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).
I am still trying to figure out what a trial court is supposed to take away from this decision.
Why exactly did the experts’ testimony fail to offer proof as to causation? Was it because the plaintiffs’ experts contradicted one another? Was it because their reasoning was circular (baseline IQ must’ve been higher b/c Gaines was poisoned, and we know he was poisoned because of his IQ)?
I would have liked a clearer analysis in the opinion. As it stands, the defense bar will cite it as the all-purpose expert destroyer, and the plaintiff bar will distinguish it because *all* of the factors present in this case will not be present in 99.9% of future cases.
In my experience, it is routine for judges to defer ruling on Daubert, instead of considering challenges to the expert testimony in the pretrial time frame. Unfortunately, this allows a jury to hear testimony that may not have withstood the daubert challenge, had it been heard when initially filed.
Anderson: From where did you get an impression that the court’s Daubert decisions were suddenly going to become coherent?
Opposing an expert, I’d try to cite it as an all-purpose expert destroyer. As a plaintiff’s lawyer, I’d probably note that it’s a 4 vote opinion (with 4 others saying the expert analysis is wrong) and thus of limited value. Although I’d assume Lamar would have made Pierce’s opinion a 5 vote one if she’d not sat it out.
PHD, I don’t think there’s any valid excuse for Daubert motions not to be heard before trial. Too busy, judge? Get another job then.
But until the MSSC mandates it, it won’t happen in some venues.
… A guy can dream, can’t he, NMC? It’s not like I’m embracing the “supernatural.”
Whatever the litigants may argue about this decision, the court in Gulf South v. Pitre began to clarify that an expert cannot base his opinion simply upon experience. My goodness, how can that be cross-examined or tested? Yet, there have been many times when an expert opines about a matter simply because his vast years of experience allows him to conclude XYZ.
Moreover, I do not have sympathy for judges who defer rulings until trial. The parties deserve better.
That whole close of Pierce’s opinion, about what does or does not create a jury issue, is really bizarre. Does he really mean to say that testimony that is “incredible” still creates a jury issue?
Here’s the evidence: One witness said a back porch was painted with Sherwin Williams lead paint in the 30s. That back porch was torn down before the plaintiff was born. One witness said that she asked the store for Sherwin Williams lead paint, and so assumed she got it but did not read the label. One witness said he thought the paint was lead because it covered in one coat. The final witness said that he bought and used lead paint in the late 70s and remembered it was Sherwin Williams the words “lead paint” on the labels; he made an affidavit earlier stating that he knew neither the brand nor whether the paint was lead.
I’ll assume (the Pierce opinion does not say) that the last impeached witness is the straw on which a jury issue rests. The Kitchens opinion quotes language noting that, at trial, judges “are allowed to disregard or instruct against incredible or unreliable testimony…” (note 23).
I’m curious what folks think. This seems a close one.
Does not seem close to me based upon your (NMC’s) recitation. Based upon what I read, none of those witnesses could credibly testify it was SW paint.
I am confused by this opinion.
Justice Kitchens and two other justices (and maybe Randolph) think an appellate court can decide to disregard the factual determination of a jury based on a witness who has been “substantially impeached” ??!!!!
This seems an amorphous and unfettered rule.
Heck I thought
Kitchens was/is the keeper of the flame on the sacrosanctiness of jury verdicts