mr. Flerlage is telling them they are making a finding of fact for Your Honor to make a decision, and now he had told them about a cap. It is prejudicial. There is no way that can be corrected. MS.

TOSTANOSKI: The statute is clear that a jury can never be told about that. THE COURT: Well, it wasn’t told about it. MS. TOSTANOSKI: Of course, they were.

MR. FLERLAGE: I don’t think it does any good at this point to highlight whatever the jury does perceive from that. THE COURT: Such an experienced lawyer. I am not going to rule on it.

I am going to hold [sub curia ] the motion for mistrial. The next morning, after deliberations had begun, the jury sent the trial judge a note that read: “Is [sic] are there any caps as to the amounts given by law?” The court answered: “That is no concern. You do not even consider, deliberate, or talk about whether there is or is not a cap. Okay?” Post trial, Owens-Illinois moved for a partial new trial concerning the application of the damage cap because of plaintiffs’ counsel’s “violation” of the cap statute.

Owens-Illinois, alternatively, asked the trial court to grant the mistrial, which it had held sub curia. The trial judge denied the motions. Among his reasons for doing so were the following: ⁴⁷⁰ The trial was two and a half weeks, and at the end of the entire trial, at the end, really, almost of the closing argument, ... counsel said one word, “cap.” Now, it’s interesting, and I’m glad that counsel did play back the tape, because when you listen to that, you really saw two things. I have been convinced that one is, it was almost difficult to hear what it was that Mr. Flerlage said.

The second thing, and more importantly, is it’s clear he misspoke. It was clearly a blurt on his part. And I add to that, I put into the equation when I make that statement, I guess you got to know the people you’re dealing with. I’ve said this before to all of you.

I think that the lawyers, by and large, who are involved in the asbestos litigation are really some of the best litigators at the Maryland bar, and Mr. Flerlage was the one who took part in the case before me that went for some nine months, and during that period of time, he’s certainly a hard litigator, and wants to represent his side well, but he never did anything unethical or improper during that period of time. And during that long case, whenever I set a ground rule, he followed what I said. So I say all of that, because if I thought that a lawyer had deliberately said “cap” to gain some edge, I wouldn’t hesitate in granting the defense motion, but I’m convinced that that was not the case. I am convinced that that did not deprive the defense, the defendants, of a fair trial in this case, and I think it is significant how the jury acted with regard to the cross-claim, because frankly, after that argument the plaintiffs made to the jury, I almost thought they were going to come back and find that none of the cross-defendants were negligent, but they didn’t.

They found what — they followed the instructions, and I have to assume that they also followed the instruction that I gave them, to not pay attention to the cap. They’re not just following my instructions on one item and not on another item. ⁴⁷¹ I think that, in sum, that one word did not deprive the defendants of a fair trial, and I think that the jury did follow the instructions that I gave them. Owens-Illinois now argues that “[bjecause counsel violated § 11 — 108(d)(1), the trial court committed reversible error in denying [djefendants’ motion for mistrial and for partial new trial.” We will first address the issue of whether Owens-Illinois is entitled to a partial new trial. In light of the Court’s holding in Scribner, supra, it is clear that appellant was not entitled to a partial new trial on the cap issue.

Under the rule established in Scribner , trial as to the cap issue was not warranted in the first place. The issue of whether a mistrial should have been granted, however, presents a somewhat more complex issue. We note at the outset that appellant is technically inaccurate when it claims that appellees’ counsel “violated section 11 — 108(d)(1).” That subsection only prohibits the jury from being told the various limits on noneconomic damage recovery set forth in section 11 — 108(b). This distinction was recognized by the trial judge in the discussion at the bench immediately after the word “cap” was used in closing argument.

Nevertheless, as the trial judge recognized, the jury should not have considered, in any way, whether Maryland had a cap on damages, and counsel for the Gianottis should not have mentioned the cap statute at all in his closing argument. The question then becomes whether the remark of plaintiffs’ counsel denied Owens-Illinois a fair trial. Owens-Illinois argues: The jury’s concern about legal limits on damages could have harmed [djefendants -in two ways. First, the jury could have inflated the award to assure that any upper limit on recovery was met.

