Irwin Industrial Tool v. Pifer

Irwin Industrial Tool Company v. Christine Pifer, et al., No. 49, September Term, 2021 AUTHENTICATION THROUGH CIRCUMSTANTIAL EVIDENCE UNDER MARYLAND RULE 5-901(b)(4) – “REASONABLE JUROR” TEST – ALTERNATIVE GROUNDS FOR SUMMARY JUDGMENT – Court of Appeals held that items purchased on eBay that purportedly contained defendant’s product contaminated with asbestos were authenticated as exemplars of product, as there was sufficient circumstantial evidence for reasonable juror to find by preponderance of evidence that substance within containers was defendant’s product. Court of Appeals concluded that in granting motion in limine on ground that plaintiffs could not establish chain of custody with respect to samples, trial court required greater degree of proof of authentication than Maryland Rule 5-901 and relevant case law entails. Court of Appeals held that record did not demonstrate that circuit court granted summary judgment on grounds other than plaintiffs’ concession that summary judgment was warranted due to grant of motion in limine and exclusion of sample evidence. Court of Appeals declined to address alternative grounds for affirming trial court’s grant of summary judgment, as trial court did not explicitly rely on other grounds.

Circuit Court for Baltimore City Case Nos. 24-X-18-000208 & 24-X-18-000217 Argued: April 5, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 49 September Term, 2021 ______________________________________ IRWIN INDUSTRIAL TOOL COMPANY v. CHRISTINE PIFER, ET AL. ______________________________________ *Getty, C.J. Watts Hotten Booth Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned) Raker, Irma S. (Senior Judge, Specially Assigned) McDonald, Robert N. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: May 31, 2022 *Getty, C.J., now a Senior Judge, participated in Pursuant to Maryland Uniform Electronic Legal the hearing and conference of this case while an Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. active member of this Court. After being 2022-08-15 recalled pursuant to Md. Const., Art. IV, § 3A, 10:45-04:00 he also participated in the decision and adoption of this opinion.

Suzanne C. Johnson, Clerk 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- 1 For consistency, like the Court of Special Appeals, we refer to the plaintiffs as “the Estate.” 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 -2- 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 2 The Estate was required to meet the “frequency, proximity and regularity” standard applicable in asbestos cases regarding Mr. Pifer’s exposure to Irwin’s chalk product, which allegedly contained asbestos. See Eagle-Picher Indus. v. Balbos, 326 Md. 179, 210 , 604 A.2d 445, 460 (1992). -3- 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- -4- 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 -5- 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 -6- 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.” Pifer, 252 Md. App. at 60-63, 258 A.3d at 881-82 (alterations and last ellipsis in original). For use at trial, the Estate sought to authenticate as exemplars of Strait-Line marking chalk nineteen containers that were purchased on eBay and the container from Mr. Pifer’s garage, which contained powder that tested positive for asbestos. The container from Mr. Pifer’s garage was described by the parties as a “ketchup bottle”—that is, an eight-ounce squeeze bottle with a nozzle on top, much like a bottle of ketchup that one would see at a restaurant. Four of the containers bought on eBay that the Estate sought to authenticate were half-pound cans with pour spouts, much like a can of salt.

Eleven of the containers purchased on eBay were one-ounce cardboard box containers and four were one-ounce containers with metal bottoms and plastic pour spouts. The Estate demonstrated that the -7- containers purchased on eBay had chalk in them that corresponded with the color designated on their label. The Estate established that the samples purchased on eBay that tested positive for asbestos were purchased from sellers located in various different cities across various different states. Nineteen samples that were tested by the Estate’s expert, Dr. Longo, tested positive for regulated amphibole asbestos.

Seventeen of the nineteen containers were sealed when received by the Estate’s counsel. Of twenty samples that bore the name Irwin Augur Bit Company, which had been Irwin’s name from 1960 to 1982, eighteen tested positive for asbestos. Of the eighteen Irwin Augur Bit Company containers that tested positive, according to Dr. Longo, sixteen were sealed. The containers purchased on eBay that bore the name Irwin Augur Bit Company that contained powder that tested positive for asbestos were obtained from sellers in the following nine different cities: Farmersville, Ohio; Enfield, Connecticut; Winchester, Kentucky; Wyandotte, Michigan; St. Cloud, Minnesota; Granville, Illinois; and Alexandria, Lexington, and New Castle, Indiana.

