Sandy Wierschke was not in good shape when she attended the opening of the first individual trial in the McCullom Lake brain cancer lawsuits.
She sat in her motorized scooter in a Philadelphia courtroom on Sept. 20, 2010, just three days after leaving the hospital. The wrap she wore covered up the work that doctors did on the right side of her head, using parts of her thigh and stomach to replace bone and tissue that had died from the radiation used to fight the glioblastoma multiforme cancer in her brain.
Wierschke, her husband, Tim, and her daughter Kimberley wanted to show support for Joanne Branham, the first of 33 plaintiffs as of today alleging that the Rohm and Haas plant in neighboring Ringwood tainted their groundwater and air with carcinogenic vinyl chloride and caused a cluster of brain and pituitary tumors. Branham’s husband, Franklin, died of glioblastoma in 2004.
Branham filed suit against the Philadelphia-based company in 2006, at the same time as two of her former McCullom Lake next-door neighbors, who also developed brain tumors. While Rohm and Haas has acknowledged that a plume of volatile organic compounds is oozing from a closed 8-acre waste pit at the Ringwood site, it vehemently denies the idea that pollution reached village wells, tainted the air or sickened anyone.
Joining the Wierschkes in the audience were five other plaintiffs’ families.
“I wanted them to see what I’ve been through,” Sandy Wierschke said. “It was tough, it was really tough, seeing [Branham] was having a bad time.”
The fact that Sandy Wierschke, 49, is still alive is no small feat – doctors who diagnosed her in 2006, days after the first lawsuits were filed, doubted she would live through the year. She can now count herself among the 3 percent of people who survive within five years of a glioblastoma diagnosis.
Sandy Wierschke wants to live to see her day in court. But more than a year after that trip to Philadelphia, Branham’s case – and by default, the others – are up in the air.
The Branham trial was expected to last 10 weeks. It lasted five before the judge angrily ended it over the testimony of the plaintiff’s epidemiologist.
Richard Neugebauer had testified for plaintiffs that the rate of glioblastoma in the McCullom Lake area is three to five times higher than the county and state. But his testimony crumbled during a two-day cross-examination by Rohm and Haas attorney Kevin Van Wart. His questioning poked holes in Neugebauer’s testimony, from his methodology to the inclusion of plaintiffs who lived elsewhere.
Judge Allan Tereshko adjourned the trial for the day to allow Neugebauer to sort out the questions raised. Neugebauer had submitted 21 changes to his analysis when the court reconvened on Oct. 21, 2010. Tereshko decided to end the trial before plaintiff’s attorney Aaron Freiwald could call his remaining witnesses, and called Neugebauer’s testimony, among other things, “an attempt to deceive the court.”
“It is as close as I have come sitting on the bench for 20-plus years to having a report that may be tantamount to fraud on the court, and I will not allow this testimony to continue,” Tereshko told the courtroom.
Freiwald asked for a mistrial, while Van Wart asked Tereshko to dismiss the case against Rohm and Haas. Tereshko sided with the defense and granted the motion to dismiss Branham’s case on April 27, 2011, almost five years to the day that it was filed.
Tereshko’s 49-page ruling alleged Neugebauer “manipulated and disregarded” information to ensure that the study concluded that a cluster existed. Van Wart has gone further, alleging in court documents that both Neugebauer and Freiwald attempted to manipulate the data.
“Once he was subject to cross-examination at trial … Dr. Neugebauer’s brain cancer cluster analysis was shown for what it really is – an elaborate ruse that rested on deception, manipulation of data, and patently false assumptions,” Van Wart wrote in a motion for sanctions filed last December. “Plaintiff’s counsel was an active participant in this ruse.”
Freiwald begs to differ in his appeal to the Pennsylvania Superior Court – the equivalent of the Illinois appellate court – both on the merits of his case and the idea that either he or Neugebauer did anything dishonest. In a May 2011 appeal, Freiwald called Tereshko’s ruling “a product of emotion and bias, rather than a considered review of the evidence.”
The controversy, Freiwald argued, was with Neugebauer’s first epidemiology study in 2008, which analyzed cancer rates based on the plaintiffs at the time, not his updated 2010 study based on Illinois State Cancer Registry data. The appeal states that most of the changes were clarifications or minor adjustments.
“The court made an emotionally charged and improper leap, egged on by defendant’s counsel who immediately characterized Dr. Neugebauer’s report as an affront and evidence of misconduct,” Freiwald wrote.
In his appeal asking for a mistrial, Freiwald argues that Tereshko’s granting of a nonsuit before the plaintiff rested her case violates court rules. Judges typically grant nonsuit if they conclude – after plaintiffs have rested – that the evidence presented does not support their case.
Freiwald had yet to call his expert toxicologist, Gary Ginsberg, when Tereshko ended the trial. Van Wart argues that the toxicologist’s testimony was moot with Neugebauer’s testimony struck, but Freiwald counters that Ginsberg’s report reveals multiple sources for his conclusions. Freiwald also argues that Tereshko erred in striking the testimony of Neugebauer and the plaintiff’s expert neuropathologist, both of whom survived pre-trial motions to exclude them.
Van Wart last year filed a motion with Tereshko asking that Freiwald and Neugebauer pay for Rohm and Haas’ trial expenses, and that Freiwald pay for the court’s costs for the jury trial. That motion is essentially on hold with the appeal – both sides are waiting for a briefing schedule.
The case is not the only setback that the courts have dealt the plaintiffs. A U.S. District Court judge in March 2010 denied certification for a class-action lawsuit forcing Rohm and Haas to pay for medical monitoring and property value reimbursement for McCullom Lake residents. A federal appeals court this year upheld that ruling.
However, a number of eligible residents did get access to screening through a 2008 settlement with Modine Manufacturing, located south of the Rohm and Haas plant. Modine was blamed in the original lawsuits for polluting groundwater, and contributing to cancer cases, with the industrial solvent trichloroethylene. The company paid $1.4 million for medical monitoring while denying culpability – two more plaintiffs were diagnosed through Modine-funded screening.
Day by day
Sandy Wierschke credits her family for giving her the support that she says has kept her alive and beating the odds. Others have not been so lucky.
Plaintiff Jim Booth, a former McCullom Lake resident diagnosed last year with glioblastoma, died in March in his Johnsburg home at age 61. Ringwood resident Frank Weisheit, who lost his wife, Judy, to the same disease, died several weeks earlier at age 68.
Others have relapsed. Plaintiffs Lance Kuhns and Scott Milliman again are fighting oligodendroglioma, a brain cancer that affects about one person in 300,000. It is the same rare brain cancer with which Branham’s former neighbors, Bryan Freund and Kurt Weisenberger, were diagnosed.
Freund, who still lives in McCullom Lake, has not been doing well. He has been suffering bad seizures, like the ones seven years ago this month that revealed his brain tumor.
“I really take it day by day,” Freund said. “You never really know. I still have headaches all the time. At this time last year, I was doing pretty well.”
The Freunds and the Wierschkes hope that the Pennsylvania courts overturn the nonsuit and allow them to plead their cases before juries, and to give Joanne Branham a second chance at the same opportunity.
“We just want her to have her day in court,” Tim Wierschke said. “We know this is more than just coincidence. We want a jury to decide this. We want our day in court.”
About this series
“Coincidence or Cluster” is the Northwest Herald’s ongoing investigation of the McCullom Lake brain cancer lawsuits.