McCULLOM LAKE – Glenn and Donna Gates call the class-action lawsuit they carried against Ringwood chemical manufacturer Rohm and Haas anything but a failure.
The 2006 lawsuit, alleging that air and water pollution from the plant caused a brain cancer cluster in the McCullom Lake area, has come to an end with a federal court’s refusal to certify it and allow it to proceed to trial. But the Gateses said the awareness that the lawsuit raised, and the settlement with another defendant that led to two early detections of brain tumors, made it a success.
“I think the class-action lawsuit accomplished what I set out to accomplish – if we save one life, we’ve succeeded. We saved two,” Donna Gates said. “You can’t put a value on life. Was it worth it? I think it was.”
The lawsuit, filed in U.S. District Court in Pennsylvania, sought to force Philadelphia-based Rohm and Haas to pay for medical monitoring and property damage relief for residents. It alleges, as do 33 individual lawsuits filed to date in Pennsylvania state court, that vinyl chloride from plant operations and from a mile-long contamination plume from a closed 8-acre waste pit caused residents to develop brain and large pituitary tumors.
U.S. District Court Judge Gene Pratter ruled in March 2010 that the motion filed by plaintiffs’ attorney Aaron Freiwald did not meet the required legal burden to be a class-action lawsuit. Freiwald challenged the ruling with the 3rd Circuit U.S. Court of Appeals, which last August upheld it, and rejected a motion to reconsider in October.
With the deadline to petition the U.S. Supreme Court passed, Freiwald’s team at the start of the year decided against continuing the fight through methods such as filing individual claims for medical monitoring. While Freiwald shares Gateses’ views that the lawsuit was in many ways a success, he argues that if this case is not a legitimate medical monitoring class-action, then nothing is.
“We looked at that and decided that the language of the 3rd Circuit’s opinion really didn’t leave room for further appeal,” Freiwald said. “We decided [individual monitoring claims are] not a direction we’re going to go in.”
The federal court’s rulings have no effect on the 33 individual state cases, which are ongoing.
To Rohm and Haas attorney Kevin Van Wart, the federal court “reached the right result based on the record that was before it,” a sentiment echoed by company spokeswoman Sarah Opperman. While the company, now a subsidiary of Dow Chemical Co., has been working since 1991 to clean up contaminated groundwater oozing from the plant, it has aggressively fought the idea that it reached village wells, tainted their air or made anyone sick.
“Certainly Rohm and Haas is gratified by the results and the due process followed all the way along. While we remain sympathetic to the people involved ... we believe this is the correct outcome in this case,” Opperman said.
While the Gateses themselves never have been diagnosed with brain tumors, they have watched friends and neighbors sicken and die during their 46 years living on Orchard Drive in the small village of 1,049 people.
Four friends of the Gateses died of a brain cancer normally found in three people per 100,000.
They included former next-door neighbor Franklin Branham, who retired to Arizona with his wife, Joanne, and died in 2004 from glioblastoma multiforme. The daughter-in-law of the neighbors who moved in after them, Susan Kalash, died of the same disease in 1996 – she and her husband, Dan, spent almost every weekend visiting, and lived in various locations in McCullom Lake and Ringwood.
Neighbor John Stepp, who Donna Gates trained to drive buses with Pioneer Center for Human Services, was diagnosed with glioblastoma in 2006. Stepp died in 2008.
The Gateses’ four children were friends with the Branhams’ five children, and the seven children of Julie Mass, who lived a block away on the lake shore. Mass was diagnosed with glioblastoma in 2006 and died a year later on New Year’s Eve.
Long before retiring out west, Franklin Branham built his family a new, larger home on McCullom Lake Road. His two neighbors – Bryan Freund and longtime Gates friend Kurt Weisenberger – were diagnosed in 2004 and 2005 with oligodendroglioma, a rare brain tumor found in one person per 300,000.
It wasn’t long afterward when the three families connected their situations with the chemical stench from the plant, which prompted a 1975 lawsuit against the company from the Illinois Attorney General’s Office, and reports dating to the 1980s as then-owner Morton International reported to the state that its closed waste pit was leaking.
Memos uncovered during the discovery process revealed that the plant’s owners knew in 1973 that the waste pit was leaking into groundwater. Tests of 293 village wells in December 2010 came back clean except for a few with volatile organic compounds far below U.S. Environmental Protection Agency limits.
The Gateses agreed to carry the class-action lawsuit – meaning they were the named plaintiffs – when the neighbors decided to sue Rohm and Haas and neighboring Modine Manufacturing, which pollution reports show contributed to groundwater contamination with carcinogenic solvent trichloroethylene.
Racine, Wis.-based Modine decided in 2008 to settle the lawsuit, denying culpability but agreeing to pay $1.4 million for medical monitoring and $100,000 toward property value relief – a small amount to reflect, in the words of the litigation, that the company was far short of the main contributor to the pollution.
Two of the 33 plaintiffs to date were diagnosed through Modine-funded screening. Former village resident Jennifer Rhoades was diagnosed with a meningioma on the lining of her brain, and an MRI of former resident Daureen Willy found a large tumor near her pituitary gland.
