Hollingsworth & Vose Co. v. Connor

THIEME, Judge. ON MOTION FOR RECONSIDERATION A jury in the Circuit Court for Baltimore City awarded appellee, Charles M.P. Connor, $2,225 million dollars for damages resulting from mesothelioma induced from the asbestos in Kent cigarettes; appellee died two months later. Appel ⁹⁸ lants, Hollingsworth & Vose Company (“H & V”) and Lorillard Tobacco Company (“Lorillard”), promptly appealed from that judgment, and present the following questions, which we have rephrased, renumbered, and consolidated for clarity: 1. Did the trial court err, as a matter of law, in denying H & V’s motion to dismiss for lack of personal jurisdiction, because of the lack of contacts of H & V and its subsidiary with the State of Maryland? 2.

Did the trial court err, as a matter of law, by instructing the jury that it could not consider plaintiffs exposure to the asbestos-containing products of non-parties? 3. Did the trial court err, as a matter of law, by instructing the jury that H & V and Lorillard had a post-sale continuing duty to warn about the potential danger of a perishable consumer product? 4. Did the trial court err, as a matter of law, by refusing to include a state of the art instruction on the jury verdict form? 5. Did the trial court err in allowing Dr. Dement to testify concerning the work of Dr. Longo, because such testimony lacked foundation and was both hearsay and deficient, and further err in allowing Dr. Dement to offer opinions outside his area of expertise based on this improperly admitted evidence? 6.

Did the trial court err in both its instructions and special verdict form with respect to application of the Cap Statute and, furthermore, err in denying the defendants’ post-trial motion with respect to the issue? 7. Did the trial court err in denying defendants’ motion for judgment and/or for new trial, when plaintiff had produced insufficient evidence that the original Kent filter caused his disease? 8. Did the trial court err in denying defendants’ post-trial motion to dismiss, or, in the alternative, to exhume plaintiffs body? ⁹⁹ 9. Did the trial court err in denying defendants’ post-trial motion seeking appropriate credits under the Uniform Act?

We answer “yes” to question 1, remand as to questions 6 and 9, and answer “no” to questions 2, 3, 4, 5, 7, and 8. We explain. Facts Appellee was diagnosed with mesothelioma in June of 1997 and died as a result of this disease on July 3, 1999. Testimony adduced that appellee’s mesothelioma was induced by his exposure to asbestos, although there was divergence as to whether his mesothelioma was caused by the asbestos contained in Kent cigarettes or the occupational asbestos to which he had been subjected.

Appellee initially sued 27 “occupational defendants” that manufactured, distributed, or installed asbestos and/or asbestos-containing industrial or commercial products. Appellee alleged that he contracted mesothelioma because he was occupationally exposed to asbestos and asbestos-containing products for 25 years while working as an assembly man and electronics technician at an aircraft manufacturing facility. Appellee later amended his complaint to include both appellants, contending that his mesothelioma was also substantially induced due to smoking Kent cigarettes from 1952 through 1956, at a time when these cigarettes contained crocidolite asbestos as one of the components in their filters. Lorillard manufactured and distributed the Kent brand cigarettes, and H & Y manufactured the crocidolite asbestos filter used in the Kent cigarettes.

When trial commenced, only four defendants remained. During jury deliberations, the last two “occupational defendants” settled -with plaintiff; thus, H & V and Lorillard were the only remaining defendants. Subsequently, the jury returned a verdict in favor of the plaintiff against H & V and Lorillard in the amount of $2,225 million, with $225,000 representing medical expenses and $2 million repre ¹⁰⁰ senting non-economic damages. Final judgment was entered; this appeal followed.

I Personal Jurisdiction over H & V Discussion H & V contends that the trial court erred by denying its motion to dismiss for lack of personal jurisdiction. It argues that the State of Maryland lacks personal jurisdiction because it is a non-resident defendant, and jurisdiction cannot be achieved under Maryland’s long-arm statute. H & V is not a Maryland corporation; it was incorporated under the laws of the Commonwealth of Massachusetts, and its principal place of business is in that state. Thus, in order for a Maryland court to assert personal jurisdiction over H & Y, it must do so through Md.Code (1973, 1998 Repl.Vol., 2000 Cum Supp.), § 6-103 of the Courts and Judicial Proceedings Article (“CJ”), which provides: (a) Condition.—If jurisdiction over a person is based solely upon this section, he may be sued only on a cause of action arising from any act enumerated in this section.

