The 2007 Supreme Court Decision:

In June 2003, Jefferson County Circuit Court Judge Lamar Pickard granted Sherwin-Williams summary judgment in a lead paint case (Pollard v. Sherwin-Williams). The Mississippi Court of Appeals affirmed. But on February 15, 2007, the Miss. Supreme Court reversed and remanded the case for trial in a 5–4 decision.

Here is the Court’s 2007 opinion. In reversing the trial court, the Court relied in part on the report of Plaintiff’s expert Dr. John Rosen. Justice Randolph wrote the 2007 majority opinion. Chief Justice Smith dissented, arguing that there was no evidence of product identification. Justices Carlson, Dickinson and Easley joined the dissent.

The 2011 Supreme Court Decision:

The trial was in the Summer of 2009 and resulted in a $7 million jury verdict. Sherwin-Williams appealed. On Thursday the Mississippi Supreme Court issued an opinion reversing the verdict and rendering the case in favor of Sherwin-Williams. Here is the Court’s 2011 opinion.

On appeal, Sherwin-Williams argued that Plaintiff’s expert opinions on causation (including Dr. Rosen) were unreliable under a Daubert analysis. The Court agreed. 

Interesting language from the Court’s opinion includes:

  • “The plaintiff’s experts seemingly contradict each other and themselves.”
  • “it is difficult to determine whether Lidsky’s opinion in the case is, proverbially, a chicken or an egg.”
  • “Dr. Lidsky was, essentially, leaning on Dr. Rosen’s theory of causation, who was leaning on Dr. Lidsky’s theory of injury, who was leaning on Dr. Rosen’s theory of causation…ad infinitum.”

Justice Pierce wrote the Court’s opinion. Justice Kitchens wrote an opinion concurring in result only and was joined by Justices Chandler, King and Randolph (in part). Justice Kitchens asserted that Sherwin-Williams should win because there was no proof of product identification.

Nine lawyers represented Sherwin-Williams on the appeal, including Wayne Drinkwater, Luther Munford, John Corlew and other lawyers with their firms. Plaintiff’s attorneys were Porter & Malouf of Ridgeland, Michael Casano of Gulfport and Dennis Sweet of Jackson.

My Take:

In retrospect, it’s easy to say that the Court should have affirmed summary judgment in 2007. Lord knows that’s got to be what Judge Pickard thinks. But the reality is that the differing standards of review in summary judgment and Daubert make it possible that the Court was right both in 2007 and 2011.

This case was a plaintiff lawyer’s worst nightmare and and dream case for defense lawyers. On the plaintiff side, if you are going to lose a big and expensive case like this, you want it to be early—like in 2003 when Judge Pickard granted summary judgment. That saves you a ton of time and money.

Defense lawyers benefit when the reverse happens. This case had a big trial and was at the Supreme Court and Court of Appeals a total of three times. With all the experts involved, I bet Sherwin-Williams had $3–5 million in this case.   

It was interesting that Justices Carlson and Dickinson did not join the concurrence, which seemed to be based on the same reasoning as their dissents in 2007. If they had joined the concurrence, then the concurrence would have been the majority opinion and the case would have gone down on product identification instead of Daubert.

The significance of this is that the case would have little—if any—precedent value because product i.d. was such a basic element of the case. A Daubert opinion has the potential to be more in play in future cases.