ACandS, Inc. v. Abate

ROBERT F. FISCHER, Judge (retired), Specially Assigned. The appeal before us is from the second major consolidated trial in the Circuit Court for Baltimore City arising from exposure to asbestos-containing products. The first consolidation, known as Abate I, was tried before the Honorable Marshall A. Levin from February 18, 1992 to August 10; 1992. In that proceeding, the cases of six illustrative plaintiffs were tried to full and final judgments, and certain common issues raised by 8,549 other plaintiffs, who filed suit prior to October 1, 1990, were also tried.

Those common issues were, in essence, whether the defendants manufactured, sold, distributed, or installed defective products, whether the defendants had and violated any duty to warn of dangers inherent in the products, and whether the defendants could be found liable for punitive damages. Whether the common issue plaintiffs were actually exposed to and damaged by the products was to be determined at subsequent “mini-trials.” Although more than 100 defendants were named in Abate I by combinations of the illustrative plaintiffs and common issue ⁶⁰³ plaintiffs, the claims against all but 15 of the defendants were dismissed prior to trial. A variety of cross-claims and third-party claims were filed among the various trial defendants and settling defendants. Judge Levin severed all but two of those claims from the case, to be tried in a subsequent, related proceeding. 1 During trial, nine of the defendants settled, leaving the number of defendants against whom verdicts were actually sought at six.

Ultimately, in Abate I, the jury found in favor of three of the illustrative plaintiffs and against the other three. On the common issues, the jury found six defendants and one cross-claim defendant negligent and strictly liable. It found four defendants liable for punitive damages, but one of those defendants settled and another was dismissed from the case after filing for bankruptcy. On appeal, the Court of Appeals reversed the punitive damages findings and affirmed in part and reversed in part the awards of compensatory damages to the trial plaintiffs.

See Godwin, 340 Md. 334 , 667 A.2d 116 . The case now before us, known as Abate II, was tried before the Honorable Richard T. Rombro. In accordance with a plan initiated by Judge Levin and modified by Judge Rombro and, apparently, The Honorable Joseph H.H. Kaplan, Administrative Judge, Abate II tried the cases of five trial plaintiffs 2 to full and final judgments. 3 It also tried: common issues, identical to those common issues tried in Abate I, as to ⁶⁰⁴ approximately 1,300 4 cases filed between October 1, 1990 and October 1, 1993; the cross-claims and third-party claims severed from the Abate I proceeding; and cross-claims and third-party claims from Abate II. As in Abate I, the cases of the common issue plaintiffs are to be finally adjudicated at mini-trials.

The five trial plaintiffs in Abate II (hereinafter referred to collectively, at times, as the “appellees”), all of whom were represented by counsel from the same law firm, were John Joseph Goodman, Leonard Ciotta, Frederick Glensky, Carroll Morrow, and Terry Theis. 5 They, and the estimated 1,300 common issue plaintiffs, filed claims for negligence and strict liability against numerous defendants. While the parties do not specify precisely how many defendants were originally named in the suits and how many were dismissed or settled before or during trial, and we cannot glean that information from the record extract, we determine that verdicts were ultimately sought against 11 defendants, including the five appellants in the appeal now before us: Rapid-American Corporation (hereinafter “Rapid”), a successor in interest to Philip Carey Manufacturing Company; John Crane, Inc. (hereinafter “Crane”), a manufacturer of pipe-sealing products; U.S. Mineral Products Company (hereinafter “U.S. Mineral”), a manufacturer of fire-proofing spray; E.L. Stebbing & Co., Inc. (hereinafter “Stebbing”), a contracting company; and Hampshire, Industries, Inc. (hereinafter “Hampshire”), also a contracting company. 6 Verdicts were also sought against 14 ⁶⁰⁵ cross-defendants or third-party defendants. Judge Rombro divided Abate II into three phases. Phase I began on June 22, 1994, with closing argument ending on December 1, 1994.

In Phase I, all of the issues with respect to the five trial plaintiffs were tried. In addition, the common issues regarding any other defendants named by any of the approximately 1,300 common issue plaintiffs were tried, as were the cross-claims and third-party claims against all Phase I defendants. Any defendant that settled with plaintiffs prior to or during Phase I was removed from Phase I to Phase II if that defendant was the subject of a cross-claim. On December 2,1994, at the conclusion of Phase I, all of the issues tried in that phase were submitted to the jury.

In addition to its common issue findings, the jury found in favor of all five of the trial plaintiffs. It awarded damages to the trial plaintiffs as follows: - Goodman - total compensatory award of $9,000,000.00, consisting of $3,000,000.00 for personal injuries, $1,000,-000.00 for injury to the marital relationship, and $5,000,-000.00 to Irene Goodman as surviving spouse. - Ciotta - total compensatory award of $500,000.00 for personal injuries. 7 - Glensky - total compensatory award of $1,100,000.00, consisting of $1,000,00.00 for personal injuries and $100,-000.00 for injury to the marital relationship. - Morrow - total compensatory award of $7,000,000.00, consisting of $6,000,000.00 for personal injuries and $1,000,-000.00 for injury to the marital relationship. - Theis - total compensatory award of $2,500,000.00 consisting of $2,000,000.00 for personal injuries and $500,000.00 for injury to the marital relationship. ⁶⁰⁶ The amounts of the judgments entered against the defendants were affected by the terms of settlements made prior to and during trial. In light of the settlements, Judge Rombro determined a specific number of joint tortfeasor shares as to each plaintiff, with shares attributable to each judgment defendant and each settling defendant. Each judgment defendant was jointly and severally liable to a particular plaintiff only for the number of shares to be paid to that plaintiff by the total number of judgment defendants.

Judgment defendants were not jointly and severally liable for those shares of the settling defendants, as those shares were satisfied by the amounts of consideration paid for the settlements. 8 All five of the appellants were found liable to some combination of trial plaintiffs. Rapid was found liable to Goodman and Ciotta. Crane was found liable to Glensky, Morrow, and Theis. U.S. Mineral and Hampshire were found liable to Goodman, Glensky, Morrow, and Theis.

Stebbing was found liable to Glensky and Theis. Phase II of Abate II commenced on January 4, 1995 before the same jury, and the presentation of evidence took 11 days. In Phase II, cross-claims ánd third-party claims from both Abate I and Abate II were tried. Such claims included, inter alia, indemnity claims against defendants who were dismissed from Abate I or who settled with plaintiffs in either Abate I or Abate II 9 . ⁶⁰⁷ Before submitting the Phase II issues to the jury, Judge Rombro proceeded on to Phase III.

In that final phase, evidence was presented from which the jury could determine, as to those defendants who were found potentially liable in Phase I for punitive damages, the amount of punitive damages to be awarded for each dollar of compensatory damages. The presentation of evidence in Phase III lasted only one day. The Phase II and Phase III issues were then submitted to the jury and, on February 17, 1995, the jury returned its verdicts. A flurry of post-trial motions followed, most of which were denied.

Notably, however, Judge Rombro eliminated most punitive damages awards by: granting appellant Rapid’s motion for judgment notwithstanding the verdict as to punitive damages for the actions of its corporate predecessor prior to 1963; granting Phase I defendant Westinghouse Electric Corporation’s motion for judgment notwithstanding the verdict as to punitive damages; and granting the motion for judgment notwithstanding the verdict of Phase I defendant HarbisonWalker as to all punitive damages and as to compensatory damages in favor of Goodman and Ciotta. 10 ⁶⁰⁸ Many of the Phase I and Phase II defendants then noted appeals to this Court. Several pre-hearing conferences were held and, ultimately, a three-judge panel of this Court issued a written order by which it defined the parameters of this appeal. See PHC No. 618, September Term, 1995 (filed April 18, 1996). Writing for the panel, former Chief Judge Wilner explained: In Shenansky [Shenasky] v. Gunter, 339 Md. 636, 638 [ 664 A.2d 882 ] (1995), the Court confirmed that “[i]n an action for money damages, an order which decides that there is liability, or which resolves some liability issues in favor of a party seeking damages, but fails to make a determination with regard to the amount of damages, does not dispose of an entire claim and cannot be made final and appealable under Rule 2-602(b).” In such a case, the appellate court has no choice but to dismiss the appeal, which is what the Court did in Shenansky [Shenasky] .

That principle was applied in [ACandS v. Godwin, 340 Md. 334 , 667 A.2d 116 (1995) (reviewing Abate I) ] when the Court dismissed the appeal ⁶⁰⁹ of Owens-Illinois, which had been taken from the Phase I verdict resolving some liability issues against it. Id. at 6. The panel concluded that only the appeals filed by Rapid, Crane, U.S. Mineral, Stebbing, and Hampshire from the final judgments in the cases of the five trial plaintiffs could proceed. Id. at 6-7.

Pursuant to a subsequent order of this Court filed on October 31, 1996, four of the five appellants — Rapid, Crane, U.S. Mineral, and Stebbing — have filed a joint brief in which they set forth arguments common to all of the appellants. See PHC No. 618, September Term, 1996 (filed October 31, 1996). Hampshire did not join in the brief but has adopted it “to the extent not inconsistent with [its] positions.” 11 In addition, each of the five appellants have filed briefs setting forth their own specific arguments on appeal. 12 ⁶¹⁰ We address first the arguments set forth in the joint brief. Specifically, the appellants 13 argue in their joint brief that: I. The Abate II consolidated trial violated Md. Rule 2-503 and due process principles guaranteed by the Fourteenth Amendment to the Constitution of the United States, in that: A. The trial was unduly confusing and prejudicial because of: 1. the large number of defendants, products, and claims involved, 2. the nature of the phasing and the lack of distinction between the phases, such as the participation of the cross-plaintiffs and third-party plaintiffs in Phase I, and 3. the court’s decision to permit the plaintiffs to select all five of the trial plaintiffs, B. The verdict forms referred to product categories rather than to specific brand names, and C. The jury returned a number of erroneous verdicts that reflected its confusion.

II

The appellants were denied their right to a fair and impartial jury, in that: A. The trial court dismissed a majority of the venire for hardship reasons without verifying that there were, in fact, any hardships and without regard to the effect of the dismissal on the composition of the jury pool, B. The plaintiffs improperly exercised their peremptory challenges to strike potential jurors on the basis of race, and C. The trial court refused to conduct voir dire and refused to declare a mistrial after the plaintiffs engaged in an ex parte communication with the jury. All of the appellants mount individual challenges to the sufficiency of the evidence to support the various judgments in ⁶¹¹ favor of the trial plaintiffs, which we shall address in part III herein. In particular: III. A. Rapid, U.S. Mineral, and Hampshire contend that the evidence was insufficient to support the judgments in favor of Goodman, B. Rapid contends that the evidence was insufficient to support the judgment in favor of Ciotta, C. Crane, U.S. Mineral, Stebbing, and Hampshire contend that the evidence was insufficient to support the judgments in favor of Theis, D. Crane, U.S. Mineral, Stebbing, and Hampshire contend that the evidence was insufficient to support the judgments in favor of Glensky, and E. Crane, U.S. Mineral, and Hampshire contend that the evidence was insufficient to support the judgments in favor of Morrow.

The appellants lodge additional challenges as well. Rapid contends that: IV. The judgments against it should be reversed because Judge Rombro refused to strike evidence that had not been disclosed during pretrial discovery, and V. The awards to Goodman and Ciotta were “grossly excessive” or, in the alternative, the award to Ciotta should have been reduced in conformance with the statutory cap. Stebbing and Hampshire assert that: VI.

Judge Rombro erred in instructing the jury on the duties of nonmanufacturing suppliers and installers, and VII. Judge Rombro erred by refusing to instruct the jury that strict liability does not apply where the predominant purpose of the defendant’s conduct was provision of a service rather than the sale of goods. To that end, Hampshire further contends that the evidence was insufficient to establish that it was a seller of goods. U.S. Mineral contends that: VIII.

