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Jury to Hear of Other Cancers

By Kevin Craver
Northwest Herald

A Pennsylvania judge denied a motion by Rohm and Haas to forbid mention of other McCullom Lake brain cancers in its upcoming trial on behalf of one of the first plaintiffs.

Judge Allan Tereshko rejected the chemical company’s request to exclude mention of other plaintiffs in the civil trial on behalf of the late Franklin Bran-ham.

His widow, Joanne, and their two former next-door neighbors were the first of 30 plaintiffs in McCullom Lake and the Lakeland Park subdivision in McHenry to claim that pollution from Rohm and Haas’ plant in neighboring Ringwood gave them brain and pituitary tumors.

Rohm and Haas counsel filed the motion Dec. 22, claiming that mentioning the other cancers was prejudicial and would "effectively dictate the outcome of the case."

"It is certain to divert the jury’s attention from the merits of Mr. Branham’s own claim and invite the jury to speculate, based on the number of cases, that ‘something must have caused’ these cancers or that there ‘must have’ been exposure to something, even if there is no such evidence," defendant’s attorney Kevin Van Wart wrote.

Tereshko disagreed in his ruling Thursday, concluding instead that Rohm and Haas’ motion, if granted, would instead prejudice Branham and the other plaintiffs. Branham’s case goes to trial June 7.

"Defendant’s argument that evidence of the incidence of the other cancers common to the plaintiffs would unfairly prejudice the defendants finds no purchase here," Tereshko wrote.

The three McCullom Lake neighbors – Joanne Branham, Bryan Freund and Kurt Weisenberger – filed suit in April 2006, claiming that contamination oozing from Rohm and Haas’ closed 8-acre waste pit tainted their air and water with vinyl chloride. The chemical, which is used to make a variety of plastic products, is a known carcinogen, with some studies linking it to brain cancer.

Franklin Branham died in June 2004 from glioblastoma multiforme brain cancer. Doctors subsequently diagnosed Freund and Weisenberger with oligodendroglioma, a rare brain cancer that occurs in about 1 person per 300,000.

The 30 plaintiffs now include 22 people with brain cancer, six with large pituitary gland tumors, one plaintiff with both, and one case of liver cirrhosis of unknown origin. They include at least three sets of neighbors and a mother and son.

Plaintiff’s attorney Aaron Freiwald argued in a written response that the number of other brain cancers in the area were vital to the case.

"With this motion, defendants ask that we all tell a wildly false and misleading story to the jury, namely that Mr. Branham was the only individual who contracted brain cancer after living in McCullom Lake," Freiwald wrote.

Tereshko’s ruling was the latest of several legal setbacks for Rohm and Haas. The judge in September rejected motions by the company to dismiss nine of the plaintiffs on statute of limitations grounds and to exclude two of Freiwald’s expert witnesses under what courts call the Frye standard, or whether the science behind an expert opinion was generally accepted in the scientific community.

Tereshko ruled in November that several memos accidentally given to Freiwald by Rohm and Haas’ legal team were not privileged. The 1973 memos between former plant owner Morton International and its attorney revealed that the company might have withheld knowledge of the groundwater contamination from him in an effort to avoid state permit regulations.

The lawsuits were filed in Pennsylvania state court because Rohm and Haas’ world headquarters is in Philadelphia. Freiwald also filed a class-action lawsuit in 2006 in federal court on behalf of village residents. The judge has not ruled on whether it can proceed to a civil trial.

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