Hammond v. Owens Corning / White Lung Amicus Brief

		The White Lung Association P.O. Box 1483 Baltimore, MD 21203-1483 410-243-5864

STATEMENT OF THE CASE

In this case, Owens Corning Fiberglas ("OCF") and the Maryland Defense Counsel, Inc. (the "MDC") seek to have this Court overrule a long-established line of cases interpreting the language of Maryland's statutory Cap on non-economic damages, Md. Cts. & Jud. Proc. Code Ann. _ 11-108 (the "Cap Statute"), which provides that the Cap only applies to "causes of action which arise on or after July 1, 1986." Both this Court and the Maryland Court of Appeals have consistently held that a cause of action arises when all of the elements of a case come into existence. Therefore, for purposes of determining the applicability of the Cap Statute, a cause of action for an asbestos-related cancer arises when the cancer first develops, even if the victim has not yet experienced symptoms or physical impairment.

OCF and the MDC assert that determining when an asbestos-related cancer develops is beyond the capabilities of a judge or jury. Arguing from that false premise, OCF and the MDC suggest that this Court should hold that a cancer claim does not arise until a plaintiff experiences impairment of function. OCF and the MDC suggest that interpreting the word "arise" in that fashion would make it easier to apply the Cap Statute in asbestos cases.

The position urged by OCF and the MDC is at odds with established principles of statutory construction, with Maryland common law and with medical reality. Statutes are not interpreted according to what one party believes to be expedient. Statutes are interpreted based on the plain meaning of the language used, and when the language is unclear, in a fashion designed to effectuate the legislature's intent. The interpretation of the Cap Statute proposed by OCF and the MDC violates both of those principles. The interpretation does violence to the language of the Cap Statute and is contrary to the intent of the General Assembly.

STATEMENT OF FACTS

The White Lung Association adopts the Statement of Facts set forth in the Brief of Appellee, James R. Hammond.

ARGUMENT

I. THIS COURT SHOULD FOLLOW AND APPLY ARMSTRONG, GRIMSHAW AND THEIR PROGENY

MDC suggests that this Court should once again for the fifth time revisit its interpretation of the Cap Statute because the applicability of the Statute is being litigated at a "frenetic pace." In fact, from 1986 until 1997, there was little litigation involving the Cap Statute. However, beginning with Anchor Packing Co. v. Grimshaw, 115 Md. App 134, 692 A2d 5 (1997), the defendants in asbestos cases adopted a policy of contesting the applicability of the Cap Statute on virtually every case they lost at trial. ACandS. Inc. v. Abate, 121 Md. App. 590, 710 A.2d 944 (1998), cert. denied sub nom. , Crane v. Abate, 350 Md. 487 (1998); Ford Motor Co. v Wood, 119 Md. App. 1, 703 A.2d 1315, cert. denied, 349 Md. 494, 709 A.2d 139 (1998); Owens Corning v. Brannan, Unreported opinion, the Court of Special Appeals, cert. denied 349 Md. 496, 709 A.2d 141(1998)1, etc. Since that time, because they do not like the opinions expressed repeatedly and consistently by this Court and the Court of Appeals, the defendants have continued to pound away at this Court which (unlike the Court of Appeals) has no choice but to hear their pleas.

Like the child who upon murdering his parents seeks mercy from the court as an orphan, the MDC and OCF go on to suggest that the fact that they appeal all asbestos cases on this issue somehow demonstrates a need to overrule precedent by contriving an interpretation of the word "arises" which is contrary to rules of statutory construction, the intent of the legislature, the common law and medical reality. The "simple" solution of the MDC is to rewrite Maryland law to provide that a person does not sustain a compensable injury, and thus has no cause of action unless "the plaintiff has sustained symptoms or been impaired in his ability to perform normal functions by a disease or

1A copy of this Court's unpublished opinion in Brannan is attached in accordance with Maryland Rule 8-144(b).

condition...." Brief of amicus MDC at p.4. The proposal, while admittedly simplistic, is arbitrary, capricious, prejudicial, unfair and contrary to the common law--in other words, a defendant's dream.

The MDC cites Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997) to support its position. That case involves asbestos exposed workers who were not only without symptoms of disease, but who also acknowledged that they HAD NO present disease, injuries or physical detriment from asbestos. Metro-North involved a claim based on the risk or possibility of future injury and NOT the assertion of any present physical harm or the reasonable likelihood of any future damages or detriment. Indeed, the plaintiffs in Metro-North were not even claiming they had pleural plaques, the condition this Court and the Court of Appeals considered in Owens Illinois Inc. v Armstrong, 326 Md. 107, 604 A.2d 47 (1992) and Abate. Even in the case of pleural plaques, that condition does not, in and of itself, cause harm, detriment or death, and thus, by its mere presence alone, does not support a cause of action. There is nothing "mere" however, about the presence of cancer.

The references to Schweitzer v. Consolidated Rail Corp., 758 F.2d 936 (3rd Cir.), cert. denied, 474 U.S. 864 (1985); Burns v. Jaquays Mining Corp., 156 Ariz. 375, 752 P2d 28 (1987); Simmons v Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996) and to In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563 (D. Haw. 1990) are similarly inappropriate. Those cases, like Armstrong and Abate are cases where neither the plaintiff nor his medical experts contended that there was any present physical injury or any reasonable likelihood that physical injury would develop in the future! To compare these cases to cancer cases, and especially mesothelioma cases, is not only an effort to mislead and confuse the Court, but an affront to those persons like Mr. Hammond who suffer from this terrible disease.

II. POLICY REASONS SUPPORT THE APPELLATE COURTS' RULINGS IN GRIMSHAW AND ARMSTRONG.

Isn't it amazing that the General Assembly in twice evaluating the need for a Cap both times stated that file Cap only applies to causes of action which arise on or after July I, 1986 and refused to apply the Cap to causes of action FILED on or after July 1, 1986? Whatever crisis supposedly generated the Cap Statute in the first place, its resolution obviously did not require a statute with such overly broad and all inclusive language. Moreover, no one is claiming that any insurance crisis or other crisis exists by virtue of Armstrong's and Grimshaw's application of the plain meaning of the word "arise" in interpreting the Cap Statute.

From a purely policy standpoint, if the Maryland legislature's motivation was to deal with a present and possible future insurance crisis, there would be no reason to apply the Cap to causes of action which arose at a point in the past when there was no insurance crisis and therefore plenty of insurance readily available to cover the causes of action which arose prior to July 1, 1986.

The fact that defendants keep raising challenges to the court's ruling on the Cap Statute does not somehow mean that there is a problem. Asbestos defendants and OCF in particular appeal virtually all asbestos cases which they lose in Maryland and every other state. For OCF this is part of a national strategy to try and clog the courts at all levels in hopes of wearing down the judiciary into compromising justice for the sake of expediency!

III. THE PROPOSAL OF OCF AND THE MDC LEADS TO ABSURD RESULTS. FOR INSTANCE, CAUSES OF ACTION CAN ACCRUE BEFORE THEY ARISE!

Under Harig v Johns-ManviIIe Products, 284 Md. 70, 394 A.2d 299 (1978), Maryland courts have ruled that the statute of limitations on a plaintiff's claim begins to run when the plaintiff knew or should have known of his or her injury. Consider the asymptomatic cancer victim with no physical impairment whose cancer is diagnosed on routine medical check-up, and for whom there is no acceptable treatment. Under the analysis of OCF and the MDC, this cancer victim who, with reasonable certainty will slowly progress to the point of symptoms, impairment, detriment and death would have to WAIT to file a lawsuit until the cancer has advanced to the point where he is suffering .2 This is neither the law nor fair.

