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Sherwin-Williams Upheld in $7M Appeal

Friday, September 9, 2011

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Mississippi’s high court has thrown out a $7 million jury verdict against the Sherwin-Williams Co. in a case involving allegations of brain damage to a boy who allegedly ate lead paint chips.

The 14-page decision overturned both the trial- and appellate-court decisions, finding that they erred in allowing “expert” testimony by Drs. John Rosen and Theodore Lidsky, who “contradicted each other and themselves.”

 Associate Justice Randy Pierce
The testimony of two expert witnesses was “not reliable,” Associate Justice Randy G. Pierce wrote for the court.

The doctors expressed different views of how the paint in the Fayette, MS, wood home of Trellvion Gaines had affected the boy’s health and mental development.

Paint History

The home was built in the 1900s, burned in 1994, and was repainted. Sherwin-Williams stopped making interior residential lead-based paint in 1954 and all residential lead-based paint in 1972, but the plaintiffs contended that traces of the old lead-based paint and its dust remained.

Trellvion’s grandmother testified that she had seen the boy eating paint chips in the early 1990s. Two tests in September 1993 showed elevated lead levels in Trellvion’s blood.

The boy later became a high school football star and basketball standout. In a MySpace post, his mother said Trellvion would be going to college.

‘Gatekeeping Duty’

Sherwin-Williams had argued that there was no evidence that its paint was connected in any way to the boy’s health problems. The company said that the family had failed to prove that Trellvion ate any lead paint, much less any manufactured by Sherwin-Williams, or that his problems were caused by eating paint. The company also challenged Rosen’s and Lidsky’s testimony.

“The plaintiff characterizes Drs. Rosen and Lidsky as ‘some of the world’s leading experts in their respective fields,’” Associate Justice Randy G. Pierce wrote for the court. “Sherwin-Williams responds that the trial court failed to exercise its ‘gatekeeping duty’ because it allegedly did not ‘undertake any meaningful evaluation [of the reliability of the opinions] beyond expert credentials.’”

The justices agreed with the company, saying the law requires trial courts “to act as ‘gatekeepers’ with regard to expert testimony, because juries tend to place great weight on the testimony of experts and can be misled by unreliable opinions.”

They added: “The opinions expressed by Drs. Rosen and Lidsky, however, were not reliable.”

‘Mere Speculation’

“Because Drs. Lidsky’s  and Rosen’s  speculation was  inadmissible,  and because  the plaintiff’s experts did not present any scientific authority that an acute, asymptomatic ingestion of lead could  lead  to  the  alleged  injuries, the  plaintiff did not offer  sufficient proof of causation. The basis for Lidsky’s and  Rosen’s causation  testimony—that Trellvion was ingesting and being poisoned by lead the entire time he lived in the house—was mere speculation and inadmissible.”

Sherwin-Williams spokesman Mike Conway declined comment Friday, saying, “We just let the decision speak for itself.”
11-Year Litigation

The suit was initially filed in 2000, and Sherwin-Williams won a summary judgment in 2003. The state Supreme Court overturned that judgment in 2007, however. Then, in 2009, a jury unanimously returned the $7 million verdict, which was upheld on appeal.

The high court said this week that without the expert testimony, Sherwin-Williams’ original victory should stand.


Tagged categories: Laws and litigation; Lawsuits; Lead; Residential; Sherwin-Williams

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