Harig v. Johns-Manville Products (1978)

Our plain-English summary of Harig v. Johns-Manville Products (Maryland Court of Appeals, November 21, 1978).

Frances Harig sued Johns-Manville Products Corporation in federal court in Maryland. She alleged that she developed malignant mesothelioma, diagnosed in October 1976, from exposure to its asbestos products between 1940 and 1955. She worked as a secretary for Reid-Hayden, a Baltimore firm that fabricated and warehoused asbestos products bought from Johns-Manville. Her duties took her into areas where employees worked with the products, and she handled files exposed to asbestos dust. She never bought or worked directly with Johns-Manville products. Johns-Manville argued the three-year limitations period began at her last exposure, in 1955, so her suit was late. The federal court asked the Maryland Court of Appeals when a negligence claim and a strict liability claim accrue for a latent disease. The Court of Appeals extended Maryland's discovery rule, previously used in professional malpractice cases, to latent disease. It held that a claim accrues when the plaintiff knows, or reasonably should know, the nature and cause of the injury. It applied the same rule to strict liability claims.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Maryland Court of Appeals
• Decided: November 21, 1978
• Citation: 284 Md. 70
• Stage: Other
• State: Maryland

Outcome. The Maryland Court of Appeals answered certified questions from the federal district court, holding that Mrs. Harig's negligence and strict liability claims accrued on discovery of her latent disease, a ruling that favored her over Johns-Manville.

What the court held. In latent disease cases, a cause of action in negligence or strict liability accrues when the plaintiff discovers, or through reasonable care and diligence should have discovered, the nature and cause of the injury.

Issues decided: Statute of Limitations, Trial Procedure and Discovery.

Why this case is relevant

In this decision, the Maryland Court of Appeals answered questions certified by a federal court. It extended Maryland's discovery rule, until then used in professional malpractice cases, to latent disease. It held that a latent disease claim accrues when the plaintiff knows, or through reasonable care and diligence should know, the nature and cause of the injury, rather than at last exposure. It applied the same rule to strict liability claims. The court reasoned that a person who falls ill years after exposure cannot be charged with slumbering on rights she had no notice of.

Later Maryland Court of Appeals decisions repeated this accrual rule in asbestos cases, including asbestosis claims, and a 2018 decision quoted its "blamelessly ignorant" language. Plaintiffs later asked that court to apply the rule to wrongful death actions. Maryland courts also distinguished accrual under this rule from when a cause of action "arises" under the state's damages cap. Outside Maryland, the Kentucky, Illinois and Michigan supreme courts cited it in asbestos limitations cases. The Arkansas and Maine high courts cited it for the purposes behind statutes of limitations.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Frances B. Harig: mesothelioma

Who	Work	Where	When	Products
Frances B. Harig	secretary; worked near others using it	Reid-Hayden, Inc., Baltimore, Maryland	1940-1955	Johns-Manville asbestos products

The defendants

• Johns-Manville Products Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Borel v. Fibreboard Paper Products Corporation (U.S. Court of Appeals, Fifth Circuit, 1973). The Fifth Circuit affirmed the jury verdict and judgment for Borel's widow against six asbestos insulation manufacturers, including Fibreboard, Johns-Manville, Pittsburgh Corning, Philip Carey, Armstrong Cork and Ruberoid, and denied rehearing.

Later decisions citing this one

24 later decisions in our library cite this one:

• Duffy v. CBS Corporation (Maryland Court of Appeals, 2018). The Court of Appeals of Maryland reversed the Court of Special Appeals and the grant of summary judgment for CBS Corporation (Westinghouse), holding the statute of repose did not bar the Estate of James Piper's claims, and remanded so the circuit court's judgment could be reversed.
• Hendrix v. Alcoa, Inc. (Arkansas Supreme Court, 2016). The Arkansas Supreme Court affirmed the circuit court's dismissal of the estate's wrongful-death and survival suit against Alcoa, holding the workers' compensation exclusive-remedy provision barred it, and denied Alcoa's motion to dismiss the appeal.
• Georgia-Pacific Corporation v. Benjamin (Maryland Court of Appeals, 2006). The Court of Appeals of Maryland affirmed the intermediate appellate court: the survival action against Georgia-Pacific and Union Carbide was time-barred, but summary judgment for the defendants on the wrongful death action was error.
• Buttram v. Owens-Corning Fiberglas Corp. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal, which had affirmed the trial court's refusal to apply Proposition 51 to plaintiff Buttram's noneconomic damages, holding the accrual test wrong and remanding; this favors defendant Owens-Corning.
• Owens-Illinois, Inc. v. Armstrong (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory verdicts for workers Armstrong and Wood against Owens-Illinois, but reversed the punitive damages awards and remanded for new trials limited to punitive damages.
• Bernier v. Raymark Industries, Inc. (Maine Supreme Judicial Court, 1986). Answering questions certified by the federal district court, the Maine court held that state-of-the-art evidence is admissible in a failure-to-warn claim under section 221, that wrongful death damages are recoverable in a section 221 action, and that section 221 applies to pre-1973 inhalation only if the disease manifested after October 3, 1973; this was a partial win for each side, with two justices dissenting on the third question.
• Larson v. Johns-Manville Sales Corp. (Michigan Supreme Court, 1986). The Michigan Supreme Court affirmed the dismissal of all four wrongful death suits to the extent they rested on asbestosis, because they were filed too late, but held that the Glazier and Revard cancer claims against the asbestos manufacturers could proceed.
• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.
• Smith v. Bethlehem Steel Corp. (Maryland Court of Appeals, 1985). The Court of Appeals of Maryland answered two certified questions: workers' compensation § 58 does not toll limitations until an award is made, and a later colon cancer claim can be a separate cause of action accruing on discovery if the cancer is a latent disease distinct from asbestosis. Appellee asbestos suppliers prevailed on the first question and the Smiths on the second.
• Trimper v. Porter-Hayden (Maryland Court of Appeals, 1985). The Court of Appeals of Maryland affirmed the Baltimore City circuit court's judgments for all defendants, holding that the widows' wrongful death and survival claims were time barred because suit was filed more than three years after each husband's death.
• Weinberg v. Johns-Manville Sales Corp. (Maryland Court of Appeals, 1984). The Maryland Court of Appeals affirmed summary judgment for Johns-Manville, holding the New York judgment dismissing the earlier wrongful death suit barred the widow's Maryland wrongful death action.
• O'stricker v. Jim Walter Corp. (Ohio Supreme Court, 1983). The Ohio Supreme Court ruled for the plaintiff, holding the action timely under a discovery rule, and remanded to the trial court for further proceedings on the merits against the asbestos-product defendants.
• Pierce v. Johns-Manville Sales Corp. (Maryland Court of Appeals, 1983). The Court of Appeals of Maryland reversed the summary judgment for Johns-Manville and the other defendants and remanded, holding the estate's survival and wrongful death actions for lung cancer were not time-barred.
• Bunker v. National Gypsum Co. (Indiana Supreme Court, 1982). The Indiana Supreme Court vacated the Court of Appeals' opinion and affirmed the Industrial Board's denial of asbestosis benefits to Richard Bunker, holding the three-year limitation period constitutional and National Gypsum the winner.
• Nolan v. Johns-Manville Asbestos (Illinois Supreme Court, 1981). The Illinois Supreme Court affirmed the appellate court's reversal of summary judgment for the defendants (Johns-Manville and others) and remanded to the circuit court, so the plaintiff's estate may proceed on the asbestosis claim.
• Louisville Trust Co. v. Johns-Manville Products (Kentucky Supreme Court, 1979). The Kentucky Supreme Court reversed the Court of Appeals' ruling that the limitations period barred the claim, held the Sampson estate's suit against Johns-Manville timely, and remanded for the Court of Appeals to consider Johns-Manville's other assignments of error.
• Wilson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, District of Columbia Circuit, 1982). The D.C. Circuit reversed the district court's summary judgment for Johns-Manville and the other asbestos defendants, which had dismissed Blannie Wilson's survival and wrongful death claims as time-barred, and remanded for further proceedings.
• Ins. Co. North America v. Forty-Eight Insulations (U.S. Court of Appeals, Sixth Circuit, 1980). The Sixth Circuit affirmed the district court's judgment adopting the exposure theory, so all of Forty-Eight Insulations' insurers on the risk during the exposure years share defense and indemnity costs pro rata, with Forty-Eight bearing the share for uninsured years; INA, Affiliated FM, Illinois National and Liberty Mutual lost, and Forty-Eight and Travelers largely won.
• Benjamin v. Union Carbide Corporation (Maryland Court of Special Appeals, 2005). Affirmed summary judgment for Union Carbide and Georgia Pacific on the survival action as time-barred, but reversed it on the wrongful death action and remanded, so Elsie Benjamin may continue that claim.
• Anchor Packing Co. v. Grimshaw (Maryland Court of Special Appeals, 1997). The appeals court held that the statutory cap on noneconomic damages applies to the wrongful death awards in Zumas and McCaffery, but not to the personal injury and consortium awards. It ordered Grimshaw's medical-expense award cut to the stipulated amount and reversed the judgment against Hopeman Brothers. It otherwise affirmed the judgments for the plaintiffs against Anchor and Owens-Corning.
• Staiano v. Johns-Manville Corp. (Pennsylvania Superior Court, 1982). Affirmed summary judgment for the asbestos product manufacturer defendants, holding the Staianos' claims were barred by the two-year statute of limitations.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (Illinois Appellate Court, 1st District, 1979). The appellate court reversed the summary judgment that the circuit court had granted to all defendants on limitations grounds and remanded, so the plaintiff estate may proceed and a fact-finder will decide when Nolan knew or should have known of his asbestosis.
• Curtin v. Cyprus Amax Minerals Co. (U.S. District Court, District of Maryland, 2020). The court dismissed the claims against Cyprus and Avon without prejudice for lack of personal jurisdiction and granted plaintiffs' motion to voluntarily dismiss the claims against JJCI without prejudice, denying JJCI's surreply and pleadings motions.
• In re Johns-Manville Corp. (U.S. Bankruptcy Court, Southern District of New York, 1984). The bankruptcy court granted Keene Corp.'s motion to appoint a legal representative for future asbestos claimants in the Manville reorganization, holding that those claimants are parties in interest, and set a later hearing on the representative's form and function.