(b) In general.—A court may exercise personal jurisdiction over a person, who directly or by agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply goods, food, services, or manufactured products in the State; (3) Causes tortious injury in the State by an act or omission in the State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the state or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (5) Has an interest in, uses, or possesses real property in the State; or ¹⁰¹ (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. The purpose of this statute is to give the courts personal jurisdiction over all out-of-state defendants who purposefully avail themselves of the privilege of conducting activities in Maryland, thus invoking the benefits and protections of Maryland law. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56 (4th Cir.1993); Malinow v. Eberly, 322 F.Supp. 594 (D.Md.1971); Mohamed v. Michael, 279 Md. 653 , 370 A.2d 551 (1977) (it is essential in each case that there be some act by which the defendant purposefully avails himself of the privilege of conducting activities within the forum state—thus invoking the benefit and protection of its laws); Harris v. Arlen Properties, Inc., 256 Md. 185 , 260 A.2d 22 (1969). Appellee’s Arguments Appellee points out that H & V “was directly involved in the promotional undertakings” together with Lorillard in regard to the Kent cigarettes and that “H & V even went so far as to place an upper level employee at Lorillard on a full-time basis.” We are given no specific examples of such conduct in appellee’s brief.

We will not consider this, or subsequent, general conclusory arguments that are supported only by circular reasoning and that are not appropriately correlated with specific legal authority or evidence included in the transcript. The same holds true for appellee’s vacant claim that H & V “took affirmative steps to help insure that consumers in Maryland would smoke Kent cigarettes.” The record extract in this case consists of five volumes, totaling 3,350 pages. If appellee had evidence of specific instances that would support such allegations, he should have made reference to the record extract. We will not peruse the record extract to find evidentiary support for appellee’s conclusory statements. ¹⁰² The liberalizing provision relating to record extracts in Rule 8-501 (c) does not excuse the failure to furnish in the brief references to factual material in support of a party’s argument as required by Rule 8-504(a)(4).

Nor does the liberalization in Rule 8-501 (c) alter the fundamental rule of appellate practice under which the appellate court has no duty independently to search through the record for error. ACandS, Inc. v. Asner, 344 Md. 155, 192 , 686 A.2d 250 (1996). Appellee states that “H & V and Lorillard jointly developed the asbestos filter and jointly incorporated it into a product which they placed in the national stream of commerce, including Maryland.” Appellee also states that “H & V profited directly from the sales in Maryland and elsewhere—a profit which was 100% contingent upon the marketing effort.” Although appellee’s arguments may, at first glance, seem seductive, we are not so gullible, devoid of worldly knowledge, or so childlike in our approach to realities that we can be deceived and hoodwinked by claims that have no factual or legalistic basis. First, appellee presents not a spark of evidence to support his claim that H & V had any involvement with Lorillard’s placement of the cigarettes in the stream of commerce.

Other than a typical manufacturer-retailer relationship, there is no evidence of a joint venture or partnership between the two companies. H & V merely produced the filters that were used as one of the components of the cigarettes; Lorillard placed the cigarettes in the stream of commerce by marketing and distributing them to its consumers. Appellee’s claim that H & V profited directly from the sales and that its profits were completely contingent upon marketing efforts promoting the cigarettes is of dubious relevance. We are at a loss to determine how this has any bearing on whether H & V had minimum contacts with the State of Maryland.

Of course its profits were directly related to the sales of the cigarettes. H & V manufactured a component that was used in the cigarettes sold by Lorillard. We take judicial notice of the obvious—that all manufacturers’ profits are directly contingent upon the commercial success of the finished product and that H & V profited from its sale of ¹⁰³ filters that were used in the cigarettes. Obviously, the more cigarettes Lorillard sold, the more H & V filters Lorillard purchased.

How can this be any indication of minimum contacts by H & V? If we were to follow appellee’s reasoning, then all manufacturers will be subject to personal jurisdiction for the acts of retailers. Such a result would effectively emasculate the due process clause, and the reach of the long-arm statute would approach infinity. Appellee argues that “H & V was intimately aware of how its filter was being used in the Kent cigarettes, how they were marketed (including marketing in Maryland through a national advertising campaign), and how they were packaged and sold.” These claims are unpersuasive on two grounds.

