Background

Ethylene Oxide (EtO) is an industrial solvent widely used as a sterilizing agent for medical and other equipment that cannot otherwise be sterilized by heat/steam.  EtO may also be used as a component for producing other chemicals, including glycol and polyglycol ethers, emulsifiers, detergents, and solvents.   Allegations that exposure to EtO increases the risk of certain cancers has led to governmental regulation as well as private tort actions against companies that operate sterilization facilities that utilize EtO.

The first ethylene oxide case to go to trial was the Kamuda matter, in which an Illinois jury awarded $263 million in September of 2022 against Sterigenics for ethylene oxide exposure from that company’s Willowbrook facility.  A subsequent trial in the same jurisdiction against the same defendant resulted in a defense verdict.  Ultimately, Sterigenics resolved its pending claims involving the Willowbrook plant in the amount of $408 million.   In December of 2024, in Christopher Glass et al. v. B. Braun Medical Inc. et al., a Philadelphia Court of Common Pleas jury found the defendant B. Braun Manufacturing Inc. not liable on all counts.  The plaintiff had alleged that her husband developed leukemia as a result of working at the defendant’s sterilization plant in Allentown, Pennsylvania for seven years.  Notably, unlike the Illinois trials, the Philadelphia trial involved an employee at the sterilization facility as opposed to the Illinois plaintiffs who did not work at the Willowbrook plant but resided nearby.

Colorado Verdict

In only the fourth ethylene oxide case to go to verdict in the country, on March 14, 2025 a Colorado jury rendered a verdict in favor of defendant Terumo BCT Inc.  The Colorado case is Isaacks et al. v. Terumo BCT Sterilization Services Inc. et al. in the First Judicial District of Colorado (docket number 2022CV031124).  This was a bellwether trial that lasted six weeks, and involved four female plaintiffs.  The jury determined that the defendant was not negligent in its handling of emissions from its Lakewood plant.  The plaintiffs had sought $217 million in damages for their alleged physical impairment and also $7.5 million for past and future medical expenses as well as punitive damages.  In light of the fact that the six person jury found the defendant Terumo not negligent, it did not need to consider damages or causation.  Notably, there remain hundreds more pending claims against Terumo in Colorado.  In fact, plaintiffs’ counsel filed almost 25 more cases while the trial was in progress.

All of the plaintiffs alleged that they had developed cancer as a result of ethylene oxide emissions from the Terumo facility.  One plaintiff alleged breast cancer as a result of 23 years of exposure from the plant, while another alleged breast cancer after almost 35 years of exposure (these two plaintiffs were neighbors).  Another plaintiff alleged multiple myeloma while the fourth plaintiff alleged Hodgkin’s lymphoma.

Analysis

While it is difficult to draw conclusions from a sample size of four verdicts given the differences in plaintiffs, jurisdictions, and alleged disease processes, we continue to believe that plaintiff firms will recruit new clients who allege some type of cancer as a result of residing in the vicinity of an ethylene oxide plant.  In fact, there is ongoing ethylene oxide litigation in California and a few other states.  How long will it be until we see television advertisements run by plaintiff firms seeking new plaintiffs?  We’ve seen this in asbestos, talc, contaminated water, firefighting foam, defective earplugs, and other types of litigation. It is not out of the realm of possibility to think that we will see this with ethylene oxide litigation at some point in the near future.

CMBG3 Consulting & Litigation Defense

David Goldman, a shareholder at CMBG3’s Boston office, has spoken at a number of national conferences concerning Ethylene Oxide litigation. He has served as a paid consultant to various investors who want to know the potential risks of investing in companies that may have Ethylene Oxide liability.  He continues to closely monitor scientific developments and related regulations and litigation so as to fully advise clients on the impact of same on their various business concerns.  Also, CMBG3 shareholder John Gardella defends and advises clients concerning PFAS (so-called “forever chemicals”) litigation.  We welcome the opportunity to work with your company to minimize the risk of litigation, and, should that be unavoidable, defend your company in court.

Our advice has been consistent over the past few years:  the best litigation is no litigation.  Consulting with a law firm experienced in advising businesses as to how to avoid litigation is recommended, and if litigation is unavoidable you will want to a law firm that has vast experience in the area of toxic torts.