Owens-Illinois, Inc. v. Hunter

DAVIS, J. In the Circuit Court for Baltimore City, Harry Hunter and his wife Barbara Hunter sued Owens-Illinois, Inc., alleging that the company was responsible for Mr. Hunter’s development of mesothelioma after he was exposed to asbestos almost fifty years earlier. Mr. Hunter died two months after his complaint was filed. 1 After the jury awarded the plaintiffs a multi-million dollar verdict, the trial court granted Owens-Illinois’s motions for remittitur and to apply Maryland’s statu ³⁸⁸ tory cap on noneconomic damages to the wrongful death damages award. Owens-Illinois noted this appeal and presents three questions for our review, which we have rephrased: I. Did the circuit court err in concluding that the Hunters produced sufficient evidence to prove Mr. Hunter’s exposure to Owens-Illinois’s asbestos product?

II

Did the circuit court err in concluding that, because the Hunters’ loss of consortium claim arose before the enactment of Maryland’s noneconomic damages cap, the cap did not apply to their loss of consortium claim?

III

Did the circuit court err in concluding that the Hunters’ loss of consortium claim was not barred as a matter of law because Mr. Hunter had been exposed to asbestos before the Hunters married? Ms. Hunter noted a cross-appeal, and presents the following two questions, which we also rephrase: IV. Did the circuit court err in granting Owens-Illinois’s motion for remittitur of the loss of consortium damages? V. Did the circuit court err in applying the noneconomic damages cap to the wrongful death count?

We conclude that the circuit court did not err in any of these respects. Therefore, we shall affirm the judgment. FACTUAL BACKGROUND This case began almost fifty years ago at the United States Coast Guard’s shipyard (the Yard) located at Curtis Bay, in south Baltimore, Maryland. From July 23 to September 10, 1956, between his junior and senior years of college, Mr. Hunter worked as an electrician’s helper at the Yard for a total of thirty-three days.

Before his death, Mr. Hunter testified by videotape that military ships were refurbished at the Yard when he worked there. The plaintiffs alleged that, while working at the Yard, Mr. Hunter was exposed to asbestos dust from Kaylo, a pipe-covering product manufactured by Owens-Illinois. Shortly after his work at the Yard, ³⁸⁹ the Hunters married in 1960. His mesothelioma was not diagnosed until 2001, the year he died.

At trial, only one witness testified that Mr. Hunter was exposed to asbestos at the Yard. William Edwards worked at the Yard as one of the electricians to whom helpers were assigned. Based on a photograph provided by the Hunters’ counsel, Edwards testified that he recognized Mr. Hunter by face, but not by name. Edwards also testified that, although Mr. Hunter never worked as his helper, he remembered seeing Mr. Hunter working at the Yard in the 1950s.

Edwards was 79 years old when he testified. He had trouble remembering the exact name of Owens-Illinois’s product, but he testified that he saw the name on boxes of the product. He called the pipe-covering “Kayo,” but its proper name was Kaylo. Regarding Mr. Hunter’s exposure to asbestos dust from Kaylo, Edwards testified: [Plaintiffs’ counsel]: [W]hen this pipe covering was cut, what, if anything, did you see in the air? [Edwards]: Oh, a lot of — a lot of stuff flying around. [Plaintiffs’ counsel]: And how long a period of time was the gentleman in the — do you recall the gentleman in the picture being at the Coast Guard Yard in the mid '50s? [Edwards]: Well, I don’t think he was there long, something like three or four months at the most. [Plaintiffs’ counsel]: Okay.

