Pennsylvania Superior Court

A Philadelphia judge was wrong to enter a compulsory nonsuit in the first of over 30 cases involving allegations that brain cancers were caused by a carcinogen leaking from a chemical plant, the Pennsylvania Superior Court ruled this week.

A two-judge panel of the Superior Court reversed Philadelphia Court of Common Pleas Judge Allan L. Tereshko in a non-precedential decision. Judge Kate Ford Elliott authored the opinion in which Judge Cheryl Lynn Allen joined.

The trial court did not have the authority to enter a compulsory nonsuit in the midst of plaintiff Joanne Branham’s case-in-chief, Ford Elliott said. Branham’s spouse, Franklin Delano Branham, died from brain cancer, and Branham and other plaintiffs allege that the release of vinyl chloride into the air and groundwater in and around McCullom Lake, Ill., caused a brain cancer and tumor cluster in the village of 1,100 residents. Rohm and Haas, which is now owned itself by Dow Chemical, has owned the plant since 2009.

“We find no authority to support Rohm and Haas’ claims that a trial court can grant a nonsuit in the middle of a trial before a plaintiff is finished presenting her evidence based on its own evaluation of the remaining evidence,” Ford Elliott said. “To properly grant a compulsory nonsuit in this case, the trial court should have allowed [plaintiff] to present her remaining witnesses and ruled on the motion for nonsuit after [plaintiff] had concluded her case-in-chief.”

The trial judge entered a compulsory nonsuit after the plaintiffs’ expert epidemiologist ran into trouble on cross-examination. Dr. Richard Neugebauer “became unsure if one of the individuals he had used in his analysis was properly included in the study and admitted to making last minute changes to his report that Rohm and Haas’s attorneys may not have received,” according to the opinion. Then Tereshko directed Neugebauer to review his notes to clarify the issue, and the epidemiologist made several additional changes to his report overnight. After the defense moved to strike Neugebauer as an expert witness, Tereshko granted the motion and said the changes in the report may have been “’tantamount to fraud on the court,’” according to the opinion. The judge dismissed the jury before the rest of the plaintiff’s’ experts, including toxicologist Gary Ginsberg, testified.

The trial judge did not rule on plaintiff’s motion to grant a mistrial or the defense motion to grant a compulsory nonsuit until six months later.

Plaintiff’s counsel, Aaron J. Freiwald of Layser & Freiwald, said the case “underscores the idea that there really are certain issues that need to be decided by a jury.” Defendants are often trying to get cases decided as a matter of law, but once the case gets past the summary judgment stage, the motion in limine stage and the evidentiary-motion stage, the case has to go to the jury unless a nonsuit is appropriate after the close of the entire plaintiff’s case-in-chief, Freiwald said.

The panel reversed Tereshko on striking the testimony of the neuropathologist who testified prior to Neugebauer, but the panel upheld Neugebauer’s testimony being stricken. The issue was waived without an objection at the time, Ford Elliott said.

Neugebauer’s testimony could be used in the cases of other plaintiffs, and “epidemiology is just one lens” through which to see the evidence in the case, Freiwald said.

The panel also upheld the trial judge’s ruling striking the plaintiff’s strict liability claim. “Appellant’s claim really sounds in negligence, not strict liability,” the Superior Court said. “Appellant alleges that the unlined and unsealed pit allowed vinyl chloride to escape into the air and the groundwater. It was the alleged failure to line the settling basin, or lagoon, properly that allowed the toxic chemicals to leech into the groundwater.”

The panel also upheld Tereshko’s decision to deny recusal. “Although the trial judge’s decision was incorrect, his attempt to distance himself from the emotion he felt showed a conscientious awareness of his need to make an impartial ruing,” Ford Elliott said.

In a statement, Rohm and Haas expressed disappointment about a new trial being ordered on the negligence claim, while noting the strict liability claim’s dismissal was upheld. “The Superior Court also upheld the decision to strike plaintiff’s expert epidemiology witness whose reports the trial court found ‘troubling’ and ‘tantamount to fraud on the court.’ [Rohm and Haas] continues to believe that the plaintiff’s injury claims cannot be supported by scientific evidence and will continue to defend itself in this matter,” the company’s statement said.

Rohm & Haas also might seek an appeal to the Pennsylvania Supreme Court.

Defense counsel was Kevin Van Wart of Kirkland & Ellis in Chicago.

Correale F. Stevens, who between the time of oral argument in the case and the decision this week joined the Supreme Court as an interim justice, did not participate in the decision.

The Pennsylvania Superior Court has upheld a jury's decision to award punitive damages over the death of a nursing-home and hospital patient whose bed sores led to an infection that went septic in his body, the failure of one of his kidneys and his eventual death.

