The chemical company blamed in 33 lawsuits for causing a brain cancer cluster in McCullom Lake wants the Pennsylvania Supreme Court to overturn a decision granting the first plaintiff a new trial.
In a 20-page request dated Jan. 21, attorneys for Rohm and Haas petitioned the state’s highest court to uphold a trial judge’s 2011 dismissal of the case. A Pennsylvania appeals court in October overturned the lower court’s decision to dismiss the case and grant judgment in favor of the Philadelphia-based chemical company, whose Ringwood plant is accused in 33 lawsuits of causing a cluster of brain and pituitary tumors in McCullom Lake and the neighboring Lakeland Park subdivision in McHenry.
The company’s attorneys are asking the seven justices to uphold the dismissal overturned by the Superior Court – what Pennsylvania calls its appellate court – to correct what it calls a “drastic departure” from procedure and law and “reverse the damage” it alleges the ruling could do.
“If allowed to stand, the Superior Court’s decision will severely restrict trial courts’ ability to manage complex trials and enter judgment when a case has ended and the plaintiff cannot prove liability,” the appeal from the Chicago law firm of Kirkland & Ellis stated.
A departure from law and procedure was the very grounds on which the Superior Court overturned the dismissal of plaintiff Joanne Branham’s case.
Branham lost her husband of 43 years, Franklin, to glioblastoma multiforme brain cancer in 2004. She sued in 2006, along with two of her former next-door neighbors, who were diagnosed with oligodendroglioma, an even rarer type of brain tumor that normally occurs in 1 in 300,000 people.
The 33 lawsuits allege that carcinogenic vinyl chloride and related compounds from the plant’s operations fouled residents’ air and groundwater. While Rohm and Haas acknowledged that a plume of chemicals has leaked into groundwater from decades of dumping by the previous owners into a now-closed, unlined 8-acre waste pit, they vehemently deny allegations that the chemicals reached residents or made them sick.
The case went to trial in September 2010, but Judge Allan Tereshko angrily ended it over the expert testimony of the plaintiff epidemiologist Richard Neugebauer.
After his testimony crumbled during a two-day cross-examination, Tereshko ended the trial and called Neugebauer’s report “an attempt to deceive the court” and “tantamount to fraud.” Tereshko in April 2011 disregarded plaintiff attorney Aaron Friewald’s motion for a mistrial, and granted Rohm and Haas’ motion to dismiss.
But the Superior Court overturned Tereshko and granted Branham a new trial after the two-judge panel concluded that Tereshko clearly erred when he granted Rohm and Haas nonsuit before the plaintiff had rested her case. Nonsuit is typically granted when a judge rules after a plaintiff rests that the evidence presented does not support the claim.
Should Branham, now living in Arizona, get a new trial, it will be before a new judge. Tereshko has since transferred to family court over an unrelated ethical gaffe.
Twelve of the 33 individual lawsuits are on behalf of deceased people.
The individual lawsuits originally included neighboring Ringwood plant Modine Manufacturing, which records show contributed the industrial solvent trichloroethylene to the contamination plume. Racine, Wis.-base Modine denied any culpability, but settled out of court with plaintiffs in 2008 for undisclosed sums and settled out of a federal class-action lawsuit by funding medical monitoring for McCullom Lake residents.
Tests of McCullom Lake’s wells and air in 2010 and 2011 – paid for by Rohm and Haas – did not find the contaminants in well water, and found air contaminants well below federally-accepted levels.
Rohm and Haas, now a subsidiary of Dow Chemical Co., fought the class-action lawsuit. A federal judge did not certify it, ending the case.
About this series
“Coincidence or Cluster?” is the Northwest Herald’s ongoing coverage of the McCullom Lake brain cancer lawsuits.