The Pennsylvania Supreme Court has ruled that Dow Chemical must produce witnesses to testify about alleged scientific irregularities in epidemiology studies the company sponsored to look at links between vinyl chloride and brain cancer.
In an April 10, 2012 decision, the Supreme Court declined to hear the appeal of Rohm and Haas, now a subsidiary of Dow, which means the opinion of the Superior Court (Pennsylvania’s intermediate appellate court) stands.
And that means Dow and Rohm and Haas have lost their challenge to a court order compelling Dow to make available certain witnesses to answer questions about whether Dow concealed from epidemiology researchers evidence of workers who had been exposed to vinyl chloride and who later were diagnosed with brain cancer. The reason Dow allegedly concealed such evidence: To weaken the scientific links between vinyl chloride, a key ingredient in the making of plastic, and brain cancer.
The dispute over Dow witnesses arises from litigation involving a group of cases involving almost three dozen individuals who developed brain tumors and who lived not far from a Rohm and Haas chemicals factory inMcHenry County,Illinois. Joanne Branham, on behalf of her late husband, Franklin Delano Branham, filed the first case. The Branhams were longtime residents ofMcCullomLake, a small community about one mile south of the Rohm and Haas (former Morton Chemical) plant.
TheMcCullomLakecases began after Mr. Branham and two former side-by-side neighbors were diagnosed with malignant brain cancer within the same 12-month time period. After all three filed civil actions in Philadelphia, where Rohm and Haas has its worldwide headquarters, other current and former residents who had developed brain tumors as well, came forward to join the litigation. In 2006, fourMcCullomLakeresidents were diagnosed with glioblastoma multiforme. All but one has since died.
Malignant brain cancer originating in the brain – as opposed a brain tumor that is the result of metastasis from cancer in some other part of the body – is an especially rare form of cancer. In the general population, there are only a few cases per 100,000 people per year. The population ofMcCullomLakeis about 1,000 residents.
Rohm and Haas had bought Morton Chemical, and along with it theMcHenryCountychemicals plant, in 1999. Dow Chemical in turn bought Rohm and Haas, paying about $15 billion, in 2009. Because Dow acquired Rohm and Haas after the Branham case was filed, Dow was not directly a party to the lawsuit.
The thrust of the Branham case, and the otherMcCullomLakebrain cancer cases as well, is the claim that Rohm and Haas maintained an open, unlined chemical waste lagoon that was used to store millions and millions of gallons of liquid and solid waste during the 1960s and 1970s. That lagoon leaked its contents, which then migrated through the groundwater moving in the direction ofMcCullomLake. The contamination also percolated up through the shallow groundwater and into the air.
Among the contaminants in the groundwater, the company has acknowledged, was vinyl chloride. Vinyl chloride is a known human carcinogen.
One of the issues in theMcCullomLakecases was whether vinyl chloride could cause brain cancers. Scientists widely agree that vinyl chloride causes a rare form of liver cancer and studies of vinyl chloride workers have strongly affirmed that conclusion. But the chemical industry, led by Dow Chemical, has long resisted and actively fought against linking vinyl chloride to brain cancer, even though a great deal of science, including animal studies and worker epidemiology studies demonstrate that vinyl chloride does cause brain cancer.
Starting in the 1970s, the chemical industry, through the Chemical Manufacturers’ Association (now called the American Chemistry Council), commissioned epidemiology studies of vinyl chloride workers to try to disprove any association between vinyl chloride and brain cancer. The idea was to create an industry-wide cohort of workers, that is, to include in one study a large group of workers potentially exposed to vinyl chloride from many different facilities owned by a variety of vinyl manufacturers.
Dow was one of the manufacturers that contributed workers from several plants to this industry-wide cohort. So was Union Carbide, a company later acquired by Dow.
The companies did what they could to control the outcome. For example, the company managers, rather than the researchers brought in to do the scientific investigation, controlled which plants were included and determined which workers should be included. In spite of these efforts, the initial versions of the industry-wide epidemiology studies gave the chemical manufacturers the unexpected and unwelcome news: the vinyl chloride workers did see a statistically significant increase in brain cancers.
