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Court rejects Rohm and Haas' appeal over brain cancer trial

Published: Monday, Dec. 23, 2013 12:18 p.m. CDT • Updated: Monday, Dec. 23, 2013 11:16 p.m. CDT

The first McCullom Lake brain cancer trial is either headed back to civil court for a second chance or to the Pennsylvania Supreme Court.

The Pennsylvania Superior Court – what the state calls its appellate court – rejected a request by chemical manufacturer Rohm and Haas to have all 18 judges on the appeals bench reconsider a ruling that overturned the dismissal of the first case and ordered a new trial.

Such appeals, called “en banc” appeals, are rarely granted and are often a procedural step before a case can be appealed to a supreme court.

The Superior Court denied the request Thursday in a one-page, one-sentence ruling.

The 2006 lawsuit filed by former McCullom Lake resident Joanne Branham is one of 33 alleging that pollution from the company’s specialty chemical plant in Ringwood caused a cluster of brain and pituitary tumors in the area.

Branham’s husband, Franklin, died of deadly glioblastoma multiforme brain cancer in 2004. Two of her former next-door neighbors, Bryan Freund and Kurt Weisenberger, were diagnosed with an even rarer brain tumor called oligodendroglioma.

Glioblastoma occurs in about 3 people per 100,000, while oligodendroglioma occurs in about one person per 300,000.

Weisenberger died in the early morning hours of Oct. 11, barely a day after the Superior Court granted Branham a new trial after a 2 1/2-year appeal process.

The lawsuits allege that carcinogenic vinyl chloride and related compounds from the plant’s operations fouled residents’ air and groundwater. Rohm and Haas, now a subsidiary of 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, but vehemently denies allegations that it reached or sickened residents. Past and present owners have been working for the past two decades to clean up the contamination plume.

The two-judge panel ruled that the lower court erred when he stopped the case five weeks into the 2010 trial, before the plaintiff rested, and after angrily ruling inadmissible the testimony of the plaintiffs’ expert epidemiologist as “an attempt to deceive the court” and “tantamount to fraud.”

Judge Allan Tereshko sided with Rohm and Haas and dismissed the lawsuit outright in April 2011, almost five years to the day after it was first filed. But the Superior Court, among other things, concluded that Tereshko was wrong to grant Rohm and Haas nonsuit before the plaintiff’s attorney Aaron Freiwald and his client rested their case. Nonsuit is typically granted when a judge rules – after the plaintiff rests – that the evidence presented does not support the claim.

If Branham, now living in Arizona, does get a new trial, it will be before a new judge – Tereshko has since been transferred to family court.

Twelve of the 33 lawsuits are on behalf of deceased people.

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