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Christensen v. Philip Morris USA Inc.6/8/2005
ng cancer with his previous smoking history." The following deposition testimony of Dr. Bedon is pertinent:
[QUESTION]: So you, to make sure I understand your answer, you would have related his cancer to his smoking?
[DR. BEDON]: Yes. As part of the type of the cells and all that, yes.
[QUESTION]: You would have discussed that with Mr. and Mrs. Christensen?
[DR. BEDON]: Yes.
[QUESTION]: Both in the initial meeting in June as well as when - -
[DR. BEDON]: Once we had the biopsy. Once we have the true tissue diagnosis - - and that was in, is that September? Well, let's see.
So he had the biopsy.... It was in August [of 1998]. Then he had all the studies done. Okay. So - - and then he was seen in September. So that is when we discussed that, in September [of 1998].
[QUESTION]: I believe you testified, didn't you, Dr. Bedon, that you all talked [in August 1998] about cancer when you got the sputum cytology results?
[DR. BEDON]: Yes, we did.
[QUESTION]: At that time did you relate Mr. Christensen's condition to his cigarette smoking?
[DR. BEDON]: I did not talk about that at that point, no. When he got the sputum test, no, I did not talk about that. It was at the time of the biopsy. At the time of the meeting in September, sometime around, you know, when we got together.
[QUESTION]: Do you recall, Dr. Bedon, when you met with Mr. and Mrs. Christensen when you received the sputum cytology, did they mention the cigarette smoking?
[DR. BEDON]: I don't remember that.
(Emphasis added).
Subsequent lymph node biopsies performed in September 1998 by Dr. Paul M. Leand, a thoracic surgeon, showed that Mr. Christensen's lung cancer was metastatic. As we indicated, Mr. Christensen died on January 17, 2001.
The court held a motion hearing on November 12, 2003. Thereafter, on November 19, 2003, the court issued an Opinion and Order granting appellees' summary judgment motion as to all claims.
In its ruling concerning the survival claims, the court applied the "discovery rule" with respect to the statute of limitations. It found that the "undisputed facts" supported the conclusion that " he conditions necessary to place Mr. Christensen on inquiry, if not actual, notice of a potential claim against [appellees] existed more than three years before Mrs. Christensen filed suit." The court pointed out that, between July 29 and August 5, 1998, the Decedent was told that he "clearly had cancer." Of significance here, the court also determined that the Decedent "immediately attributed his lung cancer to smoking." Moreover, the court was of the view that Christensen "had every reason to suspect, and did suspect, as early as the spring of 1998 that he may have been injured by cigarettes." In this regard, the court noted that the Decedent was "fully aware" of the "association between cigarette smoking and lung cancer" by January 1976.
The court said:
The period of limitations on filing suit is not delayed (or tolled) until the conclusion of an investigation or, as here, pending a conclusive diagnosis or opinion as to the cause of the injury or illness.... Of course, this clearly means that a person who suspects wrongdoing must file suit within the time of the statute of limitations. Inquiry notice exists when the facts and circumstances would have caused a reasonable person in the plaintiffs' position to investigate in such a manner so that the investigation, if pursued with reasonable diligence, would have revealed the alleged claim. Pennwalt Corp., supra, 314 Md. at 448-49, 550 A
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