In the late-1990s, the chemical companies revisited these earlier studies, engaging a new researcher, Kenneth Mundt, an epidemiologist fromBoston. Mundt took all the worker data previously examined by different researchers and “updated” the information. For example, one of the brain cancer cases counted in the earlier works was “un-counted” in the Mundt study.
The Mundt study, published in 2000, still found an association between vinyl chloride exposure and brain cancer, but characterized that association as “weak” from a statistical perspective. In a cohort of some 10,000 workers, there were 36 brain cancers identified. The fact that the study identified 36 cases meant that the increase in brain cancers over the expected number of cases was right on the line, just a hair shy of being statistically significant.
In other words, if Mundt had identified just one more case of brain cancer, then he would have had to acknowledge, as his predecessors had, that there was indeed a statistically significant association between vinyl chloride and brain cancer. Just one more case would have changed the outcome of his study.
In response, the chemical companies waved the Mundt paper triumphantly, as if to say, You see! That’s what we’ve been saying all along! Experts for chemical companies used Mundt’s work in defending legal claims brought on behalf of workers and others claiming that their brain cancer resulted from exposure to vinyl chloride.
The Dow Subpoena
During the investigation of theMcCullomLakebrain cancer cases, we were able to develop evidence that there were certain cases of brain cancer among workers in the industry-wide cohort that Mundt may not have counted. We developed evidence, supported by Affidavits and Death Certificates and other documentation, evidence that could show that not one but several chemical company workers who died of brain cancer should have been counted but were not counted.
On March 3, 2010, therefore, a subpoena was served on Dow in the Branham case to produce witnesses to testify about its participation in the industry-wide epidemiology studies. Dow brought in its own legal team to file a motion to quash the subpoena, meaning they asked the trial court to throw out the subpoena and prevent the Plaintiff from taking the testimony. As if they were separate companies and had not gone through a high-profile, multi-billion dollar acquisition just months before, Rohm and Haas filed its own motion, joining Dow’s request to quash the subpoena.
Dow argued that it was aMichigancorporation and that Plaintiff could only serve a subpoena on Dow there. In other words, Dow argued that it was not subject to aPennsylvaniacourt’s jurisdiction.
This was a curious argument and perhaps a poorly timed argument as well. After all, Dow had not only acquired Rohm and Haas, but, at the very time that these motions were being filed, Dow was erecting a large Dow red-diamond logo sign high above the Rohm and Haas headquarters at 5th and Market Streets, just a few blocks from the court house.
The trial court rejected Dow’s arguments and ordered Dow to produce the company witnesses. Dow appealed.
One year later, the Pennsylvania Superior Court published its decision affirming the trial court. The appeals court ruled that Dow’s “argument that as a non-resident Dow is per se immune from subpoena is misguided and does not merit relief.”
The court found, “The installation of a high corporate executive, the erection of prominent signage, and the establishment of ongoing marketing efforts under the Dow brand are not isolated, sporadic acts. The trial court did not abuse its discretion in concluding that they constituted the carrying on of a continuous and systematic part of Dow’s general business within this Commonwealth.”
There are many other interesting details in the Superior Court’s analysis of Dow’s arguments. At one point, the Court refers to one of Dow’s arguments as “unsupported, speculative, and in substantial variance with Dow’s original argument on appeal.” At another point, the Court pointed out that Dow was a point about “settledPennsylvanialaw” by citing to cases fromMississippi,Louisiana,OklahomaandNorth Carolina. At another point, the Court noted that Dow had quoted the trial court out of context.
In the end, the Superior Court’s ruling stands, by virtue of the Supreme Court’s decision not to hear any further appeal from Dow or Rohm and Haas. That means that businesses, like Dow, that do actual business inPhiladelphiaor elsewhere inPennsylvaniawill not be able to avoid the reach of our courts merely because they happen to be incorporated in some other state.
It also means we have forced the largest chemical company in the world to face some important questions about its role in influencing the science of vinyl chloride. This could well have a major impact on the families of those who have been exposed to vinyl chloride and have then developed brain tumors.
The link to the opinion on the Pennsylvania Superior Court website is no longer available. But this link should get you to the Court’s 32-page opinion: druganddevicelaw.net/Opinions%20in%20blog/Branham_Rohm%20&%20Haas.pdf.