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Rohm and Haas appeals new trial for brain cancer plaintiff

Published: Monday, Nov. 18, 2013 4:21 p.m. CDT • Updated: Monday, Nov. 18, 2013 11:11 p.m. CDT

Attorneys for Rohm and Haas are asking Pennsylvania’s appellate court to reconsider an October ruling overturning the dismissal of the first McCullom Lake brain cancer trial.

The company wants all 18 judges on the bench of the Superior Court – what Pennsylvania calls its appellate court – to re-evaluate a ruling by two of its members that granted McCullom Lake widow Joanne Branham a new trial after a 2 ∏-year appeal. Branham is one of 33 plaintiffs accusing the Philadelphia-based company’s specialty chemical plant in Ringwood of causing a cluster of brain and pituitary tumors in the McCullom Lake area.

A two-judge panel Oct. 9 ruled that a lower court judge erred when he stopped the case five weeks into the trial, before plaintiff rested, and after angrily dismissing the testimony of plaintiffs’ expert epidemiologist as “an attempt to deceive the court” and “tantamount to fraud.”

Rohm and Haas filed what is known as an “en banc” appeal in asking the entire bench to review the decision of some of its judges. The company in its appeal maintains that Judge Allan Tereshko acted correctly in stopping the trial, and eventually ruling in the company’s favor.

“This is an untenable result that unnecessarily ties a trial court’s hands. It either forces the court, parties and jury to continue with what amounts to a show trial, or it rewards a plaintiff whose witness’s misconduct caused her case to implode with a chance to start over,” the petition states.

The next and last step for Rohm and Haas should the en banc appeal fail is the Pennsylvania Supreme Court. Rohm and Haas would have 30 days from the denial to do so under that state’s laws.

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.

Branham filed suit in April 2006 on behalf of her late husband, Franklin, who died of glioblastoma multiforme brain cancer in 2004. She filed suit days after two of her former next-door neighbors did so – they were diagnosed with an even rarer type of brain tumor that normally occurs in one person per 300,000. One of the neighbors, Kurt Weisenberger, died barely a day after the Superior Court overturned Tereshko’s ruling.

Branham’s case went to trial in September 2010, but Tereshko ended it over problems with the expert testimony of plaintiffs’ epidemiologist Richard Neugebauer. He threw out Neugebauer’s testimony after a two-day cross-examination in which his testimony crumbled. Tereshko ended the case with plaintiff’s attorney Aaron Freiwald, who still had three more experts to call, asking for a mistrial, and with Rohm and Haas’ counsel asking for a dismissal. Tereshko sided with Rohm and Haas and dismissed the case in April 2011.

The appellate court judges who overturned Tereshko concluded that he clearly erred when he granted Rohm and Haas nonsuit before Freiwald and his client rested their case. Freiwald in a response to Rohm and Haas’ en banc appeal request reminded the court of the same.

“Notwithstanding the voluminous record and appellees’ efforts to reshape what happened at trial, the issue is as simple as the panel found it to be: The trial court abused its discretion by clearly ignoring the clear language of [rules] regarding nonsuit,” Freiwald wrote.

The ruling also handed Freiwald another victory by overturning Tereshko’s decision to strike the testimony of another expert, who testified that tissue samples from 10 of the plaintiffs have the exact same chromosomal damage and therefore a common exposure.

Should Rohm and Haas’ appeal be ultimately denied, Branham’s new trial will be held before a different judge. Tereshko was transferred to family court earlier this year after a separate appellate court panel chastised him in an unrelated case for not divulging a conflict of interest.

Twelve of the 33 lawsuits against Rohm and Haas are on behalf of deceased people. 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.

About this series “Coincidence or Cluster” is the Northwest Herald’s ongoing coverage of the McCullom Lake brain cancer lawsuits.

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