Pa. Superior Court: Phila. judge wrong to enter nonsuit in middle of brain cancer wrongful death case against Rohm and Haas

By Jon Campisi | Oct 15, 2013

A state appellate court panel has ruled that a Philadelphia judge was wrong

A state appellate court panel has ruled that a Philadelphia judge was wrong

to enter a compulsory nonsuit in the middle of a woman’s case against chemical maker Rohm and Haas.

In a recent non-precedential decision, three judges sitting on the Pennsylvania Superior Court ordered a new trial in the wrongful death case brought against Rohm and Haas Co. by Joanne Branham, who sued over the death of her late husband, Franklin Delano Branham.

In her lawsuit, which was filed at the Philadelphia Court of Common Pleas in the spring of 2006, the plaintiff claimed that her late husband’s brain cancer diagnosis was tied to groundwater and air contamination coming from a Rohm and Haas plant in Ringwood, Ill.

Franklin Delano Branham died shortly after being diagnosed with a malignant brain tumor at age 63.

Joanne Branham claimed in her suit that the chemical company knowingly and recklessly dumped vinyl chloride, a toxic substance, into an unlined pit for decades at the Illinois plant, which is located a mile away from the Branhams' longtime home.

The plaintiff claimed that the vinyl chloride percolated up through the ground and into air around the nearby houses.

In June, the Pennsylvania Record reported on a previous Superior Court ruling that instructed Philadelphia Common Pleas Court Judge Allan Tereshko to explain his justification for granting summary judgment to Rohm and Haas in response to a defense petition seeking to dismiss only the strict liability claim in the case before it came to a jury.

Tereshko ultimately found that the chemical company’s dumping of vinyl chloride in the unlined pit at the Illinois plant didn’t constitute an “abnormally dangerous activity.”

The trial judge went on to enter a nonsuit in the middle of the case after it had already gone to trial on the remaining claims in the plaintiff’s suit, which were negligence and fraud.

Back in June, the appellate judges ordered Tereshko to file an opinion explaining why he entered compulsory nonsuit on the strict liability claim at that stage of the litigation.

In its most recent order, the Superior Court panel, made up of Judges Correale F. Stevens, (now a Supreme Court justice), Kate Ford Elliot and Cheryl Lynn Allen, ruled in favor of the plaintiff, writing that Tereshko had no authority to enter a compulsory nonsuit in the middle of the woman’s case on liability.

The panel ended up vacating the earlier judgment in favor of Rohm and Haas and remanded the case to the Philadelphia Court of Common Pleas for a new trial.

The trial on Branham’s suit began in late September 2010, the record shows.

According to the Superior Court’s memorandum, Tereshko said he felt testimony by plaintiff’s expert witness Richard Neugebauer, an epidemiologist who studied the prevalence of brain cancer in the McCullom Lake area population, to be “troubling,” and may have even been “tantamount to fraud on the Court.”

Soon after, Branham moved for a mistrial while Rohm and Haas requested the trial judge grant judgment in its favor.

Several experts who were expected to testify on the plaintiff’s behalf had not yet done so at this stage of the game, however, including the woman’s main causation expert, a toxicologist identified as Gary Ginsberg, the record shows.

Tereshko, the appellate court ruling notes, determined at that point in time that it would not be wise to continue the trial.

The judge subsequently dismissed the jury and instructed the parties to submit motions on how to proceed with the case.

It wasn’t until six months later, in late April 2011, that Tereshko granted the defense’s motion for compulsory nonsuit, with the judge reasoning that it was permissible to do so in the middle of a case since the trial court had reviewed the reports of Branham’s expert witnesses who had not yet testified and determined the testimony to have been legally incompetent to establish causation without the epidemiological opinion of Neugebauer.

On appeal, the plaintiff argued that the trial court erred in granting Rohm and Haas’s pretrial motion for summary judgment on the woman’s strict liability claim, that the court abused its discretion in striking Neugebauer’s testimony, that the judge erred in dismissing the jury and subsequently entering a nonsuit instead of a mistrial, and that Tereshko should have recused himself from participating any further in Branham’s case.

On the main issue, that the trial court improperly granted nonsuit before the close of the case, the appeals judges agreed with Branham, writing that judicial rules only allow a judge to enter such a judgment “if, at the close of the plaintiff’s case on liability, the plaintiff has failed to establish a right to relief.”

“Our courts have explicitly held that a ‘nonsuit may not be entered by the trial court pursuant to Rule 230.1 prior to the commencement of trial before plaintiff’s presentation of evidence as to liability,’” the panel wrote, citing the case of Lewis v. United Hospitals, Inc.

In Lewis, the appeals judges wrote, the Pennsylvania Supreme Court reiterated that a trial court does not have the authority to enter a compulsory nonsuit without testimony having been taken in open court.

“Based on this precedent establishing that a nonsuit cannot be granted before trial, we find no authority to support Rohm and Haas’s claim 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,” the panel wrote. “To properly grant a compulsory nonsuit in this case, the trial court should have allowed [Branham] to present her remaining witnesses and ruled on the motion for nonsuit after [Branham] had concluded her case-in-chief.”

On the issue of recusal, however, the panel ruled against Branham, agreeing with the trial court and Rohm and Haas’s claims that Branham waived the issue by not asking the trial judge to recuse himself at trial, instead raising the issue for the first time in her post-trial motions.

“Our courts have established that unless a party seeking recusal of a trial judge on the basis of bias raises the objection at the earliest opportunity, the issue will be waived,” the ruling states. “To the extent that [Branham] is claiming the trial judge should recuse himself from further proceedings after remand, we find [Branham] did not meet her burden of producing evidence establishing bias, prejudice, or unfairness necessitating the trial judge’s recusal.”

The panel went on to note that throughout the course of the litigation, the trial court showed no partiality to either party and made numerous rulings in favor of each of the parties.

The record shows that the widow’s case against Rohm and Haas is one of a number of suits filed against the chemical company by people who lived in the McCullom Lake Village area or spent considerable time in the vicinity of the plant.

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