Motions and Rulings of the Circuit Court Prior to trial, Irwin filed a motion in limine accompanied by a memorandum seeking to exclude the materials that Dr. Longo tested and all testimony and exhibits referencing the testing. Irwin contended that the Estate could not authenticate the powder in the containers as Strait-Line marking chalk of the type to which Mr. Pifer had been exposed. Irwin asserted that in a products liability case, for evidence to be admissible, a plaintiff must show that the evidence was “in the same condition at the time it left the defendant’s possession” and that a reliable chain of custody is necessary where a substance is -8- “susceptible to ‘tampering or commingling.’” In making this argument, Irwin relied on criminal cases in which, in having evidence admitted at trial, the State was required to establish a chain of custody: Amos v. State, 42 Md. App. 365 , 400 A.2d 468 (1979), Best v. State, 79 Md. App. 241 , 556 A.2d 701 , cert. denied, 317 Md. 70 , 562 A.2d 718 (1989), and Jones v. State, 172 Md. App. 444 , 915 A.2d 1010 , cert. denied, 399 Md. 33 , 922 A.2d 574 (2007). In addition, Irwin argued that the circuit court had previously, in other cases, excluded exemplar evidence under similar circumstances.

Irwin asserted that in other cases the circuit court had excluded such evidence because of gaps in the chain of custody from the time of manufacture and sale or distribution of a purported sample to the time of collection by the plaintiff. Irwin maintained that without establishing a chain of custody, the Estate could not prove that the containers purchased on eBay contained Strait-Line marking chalk in its original condition. Irwin contended that the Estate could not eliminate to any degree of certainty the possibility that the contents of the containers purchased on eBay had been adulterated or replaced with a material that it did not manufacture. Irwin argued that with the containers being decades old and there being no information concerning their whereabouts before the purchases on eBay, the containers could have been opened and the contents could have been tainted or replaced with a material that it did not manufacture.

Irwin asserted that Strait-Line marking chalk is especially vulnerable to commingling with other substances because its containers are manufactured so that they may be refilled, and that as such, the Estate could not demonstrate that the powder within the containers was powder from the -9- time period in which the container was manufactured. Irwin filed a motion for summary judgment in which it sought judgment on multiple grounds. Irwin argued that if the circuit court granted the motion in limine, it would be entitled to summary judgment because there would be no factual predicate for the claim that its product contained asbestos and therefore the circuit court would be required to grant summary judgment as to all of the Estate’s claims. Specifically, Irwin maintained that if the motion in limine were granted, the Estate could not demonstrate that Mr. Pifer’s exposure to asbestos was frequent, regular, and proximate, as required under Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 210 , 604 A.2d 445, 460 (1992).

In addition, Irwin contended that it was entitled to summary judgment on the Estate’s negligence claim because the Estate could not establish that Irwin had a duty to warn Mr. Pifer of the alleged dangers of its products and could not show that it knew or should have known that its products were contaminated with asbestos. Irwin argued that it was entitled to summary judgment on the claim for strict liability because, among other things, Virginia law does not recognize strict liability as a cause of action in product liability cases, and that it was entitled to summary judgment on the breach of warranty claim because under Virginia law, the Estate could not prove that Strait-Line marking chalk was unreasonably dangerous and the claim was time barred under Maryland law.3 Irwin 3 In the motion for summary judgment, Irwin contended that because Mr. Pifer was diagnosed with mesothelioma in Virginia, Virginia was the place of the injury and that “under Maryland’s ‘place of the injury’ choice of law analysis,” Virginia law applied to the action but that Maryland’s standard for summary judgment was unaffected by the application of Virginia case law on substantive issues. - 10 - also argued that it was entitled to summary judgment on the loss of consortium and wrongful death claims.4 On October 15, 2019, the circuit court held a hearing on the motions. At the hearing, Irwin’s counsel contended that the motion in limine was dispositive and that the Estate had acknowledged that, if the circuit court granted the motion, it should also grant the motion for summary judgment. The Estate’s counsel agreed that the motion in limine was dispositive and that, if the circuit court granted it, the Estate’s case would be over.

