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Sunday, March 29, 2020

'Public nuisance' personal injury suits vs Sterigenics over emissions surge again

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By Jonathan Bilyk | Dec 13, 2019


After tripling in one day earlier this year, the number of lawsuits has again surged against Sterigenics, the company that formerly operated a medical device sterilization plant in Willowbrook, accusing the company of generating emissions of a compound the lawsuits blame for causing cancer.

This week, a group of personal injury lawyers who are already representing dozens of individuals and families suing Sterigenics filed a raft of new personal injury suits against the company in Cook County Circuit Court.

The new filings now bring the total number of cases pending against Sterigenics in Cook County to nearly 75.

Antonio Romanucci | Romanucci & Blandin

The lawsuits are all similar to the dozens of lawsuits that came before, accusing the company’s emissions of the chemical compound known as ethylene oxide of causing a variety of cancers and other medical conditions in people who lived and worked in and around Sterigenics’ facility in Willowbrook.

The facility has been closed since February, when a state order – which Sterigenics called unconstitutional and illegal – barred Sterigenics from using its stores of ethylene oxide, or EtO, a compound the company said is essential to its sterilization operations. Sterigenics announced this fall it would not seek to reopen the facility.

The state order, issued as a so-called “seal order” by the Illinois Environmental Protection Agency, came shortly after Gov. JB Pritzker was inaugurated after defeating Republican Gov. Bruce Rauner in 2018 – in part, thanks to Pritzker’s use of controversy surrounding the Sterigenics facility as a campaign issue against his opponent.

The controversy had erupted in mid-2018, following the release of a report from the federal Agency for Toxic Substances and Disease Registry, which blamed Sterigenics’ alleged emissions for a heightened cancer risk in the region surrounding Willowbrook.

The report’s release, in turn, generated a smattering of personal injury lawsuits and a sustained campaign by activists seeking to shut down the Sterigenics facility.

In October 2018, the state became involved, as the Illinois Attorney General’s Office under then Attorney General Lisa Madigan, together with DuPage County State’s Attorney Robert Berlin, sued Sterigenics, asking the court to essentially order Sterigenics closed. At no point did the state accuse Sterigenics of violating clean air laws or emissions regulations, or the terms of the operating permit the facility had obtained from the state. Rather, the state complaint mirrored the personal injury lawsuits, which alleged Sterigenics had caused a “public nuisance” by emitting EtO at all.

Sterigenics attempted to send the state’s lawsuit, and the personal injury lawsuits to federal court, but federal judges determined they belonged best in Cook County Circuit Court. Immediately after those rulings, the number of personal injury lawsuits filed against Sterigenics tripled in Cook County court.

This summer, Illinois state lawmakers passed legislation enacting what was called at the time the strictest regulations of EtO anywhere in the country.

The court fight between the state and Sterigenics came to a close shortly after, as the two sides entered what is known as a “consent decree,” under which the state agreed to allow Sterigenics the chance to obtain a new permit, and Sterigenics agreed to abide by a series of emissions and inspection regulations even stricter than those contained in the new state law.

However, the deal infuriated anti-Sterigenics activists, including a number of state lawmakers, who continued to seek legislative means to ensure Sterigenics never reopened. Among legislative proposals still on the table is a new law banning the use of EtO in medical device sterilization facilities.

Faced with such prospects, Sterigenics opted to simply abandon Illinois altogether.

The permanent closure, and the threat of further actions against other medical device sterilizers in Illinois and elsewhere, has prompted medical device manufacturers and the U.S. Food and Drug Administration to warn of shortages of key medical devices, such as surgical kits, hypodermic needles, knee and hip implants, pacemakers and more, should EtO be legislated out of the medical device sterilization industry.

In the meantime, lawsuits against Sterigenics and Illinois’ other large medical device sterilizer, Medline, continue to mount.

Earlier this year, lawyers, including many of the same attorneys now suing Sterigenics, also filed suit against Medline, over alleged emissions from its sterilization plant in Waukegan. Those lawsuits also remain pending.

In the Sterigenics actions, the group of lawyers representing clients in the cases is led by attorneys Antonio Romanucci, of the firm of Romanucci & Blandin; Todd Smith, of Power Rogers & Smith; Patrick Salvi II, of Salvi, Schostok & Pritchard; Steven Hart, of Hart McLaughlin & Eldridge; and Shannon McNulty, of the Clifford Law Offices.

The five lawyers were appointed by a Cook County judge to take the lead on the mass of nearly identical lawsuits, after the court consolidated the lawsuits for the purposes of pre-trial proceedings and the fact and evidence discovery process. Each of the lawsuits would be subject to its own trial, barring any settlements or dismissals.

Other law firms with attorneys representing clients in the actions include Tomasik Kotin & Kasserman; The Collins Law Firm; and Miner Barnhill & Galland.

The surge of new filings comes just about three weeks since Sterigenics formally asked Cook County Judge  Christopher Lawler to dismiss the lawsuits against it, asserting the lawsuits represent an improper attempt to use the courts to rewrite federal and state emissions rules.

In the Nov. 22 filing, Sterigenics asserted the public nuisance claims can’t stand up under the law, and set a bad precedent for a host of other businesses in Illinois.

The company argued the public nuisance personal injury suits merely assert plaintiffs’ “disagreement with the judgment” of state and federal regulators in permitting Sterigenics’ operations and emissions, until public pressure changed the equation.

“In other words, in the face of the extensive and specific federal and state standards, Plaintiffs ask the Court to create a new standard, after the fact, by judicial fiat,” Sterigenics said.

Should such a claim be allowed to succeed, Sterigenics warned it could set the stage for other businesses to face similar actions, undermining the validity of the state’s regulatory and permitting process.  

“… Once regulators expressly permit a specified level of emissions, private tort plaintiffs cannot subsequently rewrite the law by simply claiming that the authorized emissions constitute a public nuisance,” Sterigenics wrote.

Plaintiffs in the personal injury lawsuits have not yet responded to Sterigenics’ motion to dismiss.

Sterigenics is represented in the action by attorneys Maja C. Eaton and others with the firm of Sidley Austin LLP, of Chicago.

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Organizations in this Story

Sidley Austin LLPRomanucci & BlandinPower, Rogers and SmithHart McLaughlin & Eldridge, LLCMiner BarnhillTomasik Kotin Kasserman , LLCThe Collins Law FirmCircuit Court of Cook CountySalvi ,Schostok & PritchardSterigenicsCLIFFORD LAW OFFICES, PC