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Judge who dismissed cancer case reassigned

Published: Sunday, Jan. 13, 2013 5:30 a.m. CDT

(Continued from Page 2)

The Philadelphia judge who dismissed the first McCullom Lake brain cancer lawsuit has been reassigned to family court and a new judge has been assigned to the case as both sides await an appeal ruling.

A Jan. 3 order by the Pennsylvania Supreme Court approves the transfer of Judge Allan Tereshko from the civil court’s trial division, more than two months after he resigned as its supervising judge under criticism for his handling of an unrelated case. A state appellate court that last October overturned his 2011 ruling in favor of a defendant insurance company chastised him for not disclosing his wife’s employment with the law firm representing it.

A separate panel of judges on the appellate court, which in Pennsylvania is called the Superior Court, is in the process of deciding whether Tereshko overstepped his bounds when he dismissed the first of 33 lawsuits alleging that pollution from the Rohm and Haas chemical plant in Ringwood caused a cluster of brain and pituitary tumors in and around McCullom Lake.

Should the appeal by plaintiff Joanne Branham prevail, it is not likely that the case will be retried before a family court judge. Plaintiffs’ attorney Aaron Freiwald, who motioned to get a new judge as part of his appeal, declined to comment. The individual cases were filed in Philadelphia because it is the world headquarters of Rohm and Haas, which now is a subsidiary of Dow Chemical Co.

Tereshko had said that his lack of disclosure was an “oversight” given the number of cases he handled. Judicial codes of conduct state that judges should recuse themselves in situations in which their impartiality could be reasonably questioned.

The case of Branham, who lost her husband of 40 years, Franklin, to glioblastoma multiforme brain cancer in 2004, was the first to go to trial. She and two of her former McCullom Lake next-door neighbors who also developed brain tumors sued Rohm and Haas in 2006, alleging that the specialty chemical plant tainted their air and groundwater with carcinogenic vinyl chloride. While the plant has spent decades monitoring and eliminating a plume of contaminated groundwater from a closed 8-acre on-site waste pit, it is fighting the idea that pollution reached or sickened village residents.

The Branham trial started in September 2010 and was expected to last 10 weeks. It lasted five before Tereshko angrily ended it over the expert testimony of plaintiff epidemiologist Richard Neugebauer. He testified that the rate of glioblastoma multiforme 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 Freiwald could call three remaining expert witnesses, throwing out Neugebauer’s testimony and calling it “an attempt to deceive the court.” Freiwald asked for a mistrial, but Tereshko ultimately sided with Rohm and Haas and granted its motion to dismiss the case in April 2011, almost five years to the day after the first lawsuits were filed.

Freiwald attacked Tereshko’s ruling in his appeal to the Superior Court as “a product of emotion and bias, rather than a considered review of the evidence.” Among Freiwald’s arguments is that Tereshko violated long-established court rules by granting Rohm and Haas nonsuit before his plaintiff rested her case. Judges typically grant nonsuit if they conclude – after plaintiffs have rested – that the evidence presented does not support their allegations.

The appeal also alleges that most of Tereshko’s 49-page ruling is not a reasoned review but merely recitation of the defense’s cross-examination, and that Tereshko made an “emotionally charged” leap as a result of being “egged on” by the defense’s characterization of Neugebauer’s report as evidence of misconduct.

The Superior Court has overruled Tereshko’s rulings on other toxic tort cases. Appeals judges last year reversed Tereshko’s ruling in favor of two pharmaceutical companies against a number of lawsuits alleging that plaintiffs’ breast cancer diagnoses were related to their use of hormone replacement therapy medications.

Freiwald tried to file a class-action lawsuit against Rohm and Haas to force the company to pay for medical monitoring for McCullom Lake residents, but the federal court would not certify it.

The Modine Manufacturing plant in Ringwood had been named in the original lawsuits and the class-action lawsuit because the plant had contributed the carcinogenic solvent trichloroethylene to the contamination plume. The Racine, Wis.-based company decided to settle in 2008, denying culpability but agreeing to pay $1.4 million toward medical monitoring, and settling with individual plaintiffs for undisclosed sums.

Two of the 33 plaintiffs discovered their tumors through Modine-financed screening.

Rohm and Haas before the start of the Branham trial offered to pay to test the village’s wells and air. Tests of 293 village wells in December 2010 came back clean except for a few with volatile organic compounds – the same family of chemicals to which vinyl chloride belongs – far below U.S. Environmental Protection Agency limits.

A test of air samples in and around 10 village homes the following September concluded that air contaminants, including vinyl chloride, were below federal limits.

About this series

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

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