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McCullom Lake brain cancer plaintiffs fight to see appeals ruling

Published: Sunday, Sept. 29, 2013 12:00 a.m. CDT • Updated: Sunday, Sept. 29, 2013 12:05 a.m. CDT

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McCULLOM LAKE – Sandy Wierschke was given seven months to live when she was diagnosed with glioblastoma multiforme brain cancer.

That was more than seven years ago.

The odds of her survival are even more remote than the three in 100,000 odds of getting the deadly disease. The average survival time with treatment is less than a year, and victims have only a 3 percent chance of being alive five years after diagnosis. Her husband, Tim, said her doctors have put her in the top half of 1 percent of people who have lived the longest.

Part of what keeps her going, they said last week, is that she wants to live to face the chemical manufacturer that she and 32 other plaintiffs blame for their brain and pituitary tumors.

“Everyone knows Sandy is a fighter. She’s not going anywhere until we see vindication of the lawsuits,” Tim Wierschke said.

Sandy is going back into surgery Monday morning at Advocate Lutheran General Hospital in Park Ridge – her last MRI caught the cancer growing back.

“I want my day in court,” said Sandy, sitting next to her husband in their McCullom Lake home and behind the walker she needs to get around. “So they can see what I’ve gone through.”

Eleven of the plaintiffs are deceased – six of them died after they filed suit. The health of a number of others has taken a turn for the worse.

And with the first of the cases to go to trial tied up in the appeals court for the past 2½ years – although a ruling is soon expected – more than a few worry that they won’t live to get their chance.

‘My legs gave out’

The first three plaintiffs were former McCullom Lake next-door neighbors who were diagnosed with brain tumors. They sued Philadelphia-based Rohm and Haas in April 2006, alleging that vinyl chloride and other toxic chemicals from its Ringwood plant a mile and a half north fouled their air and groundwater.

Rohm and Haas, now a subsidiary of chemical giant Dow Chemical Co., acknowledges that a plume of volatile organic compounds has leaked into groundwater from decades of dumping by the previous owners into an unlined 8-acre waste pit. Past and present owners have been working for the past two decades to clean it up. But the company vehemently denies allegations that chemicals ever reached area residents or made them sick.

Original plaintiff Bryan Freund woke up Tuesday morning in his McCullom Lake home with the same headache he’s had almost every day since his December 2004 diagnosis. The oligodendroglioma brain tumor in his head grew in his most recent MRI.

But he takes it in stride compared to the fates of other plaintiffs. The lawsuit of the former neighbor to his right, Franklin Branham, was filed by his widow. The former neighbor to his left, Kurt Weisenberger, is crippled after a July emergency surgery.

Weisenberger, like Freund, has oligodendroglioma. While more survivable than glioblastoma, it is even rarer – about one person in 300,000 is diagnosed with it.

“Now I feel I’m surrounded by blessings because I have my mobility and my five senses,” Freund said.

Plaintiff Lance Kuhns, who grew up in the Lakeland Park subdivision on the other side of the lake in McHenry, lost his mobility several months ago. He’s in physical therapy with the hopes of getting it back. Kuhns now needs a wheelchair, and his brother, Todd, moved in with him to help take care of him.

“It just came out of nowhere. I was in my bedroom, doing something or another, and I just fell. My legs gave out,” Kuhns said.

His MRI taken last week came back clean, without the oligodendroglioma that a 2006 surgery – his second after it grew back – removed at the expense of a softball-sized dent in his head. But swelling and fluid buildup are a different matter – he now has a shunt in his head to help it drain.

Kuhns, like Freund, grew up next to someone who developed a brain tumor and sued. Their homes weren’t far from another set of childhood neighbors who grew up to develop brain tumors. The unusual links don’t end there; plaintiffs include unrelated people who spent time in the same homes at different times, and a mother and son, both deceased.

The case of Joanne Branham, Franklin’s widow, was the first to go to court in September 2010. It has remained in court since.

Waiting for a ruling

The trial in a Philadelphia courtroom was expected to last 10 weeks. It lasted five before the judge hearing the case angrily ended it over the expert testimony of the plaintiffs’ epidemiologist.

After a two-day cross-examination in which the epidemiologist’s testimony crumbled, Judge Allan Tereshko ended the trial before plaintiff’s attorney Aaron Freiwald, who had three more experts to call, could rest his client’s case. Tereshko called the epidemiologist’s testimony “an attempt to deceive the court” and “tantamount to fraud.”

Freiwald asked for a mistrial, but Tereshko ultimately sided with Rohm and Haas. In April 2011, almost five years to the day since the first lawsuits were filed, he granted the company’s motion to dismiss.

Freiwald immediately filed an appeal with the state Superior Court – what Pennsylvania calls its appellate court – in which he blasted Tereshko’s ruling as “a product of emotion and bias.” Chief among Freiwald’s many complaints was an allegation that Tereshko violated long-established court rules by ending the trial before his client rested. Judges typically end a trial in such manner – called granting nonsuit – if they conclude, after the plaintiff has presented all evidence, that the evidence does not support the allegations made.

The three Superior Court judges hearing the appeal have had it for deliberation since September 2012, after both sides had opportunities to make their cases. It asked the lower court at the end of May to justify its decision to throw out a claim of strict liability, or that the manufacturing plant did not engage in what the law calls “abnormally dangerous activity.”

If overturned, the case will most likely not go back to Tereshko. He was reassigned to family court in January, shortly after he stepped down as supervising judge of the civil court trial divisions under criticism in 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 case has since been reassigned to another judge.

How many years

Freund is confident that he will make it to trial, but he worries about Weisenberger.

Weisenberger lived with his tumor for years because doctors said it was too deep in his brain to remove surgically. But from June to July, it doubled in size, said his wife, Joanne. It then became a choice of removing the tumor or letting it kill him.

Joanne Weisenberger said she is unsure whether her husband will get his day in court.

“Look how many years it’s been already. Dow has more money than they know what to do with,” she said.

The Wierschkes are optimistic. Sandy’s most recent MRI caught the glioblastoma early, before it could grow the tentacles that make it so difficult to remove. Her most recent MRI revealed a half-inch-thick tumor that wasn’t there three months earlier, Tim Wierschke said.

Sandy Wierschke has high praise for her doctors, who are the same ones who have done her previous surgeries. Besides her original neurosurgeon, Dr. John Ruge, she will have the plastic surgeon, Dr. Lucio Pavone, who built a flap on top of her head to replace tissue that had died from previous intense radiation therapy.

Tim and Sandy Wierschke hope to keep beating the odds. Freund hopes for the same, both for himself and for his wife, Rusty, whose health has been failing.

“Brain cancer just doesn’t try to destroy you. It tries to destroy your life,” Freund said. “Unfortunately, it does a really good job.”

About this series

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

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