Maryland Court of Appeals Rules that Circumstantial Evidence is Sufficient to Authenticate Exemplar Evidence Procured Through Online Sales
(July 21, 2022) Tayler Littlejohn, 2022 Summer Associate.
When there is a significant lapse in time or when a company decides to discontinue a particular product, it can be challenging for Plaintiffs in civil actions to substantiate a claim that a product caused their injury if they no longer have the item in their possession. In this event, Plaintiffs have relied on Maryland Rule 5-901 in order to admit an “exemplar” into evidence that is comparable to the injury causing product. An exemplar is defined as a version of a product that stands as an example of the original. Irwin Industrial Company v. Christine Pifer, No. 49, slip op. at 1 (Md. May 31, 2022) (citing Exemplar, Black Law’s Dictionary (11th ed. 2019)). Maryland Rule 5-901 provides that exemplar evidence satisfies the authentication requirements for admissibility when it “supports a finding that the matter in question is what its proponent claims.” What constitutes sufficient evidence in the context of online sales where the chain of custody cannot be established was an issue presented to the Maryland Court of Appeals in Irwin Industrial Company v. Christine Pifer, et. al. The Court of Appeals was tasked with determining whether the Circuit Court for Baltimore City erroneously established a heightened authenticity threshold when it required the plaintiff to present a credible chain of custody for exemplar items purchased on eBay to establish that the defendant’s product from the 1960s through the 1980s was contaminated with asbestos and caused the death of Richard Pifer. The Maryland Court of Appeals ultimately held that the products purchased on eBay were properly authenticated despite the Plaintiff’s failure to prove there was an established chain of custody with respect to the samples. The Court of Appeals ruled more pointedly that neither Maryland Rule 5-901 nor relevant case law require the plaintiff to meet such a heightened bar of authentication for exemplar evidence to be admissible in civil cases.
In 2017 the Estate of Richard Pifer (the “Estate”) brought a wrongful death and product liability suit against Irwin Industrial Tool Company (“Irwin”) in the Circuit Court for Baltimore City. The Estate claimed that Mr. Pifer’s mesothelioma diagnosis and sudden death soon after, were a direct result of Mr. Pifer using asbestos contaminated Strait-Line marking chalk that was manufactured and sold by the defendant, Irwin Industrial Tool Company (“Irwin”).” Irwin Industrial Tool Co., v. Pifer, No. 49, slip op. at 1 (Md. May 31, 2022). From the 1960s through the 1980s Mr. Pifer worked as a carpet installer, where he routinely used Strait-Line marking chalk to mark portions of carpet before cutting it to size. Pifer, slip op. at 4.
Following Mr. Pifer’s death his estate found a container of Strait-Line marking chalk in Mr. Pifer’s garage that tested positive for asbestos. Subsequently, the Estate procured and tested thirty-six (36) samples in total from various eBay sellers in multiple states. Twenty of the samples were labeled Irwin Auger Bit Co. The remaining sixteen samples included fourteen samples labeled as Irwin Co, one sample labeled as American Tools Co., and another sample labeled as Irwin Tools. Nineteen of the samples tested positive for regulated amphibole asbestos. Of the nineteen samples that tested positive, only three samples (including the one found in Mr. Pifer’s garage) were unsealed. “90% of the samples manufactured by [Irwin] from 1960 to 1982 tested positive for asbestos.” Pifer, slip op. at 6.
Irwin filed a motion in limine to exclude any testimony concerning the analysis of the Strait-Line marking chalk. Irwin contended that a plaintiff is required to show that the evidence presented was in substantially the same condition as it was when it left the defendant’s control and that a well-founded chain of custody needed to be proven for the evidence to be authenticated and admissible. Pifer, slip op. at 8. Irwin noted that the containers were decades old, that there was no information concerning who the containers were shipped from on eBay, and that the contents in the containers could have been tampered with, replaced, or mixed with a material Irwin did not manufacture. The circuit court granted Irwin’s motion in limine. Pifer, slip op. at 2. The court agreed with Irwin that the authentication of evidence required that the Plaintiff prove a credible chain of custody, particularly for purchases online when no information is provided on the seller. Given the circuit court’s decision to grant Irwin’s motion, the Estate conceded summary judgment given their lack of evidence and appealed to the Maryland Court of Special Appeals. Id. at 2-3.