First, once again, there is no reference to any part of the record that substantiates these claims. Second, even if appellee had made specific references to support its claims, the truth of those claims would still not subject H & V to personal jurisdiction. What is the relevance of H & V’s knowledge of these matters? To accept appellee’s premise, we must then assume that a non-resident advertising agency has minimum contacts with a state if it is “intimately aware” of how its clients market their products in that state.

It is incredible to contemplate the consequences of such reasoning on our traditional notions of due process and justice. H & V’s role in the sale of the Kent cigarettes was merely in manufacturing the filters. Lorillard’s role was to market and distribute the cigarettes. There is nothing in the record that contradicts this conclusion.

We choose not to substitute “many-tentacled” for “long-arm” in the statute so that all distributors, manufacturers, and retailers are automatically embraced and subject to personal jurisdiction simply because a company in its supply chain happens to be accessible. Appellee quotes from Burger King v. Rudzewicz, 471 U.S. 462, 476 , 105 S.Ct. 2174 , 85 L.Ed.2d 528 (1985): “So long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there” (emphasis added) (citations omit ¹⁰⁴ ted), and then goes on to state that, “[h]aving shown that H & V purposefully established this relationship with Maryland, additional factors must then be considered----” (Emphasis added.) Appellee has once again used semantics at its convenience. How has H & V purposefully established any relationship with Maryland? It only may be concluded that it purposefully established a business relationship with Lorillard—nothing further.

Lorillard’s factories were not in Maryland. Lorillard marketed its cigarettes in Maryland, as well as throughout the country, but appellee has not begun to establish that H & V purposefully established a relationship with Maryland. The reference to Burger King directly preceding appellee’s statement does not make his claim more convincing. H & V’s efforts were pellucidly not “purposefully directed” toward residents of Maryland.

Appellee’s reliance on the cases it cites is disingenuous; they are easily distinguished from the facts in this case. For example, in Vermeulen v. Renault U.S.A. Inc., 975 F.2d 746 (11th Cir.1992), the defendant had designed its products specifically for the United States market, and thus was subject to personal jurisdiction in the United States. In this case, there is no evidence that H & V designed its filters specifically for the Maryland market, nor is there any evidence that the Maryland market was in any way specifically considered when the filters were designed. Appellee argues that the State of Maryland has a “strong interest in adjudicating this matter” because it involves injury to a Maryland resident.

Moreover, appellee asserts that H & Y is not significantly inconvenienced by having the State of Maryland as a forum for this action, because H & V already has been required to defend claims in several other jurisdictions in which it was not a resident corporation. In response, we quote the Maryland Court of Appeals: The legitimate interest that Maryland has in providing a forum to one of its citizens, and the fact that the action could probably be litigated in this State without significant inconvenience to the foreign corporations, while factors wor ¹⁰⁵ thy of serious consideration, cannot alone serve as the foundation for assumption of jurisdiction. Camelback Ski Corp. v. Behning, 307 Md. 270 , 513 A.2d 874 (1986), vacated for further consideration, 480 U.S. 901 , 107 S.Ct. 1341 , 94 L.Ed.2d 512 (1987), aff'd, 312 Md. 330 , 539 A.2d 1107 , cert. denied, 488 U.S. 849 , 109 S.Ct. 130 , 102 L.Ed.2d 103 (1988). Appellee claims that the “matter would be most efficiently handled by maintenance of the lawsuit against both defendants here.” Although such reasoning is certainly a factor in such circumstances, we do not sacrifice due process, fair play, and adherence to judicial precedent on the altar of judicial efficiency.

The Due Process Clause “does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.” World-Wide Volkswagen, 444 U.S. 286, 294 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980) (quoting International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310, 319 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945)). Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. World-Wide Volkswagen, 444 U.S. at 294 , 100 S.Ct. 559 . We hold that H & V did not establish minimum contacts with the State of Maryland, and that the exercise of personal jurisdiction over H & V would offend traditional notions of fair play and substantial justice; consequently, the trial court erred in asserting personal jurisdiction over H & V. We turn now to an examination of the trial court’s finding that it had jurisdiction over H & V. ¹⁰⁶ Personal Jurisdiction Application of this long-arm statute is a two-step process.

