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Dow Chemical not beyond subpoena power of Pa. court

By Jessica M. Karmasek | Apr 19, 2011

HARRISBURG, Pa. (Legal Newsline) - The Pennsylvania Superior Court has upheld a trial court's denial of Dow Chemical Co.'s motion to quash a subpoena to compel the deposition of a company-designated witness.

The superior court, in a 32-page opinion filed April 12, said Dow must answer the subpoena because it "regularly and continuously conducts business" in Pennsylvania. The court also denied Dow's application to stay its appeal.

In May 2006, Joanne Branham filed a personal injury lawsuit against Rohm and Haas. In it, she alleged that her deceased husband suffered brain cancer as a result of groundwater and air contamination in Illinois from vinyl chloride caused by Morton, which was acquired in 1999 by Rohm and Haas.

In 2009, Rohm and Haas was acquired by Dow and became its wholly owned subsidiary. Dow is incorporated in Delaware, with headquarters in Michigan.

On March 3, 2010, Branham served a subpoena on Dow's statutory agent to produce a witness in Philadelphia for a videotaped deposition to be used at trial in this case. She sought to question a Dow-designated witness on epidemiology studies by Dow and other studies by industry associations in which Dow participated about a possible causal link between vinyl chloride and brain cancer, as well as related communications.

In particular, Branham sought to find out whether there was an improper exclusion of certain workers, who otherwise would appear to have been appropriate subjects, from a key study of vinyl chloride exposure. The study concluded that there is no statistically significant epidemiological evidence that vinyl chloride is a cause of brain cancer.

On March 26, 2010, Dow moved to quash the subpoena. The trial court denied the motion, and Dow filed an appeal.

Retired Senior Judge William H. Platt, who was assigned to the superior court, authored the opinion.

Dow's first and principal argument is that as a "non-resident, non-party," it is beyond the subpoena power of a Pennsylvania court. The superior court disagreed.

The court points to the facts, which the company does not dispute:

- That it is a corporation qualified to do business in the state, subject to suit in state courts;

- It markets Rohm and Haas products under the Dow brand name;

- It has posted prominent signage with its corporate logo in various Pennsylvania locations, most notably at the headquarters of Rohm and Haas in Philadelphia; and

- That its senior vice-president and member of its 14-person executive leadership committee, as well as the chief executive officer of Rohm and Haas, maintains his office at the same location.

"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," the superior court wrote.

"Therefore, the trial court's finding that Dow regularly and continuously conducts business in Pennsylvania is supported by the record."

As to Dow's application to stay the appellate proceedings, the court declined, pointing to the amount of time from the end of the trial until it filed its application for expedited relief.

"As a practical matter, Dow's two-month delay in seeking emergency relief, and the subsequent passage of time to date without resolution by the trial court, have obviated the claim that an emergency situation requiring expedited treatment exists," the superior court wrote.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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