Hollingsworth v. Connor

• Decision Date: 28 December 2000
• Docket Number: No. 1489,1489
• Citation: 764 A.2d 318,136 Md. App. 91
• Parties: HOLLINGSWORTH & VOSE COMPANY, et al. v. Charles M.P. CONNOR.
• Court: Court of Special Appeals of Maryland

764 A.2d 318

136 Md. App. 91

HOLLINGSWORTH & VOSE COMPANY, et al. v. Charles M.P. CONNOR.

No. 1489, Sept. Term, 1999.

Court of Special Appeals of Maryland.

December 28, 2000.

Andrew J. McElaney, Jr., (David L. Ferrera and Nutter, McClennen & Fish, LLP, Boston, MA, Kathleen M. McDonald and Kerr McDonald, LLP, Baltimore, on the brief), for appellant, Hollingsworth & Vose Co.

James E. Gray (Andrew Gendron, Michael B. MacWilliams, Goodeil, DeVries, Leech & Gray, LLP, Baltimore, Roger C. Geary, David B. Thorne, Deborah A. Calton and Shook, Hardy & Bacon, LLP, Kansas City, MO, on the brief), for appellant, Lorillard Tobacco Co.

Timothy J. Hogan (William C. Burgy, Michael T. Edmonds and Law Offices of Peter T. Nicholl, on the brief), Baltimore, for appellees.

Argued before THIEME, KENNEY and JAMES S. GETTY, (Ret'd, Specially Assigned), JJ. THIEME, Judge.

ON MOTION FOR RECONSIDERATION

A jury in the Circuit Court for Baltimore City awarded appellee, Charles M.P. Connor, $2.225 million dollars for damages resulting from mesothelioma induced from the asbestos in Kent cigarettes; appellee died two months later. Appellants, Hollingsworth & Vose Company ("H & V") and Lorillard Tobacco Company ("Lorillard"), promptly appealed from that judgment, and present the following questions, which we have rephrased, renumbered, and consolidated for clarity:

1. Did the trial court err, as a matter of law, in denying H & V's motion to dismiss for lack of personal jurisdiction, because of the lack of contacts of H & V and its subsidiary with the State of Maryland?

2. Did the trial court err, as a matter of law, by instructing the jury that it could not consider plaintiff's exposure to the asbestos-containing products of non-parties?

3. Did the trial court err, as a matter of law, by instructing the jury that H & V and Lorillard had a post-sale continuing duty to warn about the potential danger of a perishable consumer product?

4. Did the trial court err, as a matter of law, by refusing to include a state of the art instruction on the jury verdict form?

5. Did the trial court err in allowing Dr. Dement to testify concerning the work of Dr. Longo, because such testimony lacked foundation and was both hearsay and deficient, and further err in allowing Dr. Dement to offer opinions outside his area of expertise based on this improperly admitted evidence?

6. Did the trial court err in both its instructions and special verdict form with respect to application of the Cap Statute and, furthermore, err in denying the defendants' post-trial motion with respect to the issue?

7. Did the trial court err in denying defendants' motion for judgment and/or for new trial, when plaintiff had produced insufficient evidence that the original Kent filter caused his disease?

8. Did the trial court err in denying defendants' post-trial motion to dismiss, or, in the alternative, to exhume plaintiff's body?

9. Did the trial court err in denying defendants' post-trial motion seeking appropriate credits under the Uniform Act?

We answer "yes" to question 1, remand as to questions 6 and 9, and answer "no" to questions 2, 3, 4, 5, 7, and 8. We explain.

Facts

Appellee was diagnosed with mesothelioma in June of 1997 and died as a result of this disease on July 3, 1999. Testimony adduced that appellee's mesothelioma was induced by his exposure to asbestos, although there was divergence as to whether his mesothelioma was caused by the asbestos contained in Kent cigarettes or the occupational asbestos to which he had been subjected. Appellee initially sued 27 "occupational defendants" that manufactured, distributed, or installed asbestos and/or asbestos-containing industrial or commercial products. Appellee alleged that he contracted mesothelioma because he was occupationally exposed to asbestos and asbestos-containing products for 25 years while working as an assembly man and electronics technician at an aircraft manufacturing facility.