Judge Rombro erred by refusing to instruct the jury that a duty to warn of the hazards of asbestos might be ⁶¹² discharged by warning or instructing a reliable third-party intermediary. We find no merit in the joint arguments as to the propriety of the consolidation and the fairness and impartiality of the jury, although we do find that several of the dates of liability on the common issue verdict sheets require reformation by the trial court. We agree that the evidence was insufficient to establish that U.S. Mineral or Stebbing were liable to any of the appellees, or that Hampshire was liable to Goodman or Morrow. We therefore reverse all of the judgments obtained by trial plaintiffs against U.S. Mineral and Stebbing, and the judgments of Goodman and Morrow against Hampshire.

We further agree that the award to Ciotta must be reduced in conformance with the statutory cap. Finally, we agree that Judge Rombro erred in refusing to grant Hampshire’s request that he instruct the jury on the predominant purpose test. We shall not address U.S. Mineral’s argument regarding Judge Rombro’s failure to give a jury instruction regarding a warning to a reliable third-party intermediary, as we find that the evidence against U.S. Mineral was insufficient and the instruction urged would not apply to any other appellant. 14 Similarly, we shall not address the additional arguments made by Stebbing, although we address them to the extent that they are made by Hampshire as well. 15 ⁶¹³ - JOINT ARGUMENTS - I THE CONSOLIDATION Maryland Rule 2-503(a)(l) provides: “When actions involve a common question of law or fact or a common subject matter, the court, on motion or on its own initiative, may order a joint hearing or trial or consolidation of any or all of the claims, issues, or actions.” Any such consolidation, of course, must comport with due process principles. See U.S. Const. amend.

XIV, § 1. In Godwin , 340 Md. 334 , 667 A.2d 116 , the Court of Appeals reviewed the Abate I consolidation. As we have observed, that case involved 8,555 plaintiffs — 8,549 common issue plaintiffs and six illustrative plaintiffs — and, ultimately, six judgment defendants. The Court summarized the conduct of the trial as follows: Judge Levin divided the issues to be decided into four phases, and the court took jury verdicts on special interrogatories for each phase.

Phase I decided, as to specific products of each remaining defendant and of the two cross-claim defendants, whether that defendant was negligent and/or strictly liable and, if so, the year in which liability arose and the year in which it may have ended.... Phase II resolved individual issues as to the six illustrative plaintiffs. These issues included: (1) whether the plaintiff was a foreseeable user and/or bystander; (2) whether the plaintiff had contracted an asbestos-related disease and, in the wrongful death cases, whether that disease had caused the death; (3) the years, if any, during which the plaintiff was exposed to the products of specific defendants named in the special verdict form, and (4) for those defendants for which years of exposure were found under issue three, whether that exposure was a substantially contributing factor in causing the asbestos related disease and/or death. The remaining issues in phase II dealt with cross-claims and the amount of compensatory damages. ⁶¹⁴ Phases III and IV addressed punitive damages.

The punitive damages issues were common issues under the consolidation order.... Id. at 344-45 , 667 A.2d 116 (footnotes omitted). The Court of Appeals concluded that the Abate I consolidation complied with Rule 2-503(a)(l) and the Fourteenth Amendment. It explained: In an asbestos product liability failure to warn action sounding in strict liability or negligence and brought against a manufacturer or a distributor-installer, a plaintiff must show that the defendant knew or should have known that distribution of the product involved an unreasonable risk of causing physical harm to the consumer____ Thus, absent the consolidation, each of the 8,549 [common issue] plaintiffs would be required to prove state of the art[ 16 ] as to [each of the defendants] to that plaintiffs claim.

The defendants submit that the 8,555 plaintiffs in the consolidation have different occupations, were exposed at different times, at different workplaces, have different diseases, and different medical histories. But none of these factors diminishes the commonality of the Phase I [common] issues, and the Phase I [common issue] determinations are the only determinations that will be applied against the defendants-appellants at mini-trials of the other plaintiffs’ actions. Issues involving a plaintiffs burden on state of the art in an asbestos products liability failure to warn case are particularly appropriate for consolidations. Absent unusual circumstances, it is senseless to repeat the presentation of the same evidence against the same defendants in successive, individual trials or mini-consolidations.

After only a brief introduction to asbestos litigation one recognizes that the ⁶¹⁵ same medical studies, medical journal articles, workers’ compensation claims, third-party suits, depositions of witnesses, transcripts of court testimony, minutes of meetings, correspondence, and other exhibits are produced against the same defendants in trial after trial throughout the nation. Indeed, the documents have been photocopied so many times for an ever-expanding distribution among members of the plaintiffs and defense bars that the copies introduced into evidence are nearly illegible. Id. at 395-96 , 667 A.2d 116 . The Court recognized: “The concern of a defendant in an asbestos cases consolidation is that its particular defense may be lost in the mass of evidence.

One measure of the volume of evidence that will be introduced is the number of parties.” Id. at 402 , 667 A.2d 116 . It nevertheless rejected the appellants’ contentions that the consolidation violated Rule 2-503(a) and due process principles, and opined: The defendants’ principal argument for the unconstitutionality of the consolidation is that the number of parties, the number of issues, and the volume of the evidence make the proceeding so complex and overwhelming that it is beyond the capacity of the jury to resolve the issues on the law and the evidence, with the result that the defendants are deprived of a fair trial. It should be borne in mind, however, that the subject consolidation was not a consolidation of 8,555 cases for resolution of all of the issues in all of the cases in one trial. Because the same evidence that was introduced here would have been introduced if only the actions of the six illustrative plaintiffs had been tried, the merits of defendants’ complexity argument should be tested, not by the number of parties who will be bound by the determination of common issues, but by the cases addressing the consolidation of multiple asbestos actions for full trial on the merits.

The jury in the instant matter dealt with six plaintiffs cases against, initially, twelve defendants. By the time the issues were submitted to the jury, there were only six defendants and two cross-claim defendants____ [CJourts [in other jurisdictions] have had no ⁶¹⁶ difficulty in approving consolidations for full trial on the merits of asbestos actions involving considerably more parties. Id. at 397-98 , 667 A.2d 116 . 17 The joint appellants do not argue that any consolidation of asbestos cases would be improper. Indeed, any such argument would be incompatible with Godwin .

Instead, the joint appellants argue that Abate II far exceeded the scope of the consolidation approved in Godwin and failed to employ any of the safeguards that kept Abate I within the guidelines of Rule 2-503 and the Fourteenth Amendment. Contrary to the joint appellants’ suggestion, however, the Court of Appeals did not indicate in Godwin that Abate I was the benchmark, defining the outer limits of an acceptable consolidation. The Court expressly recognized that “courts [in other jurisdictions] have had no difficulty in approving consolidations ... involving considerably more parties.” 340 Md. at 398 , 667 A.2d 116 . See, e.g., Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir.1986) (approving planned class action against 13 defendants for trial to determine common issues regarding state of the art defense, with claims of ten representatives to be tried in full); In re New York Asbestos Litigation, 145 F.R.D. 644 (approving planned consolidation of claims of 12 plaintiffs, who alleged exposure to asbestos at various worksites, against 88 defendants and third-party defendants for full trial on all ⁶¹⁷ issues), upheld upon reconsideration, 149 F.R.D. 490 (S.D.N.Y.1993) (observing that, due to settlements, the number of expected plaintiffs had been reduced to six, the number of expected defendants had been reduced to 12, and the number of expected third-party defendants had been reduced to two); In re Eastern and Southern Districts Asbestos Litigation, 772 F.Supp. 1380 (E. & S.D.N.Y.1991) (approving consolidated trial of all issues regarding claims of 64 plaintiffs, who alleged exposure to asbestos at Brooklyn Navy Yard over 50-year period, against six defendants), aff'd in part, rev’d in part on other grounds sub nom.

In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831 (2d Cir.1992); West Virginia ex rel. Appalachian Power Co. v. MacQueen, 198 W.Va. 1 , 479 S.E.2d 300 (1996) (approving planned consolidation of asbestos-related premises liability claims of about one thousand plaintiffs against 17 owners of 33 premises for trial on common issues); Cimino v. Raymark Indus., Inc., 739 F.Supp. 328 (E.D.Tex.1990) (approving class action tried against several defendants on issues of product defectiveness and punitive damages, with claims of ten representatives having been tried in full); Wilson v. Johns Manville Sales Corp., 107 F.R.D. 250 (S.D.Tex.1985) (approving consolidated trial of asbestos-related claims of 50 plaintiffs against 14 defendants that determined common issues regarding product defectiveness and punitive damages), aff'd, 810 F.2d 1358 (5th Cir.), cert. denied, 484 U.S. 828 , 108 S.Ct. 97 , 98 L.Ed.2d 58 (1987); Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Pa.1982) (approving consolidated trial on all issues regarding asbestos-related claims of 15 plaintiffs against six defendants), aff'd sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir.1985); Compare Malcolm, 995 F.2d 346 (invalidating consolidation that involved full trial of claims of 48 plaintiffs against 25 defendants, plus numerous cross-claims and third-party claims, where plaintiffs alleged exposure to asbestos at more than 40 different power-generating stations); Cain v. Armstrong World Indus., 785 F.Supp. 1448 (S.D.Ala.1992) (invalidating consolidation that involved full trials as to 10 personal injury actions and three wrongful ⁶¹⁸ death actions against several manufacturers of asbestos-containing products). A. Confusion and Prejudice 1.

Large Number of Defendants, Products, and Claims The joint appellants complain that “the Abate II trial exceeded the complexity of Abate I by many orders of magnitude — involving, inter alia, significantly more defendants and cross-defendants, shifting and confusing alignments of parties, and a greater number of varied products ranging from refractories to packing materials.” The appellants point out that some of the cross-defendants and third-party defendants were not named in the plaintiffs’ suits. They assert that Abate I focused upon “traditional” asbestos insulation products, while Abate II involved “diverse products” which required “specific and complicated defenses.” The joint appellants conclude that the jury was simply overwhelmed by the number of defendants, cross-defendants, and third-party defendants, 18 and the variety of products. As we shall discuss in part I.C, infra, the Abate II verdicts do not reflect confusion on the part of the jury. In fact, they reflect that the jury was reasonably competent in distinguishing between each defendant and each product.

The joint appellants offer no reason to believe that the jurors were unable to determine what evidence applied to which defendant or cross-defendant. They offer no reason to believe that the jurors could not determine, for example, that certain evidence pertained to a particular defendant’s fireproofing spray rather than to another defendant’s encapsulated gaskets or refractory bricks. It is significant, as it was in Abate I, that much of the evidence presented applied to all of the various defendants and their products. See 340 Md. at 395-96 , 667 A.2d 116 . ⁶¹⁹ As the Court of Appeals explained in Godwin, 340 Md. at 398 , 667 A.2d 116 , and as the above-cited cases illustrate, courts in other jurisdictions have upheld consolidations of equal or greater complexity.

Absent some concrete indication that the jury was so overwhelmed that it was unable to do its job, the contentions of the joint appellants are unconvincing. 2. Phasing of Trial The joint appellants next contend that, because Abate II was structured differently than Abate I, it was unduly confusing and prejudicial. They point out that Abate I was tried in four phases, while Abate II was tried in three phases. The implication is that the various claims and defendants were neatly separated in Abate I, but were jumbled together in Abate II.

