Court orders trial in case versus Sherwin-Williams

Lead paint can be found in some older homes and rundown housing.
JACKSON, Miss. (AP) -- The Mississippi Supreme Court has ordered a trial of a lawsuit in which a mother and her son accuse Sherwin-Williams Co. of making the lead paint that made the boy sick.
The suit was filed in 2000 in Jefferson County Circuit Court by Shermeker Pollard of Fayette on behalf of herself and her son, Trellvion Gaines, who was then 9. A judge dismissed the case against the Cleveland-based paint maker in 2003.
The Supreme Court, in a 5-4 decision on Thursday, said the trial judge was wrong to rely on a report of a special master to determine that the case should be dismissed. A special master is hired by a court to evaluate evidence and determine the validity of the plaintiffs' claims.
The company, which has faced mounting lead-paint lawsuits across the country, said it was on solid legal ground. "The company will continue to vigorously defend itself as we believe the facts and the law support our case," company spokesman Mike Conway said Friday.
The family's lawyer, Tim Porter of Jackson, said Friday that the family believes there is "enough evidence for the jury to find this minor was injured from lead-based paint manufactured by Sherwin-Williams."
Porter said the family was excited about getting the chance to go to trial. "It's been pending a long time and we've been through years of litigation so far," Porter said.
Claims
In the lawsuit, the family claims Trellvion Gaines ingested lead paint chips while staying in the house where his grandmother, Doris Gaines, has lived since the 1970s.
Lead paint was banned in the United States in 1978, but can be found in some older homes and rundown housing.
Doris Gaines said she and another person painted the house four times between 1974 and 1994.
The lawsuit claims the boy was exposed to lead dust and chips from sanding, scraping and other steps required by Sherwin-Williams to remove the lead paint from the house before non-lead based paint could be applied.
Justice Michael Randolph, writing for the majority, said the court record showed 83 percent of the paint chips from the home contained lead and the boy may have ingested paint residue containing lead.
"The fact that Sherwin-Williams denied manufacturing and marketing paint containing lead at the time of his exposure, despite evidence to the contrary, merely creates an issue for a jury to resolve," Randolph said.
In a dissent, Chief Justice Jim Smith, joined by three other justices, said there was no evidence to support the claims that, prior to 1970, the house was painted with Sherwin-Williams lead-based paint. He said the only evidence was from a minister who said he was told the house was painted with lead-based paint.
Smith said the court record showed Gaines didn't move into the house until 1978, so she could not have painted it in the early 1970s.
No proof?
He said the plaintiffs have no paint cans or labels to prove that Sherwin-Williams lead-containing paint was applied to the home.
"Further, and more importantly, the undisputed facts show that Sherwin-Williams had removed lead pigments from all of its interior residential paint by 1955 and from all interior and exterior residential paint by no later than 1973. None of Sherwin-Williams' residential paint formulas ... dated June 1, 1973, through December 31, 1978, contained any lead ingredient," Smith said.