OCF and the MDC are in essence arguing that this court should construe the term "arise" to mean the same thing as "accrue." However, the legislature twice did not say "accrue." It did not say "arise does not mean arise in asbestos cases. " And the legislature did not say "arise means all cases filed after July 1, 1986." The method for determining when an asbestos injury cause of action arises has been repeatedly considered by Maryland Courts. Armstrong, Grimshaw, Abate, Wood and Brannan. The analysis in those cases should not now be abandoned.

In an effort to get an extra brief before the Court in the case at bar, the MDC attaches the brief that Owens-Illinois submitted in the case of Owens Corning, et al. v. Walatka. et al., in the Court of Special Appeals, September Term, 1998, No. 385, another pending mesothelioma case. In its Walatka brief, Owens-Illinois begrudgingly acknowledges that a "cause of action arises when a plaintiff sustains damages that can be proven with reasonable certainty." App. 108. In the case of some cancers and certain other slowly progressive diseases, it can virtually always be established with reasonable certainty that an asymptomatic cancer found at routine medical exam (whether it be an annual check-up or a cancer screening exam such as chest x-ray, mammography, pap

2OCF seeks to avoid the logical but absurd result of its position by suggesting that a claim should be deemed to arise on the earlier of functional impairment or diagnosis. However, suggesting that a claim can arise upon diagnosis is at odds with the position of OCF and MDC that merely contracting a disease is not a compensable harm. If compensable harm is not suffered until impairment occurs, diagnosis of an asymptomatic disease cannot cause a claim to arise for purposes of the Cap Statute. Thus, OCF must either concede that use of the manifestation test is wrong or acknowledge that under its theory, a person diagnosed with a deadly cancer would not have a claim until the cancer reached the point where it ultimately impaired its victim.

smear, etc.), will progress to the point of causing symptoms, impairment, disability and often death. Cancer is not pleural plaques, about which the same can not be said! And Walatka/Hammond, Wood and Grimshaw are not Abate.

By Owens-Illinois' own test, a cause of action in a mesothelioma case arises at the time the cancer begins to grow because at that point, the future damages could be demonstrated with reasonable medical certainty. The fact that the cancer was not or could not be discovered when it began to grow does not change the fact--even under Owens Illinois' test--that for purposes of the Cap Statute the cause of action "arose" at that time, though for limitations purposes, it does not accrue until the plaintiff knew or had reason to know of its presence. There is nothing difficult or incongruous about this result. Indeed, it is the only sensible way to carry out the legislature's intent that the Cap be applied based on when a cause of action arises--not when (or after as the MDC analysis suggests) it accrues.

Just because it may be difficult for the defendants in a given cancer case to establish when a cause of action arises, does not mean this Court can or should rewrite the statute so that the asbestos companies always win. The Cap limit on damages in personal injury cases is in derogation of the common law and hundreds of years of American and English jurisprudence. It must be strictly construed. If the legislature had wanted the Cap to apply to all cases filed after July 1, 1986, regardless of when they "arise," it would have said so!

IX. MARYLAND IS NOT CALIFORNIA AND BUTTRAM IS DISTINGUISHABLE FROM ARMSTRONG, GRIMSHAW AND THEIR PROGENY AS THE CALIFORNIA SUPREME COURT NOTED IN THAT CASE.

Both Owens Corning and MDC cite Buttram v. Owens Corning Fiberglas Corp., 941 P.2d 71 (Cal. 4th 1997) and MDC excerpts an entire page of text from the case. In Buttram, the California Supreme Court was called upon to construe Cal. Civil Code 1431, 2, enacted by Proposition 51. This Court, and the Court of Appeals have previously considered and rejected the very arguments made in this case by OCF and the MDC. In fact the California Supreme Court itself distinguished Maryland's Cap Statute "arise" language and the inquiry in Armstrong from its analysis in Buttram.

Focusing on the presence of the term "arises" in Maryland's Cap Statute, the California court noted that the Maryland court applied the rule of statutory construction that would give that term its ordinary meaning and found that a cause of action "arises when it first comes into existence. " As the Buttram court emphasized in distinguishing the Maryland Court's decisions applying the term "arise", the California law "contains no similarly controlling language." 941 P.2d at 82.

For whatever reason, MDC omits all reference to this determinative distinction between Maryland's Cap Statute with its "cause of action arises" language and California's Proposition 51 "which contains no similarly controlling language." That difference however has not been lost on this Court or the Court of Appeals which has been cited to Buttram and presented with this same argument ad nauseam.

V. THE PARTY MOVING TO APPLY THE CAP MUST PROVE THAT THE CAUSE OF ACTION AROSE AFTER JULY 1, 1986

OCF and the MDC assert that it is difficult to determine when an asbestos-related disease develops. Even if that claim were true, it would provide no basis for reinterpreting the Cap Statute. Assuming, arguendo, that the evidence presented in a given case gives no adequate indication as to when the plaintiff's mesothelioma developed and his cause of action arose, the question of who had the burden of proof on the issue--and when--becomes pivotal. For Mr. Hammond, the matter was simply of no significance until after the jury returned its verdict. Then and only then did it become clear that the award exceeded the amount of the Cap and that the Cap Statute was placed at issue in the case.

MDC references observations of the Honorable Richard T. Rombro regarding Grimshaw (brief of MDC at pp. 16-17). However, MDC fails to tell the entire story. In the Walatka case and all other cases where the issue has arisen, Judge Rombro and Judge Edward J. Angeletti have ruled, consistent with rules of statutory construction and Maryland case law, that the party moving to apply the Cap has the burden of establishing that the cause of action in a given case arose after July 1, 1986. Amicus knows of no trial or appellate decision to the contrary. Thus, if it turns out in any given case (or even for all cases) that the party seeking to apply the Cap cannot demonstrate that the cause of action arises after July 1, 1986, then the Cap does not apply.

Upon the rendition of the verdict, if OCF had more evidence to submit on the question or had wanted the issue decided by the jury it should have made the appropriate request3. Instead, OCF voluntarily presented the issue to the trial court for decision and asked the judge to reduce the amounts of the awards in conformance with the statute.

Ordinarily, as both Judges Angeletti and Rombro of the Circuit Court have found , the moving party bears the burden of establishing that his or her motion should be granted. See e.g., Urquhardt v. Simmons, 339 Md. 1, 17-18, 660 A.2d 412 (1995) (motion to transfer actions); Butler v. State, 335 Md. 238, 254, 643 A.2d 389 (1994) (motion to dismiss criminal case on ground of collateral estoppel); Mejia v. State, 328 Md. 522, 533, 616 A.2d 356(1992) (challenge to jury selection as discriminatory); Webb v. Joyce Real Estate, Inc., 108 Md. App. 512, 522, 672 A.2d 660, cert. denied, 342 Md. 584, 678 A.2d 1049 (1996) (motion for summary judgment); Thomas v. Ramsburg, 99 Md. App. 395, 400, 637 A.2d 863 (1994) (motion to dismiss for lack of prosecution); Shunk v. Walker, 87 Md. App. 389, 589 A.2d 1303 (1991) (motion for modification of child custody); Nationwide Mutual Ins. Co. v. Hart, 73 Md. App. 406, 410, 534 A.2d 999 (1988) (motion for interlocutory relief). Amicus White Lung perceives no reason why the Court should

3Similarly, if OCF had wanted a jury trial on the issue, that was the time to ask for it, assuming there was any right to a jury trial on this issue to begin with. See Appellee Hammond's Brief of Section III.A.

depart from the general rule in the instant or any other asbestos case': The burden is on the appellant, as the moving party, to establish that the Cap set forth in _1 11-1O8(b) is applicable.

