NL Industries and PPG Industries Win Key Lead Paint Trial
On June 12, a Baltimore jury returned a defense verdict for NL Industries and PPG Industries in the first products liability action against members of the lead paint industry to go to trial. Kirkland & Ellis partner, Michael D. Jones, and Bartlit Beck Herman Palenchar & Scott partner, Donald E. Scott, represented NL industries and handled the medical and scientific issues at trial, while the attorney for PPG, James Miller of Dickie McCamey & Chilcote, focused on the product identification issue relating to PPG. Plaintiff was represented by the Law Offices of Peter Angelos.
The plaintiff, Tyrone Parker, had charged that ingestion of paint chips during the 1950s from NL and PPG lead-based paint caused cognitive deficits and permanent damage to his central nervous system.
After having a seizure at the age of 2, Parker was diagnosed with lead encephalopathy, in which large doses of lead cause seizures. The level of lead in Parker's blood was tested at 52 micrograms per deciliter of blood- the current standard for the level of concern is 10. Treatment reduced that level, but the "lead poisoning," according to plaintiff, caused significant problems, including a learning disability. The plaintiff claimed that the lead had set off a febrile, or fever-related, seizure, that pre-disposed him to subsequent seizures and epilepsy. In 1992, Parker had a seizure while driving and ran his car into a tree, leaving him with severe epilepsy.
Dr. Peter Kaplan of Johns Hopkins Bayview testified in support of plaintiff's medical causation theory, but during cross-examination Kirkland partner Michael Jones used the witness' own publication, "Epilepsy from A to Z," against him. "In the book, he described the causes of febrile seizures," but, "nowhere in the book did he mention lead."
Also supporting plaintiff's claim that he ate lead paint as a child were his older brother and sister, who testified that they saw him eat lead paint. But during the opening statement on behalf of NL, Jones challenged the original medical diagnosis and the testimony of plaintiff's siblings, telling the jury that "there are three things that tell us that this is not a case about a man who ate lead paint as a child: those three things are modern science, modern medicine, and two generations of mothers." Jones referred to parts of the medical record where plaintiff's mother and grandmother denied that he had eaten lead paint, and argued that the science of toxicology shows that the level of lead in plaintiff's blood was too low to have caused a seizure, and modern medical knowledge makes clear that plaintiff's childhood seizure was caused by a fever and infection -- not lead.
Jones returned to these themes in NL's closing argument contrasting the statements of plaintiff's mother and grandmother with the testimony of his siblings, adding that not only was plaintiff relying on a wrong diagnosis, but was relying on the wrong witnesses, since plaintiff's brother and sister were biased witnesses whose testimony was filled with contradictions. Jones highlighted that the only family members to testify that Parker ate lead paint had a relationship with plaintiff's counsel, whereas plaintiff's brother, who was also his pastor did not testify at all, despite the fact that he lived across the street from the plaintiff.
Parker and his wife were seeking up to $35 million in damages, but the jury rejected the original diagnosis and found that eating lead did not cause Parker's initial seizure and did not cause him to have cognitive deficits.
