A Cook County judge erred in ordering hundreds of lawsuits, worth potentially billions of dollars altogether, against medical device sterilization company Sterigenics to be combined into groups for trial, the company said in a recent court filing.
Sterigenics said the judge’s decision to consolidate the cases, which accuse the company of emitting a chemical into the air which allegedly caused cancer among residents of Willowbrook, clashes with long-established guidance set by Illinois courts for handling other similar mountains of personal injury claims allegedly caused by industrial toxins, like asbestos.
“Only individual trials can vindicate the Sterigenics Defendants’ rights to defend themselves in a fair trial,” Sterigenics wrote in a motion filed Nov. 9. “Consolidating the trials unfairly favors Plaintiffs on causation – one of the most critical elements in these cases – by creating the powerful but erroneous impression that the number of Plaintiffs must mean those Plaintiffs’ cancers had the same cause.
Eric Mattson
| Sidley Austin
“The same concerns about causation have led this Court and courts throughout Illinois to require that asbestos cases be tried one plaintiff at a time, even though far more asbestos cases have been filed than are at issue here.”
The motion asks Cook County Judge James Flannery to reconsider his decision from October allowing plaintiffs to try cases against Sterigenics in groups of four, rather than one at a time.
In the Oct. 21 ruling, Judge Flannery, in his role as presiding judge over the Cook County Circuit Court’s Law Division, agreed to consolidate the cases, citing the court’s authority to manage its own docket and try cases as efficiently as possible.
A hearing is scheduled for Nov. 15 to discuss how the consolidated multi-plaintiff trials will proceed.
The decision was hailed by attorneys representing Willowbrook residents suing Sterigenics. Attorney Patrick A. Salvi II, of the firm of Salvi Schostok & Pritchard, of Chicago, said the decision would “allow all the litigants to move closer to resolution of this litigation.”
The decision, however, overrode earlier rulings from Flannery’s colleague, Cook County Circuit Judge Marguerite Quinn, who had presided over the cases to that point, and had repeatedly said she believed the cases needed individual trials to ensure Sterigenics had the opportunity to defend itself based on the facts of each case, not more broad-based assertions common to all of the cases, in a sort of mass action.
Lawsuits against Sterigenics have flooded the court docket in Cook County since 2018, led by many of Chicago’s top personal injury lawyers. The lawsuits were filed on behalf of people from Chicago’s western suburbs, in and around Willowbrook, who claim they contracted cancer and other illnesses, allegedly caused by Sterigenics’ emissions of a substance known as ethylene oxide (EtO).
Sterigenics and its predecessors had operated a plant in Willowbrook since the 1980s, using EtO to sterilize a broad range of medical devices and surgical tools. 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 lawsuits have named Sterigenics as defendant, along with its parent company, Ohio-based Sotera Health, and Alsip-based Griffith Foods, which had initially owned and operated the Willowbrook plant.
The lawsuits were spurred in large part by a public furor that erupted following the release of a 2018 report 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 in and around Willowbrook.
The Willowbrook plant has remained closed since early 2019, when Gov. JB Pritzker used the Illinois Environmental Protection Agency to order the plant shuttered.
Sterigenics has accused Pritzker and the IEPA of acting unlawfully in closing the plant. They have continuously noted no one has ever accused them of violating any emissions limits imposed by either the state or federal governments.
Sterigenics has also repeatedly cited its compliance with emission standards in fighting unsuccessfully to dismiss the cases for years.
The company argued throughout that it cannot be made to pay now for emission levels that were explicitly approved by state and federal environmental regulators.
In pretrial proceedings, Judge Quinn agreed to consolidate the hundreds of cases during the discovery phase of the litigation.
However, she repeatedly denied the requests of plaintiffs’ attorneys to allow the cases to proceed to trial together.
Earlier this fall, the first of the cases went to trial. In that case, a Cook County jury ordered Sterigenics and other related defendants to pay $363 million to just one plaintiff, Susan Kamuda, who claimed Sterigenics’ emissions caused her to contract cancer.
That verdict came despite evidence Sterigenics said demonstrated its emissions levels were too low to produce the catastrophic effects claimed by the plaintiffs.
Sterigenics and other defendants have challenged the verdict, asking the court to vacate the decision or at least order a new trial. Those motions remain pending before the judge.
In the meantime, Judge Flannery said he would allow the plaintiffs to combine their cases into groups of four for trial.
Sterigenics on Nov. 9 asked the judge to reconsider that decision.
They said prior court rulings on the mountain of litigation in Illinois concerning cancers allegedly caused by asbestos exposure demonstrate Flannery’s decision violated the Sterigenics defendants’ rights to fair trials.
“… Consolidated trials would involve allegations brought by different people with different medical backgrounds, different diseases, different risk factors, and different alleged exposures to ethylene oxide at different locations and times,” Sterigenics wrote in its motion.
Allowing trials in groups, they said, would allow plaintiffs’ lawyers unfairly to claim Sterigenics caused cancer in one person, by pointing to cancers allegedly caused by Sterigenics in other people.
“… In short, fairly trying these distinct claims in group trials would be impossible and would inevitably deprive Defendants of their constitutional rights to due process,” Sterigenics wrote.
Instead, Sterigenics suggested the court consider allowing the two sides to work with the judge to select four cases for trial, to serve as so-called “bellwethers,” or representative cases for various case types. This would allow the court to advance the cases toward completion, and to allow facts and claims common to different groups of similar cases, to be tried without allegedly denying Sterigenics and its co-defendants their rights to defend themselves in court.
Sterigenics is represented in the matter by attorneys Eric S. Mattson and Bruce R. Braun, of the firm of Sidley Austin, of Chicago; and Joe G. Hollingsworth, Eric G. Lasker, Matthew J. Malinowski and Ann Marie Duffy, of Hollingsworth LLP, of Washington, D.C.