According to the opinion, the jury found nursing home Hillcrest Center and Jeanes Hospital each 50 percent liable for the April 18, 2008, death of Joe Blango. The jury awarded $1 million in compensatory damages against both defendants, $1.5 million in punitive damages against Jeanes Hospital and $3.5 million in punitive damages against Hillcrest Center. Philadelphia Court of Common Pleas Judge George W. Overton reduced Jeanes' punitive damages award to $500,000 and Hillcrest's punitive damages award to $1 million.

The court split on upholding the trial judge's decision to diminish the punitive damages. The majority instructed the trial judge to increase punitive damages by another $500,000 against the hospital. But one dissenting judge on the three-judge panel would have restored the jury's award entirely.

One of the plaintiff's experts testified the development of a bedsore at the top Blango's buttocks was the source of the infection that went septic throughout his body, Judge Kate Ford Elliott said in her unpublished opinion today.

The wound tested positive for both e-coli and MRSA bacteria, according to the opinion. Blango's kidney was infected as a result, and his kidney had to be removed, Ford Elliott said.

There was testimony Blango was not frequently repositioned and did not have his diapers changed habitually during 18 days of treatment by the two healthcare facilities, Ford Elliott said. There also was testimony that Blango was not eating his food, but was not fed by staff nor offered liquid food.

According to the majority opinion, Blango was first admitted to the hospital for a five-day stay after being found, after a stroke, in a state of not moving or speaking. Then he was transferred to the nursing facility for 10 days, and then he was transferred back to the hospital for another three days. After those 18 days, Blango was transferred to another Philadelphia-area hospital where his family first learned of the bedsore in the area at the top of his buttocks. The bedsore never healed.

There was sufficient evidence for the jury to find that the hospital acted with reckless indifference, Ford Elliott said on behalf of all of the panel, including not communicating the condition of Blango's skin when he was transferred the first time from the hospital to the nursing home.

In another example of reckless indifference, during Blango's readmission to the hospital “there was evidence that the hospital failed to turn and reposition Mr. Blango every two hours as required,” Ford Elliott said. A Jeanes Hospital nurse “testified that the hospital was chronically understaffed. Mrs. Blango testified that nursing staff at the hospital repeatedly ignored her requests to change her husband's diaper, and he was always left on his back. There was no attempt to help Mr. Blango use the bathroom or a bedpan instead of adult diapers.”

Hillcrest settled the case during appellate mediation, Ford Elliott said in a footnote. The court did not undertaken any analysis of Hillcrest's liability.

Plaintiff's trial counsel Churchill H. Huston, of the Maher Law Firm in Philadelphia, said in an interview that the case is a hybrid one because it involved a verdict against a hospital and a nursing home. “It speaks to [that] this kind of neglect--whether it's a nursing home or a hospital--the way you prevent a bedsore doesn't change,” Huston said.

The fact that an injury occurs in a medical setting does not mean that all liability stems from medical decision-making and thus requires expert testimony about the standard of care, Huston said.

Bed sores are an issue of simple neglect, Huston said, while the failure to order the right course of treatment would require expert testimony.

“If it's an issue of professional negligence, then you would need expert testimony to support your claim,” Huston said. “If it's an issue of simple negligence, then the testimony of a lay witness is sufficient to support that claim.”

Huston said his firm may seek to have the opinion published as citable case law.

A two-judge majority, including Ford Elliott and Senior Judge James F. Fitzgerald III, decided that the trial judge did not abuse his discretion in remitting the punitive damages, including because of the testimony of Jeanes Hospital's chief financial officer that the facility is not-for-profit and losing money.

While the trial judge said he reduced the ratio of damages to be 2:1 for Jeanes Hospital, the judge's remittitur actually resulted in a 1:1 ratio, Ford Elliott said, but “it seems clear that the trial court intended to reduce punitive damages to a 2:1 ratio, i.e., from $1.5 million to $1 million. Furthermore, as the trial court stated in its opinion, a 2:1 ratio is a reasonable relationship between punitive and compensatory damages in this case and satisfied due process,” Ford Elliott said.

The majority ordered a punitive damages award of $1 million, instead of $500,000, be entered on remand against Jeanes Hospital.

In dissent, Judge Sallie Updyke Mundy said that she disagreed with the trial court's reduction of the punitive damages award because she discerned “no abuse of discretion or constitutional infirmity in the initial $1.5 million punitive damage award,” she said.

A private lien from Blango's union health insurance was asserted and then resolved out of the settlement with the nursing home, Huston said.

The settlement amount with nursing home is confidential, Huston said.

Stephen Trzcinski, of Wilkes McHugh, was appellate counsel on the briefs, Huston said.

Appellate defense counsel for Jeanes Hospital included Post & Schell and Obermayer Rebmann Maxwell & Hippel, according to the Superior Court docket.

A spokeswoman for Jeanes Hospital did not respond to a request for comment.