Although this was a civil matter the circuit court relied in pertinent part on criminal case law where the stakes are unquestionably higher. Recognizing this key distinction on appeal, the Maryland Court of Special Appeals sided with the Estate. Id. at 15. The court ruled that the appropriate legal standard for determining the authenticity of an exemplar sample is set forth under Maryland Rule 5-901(a) which, in plain terms, does not require that the plaintiff confirm a chain of custody. Id. The Court of Special Appeals ruled that any gaps in a chain of custody can go to “weight rather than admissibility.” Id. at 74-75. Circumstantial evidence, the court held, is sufficient on its own to substantiate a finding that exemplar evidence is an authenticated illustration of what it purports to be and conforms with what Maryland Rule 5-901 expressly requires. Id. at 15-16. To require anything more irrespective of the origin of the evidence (absent proof of tampering), i.e., an online purchase, would be to erroneously raise the bar as to what constitutes admissible evidence. The Court of Special Appeals concluded that the Estate had demonstrated that there was a reasonable probability that the containers of Strait-Line marking chalk the Estate purchased on eBay were exemplars of the Strait-Line marking chalk Irwin manufactured and sold from the 1960s through the 1980s and were therefore admissible. The circuit court’s decision was reversed. Id.
On October 5, 2021, Irwin petitioned for a writ of certiorari to decide whether the Court of Special Appeals’ decision constituted reversible error. The Court of Appeals affirmed the Court of Special Appeals’ decision that the Estate was not required to present “a seamless chain of custody in order to prove a reasonable probability that the exemplars are what the Estate claims.” Pifer, 252 Md. App at 75. It further held that Maryland Rule 5-901 includes a “nonexclusive list of ways to authenticate evidence.” Irwin Industrial Tool Co., v. Pifer, No. 49, slip op. at 21 (Md. May 31, 2022). This list includes the use of circumstantial evidence, “such as appearance, contents substance, internal pattern, location or other distinctive characteristics. . . .” of the exemplar. Pifer, 252 Md. at 15. The Court adopted the “reasonable juror test” from its opinion in Sublet v. State concerning the authentication of social media evidence. 442 Md. 632, 678 (Md. 2015). The Court of Appeals explained that in order to meet the requirements of authentication to support a finding that a particular item is what it purports to be, sufficient proof must be presented “so that a reasonable juror could find in favor of authenticity or identification.” Sublet, 442 Md. at 665 (quoting United States v. Vayner, 769 F.3d 125, 129-30 (2d Cir. 2014)). In the present case, the Court of Appeals found that the Estate met its burden under Maryland Rule 5-90. The Estate established that the containers purchased on eBay were authenticated given that there was sufficient circumstantial evidence for a jury to conclude, “more likely than not, that the marking chalk purchased from eBay and examined by [the Plaintiff’s expert witness] was, in fact, Irwin’s Strait-Line marking chalk.” Pifer, slip op. at 20. The Court of Appeals found that the Estate met its burden because the Estate presented undisputed circumstantial evidence that: 1) Irwin made the containers the Plaintiff presented to the court; 2) the contents in the container matched the color on the labels; 3) the samples tested positive for heavily regulated asbestos and were purchased from various states and sellers; and 4) that a majority of the “exemplars” were sealed showing no signs that they were tampered with. Pifer, slip op. at 34.
The Court of Appeals acknowledged Irwin’s argument that it was possible that the exemplar samples of Irwin’s Strait-Line chalk were tampered with before they were tested. Pifer, slip op. at 27. However, the Court found that this issue could be addressed during cross examination of the expert witness during trial and closing arguments. The Court reiterated that Maryland Rule 5-901 and the court’s precedent established that the “reasonable juror test” would apply even in cases where the plaintiff cannot vouch for the credibility of the seller of the “exemplar” or attest to where the seller obtained the “exemplar.” Id. at 27-28. Irwin’s contention that the samples were tampered with, absent proof beyond a mere hypothesis that the samples were tainted, the court stated, “strain[s] credulity.” Pifer, slip op. at 36. The requirement that evidence must be supported by a credible chain of custody, the Court of Appeals found, was the product of Md. Code Ann., Cts. & Jud. Proc. (1974, 2020 Repl. Vol.) (“CJ”) § 10-1002 which governs controlled dangerous substances cases. Case law demonstrated that even if a chain of custody were required, the inquiry begins with the seizing officer not with the manufacturer of the drugs. If the same starting point were to apply in the instant case, the starting point for the chain of custody inquiry would be when the eBay packages were received rather than at Irwin’s 1960-1980 manufacturing facilities. Pifer, slip op. at 33. The Court reemphasized that “alleged variances in the condition of the evidence” would go to the weight of the evidence, not its admissibility. Id. at 33.
It must be noted that the Court of Appeals did not cabin its decision to repudiate a heightened standard for authenticating exemplar evidence that lacks a chain of custody to cases concerning goods purchased online. The reasonable juror standard can also be applied to authenticate exemplars in similar cases such as ones where social media evidence is presented, where evidence was purchased through ads, or where evidence was obtained through the general solicitation of the public. Pifer, slip op. at 26-27.
Please direct any questions to Paul N. Farquharson at firstname.lastname@example.org (410) 576-4742.