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 most recent example of the latter is a trial that started this week in Georgia.
Ethylene Oxide Trial History
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, 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.
Last month, a Colorado jury rendered a verdict in favor of defendant Terumo BCT Inc. (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.
Georgia Trial Starts
Earlier this week, an EtO trial commenced against CR. Bard in Georgia. At issue is the company’s medical equipment sterilization plant in Covington, Georgia. The plaintiff, who had been a truck driver, alleges that he would make pickups at the plant on a regular basis, and, coupled with the fact that he resided one and half miles from the plant, was exposed to EtO and developed non-Hodgkin lymphoma. The plaintiff alleges that the company failed to take appropriate steps to protect he and the community from EtO. According to plaintiff’s allegations, the Covington facility emitted 9.8 million pounds of EtO from 1970 to 2017, that there were no controls until 1990, and that there were multiple instances of unintended EtO releases. Further, there are claims that Union Carbide, which had suppled EtO to the plant, had warned the company. Until 1990 there was nothing at all interfering with the release of the gas outside the plant, he said, claiming to the jury that any controls the plant put in place were done because the company was “forced” to, and that there were numerous “unintended” release incidents over the years. Even Bard’s EtO supplier, Union Carbide, had warned Bard, Daniel said.
For its part, Bard and Becton Dickinson (Bard’s parent company), maintain that the plant has always been a good corporate citizen and that the plaintiff’s cancer was not caused by EtO but rather by a random DNA mutation. Plaintiff counsel told the jury that the Food and Drug Administration has noted the critical role that EtO plays in the country’s healthcare system and that over 50% of medical products are sterilized with EtO.
Analysis
Recently, we’ve seen increased trial activity with respect to EtO trials. As set out above, there have now been cases taken to verdict in Illinois, Pennsylvania, and Colorado. And now a case has started trial in Georgia. There is also EtO litigation activity in California, though those cases are still in the discovery phase. As noted in previous postings, we expect 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, particularly if the Georgia trial results in a plaintiff verdict. 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.