DAVIDSON, J., delivered the opinion of the Court.
This case primarily concerns an application of Maryland Code (1974, 1980 Repl.Vol.) § 5-101 of the Courts and Judicial Proceedings Article, a statute of limitations that requires a civil action to be filed within three years from the date it accrues (the three year statute of limitations). More particularly, it concerns the time at which a cause of action accrues when exposure to asbestos initially results in the manifestation of asbestosis, for which no tort recovery was sought, and subsequently results in the manifestation of lung cancer, which, on the basis of the record before us in this summary judgment proceeding, is a separate, distinct,
Charles H. Pierce (Pierce) was employed as an insulation mechanic by the Wallace and Gale Company (Wallace) in Baltimore from 1949 until 1973. During that time, he worked with and was exposed to asbestos and asbestos products manufactured or distributed by the respondents, Johns-Manville Sales Corporation and others (Johns-Manville).
Having learned that his stepfather's death in 1968 had been caused by asbestosis, Pierce sought medical attention, and after x-rays were taken, was advised that there was no evidence of asbestosis. In 1969 or 1970, Pierce began to complain of chest pains, but did not then seek medical attention. In 1971, chest x-rays were taken that revealed "scars in both lungs probably related to asbestos exposure." Nonetheless, Pierce continued his employment.
Early in 1973, as a result of severe chest pains, Pierce consulted a lung specialist who diagnosed his condition as asbestosis of the lungs caused by exposure to asbestos.
On 14 February 1973, Pierce filed a claim with the Maryland Workmen's Compensation Commission (Commission), alleging that he had developed asbestosis as a result of his employment with Wallace. On 2 March 1973, in order to avoid further asbestos exposure, Pierce left his job with Wallace and obtained an office job with a different company where he worked until 8 November 1979.
On 27 June 1973, the Medical Board for Occupational Diseases determined that Pierce "did sustain an occupational disease, namely pulmonary asbestosis," and that he
Pierce continued to suffer chest pains and shortness of breath and noted the onset of a cough. In December 1974, hospital tests again indicated that Pierce suffered from asbestosis. However, both the hospital pathology report and the report of the attending physician indicated that no evidence of lung cancer was present.
Although Pierce's previous symptoms persisted, he was reasonably well until October 1979 when he developed increasing shortness of breath occurring even at rest, a low-grade fever, and recurrent episodes of coughing. Lung cancer, related to the prior asbestos exposure, was diagnosed for the first time on 10 November 1979.
With respect to the survival action, the trial court determined that the cause of action accrued in April 1973, the time at which asbestosis was manifested, and concluded that
Elizabeth Pierce filed an appeal to the Court of Special Appeals. While that appeal was pending, she filed a petition for a writ of certiorari that we granted before consideration by the Court of Special Appeals. We shall reverse the judgment of the trial court.
Here, with respect to the survival action, Elizabeth Pierce contends that the "discovery rule" — that a cause of action accrues when a person discovers, or through reasonable care and diligence should have discovered, the nature and cause of a harm — is applicable here. She maintains that because of the latent nature of Pierce's disease, the cause of action for damages resulting from lung cancer did not accrue until Pierce knew, or reasonably should have known, that he had developed lung cancer. She points out that although lung cancer and asbestosis are both associated with exposure to asbestos, the diseases are separate and distinct; that there is no medically-accepted link between the development of asbestosis and the development of lung cancer; that consequently lung cancer is not a maturation of asbestosis; and that in the absence of a medical link there is only a possibility that a person suffering from asbestosis will develop lung cancer. She asserts that at the time his asbestosis manifested itself, Pierce could not have discovered the existence of his lung cancer because it had not yet developed. She further asserts that at that time he could not have ascertained that he would develop lung cancer. She claims, therefore, that the earliest time at which Pierce's lung cancer reasonably should have been discovered was 10 November 1979 when his lung cancer manifested itself and
Johns-Manville contends that because the asbestos exposure caused both Pierce's asbestosis and lung cancer, an indivisible cause of action arose for all of the harm resulting from both asbestosis and lung cancer. It asserts that this indivisible cause of action accrued early in 1973 when Pierce discovered his asbestosis because it was at that time that Pierce discovered an initial harm resulting from the asbestos exposure, even though he did not then know the full extent of that harm. It further asserts that at that time, Pierce was obligated to sue and to seek recovery for all claims, including future damages.
Johns-Manville maintains that the development of Pierce's lung cancer was nothing more than a maturation of his harm — pulmonary disease. It further contends that to construe the discovery rule so that the cause of action accrued at the time Pierce discovered the extent of his harm, rather than at the time he discovered the existence of the initial harm resulting from the asbestos exposure, would, in essence, constitute an adoption of the "maturation of harm rule" — that the statute of limitations does not begin to run until the maturation of damages — a rule consistently rejected by this Court. It concludes that under the discovery rule, the cause of action is barred by the statute of limitations. In essence, Johns-Manville argues that Pierce would have been barred from recovery for the harm resulting from lung cancer caused by asbestos exposure solely because Pierce had previously developed asbestosis, notwithstanding the fact that Pierce had never sought tort recovery for the harm resulting from the asbestosis. We disagree.
Maryland has recently held the discovery rule to be applicable generally in all actions. Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981). Under that rule, a cause of action accrues for a latent disease when the claimant knew or reasonably should have known of the nature and cause of the harm. Harig v. Johns-Manville Prods.
Here the record shows that asbestosis and lung cancer are separate and distinct latent diseases that are not medically linked. If Pierce had developed lung cancer without previously having developed asbestosis, there can be no question but that under the discovery rule, recovery would not have been barred by the statute of limitations. But here the question is whether a right to recover should now be barred solely because Pierce did in fact develop asbestosis, a harm for which tort recovery has never been sought. We shall determine this question with regard to the rationale underlying statutes of limitation.
