Pifer v. Irwin Indus. Tool Co.

• Decision Date: 01 September 2021
• Docket Number: No. 1849, Sept. Term, 2019,1849, Sept. Term, 2019
• Parties: Christine PIFER, et al. v. IRWIN INDUSTRIAL TOOL CO.
• Court: Court of Special Appeals of Maryland

252 Md.App. 57

258 A.3d 879

Christine PIFER, et al.

v.IRWIN INDUSTRIAL TOOL CO.

No. 1849, Sept. Term, 2019

Court of Special Appeals of Maryland.

September 1, 2021

Argued by: Daniel A. Brown (Matthew E. Kiely, Eileen M. O'Brien, Brown, Kiely, LLP, on the brief) Bethesda, MD, for Appellant.

Argued by: Matthew T. Wagman (Joseph W. Hovermill, F. Ford Loker, Susan DuMont, Miles & Stockbridge, PC, on the brief) Baltimore, MD, for Appellee

Nazarian, Shaw Geter, Wells, JJ.^*

Opinion by Nazarian, J.

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? In the same way that trial judges now evaluate the reliability of proffered expert testimony as a prerequisite to admission, see Rochkind v. Stevenson , 471 Md. 1, 236 A.3d 630 (2020), motions asking courts to invoke their evidentiary gatekeeper role easily can mission-creep toward a pre-trial judicial evaluation of evidence on the merits. That tension lies at the heart of this case.

The Estate of Richard Pifer ("the Estate") brought a wrongful death asbestos product liability claim against Irwin Industrial Tool Company ("Irwin"), alleging that chalk it sold from 1960 to 1982 contained asbestos that caused Richard Pifer to contract and die of mesothelioma

. Irwin filed a motion in limine to exclude from evidence vintage chalk samples, obtained by the Estate on eBay, that tested positive for asbestos. At the same time, Irwin also filed a motion for summary judgment. The trial court held a hearing and granted Irwin's motion in limine to exclude the eBay chalk exemplars, but not the bottle found in Mr. Pifer's garage, and denied Irwin's motion for summary judgment. Two days after the motions hearing, though, the court granted Irwin's motion for summary judgment.

The Estate appeals the trial court's rulings on both motions. 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 . From there, we are not persuaded that the trial court considered and granted summary judgment independently on alternative grounds, so we remand for further proceedings.

I. BACKGROUND

Irwin Auger Bit Company was founded in 1885 and claimed to be "the largest producer of wood-boring tools." In 1960, Irwin bought Strait-Line Products Company. After merging, Irwin redesigned all of the Strait-Line products and developed new packaging for them. All of Irwin's Strait-Line products were made and packaged in Wilmington, Ohio. Among the products was a chalk, Strait-Line Marking Chalk, that was used, as its name suggests, for marking.

Mr. Pifer was an employee of Clyde W. Dent Carpet Installation ("Dent") in College Park, Maryland from 1960 to 2002. Initially, Mr. Pifer worked as a mechanic, installing carpet, from 1960 until the mid-1970s. He transitioned to working in the Dent warehouse, where he cut carpet to size.

As a mechanic, 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.

Strait-Line marking chalk was the only brand of chalk that Dent stocked in its warehouse from 1960 to the 1980s. Dent purchased the chalk through two suppliers: L. Fishman & Son, Inc. and Michael Halebian & Co. In the 1980s, Dent started using a cutting machine, which greatly reduced Mr. Pifer's chalk exposure. In 1989 or 1990, Mr. Pifer transitioned to working in the office, and his exposure to Strait-Line marking chalk ended.

Doctors diagnosed Mr. Pifer with malignant mesothelioma

on October 27, 2016. He died from the disease two months later, on December 30, 2016. The primary cause of mesothelioma is exposure to asbestos. 1A Arthur L. Frank, Sourcebook on Asbestos Diseases Medical Aspects 65 (2004).

A. Chalk Samples And Evidence.

The investigation into Irwin's Strait-Line chalk began after Mr. Pifer's death. The Estate noticed a bottle of Strait-Line chalk in Mr. Pifer's garage among the tools he used when working for Dent. The Estate gave the chalk bottle and the tools to counsel, who sent it to a laboratory for analysis. The chalk bottle was the only item that had positive results for asbestos.

