Shermeker Pollard v. Sherwin-Williams Company ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CT-02030-SCT
SHERMEKER POLLARD AND TRELLVION
GAINES, A MINOR, BY AND THROUGH HIS
NATURAL MOTHER, LEGAL GUARDIAN, AND
NEXT FRIEND, SHERMEKER POLLARD
v.
SHERWIN-WILLIAMS COMPANY
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/08/2003
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: MICHAEL CASANO
JOHN TIMOTHY GIVENS
TIMOTHY W. PORTER
PATRICK MALOUF
ATTORNEYS FOR APPELLEE: KATHERINE A. SMITH
JOHN G. CORLEW
PAUL MICHAEL POHL
RICHARD H. DEANE
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 02/15/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. The plaintiffs originally filed suit against The Sherwin-Williams Company (“Sherwin-
Williams”); NL Industries, Inc.; Martin Floor Covering; Robert Case, individually; Fayette
Lumber and Supply Co.; William Darsey, individually; Darsey Hardware Co.; Darsey
Hardware and Furniture Co.; and Hirsh’s Store, alleging that Trellvion Gaines (“Trellvion”)
had been seriously injured by ingesting lead found in paint. Sherwin-Williams is the only
defendant in this appeal. Plaintiffs assert liability against Sherwin-Williams by virtue of
exposure to Sherwin-Williams-brand paint containing lead and Sherwin-Williams’ failure
to warn of the dangers caused by scraping paint containing lead in preparation for the
application of non-lead paint. The circuit court granted summary judgment in favor of
Sherwin-Williams when it adopted the “Report and Recommendation” of a special master.
The Court of Appeals affirmed the dismissal solely on the statute of limitations issue. In
granting the plaintiffs’ petition for writ of certiorari, this Court now considers whether the
“minor saving statute” should apply and, if so, whether Sherwin-Williams was otherwise
entitled to summary judgment. After due consideration, this Court reverses the judgment of
the Court of Appeals and the circuit court’s blanket grant of summary judgment, finding that
genuine issues of material fact exist as to numerous claims. Therefore, this case is remanded
to the trial court for further proceedings in accordance with this opinion.
FACTS
¶2. Trellvion alleges cognitive deficiencies were caused by exposure to paint containing
lead in a home built in the 1930s in Fayette, Mississippi. In December of 1978, the home
was purchased by Johnny Crawford. In 1979, Doris Gaines, Trellvion’s maternal
grandmother, moved into the home. By the mid-1980s, Shermeker Pollard, Gaines’
daughter, was also living in the home. In 1991, Pollard gave birth to Trellvion. From birth
until the home was substantially destroyed by fire on June 4, 1994, Trellvion lived in the
home.
2
¶3. Reverend Martin Lias swore that in the early 1930s, he observed the house being
painted with white Sherwin-Williams brand paint.1 Reverend Lias further swore that it was
“lead paint” because “[t]he people that were painting [the house]” told him that.2 According
to Gaines, the exterior and interior of the house had been painted white before she moved in
with Crawford. Thereafter, the house was painted by Gaines and Vernon Collier, a local
house painter, on numerous occasions between 1979 and 1994. According to Gaines, the
home was painted once in the late 1970s, twice in the 1980s, and once in the early 1990s.
¶4. Gaines swore that she and Collier painted the entire inside and outside of the home
in the late 1970s, using Sherwin-Williams “lead paint” purchased at Darsey’s Hardware in
Fayette, Mississippi, along with white exterior “lead paint” which Crawford had at the house.
Crawford swore that he had previously purchased ten to fifteen gallons of white Sherwin-
Williams “lead paint.” Gaines stated the paint she purchased was Sherwin-Williams “lead
paint,” because that is what she specifically asked for, that is what the label provided, and
“[it’s] the only paint [she] ever bought.” She ordered the paint and Collier picked it up. By
affidavit, Collier swore he used “lead containing . . . Sherwin-Williams paints [he] had
purchased from Darsey’s Hardware” on the Crawford home.3 Collier asserted that his
1
Specifically, he stated that “I was down there talking with the boys, and I liked to
knocked [sic] the bucket over with the little paint in it and picked it up and looked at it. It
was Sherwin-Williams paint.”
2
The special master did not abuse his discretion in treating this testimony as
inadmissible hearsay.
3
Collier did equivocate somewhat on cross-examination in a deposition. However,
on direct examination in the same deposition, he confirmed verbatim statements from his
affidavit.
3
opinion that the paint contained lead was based upon personal painting experience.
Specifically, he stated that “[l]ead is a hardener” and in cleaning up the paint on this project,
“[i]t wasn’t like the regular other paints when . . . you wipe it and the paint come right on the
rag.” Gaines said the exterior was painted white, the kitchen was painted blue, and the
remainder of the interior was painted pink.