The relevant statute of limitation here is Maryland Code (1974, 1980 Repl. Vol.) § 5-101 of the Courts and Judicial Proceedings Article. That section provides:
Because the term "accrues" is not defined in the statute, the question of when a cause of action accrues is left to judicial determination. Poffenberger, 290 Md. at 633, 431 A.2d at 679; Harig, 284 Md. at 75, 394 A.2d at 302. "Statutes of limitation find their justification in necessity and
The adoption of statutes of limitation reflects a policy decision regarding what constitutes an adequate period of time for a person of reasonable diligence to pursue a claim. Such statutes are designed to balance the competing interests of each of the potential parties as well as the societal interests involved. Thus, one of the purposes of such statutes is to assure fairness to a potential defendant by providing a certain degree of repose. This is accomplished by encouraging promptness in prosecuting actions; suppressing stale or fraudulent claims; avoiding inconvenience that may stem from delay, such as loss of evidence, fading of memories, and disappearance of witnesses; and providing the ability to plan for the future without the uncertainty inherent in potential liability. Another basic purpose is to prevent unfairness to potential plaintiffs exercising reasonable diligence in pursuing a claim. Still another purpose is to promote judicial economy. Goldstein, 285 Md. at 684, 404 A.2d at 1069; Harig, 284 Md. at 75-76, 394 A.2d at 302. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 118-19 (D.C. Cir.1982).
The rationale underlying statutes of limitation supports the conclusion that having never sought tort recovery for the harm resulting from asbestosis, recovery for the harm resulting from lung cancer should not be barred and that, therefore, a cause of action accrued at the time that Pierce knew or reasonably should have known of the existence of lung cancer. Manifestly, the principle of repose would be fostered to some degree by a determination that the cause of action accrued at the time of the manifestation of asbestosis. Encouragement of prompt prosecution of actions, suppression
Moreover, unless it is determined that a cause of action accrued at the time Pierce's lung cancer manifested itself, substantial unfairness would result. In Maryland, recovery of damages based on future consequences of an injury may be had only if such consequences are reasonably probable or reasonably certain. Such damages cannot be recovered if future consequences are "mere possibilities." Probability exists when there is more evidence in favor of a proposition than against it (a greater than 50% chance that a future consequence will occur). Mere possibility exists when the evidence is anything less. Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422, 427-28 (1975). Thus, if suit had been filed within three years of the manifestation of Pierce's asbestosis, it is highly likely that Johns-Manville would have successfully defended on the ground that the chance that Pierce would develop lung cancer was too speculative
Finally, a rule that a cause of action accrued at the time Pierce's lung cancer manifested itself would promote judicial efficiency. As stated in Wilson v. Johns-Manville Sales Corporation, 684 F.2d 111, 120 (D.C. Cir.1982):
In sum, a determination that a cause of action for lung cancer accrues when lung cancer manifests itself would result in some degree of infringement of the right to repose. On the other hand, a determination that a cause of action for lung cancer accrues when asbestosis manifests itself would result in depriving a reasonably diligent person of an opportunity to recover for harm resulting from a latent disease, the existence of which was not known and could not have been known. Moreover, it would result in the imposition of an unnecessary burden upon the judicial system. In our view, the partial infringement of the right to repose is far
Judgment of the Circuit Court for Baltimore County reversed.
Case remanded to that Court for further proceedings.
Costs to be paid by respondents.
We note that asbestosis generally has a latent period of 10 to 25 years between initial exposure and apparent effect. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 115 n. 21 (D.C. Cir.1982); Keene Corp. v. Insurance Co. of N.Am., 667 F.2d 1034, 1040 n. 9 (D.C. Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644 (1982); Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1083 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127 (1974). See I. Selikoff & D. Lee, Asbestos and Disease 205 (1978); Selikoff, Churg, & Hammond, The Occurrence of Asbestosis Among Insulation Workers, 132 Ann. New York Acad.Sci. 139 (1965).
The only evidence in this record indicating the degree of correlation between the development of asbestosis and the subsequent development of lung cancer was one study, adduced by Johns-Manville, that estimated that 17.8% of asbestosis sufferers subsequently developed lung cancer. Annual Report of Chief Inspector of Factories for Year 1955, London: Her Majesty's Stationery Office, 1956, 206, quoted in Selikoff, Asbestos Exposure and Neoplasia, 188 J.Am.Med.A. 22 (1965), reprinted in 16 The Asbestos Worker, Nov. 1964, at 5.
Additionally, we note that there is at least one other study in which it is estimated that 15% of asbestosis sufferers later develop pleural mesothelioma, a form of lung cancer. Wilson, 684 F.2d at 120 n. 45. See Selikoff, Churg, & Hammond, Relation Between Exposure to Asbestos and Mesothelioma, 272 New Eng.J.Med. 560, 662 (1965).
Md. Code (1974, 1980 Repl. Vol.) § 3-901 (e) of the Courts and Judicial Proceedings Article provides in pertinent part:
Md. Code (1974, 1980 Repl. Vol.) § 3-904 (f) of the Courts and Judicial Proceedings Article provides in pertinent part:
Johns-Manville additionally has characterized this construction as rejecting the rule that one wrong gives rise to an indivisible cause of action that cannot be split so that only one suit can be brought, a rule to which this Court has previously adhered. E.g., Frontier Van Lines v. Maryland Bank & Trust, 274 Md. 621, 625, 336 A.2d 778, 780 (1975); In re Carlin's Estate, 212 Md. 526, 532-33, 129 A.2d 827, 831 (1957). However, our decision here is consistent with those cases because, as a practical matter, if no tort recovery for damages resulting from asbestosis is sought, there will be only a single action for damages resulting from asbestos exposure.