After hearing argument on the motion in limine, the circuit court determined that the Estate had failed “to make the requisite showing under [Maryland Rule] 5-901” with respect to the containers purchased on eBay. In other words, the circuit court determined that the Estate had failed to meet its burden to authenticate the contents of the containers. The circuit court reasoned that the containers were not authenticated because the Estate failed to provide a chain of custody as to the containers by not accounting for the circumstance that at a minimum there was “a 36-year gap between when the samples were manufactured and when they were purchased on eBay.” The circuit court found that the Estate had not proven that the containers were in substantially the same condition as they were when they left Irwin’s control or demonstrated that the chalk in the containers was the same kind that Mr. Pifer used in the warehouse. The circuit court relied on criminal case law for the proposition that in a products liability case a plaintiff must demonstrate a reliable chain of custody for authentication of 4 The Estate filed an opposition to the motion in limine and the motion for summary judgment.

Irwin filed replies in support of the motions and the Estate filed surreplies. - 11 - evidence where the evidence is susceptible to tampering or alteration. In support of this theory, the circuit court cited Best, 79 Md. App. 241 , 556 A.2d 701 . In addition, citing Jones, 172 Md. App. 444 , 915 A.2d 1010 , the circuit court stated that the burden falls on the proponent of the evidence to negate the possibility of tampering, thereby precluding the likelihood that the condition of the evidence has changed. Applying these principles to the case, the circuit court concluded that the Estate had failed to establish a chain of custody for the decades-long period from when Irwin manufactured the containers to when they were purchased on eBay.

The circuit court stated that the Estate’s counsel did not know where the containers had been before buying them on eBay and that there was no information about the eBay sellers or other previous owners of the containers. The circuit court stated that there was no evidence that the containers were sealed by Irwin and not by other unknown parties in the “chain of commerce” before their sale on eBay. The circuit court reasoned that the evidence merely supported the possibility, not the probability, that the containers were what they appeared to be. At the motions hearing, the circuit court also heard arguments on the motion for summary judgment.

Irwin’s counsel began by stating that, in light of the circuit court’s ruling as to authentication, he could substantially curtail the argument in support of summary judgment. Nevertheless, Irwin’s counsel argued that with the Estate’s evidence having been limited to potentially the one sample found in Mr. Pifer’s garage, that even if that sample could be properly authenticated, the Estate was unable to establish Mr. Pifer’s regular and frequent exposure to asbestos through alleged contact with its product. In addition, Irwin’s counsel argued other grounds for the grant of summary - 12 - judgment. Irwin’s counsel contended that the negligence and strict liability duty to warn claims require that the defendant owe a duty to the plaintiff and that the existence of a duty is a “legal question” for the court, not a jury.

Irwin’s counsel asserted, among other things, that Maryland law holds that “a manufacturer has a duty to warn only if the manufacturer knew or should have known that its products were dangerous[,]” that the Estate had failed to offer evidence showing that Irwin knew or should have known that asbestos could contaminate calcium carbonate, and that no such evidence could be produced. Irwin’s counsel also argued that the Estate could not prove its strict liability manufacturing defect claim because it could not satisfy factors set forth in Phipps v. General Motors Corp., 278 Md. 337 (1976). After hearing argument on the motion for summary judgment, the circuit court denied the motion “in pertinent part” stating that the ruling was due to the likely admissibility of the container from the Mr. Pifer’s garage. The circuit court concluded that because of the likely admissibility of the container from Mr. Pifer’s garage there was a genuine dispute of material fact and that the issue of whether there was an inference that Mr. Pifer had been exposed to asbestos with the proximity, frequency, and regularity required under Balbos, 326 Md. at 210 , 604 A.2d at 460 , had not been “addressed directly or targeted directly in the motion for summary judgment[.]” Irwin’s counsel asked whether the circuit court would rule on the legal issues it raised as to the negligence and strict liability claims.

Specifically, Irwin’s counsel asked whether the circuit court would address the duty issue for the negligence claim and the Phipps standard for the strict liability claim. The circuit court responded that it would take - 13 - the issues under advisement but reiterated that the motion for summary judgment was denied due to the likely admissibility of the container from Mr. Pifer’s garage. The circuit court advised that it would not be able to address the remaining issues before October 22, 2019. On brief in this Court, the Estate advised that on the morning of October 16, 2019, the day after the motions hearing, during a teleconference with the circuit court and counsel for both parties, the Estate’s counsel conceded that summary judgment was warranted because, without the containers bought on eBay, the Estate could not establish a prima facie case.