¶5. As to the first 1980s painting, Gaines stated that she and Collier painted the dining
room blue, her bedroom pink, and the interior doors white. This “lead paint” was purchased
from Porter’s in Natchez, although Gaines could not identify the brand of paint.
¶6. Regarding the second 1980s painting, Gaines stated she and Collier painted the den,
the interior doors, and frames using Sherwin-Williams brand “lead paint” purchased at the
Sherwin-Williams store in Natchez, and she knew the “lead paint” was Sherwin-Williams
brand, “because that’s what [she] asked for.” This testimony was corroborated by her sister,
Mildred. Additionally, Collier stated that the bathroom was painted green on this occasion,
although he could recall no other details about the paint used.
¶7. Gaines swore that, for the early 1990s painting, she sent Collier to Fayette Lumber
and Supply to pick up white and candy stripe colored “lead paint” for the bay windows, but
she could not identify a brand. Collier’s affidavit provided that:
even around 1991, I purchased for use, and painted on the house where
Trellvion was living when he was diagnosed with lead poisoning, some Dutch
Boy, Sherwin-Williams paints and other paints, some of which I believe
contained lead, and which were purchased from Darsey’s Hardware, Hirsch’s
Hardware and Fayette Lumber and Supply . . . .
Collier’s and Mildred Gaines’ deposition testimony was that Sherwin-Williams brand paint
was used during this project.
4
¶8. During the painting project in the early 1990s, Trellvion was an infant. Gaines
observed Trellvion eating paint chips that were “swept to the side” during the project. In
September of 1993, blood tests confirmed that Trellvion had been excessively exposed to
lead.
¶9. On November 28, 2000, the Chancery Court of Jefferson County, Mississippi,
appointed Pollard as Trellvion’s legal guardian for the purpose of asserting the present
action. That same day, Pollard filed a complaint in the Circuit Court of Jefferson County,
Mississippi, against Sherwin-Williams and the other initial defendants on behalf of herself
and Trellvion. Pollard and Trellvion subsequently filed two amended complaints alleging
that Sherwin-Williams was liable for damages caused by Trellvion’s exposure to “lead paint”
and “lead paint” residuum based on strict liability, negligence, fraudulent concealment, and
misrepresentation. The second amended complaint specifically provided that:
13. In connection with his exposure to an environment containing Defendants’
lead during the “exposure period,” the minor, Plaintiff, Trellvion Gaines,
inhaled or otherwise came into contact with injurious amounts of Defendants’
lead, having neither knowledge nor reason to believe that the Defendants’ lead
which he was living with, near or around was dangerous.
14. The minor plaintiff was also exposed to lead dust, chips and other debris
which resulted from the scraping, sanding and other removal of lead paint from
his dwelling which occurred during the required procedure for application of
defendants’ non-lead based paints.
As a result thereof, the second amended complaint alleged that Trellvion:
has suffered physical and mental pain and anguish, other mental damages, loss
of wage earning capacity and will continue to sustain damages of the above
type in the future including, but not limited to, physical and mental pain and
anguish, other mental and psychological damages, intellectual, cognitive, and
behavioral injury, disability, future medical expenses and loss of the
enjoyment of life.
5
Moreover, the second amended complaint alleged that Pollard “has suffered mental pai[n]
and anguish in addition to expenses for medical treatment of [Trellvion], expenses in
traveling to and from medical treatment for [Trellvion], other monetary, mental and
emotional damages and injuries and . . . will continue to sustain damages of the above type
in the future . . . .”
¶10. After the parties agreed to the appointment of a special master, Sherwin-Williams
filed its motion for summary judgment. On May 5, 2003, the “Special Master’s Report and
Recommendation” recommended granting Sherwin-Williams’ motion for summary
judgment. The June 11, 2003 order of the circuit court adopted the “Special Master’s Report
and Recommendation” and granted Sherwin-Williams’ motion for summary judgment.
Thereafter, a motion to reconsider was denied and the final judgment of the circuit court
dismissed the case with prejudice.
¶11. Before the Court of Appeals, the plaintiffs raised numerous issues, claiming that the
circuit court erred in dismissing their claims with prejudice. The issues included:
([1]) whether the trial court erred in finding that Sherwin-Williams owed no
duty to warn under Mississippi law of the dangers associated with surface
preparation on its non-lead-based paint cans when it was foreseeable that lead
paint may be scraped off in preparation for applying non-lead-based paint;
([2]) whether the trial court erred in finding that state common law was
preempted by the Federal Hazardous Substance[s] Act; ([3]) whether the trial
court erred in finding that Sherwin-Williams’s lead-based paint was not
defectively designed; and ([4]) whether the trial court erred in finding that
Pollard[’s] . . . claims were barred by the statute of limitations.
