Federal jury accepts paint manufacturer’s gene defense

Published 12:12 am Sunday, August 6, 2006

A federal jury on Friday accepted a paint manufacturer’s defense that mental disabilities in 13 Mississippi children were caused by genetics or from other sources, not exposure to lead paint.

The suit was brought against Dallas-based NL Industries Inc. by five families that lived in the Dewey Street Apartments, a decades-old complex in Greenwood.

The plaintiffs sought unspecified damages, arguing that their children had become sick with many suffering learning and behavioral problems from exposure to the lead in paint peeling from the apartment walls.

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Mike Jones, a Washington, D.C., attorney for NL Industries, said evidence presented during the three-week trial in U.S. District Court in Oxford also showed that the children could have been exposed to lead from sources other than the company’s paint. He said soil samples near the apartments also contained lead, but it was from automotive materials, such as car batteries.

“The precise question that the jury had to answer was whether NL was liable to the plaintiffs as the result of a design defect or negligence. The jury answered that question for each of the plaintiffs, ’no,”’ Jones said.

Attorney Michael Casano, who represented the plaintiffs, said he likely would ask U.S. District Judge Mike Mills to enter a judgment notwithstanding the verdict. If that’s unsuccessful, Casano said he may appeal the ruling.

“We talked to the jury and they couldn’t conclude that the paint was the major cause of these kids’ conditions,” Casano said. “One of the jurors said she cried all morning knowing what her decision was.”

The genetics defense struck a sensitive chord in the Mississippi Delta, where the apartments are located. Most of the residents are black and poor, and the region has some of the nation’s highest rates of illiteracy.

The plaintiffs in the case also were poor, black, uneducated people, but Casano said he “wouldn’t feel comfortable saying that is the reason the jury got hung up with the contribution of NL’s paint.”

None of the plaintiffs was in court Friday. There were four blacks and four whites on the jury.

NL Industries based its genetics argument on evaluations of medical experts, who said the children’s learning disabilities, which are often a signature side effect of lead poisoning, were inherited from their mothers and fathers.

Court documents filed by NL Industries showed that many of the mothers did not complete high school and displayed other behavior that suggested mental retardation or instability.

Jones said the aunt of three of the plaintiffs — Arry Davis, Martha Lott, and Gladys Terry — testified about a family history. Estella Terry testified that five of her 11 siblings were in special education, Jones said.

Lead paint was banned from residential use in the United States in 1978, and there have been a slew of cases filed against paint manufacturers over the years.

Casano said he wasn’t discouraged by the verdict and will soon bring another case against NL Industries. That case also would involve black people who lived at the same apartment complex.

“We feel every case will stand on its merits and we’ll just keep on trying these lawsuits,” Casano said.

In February, NL Industries and two other former makers of lead paint lost a lawsuit brought by the state of Rhode Island, which charged that the companies created a public nuisance that still poisons children today.