And how often would you see him in the dust from the Kayo you have described? [Defense counsel]: Objection. THE COURT: Overruled. [Edwards]: I would say it was quite often. [Plaintiffs’ counsel]: What type of ventilation was there in the ship, sir? [Edwards]: Well, we had the ventilation off on the ship. [Plaintiffs’ counsel]: The ventilation was off? [Edwards]: Yes. [Plaintiffs’ counsel]: Okay. ³⁹⁰ [Edwards]: Sometimes it would be on, too. And whenever it was on, it [blew] it all over. [Plaintiffs’ counsel]: What would blow all over? [Edwards]: [The] asbestos. [Plaintiffs’ counsel]: Okay, and from your observation, where would the asbestos dust go from the Kayo product you described? [Edwards]: Right on the deck, lie right on the deck, right on the people. [Plaintiffs’ counsel]: And how often did you see the ... gentleman in the picture around the dust from the Kayo? [Defense counsel]: Objection. He already answered. [Edwards]: Whenever— THE COURT: Just a minute.

Sustained. [Plaintiffs’ counsel]: I apologize if I already asked that. Additionally, Ms. Hunter, who was dating Mr. Hunter at the time, testified that she remembered Mr. Hunter leaving work at the Yard with his clothes covered in “a whitish gray dust.” She added that the dust also accumulated in Mr. Hunter’s car. The jury found Owens-Illinois liable for Mr. Hunter’s asbestos exposure. In Mr. Hunter’s survival action, his estate was awarded $10,000 in noneconomic damages for his personal injury, as well as compensatory damages of $5,000 for household services, and medical and funeral expenses of $57,503.43.

The Hunters were awarded $2 million in noneconomic damages for their loss of consortium claim. Ms. Hunter was awarded $4.3 million in noneconomic damages, and a total of $81,529 in compensatory damages, for Mr. Hunter’s wrongful death. In addition to Owens-Illinois’s motion for judgment notwithstanding the verdict, which was denied, the company sought remittitur of the $2 million loss of consortium damages. The trial judge found a gross disparity between the damages awarded for Mr. Hunter’s personal injury in the survival action and the damages awarded to the couple for loss of consortium.

On that basis, the judge granted the motion for ³⁹¹ remittitur, requiring the plaintiffs to agree to remit $1 million of the loss of consortium damages, or to face a new trial. The plaintiffs agreed to the remittitur. Thereafter, Owens-Illinois noted this appeal, and Ms. Hunter noted her cross-appeal. LEGAL ANALYSIS We first review the circuit court’s denial of Owens-Illinois’s motion for judgment notwithstanding the verdict, filed under Maryland Rule 2-532.

In reviewing the court’s decision, “we must view the evidence and the reasonable inferences therefrom in the light most favorable to” the Hunters, and “[i]f there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then we must affirm the jury’s verdict on that issue.” Owens-Corning v. Walatka, 125 Md.App. 313, 342 , 725 A.2d 579 (1999), overruled on other grounds by John Crane, Inc. v. Scribner, 369 Md. 369, 383-90 , 800 A.2d 727 (2002). I Owens-Illinois first argues that the Hunters failed to satisfy their burden, under Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179 , 604 A.2d 445 (1992), of proving that Owens-Illinois substantially contributed to Mr. Hunter’s death by showing that he had been subjected to a sufficient level of asbestos exposure. Under the analytical framework described in Balbos , Mr. Hunter is considered a “bystander,” because he was an electrician working in the vicinity of asbestos workers, but he was not directly working with asbestos. Id. at 210 , 604 A.2d 445 .

Balbos set the bystander standard of proof as follows: Whether the exposure of any given bystander to any particular supplier’s product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the work ³⁹² place and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.

In addition, trial courts must consider the evidence presented as to medical causation of the plaintiffs particular disease. Id. at 210-11 , 604 A.2d 445 (citations and quotation marks omitted). This has become known as the “frequent, proximate, and regular” standard, or simply the Balbos standard. See also Georgia-Pacific Corp. v. Pransky, 369 Md. 360 , 800 A.2d 722 (2002) (applying Balbos to an asbestos bystander); Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 526-30 , 682 A.2d 1143 (1996) (same).