Pollard v. Sherwin-Williams, 2005 Miss. App. LEXIS 622, at *3-4 (Miss. Ct. App. 2005).
In affirming the circuit court, the Court of Appeals considered only the statute of limitations
6
issue. After their motion for rehearing was denied by the Court of Appeals, the plaintiffs
filed a petition for writ of certiorari with this Court. This Court granted the petition.
STANDARD OF REVIEW
¶12. “The Supreme Court’s review on the grant of certiorari shall be conducted on the
record and briefs previously filed in the Court of Appeals and on any supplemental briefs
filed.” Miss. R. App. P. 17(h). The trial court’s grant of a motion for summary judgment is
reviewed by this Court de novo. See Wilner v. White, 929 So. 2d 315, 318 (Miss. 2006).
¶13. The Mississippi Rules of Civil Procedure provide summary judgment “shall be
rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Miss.
R. Civ. P. 56(c) (emphasis added). The Comment states that Miss. R. Civ. P. 56 “provides
the means by which a party may pierce the allegations in the pleadings and obtain relief by
introducing outside evidence showing that there are no fact issues that need to be tried.”
(Emphasis added). Conversely, the Comment provides that “summary judgment is not a
substitute for the trial of disputed fact issues. Accordingly, the court cannot try issues of fact
on a Rule 56 motion; it may only determine whether there are issues to be tried. . . . [I]t
cannot be used to deprive a litigant of a full trial of genuine fact issues.” (Emphasis added).
In Daniels v. GNB, Inc., 629 So. 2d 595 (Miss. 1993), this Court addressed its review of a
granted motion for summary judgment as follows:
[i]n our de novo review, this Court:
7
looks at all the evidentiary matters before [us] – admissions in
pleadings, answers to interrogatories, depositions, affidavits, etc.
The evidence must be viewed in the light most favorable to the
party against whom the motion has been made. If, in this view,
the moving party is entitled to judgment as a matter of law,
summary judgment should forthwith be entered in his favor.
Otherwise, the motion should be denied. Issues of fact sufficient
to require denial of a motion for summary judgment obviously
are present where one party swears to one version of the matter
in issue and another says the opposite. In addition, the burden
of demonstrating that no genuine issue of fact exists is on the
moving party. That is, the non-movant would be given the
benefit of the doubt.
[Mantachie Natural Gas District v. Mississippi Valley Gas Company, 594 So.
2d 1170, 1172 (Miss. 1992)]. . . . Furthermore, in Mink v. Andrew Jackson
Casualty Co., 537 So. 2d 431, 433 (Miss. 1988) [citing Ratliff v. Ratliff, 500
So. 2d 981 (Miss. 1986)], this Court said:
[a]ll motions for summary judgment should be viewed with
great skepticism and if the trial court is to err, it is better to err
on the side of denying the motion. When doubt exists whether
there is a fact issue, the non-moving party gets its benefit.
Indeed, the party against whom the summary judgment is sought
should be given the benefit of every reasonable doubt.
[Id.] at 433. A motion for summary judgment should be overruled unless the
trial court finds, beyond any reasonable doubt, that the plaintiff would be
unable to prove any facts to support his claim. McFadden v. State, 580 So. 2d
1210 (Miss. 1991). If facts are in dispute, it is not the province of the trial
court to grant summary judgment thereby supplanting a full trial with its
ruling. “Accordingly, the court cannot try issues of fact on a Rule 56 motion;
it may only determine whether there are issues to be tried.” Brown v. Credit
Center, Inc., 444 So. 2d 358, 362 (Miss. 1983) . . . .
Daniels, 629 So. 2d at 599 (emphasis added).
8
ANALYSIS
I. Whether the circuit court erred in dismissing Pollard’s claims on
the basis of the statute of limitations and, separately, whether the
Court of Appeals erred in holding that the statute of limitations
had run in an action where a minor child was an injured party? 4
¶14. The plaintiffs argue that the statute of limitations of Miss. Code Ann. § 15-1-49 (Rev.
2003) is tolled by the “minor savings statute,” Miss. Code Ann. § 15-1-59 (Rev. 2003), until
the minor achieves majority. By contrast, Sherwin-Williams urges this Court to affirm the
exception adopted by the Court of Appeals. The Court of Appeals held that Miss. Code Ann.
§ 15-1-59 was inapplicable “since these claims were filed on behalf of [Trellvion] by and
through his natural mother, legal guardian, and next friend . . . .” Pollard, 2005 Miss. App.