In moving to reduce the amount of noneconomic damages awarded for personal injury, OCF directed the trial court only to the evidence presented at trial. OCF never sought to present any medical evidence on the Cap issue either before the verdict, after the initial verdict but before the judgment or even after the judgment on post-trial motion. It neither submitted, sought to submit, nor proffered evidence, testimony, or affidavits in support of the position it raises before this Court. As the burden was on the party seeking to establish that the Cap was applicable by demonstrating that the cause of action arose on or after July 1, 1986, and as the appellant failed to shoulder that burden, the trial court properly denied the post-trial motions5.

Although no published opinion of this Court specifically states that the party moving to apply the Cap Statute has the burden of proof, other courts have addressed the issue. Those courts have held that the party seeking to limit damages for personal injuries has the burden of proving the limitation. See Westfarm Assocs. v. International Fabricare Inst. ,

'"Section 11-108 was enacted in response to a legislatively perceived crisis concerning the availability and cost of liability insurance in this State." Murphy v. Edmonds, 325 Md. 342, 368, 601 A.2d 102 (1992). See Also 1986 Laws of Maryland Chapter 639; Bill File to &Senate Bill 558 (1986). In light of this, the appellant asserts: "By enacting a statute expressly to alleviate a crisis and employing mandatory language for the application of that statute, the Legislature clearly intended to place the burden on the plaintiffs to prove that a claim falls outside the statute's reach." This assertion ignores that the legislature expressly provided in _1 11-1O8(b) that the cap applies only "[i]n any action for personal injury in which the cause of action arises on or after July 1.1986..." (Emphasis added.) Thus, while the legislative goal was to resolve a perceived insurance crisis, the Legislature also took care to protect plaintiffs from retroactive application.

5OCF may argue that, even if defendants have the burden of production, once defendants produce evidence indicating that the plaintiffs' mesotheliomas developed after July 1, 1986 the burden shifts to the plaintiffs to persuade the court otherwise. This argument need not be addressed, as the appellant did not meet its initial burden.

846 F. Supp 439, 44041 (D. Md. 1993) (Maryland statutory limit on damages recoverable against government entity is an avoidance), aff'd on other grounds, 66 F. 3d 669 (4th Cir. 199S); Ingraham V United States, 808 F.2d 1075, 1079 (5th Cir. 1987) Texas monetary cap on medical malpractice damages is an affirmative defense); Jakobsen v. Massachusetts Port Authority, 520 F.2_1 810, 813 (1st Cir. 1975) (limitation on Port Authority's monetary liability is an affirmative defense).

Ingraham v. United States, 808 F.2d 1075 (5th Cir. 1987) is representative of the cases that have addressed this issue. In that case, the Fifth Circuit held the Defendants' failure to affirmatively plead a Texas statute that limited damages in medical malpractice actions constituted a waiver of the statutory limitation. In reaching that conclusion, the court weighed various factors including whether the issue constituted a necessary element of the plaintiffs cause of action, which party has better access to evidence and attendant policy considerations. Id. at 1079 The court ruled that the statutory cap was an affirmative defense because it altered the traditional tort theory of liability. The court reasoned:

The same considerations which dictated the result in Ingraham, should also lead this Court to hold that the Appellant in the present case has waived its right to rely on the Cap Statute. Mr. Hammond asserted ordinary tort theories of recovery--negligence and strict liability. In order to prevail on those claims and receive the full benefit of the jury's damage determination, Mr. Hammond only needed to establish that OCF was responsible for his injuries. By contrast, it was the Appellant which, AFTER THE VERDICT, maintained that the Cap Statute applied. As a result, the statute constituted a defense, avoidance or limitation on recovery that had to be affirmatively raised, presented and proven by the Appellant. Newell v. Richards, 323 Md. 717, 594 A.2d 1152 (1991).

Maryland courts have recognized that when a defendant seeks to take advantage of a rule requiring a reduction in the amount of damages that a plaintiff can recover, the defendant has the burden of proving the applicability of that rule. See Baublitz v. Henz, 73 Md. App. 538, 535 A.2d 497 (1988). In Baublitz, this Court held that a trial judge correctly refused the defendant's proposed jury instruction on reducing an award of future earnings to present value. The trial judge acknowledged that such a reduction was required by law. However, because the moving party (the defendant) had failed to offer evidence that would have enabled the jury to calculate the amount of the reduction to present value, the trial court refused to so instruct. In the case at bar, OCF's complete failure to produce evidence on the issue, precludes it from being entitled to a jury instruction or to benefit of the reduction by the trial Court.

Courts in other jurisdictions have also held a party who seeks to rely on a statutory limitation of damages or liability has the burden of proving the applicability of the statute. Hughes Aircraft Co. v. North America Vanlines, Inc., 970 F.2d 609 (9th Cir. 1992) (common carrier seeking the benefit of a statutory limitation of damages has the burden of proving entitlement to statutory limitation); Rehn v. Fischley, 557 N.W.2d 328 (Minn. 1997) (defendant seeking benefit of statutory immunity has burden of proving applicability of the statute); see also Edward W. Cleary, et al. McCormick on Evidence _ 337 (3rd Ed. 1984). Moreover, other courts have held that limitations on damages for personal injuries are affirmative defenses that must be asserted and proven by a defendant. See Westfarm Assocs. v. International Fabricare Inst., 846 F. Supp 439, 440-41 (D. Md. 1993) (Maryland statutory limit on damages recoverable against government entity is an avoidance), aff'd on other grounds, 66 F. 3d 669 (4th Cir. 1995); Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987) (Texas monetary cap on medical malpractice damages is an affirmative defense); Jakobsen v. Massachusetts Port Authority, 520 F.2d 810, 813 (1st Cir. 1975) (limitation on Port Authority's monetary liability is an affirmative defense) .

Given the complete failure of the Appellants to present any evidence regarding the Cap and its similar failure to prove the applicability of the Cap Statute to the facts of this case, the trial court's decision should not be overturned.

VI. EVEN THE DEFENSE EXPERTS AGREE THAT THE DATE WHEN MESOTHELIOMA FIRST BEGINS TO GROW IS 10 TO 15 YEARS BEFORE DIAGNOSIS.

The testimony of OCF's own expert witness, Johns Hopkins pathologist Grover Hutchins, MD., is especially telling on this point. Dr. Hutchins was retained by the defendants in a mesothelioma case pending in the Superior Court for Cuyahoga County, Ohio (Cleveland). Dr. Hutchins' deposition was taken in Baltimore on February 20, 1998 and is attached.

In Ohio, like Maryland, the date when a given mesothelioma plaintiff's cancer has developed to the point where it will proceed inexorably to cause symptoms many years later, is also an issue. In Ohio, that matter is relevant to substantial factor causation--whether a given defendants products could have played a role in causing a person's mesothelioma--though not to application of a damages Cap. Despite being a defense expert, Dr. Hutchins not surprisingly gave testimony remarkably similar to Dr. Hammar's testimony in this case.