In fact, the phasing of the two trials was more similar than the joint appellants would have us believe. As we have indicated, in Abate I, the common issues as to all of the defendants and the two cross-defendants that had settled with the trial plaintiffs were decided in Phase I. The remaining issues regarding the illustrative plaintiffs were decided in Phase II, arid issues regarding punitive damages were addressed in Phases III and IV. In Abate II, Phase I involved: the common issues as to all of the defendants named by the trial plaintiffs and common issue plaintiffs; cross-claims and third-party claims against any of the Phase I defendants who did not settle with the plaintiffs prior to or during trial; and all remaining issues regarding the trial plaintiffs. Phase II involved the cross-claims and third-party claims from Abate I, plus those cross-claims and third-party claims against defendants who were never Phase I defendants or who settled with plaintiffs prior to or during trial.

Phase III involved punitive damages. Thus, in the context of the joint appellants’ argument, the significant difference in the phasing of Abate I and Abate II was that Abate II combined, in one phase, the common issue claims against all of the defendants and all of the issues raised ⁶²⁰ by the trial plaintiffs. To some degree in both trials, cross-claims were permitted in phases that involved direct claims by plaintiffs against defendants. The joint appellants urge that the jury was confused and that all of the defendants were prejudiced by the participation of cross-plaintiffs in Phase I of the trial.

They contend that Abate I and Abate II cross-claims, as well as Phase II defendants, were “interjected” into Phase I, thus “overloading the jury with additional defendants, products, and worksites not at issue in any of the claims against Phase I defendants.” The joint appellants posit that Judge Rombro could have alleviated the problem somewhat by instructing the jury as to the precise roles of the cross-plaintiffs and by informing it of “various settlements and other secret arrangements between plaintiffs and cross-plaintiffs.” They contend that the judge instead exacerbated the problem by suggesting, in his instructions as to Phase I, that the Abate II defendants were as culpable as the cross-plaintiffs, and by permitting the cross-plaintiffs to cross-examine witnesses regarding matters that were of no concern to their own cases. In opening statements at the start of Phase I, counsel for one of the cross-plaintiffs, Owens-Corning, explained that Owens-Corning was a defendant in Abate I but was now “aligned with the plaintiffs----” Counsel for Pittsburgh Corning explained in opening statement that his client had “stipulated with the plaintiffs in this case that our product is defective.” He made clear that the position of the cross-plaintiffs was that “there are a lot of other fish in the sea. There are a lot of other companies who need to step up to that line and take responsibility.” Judge Rombro required each attorney who examined any witness below to identify himself or herself and his or her client. In this way, the judge ensured that the jury was clearly apprised as to precisely who was conducting the examination.

Following the presentation of evidence in Phase I, but before the issues were submitted to the jury, Judge Rombro instructed the jury as follows: ⁶²¹ Now, in order for you to fully understand what you are deciding in this case, I am going to give you a little background about this trial, some of which you know and some of which you may not know. This trial is actually part two of a proceeding which began over two years ago. In the prior proceeding there was a trial during which another jury was asked to decide whether the products of Pittsburgh Corning, Porter-Hayden, ACandS [three of the four cross-plaintiffs/third-party plaintiffs] and other companies were defective and unreasonably dangerous. The trial took several months, just as this one has.

The jury in that prior trial determined the asbestos products of Pittsburgh Corning, Porter-Hayden and ACandS were defective and unreasonably dangerous. That finding against Pittsburgh Corning, Porter-Hayden and ACandS applies to all of the asbestos cases before you. In this trial you must decide whether the products of other defendants are defective and unreasonably dangerous. Pittsburgh Corning, Porter-Hayden and ACandS claim that the products of these other companies are also defective and may have contributed to causing injury in the asbestos cases before you.

Now, Owens-Corning [the fourth cross-plaintiff/third-party plaintiff] was sued by plaintiffs and was a defendant in thousands of cases that are now before you on the common issues. The claims of liability against Owens-Corning by plaintiffs have been resolved, and Owens-Corning is now participating as — in this trial as a cross-plaintiff to obtain common issue findings against certain other defendants. It is doing this so that it may pursue claims against these defendants in subsequent trials which will be heard later by other juries. You do not need to decide, in this case, anything about Owens-Corning.

With this instruction, Judge Rombro amplified what counsel for Owens-Corning and Pittsburgh Corning explained in open ⁶²² ing statements — that the cross-plaintiffs were attempting to establish that additional companies were liable to the plaintiffs and thus, hopefully, to reduce the amount of their own liability. Contrary to the joint appellants’ contention, the judge in no way suggested that the trial defendants were, in fact, as culpable as the cross-plaintiffs. Cf Godwin, 340 Md. at 413-14 , 667 A.2d 116 (trial court properly advised jury that certain defendants had settled with plaintiffs during trial, and court’s instructions to jury to disregard comments by plaintiffs’ counsel tending to “paint those defendants who remain[ed] in this trial unfairly as the bad guys who have refused to settle” were sufficient to dispel any potential prejudice). The joint appellants complain that the phasing of the trial was further complicated by Judge Rombro’s policy of permitting the cross-plaintiffs to examine witnesses in Phase I about claims to be decided in Phase II, and even about claims in which the cross-plaintiffs had no interest.

A review of the record makes clear that the examinations conducted by counsel for the cross-plaintiffs were aimed at adducing evidence in favor of the cross-plaintiffs cases, although the evidence may coincidentally have revealed evidence unfavorable to other defendants. 19 As the joint appellants acknowledge, Judge Rombro permitted the examination of witnesses in Phase I about matters to be decided in Phase II in order to avoid the repetition of evidence and the need to recall the same witnesses several times during the course of trial. In accordance with Md. Rule 5-611(a)(2), “[t]he court shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to ... avoid needless consumption of time----” There is no reason to believe that the judge’s decision to permit the presentation of some Phase II evidence in Phase I resulted in the jury being overwhelmed. ⁶²³ In light of Godwin, 340 Md. 334 , 667 A.2d 116 , the joint appellants concede that consolidation is a necessary and proper method of managing the asbestos-related claims that are flooding the State’s court system. Yet the appellants oppose the consolidation of evidence within a phase of a single case. As we have observed, the trial began in June of 1994 and did not end until February of 1995.

The presentation of evidence in Phase I alone took more than five months. Had it been necessary to recall witnesses for phase II rather than allow examination of them during Phase I, the trial would no doubt have lasted considerably longer. 3. Selection of Trial Plaintiffs The joint appellants contend that they were excluded from “meaningful participation” in the selection of the trial plaintiffs. They posit that this exclusion amounted to prejudicial error, in that the five trial plaintiffs were not representative of the estimated 1,300 common issue plaintiffs.

In particular, the joint appellants argue that the five trial plaintiffs suffered from dissimilar diseases. Two trial plaintiffs suffered from mesothelioma, although cases involving that disease had been severed from the Abate II consolidation. The joint appellants also complain that the trial plaintiffs alleged exposure to asbestos in different ways, in that they worked at different jobs in different locations during different time periods. The underlying premise of the joint appellants’ argument is that the trial plaintiffs should have been representative of the common issue plaintiffs, and that the defendants should have been allowed a say in who was representative.

Directing us to 340 Md. at 402 , 667 A.2d 116 , the appellants intimate that the Court of Appeals stated as much in Godwin . In fact, the Court did not do so. The Godwin Court merely explained that, in Abate I, “[t]he purpose of trying [the] six illustrative claims in full was to give the jury a better understanding of the issues involved in an asbestos case.” 340 Md. at 343 , 667 A.2d 116 . We note, moreover, that the defendants themselves took the position below that the trial plaintiffs should not be considered representative of the common issue plaintiffs. ⁶²⁴ We are satisfied that the cases of the Abate II trial plaintiffs served the purpose set forth in Godwin .

The evidence established that Ciotta, the least ill of the trial plaintiffs, suffered from a lung condition known as pleural plaques, which is characterized by a thickening of the lining of the lungs. Plaintiff Theis suffered from asbestosis and pleural disease, while plaintiff Glensky suffered from asbestosis and a benign lung tumor, which was removed. Goodman and Morrow suffered from mesothelioma, a fast-growing cancer of the lining of the lungs. 20 Thus, the trial plaintiffs did reflect the range of asbestos-related diseases. Contrary to the joint appellants’ contentions, moreover, the trial plaintiffs alleged that they were exposed to asbestos in similar ways.

The trial plaintiffs worked in similar occupations at only a handful of locations relevant to the trial. Goodman worked as an insulator’s helper at the Standard Oil plant in Baltimore from 1951 to 1957. His job entailed insulating pipes and boilers with asbestos-containing products. Ciotta also worked at Standard Oil, as a pipefitter’s helper from 1950 to 1956.

He installed and replaced pipes, often tearing off the insulation in the process. Morrow worked as a pipefitter at the Western Electric plant in Baltimore from 1941 to 1962. He continued working at Western Electric until 1980 as an inspector. Both Goodman and Morrow alleged that, in addition to being exposed to asbestos in their own lines of work, they were exposed to asbestos-containing products used by outside contractors at their workplaces.

Theis and Glensky’s father, Robert Glensky, were steamfitters for Lloyd E. Mitchell, Inc. (hereinafter “Mitchell”), a local company that sent its workers to various locations. 21 Theis alleged ⁶²⁵ that he and Robert Glensky were exposed to defective products used by Mitchell, and that they were also exposed to defective products being used by other contractors during construction at Murphy Homes and City Hospitals. Glensky alleged that he was exposed to asbestos when, as a child, he shook the dust off his father’s clothes every evening. Also relevant to this appeal, Glensky alleged that he was personally exposed to Crane products at several locations when he himself became an apprentice steamfitter and, later, a steamfitter. While the cases of the five trial plaintiffs were not identical, they were not so different as to cause undue confusion.

As in Abate I, the trial plaintiffs’ cases “g[a]ve the jury a better understanding of the issues involved in an asbestos case.” B. Verdict Sheets Each common issue verdict sheet submitted to the jury contained the name of a defendant, along with a list of product types for which that defendant could be found liable. 22 As to ⁶²⁶ Rapid, the common issue verdict sheets for negligence and strict liability that were submitted to the jury listed asbestos fiber 23 , asbestos-containing pipecovering, asbestos-containing block, and asbestos containing cement. The jury found Rapid to have been negligent as to all four product types and found that all four product types manufactured by Rapid were defective. The verdict sheets for Crane listed asbestos-containing gaskets and asbestos-containing packing. The jury found Crane to have been negligent as to packing and found that Crane’s packing was defective.

It found no liability on Crane’s part as to its gaskets. The verdict sheets for U.S. Mineral listed asbestos-containing spray, and the jury found ⁶²⁷ U.S. Mineral to have been negligent. The jury further found that U.S. Mineral’s spray was defective. The jury found Stebbing to have been negligent as to the asbestos-containing sprays and asbestos-containing joint compounds it used, and also found that both product types used by Stebbing were defective.

The verdict sheet for Hampshire listed asbestos-containing spray and asbestos-containing joint compounds. The jury found Hampshire negligent as to both product types and further found that the product types used by Hampshire were defective. The verdict sheets for other defendants that are not parties to this appeal contained a total of 24 other product types. 24 The joint appellants contend that, because the verdict sheets listed product types rather than specific products by their brand names, the verdict sheets were fatally defective. The appellants posit that the use of product types rather than brand names was “tantamount to a confession” by Judge Rombro that the trial had become “so bloated and prolix that ... it was not feasible for the jury to determine whether any individual product was defective.” They assert that the verdict sheets prevented the jury from distinguishing — on the bases of the amounts of asbestos fiber the products contained and were capable of emitting or on warnings that were in place at any particular time — between products of a particular type that might have been defective and products that were not defective.

The appellants add that, in a strict liability ⁶²⁸ action, specific identification of a particular product is an essential ingredient of the plaintiffs proof. Judge Rombro decided upon the form of the common issue verdict sheets after considerable debate by counsel. In rejecting arguments that the verdict sheets should list specific brand names rather than product types, the judge stated: Everybody has argued that. I am satisfied and I have really thought about it and I want you to know I did discuss this and I did talk to Judge Levin about it.

