After 2 years, stage set for brain cancer appeal

After two years, the stage is set for arguments in appeal of a Pennsylvania judge’s dismissal of the first McCullom Lake brain cancer lawsuit.

Oral arguments likely will be scheduled this fall before the appellate court, which in Pennsylvania is called the Superior Court. The court’s judges will decide whether the judge hearing the first case acted properly when he threw it out, dismissed the jury, and ruled in favor of the chemical company accused in the lawsuit of causing the brain cancer that killed former McCullom Lake resident Joanne Branham’s husband.

The lawsuit from Branham is the first of 33 filed to date in Pennsylvania state court that accuse the Rohm and Haas plant in neighboring Ringwood of tainting groundwater and air with carcinogenic vinyl chloride and causing a cluster of brain and pituitary tumors.

Branham lost her husband of 40 years, Franklin, to glioblastoma multiforme in 2004.

She filed suit against the Philadelphia-based specialty chemicals company in 2006, at the same time as two of her former McCullom Lake next-door neighbors, who also developed brain tumors.

Plaintiffs’ attorney Aaron Freiwald has filed briefs supporting his argument that Judge Allan Tereshko erred. Rohm and Haas attorney Kevin Van Wart said he will file his arguments supporting Tereshko’s ruling next week.

The trial started in September 2010 and was expected to last 10 weeks. It lasted five before Tereshko 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 under a two-day cross-examination by Van Wart, who raised questions about Neugebauer’s methodology and how plaintiffs were counted.

Tereshko adjourned the trial for the day to allow Neugebauer to sort out the questions raised. He submitted 21 changes to his analysis when the court reconvened Oct. 21. Tereshko ended the trial before Freiwald could call his remaining witnesses, and called Neugebauer’s testimony “an attempt to deceive the court” and “as close as I have come ... to having a report that may be tantamount to fraud on the court.”

Freiwald asked for a mistrial, but Tereshko sided with the defense and granted its motion to dismiss April 27, 2011, almost five years to the date from when the first lawsuits were filed.

In his appeal, Freiwald called Tereshko’s ruling “a product of emotion and bias, rather than a considered review of the evidence.” Among Freiwald’s arguments is that Tereshko violated court rules by granting Rohm and Haas’ request for nonsuit before the plaintiff rested her case. Judges typically grant nonsuit if they conclude, after the plaintiff has rested, that the evidence presented does not support the claim.

Tereshko’s ruling alleged that Neugebauer manipulated data to ensure that his study concluded a cluster existed. Van Wart has gone further, alleging in court documents that Freiwald “was an active participant in this ruse.”

Freiwald in his appeal vehemently denies any dishonesty, and said the controversy with Neugebauer’s work was with his first study, a 2008 analysis of cancer rates based on the number of plaintiffs at the time, not his 2010 study based on Illinois State Cancer Registry data.

About this series

“Coincidence or Cluster” is the Northwest Herald’s ongoing coverage of the McCullom Lake brain cancer lawsuits.

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