Second, it could have exercised its factfinding role to subvert the legislative policy of limiting awards. Given the statutory prohibition of letting a jury consider either of those questions, the fact that this jury considered those matters is sufficient to make the denial of the mistrial reversible. ⁴⁷² Because counsel violated § 11 — 108(d)(1), the trial court committed reversible error in denying [defendants’ motions for mistrial and for partial new trial.... We disagree with appellant’s assertion that if a juror knows that there is a statutory cap on damages, but does not know the amount of the cap, then the juror would likely inflate the verdict to be sure that “the upper limits” of recovery are met. We can see no reason why a juror would agree to a damage figure higher than what he or she thinks is deserved for the purpose of insuring that the amount awarded is the most that is statutorily allowable.

We interpret Owens-Illinois’s argument that knowledge that the statutory cap exists might encourage one or more jurors to exercise its fact-finding role “to subvert the legislative policy of limiting awards” to mean that it contends that if a juror knew that the cap was inapplicable to injuries that arose prior to July 1, 1986, this would encourage jurors to “subvert” the legislative intent to limit noneconomic damage awards by finding that the injury did arise before the effective date of the statute. If a juror were to combine what plaintiffs’ counsel said about the “cap” with the fact that plaintiffs’ counsel argued so vigorously that the injury arose prior to July 1, 1986, it is entirely possible that one or more jurors might infer that no cap would apply if the jurors determine that the worker’s injuries occurred prior to July 1, 1986. Therefore, we agree with Owens-Illinois that if the jury disregarded the court’s instruction it is possible that the mention of the “cap” may have influenced the jurors’ vote concerning the issue of whether the injury occurred before or after July 1, 1986. But even if that vote was affected, the appellant was not unfairly prejudiced because, applying Scribner , the cap statute was inapplicable as a matter of law.

The major danger that is present when a juror in a personal injury case knows that there is a statutory limit on non-economic damages is that a juror, who does not agree with a fellow juror’s inflated estimate of damages, might nevertheless acquiesce in what he or she believes is an excessive verdict ⁴⁷³ based on the belief that the verdict will be reduced by a statutory cap. That danger, however, is much less in a case like this one in which the jury was not told of the amount of the cap. Moreover, in this case, the trial judge’s answers to the jury note, if the jury obeyed it, completely eliminated that potential source of prejudice. Owens-Illinois argues that the type of prejudice involved in this case simply could not be erased by a curative instruction.

According to appellant, the subject case is closely analogous to that of Morris v. Weddington, 320 Md. 674 , 579 A.2d 762 (1990). In Morris , a child of three was injured when he was struck by a van driven by William Weddington. Id. at 675 , 579 A.2d 762 . The child required surgery and subsequent medical treatment, and his leg was required to be kept in a cast for a total of twelve weeks.

Id. The child’s mother sued Weddington individually and on behalf of her child for negligence in operating the van. Id. At trial, one of Weddington’s key witnesses, in reply to a question by defense counsel, said that he had been told that Weddington “did not have insurance.” Id. at 676 , 579 A.2d 762 .

Plaintiffs counsel moved for a mistrial, but the motion was denied. Id. Later in the trial, a juror submitted a written question to the court, which read: [T]he plaintiffs attorney made reference to the possible fact that the defendant was not insured to drive the van. I remember that this question was not allowed.

I think if this fact ends up having bearing on our damages judgment, perhaps we should check the court record to be sure about this fact; that is, is the question admissible or not. Id. at 677 , 579 A.2d 762 . The trial judge brought the juror who had written the note, along with the foreman who had read it, into his chambers and told the two that whether or not Weddington had insurance (or other assets) had “no bearing on the issues in this case.” Id. ⁴⁷⁴ Despite the court’s admonition, the jury thereafter propounded three additional questions relating to insurance coverage, viz: (1) whether a health insurance carrier had paid any portion of [the child’s] medical expenses, (2) whether, if the jury found Weddington negligent, the insurance company would be able to recover its payment from him, and (3) whether [the child’s mother] must reimburse the insurance carrier for any medical expenses awarded her. Id. at 677 , 579 A.2d 762 .

The trial judge responded to the questions by telling the jurors: None of the questions asked by you are issues in this case. You are only to decide whether or not the defendant was or was not negligent. If he was negligent, then you are to decide what, if any, damages [the child’s mother] sustained and what, if any, damages the minor child sustained. Id. at 677-78 , 579 A.2d 762 .

The jury returned a verdict in which it awarded the child’s mother $7,033.45 for the medical expenses incurred as a result of the accident but awarded no damages to the minor child. Id. at 678 , 579 A.2d 762 . After the judge instructed the jury that if they found for the child, they must award him at least one dollar in damages, the jury retired and returned a verdict in favor of the child in the amount of $1,000, together with an award in favor of his mother in the same amount as previously announced. Id.

