FINCH, et al v. BASF CATALYSTS LLC, et al.

Filing 309

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 06/08/2018, that the plaintiff's motion for spoliation sanctions, Doc. 210 , is DENIED. FURTHER that the defendant's motion to strike the proffered report and testing of Mr. Fitzgerald and to exclude Mr. Fitzgerald as a putative expert witness, Doc. 239 , is GRANTED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANN FINCH, Individually and as
Executrix of the Estate of Franklin
Delano Finch,

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Plaintiff,
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v.
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BASF CATALYSTS LLC, sued
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individually and as successor-in interest )
to ENGLEHARD, et al.,
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Defendants.
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1:16-CV-1077

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The plaintiff, Ann Finch, has sued twelve defendants alleging that they are liable
for personal injuries to and the wrongful death of her late husband, who allegedly
developed mesothelioma from occupational exposure to asbestos. Defendant Pfizer asks
the Court to strike the proffered report and testing of Sean Fitzgerald and to exclude him
as an expert witness. Because Ms. Finch did not comply with the Rule 26 disclosure
requirements or the scheduling order, the Court will grant Pfizer’s motion. Ms. Finch
also moves for spoliation sanctions against Pfizer. The Court will deny her motion
because she has not established that Pfizer spoliated evidence.
BACKGROUND
Franklin Finch, the plaintiff’s late husband, worked at a Firestone tire factory in
Wilson, North Carolina from 1975 to 1995. Doc. 238-1 at 6. Before his death, Mr. Finch

