Sherwin-Williams says $7M verdict for football player unfair

John O'Brien Jul. 21, 2009, 2:49pm

Trellvion Gaines, former high school football player and basketball player in Mississippi's Jefferson County

FAYETTE, Miss. (Legal Newsline) - Sherwin-Williams is doing everything it can to overturn a recent $7 million jury award against it in a lead paint lawsuit, claiming it is the result of sympathy for a small-town sports star.

Sherwin-Williams filed a pair of motions Monday in the case of Trellvion Gaines, a former high school football and basketball player in Mississippi's Jefferson County who claims the company is liable for the lead poisoning he suffered as a child. A jury sided with him in June.

The company filed a Motion for Judgment Not Withstanding the Verdict and a Motion For New Trial.

"(T)he jury's verdict is not based on sufficient evidence, conflicts with overwhelming evidence in Defendant's favor, and could only result from jury sympathy for a hometown basketball and football star with learning disabilities," the motion for judgment says.

Lead paint was outlawed in 1978. Several muncipalities, counties and states have alleged paint companies created a public nuisance by manufacturing it when it was still legal to do so.

Gaines played wide receiver for Jefferson County High School's football team last year and helped the Tigers reach the Class AAA playoffs. He is planning on playing at Southwest Mississippi Community College this year on a scholarship.

He also played for the school's basketball team and was described in a Natchez Democrat article by his coach as "our leader" after scoring 20 points in an early season tournament game.

At the trial, his mother, Shermeker Pollard, said that her son "can't go to college." Gaines' attorneys even produced witnesses that said his deficits would prevent him from attending, Sherwin-Williams' motion says.

Pollard said she knows he's not going to make it in college, and the damages calculation derived from those statements put millions of dollars into the award, the company said.

"Post-verdict statements, however, are diametrically opposed to the testimony proffered at trial," the company wrote. "In a June 29 posting on her MySpace Web site, Plaintif's mother... indicated that Plaintiff is definitely going to college.

"After the verdict, Ms. Pollard has talked about not having to work anymore, shopping until she drops and finding plans for her large new house."

The company says Gaines' enrollment in college undermines the testimony that he can't go to college.

Among Sherwin-Williams' other gripes are:

-The verdict went against the evidence and was based on speculation, passion and bias;

-Irrelevant and unreliable expert testimony was allowed;

-Two of the company's proposed jury instructions were "improperly" denied;

-The damages award was excessive; and

-Venue was improper in Jefferson County.

"Statistical surveys conducted in 2002 and 2007 found that 71 percent and 74 percent of respondents, respectively, agreed that '(w)hen it comes right down to it, a large company is responsible for any harm that comes to a consumer who uses that company's product.'

"For most in Jefferson County, Sherwin-Williams' liability was a foregone conclusion when this case was filed, and the substantial prejudice against out-of-state corporate defendants only increased before trial. Those high percentages well exceed that which requires a change of venue."

A footnote in the motion notes that in 2003 the company noted that Jefferson County had the most liability and mass tort actions filed per 1,000 people from 1996-2001 than any other county in the state.

Sherwin-Williams won summary judgment in the case years ago, but the state Supreme Court overturned the decision and reinstated the case.

It was a rare loss for the paint industry, which has collected victories in Rhode Island, Missouri, Wisconsin and New Jersey and is battling the contingent fee agreements government entities enter into with outside law firms in California.

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