Illinois Chemical Plant Case Set for Do-Over

(CN) - An Illinois woman won a second chance to prove in court that a chemical plant contaminated the groundwater, causing her late husband's death in their "cancer cluster" neighborhood.

Joanne Branham sued the Philadelphia-based Rohm and Haas Company on behalf of her late husband, Franklin Delano Branham. She claims her husband died of brain cancer after the company dumped vinyl chloride into an unlined pit for decades at its plant in Ringwood, Ill.

Thirty of Branham's neighbors in the McCullom Lake Village area filed similar lawsuits, claiming the company's pollution traveled a mile downstream and caused a cluster of brain cancer cases.

Branham sued for negligence, fraud and strict liability. But her case came to a screeching halt after the testimony of expert witness Dr. Richard Neugebauer, who admitted to making last-minute changes to his report that the defendants' attorneys may not have received.

Counsel for Rohm and Haas slammed Neugebauer's findings as a case of "Texas Sharpshooter Syndrome," comparing him to a "lousy cowboy" who shoots wildly at the side of a barn and them paints a bullseye around the bullet holes.

The trial court called Neugebauer's testimony "troubling" and "tantamount to fraud on the court." The court stated that besides those diagnosed with cancer, Neugebauer also counted people who visited or worked in the McCullom Lake area.

But Neugebauer was not the only plaintiff expert to face the trial court's wrath. The judge called neuropathologist Dr. Sidney Finkelstein's testimony "vacuous," "misleading" and "legally incompetent."

Six months later, the court granted the defendants' motion for nonsuit. Branham did not get a chance to present the testimony of her own main witness on causation, toxicologist Dr. Gary Ginsberg.

She appealed the nonsuit decision to the Pennsylvania Court of Appeals, which agreed the trial court's ruling was improper.

"We agree with Branham's contention that the trial court did not have the authority to enter a compulsory nonsuit before the close of her case-in-chief," Judge Kate Ford Elliott wrote for the appeals court. "As clearly stated in court rules, a trial court may enter a nonsuit on all causes of action if, at the close of the plaintiff's case on liability, the plaintiff has failed to establish a right of relief."

However, the appeals court ruled against Branham's challenge of the dismissal of her strict liability claim.

"Industrial plants store hazardous waste onsite all the time without incident; Branham's claim really boils down to negligence for failing to properly maintain or design the settling basin," Ford Elliot wrote. "Even if, as she claims, Rohm and Haas had actual knowledge that the waste facility was leaking, that evidence might be relevant to her claim for willful or wanton misconduct, and for punitive damages, but not strict liability."

The appeals court also denied Branham's request to recuse the trial judge from further proceedings.

"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 rulings on the parties' requests for mistrial or judgment in order to make a ruling without the passion it felt that day," the appellate panel held, remanding the case for trial.

Rohm and Haas attorney Kevin Van Wart, of Kirkland & Ellis, said his client is "disappointed" by the court's ruling.

"Rohm and Haas continues to believe that the plaintiff's injury claims cannot be supported by scientific evidence and will continue to defend itself in this matter on further proceedings," Van Wart said. "The company is evaluating its next step, including whether to seek an appeal to the Pennsylvania Supreme Court."

Branham's attorney, Aaron Freiwald of Layser & Freiwald, was delighted with the outcome.

"This is a great and just result for Mrs. Branham and all the families I represent in these cases," Freiwald said. "We are eager to return to the courtroom and see these cases tried to a jury verdict."

Dow Chemical purchased Rohm and Haas for more than $15 billion in 2009.

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