At the beginning of this year, we posited in an article entitled “Is the Sterigenics Settlement The First of Many Ethylene Oxide Settlements or is it Aberrational?” that the 2022 settlement by Sterigenics in the amount of $408 million to resolve 870 cases arising from the company’s Willowbrook (Illinois) facility would not be the last settlement by the company, but only the first.  Though we lacked a crystal ball, recent events have borne out our prediction.

Late last week, on the verge of starting trial in the first case to go to trial in Georgia, Sterigenics (and its parent corporation Sotera) entered into a $35 million conditional settlement agreement to resolve that case as well as 78 other ethylene oxide personal injury cases arising out of its Cobb County, Georgia facility, which has been in operation since 1972.  The claimants had alleged that ethylene oxide emissions caused them to develop cancer and other injuries.  Notably, in order for the settlement to become final, 100% of the plaintiffs must participate.

Despite this settlement agreement, there are still a great deal of ethylene oxide cases pending in Georgia against Sterigenics, including not only personal injury claims but also property diminishment claims from homeowners in proximity to the plant who claim that ethylene oxide in the area have served to reduce the value of their properties.  If the personal injury claims survive a general causation challenge they could go to trial at the end of 2025 at which time whether there is specific causation will be determined.

Analysis

While it remains to be seen whether or not Sterigenics will enter into settlement agreements in its remaining Georgia cases as well as in cases in other jurisdictions, it would seem reasonable to assume that this settlement coupled with the Willowbrook settlement last year will provide an impetus for the plaintiffs’ bar across the country to analyze whether they can locate potential plaintiffs consisting of individuals who developed cancer and live(d) near ethylene oxide medical sterilization facilities.

As we have noted in prior postings, it is almost inevitable 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. 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.

Our advice has been consistent over the past few years:  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.