LEXIS, at *7, n. 2.
¶15. The applicable statute of limitations is provided by Miss. Code Ann. § 15-1-49(1),
which states:
(1) [a]ll actions for which no other period of limitation is prescribed shall be
commenced within three (3) years after the cause of such action accrued, and
not after.
Miss. Code Ann. § 15-1-49(1).
¶16. However, as to Trellvion’s claims, this section must be read in conjunction with Miss.
Code Ann. § 15-1-59, the “minor saving statute,” which provides:
4
Sherwin-Williams argued only that Pollard’s claims were barred by the statute of
limitations and the special master concluded only that “[t]he statute of limitations bars
Shermeker Pollard’s claims.” (Emphasis added). Nonetheless, the Court of Appeals ruled
that Trellvion’s claims were barred by the statute of limitations, an issue not before that
court, thus requiring the expansion of this issue.
9
[i]f any person entitled to bring any of the personal actions mentioned shall,
at the time at which the cause of action accrued, be under the disability of
infancy or unsoundness of mind, he may bring the actions within the times in
this chapter respectively limited, after his disability shall be removed as
provided by law. However, the saving in favor of persons under disability of
unsoundness of mind shall never extend longer than twenty-one (21) years.
Miss. Code Ann. § 15-1-59 (Rev. 2003).
¶17. Both statutes refer to the accrual date of the cause of action. This Court has
determined that “the cause of action accrues and the limitations period begins to run when
the plaintiff can reasonably be held to have knowledge of the injury or disease.” Schiro v.
American Tobacco Co., 611 So. 2d 962, 965 (Miss. 1992) (quoting Owens-Illinois, Inc. v.
Edwards, 573 So. 2d 704, 709 (Miss. 1990)). In September of 1993, blood lead lab tests
confirmed significantly elevated readings of lead, indicative of excessive exposure to lead.
As such, Trellvion’s cause of action accrued no later than September of 1993. As Pollard’s
claim is derivative, her cause of action accrued no later than September of 1993. As the
original complaint was not filed until November 28, 2000, the three (3) year statute of
limitations applicable to Pollard’s claims had already expired. However, because Trellvion
was a minor at the time his cause of action accrued,5 his claims are tolled by Miss. Code Ann.
§ 15-1-59.
¶18. While the scope of Miss. Code Ann. § 15-1-59 has been limited,6 there is no
applicable law denying Trellvion protection afforded by the aforementioned statute. In
5
Trellvion was only two (2) years old in September of 1993.
6
For example, Miss. Code Ann. § 15-1-59 applies only to the limitations of actions
found within Chapter 1, Title 15 of the Mississippi Code. See Cole v. State, 608 So. 2d
1313, 1316 (Miss. 1992).
10
Taylor v. General Motors Corp., 717 So. 2d 747 (Miss. 1998), this Court recognized the
protection afforded by Miss. Code Ann. § 15-1-59 when a father represented his own
interests and those of his minor son. See id. at 750. In Taylor, the father and son were
involved in a car wreck and a Louisiana attorney was hired to represent them both. See id.
at 747. The lawsuit was filed against the automobile company and an insurer three (3) days
prior to the expiration of the three (3) year statute of limitations, but was ultimately
dismissed. See id. at 747-50. On appeal, this Court affirmed the dismissal with the caveat
that:
the dismissal is without prejudice as to the claim of Taylor’s minor son,
against whom the statute of limitations, pursuant to Miss. Code Ann. § 15-1-59
(1995), does not begin to run until the son attains his twenty first birthday.
The minor’s claim remains viable for the time period should a determination
be made to pursue the same.
Id. at 750 (emphasis added).
¶19. “The purpose of the savings statute is to protect the legal rights of those who are
unable to assert their own rights due to disability.” United States Fid. & Guar. Co. v.
Melson, 809 So. 2d 647, 653 (Miss. 2002) (quoting Rockwell v. Preferred Risk Mut. Ins.
Co., 710 So. 2d 388, 391 (Miss. 1998)). As Trellvion was a minor at the time his cause of
action accrued, as well as at present, his claims are tolled by the “minor saving statute” and
not barred by Miss. Code Ann. § 15-1-49. Therefore, the Court of Appeals erred in barring
Trellvion’s claims.
11
II. Whether the circuit court erred in granting Sherwin-Williams’
motion for summary judgment?