Owens-Illinois’s argument, more specifically stated, is that while Edwards testified that Mr. Hunter was exposed “quite often” to asbestos dust, when Edwards’ testimony is considered as a whole, it is so fraught with impossibilities and irreconcilable inconsistencies that, under the Court of Appeals’ holdings in York Motor Express Co. v. State ex rel. Hawk, 195 Md. 525, 534 , 74 A.2d 12 (1950), and Kucharczyk v. State, 235 Md. 334 , 201 A.2d 683 (1964), his testimony was devoid of any probative value. Owens-Illinois asserts that because the Hunters’ “entire ease depends on [Edwards’s] testimony,” once that testimony is discredited, their case fails. The operative principle in York Motor Express is uncomplicated: “[T]he court should disregard any testimony that attempts to establish something physically impossible within common knowledge and experience, or something contrary to indisputable scientific principles or laws of nature within the court’s judicial knowledge.” 195 Md. at 534 , 74 A.2d 12 .

Kucharczyk is somewhat more complex. In Kucharczyk , a mentally retarded sixteen-year-old boy testified at trial that the defendant attempted to rape him. In the course of his testimony, however, the boy also testified ³⁹³ that the man did not try to rape him. The two versions of his testimony were irreconcilably inconsistent on issues central to the case.

Kucharczyk was convicted of assault and battery and argued on appeal that the evidence was insufficient to sustain his conviction. The Court of Appeals agreed, reasoning: [T]he testimony of the prosecuting witness, who was the only person that testified as to any overt act on the part of the appellant, was so contradictory that it lacked probative force and was thus insufficient to support a finding beyond a reasonable doubt of the facts required to be proven. On direct examination the boy twice testified that nothing happened in the public lavatory after the appellant gave him two drinks. On cross examination, he testified that nothing happened in the garage.

Thus there were unqualified statements by the prosecuting witness that the crime for which the appellant was convicted never in fact occurred. Id. at 337-38 , 201 A.2d 683 . The Court then restated what has become known as the Kucharczyk doctrine: “When a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is too inconclusive, contradictory, and uncertain, to be the basis of a legal conclusion.” Id. at 338 , 201 A.2d 683 (quoting Slacum v. Jolley, 153 Md. 343, 351 , 138 A. 244 (1927), overruled on other grounds by Harris v. Bd. of Educ. of Howard County, 375 Md. 21 , 825 A.2d 365 (2003)); see also, e.g., U.S. Fid. & Guar. Co. v. Cont’l Baking Co., 172 Md. 24, 32-34 , 190 A. 768 (1937).

Judge Moylan, writing for this Court in the context of a criminal case, exhaustively discussed the scope of the Kucharczyk doctrine in Bailey v. State, 16 Md.App. 83 , 294 A.2d 123 (1972). We quote here, with citations omitted, the conclusions from his analysis: Despite the limited utility of the doctrine, the life of Ku-charczyk has been amazing for the number of occasions on which and the number of situations in which it has been invoked in vain. Kucharczyk does not apply simply because ³⁹⁴ a witness’s trial testimony is contradicted by other statements which the witness has given out of court or, indeed, in some other trial. Nor does Kucharezyk apply where a witness’s trial testimony contradicts itself as to minor or peripheral details but not as to the core issues of the very occurrence of the corpus delicti or of the criminal agency of the defendant.

Nor does Kucharezyk apply where the testimony of a witness is equivocal, doubtful and enigmatical as to surrounding detail. Nor does Kucharezyk apply where a witness is forgetful as to even major details or testifies as to what may seem improbable conduct. Nor does Kucharezyk apply where a witness is initially hesitant about giving inculpatory testimony but subsequently does inculpate a defendant. Nor does Kucharezyk apply where a witness appears initially to have contradicted himself but later explains or resolves the apparent contradiction.

Nor does Kucharezyk apply where a State’s witness is contradicted by other State’s witnesses. Nor does Kucharezyk apply where a State’s witness is contradicted by defense witnesses. Nor does Kucharezyk apply where a witness does contradict himself upon a critical issue but where there is independent corroboration of the inculpatory version. In each of those situations, our system of jurisprudence places reliance in the fact finder to take contradictions or equivocations properly into account and then to make informed judgment in assessing a witness’s credibility and in weighing that witness’s testimony.

