Owens Illinois vs. Harry Cook Mesothelioma case: Discussion of Grimshaw

Read the Maryland Appeals Court opinion in Owens Illinois vs. Cook, where the Grimshaw case is discussed. In this mesothelioma case, the parties argue regarding the amount of damages awarded to the surviving spouse, who did not marry the decedent until after his last known exposure to asbestos.

Scribner overruled this Court’s decision in Anchor Packing Co. v. Grimshaw, 115 Md. App. 134 (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 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. 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; Grimshaw, 115 Md. App. at 159.

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. 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 (1984).

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