Ethylene Oxide (EtO) is an industrial solvent widely used as a sterilizing agent for medical and other equipment that cannot otherwise be sterilized by heat/steam. EtO may also be used as a component for producing other chemicals, including glycol and polyglycol ethers, emulsifiers, detergents, and solvents. Allegations that exposure to EtO increases the risk of certain cancers has led to governmental regulation as well as private tort actions against companies that operate sterilization facilities that utilize EtO.

History of EtO Verdicts

There have now been a handful of verdicts in EtO trials and the results have been a mixed bag. We have seen some defense verdicts, but also some multimillion-dollar plaintiff verdicts. As we discussed in a posting last week, the most recent example of the latter was a plaintiff verdict for $20 million handed down last earlier this month in Georgia (punitive damages are still being determined).

The first ethylene oxide case to go to trial was the Kamuda matter, in which an Illinois jury awarded $263 million in September of 2022 against Sterigenics for ethylene oxide exposure from that company’s Willowbrook facility. A subsequent trial in the same jurisdiction against the same defendant resulted in a defense verdict. Ultimately, Sterigenics resolved its pending claims involving the Willowbrook plant in the amount of $408 million. In December of 2024, a Philadelphia Court of Common Pleas jury found the defendant B. Braun Manufacturing Inc. not liable on all counts. The plaintiff had alleged that her husband developed leukemia as a result of working at the defendant’s sterilization plant in Allentown, Pennsylvania for seven years. Notably, unlike the Illinois trials, the Philadelphia trial involved an employee at the sterilization facility as opposed to the Illinois plaintiffs who did not work at the Willowbrook plant but resided nearby.

In March of this year, a Colorado jury rendered a verdict in favor of defendant Terumo BCT Inc. (Isaacks et al. v. Terumo BCT Sterilization Services Inc. et al. in the First Judicial District of Colorado (docket number 2022CV031124). The plaintiffs are appealing. This was a bellwether trial lasting six weeks, and involved four female plaintiffs. The jury determined that the defendant was not negligent in its handling of emissions from its Lakewood plant. The plaintiffs had sought $217 million in damages for their alleged physical impairment and also $7.5 million for past and future medical expenses as well as punitive damages. In light of the fact that the six person jury found the defendant Terumo not negligent, it did not need to consider damages or causation. All of the plaintiffs alleged that they had developed cancer as a result of ethylene oxide emissions from the Terumo facility. One plaintiff alleged breast cancer as a result of 23 years of exposure from the plant, while another alleged breast cancer after almost 35 years of exposure (these two plaintiffs were neighbors). Another plaintiff alleged multiple myeloma while the fourth plaintiff alleged Hodgkin’s lymphoma. Notably, there remain hundreds more pending claims against Terumo in Colorado. In fact, plaintiffs’ counsel filed almost 25 more cases while the trial was in progress

Does Your Insurance Cover EtO Claims?

In light of multi million dollar verdicts in Illinois and Georgia, companies with potential EtO liability should determine if they have adequate coverage for defense and indemnity should they be sued. KCIC recently issued a report on insurance coverage for EtO claims: (kcic.com/trending/feed/eto-an-emerging-and-evolving-risk/#msdynttrid=wne5D5mhUe8x_gvUuI0Hn9FqKuJPpR3wOfwvnUj8MyE). As the article points out, companies facing EtO claims may be able to tap their pollution liability policies or pollution coverage as part of their commercial general liability (CGL) policies. As KCIC notes, one option for companies is to cite to their “permitted emissions” exception which stems from the 1997 Illinois Supreme Court decision in American States Insurance Co. v. Koloms in which the court noted that if the pollution exclusion was too literally interpreted, it could have such limitless applications that it could essentially negate all coverage.

Therefore, Koloms concluded that pollution exclusions be limited to traditional environmental contamination — which includes industrial emissions of pollutants into the environment. In 2011, in Erie Ins. Exch. v. Imperial Marble Corp, the Illinois appellate court cited the Koloms case and found that when the industrial emissions were at levels that were within regulatory permissions, the pollution exclusions are arguably ambiguous and should not negate the duty to defend. The theory was that emissions authorized by law may not constitute traditional environmental pollution, and therefore the court found that the insurer had a duty to defend against claims that arose from permitted emissions. In contrast, though, a recent decision in the federal district in Pennsylvania determined that a pollution exclusion in a CGL policy barred coverage for EtO liabilities under Pennsylvania law (for more detail refer to the KCIC report).

So, Will Your Insurer Cover Your EtO Claims?

Well, maybe. This depends on what state’s law controls as well as the language of your policy. If you have existing policies, it is advisable to have them reviewed to determine if there is coverage for EtO claims. Consultation with your broker is advisable. To the extent you will be in the market for new coverage in the near future and you think it possible your company might face EtO claims, discuss this with your broker to make sure that you will be covered. In light of the recent Georgia verdict, coupled with the Illinois verdict from a few years ago, the EtO litigation seems poised to expand to other states. Be prepared.