VII. THE SCIENCE OF CANCER DEVELOPMENT IS NOT BEYOND A JUDGE'S OR JURY'S COMPREHENSION.

Contrary to the assertions of OCF and the MDC, judges and jurors are not too dumb or too ignorant to decide when cancer begins to develop. Nor is the medical knowledge in this area so limited that doctors cannot express expert opinions about that issue.

The Comprehensive Textbook of Oncology notes that '[c]ell and tumor growth kinetics is a field of inquiry that is both large in scope and significance. Moossa, A. R., Schimpff, S. C., and Robson M.C.(eds.), Comprehensive Textbook of Oncology, 409414 (2nd ed. 1991). In general, the investigation of how rapidly tumors grow and how quickly cancerous cells divide has yielded a body of knowledge on the growth kinetics of tumors important in uncovering features common to most tumors and features uncommon and unique to certain categories of tumors (based on their induction site and histologic type).

One feature common to tumors is one of an exponential increase in size. Peckman, M. Herbert, P. and Veronesi, U., Oxford Textbook of Oncology (1995). Thus, if a tumor doubles in volume over a set period of time, it will once again double in size over an identical period of time. Since this period remains near-constant over the life of the tumor, independent of the initial size or staging of the tumor. Malaise, E. P., Chavaudra, N., Charbit, A, and Tubiana, M., Relationship Between the Growth Rate of Human Metastases, Survival and Pathological Type, Eur. J. Cancer 10, 451459 (1974); Joseph, W. L., Morton, D. L., and Adkins, P. C., Prognostic Significance of Tumor Doubling Time in Evaluating Operability in Pulmonary Metastatic Disease. J. Thorac. Cardiovasc. Surg., 61-7, 23-29 (1971). This period is known as the volume doubling time (td) of the tumor.

In an effort to establish that it is difficult to determine cancer growth rates, the MDC cites on page 15 of its Brief an article by Mustacchi in the Journal of legal Medicine. MDC misrepresents that article as "a recent medical journal article that examined this issue" [of when tumors begin to develop]. MDC implies that as a recent medical journal article, the Mustacchi piece has been through the rigorous process of peer review and therefore has some medical or scientific merit that this Court should consider. Nothing could be further from the truth!

In searching for this "recent medical journal article" relied upon by MDC, the White Lung Association found that neither the University of Maryland Health Sciences Library nor the Welch Medical Library of Johns Hopkins had the journal. The reason the article is not in those libraries is because the Mustacchi piece is not a medical article and it is not in a medical journal. Rather, it is an advocacy piece by a defense expert in California workers compensation cases published in a little known legal periodical that can be found at the University of Maryland Law Library but not at either the University of Baltimore or Baltimore City Bar Libraries. It is written to suggest a method for recalculating published mortality data for purposes of "apportioning causation and liability" in California workers compensation cases involving claims for respiratory cancer due to asbestos.

A. Tumor Doubling Times

The alteration of a single cell which divides in an uncontrolled fashion is believed to spawn the formation of most tumors. In order for a tumor to become clinically detectable, it must divide 30 or more times before it reaches a volume of a cubic centimeter. At this point, the tumor weighs approximately 1 gram and contains a billion cells. Shackney, S. E., McCormack, G. W., and Cuchural, G. J. Review: Growth Rate Patterns of Solid Tumors and Their Relation to Responsiveness to Therapy, Ann. Intern. Med 89, 107-121 (1978). A cubic centimeter is generally considered the smallest size at which medical detection and therefore, diagnosis is possible. The tumor is almost always asymptomatic at this size. When a treatable tumor has been detected, immediate therapeutic intervention is indicated because the tumor is regarded as doubling at a rate identical to its subclinical doubling rate, such that a further 10 doublings would fatally produce a tumor of 1 kilogram in size (one trillion cells). Steel, G. C., Growth Kinetics of Tumor's, 381-387 (1977). Tumors are often detected three-quarters or more of the way along their natural course of fatal progression. Tumors arising from cell types in different tissues and organs of the body often have correspondingly different doubling times and therefore, rates of growth. Meyer, J. A. Collective Review: The Concept and Significance of Growth Rates in Human Pulmonary Tumors, Ann. Thorac. Surg. 14(3), 309-322 (1972). These growth rates generally impact upon the responsiveness of treatable tumors to chemotherapy, as well as post-operative prognostic outlook and treatment administration.

B. The Doubling Times of Tumors Have Long Been Recognized As Clinically Valid in Predicting the Responsiveness of Tumors to Chemotherapy, Administering an Effective Dosing Schedule, and Rendering a General Prognosis.

An understanding of tumor growth properties assists clinicians in answering questions essential to therapy planning such as the likelihood of drug resistance, the size at which certain tumors become metastatic, whether chemotherapy on some tumors should proceed surgery, and what combination of chemotherapeutic drugs should be used. The first quantitative study of tumor growth kinetics was made by Collins et. al. in 1956 who reported the growth curve of human pulmonary metastases to be exponential. Collins, V. P., Loeffer, R. K., and Tivey, H., Observations on Growth Rates in Human Tumors, Am. J. Roentgenology 76, 988-999 (1956). From the noted tendency for tumors to grow exponentially, H.E. Skipper and F. Schabel developed the first and preeminent model of neoplasia" based on the near-constant doubling times of tumors. Schabel, F.M., Concepts for Systemic Treatment of Micrometastases, Cancer 35, 15-24 (1975); Skipper, H. E. and Perry, S., Kinetics of Normal and Leukemic Leukocyte Populations and Relevance to Chemotherapy Cancer Res. 30, 1883-1897 (1970). This model has been widely used in clinical practice as an accurate way of deciding the malignancy and growth rate of tumors. See also, Joseph WL, Morton DL, Adkins PC, Prognostic Significance of Tumor Doubling Time in Evaluating Operability in Pulmonary. Metastatic Disease, J. Thorac. Cardiovasc. Surg. 61:23-32 (1971).

"A knowledge of human tumor growth in terms of the kinetics of cellular proliferation is essential to an understanding of the interaction of chemotherapeutic drugs and radiation with tissues." Oxford Textbook of Oncology, supra. In addition, the rate at which cancerous cells destroy surrounding healthy tissue is highlighted as key to understanding disease process and tumor proliferation. "The study of the growth kinetics of cancer cells and tumors is central to clinical oncology. Tumors may be termed malignant because of their capacity to decimate and destroy the function of normal organs, but it is the volume expansion of their aberrant cells that defines neoplasia. The study of the process of growth is thereby fundamental to the understanding of oncologic pathobiology." Comprehensive Textbook of Oncology, supra. Furthermore, the common usage and measurability of doubling times for clinical assessments of risk and survival is put forth in The Oxford Textbook of Oncology. "Most tumors show an exponential growth rate during clinical observation. Therefore, doubling times can be measured, which have shown correlation with survival." Textbook of Oncology, supra.

Within the medical literature, the prognostic importance of doubling times has been established across the various categories of tumor histology and primary induction site. For instance, a study of the prognostic importance of growth rate in bronchogenic carcinomas found that "tumor growth rate (as measured by doubling times) appears to correlate well with the probability of surgical cure." Meyer, J. A., Growth Rate Versus Prognosis in Resected Primary Bronchogenic Carcinomas, Cancer 31, 1468-1472 (1973) A more recent study of the tumor doubling time of primary lung cancers concluded "tumor doubling time was an independent and significant prognostic factor for lung cancer patients." Usuda K., Saito Y., Sagawa M., Sato M., Kanma K., Takahashi S., et al. Tumor Doubling Time and Prognostic Assessment of Patients with Primary Lung Cancer, 74:2239-2244 (1994). The determination of doubling times is a clinically valid and important step in the diagnosis of primary tumors and serves as an indicator of how aggressively treatment should proceed.

