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Product Samples Purchased on eBay Found to be Admissible in Products Liability Case

October 15, 2021

Maryland’s second highest court recently ruled that product samples obtained on eBay were admissible in a products liability case.

In Pifer v. Irwin Industrial Tool Co., Richard Pifer was diagnosed with malignant mesothelioma in 2016 and died shortly thereafter. Pifer’s estate subsequently brought suit against Irwin Industrial Tool Co. (Irwin) alleging that Mr. Pifer’s mesothelioma was caused by asbestos contained in chalk manufactured by Irwin that Pifer used between 1960 and 1982 when he worked as a carpet installer. In order to prove its claim that Irwin’s chalk was the source of the asbestos that caused Pifer’s mesothelioma, the estate’s attorney obtained samples of old Irwin-manufactured chalk on eBay from nine different sellers in seven different states. Testing by plaintiff’s expert established that 90% of the samples manufactured by Irwin between 1960 and 1982 contained asbestos. Nevertheless, the trial court granted Irwin’s motion in limine and precluded the admission into evidence of the samples because the court found that they could have been tampered with.

On appeal, the Maryland Court of Special Appeals ruled that the trial court abused its discretion in finding the samples obtained on eBay to be inadmissible. In doing so, the court found that the totality of evidence established “as a matter of law a reasonable probability or a fair likelihood that the chalk exemplars [obtained on eBay] were manufactured by Irwin and are representative of the chalk they contained at the time they were manufactured.” The court then remanded the case to the trial court for further proceedings.