toxic torts

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A two-judge panel of the Superior Court reversed Philadelphia Court of Common Pleas Judge Allan L. Tereshko in a non-precedential decision.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.