Appellee later amended his complaint to include both appellants, contending that his mesothelioma was also substantially induced due to smoking Kent cigarettes from 1952 through 1956, at a time when these cigarettes contained crocidolite asbestos as one of the components in their filters. Lorillard manufactured and distributed the Kent brand cigarettes, and H & V manufactured the crocidolite asbestos filter used in the Kent cigarettes. When trial commenced, only four defendants remained. During jury deliberations, the last two "occupational defendants" settled with plaintiff; thus, H & V and Lorillard were the only remaining defendants. Subsequently, the jury returned a verdict in favor of the plaintiff against H & V and Lorillard in the amount of $2.225 million, with $225,000 representing medical expenses and $2 million representing non-economic damages. Final judgment was entered; this appeal followed.

I Personal Jurisdiction over H & V

Discussion

H & V contends that the trial court erred by denying its motion to dismiss for lack of personal jurisdiction. It argues that the State of Maryland lacks personal jurisdiction because it is a non-resident defendant, and jurisdiction cannot be achieved under Maryland's long-arm statute.

H & V is not a Maryland corporation; it was incorporated under the laws of the Commonwealth of Massachusetts, and its principal place of business is in that state. Thus, in order for a Maryland court to assert personal jurisdiction over H & V, it must do so through Md.Code (1973, 1998 Repl.Vol., 2000 Cum Supp.), § 6-103 of the Courts and Judicial Proceedings Article ("CJ"), which provides:

(a) Condition.—If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.

(b) In general.—A court may exercise personal jurisdiction over a person, who directly or by agent:

(1) Transacts any business or performs any character of work or service in the State;

(2) Contracts to supply goods, food, services, or manufactured products in the State;

(3) Causes tortious injury in the State by an act or omission in the State;

(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State;

(5) Has an interest in, uses, or possesses real property in the State; or

(6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.

The purpose of this statute is to give the courts personal jurisdiction over all out-of-state defendants who purposefully avail themselves of the privilege of conducting activities in Maryland, thus invoking the benefits and protections of Maryland law. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56 (4th Cir.1993); Malinow v. Eberly, 322 F.Supp. 594 (D.Md.1971); Mohamed v. Michael, 279 Md. 653, 370 A.2d 551 (1977) (it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state—thus invoking the benefit and protection of its laws); Harris v. Arlen Properties, Inc., 256 Md. 185, 260 A.2d 22 (1969).

Appellee's Arguments

Appellee points out that H & V "was directly involved in the promotional undertakings" together with Lorillard in regard to the Kent cigarettes and that "H & V even went so far as to place an upper level employee at Lorillard on a full-time basis." We are given no specific examples of such conduct in appellee's brief. We will not consider this, or subsequent, general conclusory arguments that are supported only by circular reasoning and that are not appropriately correlated with specific legal authority or evidence included in the transcript.

The same holds true for appellee's vacant claim that H & V "took affirmative steps to help insure that consumers in Maryland would smoke Kent cigarettes." The record extract in this case consists of five volumes, totaling 3,350 pages. If appellee had evidence of specific instances that would support such allegations, he should have made reference to the record extract. We will not peruse the record extract to find evidentiary support for appellee's conclusory statements.

The liberalizing provision relating to record extracts in Rule 8-501(c) does not excuse the failure to furnish in the brief references to factual material in support of a party's argument as required by Rule 8-504(a)(4). Nor does the liberalization in Rule 8-501(c) alter the fundamental rule of appellate practice under which the appellate court has no duty independently to search through the record for error.

ACandS, Inc. v. Asner, 344 Md. 155, 192, 686 A.2d 250 (1996).

Appellee states that "H & V and Lorillard jointly developed the asbestos filter and jointly incorporated it into a product which they placed in the national stream of commerce, including Maryland." Appellee also states that "H & V profited directly from the sales in Maryland and elsewhere—a profit which was 100% contingent upon the marketing effort." Although appellee's arguments may, at first glance, seem seductive, we are not so gullible, devoid of worldly knowledge, or so childlike in our approach to realities that we can be deceived and hoodwinked by claims that have no factual or legalistic basis. First, appellee presents not a spark of evidence to support his claim that H & V had any involvement with Lorillard's placement of the cigarettes in the stream of commerce. Other than a typical manufacturer-retailer relationship, there is no evidence of a joint venture or partnership between the two companies. H & V merely produced the filters that were...