Irwin Indus. Tool Co. v. Pifer

478 Md. 645

276 A.3d 533

IRWIN INDUSTRIAL TOOL COMPANY

v.Christine PIFER, et al.

No. 49, Sept. Term, 2021

Court of Appeals of Maryland.

May 31, 2022

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

Argued by Daniel A. Brown (Matthew E. Kiely, Brown Kiely, LLP, Bethesda, MD), on brief, for Respondents.

Argued before:^* Getty, C.J., Watts, Hotten, Booth, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), Irma S. Raker (Senior Judge, Specially Assigned), Robert N. McDonald (Senior Judge, Specially Assigned), JJ.

Watts, J.

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—that is, "[a] typical example" or "a standard specimen[.]" Exemplar , Black's Law Dictionary (11th ed. 2019). 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. We must address the defendant's request that we affirm the trial court's grant of a motion in limine and summary judgment on the grounds that the plaintiffs were unable to sufficiently authenticate exemplars of the product at issue and were therefore unable to establish their claims. We must also address the defendant's contention that the trial court considered and granted summary judgment on alternative grounds, and, if we conclude that the trial court did so, address whether the trial court's determination should be affirmed.

From the 1960s through the 1980s, while working for a carpet installation company, in the performance of his job, Richard Pifer used Strait-Line marking chalk, which was manufactured and sold by Irwin Industrial Tool Company ("Irwin"), Petitioner. In 2016, Mr. Pifer died of mesothelioma, the primary cause of which is exposure to asbestos. In the Circuit Court for Baltimore City, Christine Pifer, his surviving spouse and the executor of his estate, and Wanda Mounts, his child (together, "the Estate"),¹ instituted a wrongful death and product liability action against Irwin. The Estate alleged that Irwin sold Strait-Line marking chalk from 1960 to 1982 that contained asbestos and caused Mr. Pifer's death from mesothelioma.

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. Irwin filed a pretrial motion in limine to exclude any testimony or evidence regarding the analysis of Strait-Line chalk by the Estate's expert that had resulted in a finding of asbestos in the chalk. 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.

Irwin moved for summary judgment on multiple grounds, including that, if the circuit court granted the motion in limine , there would be no factual predicate for the Estate's claim that Mr. Pifer had been exposed to asbestos from Strait-Line marking chalk. In addition, Irwin moved for summary judgment on the ground that the Estate could not demonstrate that it owed a duty to Mr. Pifer and on the basis that it was entitled to summary judgment on the strict liability and breach of warranty claims.

The circuit court conducted a motions hearing and granted Irwin's motion in limine as to the containers purchased on eBay, but not as to the bottle that had been found in Mr. Pifer's garage. At the conclusion of the hearing, the circuit court took under advisement the grounds raised by Irwin for summary judgment. The next morning, the circuit court and counsel for both parties participated in a teleconference, during which the Estate's counsel conceded that summary judgment was warranted, reasoning that without evidence of the containers purchased on eBay the Estate could not establish a prima facie case, i.e ., there was insufficient admissible evidence on which to establish that Mr. Pifer had been frequently and regularly exposed to asbestos through contact with Irwin's product.²

Thereafter, the circuit court issued an order granting Irwin's motion in limine and an order granting, without explanation, the motion for summary judgment and dismissing all of the Estate's claims. The Estate appealed, and the Court of Special Appeals reversed and remanded the case to the circuit court, concluding that the containers purchased on eBay were sufficiently authenticated and that the grant of summary judgment based on the determination that there was not admissible evidence on which to challenge Irwin's request for summary judgment was erroneous. See Pifer v. Irwin Indus. Tool Co., 252 Md. App. 57, 60, 258 A.3d 879, 881 (2021). The Court of Special Appeals declined Irwin's request to affirm the grant of summary judgment on alternative grounds, concluding that the record demonstrated that the circuit court granted summary judgment because the Estate conceded that it needed the eBay samples to defeat the motion, but not on the other grounds advanced by Irwin which the circuit court had taken under advisement. See id. at 60, 258 A.3d at 881. Irwin filed a petition for a writ of certiorari , which we granted. See Irwin Indus. Tool Co. v. Pifer, 476 Md. 584, 264 A.3d 1283 (2021).

Below, in Part I, we hold that the containers 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. As such, we affirm the judgment of the Court of Special Appeals, which reversed the trial court's grant of the motion in limine and summary judgment. In Part II, we decline to address alternate grounds for affirming the grant of summary judgment, i.e. , grounds other than the Estate's concession that it could not establish its case without the excluded evidence, because it is not clear that in granting summary judgment the circuit court reached a conclusion with respect to any alternative ground.

BACKGROUND

Strait-Line Marking Chalk

Given that there is no material dispute between the parties concerning Mr. Pifer's employment as a carpet installer, his use of Strait-Line marking chalk as part of his job, and the Estate's purchase and testing of the contents of containers purportedly containing such chalk—although the parties certainly dispute whether the powder within the containers was sufficiently authenticated as Strait-Line marking chalk—we set forth the facts as described by the Court of Special Appeals. The Court of Special Appeals summarized the circumstances surrounding Mr. Pifer's use of Strait-Line marking chalk, the testing of the contents of containers that purportedly contained such chalk, and the parties' allegations concerning whether the chalk contained asbestos as follows:

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. ... 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).

* * *

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

...