Pa. Superior Court to Phila. judge: Explain nonsuit on strict liability claim in brain cancer death case

By Jon Campisi | Jun 10, 2013

A three-judge state appellate court panel has ruled in favor of a widow who sued chemical

maker Rohm and Haas over her late husband’s brain cancer, ordering a Philadelphia judge to further explain his rationale for issuing compulsory nonsuit on the plaintiff’s strict liability claim only.

In a non-precedential opinion filed May 31, the Superior Court judges remanded to the Philadelphia Court of Common Pleas a case initiated by Joanne Branham, who in the spring of 2006 filed suit on behalf of her deceased husband, Franklin Delano Branham, against the chemical manufacturer and others over the husband’s illness.

The plaintiff claimed that the defendants were responsible for her late husband’s brain cancer diagnosis, alleging that the groundwater and air contamination coming from the Rohm and Haas plant in Ringwood, Ill., led to Franklin Delano Branham developing brain cancer.

The husband died at age 63, shortly after being diagnosed with the malignant brain tumor.

Joanne Branham alleged that the chemical company knowingly and recklessly dumped the toxic chemical vinyl chloride into an unlined pit for decades at the Illinois plant, which is located a mile north of where the couple lived for three decades, and that the vinyl chloride eventually made its way south in a groundwater plume and contaminated drinking water wells serving the housing development where the plaintiffs and others resided.

The woman also claimed in her suit that the vinyl chloride percolated up through the ground and into the air around the homes.

The widow’s complaint against Rohm and Haas Co., Rohm and Haas Chemicals LLC and Morton International Inc. asserted claims of strict liability, negligence and fraud.

In the summer of 2011, as the case was making its way toward trial in Philadelphia, Common Pleas Court Judge Allan Tereshko granted summary judgment in favor of the defendants, in response to their motion seeking to dismiss the strict liability claim before the case came before a jury, the record shows.

The trial court had found that the chemical company’s disposal of vinyl chloride in the unlined pit at the Illinois plant didn’t constitute an “abnormally dangerous activity.”

Tereshko ultimately entered a nonsuit in the middle of the case after it had gone to trial on the remaining negligence and fraud claims, according to the appellate court’s opinion.

The appeals panel wrote in its decision that before it could examine the merits of the plaintiff’s appeal, the judges must first be given an additional opinion from the trial court judge explaining the compulsory nonsuit on the strict liability claim.

At the heart of Tereshko’s ruling were sections 519 and 520 of the Restatement (Second) of Torts, with the former providing that “one who carries on an abnormally dangerous activity is subject to liability from harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm,” and the latter outlining the six factors that are relevant in determining whether an activity is considered abnormally dangerous.

Citing case law, the appellate panel wrote that this determination is a question of law for the trial judge, and not the jury.

In its opinion, the appeals judges wrote that in his order granting summary judgment on the strict liability claim, Tereshko never discussed the six factors set forth in Section 520 of the Restatement (Second) of Torts that are required to make the “abnormally dangerous” determination.

“Instead, the trial court inferred that Appellant’s claims sounded in negligence and assumed that if the [defendants’] storage facility was properly maintained without negligence, there would have been no release into or infiltration of the surroundings,” the appellate decision reads. “We remind the trial court that in reviewing a motion for summary judgment, courts must view the record in the light most favorable to Appellant as the non-moving party.”

The panel remanded the case to Philadelphia, ordering Tereshko to prepare an opinion specifically applying the factors set forth in Section 520 of the Restatement of Torts within 30 days of its opinion.

The plaintiff was also given a month’s time in which to file her own brief if she chooses to do so.

The decision was written by Superior Court President Judge Correale F. Stevens.

The other participating jurists were President Judge Emeritus Kate Ford Elliot and Judge Cheryl Lynn Allen.

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