On Friday, Aug. 4, 2006, an eight-person federal jury in Oxford, Miss., returned a unanimous verdict for Kirkland & Ellis LLP client NL Industries following a three-week trial. The plaintiffs were 14 children who alleged brain damage and increased risk of cardiovascular disease, kidney disease and peripheral neuropathy as a result of lead poisoning by NL Industries’ lead paint in their apartments.
Plaintiffs sought in excess of $25 million in compensatory damages and had retained an economist to testify in an expected punitive damages phase, where plaintiffs were expected to seek $75 to $100 million in punitive damages. As to each of the 14 plaintiffs, the jury responded “no” to the question whether NL Industrieswas liable as a result of a design defect and/or negligence. Accordingly, the jury awarded no damages, including on plaintiffs claim for medical monitoring.
In light of the importance of the case to the entire industry, a number of former manufacturers of lead paint and lead pigment assigned lawyers to attend and monitor the trial. Pre-trial news reports focused on what lawyers for the plaintiffs called the “gene defense,” a reference to the expert testimony that a family history of learning problems and disabilities explained learning disabilities mild mental retardation among some of the plaintiffs.
The Mississippi case was only the second personal injury trial against a former manufacturer of lead-based paint. In the first such trial, also tried by Kirkland, a Baltimore jury in 2000 returned a verdict in favor of NL Industries in what The National Law Journal chronicled as a Defense Win of the Year.
Then, as in Mississippi, the trial team was led by Kirkland partner, Michael D. Jones, a fellow in the American College of Trial Lawyers. The Kirkland team also included Alicia Johnson, Nicole Goldstein, and Susan McGuire. Local counsel during the trial was James E. Upshaw and Ewin F. Henson III of Upshaw, Williams, Biggers, Beckham & Riddick, LLP.
Mr. Jones and his team presented evidence that showed the children were likely to have been exposed to lead from other sources. Soil samples near the Dewey Street Apartments in Greenwood, Miss., where they lived, contained lead from automotive materials such as car batteries and welding activity. Medical experts also testified that the children's learning disabilities, which plaintiffs alleged were caused by lead poisoning, were consistent with a family history of learning problems.
Noted Mr. Jones, “we were able to show through a balanced consideration of all of the evidence including the history of NL and science, that a finding for NL was both the right and legal thing to do. This task was made all the more challenging by the unrestrained appeal of sympathy for children that we all possess.”
U.S. District Judge Mike Mills presided over the trial.
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