testified that he was exposed to asbestos while working at the tire factory. Doc. 238-1 at
8-15.
Ms. Finch contends that Pfizer sold asbestos-contaminated talc to this tire factory
and that Mr. Finch’s exposure to this talc contributed to his mesothelioma. Doc. 84 at ¶¶
16-18; Doc. 210 at 2. Mr. Finch, however, did not testify that he worked with or was
exposed to talc or talc products. See Doc. 238-1. Three of Mr. Finch’s coworkers who
were deposed did not testify to the use or presence of talc of any sort at the Wilson tire
factory. E.g., Doc. 287-2 at 4-5; Doc. 287-3 at 5-8; Doc. 287-4 at 4-6. It appears that
Ms. Finch will attempt to prove Pfizer’s liability by offering evidence that Mr. Finch’s
work badge had talc on it and that Pfizer failed to retain sales records that, had they been
retained, would show it sold asbestos-contaminated talc to the Firestone factory.
MR. FITZGERALD’S REPORT
In April 2016, the plaintiff sent Mr. Finch’s Firestone identification badge to Sean
Fitzgerald for testing. Doc. 210-1 at 1. In a May 2016 report, Mr. Fitzgerald stated that
he tested the surface dust of the work badge “to determine if there were identifiable
constituents and/or asbestos fibers in that dust.” Id. He concluded that the dust on Mr.
Finch’s badge “had many asbestiform constituents, including fibrous talc.” Id. at 3-4.
In November 2016, approximately six months after receiving the Fitzgerald report,
Ms. Finch served her Rule 26 initial disclosures. Doc. 240-1. The disclosures did not list
Mr. Fitzgerald as an individual with discoverable information likely to support her claim.
Id. at 2-3. Nor did she disclose the existence of the work badge. Id. She did list Mr.
Fitzgerald as an expert, but she did not describe the possible subjects of his testimony.
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Id. at 36. When the deadline came for the plaintiff to produce expert reports in October
2017, Docs. 47 and 48, she did not give Pfizer a copy of Mr. Fitzgerald’s report. Ms.
Finch first disclosed the existence of the work badge and the Fitzgerald report when she
attached the report to a motion for spoliation sanctions against Pfizer. Doc. 210; Doc.
210-1.
Ms. Finch has stated that she does not intend to call Mr. Fitzgerald as a witness at
trial. Doc. 270 at 2-3. Nonetheless, she offered Mr. Fitzgerald’s report in support of a
motion for spoliation, see Doc. 210-1, and she has not withdrawn this evidence in
response to the motion to strike. She also has indicated that she has amended disclosures
for other expert witnesses to include opinions formed in reliance on Mr. Fitzgerald’s
testing and report. Doc. 270 at 2; Doc. 270-1; Doc. 270-2. Pfizer moves to strike the
plaintiff’s use of any testimony or reports generated by Mr. Fitzgerald and to exclude his
testimony and report in connection with plaintiff’s spoliation motion. Doc. 239.
It is undisputed that Ms. Finch did not timely disclose Mr. Fitzgerald’s report
under the scheduling order governing expert witnesses and the Federal Rules. Rule
26(a)(2) of the Federal Rules of Civil Procedure requires a party relying on expert
testimony to disclose the identity of all its experts and, if the expert is retained or
specially employed to provide expert testimony, to provide a written report identifying
his opinions and the basis for them. Fed. R. Civ. P. 26(a)(2)(A)-(B). In their joint Rule
26(f) report adopted by the Court, the plaintiff was required to disclose expert reports by
October 2, 2017. Doc. 47; Doc. 48; see also L.R. 16.1(e) (“The [initial pretrial] order
shall set the date on which disclosure of expert information under Fed.R.Civ.P 26(a)(2)
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must be made.”). Although Ms. Finch identified Mr. Fitzgerald as a potential expert in
her November 2016 initial disclosures, she did not produce his report until March 2018,
more than five months after the plaintiff’s expert deadline and just a few days before the
close of discovery. See Fed. R. Civ. P. 26(a)(2)(D) (stating that “[a] party must makes
these disclosures at the times and in the sequence that the court orders”).
Ms. Finch also seeks to use Mr. Fitzgerald’s report more indirectly via testimony
by other experts. However, she failed to disclose that she would use his report and the
badge he tested as evidence in support of her claims, as required by Rule 26(a)(1). Rule
26(a)(1)(A)(i) requires parties to provide the name and contact information of “each
individual likely to have discoverable information[,] along with the subjects of that
information[,] that the disclosing party may use to support its claims or defenses.” Fed.
R. Civ. P. 26(a)(1)(A)(i). Likewise, Rule 26(a)(1)(A)(ii) requires a party to describe “all
documents . . . and tangible things that the disclosing party has in its possession, custody,
or control and may use to support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(ii).
Nor, as the Court understands it, did any of these other experts initially indicate they
would rely on Mr. Fitzgerald’s report when they submitted their own expert reports and
the amended reports were submitted after discovery closed. See Doc. 270 at 2 (noting
that the plaintiff’s expert witnesses were amending their reports to reflect the Fitzgerald
report); Doc. 270-1; Doc. 270-2.
If Ms. Finch intended to use Mr. Fitzgerald’s report to support her claims, whether
directly through Mr. Fitzgerald’s testimony or indirectly by providing it to another
witness, Rule 26(a)(1)(A)(ii) required Ms. Finch to disclose the existence of the report to
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Pfizer. She knew about the substance of Mr. Fitzgerald’s information in November 2016,
since she received his report six months earlier in May 2016. See Doc. 210-1 at 1. Yet
Ms. Finch disclosed only Mr. Fitzgerald’s name and contact information in her
November 2016 initial disclosures. Doc. 240-1 at 36.
The plaintiff contends that Mr. Fitzgerald is not an expert and thus she was not
required to disclose his report. This position is belied by her own motion for spoliation
sanctions against Pfizer, which explicitly relies on Mr. Fitzgerald’s report, Doc. 210 at 2,
8, and by her own Rule 26(f) disclosures listing Mr. Fitzgerald as an expert witness. Doc.
240-1 at 36. It further does not address her failure to disclose the report and badge as
evidence supporting her claims, as required by Rule 26(a)(1)(A)(i) and (ii).
Under Rule 37(c)(1), a party that fails to provide information or identify a witness
as required by Rule 26(a) cannot use “that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1). The district court has “broad discretion to determine
whether a nondisclosure of evidence is substantially justified or harmless[,]” and should
consider:
(1) the surprise to the party against whom the evidence would be offered; (2)
the ability of that party to cure the surprise; (3) the extent to which allowing
the evidence would disrupt the trial; (4) the importance of the evidence; and
(5) the nondisclosing party’s explanation for its failure to disclose the
evidence.
S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir.
2003).