C. Clinicians Often Determine the Length of the SubcIinical Induction Period to Distinguish Between "Remission" and "Compete Cure".

Once a tumor has been induced, its growth and clinical manifestation is inevitable.
This process is fatal unless interrupted by death or by an effective treatment.
Mesothelioma, except on rare occasions, is an untreatable and incurable condition.
However, the treatment of tumors which have an effective cure is terminated on the basis
of whether the tumor has entered either a stage of remission--where the tumor might re manifest itself--or the tumor has been eliminated, and therefore completely cured. Ledlie,
E. M., Mynors, L. S., Draper, G. J., and Goldbach, P. D., Natural History and
Treatment of Wilms's Tumor: an Analysis of 335 Cases Occurring in England and Wales,
1962-66. Br. Med. J. 4, 195-200 (1970); D'Angio, G. J., Evans, A. E., and et. al., The
Treatment of Wilms' Tumor: Results of the National Wilms' Tumor Study, Cancer 38,
633-646 (1976). Remission during treatment is the re-entering of the tumor to its
subclinical stage, where the tumor is undetectable but may be actively growing. Presumptive medical treatment continues during remission because the injury posed by a growing tumor is recognized to be serious and life threatening, even though the effects of the tumor are "unseen and unfelt:" Once a tumor has been in remission for a time longer than the original induction period, the cancer is deemed "completely cured."

Coffins et al. also first introduced the estimation of subclinical doubling times in the early stages of tumor growth in 1956 who sought to measure doubling times based on the time of recurrence. His later study of 206 patients with Wilms' tumor supported his estimations of the induction period based on time of recurrence, and provided the earliest clinical validations that human tumors have characteristic doubling times and that a single viable malignant cell can produce a lethal tumor. Collins, V. P., The Treatment of Wilms's Tumor, Cancer 11, 89-94 (1958).

D. Established Scientific Methodology Has Quantified the Doubling Times of Clinical Tumors In the Scientific and Medical Literature.

One of the older techniques of assessing the growth rate of tumors involved counting the proportion of cells in the tumor which are actively dividing (the mitotic index) on histologic slides, but that technique has been largely supplanted by much more reliable methods: The tritiated thymidine labeling index TLI) and enzyme kinase activity provides a more precise way of counting the number of cells in a tumor that are synthesizing genetic material (S-phase) and thereby, are proliferative and non-quiescent. Johnson, H. A. and Bond, V.P., A Method of Libeling Tissues with Tritiated Thymidine in Vitro and its Use in Comparing Rates of Cellular Proliferation in Duct Epithelium, Fibroadenoma and Carcinoma of the Human Breast, Cancer 14, 639-650 (1961); Hery, M., Gionni, J., Lalanne, C. M., Namer, M. and Courdi, A., The DNA Labeling Index: A Prognostic Factor in Node Negative Breast Cancer, Breast Cancer Research and Treatment 9, 207-211; Furner, R. L. and Mellet, L. B., Kinase and Deaminase Activity in a Variety of Subcutaneous Mouse Tumors, Cancer Res. 35, 1799-1803 (1975). Thymidine kinase (TK), one of the enzyme kineses, has been found to correlate well with growth rate over a wide spectrum of human tumors. Greengard, 0., Head, J. F., and Goldberg, S. L., Uridine Kinase, Adenylate Kinase and Guanase in Human Lung Tumors, Cancer Res. 40, 2295-2298 (1980); Greengard, 0., Head, J. F., Goldberg, S. L., and Kirschner, P. A., Biochemical Measure of the Volume Doubling Time of Human Pulmonary Neoplasms, Cancer 55 (7), 1530-1535 (1985). Direct estimates of the volume doubling time can be generated from either method: Greengard 0, Head J.F., Goldberg SL, Kirschner PA., Biochemical Measure of the Volume Doubling Time of Human Pulmonary Neoplasms, Cancer 55:1530-1535 (1985).

The clinical advantages of these techniques are reiterated in The Comprehensive Textbook of Oncology which notes that "tritiated thymidine labeling index.,have for the first time made detailed descriptions of basic growth processes commonly available to the clinician." Comprehensive Textbook of Oncology, supra. Therefore, upon clinical detection, tumor growth can be reliably gauged using techniques accessible to most clinicians.

The Oxford Textbook of Oncology notes "a vast amount of published material on estimations of growth rates and doubling times." Id. Data on volume doubling times for a wide variety of human tumors have been compiled and reviewed in the medical literature establishing accepted values for the doubling times of tumors by induction site and cell line type (Table 1). The literature notes that tumors behave differently in their growth rate according to where in the body they are induced, and according to the type of tissue from which the tumor arises, both of which are knowable through medical detection and diagnosis. Therefore, the wide variation seen in tumor doubling times reflect the different characteristics of tumors which arise from different types of cells in different areas of the body.

Blood system tumors such as lymphoma and leukemia are found to have rapid doubling times and are common in children and young people. Tumors with generally longer doubling ties such as lung cancer, colon cancer and mesothelioma are only rarely found in young people.

E. Mesothelioma Has a Measurable Doubling Time.

The applicability of doubling times has specifically been evaluated for mesotheliomas. The method utilized involves the measure of thymidine kinase and uridine kinase activity. Greengard, 0., Head, J. F., Chahinian, A. P., and Goldberg, S. L., Enzyme Pathology. of Human Mesotheliomas, JNC1 78(4), 617-622 (1987). This method correlated with previously well established measurements based on x-ray estimates of tumor growth rates. There was a statistically significant and important correlation between x-ray estimates of tumor size and thymidine kinase measurements. Id.

The tumor doubling time for tumors ranged from 893 days to 50 days. Id. The average time for tumor doubling was 296 days.

Since the average doubling time for mesothelioma is 42.3 weeks, it can be stated with more than 95 percent certainty, Kenneth J. Rothman & Sandler Greenland, Mordem Epidimiology, (Lippencott Raven Publishers, February, 1998), that a given person S mesothelioma begins at least 9.6 years prior to diagnosis. This also means that 5% of mesotheliomas may develop less than 9.6 years prior to diagnosis.

Appellants have suggested that doubling times are inconsistent with childhood mesothelioma. In fact this is not the case. Short doubling times do rarely occur in mesothelioma, which explains the presence of tumors in children. However, these cases represent less than 5% of all mesotheliomas. Zwicker 31, Proffitt RT, Reynolds CP, A Microcomputer Program for Calculating Cell Population Doubling Time in Vitro and in Vitro, Cancer Chemother. Pharmacol 37:203-210 (1996).

VIII: DON'T DO WHAT I DO, DO WHAT I SAY!

Interestingly, defendants in medical negligence cases regularly use medical experts who rely upon and testify about doubling time where failure to diagnose cancer is at issue. In such cases, the defense is that the cancer had progressed so far in the doubling process

that the failure to diagnose was inconsequential (the person was as good as dead, so what did it matter that the doctor missed the diagnosis?).

