Miss. SC overturns $7M verdict in lead paint case

John O'Brien Sep. 8, 2011, 3:28pm


JACKSON, Miss. (Legal Newsline) - A former high school sports star did not produce enough evidence to justify the $7 million verdict a jury in his home county awarded him in a lead poisoning case, the Mississippi Supreme Court has ruled.

Trellvion Gaines alleged that he was harmed by lead paint he was exposed to as a child, and a Jefferson County jury agreed in 2009. Sherwin-Williams, the company found at fault, argued in its appeal that Gaines didn't make a strong enough case.

Thursday, the state Supreme Court found that the testimony of two of the doctors who testified on behalf of Gaines was inadmissible, adding that the "plaintiff's experts did not present any scientific authority that an acute, asymptomatic ingestion of lead could lead to the alleged injuries."

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.

"Post-verdict statements, however, are diametrically opposed to the testimony proffered at trial," the company wrote in a previous brief. "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.

The testimonies of Drs. John Rosen and Theodore Lidsky were ruled inadmissible.

Lidsky said Gaines' IQ would have been in the "bottom of the low average range" if not for a brain injury, which he said was caused by lead paint.

"Lidsky agreed that the neuropsychological tests that he uses are not designed to detect the cause of any particular deficit," Justice Randy Pierce wrote. "He testified, nevertheless, that he still could conclude that Trellvion's injury was caused by lead."

Rosen's video testimony said Gaines was poisoned by lead from infancy through late 1993, when his blood showed elevated lead levels. He said it was the cause of permanent intellectual impairments uncovered by Lidsky.

When he was asked how he decided that the cause of Gaines' retardation wasn't something that had yet to be discovered, Rosen said, "I ruled it out because there is nothing in the medical records to indicate that there is any -- any so-called idiopathic or unknown cause. What is unknown is unknown."

The court ruled the two experts contradicted themselves and each other.

"Dr. Lidsky testified that adding points to determine a baseline IQ is a 'matter of course' in 'lead poisoning' cases because 'we know his IQ goes down ... it's one of the most established points in science,'" Pierce wrote.

"However, Dr. Mushak, plaintiff's expert toxicologist, testified that 'no one has done the data, gathered the data to show' whether 'any time a child has an elevated blood lead level, it's going to result in the loss of IQ points.' And Dr. Lidsky at one point testified that finding the injury depends on calculating the baseline (including adding points assumed by lead poisoning), but later asserted that it is improper to assume that a child is injured based solely on an increased blood lead level.

"Further, it is difficult to determine whether Lidsky's opinion in the case is, proverbially, a chicken or an egg. Dr. Rosen assumed, in reliance upon Dr. Lidsky's findings, that Trellvion was, in fact, injured (and not just 'slow') to differentially diagnose exposure to lead as the cause of the injury. However, Lidsky's admitted method, 'deficit measurement,' depended upon the calculation of a baseline, which depended upon assuming that Trellvion had been poisoned by lead."

Lidsky was leaning on Rosen's theory of causation, while Rosen was leaning on Lidsky's theory of injury, Pierce said. He added that their opinions were not reliable.

The court did not rule on two other issues presented by Sherwin-Williams in its appeal.

The company also argued that the plaintiff never proved it was lead-based Sherwin-Williams paint.

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 the 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."

Justice James Kitchens wrote an opinion in which he concurred with the majority's result but not its analysis. He wrote that witness testimony was contradictory on the issue of what company's paint was used on the house.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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