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Ms. Finch has not shown that her failure to comply with Rule 26(a) was
substantially justified or harmless. The surprise to Pfizer was significant. The plaintiff
did not disclose the existence of Mr. Finch’s ID badge until March 2018, approximately
15 months after her initial disclosures. Doc. 210; Doc. 210-1; Doc. 240-1. She did not
disclose Mr. Fitzgerald’s expertise or the possible subjects of his testimony. Doc. 240-1
at 36. Likewise, she did not disclose Mr. Fitzgerald’s report until months after the
deadline for expert disclosures. Doc. 47; Doc. 48; Doc. 210-1.
Pfizer is not able to cure the surprise. It cannot depose Mr. Fitzgerald because
discovery closed mere days after the plaintiff produced the report. Moreover, Pfizer
cannot perform its own testing because Mr. Fitzgerald wiped the dust from the badge in a
manner that likely renders retesting impossible. See Doc. 210-1 at 3.
Ms. Finch has not explained her failure to timely disclose the evidence. It is
uncontested that she was aware of the existence of the badge and of the conclusions in the
report months before serving her initial disclosures. Nor has she explained her failure to
timely supplement her incomplete disclosures under Rule 26(e). See Fed. R. Civ. P.
26(e) (requiring supplementation of initial disclosures when “the party learns that in some
material respect the disclosure or response is incomplete or incorrect, and . . . the
additional or corrective information has not otherwise been made known to the other
parties”).
Finally, while the report might be important evidence—it purports to provide
evidence that Mr. Finch was exposed to talc, which could theoretically be part of a chain
of evidence linking talc sold by Pfizer to Mr. Finch’s mesothelioma—this is insufficient
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to outweigh the other Southern States factors. Indeed, the more important the evidence,
the less justification the plaintiff has for her failure to disclose it and the more prejudiced
Pfizer would be if the evidence were allowed.
The Rules of Civil Procedure are clear: failure to tell other litigants about known
evidence in support of a claim precludes a party from relying on that evidence, absent
justification or lack of harm. Ms. Finch did not timely disclose Mr. Fitzgerald’s report as
an expert report and she did not disclose that she would use his report, his testing, or the
badge to support her claims, in violation of Rule 26. She has not shown substantial
justification or lack of harm for her failure to disclose. Therefore, she is precluded from
using the report as evidence in connection with the spoliation motion or, directly or
indirectly, at trial.
PLAINTIFF’S SPOLIATION MOTION
Pfizer operated a talc factory in Victorville, California until 1987. Doc. 210-10 at
7-8, 12. Pfizer has a complete set of sales records for its talc products from 1978 until
1992, which it produced to Ms. Finch. Doc. 210-7 at 26. These records show no talc
sales to the Wilson factory from 1978 going forward. Doc. 210-7 at 21-26. It has only a
few records showing sales before 1978. Doc. 210-5 at 17-19, 28; Doc. 210-7 at 25-26
(indicating these records were produced to plaintiff).
The plaintiff contends that Pfizer failed to preserve evidence about its sales of talc
between 1975 and 1977 and that Pfizer disposed of other shipping records about talc sales
when closing a talc facility in 1987. She seeks an adverse inference “that Franklin Finch
was exposed to talc sold and distributed by Pfizer.” Doc. 210 at 1.
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The first talc-related lawsuit was filed against Pfizer in 1986. Doc. 210-7 at 29.
After that lawsuit, Pfizer implemented a litigation hold to preserve talc-related records.
Doc. 210-7 at 29-30. Pfizer’s record retention policy before the litigation hold was to
keep its annual sales reports for six years and individual invoices for three years. Id.1
Thus, when the first talc-related lawsuit was filed in 1986, records of pre-1978 sales were
no longer available. Id.
In another lawsuit, a Pfizer employee testified that in 1988, he located certain sales
records in the attic of a California local sales office. Doc. 210-5 at 17-19. He testified
that these sales records referenced sales from 1969 to 1973 and included several sales of
talc to a Firestone facility in South Gate, California. Doc. 210-5 at 17-19, 28.2 These
records were partially redacted, and the precise extent of the redaction is somewhat
unclear. Doc. 210-5 at 17. Outside of these partially-redacted records, which have been
produced to the plaintiff here, Pfizer does not have any end-of-year sales reports—or
sales records of any kind—from before 1978. Doc. 210-7 at 25-26.
In 1987, Pfizer closed its Victorville, California talc facility. Doc. 210-7 at 19.
An employee involved with shutting down the facility testified in another lawsuit that
“[a]ny shipping documents that may have pertained to individual customers or individual
shipments were disposed of at that time[.]” Doc. 210-11 at 41. That same employee also

