A Philadelphia judge was wrong in entering a compulsory nonsuit in the first of 30 cases over allegations that brain cancers were caused by a carcinogen leaking from a chemical plant, a plaintiff’s lawyer argued in front of the state Superior Court on Tuesday.
Philadelphia Court of Common Pleas Judge Allan L. Tereshko reasoned that an expert’s overnight change in his report was a proper cause for nonsuit even though the plaintiff’s lawyer had not completed his case. Tereshko reasoned that he did not need to wait for the plaintiff’s case to close or grant the plaintiff’s motion for mistrial because there was no other causation evidence.
President Judge Correale F. Stevens, Judge Kate Ford Elliott — who was president judge prior to Stevens — and Judge Cheryl Lynn Allen heard oral arguments Tuesday in Philadelphia.
Counsel for plaintiff Joanne Branham, who alleges her husband’s brain cancer was caused by exposure to a Rohm and Haas chemical, vinyl chloride, argued that Tereshko erred by not declaring a mistrial, by granting compulsory nonsuit under the wrong standard of review, by striking two of Branham’s experts, in striking her strict liability claim, and in not recusing himself.
Rohm and Haas, which is now owned by Dow Chemical Co., acquired the plant in Illinois where the vinyl chloride was manufactured and then allegedly negligently stored in 2009, The Legal previously reported.
Branham’s counsel, Aaron J. Freiwald of Layser & Freiwald, said during oral arguments that there can’t be a compulsory nonsuit before the plaintiff has completed his or her case.
Stevens asked why Freiwald did not call his other causation experts before the jury was dismissed.
Freiwald argued that he did not have a chance to call the other witnesses because after moving for a mistrial the defendants moved for judgment. Rohm and Haas’ counsel, Kevin T. Van Wart of Kirkland & Ellis in Chicago, however, said that Freiwald did not make an argument at a time that mattered.
“That was not an argument made to the trial court when it mattered, at a time when he was considering dismissing the jury,” Van Wart said.
Even if the plaintiff’s argument that a nonsuit should not have been entered is not waived, Rohm and Haas further argued that the case cannot proceed because Tereshko appropriately struck the plaintiff’s experts.
Epidemiologist Richard Neugebauer had his testimony struck after he was ordered by Tereshko to revisit a 2008 report because he testified that one of four observed cases of brain cancer that he relied upon for his analysis should not have been included, The Legal previously reported.
Neugebauer had included a woman who had glioblastoma brain cancer in his epidemiological analysis even though she did not live or work in the area and had only spent time in the area while visiting her parents. The criteria for inclusion in the study was supposed to be people who lived or worked in the area.
Neugebauer stayed up all night to do clarification of his old analysis, Freiwald said in oral argument, and when that new analysis was circulated to everyone for the first time, including Freiwald, “the court became furious and he struck Dr. Neugebauer in the middle of his testimony” and then said to the lawyers and to the jury that it was “tantamount to a fraud on the court.”
Freiwald said that he moved for a mistrial because of those “extremely prejudicial and improper comments” made in front of the jury.
“Seeing Judge Tereshko’s high emotion … meant in our own estimation there couldn’t be a fair trial at this point,” Freiwald said.
Van Wart said that there were only three causation experts, and that Neugebauer’s analysis was instrumental in forming the opinion of toxicologist Dr. Gary Ginsberg, who had not yet testified when Neugebauer’s testimony ran into trouble.
Tereshko also struck Ginsberg’s testimony on the theory that it was reliant upon Neugebauer’s stricken testimony.
Van Wart said that Ginsberg did review Neugebauer’s epidemiology evidence in order to form his toxicology testimony.
The plaintiffs have said that Ginsberg would have opined on general causation that vinyl chloride can cause brain cancer and specific causation that Franklin Delano Branham’s exposure to vinyl chloride was a “significant cause” of his brain cancer.
Van Wart said that Ginsberg repeatedly said in his expert report that his specific causation opinion regarding Franklin Branham was dependent upon the epidemiological finding of a brain cancer cluster. That finding was done by Neugebauer, he said.
“It’s clear they are completely related,” Van Wart said. “That’s why Judge Tereshko was able to make that finding.”
Ginsberg said in an affidavit that Neugebauer was not the most important basis for his opinion, but Ginsberg “bet upon the wrong horse” because another basis for his opinion also was lost when another expert was struck by Tereshko, Van Wart said.
Another causation expert, a neuropathologist, retracted his opinion as to the specific causation of the plaintiff’s brain cancer and admitted at trial he could not testify as he said before trial he could do, Van Wart said.
Freiwald countered in oral argument that Ginsberg was the principal causation expert, while the other experts were providing evidence of exposure to the chemical.
Ginsberg was the “ultimate witness who was going to link it all together,” Freiwald said.
Tereshko erred by entering a nonsuit, and that error was compounded when the trial judge made credibility determinations regarding the plaintiff’s experts, Freiwald said. It was the province of the jurors to decide that, Freiwald said.
At issue in the case is whether the release of vinyl chloride into the air and groundwater in and around McCullom Lake, Ill., a village with 1,100 residents, caused a brain cancer and tumor cluster with a higher rate of occurrence than brain cancer and brain tumors in the general population.
The issue of the trial judge’s recusal and Branham’s strict liability claim were not raised during oral arguments.
The Superior Court was in session at Temple University’s Beasley School of Law.
Amaris Elliott-Engel can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow her on Twitter @AmarisTLI.