Even in a pure Kucharezyk situation, the ultimate resolution is solely in terms of measuring the legal sufficiency of the State’s total case and not in terms of the exclusion of the contradictory witness’s testimony. Id. at 95-97, 294 A.2d 123 . More recently, the Court of Appeals has suggested that, whatever continuing vitality the Kucharezyk doctrine may have in criminal cases, it seems to be far less applicable in civil cases because the lower standards of proof could tolerate less consistent testimony. Pittman v. Atl.

Realty Co., 359 Md. 513, 547 , 754 A.2d 1030 (2000); see also Lynn McLain, Mary ³⁹⁵ land Evidence § 104:1 at 135-36 (2001). Nevertheless, the Kucharezyk doctrine is the slender reed upon which the substance of Owens-Illinois’s argument relies. Owens-Illinois’s first argument under York Motar Express is that Mr. Hunter “could not possibly have worked on 44-foot sea and rescue craft when production of these boats did not begin until 1963.” Obviously, this is merely a conflict in the evidence, not a physical impossibility within common knowledge and experience, or something contrary to indisputable scientific principles or laws of nature within the court’s judicial knowledge, under York Motor Express. Owens-Illinois adds that “Edwards could not possibly have seen Mr. Hunter around other trades in the engine rooms of the [44-foot-long boats] because those boats did not have engine rooms large enough to house multiple trades.” This is merely another conflict in the evidence, not a physical or scientific impossibility.

Owens-Illinois also argues that Edwards could not have seen or worked around Mr. Hunter in 1956 because “Edwards testified that, in 1956, he worked the second (or 3-11) shift,” while Mr. Hunter “worked the first (or 7-3) shift.” As Ms. Hunter points out, however, Edwards actually testified that he did not exclusively work the second shift throughout his career; when the Yard was busy, the workers alternated first and second shifts on a weekly basis. In any event, Owens-Illinois’s point constitutes yet another conflict in the evidence, not testimony of a physical or scientific impossibility under York Motor Express. Next, Owens-Illinois concludes that “Edwards could not possibly have seen pipecovering he knew specifically to be Kaylo used around Mr. Hunter on any basis, much less on a frequent, proximate, and regular basis.” To the contrary, Edwards testified that he did see Mr. Hunter in Kaylo asbestos dust “quite often.” Owens-Illinois stresses the implausibility of Edwards’s testimony, in light of his concession that Mr. Hunter never worked as his helper, that he never saw boxes of pipe-covering in the ships’ engine rooms, and ³⁹⁶ that the asbestos products produced by different manufacturers were used on all the ships interchangeably. The conflict, however, serves only to discredit or diminish the probative weight to be accorded the evidence, but not render inadmissible Edwards’s testimony.

In sum, Owens-Illinois has not shown any physical or scientific impossibility in the Hunters’ case, as defined under York Motor Express. Next, under Kucharczyk , Owens-Illinois argues that Edwards’s testimony contained a fatal contradiction, in that he said he saw Mr. Hunter exposed to asbestos dust, but “he did not place Mr. Hunter on a specific ship that even had an engine room large enough to house multiple trades.” Owens-Illinois fails to cite to any part of the record to support this argument. It appears to have come from the testimony of Owens-Illinois’s expert witness, Captain Lowell, who testified, regarding the 44-foot boats being discussed, that the boats did “[n]ot really” have an engine room that one “could stand up in.” In any event, Edwards’s failure to specify any particular ship, in conjunction with his assertion that he saw Mr. Hunter exposed to asbestos dust, does not amount to a contradiction under Kucharczyk. Cf.