On our site

• Maryland Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

284 Md. 70 (1978)

394 A.2d 299

FRANCES B. HARIG

v.

JOHNS-MANVILLE PRODUCTS CORPORATION

[Misc. No. 1, September Term, 1978.]

Decided November 21, 1978.

Court of Appeals of Maryland.

[*71] The cause was argued before MURPHY, C.J., and SMITH, DIGGES, LEVINE,[*] ELDRIDGE, ORTH and COLE, JJ. John T. Enoch, with whom were Goodman, Meagher & Enoch on the brief, for appellant.

Robert E. Scott, Jr., with whom were John H. Mudd and Semmes, Bowen & Semmes on the brief, for appellee. MURPHY, C.J., delivered the opinion of the Court.

Pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974), §§ 12-601 to 12-609 of the Courts and Judicial Proceedings Article, the United States District Court for the District of Maryland has certified for our consideration two questions of law:

1. At what time does a plaintiff's cause of action for negligence accrue when plaintiff developed a disease in late 1975 or early 1976, allegedly as a result of exposure during the period 1940-55 to a deleterious

substance allegedly occasioned by defendant's negligence?

2. At what time does a plaintiff's cause of action for strict liability accrue when plaintiff developed a disease in late 1975 or early 1976, allegedly as a result of exposure during the period 1940-55 to a deleterious

substance emanating from defendant's products?

For reasons that follow, we hold that a plaintiff's cause of action for latent disease, whether framed in terms of negligence or strict liability, accrues when he discovers, or through the exercise of reasonable care and diligence should have discovered, the nature and cause of his disability or impairment. Our decision in this matter is premised upon an analysis of the rationale underlying the applicable statute of [*72] limitations, considered in conjunction with authoritative case law construing when a cause of action accrues.

Frances Harig, the designated appellant in this proceeding, instituted a civil action in the United States District Court for the District of Maryland on May 23, 1977 against the appellee Johns-Manville Products Corporation (Johns-Manville), alleging that she developed a disease in late 1975 or early 1976 as a result of exposure to the appellee's asbestos products from 1940 through 1955. During the period 1940-55 (except for a short period as a federal employee in Washington, D.C.), Mrs. Harig was employed as a secretary for Reid-Hayden, Inc. (Reid-Hayden), a Baltimore firm engaged in the purchasing, fabrication, sale and installation of asbestos products.