First, it must be determined whether the statute purports to authorize the assertion of personal jurisdiction. Secondly, it must be determined whether an exercise of jurisdiction permitted by the statute violates the due process clause of the Fourteenth Amendment. Mohamed v. Michael, 279 Md. 653 , 370 A.2d 551 (1977); Geelhoed v. Jensen, 277 Md. 220 , 352 A.2d 818 (1976). Under the familiar due process analysis enunciated in profuse Maryland and U.S. Supreme Court decisions, a defendant must have sufficient minimum contacts with the forum state so that the maintenance of a suit does not offend traditional notions of fair play and substantial justice.

Malinow v. Eberly, 322 F.Supp. 594 ; Mohamed, 279 Md. 653 , 370 A.2d 551 ; Geelhoed, 277 Md. 220 , 352 A.2d 818 ; Groom v. Margulies, 257 Md. 691 , 265 A.2d 249 (1970) Harris v. Arlen Properties, 256 Md. 185 , 260 A.2d 22 ; Allen v. Allen, 105 Md.App. 359 , 659 A.2d 411 (1995). The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant. “[The] constitutional touchstone” of the determination whether an exercise of personal jurisdiction comports with due process “remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King, 471 U.S. at 474 , 105 S.Ct. 2174 (quoting International Shoe, 326 U.S. at 316 , 66 S.Ct. 154 ). This concept of minimum contacts, however, has been the source of considerable controversy. In 1945, the Supreme Court first articulated that the “presence in a state” necessary in order to establish personal jurisdiction over the person was too limited for the increasing demands of interstate commerce and an expanding economy.

Subsequently, the Supreme Court adopted a more tractable approach that recognized a state’s jurisdictional power over a person not only when an individual is physically present within the state, but also when the individual conducts meaningful activity within the state ¹⁰⁷ even though not physically present, as long as notions of fairness are present in asserting jurisdiction over that individual. See International Shoe, 326 U.S. at 316 , 66 S.Ct. 154 . In the passage of time since International Shoe, the Supreme Court has further polished the definition of “minimum contacts.” In Hanson v. Denckla, 357 U.S. 235, 251 , 78 S.Ct. 1228 , 2 L.Ed.2d 1283 (1958), the Court limited the “minimum contacts” necessary to confer jurisdiction to those activities of an out-of-state defendant by which the defendant “purposely avails itself of the privilege of conducting activities within the forum state.” Id. at 253 , 78 S.Ct. 1228 . This occurs when the contacts “proximately result from actions by the defendant himself that create a ‘substantial connection’ with the forum state,” Burger King, 471 U.S. at 475 , 105 S.Ct. 2174 , or when the defendant’s efforts are “purposefully directed” at the state.

Id. at 476 , 105 S.Ct. 2174 . This determination must depend “upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.” International Shoe, 326 U.S. at 319 , 66 S.Ct. 154 . The sequel to International Shoe was the landmark 1980 Supreme Court case, World-Wide Volkswagen, 444 U.S. 286 , 100 S.Ct. 559 . In that case, a married couple purchased a new Audi automobile from a dealer in New York, and were involved in an accident in Oklahoma while on their way to their home in Arizona.

The accident resulted in severe injuries to the wife and two children. The couple brought suit in Oklahoma against the New York dealer and the New York distributor, claiming that design defects in the automobile contributed to the injuries. While the plaintiffs acknowledged that the two New York corporations were present, and did business, only in New York, they argued that Oklahoma’s exercise of jurisdiction over the New York corporations was appropriate because of the mobile nature of the automobile and the foreseeability that some cars these corporations sold would find their way into Oklahoma. ¹⁰⁸ The Supreme Court, however, rejected this argument, ruling that the exercise of personal jurisdiction over the New York corporations by an Oklahoma court would violate the Fourteenth Amendment because the New York corporations directed no activity to Oklahoma. The Supreme Court maintained the same reasoning it had held in previous cases, including International Shoe , which was the lodestar on this subject.

The Court stated that the defendants had not availed themselves of any privileges and benefits of Oklahoma law, that the defendants had not solicited any business there either through salespersons or through advertising reasonably calculated to reach the state, that the record did not show that the defendants regularly sold cars at wholesale or retail to Oklahoma customers or residents, and that the defendants had not indirectly, through others, served or sought out to serve the Oklahoma market. Id. at 295, 100 S.Ct. 559 . The holding in World-Wide Volkswagen was consistent with the earlier cases; however, the Court addressed the plaintiffs’ assertion that, because an automobile is mobile by its very design and purpose, it was “foreseeable” that the plaintiffs’ Audi would cause injury in Oklahoma. The Court responded that “foreseeability” alone has never been a sufficient benchmark for personal jurisdiction under the Due Process Clause.