At oral argument, the Estate’s counsel advised that, the morning after the motions hearing, he and Irwin’s counsel reached out to the circuit court, and he advised that the circuit court could enter summary judgment and that the Estate would appeal. Irwin has not disputed these accounts of the teleconference. On October 17, 2019, the day after the teleconference, the circuit court issued an order, granting the motion in limine on the basis that the testimony of Dr. Longo as to the eBay samples of Strait-Line marking chalk was inadmissible and the samples themselves were inadmissible due to a lack of established authenticity. In the order, the circuit court denied Irwin’s motion to strike Dr. Longo’s testimony as moot.

In a separate order issued on the same day, the circuit court granted the motion for summary judgment and dismissed all pending claims against Irwin. Specifically, the circuit court stated in the order in one sentence that after “determining Defendant Irwin’s contemporaneous Motion in limine with relevant motion papers, for reasons stated and otherwise appearing in the record upon the parties’ oral arguments on October 15, 2019,” - 14 - the motion for summary judgment was granted and all pending claims against Irwin were dismissed. On November 12, 2019, the Estate filed a notice of appeal. Opinion of the Court of Special Appeals5 On September 1, 2021, the Court of Special Appeals reversed the grant of the motion in limine, vacated the grant of the motion for summary judgment, and remanded the case to the circuit court for further proceedings.

See Pifer, 252 Md. App. at 82, 258 A.3d at 893-94. The Court of Special Appeals held that the Estate had demonstrated that there was a reasonable probability that the chalk in the containers bought on eBay was representative of the chalk that Mr. Pifer used. See id. at 78, 258 A.3d at 891. The Court of Special Appeals determined that the appropriate legal standard for determining the authenticity of the samples bought on eBay was set forth in Maryland Rule 5-901(a) as follows: “The requirement of authentication or identification as a condition precedent to the admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. at 67, 258 A.3d at 885.

The Court of Special Appeals pointed out that under the Rule, “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it claims to be[,]” “is an illustration of authentication or identification 5 On July 21, 2021, the Court of Special Appeals issued an unreported opinion. See Christine Pifer, et al. v. Irwin Indus. Tool Co., No. 1849, Sept. Term, 2019, 2021 WL 3076855 (Md. Ct. Spec. App. July 21, 2021).

On August 9, 2021, the Estate filed a Motion to Designate Opinion for Reporting. On August 13, 2021, Irwin filed an opposition. On September 1, 2021, the Court of Special Appeals issued an order granting the motion, withdrawing the unreported opinion, and refiling it as a reported opinion. - 15 - conforming with the requirements of the Rule.” Id. at 67 , 258 A.3d at 885. The Court of Special Appeals resolved the dispute between the parties as to the amount of proof required to satisfy the standard by reiterating that the proponent of the evidence must show that there is a “reasonable probability” that the evidence is what the proponent claims it to be.

Id. at 72, 258 A.3d at 888. The Court of Special Appeals concluded that the circuit court erred in reasoning that, for the containers to be admissible, the Estate needed to establish an unbroken chain of custody. See id. at 78, 258 A.3d at 891. The Court of Special Appeals stated that “[t]here is no doubt that the law requires a party to establish a chain of custody when offering certain items of evidence, in order to assure that the particular item is in substantially the same condition as it was when it was seized.” Id. at 74, 258 A.3d at 889 (cleaned up).

Recognizing that “the stakes are very different here than in a criminal case[,]” the Court of Special Appeals determined that where evidence may be subject to tampering, a chain of custody may be used to establish sameness, i.e., a reasonable probability that the evidence is what it purports be, but where there is no evidence of a motive to alter or tamper with evidence, any gaps in a chain of custody “can go to the weight rather than admissibility.” Id. at 74-75, 258 A.3d at 889. The Court of Special Appeals concluded that the Estate had established a reasonable probability that the exemplars bought on eBay are what the Estate claims them to be. See id. at 75, 258 A.3d at 889-90. The Court of Special Appeals observed that, among other things, it was undisputed that the containers at issue were Irwin’s, that noncommercial amphibole asbestos is regulated and not easily found, that the overwhelming majority of - 16 - the containers arrived sealed and with no sign of tampering, that each container had chalk matching the color on the label, that most of the chalk tested positive for asbestos, and that the containers with such chalk came from nine sellers in seven states, who, to tamper with them as Irwin claimed, would have needed to intentionally mix the chalk with asbestos, which is regulated and not easy to find.

