In Pifer v. Irwin Industrial Tool Co., 2021 WL 3076855 (Md. Ct. Spl. Apls. Jul. 21, 2021) (unreported), the appellate Court addressed a novel authenticity issue. Specifically, the Court addressed the authentication of chalk samples gathered by plaintiff on eBay several decades after the date of manufacture, many of which contained a unique type of asbestos. At issue was the quantum of proof needed to lay a foundation for admissibility.
This blog was posted on July 26, 2021. On September 1, the Court re-released its decision as a published opinion. 2021 WL 3909626 (Md. Ct. Spl. Apls. Sept. 1, 2021). West later published it as 2021 WL 4057804. References in this blog are to the first Westlaw version. The September version has some non-substantive edits.
The appellate court applied the principles included in Maryland Rule 5-104(b); however, it did not cite that subsection of the Rule.
Pifer was a wrongful death action for asbestos exposure. One of the defendants had manufactured “Strait-Line” marking chalk. The Court wrote that the decedent, “Mr. Pifer used Strait-Line marking chalk every day to mark on carpet where it needed to be cut or placed. Mr. Pifer also refilled his marking chalk squeeze bottle when it became empty. The marking chalk created a lot of dust, which Mr. Pifer encountered on average fifty times per day.” Mr. Pifer died of mesothelioma.
The Court described two evidentiary events that followed.
First, the estate found a squeeze bottle of Strait-Line chalk in Mr. Pifer’s garage. It was stored with his carpet-cutting tools. The bottle and tools were sent for laboratory analysis. The chalk bottle tested positive for asbestos. Because the trial court held that the chalk-bottle evidence was authenticated and the expert opinion regarding it was admissible, it is not discussed further in this blog.
Second, “to test the proposition that Strait-Line Chalk—beyond the one bottle located in Mr. Pifer’s garage—was contaminated with asbestos the Estate’s counsel acquired vintage samples of Strait-Line chalk from around the country, primarily through eBay.” [Emphasis added].
The timeline is important. The chalk was sold from 1960 to 1982. Mr. Pifer worked as an installer and was exposed, on average of 50 times per day, from 1960 to the mid-1970’s. Strait-Line chalk was the only brand used by Mr. Pifer’s employer from the 1960’s to the 1980’s. In 1989 or 1990, Mr. Pifer took an office job and his exposure ended. In 2016, he was diagnosed with mesothelioma, and he died shortly after that. The samples were acquired via eBay sometime after that. Suit was filed in 2018.
The trial court held that the samples had not been authenticated and excluded the expert opinion that was based on them. It stated that, “at a minimum, it’s a 36-year gap between when the samples were manufactured and when they were purchased on eBay.” It also pointed to an “unknown chain of custody” during those years.
Some of the samples were sealed; others were not. The samples were obtained from nine different sellers in seven different states. They were tested by an expert and the type of asbestos used in the chalk was a noncommercial amphibole asbestos. It was regulated and “not easily found….” The Court wrote that there was no dispute that the sample containers were defendant’s. Further, the color of the chalk in each of the samples matched the color designated on the label.
Many of the samples tested positive for asbestos. The estate’s expert opined that nineteen sealed positive samples were not tampered with or contaminated before testing.
The estate’s exposure claim was substantially based on the expert’s findings. After the samples were deemed inadmissible on a motion in limine, summary judgment was granted against the estate. It appealed.
That set the stage for the arguments over authentication. The appellate court noted:
The circuit court found that the Estate had to prove to a reasonable probability that the samples acquired from eBay were in substantially the same condition as when they left Irwin’s control because of the decades that had elapsed from when the samples were manufactured to when they were tested…. [The circuit judge stated] “The plaintiff is providing me with incomplete chains of custody. Plaintiff cannot account for the fact that at a minimum it’s a 36-year gap between when the samples were manufactured and when they were purchased on eBay…. I find that the plaintiffs have failed to make the requisite showing under [Md. Rule] 5-901 [authentication]. And I’ve gone one step further and find that I can’t let the samples in.