Id. It added, however: This is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product ■will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.

Id. at 297 , 100 S.Ct. 559 . See Kulko v. California Superior Court, 486 U.S. 84 , 97-98, 98 S.Ct. 1690 , 56 L.Ed.2d 132 (1978). The Due Process Clause, by ensuring the “orderly administration of the laws,” gives a degree of predictability to the legal system that allows potential defendants to structure ¹⁰⁹ their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit. International Shoe, 326 U.S. at 319 , 66 S.Ct. 154 .

This brings us to the “stream of commerce” rationale raised in World-Wide Volkswagen , relied on by appellee. The World-Wide Volkswagen Court stated that “[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” World-Wide Volkswagen, 444 U.S. at 297-98 , 100 S.Ct. 559 . The Court concluded that, although it was foreseeable that purchasers of automobiles sold by defendant may take them to Oklahoma, the mere “unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” Id. at 298 , 100 S.Ct. 559 . Thus, although the Supreme Court in WorldWide Volksioagen held that personal jurisdiction was not present, it gave credence to the “stream of commerce” assertion on which appellee bases its contention for personal jurisdiction.

We shall now discuss this “stream of commerce” approach and explain why we reject it under the facts of this case. In its review of the World-Wide Volkswagen opinion, the Fourth Circuit U.S. Court of Appeals in Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939 (4th Cir.1994), stated that, “[notwithstanding the breadth of this ‘stream of commerce’ language, the entire opinion indicates that the Court has not abandoned the notion that jurisdiction must rest on a person’s activity deliberately directed toward the forum state.” Lesnick, 35 F.3d at 943-44 . The Fourth Circuit went on to assert: In sum, the World-Wide Volkswagen Court’s repeated reliance upon the fact that defendants, who did not direct any of their activities toward Oklahoma, could not have anticipated being subject to the jurisdiction of Oklahoma courts, leads us to believe that we should not read the “stream of commerce” language out of context. While World-Wide ¹¹⁰ Volkswagen has been cited for the proposition that personal jurisdiction may follow a product if it is delivered “into the stream of commerce with the expectation that [it] will be purchased by consumers in the forum state,” [citations omitted] we read the holding of the case to be much narrower, requiring purposeful activity on the part of the defendants to establish a meaningful contact with the forum state.

Id. at 944. The next Supreme Court case refining the “minimum contacts” standard and its application to personal jurisdiction was the paradoxical case of Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 , 107 S.Ct. 1026 , 94 L.Ed.2d 92 (1987). In Asahi, a Californian was injured in a motorcycle accident when its rear tire tube exploded. He filed suit against the Taiwanese manufacturer of the tube, which, in turn, impleaded Asahi, a Japanese company that manufactured and supplied the tube’s valve assembly.

Asahi conceded that it was aware that its valve assemblies would eventually be sold on motorcycles throughout the United States, but it contended that it never expected to be sued in the United States, since all of its sales flowed from Japan to Taiwan. In Asahi, the Supreme Court produced two dissonant plurality opinions, with each opinion shared by four Justices. The schism was over whether the first prong under the International Shoe analysis, specifically, the minimum contacts standard, had been achieved. Although there was no majority opinion as to whether minimum contacts existed, the Court did unanimously hold that personal jurisdiction was not present.

Taking into account the burden on Asahi to defend an American suit, the Court relied on the second prong of International Shoe and decided that California’s assertion of jurisdiction over Asahi would be unconstitutional, because it would “offend traditional notions of fair play and substantial justice.” Asahi, 480 U.S. at 113 , 107 S.Ct. 1026 . In discussing the first prong of the International Shoe analysis—whether minimum contacts were present—four Justices, including Justice O’Connor, Chief Justice Rehnquist, and Justices Pow ¹¹¹ ell and Scalia, opined that the minimum contacts standard had not been met. Justice O’Connor, writing for that plurality, articulated: The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State.

