Rohm and Haas has settled the 33 cancer cluster lawsuits brought against it by McCullom Lake-area residents, ending a legal fight that began more than eight years ago.
The Pennsylvania judge hearing the cases has approved the settlement, the details of which have not been disclosed. The settlement comes several months after the courts granted the first plaintiff a new trial, ending a four-year legal limbo created when her case was improperly dismissed.
Both sides have remained tight-lipped while details have been finalized – Rohm and Haas declined comment Friday – but plaintiffs’ attorney Aaron Freiwald said he and his clients are satisfied with the results.
“It’s been a long road for these families, and we’re pleased with the outcome, and gratified that there is now this resolution,” Freiwald said.
The lawsuits alleged that decades of pollution from the company’s plant in neighboring Ringwood fouled air and groundwater with carcinogenic vinyl chloride and other harmful chemicals, and caused a cluster of brain and pituitary tumors in McCullom Lake, population 1,049, and the Lakeland Park subdivision in neighboring McHenry.
Three former McCullom Lake next-door neighbors diagnosed with brain cancer within a short period of time sued the Philadelphia-based specialty chemicals manufacturer in 2006, prompting concern as more and more plaintiffs came forward.
Rohm and Haas – since 2009 a subsidiary of Midland, Michigan-based chemical giant Dow Chemical Co. – acknowledges that a plume of vinyl chloride and other volatile organic compounds have leaked into groundwater from years of dumping by the plant’s previous owners into an 8-acre unlined waste pit. However, the company vehemently denies that pollutants reached or sickened neighbors. Past and present owners of the plant have been working for the past two decades to clean up the contamination plume.
The original lawsuits also named the neighboring Modine Manufacturing plant, alleging that its contribution of trichloroethylene to the plume made it culpable for illnesses. Modine settled with the plaintiffs in 2008 for undisclosed amounts.
The first case to go to trial was that of Joanne Branham, who lost her husband of 43 years to glioblastoma multiforme brain cancer in 2004. Her other two former neighbors, Bryan Freund and Kurt Weisenberger, were diagnosed with oligodendroglioma, a brain tumor so rare that statistically should appear only once in a population of 300,000, like McHenry County.
For Branham, now living in Arizona, the victory is bittersweet.
“I was so happy inside at first that we finally got justice done, but on the other hand, I started to cry afterwards because there isn’t anything that will bring Frank back, you know what I mean? The last gift I could have given to him was to fight for what is right,” Branham said.
Branham got her day in court in September 2010, and the trial was expected to last eight to 10 weeks. It lasted five before Judge Allan Tereshko angrily ended it over the expert testimony of the epidemiologist retained by Freiwald. After a two-day cross examination in which the epidemiologist’s testimony crumbled, Tereshko ended the trial, calling his report “an attempt to deceive the court” and “tantamount to fraud.” He granted Rohm and Haas’ request to dismiss the case in April 2011.
But a state Superior Court – what Pennsylvania calls its appeals court – sided with Freiwald and overturned Tereshko’s ruling in October 2013, ruling that Tereshko clearly erred when he ended the trial and granted Rohm and Haas nonsuit while Freiwald still had three more experts to call. Nonsuit under court rules is granted when a judge rules, after the plaintiff presents all his evidence and rests the case, that the evidence does not support the claim.
The Pennsylvania Supreme Court declined last August to hear the case, thus granting Branham a new trial. Settlement talks began soon afterward under a new judge, according to the court docket. Thirteen of the lawsuits are on behalf of deceased plaintiffs – three died during the four-year appeal of Branham’s ruling.
Plaintiffs often felt like they had to wage two battles – one against Dow and the other against a county government they felt had the company’s interests more in mind than theirs. The McHenry County Department of Health shortly after the first lawsuits concluded that contamination from the plant did not contaminate the village or sicken residents, but Northwest Herald investigations concluded the department’s work was haphazard and scientifically unsound, and discounted data that contradicted its findings.
