By Jonathan Bilyk | Legal Newsline
The Center Square

A group of big medical device and chemical manufacturing companies are pushing back against attempts by trial lawyers to rope them into another big potential payout in the continuing legal actions over claims ethylene oxide emissions from factories and medical device sterilization plants in Lake County caused cancer.

In motions and briefs filed in November and early December, the companies – including AbbVie, Abbott Laboratories, PPG Industries and BASF Corporation – are accusing plaintiffs’ lawyers of waiting too long or engaging in unfair procedural tactics to tee up hundreds of lawsuits against them.

Earlier this year, many of those same plaintiffs and their lawyers reached settlements to resolve hundreds of legal claims against the current owners and operators of such facilities in Lake County.

Vantage Specialty Chemicals Inc. agreed to settle 440 lawsuits against them, all of which sought to make the company pay for its alleged release of harmful ethylene oxide (EtO) gas into the air over decades of operations at its plant in suburban Gurnee.

According to court orders, the settlement terms are confidential.

That deal, in turn, came about two months after another company, medical device distributor Steris agreed to pay $48 million to end about 275 lawsuits against Steris subsidiary, Isomedix. That company had operated a sterilization plant in Waukegan, which used EtO gas to sterilize a host of essential medical devices and surgical tools.

And medical device manufacturer and distributor Medline also has reached a settlement to resolve hundreds of cases it faces. According to court documents, that settlement, however, remains the subject of litigation between Medline and its insurers over how much of the cost of the settlement will be paid by the insurers.

Those companies were among the first targeted by EtO emissions-related lawsuits. Even though the alleged harm was committed in Lake County, the lawsuits were brought in Cook County Circuit Court.

Plaintiffs’ lawyers behind the lawsuits are led by those from the firm of Edelson P.C., of Chicago and San Francisco.

EtO has also been widely used by companies like Steris, Sterigenics and medical device manufacturer and distributor Medline to sterilize a wide variety of medical devices and tools, including surgical implants like pacemakers and catheters, as well as surgical instruments.

Medical device makers have said EtO is all but essential to ensuring patient safety and preventing deadly infections in patients undergoing surgeries in operating rooms.

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, have been targeted in recent years by 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.

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.

As they neared settlements with the initial group of Lake County defendants, plaintiffs moved to expand their lawsuits further, targeting the additional companies under claims they should also play for their previous roles in owning and operating the same Lake County facilities.

That maneuver followed the playbook set in the litigation against Sterigenics, where plaintiffs’ lawyers also extracted an additional $48 million settlement from Griffith Foods, an Alsip-based company that had previously owned and operated the Willowbrook sterilization plant ultimately acquired by Sterigenics.

However, in Lake County, the additional defendants say the plaintiffs and their lawyers shouldn’t be allowed to pursue them.

In motions to dismiss and other filings, the companies largely assert the plaintiffs’ lawyers had known for years of their involvement in the various Lake County facilities, yet chose to wait until the closing days of 2024 to target them with lawsuits.

AbbVie and Abbott Labs, for instance, noted in their filings that they believe 167 of 210 lawsuits in which they were named as defendants should be tossed because the plaintiffs waited more than two years, at least, to sue the companies, exceeding the statute of limitations. Under that provision, such plaintiffs are generally required to bring their lawsuit within two years of learning that their harm – in this case, cancer or other illnesses – could be traced back to EtO emissions from facilities owned or operated by the companies.

The lawsuits have specifically taken aim at AbbVie and Abbott Labs for emissions from their North Chicago facility, which ceased EtO emissions in the late 1990s.

“When they filed their complaints, Plaintiffs alleged they had been harmed by purported EtO releases from two facilities — Gurnee and Waukegan,” the companies wrote. “AbbVie and Abbott are associated with a different facility (North Chicago) in a different area (approximately 4.8 miles from the Gurnee facility and 2.6 miles from the Waukegan facility) with vastly different alleged emission levels…

“Plaintiffs’ initial complaints gave no indication they planned to target the North Chicago Facility, or that it emitted EtO and caused their alleged ailments. AbbVie and Abbott, therefore, had no reason to believe that Plaintiffs mistakenly omitted them from their original complaint, and there was no basis for AbbVie and Abbott to assume they would have been named absent a mistake by Plaintiffs,” the two companies wrote in their motion to dismiss, filed Nov. 20.

Likewise, PPG Industries asserts plaintiffs knew or should have known years ago of that company’s prior involvement in the Gurnee facility. PPG noted it last owned the plant 25 years ago.

Yet, PPG said the plaintiffs waited until 2024 to attempt to bring them into the litigation.

PPG and BASF Corporation further assert the plaintiffs shouldn’t be allowed to target them with strict liability claims under a legal exception for “ultrahazardous activity.”

The companies noted that other Cook County judges explicitly rejected such claims against Sterigenics in the EtO emissions litigation against that company. The companies noted the judges specifically ruled that EtO use is widespread and common and is useful for a range of legitimate societal and economic purposes. As such, the judges ruled that the use of EtO in industrial and sterilization facilities cannot be considered “ultrahazardous.”

“Although Plaintiffs have been litigating these claims against the Other Defendants for nearly five years, their allegations against BASF are no more than a conclusory afterthought, tacked onto their existing claims with no facts specific to BASF,” BASF wrote in a brief filed Dec. 3 in support of its motion to dismiss. “The Illinois fact-pleading standard requires more from Plaintiffs than simply replacing Vantage with BASF.”

Plaintiffs have said the companies’ arguments should be rejected, in part because they should have known of the risk of litigation, based on the well-publicized lawsuits against the initial Lake County defendants.

And plaintiffs said they did not obtain certain key state regulatory filings and reports needed to substantiate their claims against the companies until 2023, which would place their claims within the two-year limit.

In a separate filing, AbbVie and Abbott Labs have also asked the Cook County court to transfer the action to Lake County court.

Cook County Circuit Judge Kathy Flanagan has not yet ruled on the various motions.

AbbVie and Abbott Labs are represented by attorneys from the firms of Latham & Watkins and Winston & Strawn, both of Chicago.

PPG is represented by attorneys from the firm of K&L Gates, of Chicago and Pittsburgh.

BASF is represented by attorneys from the firm of DLA Piper LLP (US), of Chicago and San Francisco.