Talc Defendant Strikes Plaintiff’s Expert and Avoids Spoliation Sanctions United States District Court, M.D. North Carolina, June 8, 2018
NORTH CAROLINA — The plaintiff Ann Finch’s decedent Franklin Finch worked at a Firestone tire factory in Wilson, North Carolina from 1975-1995 and alleged that he was exposed to asbestos during his time there, causing his mesothelioma. Among other allegations of exposure, the plaintiff alleged that the decedent was exposed to talc-contaminated asbestos at Firestone, allegedly supplied by defendant Pfizer and others. In support of this allegation, the plaintiff offered an expert report from Sean Fitzgerald, who tested an identification badge worn by Decedent, and determined that it showed “asbestiform constituents, including fibrous talc.” However, the plaintiff disclosed the existence of the report and the badge 15 months after initial disclosures in the case, and just a few days before the close of discovery. Pfizer moved to strike the report and testing of Mr. Fitzgerald, and the plaintiff moved for spoliation sanctions against Pfizer for an alleged failure to retain sales records.
Stating “the more important the evidence, the less justification the plaintiff has for her failure to disclose it,” the court granted Pfizer’s motion to strike the use of Mr. Fitzgerald’s report and the badge to support her claims. The court noted that neither the decedent, nor three of his co-workers testified to any presence or use of talc at Firestone during relevant time periods. While acknowledging that the report could be used to establish a chain of evidence showing possible exposure to Pfizer products, the court determined that the plaintiff’s failure to disclose the report and evidence was not excusable, and that Pfizer could not cure the “surprise” of it being disclosed at that point in the litigation.
The court also denied the plaintiff’s motion for spoliation sanctions. The plaintiff had alleged that Pfizer’s failure to preserve sales records prior to 1978 was sanctionable. The court determined that Pfizer acted reasonably in adhering to its document retention policies which resulted in the destruction of records periodically as a matter of course until they established litigation holds on the documents when they were first sued for a talc-related case in 1986. The plaintiff could not demonstrate that Pfizer had a duty to preserve the evidence, that it destroyed evidence related to her claims, or that it willfully destroyed evidence.