Headlines
Cancer Suit will be Tried this Summer
01/27/2010By KEVIN P. CRAVER
kcraver@nwherald.com
After four years, the first McCullom Lake brain cancer lawsuit will go to a jury trial in a Pennsylvania state courtroom.
Judge Allan Tereshko on Tuesday set June 7 to start the civil trial against Rohm and Haas on behalf of the late Franklin Branham, who died of brain cancer in 2004. Branham’s widow, Joanne, and her two former McCullom Lake next-door neighbors, who also have brain cancer, sued Rohm and Haas in April 2006, blaming industrial pollution from the company’s plant in neighboring Ringwood for their illnesses.
"We can’t wait to get this going," plaintiffs’ attorney Aaron Freiwald said. "We’re going to present all the evidence, which we believe is compelling and shows that Rohm and Haas is responsible for Mr. Branham’s brain cancer. We believe it’s going to be an interesting and exciting trial, and we believe and hope it will be successful for our client."
Thirty plaintiffs to date claim that decades of pollution, most notably carcinogenic vinyl chloride, caused brain and pituitary tumors in McCullom Lake and the neighboring Lakeland Park subdivision in McHenry. Lawsuits and Freiwald’s experts claim that residents were exposed to the chemicals by a large plume of chlorinated solvents oozing from a closed 8-acre, 15-foot-deep waste pit, air emissions from the plume and cleanup efforts, and industrial accidents at the plant.
It is a position that Rohm and Haas, now owned by Dow Chemical Co., is ready to fight. Rohm and Haas has hired Chicago-based Kirkland & Ellis, a law firm catering to corporations and considered among the nation’s best, to defend against the lawsuits. While Rohm and Haas acknowledges the groundwater pollution, it has argued that it never reached residents or made them sick.
"We look forward to trying the issues that have been raised – we’re convinced that the claims have no scientific merit, and we’re going to present our case to the jury," defense attorney Kevin Van Wart said.
Former plant owner Morton International first reported the contamination to the Illinois Environmental Protection Agency in 1983, although records show that Morton executives knew about it at least a decade earlier. Rohm and Haas inherited the mess when it bought Morton in 1999, and assumed full control of the Ringwood plant in 2005.
The lawsuits originally named Modine Manufacturing, also in Ringwood, which reports show added the industrial solvent trichloroethylene to the contamination plume.
Racine, Wis.-based Modine denied culpability but settled out of court in 2008, settling with individual plaintiffs for undisclosed sums and paying $1.4 million toward a medical monitoring program asked for in a class-action suit Freiwald filed in federal court.
The Branhams spent about three decades of their 43-year marriage in McCullom Lake, where they raised five children before moving to Arizona to retire.
Franklin Branham died June 18, 2004 at age 63, a month after doctors diagnosed him with glioblastoma multiforme, a deadly brain cancer that affords its victims a 3 percent chance of being alive five years after diagnosis.
Doctors diagnosed their former next-door neighbor, Bryan Freund, with an oligodendroglioma brain tumor in December 2004. A month later, doctors diagnosed neighbor Kurt Weisenberger with the same after he suffered a series of grand mal seizures – he was diagnosed with a brain tumor in 1997 but decided against a biopsy because of its depth.
Oligodendroglioma shows up in about 1 person per 300,000, but it is survivable – both Freund and Weisenberger still are living.
The number of lawsuits stood at 16 by the end of 2006, three of them on behalf of village residents diagnosed that year with glioblastoma multiforme. The deadly brain cancer has an average incidence rate of about 3 people per 100,000. McCullom Lake’s population is about 1,100.
The 30 plaintiffs as of today include 22 people with brain cancer, six with large pituitary gland tumors, one plaintiff with both, and one with liver cirrhosis of unknown origin. Ten of the plaintiffs are deceased.
They have bonds that go beyond geography – they include a mother and son, sets of childhood friends, at least two other sets of neighbors, and people who lived in the same houses at different times. And as the cases begin to face scrutiny in a courtroom, they also are facing increased government scrutiny.
The McHenry County Department of Health released an analysis a month after the first three lawsuits concluding that brain cancer rates were not above average and that pollution from the defendant manufacturers never sickened village residents. But subsequent investigations by the Northwest Herald concluded that the department’s research was fatally flawed and relied heavily on data provided by Rohm and Haas, which got to review the health department’s work before its public release.