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Although Pfizer had a policy of retaining annual sales records for six years, the format
of its sales reports contained data from the two previous years. Doc. 210-7 at 29-30. Thus,
Pfizer’s 1980 sales report also contained data from 1978 and 1979. Id.
These sales records were attached to the deposition and are currently in the plaintiff’s
possession.
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testified that Victorville only retained bills of lading—i.e., shipping documents—for
three years. Doc. 210-11 at 44.
To obtain an adverse inference based on spoliation of evidence, Ms. Finch must
establish that: (1) Pfizer had a duty to preserve the evidence; (2) Pfizer destroyed
evidence that would have been relevant to her claims; and (3) Pfizer “willfully” destroyed
the evidence. Turner v. United States, 736 F.3d 274, 281-82 (4th Cir. 2013). As the
moving party, Ms. Finch has the burden of proof. Id. at 282. “Spoliation is a rule of
evidence” and the decision to impose sanctions for violations rests within the sound
discretion of the trial court. Id. at 281.
In its discretion, the Court declines to grant Ms. Finch’s motion for spoliation
sanctions because Ms. Finch has proved none of the elements necessary to obtain an
adverse inference based on evidence spoliation.
1. Duty to preserve
Ms. Finch has not established that Pfizer had a duty to retain pre-1978 sales
records. The evidence shows that, before implementing a litigation hold in 1986 when it
was first sued over talc, Pfizer adhered to its six-year document retention policy for sales
records. See Doc. 210-7 at 26, 29-30. Accordingly, when the first asbestos-talc related
lawsuit was filed against Pfizer, no sales records predating 1978 were available. Until a
lawsuit was filed or it otherwise had notice that earlier records were reasonably likely to
be relevant, Pfizer had no duty to retain these records. See Turner, 736 F.3d at 282
(“Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence.”).

