As much as $48 million more could be added to the $408 million plaintiffs are already expected to receive from settlements to end lawsuits against the owner of the former Willowbrook Sterigenics medical device sterilization plant, which is blamed for emissions that plaintiffs claimed caused cancers and other illnesses in people living and working in and around the western suburb of Chicago.
This week, attorneys for the plaintiffs disclosed in court that they are nearing a deal with Alsip-based Griffith Foods to also close out the same lawsuits against that company, which decades ago had owned the sterilization plant.
The likely settlement was discussed in a motion seeking an agreed order from a Cook County judge permitting and directing Griffith Foods to transfer $48 million into a special escrow fund.
Patrick Salvi II
| Salvi Schostok & Pritchard
The company had been under a court order, requiring it to disclose assets to plaintiffs’ attorneys, so the new order is needed to allow the company to transfer the funds without running afoul of the prior order.
According to the motion, filed April 24 in Cook County Circuit Court, Griffith Foods intends to acquire the funds as part of a larger debt financing. That financing would include an additional $175 million which the company would use to fund operations. Those funds would not be included in any settlement.
Griffith Foods was among a list of individual and corporate defendants named in hundreds of lawsuits over the use of the chemical known as ethylene oxide at the now-shuttered Sterigenics plant in Willowbrook.
The lawsuits were first filed against Sterigenics and its parent company, Sotera Health, in 2018. The lawsuits were spurred in large part by a report issued that year by the federal Agency for Toxic Substances and Disease Registry (ATSDR). The report asserted emissions from the use of ethylene oxide gas (EtO) had significantly increased the risk of cancer and other illnesses in Willowbrook and surrounding communities.
All of the lawsuits accuse Sterigenics and related entities of negligence and causing a public nuisance, among other claims, for allegedly emitting too much EtO into the air in Willowbrook.
The Sterigenics plant was used 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.
The lawsuits against Sterigenics in Willowbrook were a prong in a nationwide campaign by activists and trial lawyers to demand the closure of all sterilization plants operating in the U.S.
Health care organizations and medical device makers have warned such closures would endanger patients, leaving the industry less able to assure patients that the surgical tools and implants used in hospitals and operating rooms are safe and free of infection risk.
In early 2019, the Illinois Environmental Protection Agency, at the direction of Gov. JB Pritzker, ordered the Willowbrook plant to cease operations. The plant has never reopened.
Sterigenics accused Pritzker and the IEPA of acting unlawfully, as they had never been accused of violating any emissions limits imposed by either the state or federal government.
In the meantime, Illinois enacted strict new EtO emission limits. Faced with the threat of continued fights in the state legislature and the courts, Sterigenics opted not to reopen the Willowbrook plant.
The lawsuits continued, however, with hundreds more added to the total each year.
More recently, hundreds of additional lawsuits also named Griffith Foods and other companies as defendants. In those lawsuits, plaintiffs claim Griffith Foods should share direct liability for its role in opening the Willowbrook plant in the mid-1980s, and then allegedly operating the plant through a subsidiary company, known as Micro-Biotrol, until 1999.
Griffith Foods has disputed those claims, asserting it has had nothing to do with the plant for decades, and that Sterigenics had assumed full liability “for the alleged wrongdoing” when Sterigenics acquired the Willowbrook plant.
A Cook County judge, however, said those arguments weren’t enough to allow Griffith Foods to escape the lawsuits. Judge Marguerite Quinn agreed Griffith Foods “may have raised rather salient questions” about its liability for the alleged nuisance EtO emissions, allegedly released by Sterigenics. But the judge said those questions needed to wait for later in the proceedings.
In court filings, Sterigenics said the addition of Griffith Foods and other new defendants was a “transparent ploy” to “enlarge the pool of potential deep pockets” from which plaintiffs could extract massive payments.
Ultimately, the tactics appear to have proven successful.
In 2022, the first trial against Sterigenics, in the case brought by plaintiff Susan Kamuda, resulted in a $363 million verdict against Sterigenics and its co-defendants.
A second trial in a different case resulted in a win for the Sterigenics defendants.
However, faced with the prospect of such radically different results, case by case, Sterigenics and the plaintiffs agreed to settle nearly 870 remaining lawsuits for $408 million.
The settlement has not yet been approved by the court.
That settlement did not include Griffith Foods.
According to the April 24 motion, Griffith and the plaintiffs have remained in settlement talks since, and have reached a tentative deal, under which Griffith would pay $48 million to end the lawsuits in which it is also named as a co-defendant.
A formal settlement has not yet been signed or presented to the court for approval.
A spokesman for Griffith Foods declined comment on the potential settlement.
The April 24 motion was filed by attorneys Patrick A. Salvi II, Lance D. Northcutt and Jennifer Cascio, of the firm of Salvi Schostok & Pritchard, of Chicago; and Andrew R. Schwartz and Thomas Kanyock, of Schwartz & Kanyock, of Chicago, representing the plaintiffs.
The motion was co-signed by attorneys Christopher B. Wilson and Jonathan R. Buck, of the firm of Perkins Coie, of Chicago, representing Griffith Foods.