Justice Kitchens, concurring only in the judgment, argued that the testimony that S-W's lead-based paint was used was simply too incredible:
Could a reasonable jury have found by a preponderance of the credible evidence that lead-based paint was used? Really? Because that's the standard of review, right?
Sherwin-Williams presented substantial evidence that it had stopped manufacturing residential lead-based paint in 1972, but the plaintiff produced three witnesses who testified that lead-based Sherwin-Williams paint was used in the house between 1978 and 1994.
Doris Gaines, the plaintiff’s grandmother, testified that she had painted the home several times between 1979 and 1994, and that she always had asked the store for Sherwin-Williams “lead” paint. The grandmother acknowledged that she never had read the paint labels, but merely assumed that the paint contained lead because she had asked for lead paint.
Vernon Collier was a long-time friend of the grandmother’s who would help her with various construction and painting projects in her house. Collier testified that he had helped Ms. Gaines paint the outside of the house in 1979 with Sherwin-Williams paint. Collier stated that he believed the paint contained lead because it covered the painted surface in one coat, but he did not read the labels. Moreover, in an earlier deposition, Collier stated that he and Doris did not use Sherwin-Williams paint in the latter part of the 1970s because “[Doris] wasn’t into Sherwin-Williams at that time.”
Johnny Crawford, the plaintiff’s step-grandfather, purchased the house in 1978. Crawford testified that he had bought and used Sherwin-Williams lead paint in the late 1970s and recalled seeing the words “lead paint” on the labels. This testimony was directly contradicted by a prior affidavit wherein he swore that he had no knowledge whether the paint used on the house contained lead or what brand of paint was used.
The plaintiffs produced one witness who testified about the paint used on the house before 1978. Reverend Martin Lias’s deposition was read to the jury, and he testified that he had witnessed the painting of the back porch with white Sherwin-Williams lead paint in the 1930s. However, the grandmother, Ms. Gaines, testified that the back porch had been removed before the plaintiff was born, rendering Reverend Lias’s testimony irrelevant in the present case.
If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.Thus the MSSC less than a year ago, reciting the boilerplate language for a JNOV motion.
However, that's not how Justice Pierce phrased it writing for the Court in the Sherwin-Williams case:
We will affirm the denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict if there is substantial evidence to support the verdict, but we will reverse if the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.Where did the "no reasonable jury" part go? Oops. Kitchens should've called 'em out on that.