It is revealing to note that in cases subsequent to Walatka and Hammond and Brannan, the defendants, recognizing they have the burden of proving the application of the Cap have had no problem finding experts to testify on this subject. Of course, in Hammond, OCF presented no such testimony. In fact, in Hammond, OCF neither presented nor offered to present medical testimony or evidence of any kind at any time on any subjects, because it had nothing of a medical nature to contest.

IX THE CAP STATUTE VIOLATES BOTH THE MARYLAND DECLARATION OF RIGHTS AND THE MARYLAND CONSTITUTION.

The Maryland Cap Statute has withstood previous constitutional challenges. In Murphy v. Edmonds, 325 Md. 342, 601 A. 2d 102(1992), the Maryland Court of Appeals held that the Cap Statute did not violate the equal protection guarantee of Article 24 of the Maryland Declaration of Rights and did not infringe the right to trial by jury guaranteed by Articles 5 and 23 of the Declaration of Rights: The Maryland Court of Special Appeals had previously held in the same case that the Cap Statute did not violate the right to remedy provision set forth in Article 19 of the Declaration of Rights or the separation of powers doctrine set forth in Article 8 of the Declaration of Rights: Edmonds v. Murphy, 83 Md. App: 133, 573 A.2d 853 (1990). Since the decision in those two cases, numerous courts in other jurisdictions have addressed similar Cap statutes and found those statutes unconstitutional on these or other grounds. Thus, the time has now come for Maryland courts to reconsider their position on this matter and restore to injured plaintiffs the right to obtain full compensation.

A. The Cap Statute Violates Article 8 of the Declaration of Rights Because It Eliminates the Inherent Power of the Judiciary to Determine Remittitur on a Case-By-Case Basis.

Article 8 sets forth one of the most basic tenants of our constitutional scheme--the division of power between three co-equal branches of government. See Attorney General of Maryland v. Waldron, 298 Md. 683, 426 A.2d 929 (1981). As early as 1852, the Court of Appeals of Maryland described the important function of Article 8 to "parcel out and separate the powers of government, and to confide particular classes of them to particular branches of the supreme authority . . . . Within the particular limits assigned to each, they are supreme and uncontrollable." Wright v. Wright Lessee, 2 Md. 429, 452 (1852). Indeed, "The doctrine of separation of powers was thought by the founding fathers of this state to be of such monumental importance for the continued safekeeping of our freedoms that they specifically incorporated this tenant into the proposed initial declaration of rights, thereafter adopted as part of the Maryland constitution of 1776." Waldron, 289 Md. at 688-89, 426 A.2d at 933.

In Waldron, the Court of Appeals considered a legislative enactment prohibiting retired judges from practicing law, and concluded that the law infringed upon the judiciary's inherent power to regulate the criteria for the practice of law. In reaching its decision, the court focused upon the inherent powers vested in the judiciary and the ability of the legislature to interfere with or usurp those powers:

The principles discussed in Waldron also are applicable to the Cap Statute. The Supreme Court of Illinois, in Best v. Taylor Machine Works, 179 Iii. 2d 376, 689 N.E. 2d 1057 (1997), recently held that the Illinois version of the Cap Statute unconstitutionally violated die separation of powers doctrine under the Illinois Constitution by acting as a legislatively imposed remittitur. The court focused on the inherent power of the judiciary to order remittitur and the importance and role of that power in the administration of justice, stating "for over a century it has been a traditional and inherent power of the judicial branch of government to apply the doctrine of remittitur, in appropriate and limited circumstances, to correct excessive jury verdicts". Id. at 1079. Ultimately, the court found that legislative remittitur destroyed the fundamental roles of the jury and the judiciary in providing justice on a case-by-case basis.

Similar to Best, die Supreme Court of Washington in Sofie V Fibreboard Corp. , 771 P.2d 711 (Wash. 1989) analyzed whether the damages Cap violated the separation of powers provision of the Washington Constitution. Although the court in Sofie did not base its decision on that issue, the court did note that a legislative remittitur would be unconstitutional:

The Maryland Court of Appeals has never decided whether the Cap Statute violates the separation of powers doctrine. In his dissent in Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102 (1992), however, Judge Chasanow cited the Sofie decision approvingly. Judge Chasanow stated, "If the Cap is intended to be, in effect, a legislatively imposed remittitur, it may even violate the doctrine of separation of powers". Id. at 380, 601 A.2d at 120.

Judge Chasanow' 5 conclusion was accurate. The principles enunciated in Waldron, Best and Sofie mandate that the Cap Statute be held an unconstitutional violation of the requirement of separation of powers. Like the power of the judiciary to regulate the conduct and practice of attorneys, the power of the judiciary to regulate verdicts through the power of remittitur, has long been recognized in Maryland as an inherent and fundamental power of the judiciary. See Conklin v. Schillinger, 255 Md. 50, 257 A.2d 187 (1969); Turner v. Washington Suburban Sanitary Commission, 221 Md. 494, 158 A.2d 125 (1960). "Indeed, it may be said that the practice is as much an incident and corrective of jury trial as the right of a trial court to set aside a verdict on the ground that it is against the evidence, or against the weight of the evidence." Conklin, 225 Md. at 65, 257 A.2d at 195 (citations omitted). This inherent power permits the judiciary to insure justice while, at the same time, preserving the fundamental role of the court and jury in our system of justice. Consequently remittitur is a power that cannot be implemented automatically or based upon a rigid formula.

The Cap Statute acts as a legislative remittitur which deprives the judiciary of its inherent power to utilize its remittitur power on a case by case basis. The Cap Statute automatically instructs the court to remit any portion of the verdict above a predetermined figure regardless of the facts and circumstances of a given case. Consequently, no deference is given to the deliberations of the jury. No assessment is made of the facts, and the plaintiff is not given the right to elect a new trial rather than accept the remittitur. As a result, the Cap Statute usurps the traditional function of the judiciary and replaces the discretionary judicial function of remittitur with a predetermined legislatively mandated remittitur that violates the separation of powers.

B. The Cap Statute Violates the Guarantee in Article XIX of the Declaration of Rights to a Remedy for Injury to Person or Property.

The Cap Statute flatly and arbitrarily restricts the recovery of any plaintiff with severe compensable non-economic injuries and denies any remedy for the increment of harm that such a plaintiff suffers that is greater than $350,000. Far from receiving a remedy for "any injury done to him in his person . . . fully without any denial," as guaranteed by Article 19 of the Declaration of Rights, the plaintiff receives no remedy at all for the most severe components of his injury!

C. The Cap Statute Violates the Maryland Constitution Prohibited Against Special Laws.

Maryland's Constitution was specifically designed to prevent the General Assembly from exercising arbitrary power at the behest of special interests, especially when the exercise undermines the fair administration of justice. Article III, _ 33 of the Maryland Constitution specifically requires the invalidation of statutes that are rationalized on broad grounds but are actually tailored to benefit only a narrow self-selected subset of all who could be served by the legislation. That section provides:

Md. Const. Art. III, 33. The prohibition contained in Art. III, 33 is the one provision in the legislative article of the Maryland Constitution that specifically limits the law making power of the General Assembly. Statutes with artificially narrow focus which are designed primarily to confer some benefit or privilege on a particular private group, rather than to promote the general welfare, are impermissible under this section of the Constitution.

