Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence

In a prior blog, I addressed the intermediate appellate decision in a case authenticating asbestos-containing chalk samples that had been obtained on eBay decades after the alleged exposure to asbestos.   Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104.

That decision was affirmed “as a matter of first impression,” in Irwin Industrial Tool Co. v. Pifer, __ Md. __, 2022 WL 1743854 (May 31, 2022).  The Court wrote:

In a civil action, when it is difficult or impossible to obtain the exact product that allegedly caused an injury or disease, a plaintiff may seek to introduce into evidence an allegedly comparable version of the product as an exemplar….  In this case, the plaintiffs sought to authenticate under Maryland Rule 5-901 items purchased on eBay as exemplars of a product, made by the defendant, that was used from the late 1960s through the 1980s and that allegedly contained asbestos.

The tragic facts were simple.  The decedent, Mr. Richard Pifer, worked as a carpet installer from the 1960s through the 1980s.  In his job, he used Strait-Line marking chalk manufactured by defendant, Irwin Industrial Tool Co.  In 2016, he died of mesothelioma due to asbestos exposure.

Mr. Pifer’s estate filed a product liability action against Irwin, alleging that it marketed and sold chalk containing asbestos from 1960 to 1982, and that the asbestos caused Mr. Pifer’s death, decades later.

The Court explained the exemplars:

The Estate purchased on eBay several Strait-Line marking chalk containers and the powder within them, which it contended were products originally sold by Irwin as Strait-Line marking chalk and that, according to its expert, tested positive for the presence of asbestos. In addition, the Estate located in Mr. Pifer’s garage a bottle of Strait-Line chalk that its expert also determined tested positive for asbestos.

Thus, the purchases on eBay post-dated the asbestos exposure by decades.  Unsurprisingly, “Irwin contended that the eBay purchases, i.e., the powder in the containers, could not be authenticated as the product that it manufactured and sold as Strait-Line marking chalk.”

It was agreed that, without evidence from the eBay containers, plaintiff could not prove its case,[1] and summary judgment was entered for the defendant.  That was reversed and remanded by the intermediate court, which decision was affirmed by the Court of Appeals.  The Court of Appeals accepted the factual recitation discussed by the intermediate court and summarized in Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104.

In addressing authentication, the Court first reviewed three cases addressing authentication in criminal matters.  For a discussion of those cases, please see “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media.

The Court of Appeals then wrote:

Upon consideration of Maryland Rule 5-901 and relevant authorities, we conclude that the “reasonable juror” test applies to authentication of the eBay samples, i.e., items purchased on the internet, and we hold that the samples purchased on eBay were authenticated under Maryland Rule 5-901(a) because there was sufficient circumstantial evidence for a reasonable juror to find by a preponderance of the evidence that the powder within the containers was Strait-Line marking chalk. Just as we have previously applied the “reasonable juror” test to the authentication of social media evidence, our case law leads to the conclusion that the test applies with equal force to the authentication of exemplar or sample evidence purchased on the internet on websites such as eBay. Evidence is authenticated where a reasonable juror could find, by a preponderance of the evidence, that the evidence is what the proponent claims…. We see no valid reason to cabin the application of the “reasonable juror” test to social media evidence and to require a heightened or different standard of authentication for goods purchased over the internet.

It held that circumstantial evidence can suffice for authentication.  Direct testimony from a witness with knowledge is not necessarily required.  Nor is there heightened scrutiny for items purchased online:

Just as a heightened standard of proof does not apply to authentication of social media evidence, a heightened standard is not applicable to authenticating goods bought online…. From our perspective, although eBay is a relatively new potential source of evidence, buying products secondhand from unknown individuals to offer in court as exemplars is not novel.  Apart from the use of the internet, a plaintiff in a case similar to this one could seek to purchase products by placing advertisements in newspapers, putting up posters in neighborhoods, or otherwise soliciting members of the general public to sell products. Under such circumstances, although the plaintiff would not necessarily be able to vouch for the sellers of the product or identify the origin of the item prior to it coming into the seller’s possession, Maryland Rule 5-901 and the reasonable juror test would nonetheless apply for authentication.

Addressing Irwin’s chain of custody argument, the Court wrote:

We disagree. The Estate was not required to establish a chain of custody dating back to Irwin’s manufacturing of the samples to establish that a reasonable juror could find by a preponderance of evidence that the samples purchased on eBay were what they purported to be…. Insofar as negating the possibility of tampering is concerned, there is no hard and fast requirement that in a civil case where the issue of tampering is raised or where a substance may be susceptible to tampering, the proponent of the offered evidence is required to establish a chain of custody for the evidence to be admissible. To be sure, demonstrating a chain of custody for evidence that a party seeks to have admitted is one way to demonstrate that the offered evidence is what it claims to be or is in the same condition that it was at the time that it came into the party’s possession or at an earlier relevant point. But, in the end, authentication of evidence under Maryland Rule 5-901 depends on a showing that a reasonable juror could find by a preponderance of the evidence that the item at issue is what it is claimed to be, i.e., that there was sufficient evidence of a reasonable probability to establish that the item is what it purports to be. [emphasis added].

The Court concluded that the estate had met its burden to authenticate the chalk samples purchased on eBay:

Viewed as a whole, the evidence was sufficient for a reasonable juror to conclude that it was more likely than not that the powder within the containers was chalk manufactured by Irwin. It is undisputed that Irwin made the containers, i.e., that the containers were Irwin’s. It is also undisputed that the contents or powder within each container matched the color designated on the label of the container.

The Court noted that, to tamper with the containers, the owners would have had to intentionally lace them with asbestos, which was unlikely.  Further, some of the containers were sealed. “It would strain credulity… to accept the notion that, in seventeen separate instances occurring across the country, a factory-sealed container of Strait-Line marking chalk was opened, emptied, refilled with a different kind of chalk contaminated with noncommercial amphibole asbestos, and resealed.”

The action was remanded for consideration with the authenticated chalk samples.

______

[1] The Court wrote: “On brief in this Court, the Estate advised that on the morning of October 16, 2019, the day after the motions hearing, during a teleconference with the circuit court and counsel for both parties, the Estate’s counsel conceded that summary judgment was warranted because, without the containers bought on eBay, the Estate could not establish a prima facie case. At oral argument, the Estate’s counsel advised that, the morning after the motions hearing, he and Irwin’s counsel reached out to the circuit court, and he advised that the circuit court could enter summary judgment and that the Estate would appeal. Irwin has not disputed these accounts of the teleconference.”