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Judge in McCullom Lake lawsuit chastised over ethics

The Philadelphia judge who dismissed the first McCullom Lake brain cancer lawsuit has resigned as the circuit’s supervising civil judge amid criticism that he didn’t disclose his wife’s connection to a law firm in an unrelated case.

Judge Allan Tereshko resigned Oct. 24 as the head of civil cases for the Philadelphia Court of Common Pleas, shortly after the state Superior Court chastised him for not disclosing his wife’s employment with a law firm that represented an insurance company being sued in a 2011 auto insurance case. Tereshko had granted summary judgment in favor of the company.

The codes of judicial conduct in both Pennsylvania and Illinois state that judges should recuse themselves in situations, such as spousal involvement with the case, in which their impartiality could be reasonably questioned.

Tereshko is still on the bench, but could be reassigned out of the civil division.

The Superior Court – what Pennsylvania calls its appellate court – is deliberating whether Tereshko overstepped his bounds when he dismissed the first of 33 lawsuits alleging that air and groundwater pollution from the Rohm and Haas chemical plant in Ringwood caused a cluster of brain and pituitary tumors in and around McCullom Lake. The Superior Court heard oral arguments on the appeal in October.

While the Superior Court overturned Tereshko’s ruling in the insurance case on other grounds, the three judges who heard the appeal chastised him in a separate opinion.

“Not only did the trial judge err on the law as applied to the facts of this case, but he failed in his professional responsibility as set forth in the Code of Judicial Conduct and, as a result, prejudiced the litigants,” Judge Anne Lazarus wrote.

Tereshko told the Legal Intelligencer, a Philadelphia-based daily law journal, that his lack of disclosure was an “oversight” given the number of motions he handles.

A separate panel of judges is hearing the brain cancer appeal.

The first brain cancer case to go to trial was that of former McCullom Lake resident Joanne Branham, who lost her husband of 40 years, Franklin, to glioblastoma multiforme brain cancer in 2004. She filed suit against Rohm and Haas in 2006, at the same time as two of her former village next-door neighbors who also developed brain tumors. The lawsuits allege that Rohm and Haas tainted their air and water with carcinogenic vinyl chloride. While the plant for decades has been tracking groundwater contamination from the plant, it is fighting the idea that it ever reached village wells or sickened residents.

The trial started before Tereshko in September 2010 and was expected to last 10 weeks. It lasted five before Tereshko angrily ended it over the testimony of plaintiff epidemiologist Richard Neugebauer. The epidemiologist testified that the rate of glioblastoma in the McCullom Lake area is three to five times higher than that of the county and state, but his testimony crumbled under a two-day cross examination by Rohm and Haas’ legal team.

Tereshko ended the trial Oct. 21 before plaintiffs’ attorney Aaron Freiwald could call three remaining expert witnesses, and called the epidemiologist’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 in April 2011, almost five years to the date from when the first lawsuits were filed.

Freiwald blasted Tereshko’s ruling in his appeal, calling it “a product of emotion and bias, rather than a considered review of the evidence.” Among his arguments is that Tereshko’s decision to grant Rohm and Haas nonsuit before his plaintiff rested her case clearly violates court rules. Judges typically grant nonsuit if they conclude – after plaintiffs have rested – that the evidence presented does not support their case.

The controversy with Neugebauer’s work, Freiwald argued, was with his first epidemiology study in 2008, which analyzed cancer rates based on the number of plaintiffs, not his updated 2010 study based on Illinois State Cancer Registry data.

His appeal also points out that much of Tereshko’s 49-page ruling is merely recitation of the defense’s cross-examination and not a reasoned review. Freiwald alleges in the appeal that Tereshko made an improper and “emotionally charged” leap as a result of being “egged on” by the defense’s characterization of Neugebauer’s report as evidence of misconduct.

It has not been uncommon for the Pennsylvania Superior Court to reverse Tereshko’s rulings on toxic tort and other issues on appeal. In the most recent case, the court this year reversed Tereshko’s ruling in favor of two pharmaceutical companies against 14 lawsuits alleging that plaintiffs’ breast cancer diagnoses were related to their use of hormone replacement therapy medications. Tereshko sided with the companies, which argued that the plaintiffs’ two-year statute of limitations started from their date of diagnosis, not a more recent release of a study linking the therapy with breast cancer.

Besides a new trial, Freiwald’s appeal also requests a new judge.

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