¶20. The special master’s “Report and Recommendation,” adopted in its entirety by the
circuit court, contains numerous conclusions of law, based upon disputed facts. Specifically,
the report finds multiple “undisputed facts,” restating nearly verbatim Sherwin-Williams’
“Itemization of Not Genuinely Disputed Facts.” This is despite Trellvion’s “Objections to
Defendants Itemization of Facts” (“Objections”) controverting material facts, supported by
sworn affidavits and deposition testimony, as required by the Mississippi Rules of Civil
Procedure. See Daniels, 629 So. 2d at 599 (“[i]n order for there to be genuine issues of
material fact, the affidavits and other evidence must be sworn, made upon personal
knowledge, and show that the party providing the factual evidence is competent to testify.”).
¶21. The special master’s report recites such “undisputed fact[s]” as “[n]one of Sherwin-
Williams Company brand residential paint formulas for white, blue, pink, or grey paints
dated June 1, 1973 through December 31, 1978 contained any lead ingredient[,]” that
“Sherwin-Williams Company had stopped selling its brand paints through dealers, such as
Darcy [sic] Hardware, by early 1976[,]” and that “Sherwin-Williams Company residential
paints have a recommended shelf life of three years or less and Darcy [sic] Hardware
maintains only small quantities of paint, which it sold in a matter of weeks.” These
“undisputed facts” were properly controverted by sworn evidence in the form of affidavits
by Drs. Paul Mushak and Roy Dowling, the deposition testimony of Doris Gaines, and the
affidavit and deposition testimony of Johnny Crawford. Additional sworn testimony
disputing the “undisputed facts” can be found in the deposition testimony of Reverend Lias
12
and an expert report penned by John F. Rosen, MD.7 This opposing evidence, when “viewed
in the light most favorable to [Trellvion,]” Mantachie Natural Gas, 594 So. 2d at 1172,
requires acceptance by the trial judge for summary judgment purposes, even though the judge
– in this case, the special master – believes that a jury would reject the non-movant’s version.
Sworn evidence viewed in the light most favorable to Trellvion shows that Crawford’s home
was painted with white Sherwin-Williams paint in the early 1930s and was still painted white
when Gaines moved in with Crawford in 1979; that Sherwin-Williams paint containing lead
was obtained at Darsey Hardware in the late 1970s and 1980s, as both Gaines and Crawford
swore; that both Gaines and Crawford purchased Sherwin-Williams brand paint containing
lead in white, blue, and pink colors and applied it to the interior walls of Crawford’s home;
that paint chips containing lead in white, green, pink, grey, blue, and light blue were found
on the charred walls of the home by ALTEC Environmental Consultants following the 1994
fire; that Trellvion ingested paint chips containing lead; and that injury resulted therefrom.
¶22. Specifically, Reverend Lias swore that in the early 1930s he observed the house being
painted with white Sherwin-Williams brand paint. Gaines gave a sworn statement that the
home was painted white prior to 1979. Furthermore, she swore that in 1979, she purchased
Sherwin-Williams brand paint containing lead in blue and pink colors and painted the interior
of the home therewith, along with white Sherwin-Williams brand paint containing lead which
Crawford claimed he had previously purchased. Dr. Mushak, a “toxicologist and
7
Professor of Pediatrics and Head of the Division of Environmental Sciences at the
Children’s Hospital at Montefiore Medical Center and the Albert Einstein College of
Medicine in Bronx, New York.
13
environmental health scientist specializing in the toxicology and human risk assessment of
environmental metals, especially lead[,]” swore that it is:
highly likely that lead paint at toxic exposure levels would have been available
for purchase by those painting the Gaines home in the 1970s and even later
and that lead paint was applied to the walls of that home in that time period.
That lead paint would have been available for producing lead poisoning in the
Gaines child at the time of the blood lead testing and before.
(Emphasis added). In reaching that conclusion, Dr. Mushak relied on studies from reliable
sources such as the Center for Disease Control, the federal agency for Toxic Substances and
Disease Registry, and the Department of Consumer Protection for the State of Connecticut.8
Gaines observed Trellvion ingesting paint chips “swept to the side” during the early 1990s
painting project. Dr. Roy Dowling, an employee of ALTEC Environmental Consultants,
issued a lead inspection report based upon X-Ray Fluorescence (XRF) readings obtained
from the charred remains of the home’s painted walls. In that report, Dr. Dowling concluded
that “thirty-four (34) of the forty-one (41) samples contained lead-based paint. White, green,
pink, gray, blue, and light blue paint coatings were found to contain lead.” 9 Finally, the
report of John F. Rosen, MD, stated that:
8
For example, Dr. Mushak cites the findings of the Department of Consumer
Protection for the State of Connecticut regarding a report memo to the United States
Department of Health and Human Services “dated September 17, 1985, showing that the
Department found in its investigations that some lead based paint over 22 years old was still
on retail shelves.”