In Morris , the Court of Appeals held that the trial judge committed reversible error in failing to grant a mistrial based on the witness’s statement that he had heard that Weddington was uninsured. Id. at 681-82 , 579 A.2d 762 . The Court explained that the evil inherent in hearing such testimony is that, if the jury believes that insurance coverage is nonexistent, it may limit the award to what it believes the defendant can personally afford regardless of the actual damages proved. Id. at 681 , 579 A.2d 762 (citing McCormick Evidence § 201 (3d ed. 1984)).

In setting forth its reasons for ⁴⁷⁵ reversal, the Court stressed the fact that the verdict was well below the damages amount established by the plaintiffs. Moreover, it was clear to the Court from the questions that were later asked by the jury “that insurance, or the lack thereof, was a primary factor in the jury’s consideration of the award.” Id. In the case at hand, appellant asserts that Morris is on point because, during deliberations, the jury sent the judge a note concerning the cap. There is no way to know with absolute certainty whether the jury note was precipitated by appellees’ counsel’s mention of the cap.

There is, however, at least a substantial possibility that the jury note was unconnected with the improper remark by counsel. This is made evident by the following colloquy, which took place immediately after the note was received: MS. TOSTANOSKI [COUNSEL FOR OWENS-ILLINOIS]: Judge, I think what could be happening is, I don’t know whether Your Honor is aware, but today in Annapolis is the hearing on the repeal of the cap, and I think it has gotten some publicity. THE COURT: I didn’t see anything.

I read the morning paper. Did anybody see anything? MR. SHELLENBERGER [ANOTHER OF PLAINTIFFS’COUNSEL]: No. MS.

TOSTANOSKI: It was in the Daily Record, the Baltimore Business Journal. I think it was on WBAL radio this morning. I have somebody checking all the websites, but there is a hearing today, and that was one of my major concerns about it. THE COURT: The answer is, of course, it is no concern of theirs.

They are not even supposed to consider that. Immediately after this dialogue, the trial judge told the jury not to consider whether a “cap” existed. ⁴⁷⁶ There is a presumption that jurors understand and follow the court’s instructions. Ezenwa v. State, 82 Md.App. 489, 518 , 572 A.2d 1101 (1990). More specifically, [w]hen curative instructions are given, it is generally presumed that the jury can and will follow them.

Brooks v. State, 68 Md.App. 604, 613 , 515 A.2d 225 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987). Furthermore, the trial judge is in the best position to determine whether his instruction achieved the desired curative effect on the jury. Myers v. State, 58 Md.App. 211, 228-29 , 472 A.2d 1027 , cert. denied, 300 Md. 484 , 479 A.2d 373 (1984). Carter v. State, 80 Md.App. 686, 691 , 566 A.2d 131 (1989).

In Morris , there was evidence that the jury did not follow the judge’s curative instruction. In the words of the Morris Court, the amount of damages awarded tended “to demonstrate the influence that the issue of insurance had on the jury.” Id. at 681 , 579 A.2d 762 . Moreover, the fact that persons on the Morris jury repeatedly wrote notes concerning insurance, reasonably could be interpreted as indicating that the court’s instruction may not have had its intended effect. By contrast, in the instant case, there was only one note from the jury concerning the issue of the “cap,” and as Owens-Illinois’s counsel said at trial, that note may have been generated by media discussion of the cap statute rather than by what plaintiffs’ counsel said in closing argument.

Morris is one of the few reported cases in this State where an appellate court has held that the trial court abused its discretion in denying a motion for mistrial. “[T]he declaration of a mistrial is an extraordinary act which should only be granted if necessary to serve the ends of justice.” Hunt v. State, 321 Md. 387, 422 , 583 A.2d 218 (1990). A trial judge is given broad discretion in determining whether a motion for mistrial should be granted. Vandegrift v. State, 82 Md.App. 617, 635 , 573 A.2d 56 (1990). “The most significant guideline for the exercise of the trial judge’s discretion is that a mistrial is to be declared only where it is ‘manifestly necessary,’ or ‘under urgent circumstances,’ or ‘only in very extraordinary ⁴⁷⁷ and striking circumstances,’ and declaring a mistrial is not ‘to be lightly undertaken.’ ” Cornish v. State, 272 Md. 312, 318 , 322 A.2d 880 (1974) (quoting United States v. Perez, 9 Wheat. 579 , 22 U.S. 579, 580 , 6 L.Ed. 165 (1824)). The core reason for granting such broad discretion to the trial judge in this area is that the judge, who hears the entire case, can best weigh the danger of prejudice arising from improper conduct by counsel or witnesses.