And I looked at some of the old verdict sheets [from Abate I ]. Some of them had the specific product, some of them are generic. I am satisfied, on the state of the evidence in this case, that the generic is sufficient to go to the jury. And I am going to let it go that way.

(Emphasis added.) Rule 2-522(c) provides, in pertinent part: The court may require a jury to return a special verdict in the form of written findings upon specific issues. For that purpose, the court may use any method of submitting the issues and requiring written findings as it deems appropriate, including the submission of written questions susceptible of brief answers or of written forms of the several special findings that might properly be made under the pleadings and evidence____ In Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 525 , 682 A.2d 1143 (1996), the Court of Appeals explained: “Rule 2-522 gives the trial court the authority to design submissions to the jury as well as format the jury’s findings. Maryland appellate courts have observed before that special verdicts are often useful in cases with multiple parties or issues.” A trial court’s use of a particular form for special verdicts will not be reversed absent an abuse of discretion. See generally Sun Cab Co., Inc. v. Walston, 15 Md.App. 113, 161 , 289 A.2d 804 (1972), aff'd, 267 Md. 559 , 298 A.2d 391 (1973).

The “state of the evidence” in the record does indeed support Judge Rombro’s decision to submit verdict sheets ⁶²⁹ listing product types rather than specific brand names. Goodman, Ciotta, Morrow, and Theis testified that, when working with or near the asbestos-containing products of the defendants against whom they had claims, they saw visible dust from the products. 25 John McCray Dement, Ph.D., who testified for the plaintiffs as an expert in the fields of industrial hygiene, epidemiology, and the history of knowledge of the hazards of asbestos, testified that “the presence of visible dust indicates an excessive exposure.” Dr. Dement elaborated: A ... [A] visible dust indicates, as I have testified before, concentration minimally in the range of 15 to 20 million particles per cubic foot of air, and that presents an excessive dust concentration with regard to health and there is a health risk. Q [By plaintiffs’ counsel] Would your opinions hold true for any product which contains asbestos and which creates visible dust when it is manipulated? A My opinion is that, of course.

Asbestos, and it is with regard to products that contain asbestos and the presence of that dust — of the asbestos and the dust generated from the product, if there is visible dust, as a hygienist, we use that as an indication of exposures in the ranges that I have indicated. And for asbestos, that presents a concentration that is a very significant health hazard. Although the joint appellants complain that the form of the verdict sheets prevented the jury from considering “meaningful differences among individual products, such as substantially different amounts of asbestos, and different potentials for fiber release due to distinct forms, uses, and temperatures,” they do not direct us to any evidence in the record that would ⁶³⁰ suggest that visible dust from a particular product does not necessarily imply a dangerous level of asbestos. The appellants complain that Rapid was found liable for “asbestos-containing cement” in general, but that the evidence established that Rapid produced one brand of cement that contained 60-percent to 70-percent asbestos, one brand that contained ten-percent asbestos, and one brand in which the asbestos was fully encapsulated.

They complain that Crane was found liable for “asbestos-containing packing,” but the evidence indicated that Crane made “hundreds of distinct products produced through different manufacturing techniques, different compositions, different means of encapsulation, and intended for different applications and usages.” 26 The joint appellants do not suggest, however, that there was any evidence that exposure to dust from an asbestos-containing product that contained a lower percentage of asbestos than others would not be “excessive.” Nor do they suggest that there was evidence that warnings were in place as to some brands but not others. Moreover, the appellants ignore that, in order to establish liability, the trial plaintiffs had to prove actual exposure to dust, as well as damages therefrom. Plaintiffs at subsequent mini-trials will have to do the same. While a product containing fully encapsulated asbestos will not ordinarily produce dust and, therefore, will not ordinarily cause harm, there is no dispute that such a product can be altered — by sawing, cutting, or grinding, for example — and that asbestos fibers in the form of dust can then be released.

See generally Anchor Packing Co. v. Grimshaw, 115 Md.App. 134, 190 , 692 A.2d 5 , cert. granted sub nom. Porter Hayden v. Bullinger, 346 Md. 373 , 697 A.2d 112 (1997). In order to ⁶³¹ prevail in a claim involving an encapsulated product, future mini-trial plaintiffs will have to prove sufficient exposure to such dust. 27 The joint appellants’ contention that they could not properly be held strictly liable for a product unless the product was specifically listed by its brand name on the verdict sheet is without merit. The form of the verdict sheets made clear that the jury was to determine whether the particular defendant listed could be strictly liable for all of the products of a particular type that it manufactured, sold, distributed, or installed.

As we have explained, the apparently uncontroverted evidence was that exposure to visible dust from any asbestos-containing product was excessive. 28 In their reply brief, the joint appellants argue, in the alternative, that ⁶³² because the verdict forms did not find individual products to be defective (or even identify the products claimed to be within a particular category), any mini-trial plaintiff who claims exposure to a particular product will have to prove liability for that product. In addition to the obvious waste of judicial resources, the re-examination of issues by a second jury infringes the defendants’ [Seventh Amendment] rights under the United States Constitution to have factual issues determined by a single jury. As the appellants implicitly recognize in the first prong of their argument, the verdict sheets demonstrate that the jury determined, as to each defendant, whether the defendant was negligent in manufacturing, selling, distributing, or installing each product of a particular type, and whether the product that the defendant manufactured, sold, distributed, or installed was defective. If the jury answered in the affirmative, it further determined issues regarding liability as to those defendants named by the trial plaintiffs.

That is, the jury then determined whether the trial plaintiffs were exposed to the products in question, and whether they were damaged by that exposure. The cases of the common issue plaintiffs are to proceed to mini-trials, where new juries are to determine the issues regarding liability. The new juries will not be called upon to determine whether the defendants were negligent or whether any specific products were defective — -those matters were determined by the Abate II jury. C. Erroneous Verdicts The joint appellants contend that “[m]any of the jury’s verdicts in Abate II are contrary to the trial record____” The appellants conclude that the alleged erroneous verdicts reflect “jury confusion and prejudice caused by the consolidation.” They urge that all of the judgments and verdicts be vacated.

Specifically, the joint appellants allege the following: - the jury found Westinghouse Electric Corp. (hereinafter “Westinghouse”) liable for fire retardant asbestos-containing decorative micarta from 1940 to the present, but ⁶³³ Westinghouse presented uncontroverted evidence that it did not begin using that product until 1957. - the jury found Stebbing liable for asbestos-containing spray from 1947 to the present, but Stebbing presented uncontroverted evidence that it did not begin using spray until 1954. - the jury found Mitchell liable for asbestos-containing spray from 1939 to the present, but Mitchell presented uncontroverted evidence that it did not use spray until 1949. - the jury found Hampshire liable for asbestos-containing spray and joint compound from 1939 to the present, but there was no evidence that Hampshire used the spray before 1955 or the joint compound before 1961. - the jury found Asbestospray to have successor liability for Spraycraft fireproofing spray from 1939 to 1967, but there was uncontroverted evidence that the spray was not on the market until 1953. - the jury found Rapid to have successor liability for Philip Carey Manufacturing Company products from 1939 to the present, even though Judge Rombro instructed the jury that it “need not consider Rapid-American’s liability for the Philip Carey Manufacturing Company or the Philip Carey Corporation, new Carey, for any actions after June 1, ’67.” - the jury found Crane liable for asbestos-containing packing but not gaskets, and also found Crane liable to Theis and Glensky, but the only evidence presented as to Theis and Glensky indicated that they were exposed to Crane gaskets but not Crane packing. - the jury found Harbison-Walker liable for punitive damages for a variety of products from 1940 to the present, but Harbison-Walker presented uncontroverted evidence that it did not manufacture or sell any asbestos-containing products until sometime in the 1950s, and the jury did not find Harbison-Walker negligent or strictly liable as to any product until 1953. In addition, in post-trial motions, a combination of plaintiffs and cross-plaintiffs requested revi ⁶³⁴ sions to a total of 80-percent of the common issue verdicts against Harbison-Walker. Preliminarily, we point out that Mitchell has not joined in this appeal. Neither Westinghouse nor Asbestospray are parties to this appeal, as no final judgments were returned against them at trial.

Although judgments were returned against Harbison-Walker in favor of trial plaintiffs Goodman and Ciotta, Judge Rombro granted Harbison-Walker’s motions for judgment notwithstanding the verdict in those cases. The arguments regarding those defendants, therefore, are before this Court only to the extent that they may, as the joint appellants contend, signal some impropriety in the consolidation. The arguments regarding the common issue verdicts against Stebbing and Hampshire are properly before this Court for that same reason. Judgments were returned against Stebbing and Hampshire in favor of certain trial plaintiffs, moreover.

The dates of liability found by the jury clearly bear on the judgments in favor of the trial plaintiffs— thus, the appeals by Stebbing and Hampshire as to the dates of liability are now ripe. 29 - Dates of Liability - - Starting Dates - The bulk of the alleged errors concern the starting dates of liability set forth on several of the common issue verdict sheets. Contrary to the assertions of the joint appellants, the alleged errors do not reflect confusion on the part of the jury. The plaintiffs presented evidence that, by 1939, the dangers of asbestos exposure were widely known in the industry. They informed the jury, in fact, that in 1939 the Legislature made asbestosis an occupational disease under the Maryland Workers’ Compensation statute.

See 1939 Laws of Maryland chap ⁶³⁵ ter 465, § 32A at 991-92; Md. Ann.Code art. 101, § 34 (1939). On the verdict sheets in question, the jury chose 1939 as the date that liability began for those defendants that were in business at that time, 30 with the exception of Westinghouse; for those defendants who were not yet in business, it chose the date that they began operating. The jury thus made clear that it found the defendants liable for any products of the types listed that were manufactured in 1939 or later. As to Westinghouse, the jury apparently accepted the argument of plaintiffs’ counsel that Westinghouse became aware of the dangers of asbestos sometime around 1940.

The jury chose 1940 as the starting date of liability for all of the Westinghouse products involved. On other common issue verdict sheets, the jury did set forth dates of liability based on when the defendants began manufacturing, selling, distributing, or installing asbestos-containing products. While we cannot explain the jury’s deviation from this practice in regard to the verdict sheets in question, we do not agree with the joint appellants that the explanation is jury confusion. It may well be, as the plaintiffs suggest, that the jury simply rejected the defendants’ evidence as to when they began manufacturing or using particular products.

While we do not agree with the joint appellants’ assertions that the jury’s selection of the dates in question signified confusion, we do agree that the jury should have accepted the uncontroverted evidence presented by the defendants. Of the several erroneous starting dates alleged by the appellants, however, only the errors as to Stebbing and Hampshire are ripe for appeal. Final judgments have not yet been reached in the cases of the other defendants mentioned. Stebbing and Hampshire moved below, inter alia, to have the common issue verdicts altered or amended to reflect more ⁶³⁶ precise starting dates of liability.

In light of the uncontroverted evidence as to the starting dates, the trial court erred in denying the motions. We therefore vacate the common issue verdicts as to Stebbing and Hampshire insofar as the starting dates of liability are concerned. We remand the case to the trial court with instructions to reform the starting dates to conform to the evidence. 31 Although we take this precautionary measure, we emphasize that it is highly improbable that a mini-trial plaintiff will attempt to prove — let alone succeed in proving — exposure to a defendant’s product at a time before the defendant manufactured or used the product. Of course, in the unlikely event that the joint appellants’ predictions come true and such a thing does transpire as to another defendant whose appeal is not now before us, that defendant may appeal from the resulting judgment. - Ending Dates - In a similar vein, we determine that the fact that the jury found Rapid to have successor liability for Philip Carey Manufacturing Company products from 1939 to the present, rather than until 1967, does not indicate confusion.

