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From Products Liability Law Daily, January 17, 2014

Issue of product identification in playground lead paint case should be decided by jury

By John W. Scanlan, J.D.

A Mississippi trial court should not have granted summary judgment to a paint manufacturer on allegations that its lead paint was used to paint playground equipment, resulting in elevated blood lead levels in children that played on it, the Supreme Court of Mississippi held. There was an issue of material fact as to product identification, and a jury should decide issues of fact (Banks v. Sherwin-Williams Co., January 16, 2014, Coleman, J.).

Background. In 1985, Bolivar County Head Start, located in Rosedale, Mississippi, hired a company to sandblast their playground equipment to remove the old paint and repaint it, and all parties agree that paint without lead was used at that time. Between 1986 and 1991, Sherwin-Williams sold six gallons of red, yellow, and orange lead paint to Head Start, although there was no direct evidence where this paint was used. Testing by the Mississippi Department of Environmental Quality in 2000 found lead paint on playground equipment painted red, green, yellow, along with equipment painted in “many colors” or unspecified colors.

Bre’Annah Banks, Ladarius Harp, Kimberly Norris, Zerlanzeia Lambouths, and Lakedrick Reed were minor children who attended the Bolivar County Head Start in the early 1990s. Blood testing during that time revealed they had blood levels of 15 to 19 micrograms per deciliter. They brought suit in a Mississippi trial court against Sherwin-Williams and other defendants, alleging that the company sold paint containing lead to the Bolivar County Head Start that was used to paint the playground equipment, and exposure to this equipment caused their elevated blood lead levels, resulting in injury to them.

Head Start’s business manager testified that it got 99 percent of its paint from Sherwin-Williams, but admitted he did not know where all of it was purchased, although he was almost certain that all playground equipment paint before 1991 was from Sherwin-Williams. Head Start’s director of field operations testified that it used Sherwin-Williams’ paint for a lot of different products, but that it also used paint from three other stores. The former janitor stated in an affidavit that he bought paint from the Sherwin-Williams store and painted the equipment with it after 1985 but before he quit in 1990, but there were inconsistencies in his statement, including that the lead paint was non-gloss and water-based, whereas in fact it was gloss paint and oil-based. Sherwin-Williams’ expert stated that his chemical analysis showed that the chemical composition of the paint on the equipment did not match Sherwin-Williams’ paint, but the plaintiffs’ expert raised questions about Sherwin-Williams’ expert’s methodology and asserted that the analysis did not support his conclusion.

The trial court granted Sherwin-Williams’ motion for summary judgment on the ground that the plaintiffs had failed to establish product identification. The court stated that there was no evidence that the six gallons of lead paint Sherwin-Williams sold to Head Start ended up on the playground equipment, and that the plaintiffs were asking the court to engage in speculation. The plaintiffs appealed.

Product identification. The Mississippi Supreme Court reversed and remanded the trial court’s decision, finding that the plaintiffs had raised a “reasonable inference” that the playground equipment was painted with lead paint from Sherwin-Williams. The plaintiffs produced circumstantial evidence that, taken in the light most favorable to the plaintiffs, showed that there was no lead paint on the equipment after the stripping and repainting in 1985, that only Head Start employees painted the equipment, that they used paint only from Sherwin-Williams, and that the equipment tested positive for lead in 2000. Although the court observed that the company had “done an excellent job” in producing evidence contradicting the plaintiffs’ evidence that lead paint on the playground equipment came from the Sherwin-Williams store in Cleveland, Mississippi, this merely had the effect of raising doubt that summary judgment was appropriate. Because a jury still could reasonably infer that lead paint from Sherwin-Williams was on the equipment, there was a factual dispute that had to be decided by a jury rather than by a court on a motion for summary judgment.

The case number is 2012-CA-00880-SCT.

Attorneys: Mark W. Davis (Davis & Crump, P.C.) for Bre'Annah Banks. Margaret Oertling Cupples (Bradley Arant Boult Cummings LLP) and John G. Corlew (Corlew Munford & Smith PLLC) for Sherwin-Williams Co.

Companies: Sherwin-Williams Co.

MainStory: TopStory SCLIssuesNews DefensesLiabilityNews ChemicalNews MississippiNews

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