Slacum, 153 Md. at 351 , 138 A. 244 (For the doctrine to apply, a witness must testify “that a thing is so” and that “it is not so.”). The first statement does not necessarily conflict with the second. Next, Owens-Illinois points out that Edwards “said he never saw boxes of Kaylo pipecovering in the engine rooms of ships.” This observation is (1) not a contradiction, and (2) does not go to the central issue of the case: whether Mr. Hunter was exposed to Kaylo asbestos dust on a frequent, regular, and proximate basis. The fact that Edwards may have seen Kaylo boxes only in dumpsters, and not in engine rooms, does not conflict with — and has little impact upon — his testimony that he saw Mr. Hunter exposed to asbestos dust “quite often.” Finally, Owens-Illinois again refers to Edwards’s concession on cross-examination that, because so many different manufacturers’ products were used at the Yard, one could not deter ³⁹⁷ mine “which of those products happened to be on any given ship at a given time.” This, Owens-Illinois asserts, irreconcilably conflicts with Edwards’s statement that he saw Mr. Hunter exposed to Kaylo asbestos.

To adjudge the issue properly, Edwards’s testimony must be considered in the context in which the jury heard it: [Defense counsel]: [D]o you remember telling us at your deposition that you remembered [another asbestos product called] Mansville because that name was really well known? [Edwards]: Right. [Defense counsel]: And that was a product that was used in great quantities down at the Coast Guard yard? [Edwards]: Uh-huh. [Defense counsel]: Okay. And you also told us about a product — a box that had a rooster on it. Do you remember that? [Edwards]: Right. [Defense counsel]: Okay. And that was a pipe-covering product? [Edwards]: Yes. [Defense counsel]: So we have the Kaylo, we have the Mansville, we have the Armstrong, and we have the box with the rooster on it? [Edwards]: Kaylo had the — had the rooster on it. [Defense counsel]: Kaylo had the rooster on it.

Okay. [Edwards]: [I] might be wrong, but I am saying that. [Defense counsel]: In addition to those four names, were there other pipe-covering products used down at the Coast Guard yard? [Edwards]: Not that I remember. [Defense counsel]: Do you remember a product named Phillip Carey? [Edwards]: No, I don’t. [Defense counsel]: There could have been other products, but you just don’t— ³⁹⁸ [Edwards]: There was a lot of products we had. [Defense counsel]: Okay. And it would be impossible to say which of those products happened to be on any given ship at a given time? [Edwards]: No, sir, not at that time. As Judge Moylan wrote in Bailey , “Trial testimony frequently is replete with contradiction and inconsistencies, major and minor.... It is ... at the very core of the common law trial by jury ... to trust in its fact finders, after full disclosure to them, to assess the credibility of the witnesses and to weigh the impact of their testimony.” 16 Md.App. at 93 , 294 A.2d 123 .

Owens-Illinois’s argument would have us, under the auspices of Kucharczyk , deprive the Hunters of their right to have a jury evaluate and weigh the quoted testimony. We hold that Edwards’s testimony was not so irreconcilably inconsistent as to render it devoid of any probative force. From the quoted testimony, the jury could have reasonably found that, although, as a general proposition, it was impossible to determine which product was used on which ship on any particular day, Edwards nevertheless accurately testified that he saw Mr. Hunter exposed to Kaylo dust “quite often.” Owens-Illinois does not seem to argue (at least, not with particularity), in the alternative, that even if Edwards’s testimony did not run afoul of York Motor Express and Kucharc-zyk, the Hunters’ case still fell short of the Balbos standard. Having waded through the record in conducting the foregoing analysis, we add that it appears that the Hunters’ case did comport with Balbos.

Cf. Garrett, 343 Md. at 529 , 682 A.2d 1143 ; Garlock, Inc. v. Gallagher, 149 Md.App. 189, 210-211 , 814 A.2d 1007 (holding that the “evidence, even if anemic, was worthy of jury consideration”), cert. denied, 374 Md. 359 , 822 A.2d 1224 (2003). II Owens-Illinois contends that the trial judge erred in rejecting its argument that “a loss of consortium claim does ³⁹⁹ not arise until the marriage is negatively impacted.” The company reasons that Maryland’s statutory cap on noneco-nomic damages must apply to the Hunters’ loss of consortium damages because their marriage was negatively impacted only after the effective date of the cap. To be sure, as a result of recent pronouncements by the Court of Appeals, 2 we could summarily dispose of this contention in a paragraph or two.