But a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Asahi, 480 U.S. at 112 , 107 S.Ct. 1026 . In sum, according to the plurality opinion written by Justice O’Connor, even though Asahi may have been aware that its products would eventually be sold in California, its lack of conduct directed specifically at California made jurisdiction in California improper under a “minimum contacts” analysis. In contrast, Justice Brennan, joined by Justices White, Marshall, and Blackmun, concluded that World-Wide Volkswagen should not be read to require “additional conduct” beyond simply placing a product in the stream of commerce with the expectation that it will be purchased in the forum state.

As Justice Brennan continued, “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” Asahi, 480 U.S. at 117 , 107 S.Ct. 1026 . Justice Stevens remained above the discord by declining to address the issue and stating that it did not need to be resolved because of the unanimous decision to rely on the second prong of International Shoe . He did state, however, ¹¹² that, “even assuming that the [minimum contacts] test ought to be formulated here,” Justice O’Connor’s opinion “misapplies [the test] to the facts of [Asahi].” Id. at 122, 107 S.Ct. 1026 . Justice Stevens concluded that Asahi’s conduct did rise to the level of “purposeful avaihnent” in the state of California because of the large number of Asahi’s units that ended up there.

Id. Conceding that there has been dissension among courts in the interpretation of the minimum contacts standard, the O’Connor plurality opinion in Asahi articulated: In World-Wide Volkswagen itself, the .state court sought to base jurisdiction not on any act of the defendant, but on the foreseeable unilateral actions of the consumer. Since ' World-Wide Volkswagen, lower courts have been confronted with cases in which the defendant acted by placing a product in the stream of commerce, and the stream eventually swept defendant’s product into the forum State, but the defendant did nothing else to purposefully avail itself of the market in the forum State. Some courts have understood the Due Process Clause, as interpreted in World-Wide Volkswagen, to allow an exercise of personal jurisdiction to be based on no more than the defendant’s act of placing the product in the stream of commerce.

Other courts have understood the Due Process Clause and the above-quoted language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce. Id. at 110 , 107 S.Ct. 1026 . Concluding the discussion on the two divergent interpretations of the minimum contacts standard, the O’Connor plurality opinion stated that the more stringent “purposefully directed” test, rather than the “stream of commerce test,” was the position that was “consonant with the requirements of due process.” Asahi, 480 U.S. at 112 , 107 S.Ct. 1026 . “The substantial connection between the defendant and the forum State necessary for a finding of minimum contacts must come ¹¹³ about by an action of the defendant purposefully directed toward the forum State.” Id. See Burger King, 471 U.S. at 476 , 105 S.Ct. 2174 ; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 , 104 S.Ct. 1478 , 79 L.Ed.2d 790 (1984).

Aware that the federal circuits are confrontational on this recondite question of whether the “stream of commerce” language in World-Wide Volkswagen should control in this type of analysis, our reading of World-Wide Volkswagen and Asahi is in harmony with the ray that broke through the clouds of logical inconsistency in the Fourth Circuit with Lesnick . The Lesnick Court reviewed in considerable detail the Asahi Supreme Court opinion, concluding: [T]he Supreme Court has not abandoned the International Shoe two pronged test as further articulated in Hanson and Burger King . The touchstone of the minimum contacts analysis remains that an out-of state person have engaged in some activity purposefully directed toward the forum state. See Hanson, 357 U.S. at 253 [, 78 S.Ct. 1228 ]; Burger King, 471 U.S. at 475 , 105 S.Ct. 2174 ; World-Wide Volkswagen, 444 U.S. at 297 [, 100 S.Ct. 559 ], And if that initial tost is met, a court must still determine whether the exercise of such jurisdiction would offend traditional notions of fair play and substantial justice.

See Asahi, 480 U.S. at 113 [, 107 S.Ct. 1026 ], This reading of World-Wide Volkswagen and Asahi has prior support in our jurisprudence. See Ellicott Mach. Corp. v. John Holland Party, Ltd., 995 F.2d 474, 477 (4th Cir.1993) (holding that minimum contacts exist where the defendant “purposefully directs its activities toward the residents of the forum”); see also Federal Insurance Co. v. Lake Shore, Inc., 886 F.2d 654 (4th Cir.1989). To permit a state to assert jurisdiction over any person in the country whose product is sold in the state simply because a person must expect that to happen destroys the notion of individual sovereignties inherent in our system of federalism.

