Trial lawyers: EPA admission of fault in Sterigenics emissions measuring won’t matter to lawsuits vs company

As federal environmental regulators reassess their controversial measurements of emissions from the Sterigenics plant in Willowbrook, a group of lawyers representing Willowbrook residents are continuing unfazed in their lawsuits against the company, based largely on findings in a federal report that relied heavily on the allegedly faulty data from the U.S. Environmental Protection Agency.

Since September, lawsuits against Sterigenics have mounted in Cook and DuPage County courts. The lawsuits generally center on claims those living and working in and around Willowbrook have been placed at a heightened risk of developing cancer from emissions of ethylene oxide (EO) gas from Sterigenics’ sterilization plant in the west Chicago suburb.

“These are huge cases, that are so important for Chicago and the collar counties, and the people who live in these communities,” said Steven Hart, an attorney with the firm of Hart McLaughlin & Eldridge, of Chicago. “It’s a real public health concern.”

Hart’s firm has partnered with the firm of Romanucci & Blandin, based in Chicago, on three of the cases still pending against Sterigenics.

Others of the dozens of cases that have been filed in recent months have been filed by attorneys from the firms of Salvi Schostok and Pritchard; the Dolan Law Offices; and Power Rogers & Smith, all of Chicago.

The lawsuits, which are procedurally still in the beginning stages of litigation, have relied heavily in their initial stages on an August report issued by the federal Agency for Toxic Substances and Disease Registry. That report purported to show an elevated cancer risk for people living around the Sterigenics Willowbrook facility as a result of the company’s use of EO.

The company has said EO gas is a compound essential to its processes for sterilizing surgical instruments and other medical tools and devices, including cardiac devices, scalpels, joint implants, catheters and syringes. In court documents responding to the lawsuits, Sterigenics said alternative sterilization methods using heat and radiation can weaken the materials the tools and devices are made from, potentially compromising their effectiveness, and increasing infection risks.

Sterigenics says more than half of all medical devices and 90 percent of all surgical kits used in U.S. operating rooms are sterilized using EO.

The ATSDR report, however, cited EPA emissions testing and computer models, and particularly data measurements and modeling conducted by the EPA in May, which the ATSDR warned indicates EO emissions from Sterigenics elevates the risk of cancer for those living near the Willowbrook plant.

At the same time as the residents’ lawsuits landed in the courts, Illinois Attorney General Lisa Madigan and DuPage County State’s Attorney Robert Berlin also filed litigation on behalf of the state and county, asking the court to order Sterigenics closed.

Madigan’s office did not reply to questions submitted by the Cook County Record.

A spokesman for Berlin’s office said only that the county’s lawsuit remained unchanged since it was filed in October.

And the number of lawsuits against Sterigenics could yet grow further, as trial lawyers have also begun advertising to seek clients in billboards, online and in print, specifically to pursue lawsuits vs Sterigenics and perhaps others who use EO in their businesses.

However, just before Thanksgiving, the U.S. EPA announced the data it supplied the ATSDR was flawed, as it counted a different chemical, identified as trans-2-butene, as EO, elevating the EO count reported to ATSDR.

Sterigenics has also released the results of what it called a third-party air quality analysis in the Chicago area, which showed a significant background presence of EO in the atmosphere from a variety of sources, and all at levels above the exposure risk level identified by ATSDR.

As a result of the EPA’s “clarification” and its own testing, Sterigenics has cast aspersions on the ATSDR report, calling it “flawed.”

However, two lawyers representing clients in the lawsuits against Sterigenics said the EPA’s clarification would have any bearing on their legal actions.

Hart said his firm’s lawsuits and those of others bringing suits against Sterigenics are based on “exposure” to EO emissions and resulting “poisoning” of residents, dating back to the mid-1980s.

“We don’t think the EPA’s decision to walk back its findings are all that important,” Hart said.

Jeffrey Kroll, an attorney with the Salvi Schostok firm who is representing clients in three cases, said he also put little weight in the EPA’s clarification, even if it might serve to undercut the ATSDR report the lawsuits draw heavily from.

“Our position is Sterigenics knew for three decades about these emissions, and did nothing,” Kroll said.

“We feel like what just happened with the EPA actually made our cases stronger.”

The lawyers also indicated they believed the EPA’s clarification is the result of lobbying activity and pressure exerted by Sterigenics. They said they intended to push for disclosure of communications they believed may have passed between Sterigenics and EPA officials after the ATSDR report and resulting lawsuits were filed.

“We believe they are attempting to re-create history,” said Hart.

Sterigenics, however, has asserted in court filings they believe it is the plaintiffs who are attempting to persuade the courts to rewrite clean air regulations, by filing lawsuits using state public nuisance claims that would allow the plaintiffs to bring lawsuits against Sterigenics, even though Sterigenics asserts it never violated federal emissions regulations.

The lawsuits do not allege the company violated the federal Clean Air Act or any federal laws or regulations, instead centering on claims of negligence and nuisance, which are brought under Illinois state law.

Hart called those assertions “rubbish” and Kroll said: “Nothing could be further from the truth.”

“We’re not attempting to rewrite anything,” Hart said.

Currently, cases remain pending in Cook County Circuit Court, DuPage County Circuit Court and federal court in Chicago. There, federal judges are considering a motion from Sterigenics to ensure one federal judge handles all of the cases. Judges have, for now, put off ruling on those motions, as well as requests from the plaintiffs to send the cases in federal court back to the county courts for proceedings.

This article was first published by Cook County Record.

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