Georgia law mesothelioma suit

Damages cap doesn't apply to some asbestos suits

The Court of Appeals handed Maryland asbestos plaintiffs a big win yesterday, ruling that if their last exposure to asbestos occurred before July 1, 1986, their damage awards are not subject to the state's statutory cap on noneconomic damages.

The decision could result in a windfall for asbestos plaintiffs and their attorneys because few people have been exposed to asbestos since the cap went into effect, even though their cancer or asbestosis symptoms or diagnoses occurred after 1986.

"It will have tremendous implications for the trial and disposition of the large number of asbestos cases that have been clogging the docket," said Melvin J. Sykes, who represented the plaintiffs in one of the two cases the court decided yesterday. "One of the most significant issues has been the cap."

The cap -- which currently stands at $605,000 -- only applies to causes of action that arise after it took effect in 1986. In one case decided yesterday, James Scribner's family was awarded $2 million in noneconomic damages in a survival action following his death from mesothelioma; in the other, Lisa J. Pransky and her husband were awarded $4.8 million in non-economic damages.

Pransky died of mesothelioma shortly after her trial at the age of 34. She had been exposed to asbestos as a child when her father remodeled the basement.

Scribner was exposed to asbestos during a seven-year stint in the U.S. Navy in the 1970s. His family agreed that the cap applied to their separate wrongful death claim because he died after it went into effect.

The Court of Appeals affirmed both awards, holding that in asbestos cases, assuming the plaintiff is injured, the cause of action arises when the plaintiff inhales asbestos, causing cellular damage that eventually results in asbestos-related disease.

If the last exposure came before July 1, 1986, the cap is inapplicable as a matter of law, the court said. Similarly, if all of the exposure occurred after that date, the cap automatically applies. Only where the exposure overlaps both time frames will there be an issue for a jury.

"I think the General Assembly will be quite surprised to learn that the cap statute does not apply to asbestos personal-injury cases," said John Parker Sweeney, who represented Georgia-Pacific Corp., a defendant in one of the cases decided yesterday. "I expect the General Assembly will have to look very carefully at what they've done here."

The General Assembly did just that in 1994, Sweeney noted, amending the statute to include wrongful death claims after the Court of Appeals ruled that the cap did not apply in those cases.

Sweeney said that even in the rare case in which a plaintiff was exposed to asbestos after July 1986, a jury could still decide that the pre-1986 exposure was more significant in causing the plaintiff's disease.

"Most of the cases involve very significant exposure before the cap took effect," Sykes explained. "Those cases have been made a lot simpler, even if there was some exposure after the cap took effect."

Clearing up confusion

Edward J. Lilly, an attorney with the Law Offices of Peter G. Angelos who represented the plaintiffs in the other case decided yesterday, praised the court's decision.

"We finally have a rule issued by the Court of Appeals of Maryland that clarifies the issue," he said.

The court noted that the Court of Special Appeals' decisions on application of the cap to asbestos cases have been confusing. The intermediate appeals court was left "to struggle with that issue" following a 1992 Court of Appeals decision rejecting the "manifestation" test, under which a cause of action arises when a latent disease manifests itself.

In yesterday's opinions, written by Judge Alan M. Wilner, the court again rejected the manifestation test. The court said in the Scribner decision that its only assets are "simplicity and certainty."

"Well, isn't that what you want in applying a standard?" asked Steven J. Parrott, who represented Garlock Inc. in one of the cases decided yesterday.

"To me, it's illogical to say you have a right to sue before anything has happened to you, before you even know you've been harmed."

The state's top court also rejected an approach taken by the Court of Special Appeals in a 1997 opinion under which a cause of action for asbestos-related disease arises when the disease itself first arises in the body. That method "is impossible to apply in any uniform and rational way and necessarily engenders competing expert testimony as to the timing of an event that no one can precisely define," Wilner wrote.

Choosing to adopt the exposure test, which the court said was not problem-free "but the one that presents the fewest significant problems and is most consistent with the statutory language," the court noted that it presupposes an injury caused by asbestos exposure.

"Thus, it need not attempt to address the problem of entirely inconsequential exposures or exposures that produce only pleural plaques or other conditions that, absent more, do not constitute injuries, which seems to have plagued the Court of Special Appeals, for, if that is all the plaintiff has, no cause of action exists and [the cap] never comes into play," Wilner wrote in Scribner.

When the plaintiff's injury is a latent disease, particularly cancer, it is impossible to precisely determine when the injury arose, the court said, noting that "an undetectable malignant tumor is an injury."

"Given the practical impossibility of ascertaining with any degree of precision when that onset actually occurred, we consider it to be more reasonable to look back to the exposure that ultimately produced the disease ... than to engage in 'guesstimates' of when the first cell became diseased, 'guesstimates' based on contradictory expert testimony -- the plaintiffs' experts invariably moving the date back and the defendants' experts just as invariably moving it forward -- all of which, in any event, seems to be founded upon uncertain assumptions," Wilner wrote.

The court also noted its decision was not "inconsistent" with the Legislature's goal of assuring the availability of liability insurance by adopting the cap.

Sweeney disagreed.

"Their construction of the statute, which was designed 15 years ago to preclude what you might call unpredictable results in tort cases, would mean that no asbestos defendant can predict what their possible exposure is in any personal injury case in front of a Maryland jury," he said.

Sykes, however, said the decision would reduce the cost of litigation.

"It's going to substantially reduce the battle of experts and I think it will encourage realistic settlements and reduce the time between suit and trial."

WHAT THE COURT HELD

Case: John Crane Inc. v. James Scribner, et al. and John Crane Inc. and Garlock Inc. v. James Scribner, et al., CA Nos. 92 and 99, Sept. Term 2001. Reported. Opinion by Wilner, J. Filed June 11, 2002.

Issue: In a personal-injury action based on exposure to asbestos, when does the cause of action arise for purposes of deciding whether the statutory cap on non-economic damages applies.?

Holding: Where the injury sued upon and established is cancer or other disease that develops over time, the cause of action arose when the plaintiff first inhaled asbestos fibers that caused cellular changes leading to the disease.

Counsel: Steven J. Parrott and Deborah L. Robinson for appellants/ petitioners; Edward J. Lilly for appellees/respondents.

WHAT THE COURT HELD

Case: Georgia-Pacific Corp. v. Lisa J. Pransky, et al., CA No. 107, Sept. Term 2001. Reported. Opinion by Wilner, J. Filed June 11, 2002.

Issue: In a personal-injury action based on exposure to asbestos, when does the cause of action arise for purposes of deciding whether the statutory cap on non-economic damages applies.?

Counsel: John Parker Sweeney for petitioner; Melvin J. Sykes for respondents.