Brain cancer appeal ruling forthcoming?

A clarification ordered Friday by a Pennsylvania appellate court signals that a ruling as to whether to overturn the verdict in the first McCullom Lake brain cancer lawsuit could be forthcoming soon.

The Superior Court asked the lower court to justify its decision to throw out a claim of strict liability – in other words, that Ringwood-based Rohm and Haas did not engage in what the law calls "abnormally dangerous activity" by dumping carcinogenic vinyl chloride into an unlined pit – and not allow it to go to trial along with allegations of negligence and fraud.

The issue is a minor one in the 2-year-long appeal, which alleges that Judge Allan Tereshko overstepped his legal bounds by throwing out the case before plaintiffs had rested, improperly ruling plaintiffs' witness testimony inadmissible, and granting Rohm and Haas' motion to dismiss.

The lower court has 30 days to give its rationale to the Superior Court, which is what Pennsylvania calls its appellate court. And the judge who writes it may not end up being Tereshko, who in January was transferred to family court in the wake of an ethical gaffe and is no longer the judge on the case.

The lawsuit from former McCullom Lake resident Joanne Branham, who lost her husband of 40 years to glioblastoma multiforme brain cancer, is the first of 33 lawsuits to go to trial. The lawsuits allege that the specialty chemical plant tainted their air and groundwater with carcinogenic vinyl chloride and caused a cluster of brain and pituitary tumors.

Branham and two of her former next-door neighbors, who were diagnosed with even rarer brain tumors, filed suit in April 2006. While the plant has spent decades monitoring and trying to eliminate 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 cases were filed by plaintiffs' attorney Aaron Freiwald in Philadelphia, which is the world headquarters of Rohm and Haas, now a subsidiary of Dow Chemical Co.

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 the county and state averages, 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. He threw out Neugebauer's testimony and called it "an attempt to deceive the court." Freiwald asked for a mistrial, but Tereshko ultimately sided with Rohm and Haas and in April 2011, almost five years to day since the first lawsuits were filed, granted the company's motion to dismiss.

Freiwald attacked Tereshko's ruling in his 2011 appeal to the Superior Court as "a product of emotion and bias, rather than a considered review of the evidence." The main argument Freiwald made was that Tereshko violated long-established court rules by ending the trial – called granting 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 the allegations made.

However, it is not known as of Monday whether it will be Tereshko or the judge who has since taken over the case, Sandra Mazer Moss, who will write the clarification for the Superior Court.

Tereshko was assigned to family court in January, more than two months after he stepped down as supervising judge of the civil court trial division under criticism of an unrelated case. A separate panel of Superior Court judges overturning 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.

The Superior Court has had Branham's appeal for deliberation since last September, after both sides had opportunities to make their cases.

Pennsylvania law sets down six factors in determining whether an activity is "abnormally dangerous", including a high degree of great risk to people or property, inability to eliminate that risk through reasonable care, appropriateness of the activity to its location, and whether its value is outweighed by the danger.