The Cap Statute violates this principle. Though the Cap Statute is proffered as one with general application to all litigation, in fact its scope is much narrower than that. The Cap limits non-economic damages only for the benefit of a narrow class of defendants in a narrow range of cases. For example, the Statute is inapplicable to intentional tort cases. Cole v. Sullivan, 110 Md. App. 79, 676 A.2d 85 (1996). Moreover, the Statute does not apply to claims for pure non-economic loss not involving "personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium or other non-pecuniary injury" such as claims arising in defamation or invasion of privacy cases.

Even though the most active group of litigants in Maryland are businesses, the act does nothing to Cap damages in such cases or to reduce the incidence of suits brought by businesses in Maryland, even though many types of damages in business cases--such as those involving loss of good will, and so on--are at least as difficult to determine as are non-economic damages in personal injury cases. The Cap only targets the sort of non-economic damages typically recovered by ordinary consumers in personal injury and wrongful death cases and as such is nothing but a special interest measure and should therefore be invalidated.

D. The Cap Statute Violates the Right to Jury Trial Guaranteed by Article XIII of the Declaration of Rights.

The Cap Statute establishes legislatively the maximum amount that a plaintiff may recover--regardless of what a jury and reviewing courts determine to be necessary, fair, appropriate and justified compensation. Accordingly, the Cap Statute violates Article XIII of the Maryland Constitution which provides that "The right of trial by jury of all issues of fact in civil proceedings in the several Courts of Law in this state. Where the amount in controversy exceeds the sum of $500, shall be inviolably preserved."

The Cap Statute precludes a jury from performing its constitutionally mandated function. By adopting the Cap Statute, the legislature has effectively asserted that juries are too stupid and too untrustworthy to be allowed to determine the appropriate damages in tort liability cases. The legislature has effectively stated that despite constitutional guarantees to the contrary, citizens should not be allowed to have juries listen to the facts of the case and to decide its outcome in accordance with the law. The Cap Statute thereby precludes juries from performing their constitutionally guaranteed role in the assessment of damages in personal injury cases. Instead, the legislature, in its infinite and superior wisdom, has found it necessary to usurp those rights by establishing a Cap on damages.

E. The Cap Statute Discriminates Against The Most Severely Injured Victims in Violation of Equal Protection Principles.

By denying full remedy to those with the greatest pain, disfigurement and mental suffering, the Cap Statute discriminates against those who are most severely injured. The limitation imposed by the Cap Statute is focused exclusively on the very seriously injured. Such arbitrary and, indeed, mean spirited discrimination offends elementary notions of equal protection. See e.g., Begich v. Industrial Comm'n 42 111. 2d 32, 245 N.E. 2d 457, 459 (1969).

Several courts in other States have invalidated damage caps on similar grounds: See Martin by Scoptur v. Richards, 531 N.W. 2d 70 (Wis. 1995); Sibley v Board of Supervisors of La. State Univ., 477 So. 2d 1094, 11084)9 (La. 1985); Moore V Mobile Infirm Ass'n, 592 So: 2d 156 (Ala. 1991); Arneson v. Olson, 270 N.W. 2d 125 (N.D. 1978); Brannigan v Vostallo, 587 A:2d 1232, 1237 (N.H. 1991); Morris v. Savoy, 576 N.E. 2d 765 (Ohio 1991); Lucas v. United States, 757 S.W. 2d 687, 690 (Tex. 1988).

F. The Cap Statute Fails The Rational Basis, Intermediate Scrutiny And Strict Scrutiny Tests And Thereby Violates State Guarantees to Due Process And Equal Protection.

The damage Cap affects rights both expressly and implicitly safeguarded by the Declaration of Rights and Constitution. Legislation that affects "fundamental rights" is subject to strict scrutiny. The damage Cap touches upon the fundamental right to a legal remedy that is guaranteed in Maryland's Constitution.

Strict scrutiny requires that the challenged legislation further a compelling State interest and "that the State, in pursuing its asserted objectives, has chosen means that do not unnecessarily burden constitutionally protected interests" Memorial Hospital v.

There is no evidence that Maryland now suffers, has in the past suffered or was even at the time of the passage of the Cap Statute, suffering any "crisis" which could justify this legislation. Indeed, the attached reports of the insurance commissioner of Maryland demonstrate that there is no basis for the continuation of the Cap Statute, if such a justification existed in the first place.

Even if this Court does not find it appropriate to apply strict scrutiny, the right of a victim of a serious debilitating personal injury case to a full remedy at law against the person who has wronged him is of sufficient importance to warrant a standard of review higher than the rational basis test. As one commentator points out:

Roy G. Spece, Jr., The Case Against (Arizona) Medical Malpractice Panels, 63 U.Det.L.Rev. 7, 51(1985).

Intermediate scrutiny requires proof of "a fair and substantial relation to the object of the legislation." Reed v. Reed, 404 U.S. 71, 75-76 (1971). Courts applying intermediate scrutiny have looked to whether an asserted insurance "crisis" actually existed in the State. See e.g., Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399, 407 (Idaho 1976); Arneson v. Olson, 270 N.W. 2d 125 (N.D. 1978).

The reports filed by the Maryland Insurance commissioner provide no basis for finding any kind of insurance crisis in this state. In the absence of the existence of a genuine crisis related to the availability and affordability of insurance in Maryland, the Cap Statute is not "substantially related to the object of the legislation," Reed v. Reed, 404 U.S. 71, 75-76(1971), and therefore violates equal protection under intermediate scrutiny.

3. Rational Basis.

Even if this Court determines that the damage Cap is not subject to heightened scrutiny, both the equal protection guarantee of the federal constitution and substantive due process guaranteed by the Maryland Constitution require that, at the very minimum, legislation have a rational relationship to a legitimate state purpose. If a legislative classification or distinction "neither burdens a fundamental right nor targets a suspect class, we will uphold [it) so long as it hears a rational relation to some legitimate end." Romer v. Evans, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996). As the Court of Appeals stated in Murphy v. Edmunds, the rational basis test is satisfied "unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [the Court] can only conclude that the governmental actions were irrational."

Amicus respectfully suggests that under the rational basis test, while the Court may accept the legislative findings that a problem existed in availability of insurance, the Court is not required to accept without question the legislature's assertions that its enactment will achieve the stated goals: As the Supreme Court has stated:

a. There Was No Rational Basis to Believe That the Cap on Damages Would Assist in Making Liability Insurance Available.

Even accepting the legislature's diagnosis, there was no rational basis for believing that limiting awards to $350,000 would significantly increase the availability of liability insurance.

Obviously, the damage Cap does not purport to address the frequency of claims. Indeed, limiting liability may reduce the incentive for safety, giving rise to more potential claims. As one court has observed, "if the medical profession is less accountable than formerly, relaxation of medical standards may occur with the public the victim." Graley v. Satyatham, 74 Ohio 2d 316,343 N.E.2d 832, 838 (Ohio Ct. C.P. 1976).

With the imposition of a Cap on damages, attorneys are unlikely to shrink their practices. Instead, they can be expected to maintain their income by focusing on cases below the Cap with high probability of recovery. Indiana's experience is illustrative. After imposing a $500,000 limit on total damages in medical malpractice cases, Indiana experienced an increase in the number of cases filed, an increase in severity and increase in percentage of cases won by plaintiffs. See E. Kinney, W. Gronfein & T. Gannon, Indiana's Medical Malpractice Act: Result of a Three-Year Study, 24 Ind. L.Rev 1275, 1286 (1991). The Illinois Supreme Court cited these findings in support of its conclusion that there was "no rational basis" for that State's damage cap. Best v. Taylor Machine Works, 689 N.E.2d 1057, 1068-69 (111.1997).

b. There Was No Rational Basis to Believe That the Cap on Damages Would Reduce Insurance Premiums.

