In September, we reported on the first Ethylene Oxide (EtO) trial, which resulted in a $363 million verdict for a plaintiff who alleged that her breast cancer was caused by excessive exposure to EtO from a nearby facility. In that case, a Cook County (Illinois) jury agreed with 70 year old plaintiff Sue Kamuda that ethylene oxide emissions from the Sterigenics Willowbrook plant caused her cancer.  This was the first ethylene oxide personal injury case to go to trial.

The Willowbrook plant, now closed, began its operations in March 1985 and was used in large part to sterilize medical equipment.  The process entailed taking ethylene oxide and turning it into a gas for this process.  In February 2019, Illinois authorities issued a seal order which resulted in the plant closing until such time as its EtO emissions could be reduced.  Ultimately, Sterigenics opted not to reopen the plant.

Defense Verdict in Second Trial

On November 18, 2022, the second case to go to trial resulted in a defense verdict. The facility at issue was again the Sterigenics plant in Willowbrook, Illinois, though the disease at issue was leukemia as opposed to breast cancer in the first trial. The plaintiff was Teresa Fornek, who was 20 years old at the time of her diagnosis.

Third Trial January 2023

The next case scheduled to go to trial is slated to begin in January of 2023. The plaintiff is Heather Schumacher.  Future reports will provide further information on this case.

Analysis

There have now been two EtO trials, but with wildly disparate jury verdicts.  The first resulted in a $363 million award, while the second resulted in a defense verdict.  Both cases involved allegations of cancer and the same facility (Willowbrook), but in the first trial the cancer at issue was breast cancer whereas leukemia was at issue at the second trial.

Though the Kamuda case resulted in a $363 million verdict, the matter still needs to wind its way through the appellate process.  We queried in our report after the Kamuda verdict whether juries would return verdicts based on one type of cancer but not for another. Though the statistical sample is only two cases, we note that the breast cancer case resulted in a $363 million verdict while the leukemia case resulted in a defense verdict.  Obviously, there are other differences between the two cases, which bear analysis to explain why two juries came back with very different verdicts.

There still remain close to 800 plaintiffs who have sued Sterigenics alleging personal injury from the Willowbrook plant.  How many of those cases end up going to trial is an open question.

CMBG3 Law LLC has represented clients in environmental and products liability matters for years, and we have predicted several emerging contaminants as financial and litigation risks before they came to fruition, including PFAS, glyphosate, talc and asbestos. We regularly consult with private equity, banking, and investment world firms to identify future risk potentials from portfolios under consideration. For more information about the risks that ethylene oxide may pose to your business, please contact David Goldman.