A year of attrition: For those battling cancer, fights for justice, survival drag on
By KEVIN P. CRAVER – kcraver@nwherald.com
The love of Frank Weisheit’s life sits cremated in a box in his Ringwood dining room.
Although he loves his sons and grandsons, he counts the days until he joins Judy, his wife of 42½ years.
She was diagnosed in April 2006 with brain cancer, weeks before three former McCullom Lake next-door neighbors with the same malady sued Ringwood manufacturers Rohm and Haas and Modine Manufacturing Co., alleging that pollution from the plants caused their illnesses. The Weisheits and two other families stricken with brain cancer sued a month later, days before the McHenry County Department of Health told residents that their concerns were unfounded.
Much has changed in the year since the Northwest Herald published a six-part investigative series on the cancers last December. But for Weisheit, only one thing matters – his wife’s February 2007 death the week before Valentine’s Day.
“Someday, I’ll be in the box on top,” Weisheit said, the loss still able to bring the Marine veteran to tears. “We don’t care where we go. As long as we’re together.”
McCullom Lake resident Sandy Wierschke was diagnosed with the same cancer the same month as Judy Weisheit. But Wierschke, 46, is doing well and still is able to work, although she needs an MRI every three months, chemotherapy every month and anti-seizure medicine every day.
Doctors diagnosed Wierschke and Weisheit with glioblastoma multiforme, a deadly brain cancer that affects three people per 100,000.
Before the end of 2006, the village of 1,000 people would see two more longtime residents, John Stepp and Julianna Mass, get diagnosed with the same disease.
One year after the newspaper told their stories, Wierschke is the only one left alive. Mass died last December, and Stepp died in April.
“I try not to think about that,” Wierschke said.
Twenty-two individual lawsuits, nine on behalf of next of kin, blame vinyl chloride pollution in air and groundwater for illnesses. A 23rd lawsuit filed in January was withdrawn this month.
A class-action lawsuit seeks medical monitoring and property value relief for village residents.
Medical monitoring
The most significant development in the past year has been the start of a medical monitoring program funded through a settlement offered by Modine.
Although Racine, Wis.-based Modine denies any culpability, it agreed to settle the class-action lawsuit for $2 million. Almost 700 current and former residents signed up for vouchers of up to $2,020, which began going out last month.
Plaintiffs’ attorney Aaron Freiwald said he was happy that residents could get screening, but he worried what more might be found.
“The best thing that could happen is that 695 people go to the doctor, get screened in whatever way they find appropriate, and find that there’s nothing there,” Freiwald said. “But I don’t know that that’s going to happen.”
McCullom Lake resident Bryan Freund, one of the original plaintiffs, worries about the same thing. For him, the impossible already has happened – he and former neighbor Kurt Weisenberger were diagnosed within a month of one another with oligodendroglioma, which occurs in fewer than one person in 100,000.
“I’m pretty afraid of what’s going to happen,” said Freund, 47. “I think a lot more people are going to get sick.”
For Philadelphia-based Rohm and Haas, which is fighting the lawsuits in court, the most telling thing in the past year is what has not changed. No village well has tested positive for any of the chemicals in the lawsuits.
“There have been at least 18 wells tested again within the past few months, and none of them have shown any contamination,” Rohm and Haas attorney Ralph Wellington said. “On that very point as well, following our expert reports, the science continues to validate there is no connection between the plant and McCullom Lake village in terms of contamination.”
Experts retained by Freiwald allege that manufacturers’ contamination, which has been charted in shallow groundwater since the 1980s, also made it to a deep aquifer which took it south to village wells. They also allege that residents were exposed through the air as the chemicals evaporated.
Day in court
The fate of the class-action lawsuit against Rohm and Haas rests with U.S. District Court Judge Gene Pratter.
After two years, both sides argued the class-action lawsuit in her Philadelphia courtroom over three days in June. Pratter must determine whether to certify the lawsuit, which could then proceed to a civil trial.
Both sides eagerly await her decision. Regardless, the individual cases are in Pennsylvania state court. Freiwald said they could begin going to trial next year, although he acknowledged that he said the same last year.
“Everything takes longer than you think it’s going to take,” Freiwald said. “You have to put all of the evidence together, all the experts together, and all the witnesses together, and so does Rohm and Haas.”
The company recently filed motions to dismiss nine of the lawsuits, primarily on statute of limitation grounds, Wellington said. Freiwald earlier this month withdrew the lawsuit of the late Edward Linnane because a link could not be established between his liver ailments and the contamination.
Filings
Days after Modine and Freiwald announced the tentative settlement in January, Rohm and Haas submitted a 1,500-page legal counterattack.
The arguments filed in federal court dispute every facet of Freiwald’s theories – they state that new monitoring wells show no trace of contaminants in the deep aquifer between the manufacturers and McCullom Lake.