Such a rule would subject defendants to judgment in locations based on the activity of third persons and not the deliberate conduct of the defendant, making it impossible for defendants to plan and structure ¹¹⁴ their business contacts and risks. Moreover, we do not believe that the holding of World-Wide Volkswagen takes us as far as plaintiff in this case suggests. Thus, we hold that the test to be applied in considering the reach of personal jurisdiction inquires whether (1) the defendant has created a substantial connection to the forum state by action purposefully directed toward the forum state or otherwise invoking the benefits and protections of the laws of the state; and (2) the exercise of jurisdiction based on those minimum contacts would not offend traditional notions of fair play and substantial justice, taking into account such factors as (a) the burden on the defendant, (b) the interests of the forum state, (c) the plaintiffs interest in obtaining relief, (d) the efficient resolution of controversies as between states, and (e) the shared interests of the several states in furthering fundamental substantive social policies. See Hanson, 357 U.S. at 253 [, 78 S.Ct. 1228 ]; Burger King, 471 U.S. at 475 [, 105 S.Ct. 2174 ]; Asahi, 480 U.S. at 113 [, 107 S.Ct. 1026 ].

Lesnick, 35 F.3d at 945-46 . As in Asahi , H & V in the case at bar has done nothing that would subject it to personal jurisdiction under the minimum contacts standard. H & V manufactured its filters in Massachusetts, it did not maintain an office in Maryland, it did not ship its filters to Maryland, it does not appear from the record that it designed or manufactured its filters specifically for the Maryland market, nor did it advertise or market its filters in Maryland. The evidence shows that H & V distributed its filter material to Lorillard’s plants in Kentucky and New Jersey and that H & V had no involvement with the manufacture of Kent cigarettes, nor any control over their sale and distribution.

Although it is reasonable to assume that H & V was aware that its filters, as components of Kent cigarettes, would be purchased and smoked within the State of Maryland, this will not suffice to establish minimum contacts. We hold that H & V did not possess sufficient minimum contacts with the ¹¹⁵ State of Maryland in order to subject it to personal jurisdiction within this State under the facts in this case. II Jury Instructions Standard of Review Farley v. Allstate Ins. Co. 355 Md. 34, 46-47 , 733 A.2d 1014 (1999), stated: We have held that the standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them.

Accordingly, Md. Rule 2-520, “Instructions to the jury,” states in pertinent part: “(c) How given. The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions on its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Thus, simply because a requested instruction is an accurate statement of the law and supported by the evidence does not mean the trial judge is required to give it to the jury. So long as the trial judge has covered the applicable law in another instruction, or combination of instructions, Md. Rule 2-520(c) makes clear that he or she does not have to give it to the jurors.

In reviewing the propriety of a trial court’s denial of a requested jury instruction, we must examine “whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.” Moreover, the standard for reversible error places the burden on the complaining party to show both prejudice and error. (Emphasis supplied, citations omitted.) We now turn to an examination of the jury instructions at issue in this appeal. ¹¹⁶ Appellee’s exposure to asbestos by non-parties Appellants assert that the trial court erred by instructing the jury that “a plaintiffs possible exposure to asbestos-containing products of non-parties is not to be considered by you in your determination of substantial causation.” The Court instructed as follows: If a defendant’s products were a substantial factor in bringing about the injuries to the plaintiff, the fact that the defendant could not anticipate the exact type of injury for which the plaintiff seeks recovery or the exact manner in which the injury came about does not reheve the defendant from responsibility. Whether the exposure of any given user or consumer to a particular manufacturer’s, supplier’s or installer’s product would be legally sufficient to permit a finding of substantial causation is a fact specific to each case. The analysis of substantial causation, which is Question Two, focuses upon the plaintiffs failure—exposure to all products.

The fact that the plaintiff may have been exposed to a variety of asbestos products does not relieve the defendant of liability for the injuries complained of. A plaintiff’s possible exposure to asbestos-containing products of non-parties is not to be considered by you in your determination of substantial causation. That finding would involve the interrelationship between the use of a defendant’s products and the activities of the person using it either at the work place or in the general public domain. (Emphasis supplied.) Appellants argue that they have shown asbestos exposure by non-parties by demonstrating that the cigarettes were not unreasonably dangerous and that they were not a substantial causal factor of plaintiffs mesothelioma.

