Miss. Supreme Court to Hear Lead Paint Liability Appeal

September 6, 2006

The Mississippi Supreme Court has agreed to hear the appeal of a mother and son who lost a lawsuit that claimed Sherwin Williams Co. was responsible for 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.

The issue before the Supreme Court is whether Gaines and Pollard waited too long to file their lawsuit. There is no timetable for the justices to decide the case.

However, their decision could affect other cases involving underage plaintiffs, said Timothy Porter, an attorney who represents Pollard and Gaines.

“This case is important because it will determine how the courts will apply the minor savings statute, and when the statute will run against the minor,” Porter said.

A trial judge ruled in favor of the Cleveland, Ohio-based paint manufacturer in June 2003.

Sherwin Williams contended that Gaines knew about Trellvion’s alleged injuries in 1994 and had only until 1997 to pursue the lawsuit under Mississippi’s statute of limitations.

The state Court of Appeals upheld the lower court decision in 2005, siding with the paint manufacturer.

“They indicated that the mother had learned that Trellvion had been exposed to lead paint in 1994 when one of his elevated blood level tests was taken. The mother would have had three years to file her individual claim from the date she knew she had injury,” Porter said of the appeals court ruling.

However, Porter believes the statute of limitation still covers Trellvion.

“Generally speaking, you have three years from the date that a guardian was appointed. In this case, his mother was appointed guardian on the same date that the lawsuit was filed,” Porter said.

The statute of limitation issue is not one lawyers in other states often face when litigating lead poisoning cases, said attorney Neil Leifer of Boston, who has argued several cases against the paint manufacturing industry.

“When it comes to kids in most states, in particular in the states in which I work, the statute doesn’t begin to run until the child reaches the age of maturity,” Leifer said.

In the Gaines lawsuit, the plaintiffs allege Trellvion ingested lead paint chips while living in a house that had been occupied by Gaines’ mother, Doris Gaines, 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 claimed that she and another person painted the house four times between 1974 and 1994.

The lawsuit alleged that “Trellvion was exposed to lead dust, chips, and other debris which resulted from the sanding, scraping, and other removal of lead paint from the house, which occurred based on the required procedure for application of Sherwin Williams’ non-lead based paint.”

The suit also alleged that Trellvion became sick from his exposure to the lead paint and that Pollard suffered mental anguish in addition to the medical expenses for the child.

The suit charged that Sherwin Williams was liable due to the company’s negligence and fraudulent misrepresentation.

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