Johns-Manville mines, processes and sells products containing asbestos to independent fabricators who then shape, cut and otherwise create a finished product for their customers' needs. During the period 1940-55, Johns-Manville sold products containing asbestos to Reid-Hayden, which fabricated them into finished products.

Most of these products were fabricated and some were warehoused two stories above the office where Mrs. Harig was employed as a secretary. In addition, Reid-Hayden also warehoused other products containing asbestos in other buildings on its premises.

Mrs. Harig alleged in her complaint that part of her secretarial duties with Reid-Hayden required her to enter areas where employees of the firm were working with products containing asbestos, as well as handling files that had been exposed to asbestos dust. It was during the course of this employment that Mrs. Harig alleges that she was exposed to Johns-

Manville's asbestos products. It is alleged that that exposure directly and proximately caused her to develop a malignant mesothelioma, described as a cancer of the pleura and pericardium.

Mrs. Harig left the employ of Reid-Hayden in January of 1955 and since that date has had no known asbestos exposure. At no time during the course of her employment with [*73] Reid-Hayden or subsequent thereto, did Mrs. Harig ever purchase or work directly with any of Johns-Manville's products. After leaving Reid-Hayden, Mrs. Harig was employed by the Western Maryland Railway Co. She retired on June 1, 1977.

Until November, 1975, Mrs. Harig claimed to be in good health. But soon thereafter she developed a cough. In 1976, she was hospitalized on three occasions. On October 27, 1976 her condition was diagnosed as malignant mesothelioma, and she was so advised by her physicians. Mrs. Harig alleges that she did not suffer any consequential damages from her exposure to products containing asbestos until after 1975.

The complaint filed in the District Court consisted of three counts and sought both compensatory and punitive damages. Count I alleged negligence; Count II alleged a breach of warranty; and Count III alleged strict liability due to Johns-Manville's sale of its products in a defective and dangerous condition. Johns-Manville raised the defense that the claim was barred by limitations. On March 2, 1978 the District Court dismissed Count II and the punitive damage claim as to Count III. It concluded, however, that with regard to the applicable statute of limitations "there are involved in this case two questions of law of the State of Maryland, the answers to which may be determinative of this case." Finding that "there are no controlling precedents among the decisions of the Court of Appeals of Maryland as to those questions," the District Court certified the two questions previously set forth concerning the time at which a cause of action accrues in situations involving the latent development of disease.

Code, § 5-101 of the Courts Article provides: "A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period." Mrs. Harig contends that because of the latent nature of her illness, her cause of action, whether framed in terms of traditional negligence concepts or in terms of strict liability, did not accrue until she knew or reasonably should have known of the injury — at the earliest when the cough developed in 1975. She urges that we so construe the statute and thereby apply the "discovery rule," previously [*74] recognized in Maryland, but heretofore limited to cases of professional malpractice.[1] See, e.g., Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972); Leonhart v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972); Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969); Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969); Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969); Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917). In the alternative, Mrs. Harig argues that her cause of action did not accrue until she suffered consequential damages because, until that time, she could not have maintained either her negligence or strict liability action to a successful result.

Johns-Manville contends that the statute of limitations began to run, at the latest, when Mrs. Harig was last exposed to its asbestos products. It characterizes Mrs. Harig's latent disease as "[l]ater injurious developments ... merely elements of damage ... not in and of themselves individual causes of action." Under this construction, Mrs. Harig's cause of action would have been time-barred three years after she left Reid-Hayden.

I

In a case in which limitations is an issue, it is necessary to ascertain the date from which the cause of action accrues. The certified questions involve the determination of when a cause of action accrues in situations in which the occurrence of a wrong (exposure to a deleterious substance) and the subsequent development and discovery of a latent disease are not contemporaneous. Judge Finan, speaking for the Court in Mattingly v. Hopkins, 254 Md. 88, 92-93, 253 A.2d 904 [*75] (1969), underscored the complexities of such issues in these words:

