PHILADELPHIA (CN) – A state court judge heard oral arguments in the case of a chemical-manufacturing giant accused of causing a deadly cancer cluster in a tiny village of rural Illinois.
In what the plaintiff’s attorney described as “a mini-mass tort,” 32 plaintiffs say the Rohm and Haas Company, a Dow Chemicals subsidiary, knew for years that a massive plume of carcinogenic groundwater had migrated into the 1,000-person village of McCullom Lake, located about a mile downstream from the company’s plant.
The plaintiffs say the chemical vinyl chloride caused a raft of rare brain cancers among village residents. One such casualty was Franklin Branham, who died at 63 of glioblastoma.
Two years after Branham’s 2004 passing, his widow, Joanne Branham, sued Rohm and Haas and other companies that did business at the Ringwood, Ill., plant.
In September 2010, Branham became the first plaintiff to bring her case to trial.
Barely a month into proceedings, however, Court of Common Pleas Judge Allan Tereshko dismissed the jury amid allegations that one of Branham’s expert witnesses changed his epidemiological report one night mid-trial.
In aborting the case, Tereshko called those changes “tantamount to a fraud on the court,” and ordered that the testimony of Columbia University epidemiologist Dr. Richard Neugebauer be stricken.
Branham’s attorney, Aaron Freiwald of Philadelphia-based Layser & Freiwald, moved for a mistrial.
Attorneys for Rohm and Haas moved for summary judgment or for a judgment of compulsory non-suit.
Tereshko gave both sides one hour apiece to argue those motions on Thursday – six months to the day that he terminated the first trial.
Freiwald argued that a de facto mistrial has already occurred. “All that remains with respect to a mistrial is to pronounce the words,” he said. “Here, 6 months later, we have nothing else to call it.”
The dismissal of the jury created “prejudice all around,” Freiwald argued, adding that a mistrial alone could protect his client’s interests.
Freiwald rejected the defense’s contention that a mistrial would “award” Branham for Dr. Neugebauer’s improprieties and give the plaintiff a “second bite at the apple.”
In the past 6 months, another two plaintiffs have died, and a considerable sum of money has already gone toward the protracted litigation, he argued.
Though Neugebauer, the epidemiologist, has taken responsibility for “whatever mistakes there were,” Freiwald argued that, “in the end, Dr. Neugebauer still ends up with statistically significant areas of brain cancer rates” in the village of McCullom Lake.
“We believe that Dr. Neugebauer should not be precluded,” he said. “We believe there’s evidence to warrant reconsidering that ruling.”
Carl Solano, an attorney with Schnader Harrison Segal & Lewis, who represents Rohm and Haas, disagreed.
“[There’s] really no question that his testimony was false,” Solano said, with regard to Neugebauer. “Egregiously false. … He’s off the table.”
He added that the case is “extraordinary.”
“We’re in uncharted territory,” Solano said. “We have the plaintiff moving for a mistrial for her own case in chief.”
A motion for mistrial is “meant to address the other side’s conduct, not your own,” Solano said.
“Defendants asked that the trial be completed,” he said. “They [Branham’s attorneys] said no, no, no, no, no, we want the case ended now.”
Branham wants “a do-over,” and her motion for mistrial is merely an attempt “to salvage your own case when you’re not liking the way it’s going,” Solano said.
“This is not a mistrial situation,” this is “a voluntary termination of their case,” he said.
“They tried their case. They had that opportunity.”
Kevin Van Wart of Kirkland & Ellis, also representing Rohm and Haas, argued that Neugebauer’s tainted study was an “important baseline source of information in the case.”
Pointing to a large cardboard display on an easel in the middle of the courtroom, he said the resulting consequences have caused “dramatic changes in his analysis.”
The changes severely attenuated the alleged concentration of cancer cases in the tiny village, Van Wart said.
Since another expert witness, toxicologist Dr. Gary Ginsberg, premised his findings on Neugebauer’s stricken testimony, Ginsberg’s testimony is now tainted as well, the defense argued.
Ginsberg had provided a “detailed, individualized, expert assessment” for eight of the plaintiffs, Freiwald said, adding that the expert determined that the pattern of genetic mutation found in the tissue was extraordinary and suggested an extrinsic cause.
“He did not recant that opinion,” Freiwald said.
At the hearing, Solano moved to strike the plaintiff’s third expert witness, neuropathologist Dr. Sydney Finkelstein, who previously testified about alleged chromosomal damage to the DNA in brain tissue he analyzed from village residents.
“On cross-examination, something truly remarkable happened,” Solano said. Finkelstein “recanted repeatedly” his determination that vinyl chloride caused the damage, and admitted there were “all sorts of chemicals” that could have been responsible, including the sundry “chemicals found commonly in cigarette smoke,” Van Wart argued.
Van Wart pointed out that Branham smoked 600,000 cigarettes in his life and worked with carcinogenic wood-stripping solvents.
Freiwald had admitted that damaged chromosomes don’t “have a sign around their neck that says ‘I’m vinyl chloride,'” the lawyer said.
But legal precedent does not require an expert to explicitly rule out every possible cause for a plaintiff’s disease, Freiwald continued.
After nearly five years of legal wrangling, Judge Tereshko told the parties to expect a decision in the next two weeks.
Eight of the 32 cases are being bundled together for discovery purposes.
Judge Tereshko is expected to specify whether or how his decision in the Branham case will affect the remaining cases.
“I just hope that my findings will reflect my endeavor to get to the heart of the matter,” he said.