Rohm and Haas’ experts said that elevated levels of chloride in some village wells – which Freiwald’s reports link to the closed 8-acre disposal pit at the site – came from local septic systems. They also accuse Freiwald’s experts of cherry-picking worst-case numbers regarding air contamination.
“There’s just been further confirmation that the residents of McCullom Lake village can be comforted that there’s no exposure there,” Wellington said.
Freiwald defends the science of his experts.
“It’s very typical for both sides to challenge the other side’s experts. That’s a pretty standard litigation strategy,” Freiwald said.
Rohm and Haas filed a motion to rule Freiwald’s expert reports inadmissible, which the judge has not done. Freiwald succeeded in October in getting the company’s expert neuropathologist disqualified in the state cases for having inappropriate communications with an epidemiologist consulted by Freiwald.
As for the mapped contamination, Rohm and Haas last May drilled two new extraction wells to expand its cleanup system. Illinois Environmental Protection Agency permission to run the expansion could come next month, Rohm and Haas spokesman Syd Havely said.
Day by day
Freund’s latest MRI, done this month, shows that his relapsed brain tumor isn’t getting any larger. In his McCullom Lake home, that passes for good news.
In the past year, he officially has closed his home jewelry business, a formality because he had been unable to work since his December 2004 diagnosis. The space it occupied now is a family room.
The “closed” sign posted in the doorway now sits on a table below a frame holding the 23rd Psalm – Freund and his wife, Rusty, credit their faith for helping them through.
Freund has been off chemotherapy for more than a year. Doctors stopped it because it wasn’t doing any good. He gets headaches that can last up to four days.
“It’s a drag when you run into people you haven’t seen for years,” Freund said. “They ask you how you’re doing, and the generic ‘fine’ doesn’t cut it.”
But he’s alive, a fact of which he never loses sight, and hopes that some greater good comes out of the plaintiffs’ plights, which were featured last week on the CBS Evening News.
For the first time in 13 years, a Christmas tree sits in the Freunds’ living room. They were too busy to put one up when they had a home business to run, and did not get much into the Christmas spirit after Freund fell ill, said Rusty Freund, who has health troubles of her own.
“We don’t know how much time either of us have left,” she said. “Whatever time we have left, we want to enjoy.”
Timeline of events
Some of the events that took place in the year since the Northwest Herald’s six-part series on the McCullom Lake brain cancer cases that ran Dec. 16-21, 2007.
Dec. 15, 2007 – Plaintiff Marion Kane, 75, dies of brain cancer the day before the series runs.
Dec. 30 – Plaintiff Julianna Mass, 68, dies of brain cancer.
Jan. 23, 2008 – McHenry County health officials in a special meeting defend the health department’s epidemiology analysis and criticizes the plaintiffs’ attorney and the Northwest Herald.
Jan. 25 – Modine Manufacturing Co., one of the two defendants in the lawsuits, announces its intention to settle out of court, agreeing to pay $2 million toward medical monitoring and property damage relief, and to settle with the individual plaintiffs for undisclosed amounts.
Jan. 25 – The family of the late Edward Linnane, who died in 1993 of liver cancer at age 74, becomes the 23rd plaintiff to sue, but plaintiffs’ attorney Aaron Freiwald withdraws the lawsuit in December.
March 10 – An accident at the Rohm and Haas plant in Ringwood releases 2.5 tons of vinylidene chloride, a chemical blamed for the brain cancers in the lawsuits.
April 4 – Plaintiff John Stepp, 56, dies of brain cancer.
June 12-13, 20 – A class action lawsuit certification hearing takes place over three days before a U.S. District Court judge in Philadelphia.
July 10 – Dow Chemical Co. agrees to buy Rohm and Haas for more than $15.3 billion.
Aug. 26 – A federal judge gives final approval to the Modine settlement. It had been delayed and tweaked after Rohm and Haas submitted documents showing that the MRI company offering to do screenings at discounted rates had been sued for allegedly paying kickbacks to doctors in exchange for patient referrals. Almost 700 people qualify for medial monitoring, and more than 250 for property value reimbursement.
Source: Northwest Herald archives
Note to readers
This is the first story in a two-part series on the developments in the McCullom Lake brain-cancer lawsuits since the Northwest Herald published a six-part investigative series – “Coincidence or Cluster?” – in December 2007.
On the Web
In a video interview, Bryan and Rusty Freund of McCullom Lake talk about Bryan’s illness and the events of the past year.
Need to catch up? Read stories and plaintiff biographies and watch videos from the ongoing series.
Coming Monday
McHenry County Department of Health officials received copies of documents calling into question a groundwater report they relied on a year before the newspaper’s 2007 series revealed them. What did officials do with them?
