ANNAPOLIS, Md. (Legal Newsline) - A Maryland appeals court overturned a ruling in favor of the manufacturer of powdered chalk, saying the trial judge shouldn’t have restricted evidence a plaintiff expert collected from decades-old bottles purchased on eBay.
The heirs of Richard Pfifer sued Irwin Tool Co. in 2018, blaming Pfifer’s 2016 death from mesothelioma from Strait-Line chalk they claimed he used regularly to mark carpet for trimming in his job with a carpet installation company in the 1960s and 1970s. Borrowing a tactic plaintiff lawyers have successfully deployed against Johnson & Johnson over its Johnson’s Baby Powder talcum powder, the Pfifer family’s lawyers bought several dozen bottles of Strait-Line chalk on eBay and submitted them to William Longo for testing.
Longo is among a handful of experts who have earned millions of dollars making disputed claims that they can find asbestos fibers in talcum powder and other products. Defendants, including J&J, have attacked Longo’s evidence as calculated to confuse jurors over the difference between elongated mineral fibers and the specific fibers that mineralogists classify as asbestos.
In this case, Longo tested 36 samples, including a single bottle the plaintiffs found in Pfifer’s garage after he died. Nineteen of the samples were from containers that had been opened before Longo received them. Longo said his methods detected amphibole asbestos in 19 of the samples, only three of which had been opened, including the bottle from the garage.
Irwin argued the chalk contained only calcium carbonate and there was no scientific literature “that establishes or even postulates that calcium carbonate can be contaminated with asbestos.” The trial judge precluded evidence from the eBay bottles, saying that given the amount of time the bottles were in general circulation and subject to potential contamination or deliberate tampering, it was “just common sense” to reject them.
“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,” the trial judge said at a hearing. The plaintiffs acknowledged that without the eBay samples they had no evidence to challenge Irwin’s motion for summary judgment and two days later the judge dismissed the case.
The plaintiffs appealed, and in a Sept. 1 decision, the Maryland Court of Special Appeals reversed.
While the trial judge believed the eBay samples had to be excluded for the lack of evidence of a chain of custody to disprove tampering, the appeals court said that went too far. Maryland law allows evidence to be admitted based upon a plaintiff’s claims alone, the appeals court ruled, and the question is what “quantum of proof” is required.
The trial court said the plaintiffs had to prove the bottles hadn’t been tampered with, while the appeals court said the proper analysis was the “relatively likelihood” the samples were authentic with the jury ultimately deciding if they should be trusted. Even in criminal cases, the authorities have been allowed to present disputed DNA evidence for the jury to assess, the appeals court noted.
“It’s possible in the abstract that these chalk exemplars could be susceptible to tampering,” the appeals court ruled. “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.”
In its motion for summary judgment, Irwin argued there was no factual dispute over whether Pfifer actually ever used a container of Strait-Line chalk that was contaminated by asbestos, since the only sample linked to him personally was the opened bottle the plaintiffs said they found in his garage. The appeals court rejected that argument, remanding the case with an order to reconsider the eBay evidence and reversing the summary judgment.