Judge Rombro informed the jury that there were successor liability claims against Rapid and Asbestospray. He later instructed the jury that the claims against Rapid involved the Philip ⁶³⁷ Carey Manufacturing Company, which became Philip Carey Corporation in 1967. The judge explained: I have made a legal decision that you need not consider Rapid-Ameriean’s liability for the Philip Carey Manufacturing Company [“old Carey”] or the Philip Carey Corporation, new Carey, for any actions after June 1,1967. Therefore, I am withdrawing for your consideration ... the verdict sheets pertaining to new Carey.

They will come out of the package that will be given to you, so you won’t even have those when you go to deliberate. I also instruct you to disregard all of the evidence you have heard and all arguments concerning new Carey. New Carey asbestos-containing products are not at issue in this trial. Now, I have also ruled, as a matter of law, that RapidAmeriean is liable as a successor to Philip Carey Manufacturing Company, which is old Carey, for its products and actions up through June 1, ’67.

Previously, in the context of explaining the duty to warn of product defects, Judge Rombro had instructed the jury as follows: Now, there is also what is called a continuing duty to warn. A manufacturer of the defective product generally has the duty to warn of product defects which the manufacturer discovers after the time of sale. A manufacturer is obliged to reasonably communicate an effective warning even after a sale of a product based on later acquired knowledge of the danger as soon as it is reasonably foreseeable. This post-sale duty to warn requires reasonable efforts to inform users of the danger once the manufacturer is or should be aware of the need for a warning.

The warning is required to the extent practicable under the circumstances. The judge did not modify his instruction on the duty to warn when he instructed the jury about old and new Carey. ⁶³⁸ Rapid’s counsel argued to the jury, and the joint appellants now contend, that the judge’s instruction prohibited the jury from finding that Rapid had successor liability for Philip Carey Manufacturing Company beyond June 1, 1967. As its verdict makes clear, the jury disagreed. In light of Judge Rombro’s instruction as to the continuing duty to warn, that disagreement was quite logical.

It is apparent that the judge meant merely to inform the jury that it could not hold Rapid liable for the actions of new Carey. We acknowledge that the instruction could have been more carefully worded. We do not agree, however, that it can be read to foreclose a finding that old Carey or its successor, Rapid, had a continuing duty to warn after 1967. - Crane’s Packing and Gaskets - The jury found Crane liable, on the common issues, for asbestos-containing packing but not for asbestos-containing gaskets. In other words, the jury concluded that Crane packing was defective, but Crane gaskets were not.

It also found Crane liable to trial plaintiffs Theis and Glensky. The joint appellants posit that the evidence presented at trial established that Theis and Glensky, on his own and through his father, were exposed to Crane gaskets but not packing. They conclude that the jury’s findings were, therefore, contradictory. The appellants direct us to the testimony of Theis, who worked with Glensky’s father.

Theis stated that his job entailed working with Crane gaskets and other asbestos-containing materials. He did not mention ever working with Crane packing. Theis explained that “some gaskets came precut, some gaskets came in a sheet____ The ones that were not precut, we had to actually cut those gaskets.” He recalled that the gaskets created dust when he worked with them. The joint appellants, and Crane in its individual brief, further direct us to testimony from Theis, Morrow, and another witness, Robert Buckley, who had worked with asbestos-containing products, to the effect that packing and gaskets are different products with different purposes.

Crane points out ⁶³⁹ that Dr. Robert N. Sawyer, an expert witness called by a defendant who is not a party to this appeal, testified that “gaskets are gaskets and packings are packings.” The appellants do not direct this Court to the one piece of evidence that makes clear that there is no contradiction at all. A Crane catalog that was admitted into evidence at trial lists several pages of asbestos sheet packing. In the description of each style of sheet packing, it is noted that gaskets can be cut from the packing. The catalog contains no listings for “sheets” of gasket materials.

Thus, the evidence presented at trial made clear that the gaskets that Theis described as coming “in a sheet” actually came in a sheet of asbestos-containing packing. While Theis, Morrow, Buckley, and Sawyer explained that gaskets and packing are not the same thing, they in no way implied that gaskets cannot be cut from sheet packing. It is apparent that the jury concluded that Theis and Glensky were exposed to asbestos dust emitted from sheet packing when it was cut into gasket form. - Harbison-Walkers’s Judgment Notwithstanding the Verdict - The jury found Harbison-Walker liable for six asbestos-containing products — refractory gunning mix, castable, cement, refractory brick with spacers, rollboard, and block — as well as for punitive damages. The joint appellants contend that, in post-trial motions, a combination of plaintiffs and cross-plaintiffs “acknowledged that 80% of the jury’s special verdict answers for [Harbison-Walker] were incorrect and not supported by the evidence.” 32 The joint appellants misrepresent the positions of their opponents.

In a motion to revise the jury’s findings as to HarbisonWalker, the plaintiffs asserted that the jury inadvertently transposed the dates of liability for asbestos-containing cement and asbestos-containing gunning mix. The plaintiffs also pointed out that the jury set forth dates of liability for various ⁶⁴⁰ products, and that each date was the date Harbison-Walker began manufacturing, selling, distributing, or installing the particular product. Although the first date of liability was 1953, the jury chose 1940 — apparently the year HarbisonWalker was incorporated — as the starting date for potential punitive damages liability. The plaintiffs suggested that the 1940 date be reformed.

In a separate motion to revise findings as to Harbison-Walker, which was combined with a response to Harbison-Walker’s motion for judgment notwithstanding the verdict, cross-plaintiff Pittsburgh-Corning asserted that the starting dates for Harbison-Walker’s liability for asbestos-containing gunning mix and asbestos-containing block should be 1955 and not 1953. Pittsburgh-Corning also suggested that liability for asbestos-containing rollboard should begin in 1960 rather than 1962. In short, a review of the record makes clear that the plaintiffs and cross-plaintiffs acknowledged that minor clerical errors may have been made on the verdict sheets — not that “80% of the jury’s special verdict answers for [Harbison-Walker] were incorrect and not supported by the evidence.” As we have observed, the trial court granted HarbisonWalker’s motion for judgment notwithstanding the verdict as to all punitive damages, and explained that the plaintiffs had failed to present sufficient evidence to establish that Harbison-Walker “was guilty of the conduct required to sustain a punitive damage award.” The court also granted HarbisonWalker’s motion for judgment notwithstanding the verdict as to the negligence and strict liability judgments in favor of Goodman and Ciotta. Although the parties do not elaborate on the matter, it appears that Goodman and Ciotta alleged exposure to Harbison-Walker’s asbestos-containing cement in the 1950s, but the jury found that the company’s liability for the cement began in 1964.

This, of course, indicates erroneous findings by the jury. - Insufficient Evidence of Exposure - Although the appellants do not raise the matter in their joint brief, we are compelled to point out that the verdicts in ⁶⁴¹ favor of various trial plaintiffs against U.S. Mineral, Stebbing, and Hampshire were not supported by the evidence. Each of these verdicts shall be discussed infra in some detail. While we determine that the jury inferred exposure to products when such inferences could not properly be drawn, we do not suggest that this indicates that the jury was confused or overwhelmed. In most circumstances, there was evidence that the particular appellant’s product was used at the particular trial plaintiffs place of employment, but not at a time when or a place where the trial plaintiff could have been exposed to it.

In closing argument, however, plaintiffs’ counsel contended that asbestos “fibers remain in the air, which exposes pretty much an entire workplace based upon how the wind is blowing and who is around.” Counsel added that the fibers “become[] airborne again” during clean-up operations. The jury may well have accepted this argument, which set forth the so-called “fiber drift theory.” The Court of Appeals has rejected the fiber drift theory, however, on the ground that it is inconsistent with Maryland requirements of causation. See Balbos, 326 Md. at 216-17, 604 A.2d 445 . Of all of the allegations of jury error, only the HarbisonWalker verdict sheets as to punitive damages and liability to Goodman and Ciotta clearly demonstrate significant findings that did not comport with the evidence presented at trial and could not be logically explained. 33 The errors were corrected by the trial court.

The situation is analogous to that with which the Court of Appeals was faced in Godwin, 340 Md. 334 , 667 A.2d 116 . There, the Abate I jury assigned an erroneous starting date for the negligence of one defendant. Upon the defendant’s motion, Judge Levin reformed the verdict. On appeal, the Court of Appeals rejected an argument that the error reflected confusion on the part of the jury.

The Court ⁶⁴² held that Judge Levin’s correction of the “obvious error” was sufficient, and commented: “Measured against the scope of the task confronting it, that mistake by the jury is de minim-is.” Id. at 403, 667 A.2d 116 . We are satisfied that the mistakes in the instant case were de minimis as well, and that the remedy provided when Judge Rombro granted HarbisonWalker’s motion for judgment notwithstanding the verdict was sufficient. II FAIR AND IMPARTIAL JURY The joint appellants further argue that, even if the consolidation was proper, they were denied their rights to a fair and impartial jury. A. Dismissals for Hardship The pool of prospective jurors initially consisted of 200 people.

At the start of the jury selection process, Judge Rombro asked if any of the prospective jurors planned to request a hardship deferment. One hundred and thirteen persons responded in the affirmative. Judge Rombro then directed that the 113 prospective jurors be given hardship deferment forms to fill out. Judge Rombro apprised counsel of his intention to dismiss those prospective jurors claiming hardship, pending possible recall if voir dire of the remaining prospective jurors established that there would not be a sufficient jury pool to select a panel.

The judge stated that, even without those prospective jurors: “We are going to have 85, give or take one or two, but we have got 85 who are not asking for deferments. I think that is enough [to select a jury panel].” The judge added: [L]ook, I am going to tell you right now and I will say it on the record, in a trial of this length, if somebody says to me I can’t do it because I have such and such a problem, it is going to be a very unusual case that I am not going to excuse them. ⁶⁴³ The attorneys for the various defendants objected that the procedure would “pretty much excuse[ ] all of the professionals” from the jury pool, but Judge Rombro adhered to his plan. The remaining jurors were asked to fill out questionnaires and, over the next several days, voir dire was conducted. Judge Rombro reviewed the hardship deferments as well.

At the close of voir dire, Judge Rombro informed counsel: “I said that we had [about] 90 people to work with and we were going to work with them to see if we could get a sufficient pool, and we have, so I don’t know that I really even have to address the question of hardships.” Defense counsel reiterated their objections that the dismissal of the jurors would alter the jury pool by depleting it of professionals. They urged Judge Rombro to question each prospective juror who claimed a hardship. The judge responded: I reviewed every hardship. I didn’t just take a shortcut.

I read every one of them and on the face of them I made certain decisions with regard to those folks. Would the decision have been different with regard to one or two or three, maybe even five of them if they had come in and taken the stand and I made each one tell me about the hardship? It is possible. The joint appellants now contend that by dismissing all of those persons who claimed hardship, Judge Rombro excluded an entire class — the class of “professionals” — of prospective jurors.

They point out that, under Md. Cts. & Jud. Proc.Code Ann. § 8-102(a) (1995 Repl.Vol.), “[w]hen a litigant in a court of the State is entitled to trial by a petit jury ..., the jury shall be selected at random from a fair cross-section of the citizens of the State who reside in the county where the court convenes.” Under § 8-103, “[a] citizen may not be excluded from service as a grand or petit juror in the courts of the State on account of race, color, religion, sex, national origin, or economic status.” The joint appellants remind us that “[t]he American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contem ⁶⁴⁴ plates an impartial jury drawn from a cross-section of the community.” Thiel v. S. Pac. Co., 328 U.S. 217, 220 , 66 S.Ct. 984, 985 , 90 L.Ed. 1181 (1946). The joint appellants do not challenge the original array of prospective jurors.

