eBay Samples at Heart of Appeals Court’s Mesothelioma Decision
When mesothelioma victim Richard Pifer wanted to prove that asbestos in marking chalk was the cause of his illness, he turned to eBay to purchase samples for testing. But the chalk manufacturer, Irwin Industrial Tool, objected to the samples being admitted as evidence. Though a lower court judge agreed and granted the company’s motion for summary judgment, the Court of Special Appeals of Maryland overruled that decision. Mr. Pifer’s widow will be able to have her claim for compensation heard by a jury.
Asbestos in Marking Chalk Blamed for Mesothelioma
Mr. Pifer was diagnosed with malignant mesothelioma in October of 2016 and died just two months later. Prior to his death he provided testimony that he’s worked at Clyde W. Dent Carpet Installation from 1960 to 2002. The first fifteen years of his employment were spent working as a mechanic, installing carpet, and he later moved to the warehouse, where he cut carpet to size. He indicated that he had used Irwin’s Straight-Line Marking Chalk to mark where carpet needed to be cut or placed. He estimated that he’d used it approximately fifty times per day for decades, and that its use generated dust that he inhaled.
Upon being diagnosed with malignant mesothelioma Mr. Pifer identified a bottle of the marking chalk in his garage and had it tested for asbestos. Though it tested positive, his attorney advised that he would need more samples to prove his case – and particularly sealed samples. He purchased dozens of bottles of the product on eBay and had all of them tested. While many were sealed, others had been opened. Several tested positive for asbestos — incluing sealed bottles — but Irwin filed a motion for summary judgment arguing that none of the samples of should be admitted because they might have been tampered with. The lower court agreed and granted their motion, dismissing the case, and Mrs. Pifer appealed that decision.
Appeals Court Overturns Lower Court’s Decision in Mesothelioma Case
Irwin’s attorneys argued that the dismissal should stand, both based on rules of evidence and on their further assertion that there were no facts to be determined by a jury: they said that there was no proof of a link between their product and Mr. Pifer’s death, and that they owed him no duty of care. But the appeals court disagreed. They ruled that the lower court had “required more certainty about the contents and provenance of the chalk samples than the law requires” and reversed their decision. They also rejected the company’s position that there was nothing for a jury to decide. The case will continue to trial and the widow can continue in her quest for justice.
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