And the trial judge is in a far better position than an appellate court “to determine if the extraordinary remedy of a mistrial is appropriate.” Hunt, 321 Md. at 422 , 583 A.2d 218 . Put another way, The judge is physically on the scene, able to observe matters not usually reflected in a cold record. The judge is able to ascertain the demeanor of the witnesses and to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his finger on the pulse of the trial.

State v. Hawkins, 326 Md. 270, 278 , 604 A.2d 489 (1992). In reviewing the exercise of this discretion, “the trial judge’s decision denying a mistrial will not be disturbed on appeal unless there has been a clear showing of prejudice to defendant,” Vandegrift, 82 Md.App. at 635 , 573 A.2d 56 . See also Hunt, 321 Md. at 422 , 583 A.2d 218 (citing Johnson v. State, 303 Md. 487, 516 , 495 A.2d 1 (1985)). We discussed what constitutes an abuse of discretion in Das v. Das, 133 Md.App. 1 , 754 A.2d 441 (2000): Abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court,” or when the court acts “without reference to any guiding rules or principles.” It has also been said to exist when the ruling under consideration “appears to have been made on untenable grounds,” when the ruling is “clearly against the logic and effect of facts and inferences before the court,” when the ruling is “clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result,” when the ruling ⁴⁷⁸ is “violative of fact and logic,” or when it constitutes an “untenable judicial act that defies reason and works an injustice.” We will not reverse a ruling we review under the abuse of discretion standard simply because we would have made a different ruling had we been sitting as trial judges.

Instead, “[t]he real question is whether justice has not been done,” and the judgment will be reversed only if “there is a grave reason for doing so.” Id. at 15-16 , 754 A.2d 441 (citations omitted). Owens-Illinois has failed to meet its burden of showing that a mistrial was “manifestly necessary” or that due to counsel’s remarks “urgent circumstances” existed that required the grant of a mistrial. Cornish, 272 Md. at 318 , 322 A.2d 880 . Here, the trial judge did not believe that the defendants suffered prejudice.

IV

THE RELEASE SIGNED BY JOHN AND SHIRLEY GIANOTTI ON JULY 8, 1994 John Gianotti was last exposed to asbestos in 1974, when he was 32 years old. Mr. Gianotti was diagnosed as having an asbestos lung disease (asbestosis) in August 1985. On June 12, 1986, the Gianottis married. The Gianottis, in 1987, filed suit in the Circuit Court for Baltimore City against Owens-Illinois and many other defendants.

Owens-Illinois reached a settlement with the Gianottis, and on July 8, 1994, the Gianottis executed a document entitled “Release and Settlement of Claim” (“Release”), in which the Gianottis released Owens Illinois from the “claim that JOHN GIANOTTI [h]as contracted the disease known as asbestosis, ...” The Release continues, It is the specific intent of this release to release and discharge [Owens-Illinois] for any and all further claims relating to the matters for which recovery was sought in the Circuit Court for Baltimore County, Case Number 87CG3549/45/19, including any and all claims made in the Complaint, Answers to Interrogatories, depositions, reports of medical experts prepared at the request of me/us and/or my/our attorneys, and opinions rendered concerning the ⁴⁷⁹ medical condition of JOHN GIANOTTI by experts retained by me/us and/or my/our attorneys, regardless of the future progression or course of the medical conditions alleged to exist therein, including death resulting from that/those conditions (all such claims are hereafter referred to as the “existing lawsuit”). As can be seen, under the just-quoted portion of the Release, Mr. and Mrs. Gianotti released Owens-Illinois from any claims for personal injury, loss of consortium and/or death resulting from “asbestos lung disease” and/or “asbestos-related disease.” Notwithstanding the aforementioned broad language, the Release goes on to restrict the terms of the general release provision by providing: It is not the intent of this release, and I/we specifically do not, release claims for cancer, mesothelioma and or other malignancies or death resulting from cancer, mesothelioma or other malignancies not alleged or described in the existing lawsuit allegedly resulting or to result from JOHN GIANOTTI’s exposure to asbestos (hereinafter described as “future disease ”). (Emphasis added.) Later in the Release, the parties agreed that Owens-Illinois retained the right to defend itself against claims for “any future disease that may occur.” That part of the Release was worded as follows: [Owens-Illinois], by making payment herein and agreeing to the form and content of this Release, [is] likewise not admitting or conceding any liability for any future disease that may occur, nor [is it] estopped in the future on any grounds to contest [its] liability therefore, and neither settlement, payment nor existence of this Release may be used against [Owens-Illinois] in any way to attempt to prove liability or fault for any future disease. (Emphasis added.) In March 1999, nearly thirteen years after signing the Release, Mr. Gianotti was first diagnosed with mesothelioma.