See id. at 75, 258 A.3d at 889-90. The Court of Special Appeals stated that there was no evidence that the Estate, the eBay sellers, or anyone else had a motive to tamper with the containers. See id. at 75, 258 A.3d at 889. The Court of Special Appeals observed that Irwin would be free to make arguments concerning its views about the containers to the jury.

See id. at 75, 258 A.3d at 890. The Court of Special Appeals was unpersuaded by Irwin’s contention that the grant of summary judgment was based on grounds other than the grant of the motion in limine. See id. at 60, 258 A.3d at 881. The Court of Special Appeals explained that at the conclusion of the motions hearing, the circuit court denied the motion for summary judgment based on the likely admissibility of the container from Mr. Pifer’s garage and took under advisement issues such as whether Irwin owed a duty to Mr. Pifer.

See id. at 82, 258 A.3d at 893. The Court of Special Appeals stated that a plain reading of the record indicated that the Estate conceded, and the circuit court accepted, that if the motion in limine were granted, the Estate would have no admissible evidence on which to establish that summary judgment was unwarranted. See id. at 82, 258 A.3d at 893. The Court of Special Appeals concluded that it would not be inclined to infer from the record that the circuit court had ruled in Irwin’s favor on “specific theories” of summary judgment and remanded the case to the circuit court for further proceedings.

Id. at 82, 258 A.3d at 893. - 17 - Petition for a Writ of Certiorari On October 15, 2021, Irwin petitioned for a writ of certiorari, raising the following two issues: 1. Whether it was reversible error for the [Court of Special Appeals] to reverse the authenticity threshold applied by the Circuit Court for the admissibility of items purchased from the internet. 2. Whether it was reversible error for the [Court of Special Appeals] to ignore the alternative grounds for summary judgment encompassed in the Circuit Court’s Order. On December 8, 2021, we granted the petition.

See Pifer, 476 Md. 584 , 264 A.3d 1283 . DISCUSSION I. Authentication A. The Parties’ Contentions Before this Court, Irwin contends that the circuit court thoughtfully handled the question of what is required under Maryland Rule 5-901 for the authentication of items purchased on the internet for use as exemplar evidence. According to Irwin, the circuit court recognized that determining whether such evidence is sufficiently authenticated requires a “totality of the circumstances analysis” and that in ruling that the Estate had failed to sufficiently establish the authenticity of the samples, the circuit court weighed a variety of factors including, among other things, the nature of the product at issue and the circumstances of the internet purchases. Irwin argues that, in reversing, the Court of Special Appeals substituted its judgment for the circuit court’s, usurped the circuit court’s discretion to determine the authenticity of goods purchased on the internet, and lowered the bar for authenticating online purchases.

Irwin argues that, under the Court of Special - 18 - Appeals’s holding, items purchased online are authenticated as long as they “look like what the sellers say they are.” Irwin asserts that as a result, trial courts no longer have discretion in determining the authenticity of such evidence and that the Court of Special Appeals’s decision must be reversed to keep unregulated materials purchased on the internet out of evidence in civil and criminal cases. Irwin acknowledges that for authentication under Maryland Rule 5-901, the quantum of required evidence is lower than that necessary for a determination of fact by a jury. Irwin contends, though, that where the evidence at issue is subject to the possibility of tampering or commingling, the bar for authentication is higher, and there must be evidence to negate the risk that tampering has occurred. Citing Griffin v. State, 419 Md. 343 , 19 A.3d 415 (2011), Irwin asserts that “[d]ue to the susceptibility of social media evidence to tampering, this Court determined that ‘a greater degree of authentication’ was required” and indicated that the most obvious way to authenticate evidence susceptible to tampering is through the testimony of a witness with knowledge that the evidence is what it purports to be.

In addition, Irwin contends that the way to negate the possibility of tampering or alteration of evidence is to establish a detailed chain of custody and that the concept of establishing a chain of custody is not limited to criminal cases. Irwin asserts that the circuit court properly relied on Best, 79 Md. App. 241 , 556 A.2d 701 , in finding that the Estate was required to establish a chain of custody. Irwin argues that the circuit court’s ruling is warranted not only by Best and other cases concerning the need to establish a chain of custody, but also by cases involving authentication of social media evidence, which, - 19 - according to Irwin, demonstrate that evidence obtained from the internet is particularly vulnerable to tampering. Irwin asserts that in this case there was insufficient circumstantial evidence to establish the authenticity of the items purchased on eBay and that the circuit court’s determination was entitled to deference under the abuse of discretion standard.