"Like most general rules of law, those pertaining to `limitations' become less than profound when an attempt is made to apply them to specific cases. Much has been written as to when `limitations' should start to run. Some courts have held the cause of action accrues when the defendant commits his wrong, others when the plaintiff discovers the wrong, and still others have held that it does not accrue until the maturation of harm. Sometimes the happening of the wrong, the knowledge of it and the maturation of the harm are

simultaneous. When this occurs the recognition of the accrual of the cause of action is simple, when these

elements happen sequentially it can become complex. Furthermore, there are nuances of difference in the accrual of the cause of action in cases arising out of actions ex contractu, as distinguished from actions ex delicto, and a further hybridization of actions arising out of professional malpractice and otherwise." While § 5-101 mandates when suit on a civil action at law is foreclosed, it does not define the word "accrues" and thus does not indicate when the three-year time period is triggered. Absent such statutory definition, the question of when a cause of action accrues is left to judicial determination. Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 172 (1977); Berry v. Branner, 245 Or. 307, 421 P.2d 996, 999 (1966); Jones v. Sugar, 18 Md. App. 99, 105, 305 A.2d 219 (1973). See 1 H. Wood, Limitation of Actions, 685, 686 (4th ed. 1916); Developments in the Law — Statutes of Limitations, 63 Harv. L. Rev. 1177, 1203-1205 (1950) [hereinafter cited as Developments in the Law]. The determination is properly made with reference to the rationale underlying statutes of limitations. These purposes include encouraging promptness in instituting actions, suppressing stale or fraudulent claims, and avoiding inconvenience which may stem from delay when it is practicable to assert rights. Morgan v. Grace Hospital, [*76] Inc., 149 W. Va. 783, 144 S.E.2d 156, 161 (1965). The chief consideration is fairness to the defendant — providing assurance that no ancient obligations remain, and relieving him of defending against a claim after "evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 88 L.Ed. 788 (1944). See also Callahan, Statutes of Limitations — Background, 16 Ohio St. L.J. 130 (1955). Our own cases emphasize that the adoption of statutes of limitations reflect a policy decision regarding what constitutes an "adequate period of time" for "a person of ordinary diligence" to pursue his claim. Walko Corp. v. Burger Chef Systems, Inc., 281 Md. 207, 215, 378 A.2d 1100 (1977); McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 159, 40 A.2d 313 (1944).

In Maryland, the general rule is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong is discovered. Killen v. Geo. Wash. Cemetery, 231 Md. 337, 190 A.2d 247 (1963). The legislature has promulgated exceptions to this general rule. See, e.g., Code (1974) §§ 5-102 (c), 5-104 (b), 5-201, 5-203 of the Courts Article. None of these exceptions is applicable to the present case. Our predecessors have recognized two other departures from the general rule: the continuation of events theory and the discovery rule. Compare Vincent v. Palmer, 179 Md. 365, 19 A.2d 183 (1941) and W., B. & A. Elec. R.R. Co. v. Moss, 130 Md. 198, 100 A. 86 (1917) (adopting the continuation of events theory) with Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917) (applying the discovery rule to a medical malpractice claim). Only the latter exception concerns us here.

Ordinarily, a potential tort plaintiff is immediately aware that he has been wronged. He therefore is put on notice that the statute of limitations begins to run from the date of the alleged wrong. R.J. Reynolds Tobacco Co. v. Hudson, 314 F.2d 776, 781-782 (5th Cir.1963). Our predecessors recognized, however, that in professional malpractice cases, the fact that a tort has been committed may go unnoticed for years, because the plaintiff is unqualified to ascertain the initial [*77] wrong and could not reasonably be expected to know of the tort until actual injury is experienced. Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). The inherently unknowable character of this type of cause of action, coupled with the peculiarly harsh consequences of adherence to the general rule of accrual from the date of the "wrong," prompted our predecessors to recognize the discovery principle in determining when a cause of action accrues for latent injury resulting from professional malpractice.

Other jurisdictions have applied the discovery rule, in various factual situations, for similar or analogous reasons. One such theory is that a cause of action simply cannot exist until there has been an injury or consequential damage which is discoverable by a reasonably prudent plaintiff. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 792 (1959). Other courts simply emphasize that a contrary result does violence to the purpose of statutes of limitation, because a plaintiff who could not have known of his cause of action cannot be accused of slumbering on his rights. E.g., Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 173-74 (1977); Berry v. Branner, 245 Or. 307, 421 P.2d 996, 998-99 (1966). In this regard, one commentator has stated that "[a]s between the duly diligent plaintiff and the wrongdoer, the courts have been unnecessarily sympathetic towards the latter, in shortening the period in which it is likely that the plaintiff will bring an action or in entirely depriving the plaintiff of a practical remedy." Developments in the Law, 63 Harv. L. Rev. at 1205. Those courts applying the discovery rule consider any unfairness to the defendant as either outweighed by, or at least to be measured against, the unfairness of depriving a reasonably prudent plaintiff of an opportunity to present his claim. Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 176-77 (1977); Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563, 567 (1973).[2]

