The first Ethylene Oxide (“EtO”) trial went to verdict in September 2022, and a Cook County (Illinois) jury awarded $363 million to a plaintiff who alleged that she developed breast cancer as a result of EtO emissions from the Sterigenics Willowbrook plant.  This was the Kamuda case and was the first ethylene oxide personal injury case to go to trial.  It was followed by a second trial involving the same defendant and in the same court though with a different type of cancer at issue.  That trial, Fornek, resulted in a defense verdict.  A third trial, Schumacher, again with Sterigenics as the defendant, was scheduled to start trial after Fornek.

In January of this year, Sterigenics, the defendant in the two trials noted above and in another 870 or so cases arising from the Willowbrook plant, announced a settlement of its pending cases in the amount of $408 million.  The cases were pending in state and federal court in Illinois.  After this settlement, we opined that plaintiff firms would become even more emboldened to file EtO cases across the county.   Recent developments in Tennessee buttress our prediction.

Tennessee Class Action

On August 2^nd, a class action lawsuit was filed in circuit court in Shelby County, Tennessee.  The eight plaintiffs seek seeking compensation for alleged injuries from exposure to EtO from the Sterilization Services facility in south Memphis, which has operated since 1979. The plaintiffs all live within four miles of the facility.  It must be noted that there are also 16 other individual (i.e., not class action) pending lawsuits against Sterilization Services.

In the latter part of 2022, the EPA published a list of what it considered to be about the two dozen most unsafe ethylene oxide facilities, and the Sterilization Services plant was included. The exposure level there was noted to be about 20 times the EPA’s maximum acceptable risk level (and approximately 100 times higher in the 1980s).

Last month, Tennessee Congressman Steve Cohen wrote a letter (his second) to Sterilization Services of Tennessee General Manager David Connor demanding an explanation for why the company’s Memphis facility in Memphis had not taken action to reduce ethylene oxide emissions, particularly given that the company’s plants in Georgia and Virginia had taken such measures.  Select provisions of the letter are set out below:

“With the finding that ethylene oxide (EtO) is sixty times more hazardous than previously known and given that many other sterilization facilities have already made improvements to reduce EtO emissions, I request an explanation for why Sterilization Services of Tennessee (SST) has not taken action to reduce emissions as the company has at their Virginia and Georgia sites and urge SST to begin taking steps immediately to reduce emissions.

Since 2016, nearly 40 sterilization facilities have reduced emissions by installing dry bed systems to rear sterilization vents, upgrading leak detection and repair, installing continuous emissions monitoring systems, or making other modifications to their operations. In fact, both of SST’s sister facilities have reduced emissions. Sterilization Services of Georgia installed dry bed reactors and enhanced monitoring that included weekly monitoring of the new dry beds to ensure 99 percent reduction in EtO emissions, and testing of all emission reduction equipment monthly. In Richmond, where approximately 109,000 people live within five miles of the Sterilization Services of Virginia, the facility installed a new wet scrubber in the back vent, cutting overall emissions by approximately 50 percent.

Through its actions at its facilities in Georgia and Virginia, Sterilization Services has exhibited that it is able to reduce EtO emissions. What is confounding at this point is why Sterilization Services has not taken similar measures in Memphis and why it is willing to remain among the 23 EtO facilities of highest concern by the U.S. Environmental Protection Agency (EPA).

Presumably, the combination of the EPA publishing its list of unsafe EtO facilities and Congressman Cohen’s letter was the impetus for this class action.  Although only eight plaintiffs now, the plaintiff firm involved is actively seeking additional class members and we expect the number of plaintiffs to increase significantly.

Analysis

Given recent EPA activity in the EtO realm, we anticipate that additional plaintiff firms will set their sights on EtO facilities and that the litigation will continue to expand.  Plaintiff firms will recruit new clients who allege some type of cancer as a result of residing in the vicinity of an EtO plant. 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, defective earplugs, and other types of litigation. It is not far-fetched to think we will see this with EtO at some point in the near future.

Accordingly, our advice set out in prior postings still holds true:  the best litigation is no litigation.  If you operate a plant utilizing ethylene oxide, continually ensure that any emissions are within state and federal guidelines and that every possible precaution is taken to reduce emissions.  If you do business with a plant that utilizes ethylene oxide, make sure that as a contractual matter you cannot be held liable for emissions from the plant.  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 experience in the area of toxic torts.

CMBG3 Consulting & Litigation Defense

David Goldman, a shareholder at CMBG3’s Boston office, was recently part of a panel that spoke about EtO litigation at the EECMA conference in Philadelphia.  He has served as a paid consultant to various investors who want to know the potential risks of investing in companies that may have EtO 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.