County Board member Tina Hill, R-Woodstock, began pushing for an outside look in February 2009, shortly after a second childhood friend of hers was diagnosed and joined the lawsuits. Hill, who grew up in Lakeland Park, stepped up her efforts when her older sister was diagnosed with a pituitary tumor and joined the lawsuits, followed by a third childhood friend diagnosed with brain cancer.
An agency of the Centers for Disease Control and Prevention is in the process of reviewing the research on the cancers done to date. The Illinois Environmental Protection Agency, which has maintained that contamination never reached residents, has signaled a willingness to further examine the situation.
Freiwald and Rohm and Haas argued the class-action lawsuit for three days in June 2008 in U.S. District Court in Philadelphia. Judge Gene Pratter has yet to rule whether the lawsuit can proceed to a civil trial.
TIMELINE OF EVENTS
• April 25, 2006 – Lawsuits allege that air and groundwater contamination from Ringwood manufacturers Rohm and Haas and Modine Manufacturing caused brain cancer in three former McCullom Lake next-door neighbors. Philadelphia attorney Aaron Freiwald files the neighbors' lawsuits in state court, and a class-action lawsuit on behalf of McCullom Lake residents in federal court.
• May 31, 2006 – The McHenry County Department of Health tells McCullom Lake residents that cancer rates are not above normal, and that contamination from the defendant manufacturers never contaminated the village. The pronouncement came days after three more brain cancer victims filed suit.
• Oct. 6, 2006 – The Agency for Toxic Substances and Disease Registry and the Illinois Department of Public Health back up the county health department's findings, the same day that four more residents file suit. The number of plaintiffs stands at 16 by year's end.
• March 26, 2007 – Freiwald drops Huntsman, one of the defendant companies, from the lawsuits.
• Dec. 16-21, 2007 – The Northwest Herald publishes a six-part series on the brain cancer lawsuits, which stand at 22. It calls the accuracy of contamination maps from the defendant companies into question, and concludes that the county health department's research was flawed and biased in favor of the defendant companies.
• Jan. 23, 2006 – The McHenry County Board of Health in a special meeting defends the health department's work and harshly criticizes Freiwald and the Northwest Herald. County officials did not investigate the newspaper's allegations against the department, and have not done so to this day.
• Jan. 25, 2008 – Modine Manufacturing, the smaller of the two plaintiffs, agrees to settle out of court. The company denies culpability but pays $1.4 million toward medical monitoring, and settles with plaintiffs for undisclosed sums. A federal judge approves the settlement in August. Two plaintiffs who sue in 2009 are diagnosed through screening financed by the settlement.
• June 12-13, 20, 2008 – A federal judge in Philadelphia holds a hearing lasting three days, on whether to certify the class-action lawsuit. Judge Gene Pratter has yet to rule whether it can proceed to a civil trial.
• July 10, 2008 – Dow Chemical announces that it is buying Rohm and Haas for $15.3 billion. The sale becomes official the following year.
• Dec. 22, 2008 – A follow-up Northwest Herald investigation reveals that the county health department received much of the information revealed in the newspaper's 2007 series a year earlier, but chose not to read it.
• Feb. 13, 2009 – McHenry County Board member Tina Hill begins considering asking for an outside investigation after childhood acquaintance Denise Lambrechts files suit. Hill, who grew up just south of McCullom Lake, also was childhood friends with one of the first plaintiffs.
• July 23, 2009 – Doctors diagnose Hill's older sister, Darlene Jackson, with a large pituitary tumor, and Hill begins to push County Board Chairman Ken Koehler to seek outside help. Jackson and three others sue Aug. 12, bringing the number of lawsuits to 27.
• Aug. 12, 2009 – Koehler announces that he plans to ask the federal Agency for Toxic Substances and Disease Registry to look into the cancer cluster. But his plans change after the Northwest Herald reports that the agency is facing Congressional scrutiny over its investigative abilities.
• Oct. 5, 2009 – A division of the Centers for Disease Control and Prevention agrees to review county and state investigations of the cancer cases. The 30th and latest plaintiff files suit the following day.
• Jan. 26, 2010 – A Pennsylvania state judge sets a June 7 trial date for the first lawsuit, filed on behalf of Franklin Branham, one of the three next-door neighbors who died of brain cancer in 2004 at age 63.