These recent decisions of the Court of Appeals, however, are the products of a decade-long, arduous and contentious history of litigation during which this Court and the Court of Appeals have resisted the temptation to impinge upon the legislative prerogative in formulating a resolution of the issues regarding the application of the cap statute to claims of loss of consortium and the underlying latent injury disease. Adoption of the approach advocated by Owens-Illinois would have fostered ease and consistency in determining when a cause of action “arises” and would have further avoided the prospect of decisions devolving upon a “battle of the experts.” Adoption of this approach, however, while attractive for the reasons stated above, would have run afoul of the express language of the relevant statute, thereby abrogating our mandate to interpret, rather than legislate. At no point during the on-going litigation, including the numerous appeals, has any party to the proceedings even obliquely suggested that the term, “arises,” was subject to interpretation by Maryland courts. Indeed, the express language of the statute, unquestionably, throughout the on-going litigation, has been the proverbial “elephant in the room.” But for the steadfast adherence to our proper role in our tripartite system, it is likely that the approach vehemently and persistently advocated — even in the most recent appearance before the Court of Appeals — may very well have been adopted.

The ultimate recent resolution of the twin issues, i.e., application of the cap statute to claims for loss of consortium and to the underlying personal injury, represents the adoption of a mid ⁴⁰⁰ dle-ground approach which has, as its principal benefits, considerations of fairness as to the loss of consortium claim and, of paramount import with respect to the underlying claim for personal injury, preservation of the integrity of our proper role, vis a vis, the General Assembly. We explain. Maryland’s cap on noneconomic damages in personal injury or wrongful death actions is codified at Md.Code (1998 Repl. Vol.), Cts. & Jud.

Proc. (C.J.), § 11-108. 3 By the terms of the statute, if the Hunters’ loss of consortium claim “arises on or after July 1, 1986,” then the cap applies to their loss of consortium damages; if their claim arose before that date, the cap does not apply. In Scribner, 369 Md. at 394 , 800 A.2d 727 , the Court of Appeals held, “In actions for personal injury founded on exposure to asbestos ... [i]f the last exposure undisputedly was before July 1, 1986, § 11 — 108(b)(1) does not apply, as a matter of law.” That is, under the cap, an asbestos-based personal injury action “arises” at the time of the plaintiffs last exposure to asbestos. Married couples generally have no loss of consortium claim for damages derived from personal injuries that predated their marriage.

E.g., Gillespie-Linton v. Miles, 58 Md. App. 484, 495 , 473 A.2d 947 (1984); Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland § 3.48 (3d ed.2004). Nevertheless, this Court has held that, for purposes of applying the statutory cap in asbestos cases, ⁴⁰¹ loss of consortium claims “arise” at the time the personal injury claim arises, even if the injury to the marriage did not actually manifest until after July 1, 1986. Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 166-67 , 692 A.2d 5 (1997), vacated on other grounds sub nom. by Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998). Grimshaw has received stringent criticism, see M. King Hill, III & Katherine D. Williams, State Laws Limiting Liability for Noneconomic Damages, 27 U. Balt.

L.Rev. 317, 346-48 (1998), and Owens-Illinois contends Grimshaw was wrongly decided. 4 ⁴⁰³ We rejected the theory Owens-Illinois relies upon in Grim-shaw, and we reject it again here. In asbestos exposure cases, loss of consortium claims do not arise at the time of their manifestation; they arise at the same time as the personal injury. The trial judge did not err in concluding that the loss of consortium claim arose before the injury became manifest during the marriage; that was exactly what we held in Grimshaw . Owens-Illinois characterizes this result as “an outrageous legal fiction,” but this result has been sanctioned by both Grimshaw and Gianotti, both of which were reviewed and affirmed as to when the loss of consortium claim arose in Cook, supra.