9
This finding, combined with Reverend Lias’ sworn testimony that white Sherwin-
Williams brand paint was used on the home in the early 1930s, creates a genuine issue of
material fact for a jury to decide whether that paint contained lead. This is especially the
case in light of the fact that Sherwin-Williams has proffered evidence that lead pigments
were only removed from all of their interior and exterior residential paint by 1973.
14
with a reasonable degree of medical certainty, Trellvion was excessively
exposed to lead based paint from very early infancy to and through his disease
of childhood lead poisoning. With a reasonable degree of medical certainty,
based upon substantially elevated XRF readings for lead and substantially
elevated concentrations of lead in paint samples analyzed by AAS (ALFEC
Environmental Consultants, Inc.; Dr. Paul Mushak), from accessible household
areas for Trellvion living at his home at 553 Highway, his disease of lead
poisoning was caused by ingestion of lead based paint and leaded dust
therefrom at his home . . . .
On cognitive testing by Dr. T. Lidsky . . . Trellvion was found to have
documented cognitive deficits in visual-spatial-constructional skills and
memory, fine motor skills, visual and auditory attention, verbal fluency, non-
verbal concept formation and cognitive flexibility. With a reasonable degree
of medical certainty, based, in part, on my extensive clinical experience, and,
based, in part, on review of the pertinent literature, Trellvion’s cognitive
deficits were caused by his documented history of childhood lead poisoning.
¶23. Collectively, the sworn testimony of these witnesses, “viewed in the light most
favorable to [Trellvion,]” Mantachie Natural Gas, 594 So. 2d at 1172, creates genuine issues
of material fact regarding the “undisputed facts” adopted by the special master and relied
upon in the dissent. Is it more likely than not, given that eighty-three percent (83%) of the
paint chips contained lead, that Trellvion may have ingested paint residuum 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.
¶24. Furthermore, the special master improperly assessed the credibility of witnesses in
rendering the “Report and Recommendation,” despite his acknowledgment that our law
clearly establishes that such credibility determinations were not within his province.
Specifically, the “Report and Recommendation” provided that:
15
Doris Gaines and Vernon Collier have given contradictory statements. While
it is not the role of a trial judge to judge the credibility of witnesses, the
summary judgment standard does require a credible basis in evidentiary fact
to create a material issue of fact. . . . Mr. Crawford’s . . . affidavits are
directly contradictory. Mr. Crawford’s second affidavit is wholly without
credible and competent fact.
(Emphasis added). The special master was without authority to ignore material, controverted
sworn evidence,10 based upon which seemed more credible, which is not the test for
admissibility or competency. According to Daniels, “[i]n order for there to be genuine issues
of material fact, the affidavits and other evidence must be sworn, made upon personal
knowledge, and show that the party providing the factual evidence is competent to testify.”
629 So. 2d at 599. The testimony of multiple witnesses support a finding for summary
judgment purposes, that Sherwin-Williams-brand paint containing lead was used in the home.
Sherwin-Williams denies such assertions. These factual disputes are best left for a jury. See
Miss. Const. art. 3, Section 31 (“[t]he right of trial by jury shall remain inviolate . . . .”).
Without question, “‘[t]he trial judge who hears the witnesses live, observes their demeanor
and in general smells the smoke of the battle is by his very position far better equipped to
make findings of fact which will have the reliability that we need and desire.’” Amiker v.
Drugs for Less, Inc., 796 So. 2d 942, 947 (Miss. 2000) (quoting Gavin v. State, 473 So. 2d
952, 955 (Miss. 1985)). However, in this summary judgment context, these advantages are
non-existent. As such, the special master was no better equipped than this Court to make
findings of fact. Nonetheless, he weighed conflicting evidence and then rendered a decision
based on which party’s version he deemed more credible. Giving Trellvion “the benefit of
10
Not mere allegations as asserted in the separate opinion.
16
every reasonable doubt[,]” Mink, 537 So. 2d at 433, this is clearly an “issu[e] of fact
sufficient to require denial of a motion for summary judgment . . . [as] one party swears to
one version of the matter in issue and another says the opposite.” Mantachie Natural Gas,
594 So. 2d at 1172.
¶25. The role of the special master or trial court is not to weigh the facts, but “only [to]
determine whether there are issues to be tried.” Brown, 444 So. 2d at 362. In so doing, the
special master was called upon to give Trellvion “the benefit of every reasonable doubt.”
Mink, 537 So. 2d at 433. The special master failed to do so in the case sub judice by (1)
adopting Sherwin-Williams’ “undisputed facts” without acknowledging Trellvion’s evidence
to the contrary and (2) assessing the credibility and then disregarding the testimony of
witnesses for Trellvion. Individually and collectively, these provide only examples of
multiple issues of material fact that can only be properly resolved by a jury.
