Rohm Haas Dodges First Cancer-Cluster Lawsuit

PHILADELPHIA (CN) - A Philadelphia judge cleared chemical giant Rohm and Haas in the first of 32 cases over a purported cancer cluster in rural Illinois, diagnosing the plaintiff's epidemiological expert as having a bad case of "Texas Sharpshooter Syndrome."

The Syndrome, also known by experts as "boundary shrinkage," is a fairly common epidemiological fallacy that occurs when a scientist samples a geographic area that is drawn too narrowly around an alleged cluster of disease.

"Dr. [Richard] Neugebauer was the Texas sharpshooter," Kevin Van Wart of Kirkland & Ellis, representing Rohm and Haas, told Courthouse News.

"These types of cases - they attract attention, and they are easily exploited," he said.

"These [instances of brain cancer] were just random occurrences, and that is the danger in these types of cases, because it's easy to manipulate the statistics to make it seem like something abnormal," he said.

And that's precisely what Neugebauer did, Court of Common Pleas Judge Allan Tereshko found in an opinion dismissing lead plaintiff Joanne Branham's case and granting Rohm and Haas' motion for compulsory non-suit.

Branham sued the company in May 2006, claiming a massive plume of carcinogenic groundwater had migrated about a mile downhill from Rohm and Haas' Ringwood, Ill., plant, contaminating the water in the village of McCullom Lake and causing her husband to develop the brain cancer that killed him in 2004.

In September 2010, Branham's case became the first of 32 to go to trial.

During opening statements, the defense likened the approach of a scientist in the throes of Texas Sharpshooter Syndrome to that of a "lousy cowboy" who shoots his gun into the side of a barn, then proceeds to draw bull's-eyes around the bullet holes.

The Standard Incidence Ratio (SIR), a key barometer in discerning the existence of a disease cluster, compares the number of actual, observed occurrences of a disease in a defined area to the number of occurrences that would normally be expected.

In his 49-page opinion, Tereshko found that Neugebauer distorted that ratio by sampling excessively narrow geographic areas around known brain cancer cases, and ignoring the areas with little or no cases.

By "gerrymandering" his study population and choosing to analyze an area that would "conform ... closely to the area where he knew the observed cases were," Neugebauer artificially inflated the Standard Incidence Ratio of brain cancer in the McCullom Lake area, Tereshko found.

"The other method Dr. Neugebauer used to manipulate the SIR was the inclusion of observed cases that did not satisfy the rules for such inclusion," the judge found.

Tereshko pointed to a police officer who worked, but didn't live, in the village of McCullom Lake, but whom Neugebaur nevertheless included in his village statistics of brain cancer cases.

The judge also noted Neugebaur's inclusion of a woman whose parents lived in the area, and who had visited the village occasionally but did not actually reside there.

In October 2010, barely a month into trail, Tereshko adjourned proceedings for the day to give Neugeabauer an opportunity to review his data and determine whether he had included the woman erroneously.

That night, however, Neugebauer didn't limit his review to the woman in question, but instead made 21 changes "of various types" to his report, Tereshko found.

Tereshko observed the next day that the changes were "as close as I have come, sitting on the bench for 20-plus years, to having a report that may amount to fraud on the court."

The judge struck Neugebauer's testimony and dismissed the jury.

In his latest opinion, Tereshko called those changes "disturbing." Though Neugebauer's brain-cancer cluster findings became a linchpin upon which the plaintiff's other experts relied "to create some relevance for their own theoretical models," it has now been discredited.

The judge also took issue in his opinion with neuropathologist Dr. Sidney Finkelstein, another expert for the plaintiff, whose testimony the judge characterized as "obfuscating," "misleading," "vacuous" and "legally incompetent."

Under cross-examination, Finkelstein "effectively recanted his theory" that the chemical vinyl chloride caused Branham's husband, Franklin, to develop brain cancer, so the judge found that his testimony must also be stricken.

Tereshko has not yet announced exactly how his decision in Branham will affect the other 31 cases.

Branham's attorney, Aaron Freiwald of Layser & Freiwald, told Courthouse News that "it should have no impact."

"We are going to appeal this decision, which was wrongly decided on procedure and on law," Freiwald said.

Defense attorney Van Wart disagreed.

"Obviously there are some procedural issues that need to addressed, but the bottom line is that there is no scientific evidence to support any of these [32] claims," Van Wart said. "In the Branham case, the plaintiffs presented their best and strongest evidence and it was completely baseless."

Freiwald said that couldn't be further from the truth.

"That's completely false, and there's no question that there is a brain cancer cluster in this community," Freiwald said. "Anyone looking at the list of people with brain tumors clustered in time and space would recognize that."

The Branham case, let alone the 31 others cases, is far from over, he said.

"In our system, in this country, the juries decide our most important disputes," Freiwald said.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit