The state Supreme Court has denied Dow Chemical Co.’s petition to block a plaintiff’s subpoena in a brain cancer case.
The high court issued its order last week.
Aaron J. Freiwald, Glenn A. Ellis and Katherine M. Robinson, the plaintiff’s counsel of Layser & Freiwald, argued in court papers that the subpoena of Dow would allow them to explore whether Dow’s predecessor, Union Carbide, as well as Dow itself, failed to report the existence of employees with brain cancer who worked in their plants producing the toxic chemical vinyl chloride.
The plaintiff’s counsel want to see if they can impeach the “Mundt” epidemiological study, which looked at workers from different companies across the chemical industry and ultimately concluded there was no statistically significant evidence that vinyl chloride is a cause of brain cancer or brain tumors. Dow and at least 13 other chemical companies participated in the study from the 1970s to the 1990s.
The plaintiff’s counsel argued the addition of just 15 or 20 cases would have made a difference in the study results.
Plaintiff Joanne Branham claims in her wrongful death action that her husband’s brain cancer was caused by exposure to vinyl chloride made at a plant owned by Dow’s wholly owned subsidiary, Rohm and Haas. Branham claims the exposure came from the groundwater and atmosphere near the plant.
Dow argued in its petition for allowance of appeal that it presented an issue of first impression: whether a corporate nonresident may be compelled by a Pennsylvania subpoena to provide a corporate-representative witness to give testimony in a case in which it is a nonparty. While not contesting that it could be sued in Pennsylvania, Dow said that subpoena power is not coextensive with general personal jurisdiction.
Dow said that it is subject to general personal jurisdiction in Pennsylvania, but that a Pennsylvania subpoena could not be exercised against it as a Delaware corporation with its principal place of business in Michigan when it is a witness and not a defendant in the case. Branham would need to subpoena Dow in Michigan, Dow’s counsel, James J. Rohn, Nancy J. Gellman, Howard M. Klein and Jeannette M. Brian of Conrad O’Brien, said in their petition.
“Historically, a traditional, bright-line test for the exercise of subpoena power has been based on a simple ‘corporate residence’ rule that is easily applied. … In place of this test, the Superior Court’s ruling makes the subpoena power turn on whether a nonparty, nonresident corporate entity is subject to general jurisdiction in the commonwealth and could be sued here as a defendant,” the Conrad O’Brien attorneys said. “That new test is certain to result in substantial collateral litigation.”
Klein did not respond to a request for comment Friday.
Branham’s counsel counter-argued in their response to Dow’s petition to the Supreme Court that Dow changed its presence in Pennsylvania when it took over Rohm and Haas. Dow’s name is even on Rohm and Haas’ former headquarters in Philadelphia, the plaintiff’s counsel said.
The Superior Court panel of President Judge Correale F. Stevens, Judge Robert A. Freedberg and Senior Judge William H. Platt said in 2011 that there is little Pennsylvania case law on point to Dow’s contention that, as a nonparty to a lawsuit brought against its wholly owned subsidiary, it is immune from the subpoena power of Pennsylvania judges.
Platt, writing for the panel in Branham v. Rohm and Haas , said that even in the wake of Dow’s acquisition of Rohm and Haas in April 2009, Dow may be a nonresident. But a subpoena can still be served against Dow, which is incorporated in Delaware and headquartered in Midland, Mich., because it is carrying on a “‘continuous and systematic part of its general business within this commonwealth,’” the court reasoned.
Philadelphia Common Pleas Court Judge Allan L. Tereshko decided not to quash the subpoena.
In 2008, the plaintiff had to seek to subpoena Dow through the Michigan courts, Freiwald said. The Michigan courts rejected the subpoena.
But once Dow acquired Rohm and Haas, Dow became subject to the Pennsylvania court system’s subpoena power, Freiwald said.
“The key factor is the systemic and continuous contacts,” Freiwald said.
The Layser & Freiwald attorneys argued in court papers that Dow could have an interest in delaying the plaintiff’s presentation of evidence and delaying investigation into the alleged link between vinyl chloride and brain cancer.
“We believe that Dow has evidence and information about epidemiological studies on the links between vinyl chloride and brain cancer that are relevant to showing that Dow did not play straight with the science. … We want to explore that with Dow and think that’s important to have as part of the cases,” Freiwald said in an interview.
Branham’s case-in-chief is pending before the state Superior Court. Tereshko dismissed the jury five weeks into the case and later entered a nonsuit because of overnight changes in the expert report of the plaintiff’s epidemiologist.
Freiwald’s firm is representing more than 30 plaintiffs from one small Northern Illinois lakeside village who are alleging that their brain cancer and tumors were caused by exposure to the vinyl chloride, a toxic chemical used to make plastic products and manufactured at the plant.