Prior to Cook, we had modified the rule that couples have no loss of consortium claim for injuries that predated their marriages in Owens-Illinois v. Gianotti, 148 Md. App. 457, 493 , 813 A.2d 280 (2002). 5 In Gianotti , John Gianotti was exposed to asbestos while employed as a laborer and ceiling installer between 1956 and 1974. Approximately twelve years after he was last exposed to asbestos fibers, he was diagnosed, in August 1985, with “asbestos lung disease.” Less than a month before the enactment of § 11-108 of the Courts and Judicial Proceedings Article (effective July 1, 1986) and ten months after having been diagnosed with lung disease, he and Shirley Gianotti were married. The couple filed suit against various manufacturers and suppliers of asbestos containing products, including appellant, alleging that Mr. Gianotti suffered asbestos lung disease as a result of exposure to their products and, as a result of that disease, loss of consortium. Judge Salmon, writing for this Court, engaged in an in-depth discussion of previous decisions considering application of the cap statute, vis-a-vis, when a cause of action arises and ⁴⁰⁴ accrues and whether consortium is available in the case of a premarital latent injury.

This Court, in Gianotti , citing Paul David Fasscher, To Have and Not Hold; Applying the Discovery Rule to Loss of Consortium Claim Stemming From Premarital, Latent Injuries, 53 Yand. L.Rev. 685 (2000), considered the concerns regarding a person marrying an injured person for the purpose of creating a loss of consortium claim: Where the premarital injury is latent, these threats do not exist, for it is impossible to “marry a lawsuit,” or assume a risk, where the injury is unknown and unknowable at the time of the marriage. Furthermore, application of the discovery rule to loss of consortium claims stemming from latent, premarital injuries does not extend liability beyond the traditional parties. The traditional approach denying this type of claim fails to consider that equitable principles and the history of the cause of action suggest that courts should apply the discovery rule in cases of premarital, latent injuries.

The discovery rule is available to rescue the underlying claim from the statute of limitations; it likewise should be available to rescue a loss of consortium claim from the traditional marriage requirement. Courts that have disagreed with this reasoning have misunderstood both the modern conception of loss of consortium and the discovery rule. The same principles that led courts and legislatures to create the discovery rule are the principles that justify application of the rule to loss of consortium claims in the premarital, latent injury context. Failure to apply the discovery rule to these claims is blind limitation of the past resulting in denial of recovery to spouses who, through no fault of their own, could not have discovered their claim until after the wedding bells rang. 57 Fordham L.Rev. 714-15. 148 Md.App. at 492 , 813 A.2d 280 .

Applying the foregoing reasoning, we concluded: ⁴⁰⁵ We agree with Fasscher and the Stager Court that the core reason behind the rule adopted by the common law was that a person should be prevented from profiting by a conscious decision to acquire a cause of action by marrying an injured party. We also agree with the Stager Court and Fasscher that neither the core reasons nor any of the other reasons behind the common law rule have any logical force when the injury was not discovered, and could not have been reasonably discoverable, at the time of the marriage. For the foregoing reasons, we hold that for purposes of applying the common law rule enunciated in Miles, supra, a loss of consortium claim is barred only if, at the time the parties marry, the couple knew or reasonably should have known of the injury that formed the basis for their joint claim. We, therefore, conclude that the trial judge did not err in allowing the jury to consider the Gianottis’ joint loss of consortium claim — inasmuch as it is undisputed that when the Gianottis married in 1986, his mesothelioma was neither discovered nor could it have reasonably been discoverable.

Id. at 493 , 813 A.2d 280 . Chief Judge Bell, writing for the court in Cook, supra, in a well-reasoned, comprehensive opinion, traced Maryland decisions which have considered the cap statute and reviewed our decision in Gia,notti. After setting forth our above quoted holding in Gianotti , the Court of Appeals analyzed the concept of loss of consortium as construed in Anchor Packing v. Grimshaw, 115 Md.App. 134 , 692 A.2d 5 (1997), and Oaks v. Connors, 339 Md. 24 , 660 A.2d 423 (1995). The Court noted that it had undertaken, in John Crane, Inc. v. Scribner, 369 Md. 369 , 800 A.2d 727 (2002), “to set the proper standard for determining when, for purposes of ... the cap statute a cause of action for cancer or other disease based on