By Soham Desai on May 15, 2018
On March 28, 2018, the Court of Appeals of Maryland, Maryland’s highest court, was asked to: (1) determine whether the state’s statute of repose was ambiguous as to when an injury and cause of action “arise” within the scope of the statute and, (2) discuss the applicability of the discovery rule in relation to the manifestation of a latent disease. The Court found that, in a case involving a steamfitter’s alleged asbestos exposure, the plaintiff’s claims were not barred as the date of his last exposure to asbestos containing products determined whether the statute of repose applied. The Court further held that the discovery rule applied to asbestos related cases.
Statue of Repose
Maryland’s statute of repose bars claims of injuries, including bodily injury and wrongful death, accruing more than twenty years after an improvement to real property becomes available for its intended use. The statute went into effect on June 30, 1970. In 1991, the state legislature amended the statute and stripped asbestos manufacturers of the statute’s protections. This exemption from the statute’s scope specifically encompassed injuries that resulted from exposure to asbestos dust, allowing plaintiffs alleging injuries as a result of asbestos a greater amount of time to raise their claims.
The case at issue, Duffy v. C.B.S. Corp., arose out of James F. Piper’s diagnosis of mesothelioma in 2013. 2018 W.L. 1516888 (Md. Mar. 28, 2018). Piper, through his personal representative June Diane Duffy, filed suit against thirty-three defendants including CBS, then Westinghouse. CBS was the company that originally sold and installed a turbine generator at the power plant where Piper worked as a steamfitter. Piper claimed that his illness was the result of asbestos fibers inhaled while working near other contractors installing the turbine’s insulation between May 3, 1970 and June 28, 1970.
CBS moved for summary judgment, arguing that Piper’s claims were barred by the statute of repose. Piper countered that the exposure itself constituted the injury and because the statute of repose was not law at that time of his exposure, it could not be retroactively applied to him. The trial court granted the motion in favor of CBS. On appeal, the Court of Special Appeals, characterizing Piper’s injury as his diagnosis of mesothelioma in 2013, affirmed the grant of summary judgment on the basis that the cause of action did not “arise” or “accrue” until 2013.
The Court of Appeals of Maryland overturned the lower court’s ruling. Disagreeing with the lower court’s characterization of Piper’s diagnosis of mesothelioma as the point at which his cause of action “accrued”, the Court applied the ‘exposure approach’ and determined that Piper’s injury came into existence on the date of his last exposure to asbestos containing products. In its ensuing analysis, the Court found that the date of injury is the relevant period of time when determining the statute of repose’s applicability because “if there is no injury, there is no cause of action.” Id. at *9 (internal citations omitted).
In its reasoning, the Court heavily scrutinized the timelines of the statue’s passage, Piper’s injuries, and the construction of the turbine. Piper worked on the turbine from May 3, 1970 to June 28, 1970. The latter constituted Piper’s last date of exposure to asbestos containing products. The statute of repose, passed in 1970, specified that it did not apply to causes of action arising on or before June 30, 1970. The Court held that because Piper’s last date of exposure fell two days before the statute went into effect, his claim was not barred and thus summary judgment was granted in error.
The Court also examined the applicability of the discovery rule within the context of asbestos related cases. The discovery rule, Maryland precedent for nearly a century, states that a cause of action accrues “when a plaintiff in fact knows or reasonably should know of the wrong.” Id. at *11 (internal citations omitted). As applied to latent diseases, the rule had been held to mean that a plaintiff has a cause of action when she “ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of [her] injury.” Id. at *12 (internal citations omitted). In Duffy, the Court clarified that, when the rule is applied to disease with incredibly long latency periods such as asbestos, plaintiffs often suffer injuries that occur well before they are discovered. The Court took issue with the Court of Special Appeals’ prioritization of when Piper’s causes of action accrued rather than when the injury arose in determining the statute of repose’s applicability.
Ultimately, the Court held that the point at which “…a cause of action ‘accrues’ determines when the discovery rule applies in relation to the manifestation of a latent disease, whereas when a cause of action ‘arises’ determines whether a statute applies in relation to exposure of asbestos, i.e. the injury leading to potential causes of action.” Id. at *13. Therefore, because Piper’s injury “arose” two days before the statute of repose went into effect, his claims were not barred. His cause of action subsequently “accrued” when he was diagnosed with mesothelioma.
The Court’s ruling creates a new hurdle for defendants, particularly in asbestos related cases, as plaintiff’s last date of exposure is now relevant to whether plaintiff’s claims can be time-barred by the statute of repose. The date of diagnosis, usually when the injury is discovered, is merely when the plaintiff’s cause of action accrues and when the discovery rule goes into effect. Defendants must now engage in an analysis of the plaintiff’s alleged last date of exposure and delve deeper into the plaintiff’s work history to determine whether a statute of repose argument is applicable. Had the Court affirmed the trial court and appellate court’s rulings, plaintiffs who allege injury from asbestos exposure prior to 1970 resulting from an improvement to real property, would have found their claims time-barred. However, the Court found to the contrary and instead placed another obstacle defendants must anticipate and overcome in their litigation strategies.