Personal injury lawyers behind a series of ethylene oxide (EtO) lawsuits are anchoring their cases on a gross distortion of law, and the selective targeting of EtO emissions over the similarly legal emissions of scores of other compounds by thousands of other companies, legal and air quality experts say.
Lawsuits recently filed against Lake County businesses Medline and Vantage – with the promise of many more from personal injury lawyer Dan Kotin – follow actions against Sterigenics in Willowbrook, the subject of multiple news reports about its EtO emissions and angry town hall meetings over the past year.
The suits claim in part not that the companies violated federal and state law covering emissions (they didn’t) but that their allowable emissions of EtO under the law constitute a public nuisance. The legal approach is a perversion of public nuisance theory trial lawyers have been trying to wedge into the mainstream of legal practice for years, wrote Victor Schwartz and Phil Goldberg of Shook, Hardy & Bacon in a 2006 paper highlighting the dangers of corrupting the law.
“The traditional public nuisance involves blocking a public roadway, or in more recent times, dumping sewage into a public river, or blasting a stereo when people are picnicking in a public park,” they wrote.
But the recent attempts “have involved redefining public nuisance injury beyond an interference with a ‘public right.’ Individuals advocating this path would extend the tort to include any potential harm, inconvenience or annoying activity that could qualify under the dictionary definition of ‘nuisance.’”
Lawyers recently won a public nuisance suit against Johnson & Johnson; the first time a drug company has been held liable for the opioid crisis.
But Jacob Sullum of the Reason Foundation writes that the case may not stand up on appeal. He notes that the ruling “contrasts sharply with a decision last May by a North Dakota judge who dismissed a similar lawsuit against Purdue Pharma that was partly based on a nearly identical statute.”
“The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that ‘North Dakota cases applying the state's nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.’ The 8th Circuit worried about the consequences of venturing beyond that classic context."
The arguments of the personal injury lawyers also crumble against the fact that thousands of companies emit what the Environmental Protection Agency (EPA) considers hazardous air pollutants (HAPs). EtO is just one of nearly 200 HAPs listed by the EPA. Most are released in much higher quantities than EtO, says air quality expert and author Rich Trzupek, yet the EPA considers their emissions, if they are within regulatory guidelines, safe.
“As a technical guy I know everyone is exposed to hundreds of airborne toxic compounds and carcinogens every day,” Trzupek told Prairie State Wire. “The concentrations are tiny so I don’t lose any sleep over it, but that’s the simple truth. The air is full of miniscule amounts of chemicals that can be bad for you, many of which are emitted by dear old mother nature herself.”
Sterigenics has argued that other sources, car and truck exhaust, and even decaying plants are at least partially responsible for the readings that led to the news reports, the public scare, and eventually the lawsuits.