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Ms. Finch contends that Pfizer had a duty to implement a litigation hold before the
filing of the first talc-related suit in 1986 because in 1980 some employees expressed
concern in internal memoranda that the talc might be contaminated with asbestos. She
relies on Silvestri v. Gen. Motors Corp., where the Fourth Circuit found that the “duty to
preserve material evidence . . . extends to that period before the litigation when a party
reasonably should know that the evidence may be relevant to anticipated litigation.” 271
F.3d 583, 591 (4th Cir. 2001).
Here, however, the memoranda that Ms. Finch cites, Docs. 210-8 and 210-9, show
no more than a generalized concern about possible litigation and are insufficient to
trigger a company-wide duty to preserve evidence. See Realnetworks, Inc. v. DVD Copy
Control Ass’n, 264 F.R.D. 517, 526 (N.D. Cal. 2009) (“A general concern over litigation
does not trigger a duty to preserve evidence.”). Ms. Finch has not shown that Pfizer
reasonably should have known that the pre-1978 records may have been relevant. See
Silvestri, 271 F.3d at 591.
Ms. Finch also asserts that when Pfizer closed its Victorville, California facility in
1987, “Pfizer destroyed the only copies of the information reflected in the shipping
documents and made no effort to preserve any of the shipping and sales documents that it
may have saved on its computer system.” Doc. 210 at 5. She contends that this justifies
a spoliation sanction.
This argument is without merit. The destroyed shipping documents were from
1984 through 1987, see Doc. 210-11 at 41, 43-44, and Pfizer maintained other sales
records containing the same information. Doc. 210-7 at 26 (Pfizer maintained complete
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sales records for its talc products from 1978 to 1992). Given this, Pfizer did not breach
its obligation “to preserve unique, relevant evidence that might be useful to an
adversary.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 524 (D. Md.
2010) (internal quotation omitted).
Finally, without citation to any evidence, Ms. Finch asserts that “Pfizer made no
effort to safeguard against the loss of documents when it updated its computer system in
2000.” Doc. 210 at 7. Statements in a brief are not evidence. See INS. v. Phinpathya,
464 U.S. 183, 188 n. 6 (1984) (declining to consider “[c]ounsel’s unsupported assertions
in respondent’s brief” as evidence). Further, the evidence shows that Pfizer sold its talc
business in 1992 to an independent business, and thus did not own the business in 2000
when Ms. Finch says the records were destroyed. See Doc. 210-10 at 29; Doc. 210-7 at
19. Ms. Finch offers no legal or factual support for penalizing Pfizer with a spoliation
instruction for actions taken by someone else, and this argument borders on the frivolous.
2. Relevance
Ms. Finch has not demonstrated that the missing records would have supported her
claims. “The burden is on the aggrieved party to establish a reasonable possibility, based
on concrete evidence rather than a fertile imagination, that access to the lost material
would have produced evidence favorable to his cause.” Sampson v. City of Cambridge,
Md., 251 F.R.D. 172, 180 (D. Md. 2008) (internal quotation omitted). She seeks an
inference that the spoliated records would have proved “that Franklin Finch was exposed
to talc sold and distributed by Pfizer.” Doc. 210 at 1. Her contention is without merit for
several reasons.
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Mr. Finch was employed at Firestone from 1975 to 1995. Doc. 238-1 at 6. Pfizer
has complete sales records from 1978 to 1992, Doc. 210-7 at 26, which contain no record
of any talc sales to the Wilson tire factory. Id. at 21-26. Although Ms. Finch contends
that Pfizer should have retained the Victorville, California shipping records, it is not clear
how these records are relevant. The Victorville records appear to cover only a period
from 1984 to 1987 and the record is clear that these records do not predate 1978. See
Doc. 210-11 at 41, 43-44. Pfizer has complete sales records for this period, containing
the same relevant information. See Doc. 210-7 at 26. Ms. Finch has not explained what
information the shipping records would contain that the sales records do not.
Additionally, the plaintiff does not show that Mr. Finch ever worked with talc at
Firestone’s plant. Mr. Finch did not testify that he was ever exposed to talc. See Doc.
238-1. Nor did Mr. Finch’s three co-workers that were deposed testify that Mr. Finch
was exposed to talc. E.g., Doc. 287-2 at 4-5; Doc. 287-3 at 5-8; Doc. 287-4 at 4-6. The
Court excluded Mr. Fitzgerald’s report—purporting to have found talc dust on the surface
of Mr. Finch’s work badge—on the basis that it was untimely and violated Federal Rule
of Civil Procedure 26(a) and this Court’s scheduling order. Supra. Accordingly, even if
there were records showing that Pfizer’s talc was shipped to the Wilson tire factory, the
plaintiff produces no evidence that Mr. Finch was exposed to talc.
For these reasons, the plaintiff has not established “a reasonable possibility, based
on concrete evidence rather than a fertile imagination,” that the allegedly spoliated
evidence would have supported the inference she seeks. Sampson, 251 F.R.D. at 180.

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3. Willfulness
Ms. Finch has not shown that Pfizer willfully destroyed evidence or records that it
knew it had a duty to preserve. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156
(4th Cir. 1995) (noting that an adverse “inference requires a showing that the party knew
the evidence was relevant to some issue at trial and that his willful conduct resulted in its
loss or destruction”). Because Pfizer had no duty to retain documents from 1975 to 1977,
as the Court found supra, it did not act willfully in destroying those documents years
before litigation began. See Powell v. Town of Sharpsburg, 591 F. Supp. 2d 814, 820
(E.D.N.C. 2008) (“Destruction is willful when it is deliberate or intentional.”). Even if a
duty exists to retain duplicative documents, the Court concludes that Pfizer’s conduct was
not willful because it kept other documents that provide the same information. Doc. 2107 at 26.
CONCLUSION
In its discretion, the Court will grant Pfizer’s motion to strike Mr. Fitzgerald’s
report and testing because Ms. Finch did not comply with Rule 26 or with the Court’s
scheduling order and she has not shown that her failure was substantially justified or
harmless. The Court will deny Ms. Finch’s motion for spoliation sanctions because she
has not shown that Pfizer had a duty to preserve the evidence that she seeks, much less
that much of the evidence was relevant, or that Pfizer destroyed said evidence willfully.
It is ORDERED that the plaintiff’s motion for spoliation sanctions, Doc. 210, is
DENIED. It is FURTHER ORDERED that the defendant’s motion to strike the

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proffered report and testing of Mr. Fitzgerald and to exclude Mr. Fitzgerald as a putative
expert witness, Doc. 239, is GRANTED.
This the 8th day of June, 2018.

__________________________________
UNITED STATES DISTRICT JUDGE

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