Blog Admissibility: Third-Party Blog Posts Are Hearsay

Spellman v. Benjamin Moore & Co., 2016 Pa. Dist. & Cnty. Dec. LEXIS 18216 (Ct. Com. Pl. Oct. 7, 2016):

This appeal follows a jury trial concluded in May of 2016, in which the jury found in favor of Defendant, Benjamin Moore & Co., on Plaintiffs' claims against Benjamin Moore & Co. for alleged fraudulent misrepresentation, negligent misrepresentation and breach of warranty regarding Natura paint. Plaintiffs are also appealing this Court's non jury verdict in favor of Defendant, Benjamin Moore & Co., on their claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P. S. Section 201-1 et seq. ("UTPCPL"). Plaintiffs' post trial motions were denied.

Plaintiffs filed this lawsuit against Defendant alleging that they were injured as the result of exposure to Natura paint, after they applied it to two(2) walls in their family room, in January of 2010. A few days later Plaintiffs claimed to have noticed an unpleasant odor coming from the painted walls. The carpet in that room had been cleaned subsequent to applying the paint. Plaintiffs called Benjamin Moore to complain about the odor and Benjamin Moore sent an employee to their home to investigate. Employee Dan Farinelli could not perceive any odor in the Plaintiff's home, though he was there on [*2]  two (2) subsequent occasions in 2010.

Mr. Farinelli wanted to help the Plaintiffs despite the fact that he himself did not detect the fishy smell Plaintiffs described to him. He did inform them that the "curing" period was thirty (30) days and that they might want to wait until the paint cured before doing anything further. Plaintiffs did not find his suggestion acceptable.

Mr. Farinelli then suggested painting over and resealing the walls with another product, but Plaintiffs also refused that suggestion. Mr. Farinelli then called a chemist at Benjamin Moore who suggested that an application of a baking soda and water mixture may remedy the alleged odor problem. Plaintiffs agreed to try that method of attacking their problem.

Mt. Farinelli returned to Plaintiff's home in late. January and applied the mixture to the two (2) walls, though he still could not detect any odor. Afterwards, the Plaintiffs called Benjamin Moore and complained that the application of the mixture caused the odor to expand into the rest of their home and worsen the smell. Not long after, the Plaintiff's chose to leave their home permanently. They did nothing further to address the alleged condition, other than to [*3]  ventilate the home occasionally.

A few months later, Plaintiffs hired a local company to test the painted drywall as well as the air inside of their home for the presence of VOCs (volatile organic compounds). The test revealed only trace amounts of VOCs, an amount which proved to be safe. Nevertheless, Plaintiffs refused to inhabit the house, although subsequent tests they ordered also revealed that the air in the home was healthy to breathe.

The Plaintiffs were, not satisfied with the test results from the local companies and sought out a company as far away as Maryland to confirm their claims that their home was unsafe, due to Natura paint. That company's air test again found the home contained only normal, safe air. Nevertheless, the company went so far as to prepare a computerized model, which did not actually sample the air, or the Natura paint. They had no idea as to the paint's formula or any of its ingredients. Furthermore, their formula assumed a toxicity level of January 10, 2010, the day the Plaintiffs painted. The model was prepared two and one half years later. The company's assumption was not based upon fact and the company acknowledged that an unpleasant odor does not [*4]  equate to the presence of harmful toxins. The home was safe and the paint was harmless. In 2016, Defendant Benjamin Moore retained another testing company to test for VOCs and semi VOCs, Nothing other than normal amounts found in nature or any home was present in Plaintiff's home. Plaintiffs' home is safe. Natura paint is harmless.

Nevertheless, Plaintiffs' persisted that they had been harmed by Defendant's product. Mr. Spellman sought no medical attention until more than two and one half years after painting his walls with Natura paint. He finally sought medical attention after contracting a case of hives after playing golf. His physician diagnosed hives related to contact dermatitis or the sun. Plaintiffs still claim that the hives were related to inhaling fumes from the paint, but the hives disappeared as the result of the doctor's treatment. Plaintiff also had a history of suffering from hives, one in particular occurred twenty-two years prior to his painting with Natura paint and lasted one-year. Plaintiff's physician did not associate any symptoms that Plaintiff exposure to paint.