Owens-Illinois, relying on the language in the Release, argues: ⁴⁸⁰ A mesothelioma that is a “future disease” is, by definition, one that has not yet “com[e] into being.” And if the parties agreed that Mr. Gianotti’s mesothelioma had not “come into being” as of July 8, 1994, then [plaintiffs’ personal injury and loss of consortium causes of action for mesothelioma arose or came into being after July 1, 1986, and any personal injury/loss of consortium damages recoverable from that mesothelioma are therefore subject to the cap [statute]. The validity of this argument is based on the premise that the parties agreed in the Release that Mr. Gianotti’s mesothelioma had not “come into being” as of July 8, 1994. We reject that premise-as did the trial judge. It is clear that, when the parties to the Release used the parenthetical phrase “hereinafter described as ‘future disease,’ ” they used it simply as shorthand to denote what claims that were not being released.

Three categories of claims were not being released, viz, claims for “(1) cancer, (2) mesothelioma, (3) other malignancies or death resulting from cancer, mesothelioma, or other malignancies not alleged or described in the existing law suit ... resulting or to result from John Gianotti’s exposure to asbestos.” Appellees’ present claims come within the second category. We therefore are in full accord with the following argument made by appellees, viz: The term “future disease” was simply language of convenience designated by [Owens-Illinois] to identify the reservation of any mesothelioma claim. It is obvious that [Owens-Illinois] could have selected any word to be a proxy for the wording of the reservation including “cancer claim,” “reserved claim,” etc. The fact that the word “future” was used could not and did not negate the right of Mr. Gianotti to proceed upon a mesothelioma cause of action in the future. 2 As an alternative argument, Owens-Illinois says: ⁴⁸¹ If this Court refuses to uphold the parties’ agreement that Mr. Gianotti’s mesothelioma was a future disease as of the date the Release was signed, then [pjlaintiffs release[d] their mesothelioma claim against Owens-Illinois. This is because the Release is a general release that releases all claims for which recovery was sought in ... [the subject case].

Owens-Illinois goes on to argue that “the only exception to this general release language concerns a ‘future disease.’ ” According to Owens-Illinois, if we decide that the parties did not agree that Mr. Gianotti’s mesothelioma was a “future disease” then that disease was released. Our answer to that contention is similar to our earlier one. Under a plain reading of the Release, the term “future disease” was used as merely a shorthand to describe three separate categories of claims that were not being released. And one of the categories of claims that was not being released was a claim for mesothelioma.

The trial court did not err in its interpretation of the Gianotti Release. V. THE GIANOTTIS LOSS OF CONSORTIUM CLAIM As noted earlier, the Gianottis were married about two weeks before the cap statute became effective. They married approximately one year after Mr. Gianotti was diagnosed with asbestosis and approximately twelve years after he was last exposed to asbestos fibers. Mr. Gianotti first experienced symptoms associated with mesothelioma almost thirteen years after his marriage.

In Oaks v. Connors, 339 Md. 24 , 660 A.2d 423 (1995), the Court held that a loss of consortium claim by the marital unit was derivative of the personal injury claim of the physically injured spouse. Id. at 38 , 660 A.2d 423 . The Court held in Owens-Illinois v. Armstrong, 326 Md. 107 , 604 A.2d 47 (1992), that a cause of action arises for purposes of the cap statute ⁴⁸² “when facts exist to support each element” of the cause of action, with the fact of injury being the last element to come into existence. Id. at 121 , 604 A.2d 47 .

The Armstrong Court defined the injury element as requiring legally compensable harm that would form a basis of recovery by a plaintiff. And, as the Court of Appeals held in Scribner , a cell change, which occurs shortly after inhalation of asbestos and ultimately causes mesothelioma, is a compensable injury. In Grimshaw, supra, we affirmed the circuit court’s judgment that the cap statute was inapplicable because the workers who inhaled asbestos were injured before July 1, 1986. The question next addressed was when did the claim for loss of consortium arise — for purposes of applying the cap statute.