[*78] Maryland first recognized the discovery rule in Hahn v. Claybrook, 130 Md. 179, 100 A. 83 (1917), a medical malpractice case. Although the plaintiff's recovery in Hahn was barred by the limitations statute, because she had, in fact, discovered

her injury more than three years prior to the filing of suit, the Court enunciated the rule as follows: "The ground of the cause of action in this case, was the discoloration of the plaintiff's skin by the use of the drug called argentum oxide, and the statute began to run from the time of the discovery of the alleged injury therefrom." Id. at 187.

The Hahn decision formed the basis for subsequent application of the discovery rule to an action for negligent design and construction of a wall. Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945). In that case, we recognized that where there had been a negligent construction of a stone wall on another's land in 1929, but no realization or discovery of the claimed defects until 1939, the cause of action accrued in 1939.

The discovery rule received its most comprehensive articulation in Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). Analyzing Hahn and authorities from other jurisdictions, the Court expressly adopted the discovery rule in medical malpractice actions, holding that the right of action for malpractice accrues when the patient knows or should know that he has suffered injury or damage. In so holding, it was noted that the unreasonable and inequitable consequences of a contrary rule, leaving blameless victims without a remedy in various classes of cases, had led many courts and some legislatures to adopt the discovery rule in one form or another.

In the period from 1969 to 1972, we extended the applicability of the discovery rule to all cases of professional malpractice. In Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969), involving an action against a civil engineering firm to recover damages for alleged breach of contract and misrepresentation, we said at 94-95:

"We see no basic distinction between the application [*79] of the `discovery rule' in a medical malpractice case and in the instant case, which assuming that engineering is a profession, is in essence a professional

malpractice situation."

Similarly, in Mumford v. Staton, Whaley & Price, 254 Md. 697, 255 A.2d 359 (1969), a case involving a claim of professional malpractice against an attorney, we refused to make "favored litigants of attorneys by applying a less stringent rule to members of the legal profession than to doctors or surveyors." Id. at 714. The Court stated that "limitations should be applied in the same manner to all suits for professional malpractice...." Id.

Subsequently, we recognized the applicability of the discovery rule to cases of accounting malpractice, Leonhardt v. Atkinson, 265 Md. 219, 289 A.2d 1 (1972); Feldman v. Granger, 255 Md. 288, 257 A.2d 421 (1969), and reiterated its applicability to architectural, Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 277 (1969), and legal malpractice, Watson v. Dorsey, 265 Md. 509, 290 A.2d 530 (1972).

In our judgment, the critical factor, which precipitated our adoption of the discovery rule in the professional malpractice cases, is equally present in the instant case. We noted in a professional malpractice case against an accounting firm that the rule "gives to the individual exercising reasonable diligence the full benefit of the statutory period in which to file suit, while at the same time protecting the defendant from `stale claims,' as was intended by the statute." Feldman v. Granger, supra, 255 Md. at 297. The same rationale calls for application of the discovery rule in cases of latent disease.[3] [*80] If the construction of § 5-101 urged upon us by Johns-Manville were adopted, "a person of ordinary diligence" would have an " [in]adequate period of time" to pursue his claim. Walko Corp. v. Burger Chef Systems, Inc., 281 Md. at 215. Like the victim of undiscoverable malpractice a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself. In neither case can the tort victim be charged with slumbering on his rights, for there was no notice of the existence of a cause of action. This feature distinguishes these situations from ordinary tort cases, which require no exception to the general rule that knowledge of the wrong is immaterial, because usually some harm will be apparent to a reasonably diligent plaintiff. Developments in the Law, 63 Harv. L. Rev. at 1203. Compare Reynolds Tobacco Co. v. Hudson, 314 F.2d 776, 781-82 (5th Cir.1963) and Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 792 (1959) with 35 Tenn. L. Rev. 335, 339 (1968). In cases where the initial injury is inherently unknowable, however, the statute of limitations should not begin to run until the plaintiff should reasonably learn of the cause of action. Developments in the Law, 63 Harv. L. Rev. at 1207. Avoiding possible injustice in such cases outweighs the desire for repose and administrative expediency, which are the primary underpinnings of the limitations statute. Id. at 1204; Birnbaum, "First Breath's" Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279, 290 (1977).

