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Dow Fights to Stay Out of Trial

By KEVIN P. CRAVER
kcraver@nwherald.com

Visitors to the website of chemical manufacturer Rohm and Haas know at a glance that it now is a wholly-owned subsidiary of Dow Chemical Co.

Chicagoans familiar with Philadelphia who made it to the away games in the Stanley Cup Final might have noticed that Dow’s red diamond logo has been hoisted to the top of Rohm and Haas’ downtown world headquarters.

But the logo has not yet made it to the Rohm and Haas plant in Ringwood. When it comes to the 31 lawsuits blaming the plant for brain and pituitary cancers in and around McCullom Lake, it’s a connection that Dow is fighting in court to avoid.

The fight is not going well for Midland, Mich.-based Dow, which bought Rohm and Haas last year for more than $15 billion.

The first lawsuit, set to go to trial Sept. 20, is on behalf of the late Franklin Branham, who died of brain cancer in 2004.

Branham’s widow and their two former McCullom Lake neighbors, also diagnosed with brain cancer, sued Rohm and Haas in 2006.

Lawsuits allege that chemicals oozing from a closed 8-acre, 15-foot-deep waste pit fouled air and groundwater in McCullom Lake and the Lakeland Park subdivision in McHenry with carcinogenic vinyl chloride and vinylidene chloride.

Pennsylvania Judge Allan Tereshko rejected a motion last week to bar any reference to Dow during the trial. Dow also is appealing an April ruling requiring the company to produce a witness to testify about its role in a study of brain cancer rates among vinyl chloride workers.

Dow is not a defendant per se in the first lawsuit, given that it was filed three years before Dow bought Rohm and Haas. But plaintiffs’ attorney Aaron Freiwald said Dow will come up during the trial, given not only its ownership of Rohm and Haas, but also its long involvement with vinyl chloride, a carcinogenic chemical used to make PVC pipes and other polymers.

Dow’s appeal is one of the reasons that the trial was pushed back to September. The trial, which could last two to three months, was supposed to start last week.

Freiwald wants Dow to testify about the company’s oversight and financing of a study downplaying connections between vinyl chloride and brain cancer – a study that he alleges did not count a significant number of brain cancer victims, many from three Dow-owned vinyl chloride plants.

Howard Klein, the Philadelphia attorney who represents Dow, could not be reached for comment Monday.

The rulings are among many made by Tereshko in the weeks leading up to the trial, some favoring Freiwald, others favoring Rohm and Haas.

Tereshko ruled last month that epidemiology work done by the McHenry County Department of Health, the Illinois Department of Public Health, and the U.S. Centers for Disease Control and Prevention, is inadmissible at trial.

The analyses, which conclude that county brain cancer rates are not above normal, have been scrutinized in Northwest Herald investigations since 2007.

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