Medical device sterilization company, Sterigenics, and several related entities, potentially including a private equity firm once headed by a former Illinois governor, should not be able to avoid potentially hundreds of trials over accusations that emissions from Sterigenics’ Willowbrook plant caused cancer and other illnesses in those living and working nearby, a Cook County judge has ruled.
And at those trials, the judge said, the plaintiffs should be allowed to press for much larger punitive damages from the various corporate defendants, over accusations the corporate entities recognized their legal peril and attempted to shield potentially billions of dollars from the forthcoming lawsuits.
On June 28, Cook County Circuit Judge Marguerite Quinn denied the requests from Sterigenics and several other defendants for summary judgment in the sprawling litigation brought by an army of many of Chicago’s leading personal injury lawyers on behalf of hundreds of people from Chicago’s western suburbs who claim they were sickened by Sterigenics’ alleged emissions of the compound known as ethylene oxide, or EtO.
Cook County Circuit Judge Marguerite Quinn
| Youtube screenshot
The list of defendants being sued also includes Alsip-based food ingredients maker Griffith Foods and venture equity firm GTCR, which had been formerly led by Bruce Rauner before he became governor of Illinois. The plaintiffs are suing those other entities because they claim those other companies held ownership interests in Sterigenics or the Willowbrook sterilization plant in the past.
Sterigenics is now owned by Sotera Health, which also is named as a defendant in the case.
Judge Quinn denied motions for summary judgment from several of those companies. She followed those rulings on June 29 with decisions allowing the plaintiffs to pursue punitive damages against GTCR, Griffith Foods and Sotera.
“At this stage, the Plaintiffs have shown: (1) That the Defendants knew the use of EtO was highly carcinogenic to humans and (2) The Defendants played a substantially significant role in the operation of the Willowbrook facility,” Judge Quinn wrote in one of her June 29 orders. “Instituting and directing an overall dangerous business strategy implemented with the knowledge that the continuous emission of dangerous amounts of EtO into the air in a residential area could foreseeably cause serious harm to the residents.”
Quinn specifically noted she was not, at this time, “determining the truth of these facts or the credibility of the (plaintiffs’) witnesses.” But she said plaintiffs have done enough to allow them to present their claims and evidence to a jury.
More than 760 lawsuits filed since 2018 are currently pending in Cook County Circuit Court against Sterigenics and the other defendants.
The lawsuits assert Sterigenics and the other roster of defendants should be made to pay for allegedly emitting the chemical known as ethylene oxide (EtO) into the air in the region around Willowbrook.
The lawsuits were spurred in large part by a report issued in 2018 by the federal Agency for Toxic Substances and Disease Registry (ATSDR). The report asserted Sterigenics’ emissions from the use of EtO had significantly increased the risk of cancer and other illnesses in Willowbrook and surrounding communities.
Sterigenics used the Willowbrook plant to sterilize large quantities of key medical devices and surgical tools, including those used in heart surgery, knee replacements and a host of other surgical and other medical procedures.
Sterigenics and others in the medical device industry have asserted the use of EtO is essential to sterilizing medical devices and reducing infection risks in hospitals and operating rooms. They have noted no other sterilization method can replace EtO in safely and properly sterilizing large quantities of medical devices and tools.
The facility, however, has remained shuttered since early 2019, when newly elected Gov. JB Pritzker used the Illinois Environmental Protection Agency to order the plant closed.
Sterigenics has accused Pritzker and the IEPA of acting unlawfully in closing their plant. They noted no one has ever accused them of violating any emissions limits imposed by either the state or federal government.
In the meantime, Illinois enacted stringent new EtO emission limits, which prompted Sterigenics to abandon the fight to reopen the plant.
After years of litigation, the first of those lawsuits, filed by plaintiff Susan Kamuda, is set to go to trial beginning July 18.
However, that trial date remains uncertain, as plaintiffs have also asked the Illinois Supreme Court to step in and override several previous rulings from Judge Quinn, who had ordered the cases to trial one at a time. Plaintiffs instead desire cases to be consolidated, to allow them to proceed in only a few trials, as a kind of mass action, to speed the cases toward resolution.
The Illinois Supreme Court has not yet responded to their petitions.
While the plaintiffs and the Sterigenics defendants sparred in court over how to handle the trials, the parties also traded arguments over attempts by the various defendants to pull the plug on the lawsuits by securing summary judgment in their favor, before the cases can go to trial.
In moving for summary judgment, Griffith Foods argued it should not share in liability from the lawsuits. While it opened the Willowbrook plant in the mid-1980s, the company claimed it has had nothing to do with running the plant for decades. Further, they argued Sterigenics assumed all liability when it bought the sterilization plant.
GTCR argued it merely was an investor in Sterigenics and did not control operations at the plant.
For their part, Sotera and Sterigenics argued the plaintiffs have not and cannot prove EtO emissions from their plant directly caused the array of cancers and other illnesses claimed by the hundreds of different plaintiffs.
Judge Quinn, however, said the plaintiffs have done enough to show they should be allowed to let a jury decide how much Sterigenics knew about the health risks allegedly posed to the surrounding community by the emissions from the Willowbrook plant.
“Sufficient evidence has been presented showing that Sotera knew of the dangers of EtO and that it was foreseeable that the surrounding community would be injured as a result of emitting the toxic gas into the air,” Judge Quinn wrote on June 28.
Regarding Griffith Foods and GTCR, Quinn also said juries should be allowed to hear evidence concerning the ownership and control over the Willowbrook plant those companies held throughout the plant’s operational lifespan.
She further ruled GTCR should face potential punitive damages at trial.
Quinn noted the plaintiffs have alleged GTCR held ownership interests over Sterigenics and its Willowbrook plant from at least 2011, and increased sterilization operations at the plant, but made “no meaningful investments … to enhance EtO emission controls.” Further, plaintiffs have alleged that, beginning in 2016, GTCR began transferring “nearly $1.3 billion in cash from Sterigenics companies.”
Judge Quinn said plaintiffs assert these acts demonstrate GTCR knew of the potential emissions problems, and took action “in an effort to avoid liability in the face of likely imminent lawsuits.”
The Sterigenics defendants are represented by attorney Bruce R. Braun and others with the firms of Sidley Austin, of Chicago; Hollingsworth LLP, of Washington, D.C.; and Ropes & Gray, of Chicago.
Plaintiffs are represented in the cases by attorney Patrick A. Salvi II, and others with the firm of Salvi Schostok & Pritchard; J. Timothy Eaton, and others with Taft Stettinius & Hollister; and attorneys with the Collins Law Firm; Miner Barnhill & Galland; Romanucci & Blandin; Hart McLaughlin & Eldridge; and Smith Lacien.
All plaintiffs’ firms are from Chicago, except the Collins firm, which is based in Naperville.