And others, to include the Gateses and their four grown children, learned that they were all right.
“Until that doctor looked at our MRIs and said everything was normal, I was very concerned,” Donna Gates said. “Did we possibly have something growing, too?”
While more than 700 eligible people applied for the vouchers, slightly more than 100 of them went through with the monitoring. The settlement allocated the remaining $800,000 last year to five area charities.
Half of the unused funds, more than $400,000, went to the Gavers Community Cancer Foundation, while the McHenry County Community Foundation received $160,000. About $80,000 apiece went to the McCullom Lake volunteer group Neighbors Helping Neighbors, founded by Village President Terry Counley, and school foundations for Johnsburg School District 12 and McHenry High School District 156.
Watching and waiting
Above all, the Gateses said that filing the lawsuit has been a learning experience in more ways than one.
To Donna Gates, it increased community awareness, and the community for the most part does not hold the litigation against them. Both husband and wife laughed when asked what they learned about government in how county, state and federal health authorities handled investigating the alleged cancer cluster.
“The government tried to sweep it under the rug. They don’t care about any of us,” Glenn Gates said.
With the class-action dead and hope of a legitimate government inquiry gone, the Gateses are keenly watching the fate of the first individual case to go to trial, that of widow Joanne Branham.
The duo planned to travel to Philadelphia in fall 2010 to attend several days and show their support, but the judge ended the trial Oct. 21 and dismissed the jury after several days in which Van Wart savaged the plaintiffs’ epidemiologist on cross-examination.
Judge Allan Tereshko called the testimony “an attempt to deceive the court” and “tantamount to fraud.” He granted Rohm and Haas’ motion to dismiss in April 2011. Freiwald blasted the ruling in his appeal, alleging among other things that Tereshko violated court rules by granting Rohm and Haas nonsuit before Freiwald, who had three more experts to call, had rested his case.
Both sides are awaiting a briefing schedule for the appellate court, which in Pennsylvania is called the Superior Court.
The Gateses share Freiwald’s optimism that Tereshko’s ruling will be overturned and that Joanne Branham will get a do-over.
“I’m hoping they get it back into court here and get something done,” Glenn Gates said.
About this series
“Coincidence or Cluster” is the Northwest Herald’s ongoing investigative coverage of the McCullom Lake brain cancer lawsuits.
Timeline of litigation
• April 25, 2006: Lawsuits filed in Pennsylvania state court allege that air and groundwater pollution from Ringwood manufacturers Rohm and Haas, Huntsman and Modine Manufacturing caused brain tumors in three former McCullom Lake next-door neighbors. Plaintiff’s attorney Aaron Freiwald files a class-action lawsuit in federal court to force the companies to pay for medical monitoring and property value relief for village residents.
• March 26, 2007: Huntsman, which operates out of the Rohm and Haas plant, is dropped from the lawsuits. The number of individual plaintiffs in state court now stands at 17.
• Jan. 15, 2008: Modine Manufacturing agrees to settle out of court. The Racine, Wis.-based company denies culpability but agrees to settle the class-action lawsuit by paying $1.4 million toward medical monitoring and $100,000 toward property value relief. The company also settled with individual plaintiffs, which number 23 by early 2008, for undisclosed sums.
• June 12-13, 20, 2008: U.S. District Court Judge Gene Pratter holds a three-day hearing on whether to certify the class-action lawsuit against Philadelphia-based Rohm and Haas, the sole remaining defendant.
• March 5, 2010: Judge Pratter denies certification for the class-action lawsuit in a 52-page ruling that concludes that the motion fails to meet the required legal burden. Freiwald files an appeal with the 3rd Circuit U.S. Court of Appeals two weeks later.
• Sept. 20, 2010: The first of the individual lawsuits, now standing at 31, goes to trial in Philadelphia state court. A 32nd plaintiff files suit two days into the trial. Five weeks into the trial, on Oct. 21, Judge Allan Tereshko abruptly ends the trial and dismisses the jury after alleging that the testimony of plaintiff’s epidemiologist was “tantamount to fraud” and “an attempt to deceive the court.”
• April 28, 2011: Tereshko officially dismisses the first case. Freiwald blasts the judge’s decision as “a product of emotion and bias” and files an appeal a week later.
• Aug. 25, 2011: The 3rd Circuit U.S. Court of Appeals upholds Pratter’s denial of certification for the class-action lawsuit. A request by Freiwald for all 14 judges on the circuit to reconsider the three-member panel’s ruling through an “en banc” appeal is rejected Oct. 5.
• January/February 2012: Plaintiffs’ counsel decides to end the class-action lawsuit, and decides against pursuing other avenues, such as the filing of individual monitoring claims.
While the class-action is dead, both sides in the first individual lawsuit are awaiting a briefing schedule for the appellate court, which in Pennsylvania is called the Superior Court.
There are 33 plaintiffs as of today – 25 with brain tumors, six with pituitary tumors, one with both, and one with liver cirrhosis of unknown origin.
Sources: Northwest Herald archives, Pennsylvania Court of Common Pleas, U.S. District Court Eastern District of Pennsylvania, 3rd Circuit U.S. Court of Appeals.