The state Supreme Court has declined to hear a brain-cancer-cluster case against Rohm and Haas that was initially dismissed, but revived later by the state Superior Court.
In an order Monday, the high court denied Dow Chemical subsidiary Rohm and Haas’ request for allowance of appeal in Branham v. Rohm and Haas.
Nearly a year ago, in October 2013, a three-judge Superior Court panel ruled that Philadelphia Court of Common Pleas Judge Allan L. Tereshko overstepped his authority in tossing the suit before the plaintiff finished presenting her case.
“Rohm and Haas is disappointed by the ruling of the Supreme Court of Pennsylvania, Eastern District, denying the petition for allowance of appeal. Rohm and Haas continues to believe that the plaintiff’s injury claims cannot be supported by scientific evidence,” a Rohm and Haas spokesperson told The Legal.
“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 spokesperson continued. “Rohm and Haas continues to believe that the trial court reached the correct result in dismissing this case and will continue to defend itself in this matter on further proceedings.”
Plaintiff Joanne Branham’s attorney, Aaron J. Freiwald, said the Supreme Court’s decision to deny allocatur was a win, indirectly, for other plaintiffs in Rohm and Haas brain-cancer cases.
“On behalf of Branham and 32 other families, we’re very pleased with the decision and are looking forward to getting back into the courtroom with these cases,” Freiwald said.
Freiwald said it was worth noting also that Tereshko had upheld the plaintiff’s negligence and fraud claims against Rohm and Haas.
In the Superior Court’s memorandum opinion, Judge Kate Ford Elliott said Tereshko was wrong to dismiss the jury before the plaintiff’s case-in-chief was completed.
“As the trial court was not authorized to enter a nonsuit … at the point the jury was dismissed, we must vacate the judgment entered in Rohm and Haas’ favor and remand for new trial,” Ford Elliott 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 suit was initiated by Branham, whose husband died at age 63 of a malignant brain tumor in May 2006, the opinion noted.
Branham sued Rohm and Haas for strict liability, negligence and fraud, alleging that her late husband’s glioblastoma multiforme was caused by his exposure to the chemicals that were “recklessly dumped” by Rohm and Haas, Ford Elliott said, noting that Branham’s case was the first of several brain-cancer suits against Rohm and Haas originating from McCullom.
On Oct. 19, 2010, Rohm and Haas cross-examined one of Branham’s expert witnesses, Dr. Richard Neugebauer, an epidemiologist, and revealed serious problems with his study of the prevalence of brain cancer in McCullom, according to Ford Elliott.
Neugebauer became unsure if one of the individuals he had used in his analysis was properly included in the study and admitted to making last-minute changes to his report that Rohm and Haas’ attorneys may not have received, Ford Elliott said.
After Neugebauer’s testimony had concluded, Tereshko granted Rohm and Haas’ motion to strike Neugebauer as an expert witness, claiming that Neugebauer’s testimony was “tantamount to fraud on the court.” According to Ford Elliott, Tereshko dismissed the jury, contending that it would not be viable to ask the jury to disregard Neugebauer’s testimony.
Ford Elliott said at the point of Tereshko’s jury dismissal, Branham had not yet had the chance to present all of her expert witnesses, including her main expert, toxicologist Dr. Gary Ginsberg.
Afterward, Branham appealed to the Superior Court, claiming that the trial court did not have the authority to grant a nonsuit before she finished presenting her case.
“We agree with the [plaintiff's] contention,” Ford Elliott said. “We find no authority to support Rohm and Haas’ claim that a trial court can grant a nonsuit in the middle of a trial before a plaintiff is finished presenting her evidence based on its own evaluation of the remaining evidence.”
Ford Elliott explained that a nonsuit can only be issued after all of a plaintiff’s liability evidence has been presented to the jury.
Ford Elliott also noted that Tereshko improperly struck the testimony of Branham’s first expert witness, neuropathologist Dr. Sydney Finkelstein.
Branham argued additionally that the court should require Tereshko to recuse himself from further proceedings in the case, Ford Elliott noted.
In terms of recusal, however, the court decided against Branham.
“Over the course of this litigation, the trial court has shown no partiality to either party and made numerous rulings in favor of each party,” Ford Elliott said. “Although the trial court admitted it was ‘subject to emotion’ after striking Dr. Neugebauer’s testimony which it concluded may have been ‘tantamount to fraud,’ the trial judge deferred ruling on the parties’ requests for mistrial or judgment in order to make a ruling without the passion it felt that day.”
Ford Elliott said even though Tereshko’s ruling was incorrect, his attempt to distance himself from the emotion he felt showed that he had a conscientious awareness of the need to remain impartial.