Instead, they contend that once the hardship deferments were granted the array no longer represented a cross-section of the community, in that professionals were eliminated from the array. To the extent that the joint appellants’ argument may be considered an appeal from an unsuccessful challenge to the array, the appellants have failed to meet their burden of establishing that the array, as altered, was not a cross-section of the community. See generally Md. Rule 2-512(a). The appellants have not provided this Court with their definition of “professional.” Nor have they directed us to anything in the record that would indicate how many professionals were in the original array or how many professionals were dismissed for hardship reasons.

They have merely reiterated the argument made below, that Judge Rombro’s action “pretty much excused] all of the professionals.” The appellees inform us that, even after the hardship dismissals, the jury pool included a retired Air Force surgical nurse, a registered nurse employed at a veterans medical center, a teacher with a Ph.D. who worked at Coppin State University, a pollution control analyst for the City of Baltimore, and an electrical engineer with the Department of Defense. 34 To the extent that the argument may be considered an appeal from the court’s dismissal of the prospective jurors without conducting further inquiry into the hardship claims, the argument is without merit. Judge Rombro informed counsel that he had reviewed each of the deferment forms and concluded that each was meritorious, although he admitted that it was “possible” that a handful would not withstand scrutiny if the jurors were called in for further questioning. ⁶⁴⁵ As the judge pointed out to defense counsel: “Nobody, nobody has said to me that there is any law, that there is any case that says I must review every hardship [by interrogating the prospective juror individually].” The Court of Appeals has made clear, moreover, that a prospective juror’s request for a hardship deferment is between the juror and the court and is of no legitimate concern to the parties in the case. See Porter v. State, 289 Md. 349 , 424 A.2d 371 (1981) (defendant’s right to be present at all stages of trial does not extend to court’s questioning of prospective jurors as to hardship claims). The question of whether a prospective juror should be excused for personal hardship does not implicate the interests of the defendant.

Instead, the interests to be balanced are those of the prospective juror and the administration of the court system. The trial judge must weigh the degree of hardship or inconvenience, as well as any other circumstances relating to the prospective juror’s personal reasons for wanting to be excused, against the effect upon the administration of the court and the statutory obligation of every registered voter to serve when summoned as a juror. Whether or not the defendant desires to have the individual serve is irrelevant to the question of excusing the prospective juror for personal hardship. Id. at 356 , 424 A.2d 371 .

B. Racial Discrimination After the hardship dismissals were granted, six white persons — three women and three men — remained in the jury pool. After the jury was selected, but before it was sworn, counsel for the various defendants pointed out that the plaintiffs had used five of their six peremptory challenges to strike all three of the white women and two of the white men. 35 Defense counsel complained that the plaintiffs had used their ⁶⁴⁶ strikes in a discriminatory fashion in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628-31 , 111 S.Ct. 2077, 2087-89 , 114 L.Ed.2d 660 (1991) (extending Batson to civil trials); Gilchrist v. State, 340 Md. 606, 624 , 667 A.2d 876 (1995) (The Batson rule “applies equally to white persons and black persons”). In Gilchrist, 340 Md. at 625-26 , 667 A.2d 876 , the Court of Appeals explained: The Supreme Court in Batson articulated a three-step process to be utilized by trial courts in assessing claims that peremptory challenges were being exercised in an impermissibly discriminatory manner....

First, the complaining party has the burden of making a prima facie showing that the other party has exercised its peremptory challenges on an impermissibly discriminatory basis, such as race or gender.... Moreover, “[w]hether the requisite prima facie showing has been made is the trial judge’s call____” Second, once the trial court has determined that the party complaining about the use of the peremptory challenges to rebut the prima facie case, the burden shifts to the party exercising the peremptory challenges to rebut the prima facie case by offering race-neutral explanations for challenging the excluded jurors. The “explanation must be neutral, related to the case to be tried, clear and reasonably specific, and legitimate.” ... The reason offered need not rise to the level of a challenge for cause____ “At this step of the inquiry, the issue is the facial validity of the ... explanation.” ...

It is insufficient, however, for the party making the peremptory challenges to “merely deny[ ] that he had a discriminatory motive or ... merely affirm[ ] his good faith.” ... Finally, the trial court must “determinen whether the opponent of the strike has carried his burden of proving purposeful discrimination.” ... This includes allowing the complaining party an opportunity to demonstrate that the ⁶⁴⁷ reasons given for the peremptory challenges are pretextual or have a discriminatory impact.... It is at this stage “that the persuasiveness of the justification becomes relevant.......At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.” ...

(Citations omitted.) At the trial below, Judge Rombro determined that the defendants had made a prima facie showing of discrimination. He then called upon counsel for the plaintiffs to offer race-neutral explanations for the peremptory strikes. Counsel explained that: - juror number 118, a white woman, was struck because she: indicated that she knew a witness for the defense; “was a consultant and had a professional background;” and “recognized one of the defense firms in the case.... ” - juror number 119, a white woman, was struck because she was a carpet representative who had had prior business dealings with two of the defendants. - juror number 245, a white man, was struck because he: had a “management background;” had two friends with asbestosis; and had “Knowledge of Piper and Mar-bury....” - juror number 306, a white woman, was struck because she: held a management level position with the Department of Defense; had a family member or friend who died of lung cancer; and commented that she believed that lung cancer was caused by cigarette smoking. Plaintiffs’ counsel was not called upon to offer an explanation for striking juror number 304, a white man.

Counsel for the defendants explained: “We did not challenge 304. We agree he should have been struck.” In sum, the plaintiffs explained that they used their peremptory strikes to eliminate persons who they believed might be sympathetic to the defense, such as persons in management positions, persons familiar with defense witnesses or counsel for the defense, and persons with preconceived ideas about ⁶⁴⁸ lung disease. Judge Rombro expressed some skepticism as to whether juror number 245, who described himself as a “supervisor,” actually held a management position. The judge ultimately ruled: Now, the jury is seated, the six individuals are all African Americans, and there are ten alternates, and of that group only one is white.

I am satisfied after listening to counsel that that did not occur by design. There were reasons given as to the strikes that they made. Some of them I thought were thin and I don’t mind telling you, but they were reasons that, I guess, under these circumstances, and considering that all of the trial plaintiffs, illustrative plaintiffs or whatever you want to call them are white, and I don’t find that there has been any violation of the civil [Batson ] rule. In Purkett v. Elem, 514 U.S. 765, 767-69 , 115 S.Ct. 1769, 1771 , 131 L.Ed.2d 834 (1995), the Supreme Court elaborated on the second step of the Batson inquiry, whereby the party exercising the peremptory challenges is called upon to offer race-neutral explanations for the challenges.

The Court explained: The second step of this process does not demand an explanation that is persuasive, or even plausible, “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reasons offered will be deemed race neutral.” 514 U.S. at 768 , 115 S.Ct. at 1771 (citation omitted; brackets supplied by Burkett Court). In light of Burkett, this Court has explained: In a practical sense, if, after the party opposing the strike has presented a prima facie showing, the proponent thereof proffers a facially neutral reason that is accepted by the trial court, then an appeal on Batson principles has little, if any, chance of success, given that the credibility of the ⁶⁴⁹ proponent offering the reasons is, as it is generally, for the trial court — not an appellate court — to determine. Ball v. Martin, 108 Md.App. 435, 456 , 672 A.2d 143 (1996).

Judge Rombro clearly expressed his determination that counsel for the plaintiffs had non-discriminatory reasons for exercising their peremptory challenges. The judge pointed out that, like the struck jurors, all five trial plaintiffs were white. He recalled that plaintiffs’ counsel had offered race-neutral reasons for all of the challenged strikes. A facially neutral reason that is accepted by the trial court is all that is required to overcome a Batson challenge.

The justifications offered by plaintiffs’ counsel were neither “implausible” nor “fantastic” Gilchrist, 340 Md. at 626 , 667 A.2d 876 . Giving due deference, as we must, to Judge Rombro’s assessment of the credibility of plaintiffs’ counsel in offering the explanations, we perceive no violation. See Ball, 108 Md.App. at 456 , 672 A.2d 143 . C. Ex Parte Communication Several months before trial began, plaintiffs’ counsel proposed that the jurors be provided with notebooks in which they could organize their trial notes.

Plaintiffs’ counsel further proposed that photographs of the expert witnesses be inserted into the notebooks. At that time, Judge Rombro indicated: I certainly ... do intend that the jury will have notebooks, whatever they need to take notes over the course of the trial. What should be put in there is a matter that we will discuss. Photographs are an interesting concept.

On the day trial began, counsel for the plaintiffs presented the court with three-ring binders for the jurors. Judge Rombro stated that the notebooks would be distributed to the jurors after counsel for the defendants had a chance to look at the notebooks and to lodge any objections they might have. The notebooks were made available to defense counsel, and no objections were made. The notebooks, apparently, were then ⁶⁵⁰ distributed.

No further discussion was had regarding the proposed photographs. Two months into trial, counsel for one defendant reported to the court that he had seen a juror putting a photograph of an expert witness for the plaintiffs into a notebook. Speaking for counsel for all of the plaintiffs, attorney Theodore M. Flerlage, Jr. acknowledged that, after each expert witness for the plaintiffs had testified, plaintiffs’ counsel had given the court clerk a stack of papers, each containing a photograph of that witness with the witness’s name and a brief summary of his or her qualifications printed at the bottom of the page. The court clerk had then given the papers to the jury to be inserted into the notebooks.

It was later established that, in that way, pages regarding eight expert witnesses had been distributed to the jury. Flerlage asserted that plaintiffs’ counsel believed that the court had approved the plan to supply such materials to the jury, and fully expected counsel for the defendants to do the same. Counsel for all of the defendants then moved for a mistrial, insisting that the actions of plaintiffs’ counsel amounted to improper and prejudicial ex parte communications with the jury. They suggested that, before making a ruling on the motion, Judge Rombro question plaintiffs’ counsel as to “exactly what they have disseminated to the Clerks for dissemination to the jury and how that was done.” They added that, if the court felt it was necessary, it could also question an alternate juror and then dismiss that juror.

Judge Rombro indicated that he would be willing to question a juror in counsel’s presence regarding the photographs but, apparently alluding to the request that the juror then be dismissed, added: “If those are the conditions that the defense puts on my questioning, I won’t do it.” The judge did conduct further questioning of Flerlage. Flerlage provided the court with copies of several of the papers that had been given to the jury, reiterated that plaintiffs’ counsel had never contacted any juror directly regarding the papers, and provided the court with citations to the trial ⁶⁵¹ transcript which, in his view, supported the plaintiffs’ position that the distribution of the materials had been sanctioned by the court. The judge also questioned the court clerk regarding the matter. The clerk indicated that, at the request of plaintiffs’ counsel, she and another clerk had, at separate times, deposited stacks of papers on the table in the jury room.

The court clerk further informed the court: “Anything that is given to the jury, we go in the jury room and put whatever it is on the table and we say this is for you to put in your notebook”. 36 Upon first learning of the papers, Judge Rombro called the actions of plaintiffs’ counsel “mind boggling” and stated: “I can’t believe that the plaintiffs did what they did in this case.” Upon further reflection, however, the judge observed: I have already and perhaps too strongly chastised the plaintiffs for their actions in this case. I don’t think that this was a deliberate act of flouting the Court’s ruling or the general ethical considerations of what counsel has to follow in the trial of the case. I think that it was a misunderstanding and misreading— Judge Rombro pointed out that months before trial, when plaintiffs’ counsel proposed putting photographs in the jurors’ notebooks, not one counsel for the defendants voiced any opposition. Judge Rombro also pointed out that the very same practice had been approved and used in the Abate I trial. ⁶⁵² Relying on Wernsing v. General Motors Corp., 298 Md. 406 , 470 A.2d 802 (1984), Judge Rombro denied the motion for mistrial.