¶26. In Daubert v. Merrell Dow, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),
the United States Supreme Court held, “in the event the trial court concludes that the scintilla
of evidence presented supporting a position is insufficient to allow a reasonable juror to
conclude that the position more likely than not is true, the court remains free to direct a
judgment . . . and likewise to grant summary judgment.” Id. at 596. Webster’s Dictionary
defines “scintilla” as, “a tiny amount.” Webster’s II New College Dictionary 989 (2001).
In this matter, the special master was presented with considerably more than a tiny amount
17
of evidence.11 Accordingly, there are genuine issues of material fact which a jury, presented
with evidence and testimony, must ultimately decide.
III. Whether the circuit court erred in finding that Sherwin-Williams
owed no duty, under Mississippi law, to warn of the dangers associated
with surface preparation on its non-lead paint cans?
¶27. In addressing Trellvion’s failure-to-warn claim, the special master concluded that the
“claims attempt to impose warning not required by federal law. This is the kind of claim
preempted by [the] [Federal Hazardous Substances Act (“FHSA”)].” The FHSA was enacted
in 1960 and mandated the labeling of certain “hazardous” consumer products intended for
use in the household or by children. See Chem. Specialties Mfrs. Ass’n v. Allenby, 958 F.
2d 941, 945 (9 th Cir. 1992). In 1966, the Act was significantly amended to include a
preemption provision to prevent each state from creating different labeling requirements for
hazardous substances. See House Committee on Interstate and Foreign Commerce, Child
Protection Act of 1966, H.R. Rep. No. 2166, 89 th Cong., 2d Sess. 3 (1966), reprinted in 1966
U.S. Code Cong. & Admin. News 4095, 4097. The preemption provision provided:
[i]t is hereby expressly declared that it is the intent of the Congress to
supersede any and all laws of the States and political subdivisions thereof
insofar as they may now or hereafter provide for the precautionary labeling
of any substance or article intended or suitable for household use (except for
those substances defined in sections 2(f)(2) and (3) of this Act) which differs
from the requirements or exemptions of this Act or the regulations or
interpretations promulgated pursuant thereto. Any law, regulation, or
ordinance purporting to establish such a labeling requirement shall be null and
void.
11
This is not simply the view of this Court. The special master wrote following
removal and remand, “United States District Judge David Bramlette, III . . . commented that
the evidence offered by the Plaintiffs was ‘very weak and suspect[, but that] . . . such
evidence does provide a slim possibility for recovery[.]’”
18
Child Protection Act of 1966, Pub. L. No. 89-756, 80 Stat. 1303 (1966) (current version at
15 U.S.C. § 1261, et seq.) (emphasis added).
¶28. This Court agrees that post-1966 FHSA amendment, any theory of recovery based
upon “the precautionary labeling of any substance or article intended or suitable for
household use . . . which differs from the requirements or . . . the regulations or
interpretations promulgated pursuant thereto. . . . [S]hall be null and void.” Id. The FHSA
amendment which added the preemption provision clearly applies to failure-to-warn causes
of action brought after adoption of the amendment, and which are based upon “requirements”
beyond those mandated by the FHSA. However, “if Congress intended to preclude all
common-law causes of action,” it would have done so expressly. Medtronic, Inc. v. Lohr,
518 U.S. 470, 487, 116 S. Ct. 2240, 2251, 135 L. Ed. 2d 700, 717 (1996). As such, this
Court finds that Trellvion can proceed with common-law liability claims that do not run afoul
of FHSA preemption. Therefore, any pre-1966 FHSA amendment theories of recovery
asserted by Trellvion, whether founded upon negligence, failure to warn, defective design,
or fraud, are not preempted. Any post-1966 FHSA amendment theories of recovery not
based upon “the precautionary labeling of any substance or article intended or suitable for
household use,” or based upon a violation of the requirements, regulations, or interpretations
of 15 U.S.C. § 1261 (i.e., a claim of noncompliance with the FHSA), are not preempted.
CONCLUSION
¶29. This Court reverses the judgment of the Court of Appeals in part, finding that
Trellvion’s claims are not barred, as the “minor saving statute” is applicable, and affirms the
judgment of the Court of Appeals in part as to the dismissal with prejudice of Pollard’s
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claims. Moreover, this Court reverses the circuit court’s grant of summary judgment for
Sherwin-Williams and finds that genuine issues of material fact exist. Accordingly, this
dispute is remanded for a trial.
¶30. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART
AND AFFIRMED IN PART, AND THE JUDGMENT OF THE CIRCUIT COURT OF
JEFFERSON COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE
CIRCUIT COURT OF JEFFERSON COUNTY FOR TRIAL.