The lawsuits caused controversy in McCullom Lake from the start, worrying many about their safety and property values and dividing others over the merits. Village President Terry Counley, who fought for years with often recalcitrant county and state government to get answers for his constituents, congratulated the plaintiffs, but said he would have liked answers that could have come out at trial.
Counley’s persistence resulted in testing, paid for by Dow, that concluded that air and groundwater in the village are clear today of any contaminants known to come from the plant. But records uncovered during legal discovery, and in newspaper investigations, cast doubt on assertions from current and former plant owners that the contamination’s boundaries were clearly defined.
“Hopefully this brings some closure to them. However, I don’t see any closure for the village as to what happened. Where are we now? I don’t see that coming now,” Counley said.
Branham said she is happy she will not have to go to trial again – an experience she called “devastating” – and that other families are likewise spared, although several in the past said they relished the opportunity to fight.
“I’m glad it’s done for them, too, I really am,” Branham said. “I don’t want them to go through what I went through in the courtroom day after day, and I just hope it will help them, even if just a little bit, to know that we won. But it will never bring back the people we lost, and I’m very sad about that, too. We won, but what we had to go through? What [the chemical company] did was so very, very wrong.”
Racine, Wisconsin-based Modine announced earlier this year that it is closing the Ringwood plant, resulting in the loss of 135 full-time jobs.
Timeline of events
• April 25, 2006: Lawsuits are filed alleging that air and groundwater contamination from Ringwood manufacturers Rohm and Haas and Modine Manufacturing caused brain cancer in three former McCullom Lake next-door neighbors. Philadelphia attorney Aaron Freiwald files the neighbors’ lawsuits in Pennsylvania state court, and a class-action lawsuit on behalf of McCullom Lake residents in federal court.
• Jan. 25, 2008: Modine Manufacturing, the smaller of the two plaintiffs, agrees to settle out of court. The company denies culpability but pays $1.4 million toward medical monitoring, and settles with plaintiffs for undisclosed sums. A federal judge approves the settlement in August. Two plaintiffs who sue in 2009 are diagnosed through screening financed by the settlement.
• July 10, 2008: Dow Chemical announces it is buying Rohm and Haas for $15.3 billion. The sale becomes official the following year.
• March 5, 2010: A federal judge declines certifying the class-action lawsuit, which sought to force Rohm and Haas to pay for medical monitoring and compensation for property values.
• Sept. 20, 2010: Joanne Branham’s case goes to trial in Philadelphia state court.
• Oct. 21, 2010: Five weeks into the trial, Judge Allan Tereshko abruptly ends it and dismisses the jury after alleging that the testimony of plaintiff’s epidemiologist was “tantamount to fraud” and “an attempt to deceive the court.”
• April 28, 2011: Tereshko officially dismisses the first case. Freiwald blasts the judge’s decision as “a product of emotion and bias” and files an appeal a week later.
• February 2012: Plaintiffs’ counsel decides to end the class-action lawsuit – a federal judge denied certification in 2010, and a federal appeals court upheld her rejection in late 2011.
• Oct. 24, 2012: Tereshko resigns as the court’s civil chief after an appellate court chastised him for an ethical gaffe. He is reassigned to family court and can no longer hear the case.
• Oct. 9, 2013: A Pennsylvania appeals court overturns Tereshko’s dismissal of the case and grants Branham a new trial. Rohm and Haas files an appeal Jan. 21, 2014, to the Pennsylvania Supreme Court.
• Aug. 25, 2014: The Pennsylvania Supreme Court declines to hear the appeal.
• Dec. 17, 2014: Rohm and Haas settles the 33 cases for unspecified amounts.
Source: Northwest Herald archives
About this series
“Coincidence or Cluster?” is the Northwest Herald’s ongoing coverage about the McCullom Lake brain cancer lawsuits.