In that personal injury case, the jury asked the bailiff for a dictionary so that it could clarify the definition of “proximate cause.” The bailiff supplied the requested dictionary, and the definition found by the jury conflicted with the definition supplied by the court in its instructions. Verdicts were rendered in favor of the plaintiffs. Upon learning of the jury’s use of the dictionary, the defendants moved for a new trial. The trial court denied the motion, but this Court reversed, General Motors Corp. v. Wernsing, 54 Md.App. 19 , 456 A.2d 939 (1983), and the Court of Appeals affirmed our decision.

The Court explained that the defendants had shown a strong “probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.” 298 Md. at 420 , 470 A.2d 802 . It concluded that the trial court had abused its discretion in determining otherwise. In reaching its conclusion, the Court of Appeals expressly rejected a rule adopted by some other jurisdictions that presumes prejudice solely from delivery of a dictionary into the jury room without the consent of the court and all parties. The Court explained that such a presumption could never be rebutted since jurors in Maryland may not be interrogated regarding their deliberations in order to impeach the verdict.

It opined: Further, a presumption of prejudice from the unauthorized presence of a dictionary is inconsistent with the rule we apply when, in the course of trial and before the jury retires, it is learned that a juror has received information concerning the case from a source outside of the record. In those circumstances prejudice is not presumed; rather the test is “whether the conversations were ‘of such a nature that their effect must fairly be held to have been to deprive the injured party of a fair and impartial trial.’ ” 298 Md. at 416 , 470 A.2d 802 . Judge Rombro reasoned: ⁶⁵³ If the [Wernsing C]ourt says that you don’t presume prejudice from the introduction of a dictionary, then seems to me, clearly follows, that I cannot presume prejudice in this case solely from introduction of a photograph, at the bottom of which is certain information which is in the CY, curriculum vitae of the witnesses who testified. I find, not just that the parties moving for mistrial have not met the burden of proving prejudice, but I find that there is no prejudice based on this.

The judge later told counsel: Look, I have to tell you, it shouldn’t have been done, all right? We all agree on that, but it is innocuous for God’s sake. Everybody is making such a thing about this like it is handing over the atomic secrets to some foreign country. It really is innocuous.

It is a photograph and it says exactly what is on the curriculum vitae____ The judge offered to retrieve the materials from the jurors or to permit the defendants to submit like materials regarding their expert witnesses to the jury. A majority of defendants chose the former option, so the materials were retrieved. The defendants subsequently filed a motion to reconsider the denial of the mistrial request, but the motion for reconsideration was denied. The joint appellants contend that Judge Rombro’s investigation into any prejudice caused by the distribution of the photographs was insufficient.

They assert that the judge should not have denied the mistrial motion without first allowing “complete examination of the plaintiffs and court clerks involved.... ” The appellants seemingly ignore Judge Rombro’s extensive interrogation of Flerlage, and the judge’s questioning of one of the two court clerks involved. Flerlage insisted that plaintiffs counsel believed they had the court’s approval to submit the photographs to the jury. He made clear that no counsel had ever given photographs to a juror directly. The court clerk told the judge that whenever any item was delivered to the jury, it was the practice of the court clerks in general to deposit the item on the desk in the jury ⁶⁵⁴ room with the simple explanation: “[Tjhis is for you to put in your notebook.” Judge Rombro accepted these assertions.

The judge examined several of the pages in question, moreover. He determined that each contained nothing more than a photograph of the witness and a brief summary of his or her curriculum vitae — all information that had already been supplied to the jury. 37 In short, Judge Rombro conducted a complete inquiry into the matter, delving into all areas about which defense counsel expressed concern. 38 The appellants’ contention to the contrary is without merit. In the alternative, the joint appellants contend that Judge Rombro’s reliance on Wemsing, for the proposition that prejudice should not be presumed, was misplaced. In the appellants’ view, Wemsing is inapplicable since it did not involve an intentional communication with the jury by a party to the case.

The appellants urge this Court to adopt a rule that any communication with a jury by a party is presumptively prejudicial and requires an automatic mistrial. 39 We decline to do so. ⁶⁵⁵ Judge Rombro concluded that, while the distribution of the photographs was intentional, it was done under the mistaken impression that it was sanctioned by the court. All distributions were made through the court clerk and not by plaintiffs’ counsel. The judge was satisfied that there was no prejudice whatsoever. Under the circumstances, the adoption of the automatic rule suggested by the joint appellants would serve only to punish the plaintiffs for a transgression they were unaware they were committing.

It would not have a deterrent effect and, since there was no prejudice, would provide no cure. We therefore think it best to adhere to our general rule involving improper jury contact of any type. As we explained in Allen v. State, 89 Md.App. 25, 46 , 597 A.2d 489 (1991), cert. denied, 325 Md. 396 , 601 A.2d 129 (1992), “[i]t is well established in Maryland that in determining whether jury contact is prejudicial, a trial court must balance the ‘probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.’ ” (Citation omitted). See Wernsing, 298 Md. at 416 , 470 A.2d 802 . “In reviewing the trial judge’s denial of a mistrial motion, we will not disturb the ruling absent a clear showing of abuse of discretion.” Garrett, 343 Md. at 517 , 682 A.2d 1143 .

We detect no abuse in Judge Rombro’s exercise of discretion in denying the motion for mistrial below. SUMMARY OF JOINT ISSUES To summarize, we conclude that, while the trial below was indeed a complicated one, it did not overwhelm the jury. The record reflects that the jury was able to sort through the evidence and apply it to specific defendants and cross-defendants. The court properly listed product types rather than ⁶⁵⁶ specific brand names on the verdict sheets, as the evidence indicated only that liability would attach, if at all, as to each product of a particular type manufactured, sold, distributed, or installed by a particular defendant or cross-defendant.

In addition, the five trial plaintiffs properly served the purpose of giving the jurors an understanding of what a full asbestos case involves. The joint appellants were not denied their right to a fair ánd impartial jury. The trial court properly proceeded with jury selection absent those prospective jurors who claimed hardships. Moreover, the court properly exercised its discretion in determining that there was no Batson violation, and in determining that the submission of papers containing photographs and written descriptions, of expert witnesses to the jury by plaintiffs’ counsel did not warrant a mistrial.

We turn now to the arguments presented by the appellants individually. - ARGUMENTS OF INDIVIDUAL APPELLANTS - III SUFFICIENCY OF THE EVIDENCE In challenging the sufficiency of the evidence as to the various appellees, all of the appellants contend that Judge Rombro erred in denying their motions for judgment at the close of the plaintiffs’ case and at the close of all evidence. Recently, in Grimshaw, 115 Md.App. at 187 n. 11, 692 A.2d 5 , this Court reiterated that “[a]s long as [the] plaintiff has presented some evidence to support his theory of liability, the trial court should submit the issue to the jury.” The jury, as trier of fact, must then determine if the plaintiff has proven that the defendant is liable. See Balbos, 326 Md. at 208-09 , 604 A.2d 445 ; Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir.1986). In making its determination, the jury must apply the substantial factor test, which is also known as the “proximity, frequency, and regularity” test.

Grimshaw, 115 Md.App. ⁶⁵⁷ at 186 , 692 A.2d 5 . That is, the jury must consider “the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.” Balbos, 326 Md. at 210 , 604 A.2d 445 . It is not sufficient that the product was used anywhere and at any time at the workplace, regardless of whether the plaintiff was present. See id. at 216-17, 604 A.2d 445 (rejecting the “fiber drift theory”). “A plaintiff must show more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use....

A plaintiff must present evidence ‘to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.’ ” Grimshaw, 115 Md.App. at 186 , 692 A.2d 5 (citation omitted). “ ‘In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff’s particular disease.’ ” Balbos, 326 Md. at 211 , 604 A.2d 445 (citation omitted). As the Court of Appeals has explained, it is not the province of an appellate court to express an opinion regarding the weight of the evidence when reviewing judgment on a verdict.... Even if a jury verdict is “inconsistent” in the sense that certain findings of fact cannot logically be reconciled with each other, we will normally not reverse a jury’s verdict either in a civil or a criminal case____ Garrett, 343 Md. at 521 , 682 A.2d 1143 (citations omitted). Evidence will be deemed sufficient if it “ ‘serves to prove a fact or permits an inference of fact that could enable an ordinarily intelligent mind to draw a rational conclusion therefrom in support of the right of the plaintiff to recover.’” Collier v. Eagle-Picher Indus., Inc., 86 Md.App. 38, 62 , 585 A.2d 256 (citation omitted), cert. denied sub nom.

Corhart Refractories v. Collier, 323 Md. 33 , 591 A.2d 249 (1991). A, Goodman John Joseph Goodman was diagnosed with mesothelioma in January of 1993. He died just before trial, on February 2, ⁶⁵⁸ 1994, at the age of 71. Goodman worked at the Standard Oil refinery in Baltimore from May of 1951 to October of 1957.

At trial, Goodman’s attorneys alleged that it was then that he was exposed to the asbestos that later caused his mesothelioma. 40 Prior to his death, Goodman testified in a videotaped deposition de bene esse. The videotape was played and admitted into evidence at trial. In the deposition, Goodman testified that he worked as an insulator’s helper at Standard Oil. An insulator’s helper worked with an insulator insulating pipes, boilers, and other equipment.

The refinery employed seven such teams at a time. Goodman explained that, at Standard Oil, a variety of asbestos-containing insulation products were used, such as block, blankets, and cement. He testified that he worked “all over” the refinery and that, during his six-year tenure there, he applied enough asbestos-containing insulation to go “[f]rom here to California and back, five times.” - Rapid - The jury found that Goodman was exposed to the products of Rapid’s predecessor, Philip Carey Manufacturing Company, from 1951 to 1957. Rapid launches a two-pronged attack in response to the jury’s verdict.

Rapid first points out that, although Goodman identified a variety of insulation products that he worked with at Standard Oil, he did not identify any Carey products. That identification came from another insulator’s helper, Franklin Lloyd, who worked at Standard Oil from 1947 to 1956. Rapid concedes that, when a plaintiff is unavailable to identify a particular product to which he was exposed, that identification may be made by another witness. It argues, however, that when the plaintiff is available to testify — here by videotaped deposition de bene esse — any identification of a product must be made by the plaintiff. ⁶⁵⁹ Rapid’s argument is without legal foundation.

There is simply no rule of law that would prevent a plaintiff from relying on other witnesses to identify asbestos-containing products to which he or she was exposed. Indeed, two of the plaintiffs in Godwin, 340 Md. 334 , 667 A.2d 116 , did just that. Godwin plaintiff Leggette McNiel worked just outside an open hearth furnace shop at Bethlehem Steel’s steelmaking facilities at Sparrows Point and was required to enter the shop several times a day. Although McNiel was available to testify at trial, he relied upon a witness who worked inside the shop to identify asbestos-containing products used there. 340 Md. at 350-353, 667 A.2d 116 .

Like Goodman, Godwin plaintiff Ira Russell died prior to trial and his videotaped deposition de bene esse was admitted into evidence. Russell was a pipefitter who worked for contractors who did work at Sparrows Point. His suit alleged that he contracted asbestosis from removing insulation applied to the pipes by Bethlehem Steel workers. Russell’s case depended on the testimony of a Bethlehem Steel worker to identify the insulation products.

Id. at 350, 353-55 , 667 A.2d 116 . The rule that Rapid urges this Court to accept would severely handicap plaintiffs, in general, in the pursuit of their claims. Many of those persons now claiming to suffer from asbestos-related diseases allege that their exposures to disease-causing agents date back twenty to fifty years. Those plaintiffs whose memories might understandably be hazy would be prohibited from relying on witnesses with clearer recollections.

