ANNAPOLIS, Md. (Legal Newsline) - Plaintiff lawyers who purchased decades-old samples of chalk on eBay for an expert to test for asbestos didn’t have to establish a chain of custody proving they hadn’t been tampered with, a Maryland appeals court ruled, saying a jury must decide if the samples were authentic.
The decision bolsters a strategy used by lawyers pursuing lawsuits claiming common products including talcum powder and chalk were contaminated with asbestos fibers and caused mesothelioma, a deadly cancer of the chest lining that is associated with asbestos exposure.
In this case, the family of Richard Pifer sued Irwin Industrial Tool Co., claiming he contracted mesothelioma from using Strait-Line marking chalk to install carpet. Irwin argued there was no asbestos in its products but the plaintiffs hired William Longo, an expert who frequently testifies in asbestos lawsuits, to test more than 30 samples of Irwin chalk the lawyers purchased on eBay as well as one sample found in a ketchup bottle in Pifer’s garage.
Longo, whose methods are disputed by asbestos defendants, said he found asbestos fibers in more than half the samples including the chalk from Pifer’s garage. Irwin sought to dismiss the case, saying the plaintiffs couldn’t establish a proper chain of custody covering the 30 years or more between when the containers were sold and when the lawyers bought them on eBay. Strait-Line chalk was particularly vulnerable to tampering because it was sold in containers designed to be refilled, the company said.
At a 2019 hearing, plaintiff lawyers conceded they had no case without the eBay samples and the trial judge dismissed the lawsuit after ruling the chain of custody had been violated. The judge cited criminal cases in support of the decision.
The Court of Special Appeals reversed that decision in September 2021, however, saying “the stakes are very different here than in a criminal case” and the plaintiffs only had to establish “a reasonable probability” the samples hadn’t been tampered with.
Irwin petitioned for an appeal and the Maryland Court of Appeals, in a May 31 decision, agreed that a lower evidence standard applies in civil lawsuits. In a decision relying heavily on past cases involving disputed social media posts, the appeals court said there was no need to establish an ironclad chain of custody. Even in criminal cases, the court said, the chain of custody begins with an officer who seizes evidence, not with whoever made it.
“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,” the court ruled. “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.”