In construing statutes of limitation worded similarly to § 5-101 of the Courts Article, the clearly discernible trend of recent decisions in state and federal courts favors application of the discovery rule in latent disease cases. Reynolds Tobacco Co.

v. Hudson, 314 F.2d 776, 785 (5th Cir.1963); [*81] Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94, 100 (1967). See Birnbaum, "First Breath's" Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279, 282, 285; Phillips, An Analysis of Proposed Reform of Products Liability Statutes of Limitations, 56 N.C.L. Rev. 663, 664 (1978); 4 Am. Jur. Trials § 35 (1966); Products Liability — Accrual and Limitations of Actions, 35 Tenn. L. Rev. 335, 340 (1968). Moreover, recognition of the discovery principle in these types of cases has gained favor in the commentaries. See, e.g., Annot., 11 A.L.R.2d 277, 295 (1950); Birnbaum, "First Breath's" Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279, 282 (1977); Developments in the Law, 63 Harv. L. Rev. at 1204-05; 34 Tex. L. Rev. 480, 482 (1956). The first application of the discovery rule to a latent disease case was the Supreme Court's decision in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), which involved interpretation of when a cause of action accrues within the meaning of the Federal Employers' Liability Act. In Urie, the Court focused on the unreasonableness and inequity of interpreting accrual as of the date of last exposure to an "inherently unknowable harm." The Court recognized that such an interpretation would mean that the federal compensation scheme provided a delusive remedy, because the victim's "failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability." Id. at 169. Pointing out that Urie's disease resulted from exposure over a period of time rather than at a point of time, the Court concluded: "We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights." Id. at 170.

A number of subsequent decisions, citing Urie, have recognized the discovery rule's application to cases involving [*82] latent disease. The Second Circuit, construing Connecticut law, reached this conclusion on the basis that a contrary result would be unreasonable and would nullify any right to recover for many latent and insidious diseases. Ricciuti v. Voltarc Tubes, Inc., 277 F.2d 809, 813 (2d Cir.1960). Accord, Brush Beryllium Co. v. Meckley, 284 F.2d 797, 798-800 (6th Cir.1960); Sylvania Elec. Products, Inc. v. Barker, 228 F.2d 842, 847-48 (1st Cir.1955), cert. denied, 350 U.S. 988 (1956); City of Miami v. Brooks, 70 So.2d 306, 308-09 (Fla. 1954).

The similarities between unknown professional malpractice and latent disease cases underlie a number of recent decisions recognizing the discovery rule in the latter type case. The Fifth Circuit explicitly recognized the analogy between the discovery rule applied in medical malpractice cases and court decisions holding that a cause of action for injuries from exposure to deleterious substances over a period of time does not accrue until the effects are manifest. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1102 (5th Cir.1973), cert. denied, 419 U.S. 869 (1974). In a well-reasoned opinion, the Supreme Court of New Hampshire reviewed authorities applying the discovery rule to products liability cases, and applied the rule, then recognized in medical malpractice situations, to a suit against a drug manufacturer for latent side effects. Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 177 (1977). Similarly, Texas law has been construed to apply the discovery rule to such a cause of action, based on the same rationale that supports its application to malpractice cases. Thrift v. Tenneco Chemicals, Inc., 381 F. Supp. 543, 545-46 (N.D. Tex. 1974). See also Wigginton v. Reichold Chemicals, Inc., 133 Ill. App.2d 776, 274 N.E.2d 118, 121 (1971). But cf. Johns-Manville Products Corp. v. Louisville Trust Co., PROD.LIAB.REP. (CCH) ¶ 7956 (Ky. App. 1977) (intermediate court refused to extend malpractice discovery rule to latent disease case).