The appellate Court defined the issue:
The ostensible main issue in this appeal is whether the trial court erred in granting a motion in limine to exclude evidence on authenticity grounds. But underlying that seemingly preliminary meta-question—is there evidence sufficient to support a finding that a piece of evidence a plaintiff would like to offer at trial is what its proponent claims?, see Md. Rule 5-901(a)—lies a tricky dynamic about the quantum of proof required for a piece of evidence to get over the admissibility threshold and before a jury. Trial judges often are described, including in the briefs of this case, as gatekeepers. But is the court guarding a threshold readily surmounted by a step or a hop? Or a gate that is closed unless opened or unlocked?…. We hold that the court required more certainty about the contents and provenance of the chalk samples than the law requires, and we reverse the trial court’s order granting the motion in limine.
The parties’ views of authentication differed substantially. The Court described defendant’s argument as requiring “a complete chain of custody.” It amplified it as follows:
At the center of both arguments is the notion that authenticity is a question for the jury and is not for the judge to determine at a motions hearing, and that an evidentiary threshold doesn’t require a plaintiff to satisfy its burden of proof on the merits of the claim. [Defendant/appellee] Irwin responds that the trial court appropriately acted as an evidentiary gatekeeper and applied the correct legal standard when it required the [plaintiff/appellant] Estate to establish a chain of custody for the chalk samples. Irwin characterizes the court’s gatekeeper role as an essential safeguard against a jury jumping to conclusions and assuming authenticity when presented with tangible evidence. This back-and-forth reveals the critical tension between the factual disputes that juries get to resolve and the evidence they should be allowed to consider in resolving them…. Irwin argues that the Estate needed to establish a complete and reliable chain of custody for the exemplars to be admissible. Irwin contends that a party must present evidence “negating the probability of changed conditions” and “a possibility of ‘tampering.’ ” Amos v. State, 42 Md. App. 365, 370 (1979)….
Not surprisingly, the plaintiff disagreed:
The Estate argues on appeal that the trial court applied the wrong legal standard and erred in requiring stringent proof of the chain of custody of the chalk samples acquired from eBay. The Estate contends that the burden to authenticate is slight—the judge should act as the evidentiary gatekeeper, it says, and leave the ultimate question of authenticity to the jury…. The Estate urges us to view the reasonable probability through the eyes of the reasonable (future) juror, i.e., that the authentication “requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” Sublet v. State, 442 Md. 632, 666 (2015) (quoting United States v. Vayner, 769 F.3d 125, 129–30 (2d Cir. 2014)); see also Jackson v. State, 460 Md. 107, 122 (2018).
The appellate Court rejected defendant’s chain of custody argument, explaining: “Even in cases requiring a chain of custody, there can be gaps so long as there is a reasonable probability that the evidence is what the proponent claims…. It’s possible in the abstract that these chalk exemplars could be susceptible to tampering. But there’s no evidence of tampering beyond hypothesis, and the stakes are very different here than in a criminal case involving controlled dangerous substances or a murder weapon.” Id. at *8-9.
The Court then determined that authenticity of the chalk samples had been established by Mr. Pifer’s estate. It noted that defense counsel did not dispute that the exemplars were in defendant’s containers. It wrote:
We disagree, then, that the Estate was required to establish a seamless chain of custody in order to prove a reasonable probability that the exemplars are what the Estate claims. To the contrary, the Estate demonstrated a reasonable probability of sameness. Indeed, there is no dispute that (1) the exemplar containers are Irwin’s, (2) noncommercial amphibole asbestos is regulated and not easily found, (3) the eBay samples came from nine different sellers in seven different states who, to tamper as Irwin claims, would have had to lace the Irwin chalk exemplars with asbestos intentionally, (4) a majority of the exemplars tested positive for asbestos, (5) each exemplar contained chalk matching the color designated on the label, and (6) an overwhelming majority of the samples arrived sealed and with no evidence of tampering. That’s enough to get these samples over the threshold, and that leaves Irwin free to argue its views on the contents to a jury, which in turn is free to decide if Irwin’s chalk exposed Mr. Pifer to the asbestos that caused his mesothelioma.
The Court also wrote that: “The Estate argued, and Irwin didn’t counter, that it is unlikely that the previous owners of the exemplars would have intentionally found and laced the samples with noncommerical amphibole asbestos.”
