Headlines
Uncertain Futures
12/20/2007
Cancer plaintiffs seek closure in court battle
By KEVIN P. CRAVER
kcraver@nwherald.com
While many McHenry County families spent the past few weeks getting ready for Christmas, Nancy Smith was preparing herself for the end.
Her mother, Marion Kane, 75, was dying of brain cancer. In three months, the former McHenry resident went from being an active senior to a bedridden, blind and paralyzed shell of her former self.
A month after her September diagnosis of glioblastoma multiforme, Kane and three others joined a chain of lawsuits blaming illnesses, mostly brain cancers, on pollution from Ringwood manufacturers Rohm and Haas, subsidiary Morton International, and Modine Manufacturing Co. But Kane will not see her case reach a courtroom.
Kane’s hospice caregivers told Smith at the start of December that her mother had two weeks to live. Kane faded so fast that she ran out of strength just to get her affairs in order, Smith said.
"She tried really hard while she did have the strength to, as anyone would do, go through her things ... " Smith said.
Smith’s voice cracked. She paused. "And here it comes." The crying.
Kristin Mass can sympathize. The 27-year-old nurse quit her job in Missouri and moved back in with her mother, Julianna Mass, shortly after Julianna, 68, was diagnosed in November 2006 with the same deadly cancer.
Kristin, the youngest of Julianna’s seven children, now is her full-time caregiver, along with her older brother, Andrew, who moved from Los Angeles back to the McCullom Lake house that the family has called home for more than 40 years.
Julianna spends much of her time sleeping, but she is alive. Doctors had given her six months to live after her November 2006 surgery, and a month to live last May after discovering that the cancer was returning.
Julianna has outlived her doctors’ expectations. Unfortunately, Kane’s caregivers were right.
Last Saturday morning, the day before the Northwest Herald’s six-part investigative series on the McCullom Lake cancer cases began, Kane died of glioblastoma multiforme. Her funeral is scheduled for today in Harvard.
Kristin Mass shares something else with Nancy Smith, a thought that she does not like to discuss – the realization that her mother might not be alive to see the end of the court cases, either.
Glioblastoma multiforme affects 3 people per 100,000, according to national statistics. As of today, there are three plaintiffs with the disease living in McCullom Lake, population 1,074 as of last year.
The Unfortunate
Philadelphia attorney Aaron Freiwald sued in April 2006 on behalf of three former next-door neighbors with brain cancer in McCullom Lake, a mile and a half south of the factories. As of today, there are 22 plaintiffs – 18 with brain or nerve cancer, three with pituitary gland tumors, and one with liver cirrhosis.
Freiwald also filed a class-action lawsuit to set up medical monitoring for current and former village residents. The lawsuits accuse the companies of contaminating air and drinking water with carcinogenic vinyl chloride.
Kane is the seventh plaintiff who has died, all but one from glioblastoma multiforme. The exception is Marion Kane’s son, Patrick Kane, whose widow sued in October 2006 for the pituitary tumor that made him grow to more than 7 feet tall. Patrick Kane died of cancer in 2005, but the family’s lawsuit attributes only the pituitary tumor to the companies.
"Mr. [Franklin] Branham is not going to see the inside of a courtroom. Ms. [Judith] Weisheit is not going to see the inside of a courtroom. "Ms. [Judith] Roszak will not. Ms. [Susan] Kalash will not. Mr. [Ken] Betts will not," Freiwald said last month, before Marion Kane died.
"And I’m very worried that list will grow."
Former McCullom Lake resident Nichole Baird knows that sooner or later, she will join the list. The two pituitary gland tumors that she was diagnosed with in April 2006 are shutting down her endocrine system.
Baird said her body is falling apart. At age 38, she is the youngest of the plaintiffs.
"[Doctors] told me to get my things in order over a year ago; that’s why we moved here," Baird said. "They don’t know when it’s going to happen – they said I could just not wake up."