Even if the damages cap resulted in lower payouts by insurers, there was no rational basis for legislators to expect that the carriers would use those savings to make coverage more available or affordable. The Cap Statute contains no provision requiring insurers to do so. There is no evidence that damage limits might automatically reduce premiums. Paul Zwier and Dean Piermattei, Who Knows Best About Damages: A Case for Courts' Rights, 93 Dickinson L.Rev. 689, 707-11 (1989)(reviewing studies). Nor did the carriers indicate that tort reform would have this effect.

It might be argued that the legislature intended to stabilize or slow the rise of premiums in future years. However, Amicus submits that the General Assembly was not entitled to limit the rights of Marylanders and impose severe hardship on those few who have suffered serious injury at the hands of those who are negligent for such a vague and speculative objective. As the Texas Supreme Court stated: "In the context of persons catastrophically injured by medical negligence, we believe it is unreasonable and arbitrary to limit their recovery in a speculative experiment to determine whether liability insurance rates will decrease." Lucas v United States supra, 757 S.W.2d at 691 (emphasis added).

CONCLUSION

For all the foregoing reasons, this Court should once again reaffirm its holding in Grimshaw by holding that a claim for asbestos-related mesothelioma arises when cancer develops. This Court should further hold that to the extent application of that test proves difficult in a particular case, the burden rests with the defendant to establish that the Cap Statute applies. Alternatively, this Court should hold that the Cap Statute is unconstitutional and, therefore, is inapplicable to all personal injury cases.

STEVEN G. WARM
210 North Charles Street, Suite 1500
Baltimore, Maryland 21201
(410) 468-4336

Attorneys for White Lung Association

The White Lung Association
P.O. Box 1483
Baltimore, MD 21203-1483
410-243-5864

Table of Contents:

STATEMENT OF THE CASE

STATEMENT OF FACTS

ARGUMENT

I. THIS COURT SHOULD FOLLOW AND APPLY ARMSTRONG, GRIMSHAW AND THEIR PROGENY

II. POLICY REASONS SUPPORT THE APPELLATE COURTS' RULINGS IN GRIMSHAW AND ARMSTRONG.

III. THE PROPOSAL OF OCF AND THE MDC LEADS TO ABSURD RESULTS. FOR INSTANCE, CAUSES OF ACTION CAN ACCRUE BEFORE THEY ARISE!

IX. MARYLAND IS NOT CALIFORNIA AND BUTTRAM IS DISTINGUISHABLE FROM ARMSTRONG, GRIMSHAW AND THEIR PROGENY AS THE CALIFORNIA SUPREME COURT NOTED IN THAT CASE.

V. THE PARTY MOVING TO APPLY THE CAP MUST PROVE THAT THE CAUSE OF ACTION AROSE AFTER JULY 1, 1986

VI. EVEN THE DEFENSE EXPERTS AGREE THAT THE DATE WHEN MESOTHELIOMA FIRST BEGINS TO GROW IS 10 TO 15 YEARS BEFORE DIAGNOSIS.

VII. THE SCIENCE OF CANCER DEVELOPMENT IS NOT BEYOND A JUDGE'S OR JURY'S COMPREHENSION.

A. Tumor Doubling Times

B. The Doubling Times of Tumors Have Long Been Recognized As Clinically Valid in Predicting the Responsiveness of Tumors to Chemotherapy, Administering an Effective Dosing Schedule, and Rendering a General Prognosis.

D. Established Scientific Methodology Has Quantified the Doubling Times of Clinical Tumors In the Scientific and Medical Literature.

E. Mesothelioma Has a Measurable Doubling Time.

VIII: DON'T DO WHAT I DO, DO WHAT I SAY!

IX THE CAP STATUTE VIOLATES BOTH THE MARYLAND DECLARATION OF RIGHTS AND THE MARYLAND CONSTITUTION.

A. The Cap Statute Violates Article 8 of the Declaration of Rights Because It Eliminates the Inherent Power of the Judiciary to Determine Remittitur on a Case-By-Case Basis.

B. The Cap Statute Violates the Guarantee in Article XIX of the Declaration of Rights to a Remedy for Injury to Person or Property.

C. The Cap Statute Violates the Maryland Constitution Prohibited Against Special Laws.

F. The Cap Statute Fails The Rational Basis, Intermediate Scrutiny And Strict Scrutiny Tests And Thereby Violates State Guarantees to Due Process And Equal Protection.

CONCLUSION

Table of Contents:

The White Lung Association P.O. Box 1483 Baltimore, MD 21203-1483 410-243-5864

Table of Contents:

STATEMENT OF THE CASE

STATEMENT OF FACTS

ARGUMENT

I. THIS COURT SHOULD FOLLOW AND APPLY ARMSTRONG, GRIMSHAW AND THEIR PROGENY

II. POLICY REASONS SUPPORT THE APPELLATE COURTS' RULINGS IN GRIMSHAW AND ARMSTRONG.

III. THE PROPOSAL OF OCF AND THE MDC LEADS TO ABSURD RESULTS. FOR INSTANCE, CAUSES OF ACTION CAN ACCRUE BEFORE THEY ARISE!

IX. MARYLAND IS NOT CALIFORNIA AND BUTTRAM IS DISTINGUISHABLE FROM ARMSTRONG, GRIMSHAW AND THEIR PROGENY AS THE CALIFORNIA SUPREME COURT NOTED IN THAT CASE.

V. THE PARTY MOVING TO APPLY THE CAP MUST PROVE THAT THE CAUSE OF ACTION AROSE AFTER JULY 1, 1986

VI. EVEN THE DEFENSE EXPERTS AGREE THAT THE DATE WHEN MESOTHELIOMA FIRST BEGINS TO GROW IS 10 TO 15 YEARS BEFORE DIAGNOSIS.

VII. THE SCIENCE OF CANCER DEVELOPMENT IS NOT BEYOND A JUDGE'S OR JURY'S COMPREHENSION.

A. Tumor Doubling Times

B. The Doubling Times of Tumors Have Long Been Recognized As Clinically Valid in Predicting the Responsiveness of Tumors to Chemotherapy, Administering an Effective Dosing Schedule, and Rendering a General Prognosis.

D. Established Scientific Methodology Has Quantified the Doubling Times of Clinical Tumors In the Scientific and Medical Literature.

E. Mesothelioma Has a Measurable Doubling Time.

VIII: DON'T DO WHAT I DO, DO WHAT I SAY!

IX THE CAP STATUTE VIOLATES BOTH THE MARYLAND DECLARATION OF RIGHTS AND THE MARYLAND CONSTITUTION.

A. The Cap Statute Violates Article 8 of the Declaration of Rights Because It Eliminates the Inherent Power of the Judiciary to Determine Remittitur on a Case-By-Case Basis.

B. The Cap Statute Violates the Guarantee in Article XIX of the Declaration of Rights to a Remedy for Injury to Person or Property.

C. The Cap Statute Violates the Maryland Constitution Prohibited Against Special Laws.

F. The Cap Statute Fails The Rational Basis, Intermediate Scrutiny And Strict Scrutiny Tests And Thereby Violates State Guarantees to Due Process And Equal Protection.

CONCLUSION

Table of Contents:

The White Lung Association
P.O. Box 1483
Baltimore, MD 21203-1483
410-243-5864