The Court’s penultimate reasoning is important:
This record doesn’t yield an airtight conclusion about the contents of these samples, but, viewed as a whole, establishes as a matter of law a reasonable probability or a fair likelihood that the chalk exemplars were manufactured by Irwin and are representative of the chalk they contained at the time they were manufactured. The ultimate question of what they are, and whether they prove what the Estate claims, is for a trier of fact to answer. A gap in the chain of custody does not render evidence categorically inadmissible but is part of the factual picture the jury should consider in determining whether the evidence is reliable and whether the Estate has met its burdens of proof on the merits. And Irwin will be entitled to a full opportunity to cross-examine the Estate’s expert and to provide whatever counter-evidence it can—threshold admissibility is exactly that, and “does not establish ultimate persuasion, as a matter of fact.” Morton, 242 Md. App. at 585. By requiring the Estate to prove the negative, i.e., an unbroken chain of custody from the factory and the absence of tampering, the trial court required more than a reasonable probability that the samples are exemplars of the chalk Mr. Pifer used, and we reverse the decision to grant Irwin’s motion in limine. [Emphasis added].
That ruling also led to reversal of the grant of summary judgment.
The Court of Special Appeals did not cite to Rule 5-104(b). Subsection (b) is the conditional relevance provision. Federal decisions have described its applicability to authenticity decisions. While not cited, the Court of Special Appeals applied the principles of Md. Rule 5-104(b), stating: “The ultimate question of what they are, and whether they prove what the Estate claims, is for a trier of fact to answer.” Pifer, 2021 WL 3076855 at *10.
It would not be difficult to argue that an alternative, perhaps more straightforward, basis for reversal in Pifer could be based on Md. Rule 5-104(b) because a conditional relevance situation was presented. Under that Rule: “ When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.”
Here, it could be persuasively argued that relevance – was the eBay chalk in the same condition when tested that it was in when it left defendant’s manufacturing plant 36 years ago? – depends on whether it was contaminated during the thirty-six year gap. As the Court noted, there was evidence from which a reasonably jury could conclude that it was not contaminated. Therefore, Rule 5-104(b) provides that it “shall” be admitted, subject to the introduction of evidence sufficient to persuade the jury.
That argument could be bolstered by federal decisions applying Fed.R.Evid. 104. Maryland Rule 9-104 is analogous to Fed.R.Evid. 104(a). In fact, the Committee Notes state that the Maryland Rule is derived from the Federal Rule, and the two rules are printed side-by-side at the end of this blog.
Rule 104 provides the first step on the road to admissibility analysis. Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007). That Rule “ addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence.” Subsection (a) governs admissibility subject to subsection (b). Id. at 539. Under subsection (b), the ultimate resolution of authenticity is for the jury. Id. In short, first the trial court’s role is to determine whether there is sufficient evidence to submit the question to the jury. Id. In the words of Lorraine, “[b]efore admitting evidence for consideration by the jury, the district court must determine whether its proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.” Id. at 539 (citation omitted); accord United States v. Horn, 185 F. Supp. 2d 530, 536 (D. Md. 2002); Samuel v. Ford Motor Co., 112 F. Supp. 2d 460, 468 (D. Md. 2000), aff’d sub nom. Berger v. Ford Motor Co., 95 F. App’x 520 (4th Cir. 2004). If so, subsection (b) permits the issue to be presented at trial.
The Pifer Court applied that principle, but without citation to Rule 5-104(b). As noted in Connors v. State, 2021 WL 3141969 (Md. Ct. Spl. Apls. Jul. 26, 2021)(unreported), authentication may be accomplished “within the confines of the jury room,” quoting Sublet v. State, 442 Md. 632, 659 (2015).
Plaintiffs, who found the chalk samples on eBay, were represented by Daniel A. Brown, Matthew E. Kiely, and Eileen M. O’Brien, or Brown, Kiely, LLP, in Bethesda, MD.
|Md. Rule 5-104||Fed.R.Evid. 104|
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination, the court may, in the interest of justice, decline to require strict application of the rules of evidence, except those relating to privilege and competency of witnesses.
(b) Relevance Conditioned on Fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.
(c) Hearing of Jury. Hearings on preliminary matters shall be conducted out of the hearing of the jury when required by rule or the interests of justice.
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
 Interestingly, appellee asserted that Mr. Pifer’s employer used only white chalk. Appellee asserted that the employer did not use colored chalk. Brief, 2020 WL 9762820 at * 7.
 I have rearranged the order of the Court’s descriptions.
 Plaintiff asserted that the sample bottles were not refillable. Defendant’s brief contradicted this. Defendant wrote that the container was designed to be “opened and repeatedly refilled….” Brief, 2020 WL 9762820 *12; Id. at *5 (containers can be reopened without damage to lids”), *14.