Simply poking holes in a defense expert’s analysis may be all you need to do to get your product liability case to a jury, at least in one state. Let’s hope this ruling is not a contagious trend.
In a recent product liability lawsuit stemming from the alleged ingestion of lead paint, the Mississippi Supreme Court has overturned a lower court’s decision to enter summary judgment for Sherwin-Williams, the defendant in the case. The case, Banks ex rel. Banks et al. v. Sherwin-Williams Co., No. 2012-CA-00880-SCT, 2014 WL 172121 (Miss. Jan. 16, 2014), was based on the allegation that five children ingested lead paint during their time at a Boliver County Head Start facility in the 1990’s. The plaintiffs claimed that playground equipment at the facility contained lead paint sold by Sherwin-Williams, which caused increased levels of lead in their bloodstream, resulting in injuries such as developmental deficiencies.
To prove their claim, the plaintiffs relied on evidence that between 1986 and 1991, Sherwin-Williams sold six gallons of red, yellow and orange lead paint to Boliver County Head Start. A later analysis of the paint on the playground showed red, green and yellow lead paint was present on the playground equipment at issue. Additionally, a former business manager for the facility testified that 99% of the paint used was purchased from Sherwin-Williams, and a former janitor testified to personally applying the lead paint to the equipment.
To counter the plaintiff’s allegations, Sherwin-Williams raised significant questions as to the credibility of the witnesses’ testimony, and produced an expert witness whose testimony showed that the chemical composition of the lead paint found at the facility did not match the paint formulas used by Sherwin-Williams.
The plaintiffs countered with their own expert witness, who did not perform any tests of his own, however did assail the credibility of the Defendant’s expert witness, claiming that his technique lacked any estimate of error, his work was not subject to peer review, and the results could not be tested.
Despite the lower court’s ruling of summary judgment in favor of Sherwin-Williams on the grounds that the plaintiffs failed to identify Sherwin-Williams’ paint as the product that caused their injuries, the Mississippi Supreme Court held that in light of all the evidence, a jury could reasonably infer that the paint at the facility came from Sherwin-Williams.
Relying on the rule that it is the duty of the jury, not the court, to weigh the credibility of witnesses, the Mississippi Supreme Court found that issues of material fact still existed, even despite the expert witness testimony claiming that the paint at the facility did not match the formula used by Sherwin-Williams.
In light of this ruling, litigators should be aware that having an expert witness simply refute an opposing party’s expert witnesses’ techniques and opinions, instead of performing any tests of his or her own, may be enough to defeat summary judgment in certain courts. While all cases hinge on their individual facts, the Mississippi Supreme Court has outlined the standard of evidence necessary for a case to go to the jury, and the standard does not appear to be overly stringent. The ruling in this case could also signal a move toward using expert witnesses simply to refute the findings of the opposing expert, without actually completing any scientific analysis. This is a dangerous trend as it is relatively simple to criticize an expert witness’ techniques or findings without completing comprehensive, independent tests. It will be important to assess if this is a trend that continues, or is simply a case-specific aberration.