Miss. Supreme Court orders trial in Jefferson Co. lead paint poisoning case
Published 9:04 pm Friday, February 16, 2007
The Mississippi Supreme Court has ordered a trial in a lawsuit brought by a mother and son against Sherwin Williams Co., in which they claim the company was responsible for the lead paint that made the boy sick.
The suit was filed in 2000 in Jefferson County Circuit Court by Shermeker Pollard of Fayette on behalf of herself and her son, Trellvion Gaines, who was then 9. A trial judge ruled in favor of the Cleveland, Ohio-based paint manufacturer in 2003.
The Supreme Court, in a 5-4 decision on Thursday, said the trial judge erred in relying on a report of a special master to determine that the case should be dismissed. A special master is hired by a court to evaluate evidence and determine the validity of the plaintiffs’ claims.
“The special master improperly assessed the credibility of witnesses … despite his acknowledgment that our law clearly establishes that such credibility determinations were not within his province,” wrote Justice Michael Randolph for the majority of the court.
Randolph said the sworn testimony of the plaintiffs’ witnesses created issues of material fact that should be weighed by a jury.
In the lawsuit, the plaintiffs alleged Trellvion ingested lead paint chips while living in a house that had been occupied by Gaines’ mother, Doris Gaines, since the 1970s.
Lead paint was banned in the United States in 1978, but can be found in some older homes and rundown housing.
Doris Gaines claimed that she and another person painted the house four times between 1974 and 1994.
The lawsuit alleged that “Trellvion was exposed to lead dust, chips, and other debris which resulted from the sanding, scraping, and other removal of lead paint from the house, which occurred based on the required procedure for application of Sherwin Williams’ non-lead based paint.”
Randolph said the court record showed testimony that 83 percent of the paint chips from the home contained lead and it was likely that Trellvion may have ingested paint residue containing lead.
“The fact that Sherwin Williams denied manufacturing and marketing paint containing lead at the time of his exposure, despite evidence to the contrary, merely creates an issue for a jury to resolve,” Randolph said.
In a dissent, Chief Justice Jim Smith, joined by three other justices, said there was no evidence to support the claims of Pollard and Trellvion that, prior to 1970, the house was painted with Sherwin Williams lead-based paint. He said the only evidence was hearsay from a minister who said he was told the house was painted with lead-based paint.
Smith said the court record showed Gaines didn’t move into the house until 1978, so she could not have painted it in the early 1970s.
He said plaintiffs have no paint cans or labels to prove that Sherwin Williams lead-containing paint was applied to the home.
“Further, and more importantly, the undisputed facts show that Sherwin-Williams had removed lead pigments from all of its interior residential paint by 1955 and from all interior and exterior residential paint by no later than 1973. None of Sherwin-Williams’ residential paint formulas … dated June 1, 1973 through December 31, 1978 contained any lead ingredient,” Smith said.
Smith said the plaintiffs case was based on unsupported speculation and allegations.