A state appeals court has refused to tap the brakes on a new trial for a 70-year-old woman who is suing medical device sterilization sterilization company Isomedix over claims ethylene oxide emissions from their Waukegan plant caused her to develop cancer.
In the ruling, a three-justice panel of the Illinois First District Appellate Court ruled Isomedix couldn't put the trial on hold while it presses forward with its own lawsuit, seeking to force other companies who used ethylene oxide at sterilization plants in Lake County to contribute toward any financial setbacks Isomedix may suffer in court.
Isomedix is a subsidiary of Steris, an international medical device maker and distributor based in Ireland.
Knobbe's lawsuit is the first of nearly 275 cases pending against Steris Isomedix to head to trial in Cook County Circuit Court.
Knobbe's complaint is similar to nearly all of the other cases, as she claims she developed breast cancer as a result of breathing air allegedly contaminated by elevated levels of the chemical compound known as ethylene oxide (EtO) allegedly caused by emissions from industrial facilities, including medical device sterilization plants, within a few miles of her home.
The lawsuits involving Isomedix also involved several other Lake County area companies known to have used EtO in either sterilization plants or other industrial settings for decades.
Other defendants named in Knobbe's complaint and those of hundreds of others filed in Cook County court include medical device maker and sterilizer Medline; medical device maker Cosmed; and specialty chemical company Vantage. All of the defendants operated plants utilizing EtO in and around Waukegan.
EtO is used widely in various industries, including many in operation in the Chicago area. In manufacturing, EtO serves as a key building block ingredient for a wide range of products, including antifreeze, recyclable packaging and nearly all products containing fiberglass. Derivatives of EtO area also used to make shampoo and other personal care items, as well as some pharmaceuticals.
Isomedix and other medical device sterilizers have used EtO to sterilizie a wide variety of medical devices and tools, including surgical implants, like pacemakers and catheters, to ensure the do not increase patients' risk of deadly infections in the operating room.
Medical device makers have said EtO is all but essential to ensuring patient safety and preventing deadly infections in surgical patients.
Because of its widespread use, EtO is present in the ambient air throughout much of the Chicago region, according to air pollution measurements conducted by the U.S. Environmental Protection Agency.
Companies in the Chicago area and elsewhere, however, increasingly have been targeted in recent years for lawsuits from trial lawyers seeking big payouts and relying on government reports indicating long exposure to EtO could increase people's risk of contracting cancer.
In Illinois, the anti-ETO effort began when activists and trial lawyers targeted sterilization company Sterigenics, which operated a sterilization plant in west suburban Willowbrook.
The activists succeeded in persuading state officials to take action against Sterigenics and rewrite Illinois' pollution rules to impose severe limits on EtO emissions, ultimately forcing Sterigenics to pull out of Illinois, even though the company had to that point never violated state or federal EtO emissions limits.
Sterigenics ultimately agreed to pay $408 million to settle more than 870 lawsuits on behalf of people who lived in and around Willowbrook, who claimed that company's EtO emissions had caused cancer.
Another company, Griffith Foods, which formerly operated the Willowbrook sterilization plant, also agreed to pay $48 million to settle claims against them.
Those settlements came after two cases against Sterigenics went to trial. In the first trial, a jury ordered Sterigenics to pay a woman $363 million. In the second trial, however, a jury sided with Sterigenics, declaring the company shouldn't be liable for a different woman's illness.
Nationally, EtO-related actions have resulted in settlements estimated to be worth more than $700 million collectively, according to some published estimates.
Meanwhile, the separate Lake County-related legal actions have continued in Cook County court.
Medline, Cosmed and Vantage all agreed to settle the claims against them, leaving Isomedix and its parent, Steris, as the sole remaining defendants.
Throughout the process, Isomedix has contested the claims brought by Knobbe and other plaintiffs. They have argued, similarly to Sterigenics, that the levels of EtO its plant may have emitted fell within ranges permitted by state and federal authorities.
Further, they argued plaintiffs cannot scientifically support their claims against the company, pointing to evidence indicating atmospheric EtO levels were too low to produce the catastrophic effects alleged by patients.
Isomedix has also sought to contest the settlements reached by the other defendants. They have filed counterclaims seeking to force the other corporate defendants to share a portion of any liability established by a jury at trial or otherwise by the court.
Cook County Judge Frank Andreou, however, put Isomedix's contribution claims against Medline and other others on hold, as Knobbe's November trial date loomed.
Andreou has left that stay in place, as well, as Knobbe's new trial date approaches in March.
That action, in turn, prompted Isomedix to appeal, asking the appellate justices to do what Andreou would not, and give the company the chance to tell jurors that emissions from other companies should be factored into the deliberations over how much Isomedix may be forced to pay.
In the ruling, the appellate justices said they did not believe Andreou had erred in putting Isomedix's counterclaim on hold while Knobbe's trial moves forward.
The decision was issued as an unpublished order under Supreme Court Rule 23, which may limit its use as precedent.
The order was authored by First District Appellate Justice Celia Gamrath. Justices Sanjay Tailor and Carl A. Walker concurred in the decision.
The justices said the efficiencies that could be gained from combining trials at a later date outweighed Knobbe's interest in having her claims heard in court as quickly as possible.
The justices also chided Isomedix for seeking to use its counterclaims to halt Knobbe's trial - and a potential harmful verdict against Isomedix - just five weeks before the trial's scheduled start.
"Although Isomedix has interest in putting all potential emitters before the jury, we cannot overlook its delay in filing its third-party complaint and seeking a continuance," the appeals court wrote. "... Isomedix asserts that because the subject of Knobbe's trial and the contribution claims are the same, they must be tied together.
"The subject matter of the claims alone is not dispositive. We must look at all relevant factors discussed herein, including, defendant's (Isomedix's) timing in bringing the contribution claim, judicial economy, the resulting prejudice to the parties, and the potential for the underlying action to be 'dispositive of the entire case.'
"Here, if Isomedix receives a judgment in its favor at trial with Knobbe, there will be no need to address the contribution claims, saving all parties considerable time and money."
The justices further noted Knobbe's "advanced age" should come into play, as well.
"Knobbe, who is 70 years old and has been diagnosed twice with cancer, has a significant interest in the prompt disposition of her case that has been set and was ready for trial when Isomedix sought to delay. If a party is elderly or seriously ill, delaying trial could result in lost testimony and an unjust result," the justices wrote.
"Given Knobbe’s age and cancer diagnoses, Knobbe has a right to see her claims to fruition now, without a six to twelve-month continuance advocated by Isomedix."
Isomedix is represented in the case by attorney Philip M. Oliss and others from the firm of Jones Day, of Cleveland and Chicago.
Knobbe is represented by attorney J. Eli Wade-Scott and others with the firm of Edelson P.C., of Chicago.