I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Mississippi Supreme Court reverses, renders Sherwin Williams verdict

Sherwin Williams lost a lead paint case in Jefferson County to the tune of $7M.  Today, the Mississippi Supreme Court reversed and rendered , with four justices (Pierce writing) saying that there wasn’t sufficient proof of causation.

Why not?  Because the opinions plaintiff’s experts about the effect of the lead exposure were not sufficiently scientific to be allowed into evidence.   Without the expert proof, the court ruled, there was no evidence of causation and therefore, instead of reversing and remanding for a new trial (the usual result for evidentiary error), the court ended the case with a judgment for Sherwin Williams.

Here’s what the court said.

¶15. We are urged by amici to instruct trial court judges that consideration of the “relevance and reliability” of an expert’s opinion (and not simply the expert’s qualifications) is a necessary part of the trial court’s duty as a gatekeeper. The trial judge in this case did not consider many of Sherwin-Williams’s arguments concerning the reliability of plaintiff’s experts, regarding them as challenges to the weight and not the admissibility of the experts’ testimony. Amici urge that we instruct trial courts to make particularized findings as to the admissibility of expert opinions, when those challenges are raised before trial. In this case, a Daubert challenge was filed before trial, and the court chose to delay ruling until trial, by which point the court did not have time to read the briefs and fully consider the arguments. Our trial judges work exceedingly hard and have discretion in how they discharge their gatekeeping duty,16 but we take this opportunity to reiterate that such duty includes making sure that the opinions themselves are based on sufficient facts or data and are the product of reliable principles and methods.

¶16. Because Drs. Lidsky’s and Rosen’s speculation that Trellvion had been ingesting lead throughout his entire residence at the home was unreliable and, therefore, inadmissible, and because the plaintiff’s experts did not present any scientific authority that an acute, asymptomatic ingestion of lead could lead to the alleged injuries, the plaintiff did not offer sufficient proof of causation. That admission of the speculation of Drs. Lidksy and Rosen would, alone, trigger a new trial. However, because of the lack of sufficient proof of causation, we find that the court should have granted Sherwin-Williams’ motion for judgment notwithstanding the verdict.

Kitchens along with Chandler and King (and Randolph joining in part– which part he does not say) concur.  Interestingly, the Pierce opinion refers to Kitchens’s opinion as a dissent, which it is not.  The Kitchens opinion states:

To prevail on a product liability claim, the plaintiff must provide sufficient evidence of product identification, exposure, and proximate cause. Monsanto Co. v. Hall, 912 So. 2d 134, 136 (Miss. 2005) (citing Miss. Code Ann. § 11-1-63 (Rev. 2002)). The plurality opinion reverses the verdict for the plaintiff and renders judgment in favor of the defendant, finding the evidence of exposure and proximate cause to have been speculative and unreliable. Respectfully, I cannot join that analysis. While I agree that a judgment in favor of the defendant is warranted, it is because of the failure of the plaintiff’s proof of product identification.

This case has very interesting ramifications.

FIrst it is probably a fatal blow to the lead paint cases.

More importantly, the Court has been wildly inconsistent in cases about scientific proof, often using language suggesting its all for the jury to sort out, or all a matter of trial court discretion.  The Pierce opinion has a lot more bite than that.

Will the obvious consequences of this play out into other areas– will this result also be applied to, say, bite mark evidence in criminal cases?  (In a criminal case the logic that lead the court to render here would support a double jeopardy bar for insufficiency of the evidence).


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