JACKSON, Miss. (Legal Newsline) - Trellvion Gaines never produced enough evidence to merit a $7 million jury award in a lead paint case, Sherwin-Williams is arguing to the Mississippi Supreme Court.
Sherwin-Williams also asked that if the court orders a new trial, it is located outside of Jefferson County. Jurors in that county awarded the millions to Gaines in July 2009 after the state Supreme Court had overturned a summary judgment ruling in favor of Sherwin-Williams.
"Plaintiff offered nothing but speculation by two family members and a friend that they had bought and used Sherwin-Williams' residential lead paint repeatedly, long after Sherwin-Williams stopped making and selling it in 1972," attorneys for the company wrote in a brief to the state Supreme Court, submitted June 28.
"Two of them never read the labels on the paint they used, and the other said he saw the exact phrase 'lead paint' on the label, a phrase that never appeared on Sherwin-Williams' cans."
Gaines was a local high school sports star, starting at wide receiver and safety for Jefferson County as a senior in 2008. He was also a standout basketball player.
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, a previous Sherwin-Williams motion says.
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, Plaintiff'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."
As a child, Gaines' grandmother spotted him with paint chips in his mouth that were stripped away from the interior of the house while she remodeled.
Sherwin-Williams argues that the plaintiff never proved it was lead-based Sherwin-Williams paint. One witness, who had his own lead paint case and used the same attorneys, "first testified that he did not know the brand of paint," but he "later identified the paint as Sherwin-Williams' paint after prompting by counsel," the brief says.
Rev. Martin Lias said the paint was put on the house in the 1930s. "The white folks always bought Sherwin-Williams paint," he testified.
The house burned down in 1994, a year after tests showed an elevated blood-lead level in Gaines.
The company also took issue with the jury pool.
"And, although Plaintiff completed high school with a special education certificate, played varsity sports, drives a car and can earn a living (even according to his own vocational expert), his damages experts were allowed to assume he would never work and would require a 24-hour-a-day 'life coach,'" the brief says.
"That is why the jury, against the overwhelming weight of the evidence, awarded Plaintiff $7 million -- that, and the facts that one juror said she was 'like family,' two jurors had school ties to Plaintiff's family, one was a mass tort plaintiff and two surveys showed pervasive community bias."
From Legal Newsline: Reach John O'Brien by e-mail at email@example.com.