Baird, her husband and two young sons since have moved back to McHenry from northwestern Illinois so she can be near doctors and her family. Sitting on her couch, next to the soft white lights of the family Christmas tree, she said they picked a home where a father and two boys could live together and look out for each other.
Fortunate by Comparison
Across the street from the Mass home, plaintiff Irene Suchor, 69, said that in an odd way, she considered herself lucky that cirrhosis destroyed her liver and forced her to get a transplant. Compared with the 21 plaintiffs with brain or pituitary cancers, she said, her problems could be far worse.
"Most of the tumor cases are fatal," Suchor said. "It seems like [doctors] corrected my problem, and with medication, I should be able to live a fairly easy life."
Michael Smulski feels a similar relief – he did not contract the lethal glioblastoma multiforme that has killed six plaintiffs so far. He underwent surgery in 2002 to remove a benign meningioma from the top of his brain.
Smulski, 58, still has difficulties after the surgery. But unlike many of the plaintiffs, he still can work – he has worked for Sears in various capacities since 1967.
Sitting on the kitchen table of his McHenry townhouse is a glass vase filled with hundreds of colored plastic beads. Each represents a prayer for his recovery from the Montini Catholic School kindergarten class taught by his wife, Candace. It still chokes him up.
"That has something to do with it, I think," Smulski said, pointing to the vase.
McHenry County sheriff’s deputy Scott Milliman spent Thursday back on his beat and feeling relieved. The day before, an MRI taken at Northwestern Hospital in Evanston showed that the oligodendroglioma in his brain is not relapsing. He sued the companies in May 2006, alleging that years of patrolling McCullom Lake and drinking the water caused him to get brain cancer.
He gets the brain scans every three months since his 2002 surgery.
"Basically you live three months to three months. You worry about the next 12 weeks.
"If you feel something over here," Milliman said, pointing to the right side of his head, "does that mean something is growing in there? You just never know. A lot can happen in 12 weeks."
Milliman is still assigned to patrol the Ringwood and McCullom Lake area, a beat he said he loves. He enjoys the challenge of his beat, but admits he still gets an uneasy feeling when he travels past the Rohm and Haas and Modine Manufacturing plants.
"I drove by there the other night, while I was going on a call, and I still have to patrol," Milliman said. "I’m in that zone the next two weeks, but I still have to protect and serve. It’s a strange feeling. I can’t go the other way. If I get calls there, I still have to go there."
Court Dates
The heartbreaking stories of tragedy are not at all lost on Rohm and Haas, spokesman Syd Havely has said throughout almost two years of ongoing litigation.
But the position of the $8.2 billion chemical giant is clear – contamination from the closed landfill at its Ringwood plant a mile and a half north of McCullom Lake village never tainted the village’s wells or air with vinyl chloride.
The plant’s longtime occupant, Morton International, started tracking contamination in the shallow groundwater in the early 1980s. Rohm and Haas inherited the problem when it bought Morton in 1999, and took over the plant’s operations in 2005.
A memo uncovered during the legal discovery process shows that Morton knew that its landfill was leaking in 1973, a decade before it was reported to the Illinois Environmental Protection Agency.
"Your heart goes out to people who may suffer from these kinds of illnesses and diseases, but if there’s not some linkage that you can measure or look at, then you’re frustrated, and I share that frustration with the people of McCullom Lake village," Havely said. "But the science is the science, so we have to go back to what we can know, what we can understand, and what we can measure, and it’s simply not there."
Modine officials similarly maintain their innocence but have chosen to decline further comment, citing the ongoing litigation. The company, with net sales of $1.7 billion, discovered in 1990 that contents of its former disposal pit had leached into shallow groundwater.
Freiwald’s lawsuits claim, contrary to the defendants’ studies, that contamination from both factories got into a deep aquifer that took it south to the village’s wells. The lawsuits also allege that a now-deactivated air stripper installed to remove the shallow contamination shot it into the air that residents breathe.