The parties do not dispute, as the Estate explains in its brief, that 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.

Dr. William Longo, the Estate's expert, analyzed all of the samples at Materials Analytical Services, LLC ("MAS"). Dr. Longo analyzed the samples using three well-recognized methods: polarized light microscopy, analytical transmission electron microscopy

, and automated field emission scanning electron microscopy. Thirty-six samples were tested in total:

• Twenty samples were labeled as Irwin Auger Bit Co. Of these, three were not sealed when received for testing. One of the three, however, was the sample from Mr. Pifer's garage.

• One sample was labeled as American Tool Co. This sample was open when it was received for testing.

• One sample was labeled as Irwin Tools. This sample was open when it was received for testing.

• Fourteen samples were labeled as The Irwin Co., none of which was sealed when received for testing.

Of the thirty-six samples, the expert found the following:

• Nineteen samples (53%) tested positive for regulated amphibole asbestos. Of the nineteen that tested positive, three samples were opened when received for testing, one of which was the bottle found in Mr. Pifer's garage.

• The primary source of the regulated asbestos in the nineteen positive samples was from either dolomite/calcium

carbonate or talc used in these marking chalk products.

• The analysis and results of the nineteen sealed Irwin containers removes the possibility that the samples were tampered with or contaminated prior to their arrival at MAS.

• Eighteen of twenty (90%) of the samples manufactured by The Irwin Auger Bit Company from 1960 to 1982 tested positive for asbestos.

• Fourteen of fourteen (100%) of the samples manufactured by The Irwin Company from 1982 to 1993 tested negative for regulated asbestos.

The samples tested positive for noncommercial amphibole asbestos, more specifically "[a]ll of the amphibole fibers and bundles found using either [method of analysis] were either regulated tremolite/actinolite or anthophyllite asbestos." "Asbestos fibers belong to one of two mineral groups: amphibole or serpentine." Frank, supra , at 4–5. Both anthophyllite and tremolite are amphiboles. Id. "Anthophyllite, a natural contaminant of talc and other forms of asbestos, no longer occurs in quantities sufficient for commercial use." Id. Tremolite is also a natural "contaminant of talc" and "does not occur in any commercially useful quantities." Id. at 5–6.

The Estate asserts that asbestos is a naturally occurring contaminant of calcium

carbonate. Calcium carbonate is a mineral mined from the earth, like talc, and was used to manufacture chalk products, including Irwin Strait-Line. The Estate claims that "[c]ontamination occurs [ ] when calcium carbonate cohabits the same geological mining location as asbestos." In his affidavit, Dr. Longo states, as an example, that "calcium carbonate/limestone as well as talc and asbestos are often located in the same geological areas in Georgia."

Irwin contends that the Irwin marking chalks alleged to have been used by Mr. Pifer were formulated to contain only calcium

carbonate. Further, Irwin argues that the Estate has "not identified any published scientific literature or government guidance ... that establishes or even postulates that calcium carbonate can be contaminated with asbestos fibers."

B. Procedural History

On July 13, 2018, the Estate filed a wrongful death asbestos product liability action against several defendants, including Irwin. The complaint specifically alleged "that Irwin proximately caused [Mr. Pifer's] mesothelioma

and death through its manufacture and sale of asbestos-contaminated Strait-Line marking chalk." On July 1, 2019, the Estate filed its first amended complaint. Irwin moved in limine on September 5, 2019 to preclude all testimony and evidence regarding the testing of marking chalk by the Estate's expert, Dr. Longo. One day later, Irwin filed a motion for summary judgment.

At the motions hearing on October 15, 2019, the circuit court precluded all evidence relating to the eBay-procured samples of chalk but found that the garage sample was admissible. Two days later, on October 17, 2019, the circuit court issued an order granting Irwin's motion for summary judgment and an order formally granting the motion in limine as to the eBay samples "due to lack of established authenticity." The Estate filed this timely appeal. We supply additional facts as needed below.

II. DISCUSSION

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...