They claim to have demonstrated this through evidence of appellee’s occupational exposure to asbestos during his 25-year employment at Glen ¹¹⁷ L. Martin. They further claim to have demonstrated this through the testimony of Dr. Allen Gibbs, an expert in the field of pathology and asbestos-related disease, who testified that the release of asbestos from the Kent filter was insignificant; by Dr. Rubin’s testimony that “workers at Glen L. Martin have mesothelioma far greater than anybody else in the universe”; and by the testimony of three other experts that indicated that 80% of mesothelioma diagnoses in North American men are attributable to occupational exposure to asbestos. The Court, continuing to instruct on the defendants’ duty, proceeded as follows: There may be more than one cause of an injury; that is, several negligent acts may work together. Each party whose negligent act is the cause of an injury is responsible.

It is necessary and sufficient to constitute probable cause that the conduct of a particular defendant charged or the product or products of a particular defendant were an efficient cause that helped to set in motion the chain of circumstances leading up to the injury and that helped to produce the injury. Failure to warn must be a proximate cause of the incident. Each defendant’s product or products may be considered a legal cause of the plaintiffs harm if the defendant’s product or products are a substantial factor in bringing about the harm. The word substantial used in this sense means that the defendant’s product or products must have had such an effect in producing a harm as to lead reasonable persons to regard it as a cause.

Where a plaintiff has proved a disease resulting from exposure to asbestos products of different identified manufacturers or suppliers, no manufacturer or supplier has a defense solely on the ground that the plaintiff would probably have suffered the same disease from inhaling or ingesting fibers originating from the products of others. ¹¹⁸ Where the separate and independent acts of sevei-al defendants combined to produce a single injury, each defendant is responsible for the entire injury. In other words, joint defendants may be legally responsible, even if their participation in that injury occurred at different times, in different ways and in unequal proportions. You shall not apportion or distribute responsibility in these cases. We find no basis for disturbing the trial judge’s ruling regarding this jury instruction.

The trial court’s jury instruction followed the legal explanation articulated in ACandS, Inc. v. Asner, 344 Md. 155 , 686 A.2d 250 (1996), a case cited by both appellants and appellee. In Asner , the Court of Appeals provided a guideline for dealing with jury instructions as to exposure by non-parties. A factual defense may be based on the negligible effect of a claimant’s exposure to the defendant’s product, or on the negligible effect of the asbestos content of a defendant’s product, or both. In such a case the degree of exposure to a non-party’s product and the extent of the asbestos content of the non-party’s product may be relevant to demonstrating the non-substantial nature of the exposure to, or of the asbestos content of, the defendant’s product.

But, a defendant would not ordinarily generate a jury issue on lack of ' substantial factor causation only by showing the dangerousness of a non-party’s product to which the claimant was exposed. Ordinarily a defendant would have to follow up the evidence of exposure to the products of non-parties with evidence tending to prove that the defendant’s product was not unreasonably dangerous or was not a substantial causal factor. Under these circumstances the proposition that the defendant’s product is not a substantial cause may be made more probable by evidence tending to prove that the claimant’s disease was caused by the products of one or more non-parties. See, e.g., Becker v. Baron Bros., 138 N.J. 145 , 649 A.2d 613 (1994) (whether processed ehrysotile in brake ¹¹⁹ products posed a risk of causing mesothelioma in users was a sharply disputed issue of fact at trial, so that trial court erred in instructing as a matter of law that the products were defective without a warning).

Id. at 176-77 , 686 A.2d 250 (footnote omitted). We point out that, at the time this jury instruction was given, Owens-Corning was still a defendant in this action. It was not until after jury instructions had been given and the jury began its deliberations that Owens-Corning settled with appellee. Therefore, at the time of the instruction, Owens-Corning was still a party, and, consequently, the instruction did not preclude the jury from considering the effects of any asbestos exposure caused by Owens-Corning. 1 To counter the possible effect on the jury of the technical application of this instruction, appellants could have re-visited this issue once Owens-Corning was no longer a party in this action.

After the settlement, appellants may have been better served by requesting further instructions at that time. However, appellants’ insouciance prevents us from addressing the issue. Therefore, we find that the trial judge properly instructed the jury that it should disregard any evidence relating to plaintiffs exposure to the asbestos-containing products of non-parties. Appellants have not demonstrated that any prejudice and error resulted from the trial judge’s jury instructions.

The instructions given to the jury adequately covered the applicable law. ¹²⁰ Continuing Duty to Warn Appellants’ next contention is that the trial court should not have provided the standard jury instruction