Both sides have squared off in a U.S. District Court room in Philadelphia over the class-action lawsuit, each citing its own expert reports. And after almost two years, a judge soon could rule whether to certify the class-action lawsuit.
Judge Gene Pratter has scheduled a hearing for Feb. 26, when she could make a ruling. Or it could be another judge – President Bush has nominated Pratter to fill a vacancy on the 3rd Circuit Court of Appeals.
Freiwald said the first six personal-injury cases could be ready for trial by early summer. They include original next-door neighbors Bryan Freund, Kurt Weisenberger and the late Franklin Branham, as well as McHenry County Sheriff’s Deputy Scott Milliman, resident Sandra Wierschke, and the late Judith Weisheit.
Lawsuits on behalf of at least two more area residents could be filed soon, Freiwald said.
End of the Beginning
Karen Kane and her five adopted sons made a pilgrimage of sorts to McCullom Lake in August.
The family, now living in Vermont, had never seen where the late Patrick Kane – husband, father and hero – had grown up. Karen and her sons, varying between 12 and 18 years old, were joined by Nancy Smith, Patrick’s sister.
The visit to the home on the McHenry shore where Patrick was raised was an emotional one, Karen Kane said. Smith said she had fond memories of looking across the lake to see the former Mass horse farm.
But there was another visit the family had to make.
They drove down McCullom Lake Road, past the homes of Branham, Freund and Weisenberger. And then their journey took them a mile north, past the Rohm and Haas/Morton and Modine factories.
"It was just very emotional for Nancy and for myself," Karen Kane said, her voice breaking.
A few weeks after the visit, Kane’s mother-in-law, Marion Kane, would be diagnosed with glioblastoma multiforme and would begin her rapid deterioration.
Many of the sick plaintiffs want medical monitoring for their children, many of whom now are grown. They said that regular MRIs could lead to early detection and saved lives – brain cancer has a long latency period, and in many cases is advanced by the time that the victim notices symptoms.
Suchor’s five children were playmates with Julianna Mass’ seven children, who in turn were playmates with the Branhams’ five children. Plaintiff and cancer victim Shelby Mazzone often baby-sat the Mass children.
"There were like 40 kids on this block alone," Suchor said. "All of the kids kind of played together, and they often played in my yard, because it was the biggest one around here.
"I’m very concerned what’s going to come down the road, if it’s going to affect them also. We were adults, but these kids were born and raised here. I’m sure it’s going to affect them in some way."
Plaintiff Cynthia DePaepe shares concern for her children, as well as herself. She does not get regular brain scans after her surgery for hemangioblastoma, an extremely rare cancer, because she cannot afford them – she cannot get insurance.
"There’s the risk that my husband or my kids could have a tumor we don’t know about," said DePaepe, who now lives in Iowa. "If they get a headache, I start to worry."
Baird, too, worries about her children, but she also wants to ensure that they can live as comfortably as possible growing up without a mother. Baird’s husband wakes her up to say good-bye whenever he goes to work – besides not knowing when it will be the last time, he does it to ensure that she is not already dead, and that her children don’t make the discovery, she said.
"I’m 38 years old," Baird cried. "This is not what I planned for."
Longtime McCullom Lake residents Glenn and Donna Gates do not have brain cancer, but they have lost two neighbors to it and worry about the four children they raised in town. The retired couple, who filed the class-action lawsuit, said they hope that the lawsuits do more than help the community and offer some sort of closure for cancer victims.
The Gateses want the lawsuits’ results to prove to skeptics that the 22 illnesses to date are not one huge coincidence. Ultimately, it will be a judge and juries who will decide who is right.
"In the end, when this is all settled in court, what any of them say or do won’t make any difference," Donna Gates said. "It will be all out in the open what really happened here."
Northwest Herald videographer Danielle Guerra contributed to this story.