Branham v. Rohm and Haas Co.
19 A.3d 1094
Pa. Super. Ct.2011Background
- Dow appeals the denial of its motion to quash a subpoena for deposition of a Dow designee regarding vinyl chloride studies and related communications in Branham v. Rohm & Haas, lead case in consolidated MDL-like proceedings.
- Branham alleges brain cancer from vinyl chloride-contaminated groundwater/air in Illinois; Rohm & Haas and others are defendants; Dow acquired Rohm & Haas in 2009 but is not a party to the underlying action.
- Dow is domiciled in Delaware with Michigan headquarters; it is qualified to do business in Pennsylvania and markets Rohm & Haas products under the Dow brand; a Dow sign appears at Rohm & Haas Philadelphia headquarters.
- Plaintiff sought deposition on epidemiology studies (Mundt study) and related communications about vinyl chloride and brain cancer, including potential exclusion of workers from the Mundt study.
- Michigan subpoenas in 2008 to Dow’s records custodian were quashed; 2010 PA subpoena issued; trial court denied motions to quash; Dow sought emergency stay which was denied pending merits panel decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dow can be compelled to attend a PA deposition as a nonresident nonparty. | Branham argues Dow is subject to PA subpoena due to continuous business in PA. | Dow contends nonresident/nonparty status immunizes it from PA subpoenas. | Dow is subject to PA subpoena; PA has general jurisdiction over foreign corporations with continuous business in PA. |
| Whether the trial court properly exercised subpoena power without a 5325 commission. | Branham argues 5325 procedures not required since Dow is subject to PA jurisdiction. | Dow argues 5325 should govern deposition in Michigan; Michigan rulings should control due to comity. | Trial court did not err; 5325 not required where Dow is qualified to do business and carries on business in PA. |
| Whether comity/preclusion requires giving effect to Michigan rulings. | Branham seeks to preclude or limit discovery based on Michigan decisions. | Dow asserts comity/res judicata/collateral estoppel should bar or limit discovery. | Michigan decisions do not control; comity and res judicata do not preclude PA discovery in this context. |
| Whether the subpoena improperly seeks expert testimony, burdensomeness, or confidential information. | Branham seeks factual testimony about study design and data, not expert opinions. | Dow claims burden and potential disclosure of confidential information; argues testimony may be expert. | Trial court did not abuse discretion; testimony sought is factual, not unduly burdensome, and can preserve confidentiality. |
Key Cases Cited
- In re Shigon, 462 Pa. 1 (1974) (inherent power of court to compel attendance of witnesses; no need for statute)
- Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007) (collateral review for collateral orders; narrow Rule 313 interpretation)
- In re Subpoena No. 22, 709 A.2d 385 (Pa. Super. 1998) (discretion in enforcing subpoenas; standard of review for abuse of discretion)
- Efford v. Jockey Club, 796 A.2d 370 (Pa. Super. 2002) (general jurisdiction concepts; agency relationships and activities to establish jurisdiction)
- Hall-Woolford Tank Co., Inc. v. R.F. Kilns, Inc., 698 A.2d 80 (Pa. Super. 1997) (burden/burdensomeness in discovery; considerations for discovery rulings)