Later, Plaintiff consulted with a Virginia physician, who gave him a checkup and pronounced him normal, [*5]  except for hives and a rash, a little swelling in his face and around his mouth. The doctor attributed the symptoms to multiple chemical sensitivities, but had no idea that the sensitivities, were associated with Defendant's paint or any other source. He had no idea what the formulation of Natura paint could be. Plaintiff underwent an IME with an environmental and occupational physician in the course of trial preparation who found that neither husband nor wife had suffered an injury from Defendant's product.

Natura paint was developed as an environmentally greener alternative to traditional paint and was intended to eliminate as many VOC's as possible so as to be virtually VOC free. It is formulated to contain odorless compounds. The defoaming agent in the paint was simply canola oil. However, Benjamin Moore received, about sixty (60) complaints about the odor out of half a million cans sold. Defendant investigated and with the help of their supplier of defaming agent, the canola oil was found to be the cause of those few complaints. Defendant's discovery occurred after the Plaintiffs, had applied the paint. Only the Plaintiffs could smell it in their own home. The canola oil was removed, [*6]  from Natura paint as the result of Benjamin Moore's investigation.

The jury heard all of the above information and the evidence for the Plaintiffs. They were asked whether Benjamin Moore fraudulently or negligently misrepresented their product as free of VOC's and virtually odorless and fast drying. The jury found in favor of Benjamin Moore. They were asked whether Defendant breached any warranty with regard to Natura paint. They found in favor of Benjamin Moore on that question, too. As required by law this court heard plaintiff's UTPCPL claims, subsequent to the jury's verdicts on the common law claims. Under the UTPCPL the Plaintiff again must prove that Benjamin Moore made a misrepresentation regarding, the qualities of Natura paint in order to succeed in their UTPCPL claim.

***

PLAINTIFFS CLAIM THE TRIAL COURT ERRED IN EXCLUDING PLAINTIFF'S EVIDENCE AS TO SUBSEQUENT REMEDIAL MEASURES, THE CALIFORNIA LITIGATION, AND BLOG POSTS REGARDING ODOR PROBLEMS RELATED ISSUES ASSOCIATED WITH NATURA PAINT FAILS.

Pa. R.E. 407 governs the admissibility of subsequent remedial measures:

When measures are taken by a party that would have made an earlier injury or harm less likely to occur, evidence of subsequent measures is not admissible against that party to prove:

   Negligence;

Culpable Conduct;

A defect in a product or its design; or a need for a warning or instruction

Pa. R.E. 407

Plaintiff wanted to show that Defendant [*12]  reformulated its NatUra paint in the Spring or summer of 2010, through a "Product. Replacement Notice" dated July 22, 2010 and other documents. Such documents are representations of a subsequent remedial measure which is inadmissible to prove Natura paint was a defective product in its original formulation.

A California lawsuit against Benjamin Moore was settled prior to trial. The settlement does not give any indication of liability. Evidence of compromise such as Defendant's settlement in an unrelated claim is excluded under Pa. R.E. 408. Pa. R. E. 408 excludes from admission any evidence regarding compromise is inadmissible for the purpose of establishing liability, just as the usual settlement agreement always includes. It is not a judgment against Benjamin Moore, but it is equally prejudicial. The California litigation had unrelated, allegations and did not prove that Natura paint is harmful, but it would have been more prejudicial that probative against Defendant and was excluded.

Plaintiffs included various blog posts in their pretrial statement regarding odors from Natura paint. Such evidence is completely unreliable, unauthorized and irrelevant. Benjamin Moore could not identify or depose any of the [*13]  anonymous bloggers and the Court and jury would have no opportunity to evaluate their veracity. The blog posts are hearsay and inadmissible under Pa. R.E. 801.

Hearsay is a statement that:

(1) The declarant does not make While testifying at the current trial or hearing: and

(2) The party offers to prove the truth of the matters asserted in the statement.

Pa.R.E. 801

Hearsay is inadmissible under rule Pa.R.E. 802 This Court accordingly excluded the blog posts, California litigation and subsequent remedial measures.

For the foregoing reasons, this Court's jury and non-jury verdicts and dismissal of Plaintiffs' negligence claim should be affirmed.

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