The Supreme Court of New Jersey has given broad application to the discovery rule "whenever equity and justice" demand, concluding that each case requires a balancing of the parties' competing equities. Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563, 566-67 (1973). A number of other [*83] courts appear to have adopted a broad view of the discovery principle's applicability. See, e.g., Grigsby v. Sterling Drug, Inc., 428 F. Supp. 242, 243 (D.C.C. 1975), aff'd without opinion, 543 F.2d 417 (D.C. Cir.1976); McCroskey v. Bryant Air Conditioning, 524 S.W.2d 487, 490-91 (Tenn. 1975); G.D. Searle & Co. v. Superior Court, 122 Cal. Rptr. 218, 220, 49 Cal. App.3d 22 (Ct. App. 1975); Neilson v. Arizona Title Ins. & Tr. Co., 15 Ariz. App. 29, 485 P.2d 853, 854 (1971). See also Romano v. Westinghouse Elec. Co., 114 R.I. 451, 336 A.2d 555, 560-61 (1975); Chrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94, 100 (1967). But cf. Gates Rubber Co. v. USM Corp., 508 F.2d 603, 614-15 (7th Cir.1975) (refusing to read Illinois cases to apply discovery rule to property damage action in commercial setting).

It is thus clear that authorities from other jurisdictions recognize the applicability of the discovery rule in contexts other than professional malpractice. We think our earlier decisions applying the discovery rule to professional malpractice actions are properly to be extended to cases involving, as here, latent disease. Both classes of tort plaintiffs may, in appropriate

circumstances, be "blamelessly ignorant" of the fact that a tort has occurred and thus, ought not be charged with slumbering on rights they were unable to ascertain. Therefore, in situations involving the latent development of disease, a plaintiff's cause of action accrues when he ascertains, or through the exercise of reasonable care and diligence should have ascertained, the nature and cause of his injury.

II

We think Mrs. Harig's strict liability action should be treated the same under § 5-101 as her negligence action. In Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976), we stated that "[a]n action under the theory of strict liability ... [is] governed by the general tort limitations period ... which is three years but may begin to run at a later time." Id. at 350. Implicit in this statement is our recognition that the theory of strict liability does not mark a "radical [*84] departure" from established tort concepts. Rather, "the major distinction between an action in strict liability in tort and one founded on traditional negligence theory relates to the proof which must be presented by the plaintiff." Id. at 350-51. Bearing this distinction in mind, the limitations statute presumably serves the same purposes and is premised upon the same rationale whether an action is framed in negligence or strict liability. Hence, the statute ought to be applied consistently. Consequently, our holding today with regard to the discovery doctrine in latent disease cases, applies to a strict liability action to the same extent it applies to an action sounding in negligence. See Burch, A Practitioner's Guide to the Statute of Limitations in Product Liability Suits, 5 U. Balt. L. Rev. 23, 39 (1975).

Questions of law answered as herein set forth; costs to abide the result.

[*] Reporter's Note: Levine, J., participated in the hearing of the case and in the conference in regard to its decision but died prior to the adoption of the opinion by the Court.

[1] Johns-Manville has characterized this construction of the statute as the "maturation of harm" rule, a rule which we have refused to adopt. See, e.g., Watson v. Dorsey, 265 Md. 509, 512, 290 A.2d 530 (1972). But, as we hereafter point out, our decision in this matter is consistent with those cases refusing to adopt the "maturation of harm" rule, because the present case involves the complete ignorance of any actionable injury as distinguished from simple ignorance of the extent of injury.

[2] The New Jersey court suggested that determinative factors in the balance may include the nature of the alleged injury, the availability of witnesses and written evidence, the time lapse since the alleged wrongdoing, whether the delay was to any extent deliberate, and whether it unusually prejudiced the defendant. Lopez v. Swyer, supra.

[3] Johns-Manville argues that the discovery rule, as applied to professional malpractice, should not be extended to cases of latent disease, buttressing its argument with the following dictum contained in a footnote in Atwell v. Retail Credit Co., 431 F.2d 1008 (4th Cir.1970): "The exception for professional malpractice cannot fairly be described as a possible opening wedge to a general change in the Maryland rule; it is an exception of long standing having been applied as early as 1917. The reasons for Maryland's application of the `discovery of the wrong' rule in professional malpractice cases — the relation of trust, reliance on professional expertise, and the likelihood that injury will not occur simultaneously with the wrongful act or omission — are all peculiarly related to the nature of professional conduct." Id. at 1010 (fn. 1).

While the three factors outlined in Atwell may be present in the professional malpractice cases, we have never adopted such a tri-partite formulation. The critical factor in the instant case is the inherently unknowable character of the cause of action. Just as in the professional malpractice cases, however, our decision in this matter does not signal "a general change in the Maryland rule."

Sources

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• Maryland asbestos laws
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