Accordingly, Mrs. Wood was required to demonstrate that Mr. Wood worked in proximity to others using Ford's brake and clutch products with some frequency and regularity. ACandS v. Asner, 344 Md. 155, 171, 686 A.2d 250 (1996); Balbos, 326 Md. at 210, 604 A.2d 445. While Mrs. Wood presented sufficient evidence from which a jury could infer that Mr. Wood's exposure to asbestos-containing brake and clutch products was sufficient to have substantially caused his mesothelioma, she did not present sufficient evidence that Mr. Wood was exposed to Ford's brake and clutch products with the requisite degree of frequency, proximity or regularity.
Id. at 390, 667 A.2d at 143. In a related asbestos case, ACandS, Inc. v. Asner, 344 Md. 155, 686 A.2d 250 (1996), we again relied on the "clear and convincing" standard in rejecting the plaintiffs' claims of punitive-damage liability. In Asner, we reviewed the trial judge's decision to submit the issue of punitive damages to the jury.
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 "HV 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."
The question is whether each contributing cause, standing alone, is a substantial factor. ACandS, Inc. v. Asner, 344 Md. 155, 174-75, 686 A.2d 250 (1996). Nevertheless, an exposure cannot be a substantial factor in causing a disease if it had no effect on the person or had a negligible effect on the person.
Moreover, this Court has allowed defendants to point to non-party negligence in other circumstances. ACandS, Inc. v. Asner , 344 Md. 155, 686 A.2d 250 (1996), involved a products liability action against manufacturers and suppliers of asbestos-containing products. In that case we stated:
This argument was neither briefed by either party before our opinion was filed, nor was the relevant two-page transcript excerpt included in the 19,410-page joint record extract. See ACandS, Inc. v. Asner, 344 Md. 155, 189-92, 686 A.2d 250, 266-68 (1996) (denying a motion for reconsideration in part because the appellee-movants did not reference in their brief or provide in the record extract the depositions relevant to their argument on reconsideration); Maryland Rule 8-501(c) ("The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal."); Maryland Rule 8-504(a)(6) (requiring briefs to contain "[a]rgument in support of the party's position on each issue"). Rather, Appellees directed our attention to these alleged concessions for the first time in the motion for reconsideration.
This argument was neither briefed by either party before our opinion was filed, nor was the relevant two-page transcript excerpt included in the 19,410–page joint record extract. See ACandS, Inc. v. Asner, 344 Md. 155, 189–92, 686 A.2d 250, 266–68 (1996) (denying a motion for reconsideration in part because the appellee-movants did not reference in their brief or provide in the record extract the depositions relevant to their argument on reconsideration); Maryland Rule 8–501(c) (“The record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal.”); Maryland Rule 8–504(a)(6) (requiring briefs to contain “[a]rgument in support of the party's position on each issue”). Rather, Appellees directed our attention to these alleged concessions for the first time in the motion for reconsideration.
Owens-Illinois v. Zenobia, supra, 325 Md. at 462-463, 601 A.2d at 653-654. See also, e.g., ACandS v. Asner, 344 Md. 155, 182-186, 686 A.2d 250, 263-265 (1996); Owens-Corning v. Garrett, supra, 343 Md. at 537-540, 682 A.2d at 1161-1162; ACandS v. Godwin, 340 Md. 334, 358-362, 667 A.2d 116, 127-129 (1995), and cases there cited; U.S. Gypsum v. Baltimore, 336 Md. 145, 187-188, 647 A.2d 405, 426 (1994). Moreover, "a plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages."
"See also, e.g., Scott v. Jenkins, 345 Md. 21, 690 A.2d 1000 (1997) (battery and false arrest); ACandS v. Asner, 344 Md. 155, 686 A.2d 250 (1996) (product liability); Owens-Corning v. Garrett, 343 Md. 500, 682 A.2d 1143 (1996) (negligence and strict liability); ACandS v. Godwin, 340 Md. 334, 667 A.2d 116 (1995) (product liability); U.S. Gypsum v. Baltimore, 336 Md. 145, 647 A.2d 405 (1994) (product liability). While none of the above-cited cases specifically involved defamation, we have repeatedly stated that in all tort actions, an award of punitive damages must be based upon "`conscious and deliberate wrongdoing, evil or wrongful motive, intent to injure, ill will, or fraud,'" Scott v. Jenkins, supra, 345 Md. at 33, 690 A.2d at 1006, quoting Montgomery Ward v. Wilson, supra, 339 Md. at 733, 664 A.2d at 932.
As Judge Rombro instructed the jury in the instant case, the "state of the art" is the "state of the knowledge" in the "scientific community" about the dangers of asbestos at any given time. See ACandS, Inc. v. Asner, 344 Md. 155, 165, 686 A.2d 250 (1996) (defining "state of the art"). Issues involving a plaintiff's burden on state of the art in an asbestos products liability failure to warn case are particularly appropriate for consolidations.