Owens Illinois vs. Harry Cook Mesothelioma Case: Discussion of Scribner

Read the Maryland Appeals Court opinion in Owens Illinois vs. Cook, where the applicability of Scribner 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.

The Scribner Court held that, for purposes of section 11-108(b)(1), the proper manner of determining the date when a 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. 369 Md. at 394. 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. 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.

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 plaintiff’s 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.

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