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Litigation Daily published an expert opinion article written by Hollingsworth LLP partners Robert E. Johnston and Aleksandra Rybicki, in which they discuss the expanding frontiers in ethylene oxide (EtO) litigation, including claims related to medical monitoring, property damage, and civil conspiracy. EtO litigation presents a dynamic landscape, with a growing body of literature about EtO’s purported toxicity and an increasing number of cases filed.

Plaintiffs allege that EtO exposure necessitates ongoing medical monitoring, even in the absence of a present diagnosis with a disease allegedly capable of being caused by EtO. No-injury medical monitoring claims in this context should be difficult to prove and implement, even where recognized. Where claims are based on injuries that have not yet occurred, it becomes difficult to prove causation. In practice, however, results of medical monitoring claims in the EtO context have been mixed. Plaintiffs likely will continue to include medical monitoring claims in their complaints — especially in state courts where there are no federal standing requirements — with the intent to play up damages.

Plaintiffs have expanded the scope of their legal claims to property damage and devaluation. Plaintiff landowners pursue compensation for property devaluation, seeking financial recovery for the loss of home value due to perceptions of elevated cancer risks near EtO-emitting facilities. Despite the questionable merit of these claims, plaintiffs tack them on to complaints to boost settlement values. Legal precedent is still developing on these kinds of claims, and the outcome of ongoing litigation will continue to shape how courts address EtO-related property damage claims and whether plaintiffs will continue to bring them.

Storage facilities and warehouses where sterilized equipment is kept are a potential target for EtO claims due to alleged emissions from EtO off-gassing following the sterilization process. While EPA has set strict emissions limits for sterilization facilities, it has not proposed standards for off-site warehouses yet. Plaintiffs have already started pursuing cases that transcend residential exposure from EtO sterilization facilities. It would be surprising if the plaintiffs’ bar did not seize the opportunity to pursue warehouses as another litigation target.

Plaintiffs tie their civil conspiracy claims to other legal claims, like negligence or fraudulent concealment, and allege, among other things, that defendants conspired to conceal from plaintiffs and the public the health risks of EtO, as well as the amounts of EtO emitted from the sterilization facility. While civil conspiracy claims are more difficult to prove, they serve as a legal tool for plaintiffs to keep multiple actors, and therefore multiple pockets, involved in the litigation. These claims are also often asserted against in-state defendants to defeat diversity jurisdiction and avoid federal court; in many instances, the defendants are fraudulently joined.

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