Moreover, many potential plaintiffs, such as McNiel in Godwin , were bystanders who never worked with asbestos-containing products and never had knowledge of the products to which they were exposed. Such plaintiffs would be unable to rely upon witnesses who did have knowledge of the products. See Roehling v. Nat’l Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225 , 1228 (4th Cir.1986) (reversing summary judgment in favor of defendants and explaining that trial court’s requirement that plaintiff identify asbestos-con- ⁶⁶⁰ tabling products personally unless other identifying witness placed plaintiff at site was “unreasonable” and would “destroy an injured bystander’s cause of action for asbestos exposure”).

Rapid further argues that, even if Lloyd’s testimony was sufficient to identify Carey asbestos-containing insulation products as products used at Standard Oil during the time of Goodman’s exposure, the evidence was insufficient to establish that the products were a substantial factor in causing Goodman’s disease. In Rapid’s view, the evidence did not satisfy the proximity, frequency, and regularity test. There is no dispute that the Standard Oil refinery was a large facility, covering several square miles and containing roughly ten million feet of piping. Lloyd testified that Carey was “one of the insulations used” at Standard Oil — he recalled seeing both Carey pipecovering and block throughout the plant. 41 In his deposition de bene esse, Goodman testified that he worked “all over” the refinery insulating “anything that had to be heated.” Both Goodman and Lloyd testified that, as insulators’ helpers, they insulated boilers, and Lloyd told the court that all but one of the boilers were located “in one big boiler house.” While neither Goodman nor Lloyd testified to knowing or working with the other, the evidence made clear that they held identical jobs at Standard Oil at substantially overlapping times.

Goodman testified that he worked eight hours a day, five days a week. He further testified that, on big jobs, up to six insulators and insulators’ helpers worked together. Lloyd made clear that, while he was an insulator’s helper, Carey pipecovering and block were used throughout the plant. On this, we are satisfied that a reasonable jury could infer that Goodman, like Lloyd, regularly worked with Carey products during his employment at Standard Oü.

The evidence satisfied the proximity, frequency, and regularity test. See Asner, ⁶⁶¹ 344 Md. at 180-82, 686 A.2d 250 (although no direct evidence linked plaintiff Wilson to ACandS insulating cement, the jury could infer that Wilson was regularly exposed to the cement from evidence that he supervised workers who either used the cement or who worked near others who used the cement); Godwin, 340 Md. at 353-55 , 667 A.2d 116 (although no direct evidence linked plaintiff Russell to Unibestos pipe covering, the jury could infer that Russell was regularly exposed to the pipe covering from evidence that it was available to be used at the plant by insulators during the time period that Russell worked there as a pipefitter). - U.S. Mineral - The jury determined that Goodman was exposed to U.S. Mineral’s fireproofing spray in 1957. U.S. Mineral asserts that Goodman never mentioned that he was exposed to a spray product, and no other witness testified that a spray product was used at Standard Oil while Goodman worked there. According to U.S. Mineral, there was no suggestion whatsoever that U.S. Mineral’s spray product, which was known as CAFCO, was used at Standard Oil at the relevant times. 42 A review of the record supports U.S. Mineral’s position.

In his deposition testimony, Goodman specified that he was exposed to dust from asbestos-containing blocks, blankets, and cement. At trial, Eston Bonner, a former Hampshire employee, testified that he sprayed asbestos-containing fireproofing at Standard Oil “in the late ’50s---- I would say from ’57 through ’60.” He specified that he used a product known as “Spraycraft,” however, which was not manufactured by U.S. Mineral. 43 ⁶⁶² Bonner made clear that he used Spraycraft at Standard Oil “from ’57 through ’60.” Even if Bonner had identified CAF-CO as the product he used, he did not specify when in 1957 he began spraying at Standard Oil. In the absence of any testimony from Goodman that he was exposed to any spray product, no rational inference could be drawn that Bonner began spraying before Goodman left in October of that year, much less that Bonner sprayed in Goodman’s presence. Under the circumstances, the evidence was indeed insufficient to support the verdict in favor of Goodman. - Hampshire - According to the jury, Goodman was exposed to products used by Hampshire from 1951 to 1957.

The parties tacitly agree that the jury’s verdict concerned exposure to Hampshire’s fireproofing spray. 44 Hampshire contends that the ⁶⁶³ evidence was insufficient to support the verdict, in that there was no evidence that Hampshire sprayed at Standard Oil while Goodman was present. As we explained in our discussion as to U.S. Mineral, we must agree. There was simply no evidence from which the jury could draw the necessary inference. In an alternative argument that is moot as to Goodman and, as we shall see, as to Morrow but is significant as to Theis and Glensky, Hampshire argues that, even if a trial plaintiff established exposure to its application of fire proofing spray, the evidence was insufficient to support the jury’s finding that Hampshire was negligent.

As we shall discuss infra, Hampshire disputes that its duty to warn was the duty imposed upon a nonmanufacturing supplier/installer. Apparently assuming arguendo that it should be held to that standard, however, Hampshire argues that it did not know and should not have known, prior to 1965, that asbestos-containing spray could be dangerous to bystanders. See Balbos, 326 Md. at 203-04 , 604 A.2d 445 (indicating that, depending upon its peculiar opportunity and competence, a nonmanufacturing supplier may have a duty to discover information presented in nonobscure publications and to warn of those dangers — that is, such a nonmanufacturing supplier should be held to a modified “knew or should have known” standard). Hampshire asserts that the trial plaintiffs alleged that they were exposed in the years prior to 1965, but that the plaintiffs failed to establish that “nonobscure” literature regarding dangers to bystanders was available prior to 1970.

Evidence that “nonobscure” literature existed prior to 1965 was introduced through Dr. Barry Castleman, who testified for the plaintiffs as an expert “in the fields of occupational health and health hazards of asbestos and the history of asbestos.” Dr. Castleman listed more than a dozen articles published between 1933 or 1934 and 1964, which described ⁶⁶⁴ diseases suffered by asbestos workers. The articles appeared in a variety of publications, including, in some cases, Lancet— a “tremendously widely available medical journal” according to Dr. Castleman — and the New England Journal of Medicine. In response to a question by plaintiffs’ counsel, Dr. Castleman agreed that these “were published in English, ... were non-obscure and ... were readily available, easily available to anybody in the United States or even in Baltimore who wanted to read those articles around the time they were published.” As Hampshire acknowledges, moreover, the plaintiffs presented evidence that in 1939 the Legislature made asbestosis an occupational disease under the Maryland Workers’ Compensation statute. See 1939 Laws of Maryland chapter 465, § 32A at 991-92; Md. Ann.Code art. 101, § 34 (1939).

Whether the articles described by Dr. Castleman were in fact “nonobscure” was a question for the jury, which was apprised of each and every publication in which a described article appeared. Likewise, it was for the jury to determine whether it could be inferred from the publications, which concerned users of asbestos-containing products rather than bystanders, as well as from the Workers’ Compensation statute, that asbestos-containing products posed a danger to bystanders as well as users. Dr. Castleman gave a brief description of each article from which the jury could infer that, if the user was exposed, a bystander might be exposed as well. For instance, Dr. Castleman explained that one article described “chemical plant workers who were exposed to asbestos insulation and developed asbestosis----” Another discussed “a worker in an aluminum plant who got asbestosis from the dust created by wearing garments, safety clothing, gloves and things, to protect him from hot metals and splashing metals in an aluminum plant.” There was an article “about a plumber’s helper who got asbestosis from sawing pipecovering____” In addition, the Workers’ Compensation statute suggested that one need not have been an asbestos worker to be entitled to compensation.

It stated that any employee who contracted asbestosis ⁶⁶⁵ from “[a]ny process or occupation involving an exposure to or direct contact with asbestos dust” could recover. Id. (emphasis added). On this evidence, we are satisfied that an ordinarily intelligent mind could draw a rational conclusion that Hampshire should have known of the dangers posed to bystanders by asbestos-containing sprays.

B. Ciotta Leonard Ciotta suffered from a lung condition known as pleural plaques. Like Goodman, Ciotta alleged that he was exposed to the asbestos that later caused his condition while working at the Standard Oil refinery. Ciotta worked at Standard Oil from 1950 to 1956. He worked as a labor gang member for six months, then became a pipefitter’s helper.

As a pipefitter’s helper, Ciotta assisted in installing and replacing pipes and other equipment. The job entailed tearing off old asbestos-containing insulation. Ciotta, who was 73 at the time of trial, testified below. He testified, as did Goodman, that he worked “all over” the refinery.

In particular, Ciotta recalled working “[i]n the boiler house a lot of times” with Goodman. Ciotta told the court that he often worked near the “asbestos workers,” or insulators, while they were creating dust. - Rapid - The jury determined that Ciotta, like Goodman, was exposed to insulation products manufactured by Rapid’s predecessor, Carey, from 1950 to 1956. Rapid contends that the evidence was insufficient to support the verdict in favor of Ciotta. It reiterates the arguments it made as to Goodman, arguing that Ciotta himself did not identify Carey products but relied upon Lloyd’s identification, and that, in any event, the evidence as a whole failed to establish that Carey products were a substantial factor in causing Ciotta’s condition.

In addition, Rapid argues that the evidence was insufficient to establish that Ciotta suffered a legally compensable injury. ⁶⁶⁶ As we have explained, there is simply no rule of law that would prevent a plaintiff from relying on other witnesses to identify the asbestos-containing products to which he or she was exposed. Ciotta’s reliance on Lloyd to identify Carey insulation products as products in use at Standard Oil during Ciotta’s term of employment did not render the evidence presented by Ciotta insufficient. We are satisfied, moreover, as we were in the Goodman case, that the evidence was sufficient to satisfy the proximity, frequency, and regularity test. Lloyd testified that Carey pipecovering and block were used throughout the plant.

Ciotta testified that he worked “all over” Standard Oil, that his job entailed tearing asbestos insulation off of pipes and other equipment, and that he often worked with insulators who also created dust while they worked. We are satisfied that, on this evidence, a reasonable jury could infer that Ciotta regularly tore off Carey insulation products and worked near insulators who were using Carey insulation products. See, e.g., Godwin, 340 Md. at 353-55 , 667 A.2d 116 . Nor are we persuaded that the evidence was insufficient to establish that Ciotta suffered a legally compensable injury.

It is true, as Rapid contends, that “the condition known as pleural plaques, or even generalized pleural thickening, unaccompanied by disabling consequences or physical impairment, is not a compensable injury as a matter of law.” (Emphasis added.) See Owens-Illinois v. Armstrong, 87 Md. App. 699, 734-35 , 591 A.2d 544 (1991) (jury instruction that pleural plaques and pleural thickening are not compensable injuries was proper absent any evidence of loss or detriment to plaintiff), aff'd in part and rev’d in part on other grounds, 326 Md. 107 , 604 A.2d 47 , cert. denied, 506 U.S. 871 , 113 S.Ct. 204 , 121 L.Ed.2d 145 (1992); MCIC, Inc. v. Zenobia, 86 Md.App. 456, 481-84 , 587 A.2d 531 (1991) (trial court properly instructed jury that it could not award damages for pleural plaques unless it found that plaintiff was actually harmed), vacated on other grounds, 325 Md. 420 , 601 A.2d 633 (1992); Wright v. Eagle-Picher Indus., Inc., 80 Md.App. 606, 614 , 565 ⁶⁶⁷ A.2d 377 (1989) (jury instruction that pleural plaques are not a compensable injury was proper absent any evidence of loss or detriment to plaintiff). Rapid asserts that, “[i]n the Ciotta case, there was absolutely no objective evidence of any functional impairment.” This assertion is belied by the record. Ciotta testified that, about four years before trial, he began experiencing shortness of breath which made it difficult for him to cut his lawn and do other chores around his house. His