WALLER AND COBB, P.JJ., DIAZ AND GRAVES, JJ., CONCUR. SMITH,
C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY EASLEY, CARLSON, AND DICKINSON, JJ.
SMITH, CHIEF JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶31. I agree with the majority as to Issues I, Minor’s Saving Clause, and Issue III, the
failure-to-warn claim. I disagree as to Issue II, regarding granting of summary judgment as
to the identification of the product as Sherwin-Williams lead base paint.
a. Identification of the Product Involved
¶32. “[i]t is incumbent upon the plaintiff in any products liability action to show that the
defendant’s product was the cause of the plaintiff’s injuries.” Moore v. Miss. Valley Gas
Co., 863 So. 2d 43, 46 (Miss. 2003). Pollard and Trellvion argue that, prior to 1970, the
house was painted with Sherwin-Williams lead-based paint. The record shows that there is
no admissible evidence to support this allegation. Pollard and Trellvion submit by
deposition, testimony of Reverend Lias who said in the 1930s individuals painting the house
told him they were using paint with lead in it. This testimony is inadmissible hearsay and
insufficient to avoid summary judgment; the special master and judge so held.
20
¶33. Pollard and Trellvion further allege that the house was painted using Sherwin-
Williams lead paint on four separate occasions between the late 1970s and 1994. Plaintiffs
claim that the lead-based paint used was purchased at local hardware stores and once in the
mid-1980s from a Sherwin-Williams store. Plaintiffs assert that the house was painted with
white, blue, pink, and grey paint. The record indicates that the home was purchased in 1978
by Johnny Crawford, and subsequently inhabited by Gaines. Therefore, Gaines could not
have painted the home until after 1978. Gaines could not have used lead-based paint that was
sitting around for years on the shelf of Darsey’s Hardware, because the record reflects that
she had to order the paint that she purchased at the store. Plaintiffs have no paint cans or
labels to prove that Sherwin-Williams Company lead-containing paint was applied to the
home. At best, Plaintiffs have advanced a mere scintilla of colorable evidence which
absolutely will not defeat a motion for summary judgment.
¶34. 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 for white, blue, pink, or grey paints dated June 1, 1973 through December 31,
1978 contained any lead ingredient. Sherwin-Williams stopped selling its Sherwin-Williams-
brand residential paints through independent dealers such as local hardware stores by early
1976.
¶35. In Luvene v. Waldrup, 903 So. 2d 745, 748 (Miss. 2005), this Court stated that “[t]he
non-moving party’s claim must be supported by more than a mere scintilla of colorable
evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.
21
In Luvene, this Court found an affidavit fatally defective and deficient regarding a critical
element of the underlying claim. The affidavit was merely a broad summarization of the
required elements of the claim. This Court found that summary judgment was appropriate
because “[t]he affidavit failed to set forth specific facts and certainly did not provide more
than a mere scintilla of colorable evidence.” Id.
¶36. Similarly, Plaintiff’s only product identification comes by way of the affidavits of
Doris Gaines and Johnny Crawford, who testied they saw the words “lead” or “lead paint”
on some portion of the labels. Neither Gaines nor Collier have personal knowledge of
whether the paint they used contained any lead, and both have given contradictory
statements. During Collier’s deposition he admitted he was just assuming that the paint
contained lead because it was washable. Collier does not assert that any one told him the
paint contained lead, that he read the labels, nor that he asked for lead-containing paint.
¶37. During Gaines first deposition, she admitted that she did not look at the labels to see
if the paint contained lead, but in her second deposition she claimed that she read the labels
and saw that it was lead-based. This testimony contradicts, without explanation, her previous
testimony, and such cannot defeat a motion for summary judgment.
¶38. What this all adds up to is unsupported speculation and allegations, and they are not
sufficient to defeat a motion for summary judgment. Gorman-Rupp Co. v. Hall, 908 So. 2d
749, 757 (Miss. 2005); Adams v. Cinemark United States, 831 So. 2d 1156, 1162 (Miss.
2002). In Corey v. Skelton, 834 So. 2d 681 (Miss. 2003), this Court affirmed the trial court
grant of summary judgment. In Corey, the plaintiff’s mere allegation was insufficient to
22
establish a critical element of his claim, in light of the “voluminous record” to the contrary.
Id. at 684.
¶39. Plaintiffs have failed to provide sufficient evidence to establish that Sherwin-Williams
manufactured the alleged lead paint. Therefore the trial court’s dismissal of Plaintiffs’
product liability claims as unmeritorious was proper and should be affirmed.
¶40. For the aforementioned reasons, I respectfully concur in part and dissent in part.
EASLEY, CARLSON AND DICKINSON, JJ., JOIN THIS OPINION.
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