The Grimshaw Court said: In the case at bar, each plaintiff exposed to asbestos' suffered personal injury when he or she developed mesothelioma, which was prior to 1986. It is true, however, that some of the harm plaintiffs suffered as a result of those personal injuries, i.e., loss of consortium, did not occur until after the effective date of the statute.... Although plaintiffs continued to suffer damages, as a result of their personal injuries, after the effective date of the statute, as in Oaks , the cause of action arose prior to the effective date. Oxtoby, 294 Md. at 97, 447 A.2d 860 (the fact that some of the monetary compensation sought was for harm arising after the effective date, did not make the statute applicable when the cause of action arose prior to the effective date); see also Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549 , 429 A.2d 538 (1981); Dennis v. Blanchfield, 48 Md.App. 325 , 428 A.2d 80 (1981), modified, 292 Md. 319 , 438 A.2d 1330 (1982) (both these cases stand for the proposition that a medical injury occurs, within the meaning of the effective date clause, even though all of the resulting damage to the patient has not been suffered prior to the Act’s effective date).

Therefore, we conclude that appellees’ claims for damages resulting from their personal injuries, including damages for loss of consortium, arose prior to the effective date of the ⁴⁸³ statute and, therefore, are not subject to the statutory cap.... Grimshaw, 115 Md.App. at 166-67 , 692 A.2d 5 . Thus, under the Grimshaw holding, a cause of action for loss of consortium (for purposes of the cap statute) arises at the same time as does the worker’s personal injury action. 3 ⁴⁸⁴ And, for purposes of the cap statute, Mr. Gianotti’s cause of action for mesothelioma “arose” (as opposed to “accrued”) about twelve years before he married Shirley Gianotti. In Gillespie-Linton v. Miles, 58 Md.App. at 496, 473 A.2d 947 , we said: [W]e agree with the reasoning of the Supreme Judicial Court of Maine in Sawyer v. Bailey, 413 A.2d 165, 167 (Me.1980) (citations omitted): The general rule is that no person has a right of action against a wrongdoer, unless that person is personally injured.

The cause of action accrues, generally, when the tort is committed. ... When the alleged antenuptial tort was committed by the defendant against the woman plaintiff, the man plaintiff suffered no injury, because he possessed no marital right at that time, never having assumed any marital obligations. When Daniel Sawyer later took Lynn Jackson as his lawful wedded wife, he took her for better or for worse in her then existing health, voluntarily taking into himself any marital deprivation that might result from his wife’s premarital injury. (Emphasis added.) See also Rockstroh v. A.H. Robins Co., 602 F.Supp. 1259, 1269 (D.Md.1985) (“It appears to be universally held that, in order to maintain a valid cause of action for loss of consortium, the parties must be married at the time of ⁴⁸⁵ injury.”).

Charles Plovanich, in his Annotation, Recovery for Loss of Consortium, for Injury Occurring Prior to Marriage, 5 A.L.R.4th 300 , 301 (1981), sums up the rule as follows: In general, courts have denied recovery for loss of consortium where the injury occurs before the marriage. Frequently observing that the right of consortium grows out of the marital relationship, these courts have refused to allow recovery for loss of consortium on the ground that the respective spouses were not married at the time of the injury. No Maryland appellate case has decided the issue of whether the general rule (that no loss of consortium claim exists for an ante-nuptial tort) applies in cases where, at the time of the marriage, the injury to the spouse is latent and therefore has not been, and could not have been, reasonably discovered prior to the marriage. In the case of Consorti v. Owens-Coming Fiberglas, 86 N.Y.2d 449 , 634 N.Y.S.2d 18 , 657 N.E.2d 1301 (1995), the New York Court of Appeals answered a certified question from the U.S. Court of Appeals for the Second Circuit, viz: “Whether a cause of action lies for loss of consortium where, prior to the marriage, the plaintiff spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage.” Id. at 18, 657 N.E.2d at 1301 .

The applicable rule in New York, according to the Consorti decision, was that for statute of limitations purposes, a cause of action accrues upon the introduction of the toxic substance into the body, i.e., prior to the discovery of the injury. Id. at 18, 657 N.E.2d at 1302-03 . 4 ⁴⁸⁶ The injured worker in Consorti was exposed to asbestos between 1960 and 1970; he married in 1976 and was diagnosed with mesothelioma in 1992. Id. at 18, 657 N.E.2d at 1301 . The New York Court of Appeals answered the certified question in the negative.

Id. at 18,