## Facts

- Cindy Horak sued Building Services Industrial Sales Company (BSIS) individually and as special administrator of the estate of her father, George Benzinger.
- Horak alleged Benzinger’s work-related exposure to asbestos-containing products supplied by BSIS contributed to his fatal lung cancer.
- To prove product identification and exposure, Horak sought to introduce invoices showing BSIS sold asbestos-containing materials to Benzinger’s employer during the relevant period.
- The invoices were more than twenty years old and were produced from the files of BSIS’s former attorney rather than directly from BSIS’s current business-records custodian.
- The circuit court excluded the invoices as hearsay and concluded Horak had not laid a sufficient foundation to use them.
- After excluding the invoices, the circuit court dismissed Horak’s claims against BSIS because Horak lacked admissible evidence tying BSIS products to Benzinger’s exposure.
- Horak appealed the evidentiary ruling and the resulting dismissal.

## Issues

1. Whether the invoices were sufficiently authenticated under Wisconsin’s evidence rules based on their appearance and the circumstances of their production, even without testimony establishing a complete chain of custody.
2. Whether the circuit court erroneously excluded the invoices as hearsay and, as a result, erroneously dismissed Horak’s claims for lack of admissible proof of exposure.

## Decision

- The Wisconsin Court of Appeals reversed the judgment dismissing Horak’s claims and remanded for further proceedings.
- The court held the circuit court set the authentication bar too high; Horak only needed to present evidence sufficient for a reasonable factfinder to conclude the invoices were what Horak claimed they were.
- The court concluded the invoices could be authenticated through circumstantial evidence, including their contents and the circumstances indicating they originated from BSIS’s records, even though they came from BSIS’s former attorney’s files.
- Because the invoices were wrongly excluded, the dismissal that flowed from their exclusion could not stand.

## Legal Principles

- Authentication is a threshold showing: the proponent must offer evidence “sufficient to support a finding” that the item is what the proponent claims. Wis. Stat. § 909.01.
- The court does not decide whether a document is genuine as a final matter when ruling on authentication; it decides only whether a reasonable factfinder could find it genuine. Wis. Stat. § 901.04(2).
- Authentication may be proved by circumstantial evidence, including the document’s appearance, contents, identifying features, and how and where it was obtained. Wis. Stat. § 909.02.
- Weaknesses in provenance (such as gaps in custody history or disputes about how a document was stored) typically affect the weight of the evidence for the factfinder, not admissibility at the authentication stage.
- Business documents like invoices may be admissible despite hearsay objections when a proper foundation supports admission under an applicable exception, and a court should not exclude such documents based on an overly demanding foundation requirement.

## Conclusion

Horak held that decades-old invoices offered to prove asbestos exposure could not be excluded simply because they were produced from a former attorney’s files or because the proponent lacked a perfect custody history; once the proponent makes a minimal, circumstantial showing sufficient for a reasonable factfinder to conclude the invoices are what they claim to be, the invoices should be admitted and remaining disputes left for the factfinder, requiring reversal of a dismissal based on their exclusion.


Horak, as Special Administrator of the Estate of Benzinger v. Building Services Industrial Sales Company, 341 Wis. 2d 403 (2012)