First McCullom Lake brain cancer plaintiff gets new trial

After almost four years, the first of 33 plaintiffs in the McCullom Lake brain cancer lawsuits is getting a new trial against specialty chemical company Rohm and Haas.

The Pennsylvania Supreme Court on Monday declined to hear the company's appeal of an appellate court's ruling overturning the 2011 dismissal of the lawsuit filed by Joanne Branham, who lost her husband to brain cancer a decade ago. The lawsuits filed since 2006 allege that decades of air and groundwater pollution from the company's plant a mile to the north in neighboring Ringwood caused a cluster of brain and pituitary tumors in McCullom Lake and a neighboring McHenry subdivision.

Plaintiffs’ attorney Aaron Freiwald said he is eager after a long wait to get Joanne Branham and the other plaintiffs their day in court. Both sides had just met with a judge to discuss expediting the schedule for the remaining cases. The cases are being heard in Pennsylvania because Rohm and Haas is based in Philadelphia.

“It’s taken four years, but we finally have the right to have the Branham trial resumed, and we’re very excited about that. We’re looking forward to getting justice for the Branham family as well as the other McCullom Lake victims,” Freiwald said.

The lawsuits allege that operations at the plant fouled residents’ air and groundwater with carcinogenic vinyl chloride. Rohm and Haas, now a subsidiary of Midland, Michigan, chemical giant Dow Chemical Co., acknowledges that a plume of volatile organic compounds has leaked into groundwater from years of dumping by the plant’s previous owners into an unlined 8-acre waste pit. However, the company vehemently denies that pollutants reached or sickened residents. Past and present owners of the plant have been working for the past two decades to clean up the contamination plume.

Branham, now living in Arizona, filed suit in April 2006 on behalf of her late husband of 43 years, 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. They were joined in coming years by current and former residents of the village, population 1,038, and the Lakeland Park subdivision on the McHenry side of the village’s namesake lake.

Her case went to trial in September 2010 in Philadelphia and was expected to last eight to 10 weeks. It lasted five before Judge Allan Tereshko angrily ended it over the expert testimony of the plaintiff’s epidemiologist. 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 for a dismissal in April 2011.

But a state Superior Court – what Pennsylvania calls its appeals court – sided with Freiwald and overturned Tereshko's ruling last October. The panel of two judges ruled 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 Chicago-based law firm of Kirkland & Ellis, which represents Rohm and Haas in the case, filed their unsuccessful supreme court appeal in January.

Branham also will get a new judge, despite the fact that the appeals court rejected Freiwald's request for one. Tereshko agreed to be reassigned to family court last year after an ethical gaffe in which the superior court in an unrelated case chided him for not disclosing a conflict of interest in the ruling it overturned.

Dow Chemical in a statement said it was disappointed by the ruling, and said it will continue to defend itself in court.

“Rohm and Haas continues to believe that the plaintiff’s injury claims cannot be supported by scientific evidence. Prior trial court rulings upheld by the Superior Court, including the dismissal of plaintiff’s strict liability claim and striking of the plaintiff’s expert epidemiology witness, further validate the company’s position,” the statement read.

Investigations into the alleged cluster by the Northwest Herald have cast doubt on the company's conclusions about the limited scope of the chemical contamination. It also revealed that the plant's previous owners, Morton International, withheld knowledge that the waste pit was leaking from the Illinois Environmental Protection Agency.

Newspaper stories also revealed serious flaws, including withholding contrary information from the public, in a study by the McHenry County Department of Health that attempted to conclude that no cluster existed and that fears of past contamination were unfounded.

The long wait for the plaintiffs – and in a growing number of cases, their next of kin – have been tough, Freiwald said. Twelve of the lawsuits are now on behalf of deceased people. Kurt Weisenberger, one of Branham's neighbors and one of the original three litigants, died last October, barely a day after the superior court overturned Branham's dismissal.

“These years of waiting are not without some very serious consequence. These families are entitled to their day in court, they’re entitled to justice, and [Monday’s] ruling means we can get back to that,” Freiwald said.

Both sides have to replace their primary epidemiologists. Rohm and Haas’ chief epidemiologist, senior University of California at Berkeley researcher Patricia Buffler, died last year.

Neighboring Modine Manufacturing Co. also was named in the lawsuits, which alleged that trichloroethylene leaking from its Ringwood plant contributed to the illnesses. The Racine, Wisconsin-based company in 2008 settled with the plaintiffs and settled a class-action lawsuit aimed at setting up medical monitoring for current and former village residents. Modine denied culpability in the settlement, and plaintiffs acknowledge that the plant's contribution to the pollution was minimal compared to Rohm and Haas.

Modine announced in April that it is closing the Ringwood plant over the next 18 months, resulting in the loss of 135 full-time jobs. The company designs and builds heat transfer products.

Tests of McCullom Lake's air and groundwater conducted in 2010 and 2011 at Rohm and Haas' expense concluded that the environment was free today from the chemicals blamed in the lawsuits for the brain cancer cases.

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.

As of 2014 there are 33 plaintiffs alleging that pollution caused a cluster of brain and pituitary tumors.

• Jan. 25, 2008: Modine Manufacturing, the smaller of the two defendants, 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 that it is buying Rohm and Haas for $15.3 billion. The sale becomes official the following year.

• 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.

Source: Northwest Herald archives