The Estate responds that the Court of Special Appeals properly held that the circuit court erred in failing to consider whether a reasonable juror could find that the circumstantial evidence proffered was sufficient to authenticate the items purchased on eBay and by requiring the Estate to establish a chain of custody dating back to when the items left the factory. The Estate contends that regardless of whether the evidence at issue is a document, information from social media, items purchased on eBay, or any other type of evidence, it is authenticated where a reasonable juror could find by a preponderance of the evidence that the evidence is what it purports to be. The Estate argues that establishing a chain of custody from the time of manufacture was not required to authenticate the containers and that the containers were sufficiently authenticated through “a body of circumstantial evidence from which a reasonable jury could have concluded, more likely than not, that the marking chalk procured from eBay and analyzed by Dr. Longo was, in fact, Irwin Strait-Line marking chalk.” The Estate maintains that Irwin’s authenticity challenges go to the weight to be given the evidence rather than its admissibility. B. Standard of Review Generally, an appellate court reviews for abuse of discretion a trial court’s determination as to whether evidence is admissible.

See Brown v. Daniel Realty Co., 409 Md. 565, 601 , 976 A.2d 300, 321 (2009); Dehn v. Edgecombe, 384 Md. 606, 628 , 865 - 20 - A.2d 603, 616 (2005); Farley v. Allstate Ins. Co., 355 Md. 34, 42 , 733 A.2d 1014, 1018 (1999). More specifically, an appellate court reviews for abuse of discretion a trial court’s determination as to whether evidence was sufficiently authenticated. See State v. Sample, 468 Md. 560, 588 , 228 A.3d 171, 189 (2020); Sublet v. State, 442 Md. 632, 676 , 113 A.3d 695, 721 (2015); Griffin, 419 Md. at 357 , 19 A.3d at 423 ; Dep’t of Pub.

Safety & Corr. Servs. v. Cole, 342 Md. 12, 26 , 672 A.2d 1115, 1122 (1996). C. Maryland Rule 5-901 and Case Law on Authentication of Social Media Evidence Maryland Rule 5-901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Maryland Rule 5-901(b) includes a nonexclusive list of ways to authenticate evidence. Under Maryland Rule 5-901(b)(4), evidence can be authenticated through “[c]ircumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.” In three criminal cases, we have addressed whether social media evidence was sufficiently authenticated under Maryland Rule 5-901(b)(4) using circumstantial evidence.

See Griffin, 419 Md. at 357 , 19 A.3d at 423-24 ; Sublet, 442 Md. at 672 , 113 A.3d at 719 ; Sample, 468 Md. at 565 , 228 A.3d at 174 . In Griffin, 419 Md. at 357 , 19 A.3d at 423-24 , we concluded that a trial court abused its discretion in admitting printouts that were purportedly of the defendant’s girlfriend’s MySpace profile, as the printouts had not been sufficiently authenticated as the girlfriend’s through circumstantial evidence under - 21 - Maryland Rule 5-901(b)(4). In Griffin, 419 Md. at 363 , 19 A.3d at 427 , we refrained from establishing a bright-line test for the authentication of social media evidence. Instead, we identified ways in which social media evidence could be authenticated, such as through testimony of a person with knowledge (for example, the purported author of a post or message), searching the device of the person who allegedly made the post or profile at issue to determine whether the device was used to create the profile or posting, or obtaining information directly from the social media company that would link the profile or posting to the person who created it.

See id. at 364 , 19 A.3d at 428 . At trial, the State had attempted to introduce printouts of the defendant’s girlfriend’s MySpace page to establish that the girlfriend had threatened a State’s witness. See id. at 348 , 19 A.3d at 418 . The State did not question the defendant’s girlfriend about the printouts but rather attempted to authenticate the printouts with testimony of its investigator.

See id. at 348 , 19 A.3d at 418 . We noted that the State did not try to authenticate the documents through testimony from a witness with knowledge, i.e., the girlfriend, and concluded that there was insufficient circumstantial evidence to authenticate the printouts.6 See Griffin, 419 Md. at 357 , 19 A.3d at 423-24 . We expressly stated that our holding did not mean that social media websites would never be admissible and suggested various methods for authenticating such evidence. See