A Jefferson County District Court judge ordered cancer-stricken patients who unsuccessfully sued Lakewood medical manufacturer Terumo BCT for toxic pollution releases to pay just under $5.2 million in the multinational company’s legal fees.
Terumo uses ethylene oxide, or EtO, to sterilize its blood processing equipment before shipping, and neighbors of EtO-using industries around the nation have filed lawsuits claiming the companies are liable for cancer and other major health problems. A Jeffco jury in March found Terumo not negligent, after four women sued the company for damages in their cancer cases.
The company maintains it has always handled EtO and minimized releases according to EPA and Colorado law, and has gone above and beyond in adding filtration systems to prevent the toxic substance venting out of its sterilization areas.
Jeffco District Judge Andrew Poland on Sept. 22 issued an order accepting Terumo’s arguments that it deserved to be repaid $5,180,000 in legal costs by losing plaintiffs that included the named plaintiff Eve Isaacks.
“The plaintiffs, who allege between 15 and 53 years of exposure to ambient EtO from the facility, (were) altogether asking for more than $217 million in damages for their physical impairment, $7.5 million for past and future medical expenses, plus additional punitive damages for Terumo’s allegedly willful conduct,” according to Law360 at the time of the trial.
The judge’s award to reimburse Terumo included just under $4.2 million in expert witness fees in the complex case. Experts spent weeks of testimony debating whether the plaintiffs’ health problems had any relation to the amounts of EtO released over decades by Terumo.
Kurt Zaner, an attorney who has joined lawyers from other firms in bringing some of the EtO cases including the Jeffco suit, said Friday the plaintiffs will appeal the court costs ruling. Plaintiffs’ attorneys had argued during the costs dispute that Terumo’s reimbursement request “is merely an attempt to discourage other plaintiffs from pursuing their cases.”
The plaintiffs’ attorneys in May also filed a motion for a new trial on the original damages claims, saying Terumo “engaged in a systematic pattern of misconduct that prevented the jury from deciding this case on its merits,” according to the motion archived by Lexis-Nexis’ Mealey’s legal publication.
The plaintiffs’ motion seeking a new trial argued that Terumo attorneys throughout the March trial unfairly challenged plaintiff witnesses’ knowledge of the case and whether attorneys had pushed them into bringing suit through ads. Such attacks on plaintiff lawyers “inflamed the jury,” the motion said.
The attacks were “the culmination of Terumo’s strategy throughout the entire trial of attacking Plaintiffs for hiring lawyers rather than addressing whether their EtO emissions actually caused harm,” the motion says. The motion for a new trial was denied.
“We’ll be appealing the costs decision,” Zaner said. “We look forward to our next trial against Terumo in January,” a separate case previously profiled in The Colorado Sun.
Zaner and the team of lawyers on the civil cases have said merely meeting the minimum EtO regulations is not enough to escape liability in chemical contamination suits. The companies preceding Terumo at the Lakewood sterilization facility, and Terumo with additions in the 2000s, should not have placed a toxic chemical source in a fast-growing suburb full of houses, day care centers and schools, Zaner said.
It’s unclear who would pay the $5.2 million if the judge’s order prevails. Many plaintiffs are left destitute by their health problems, regardless of what caused them.
“In Colorado, it is standard that the prevailing party in any lawsuit is awarded their reasonable costs,” Terumo said in a statement through an outside public relations firm. “Terumo BCT cares deeply about the Lakewood community, where its many employees work every day, and live and raise their families. The court’s recent order is simply the routine result of the jury’s verdict in favor of Terumo BCT in this case. It will reimburse a small portion of the expenses incurred in defending these lawsuits. Because these plaintiffs were recruited by extensive attorney advertising, it is Terumo BCT’s expectation that these costs will be reimbursed by the law firms responsible for bringing these cases, and not by the individuals.”
Liability cases have been building for years aimed at companies that use EtO, in sterilization and other industrial processes. Some courts have consolidated individual civil complaints against companies like Terumo, which have facilities near residential neighborhoods, schools and other high-traffic areas.
The complaints against Terumo took on added momentum when the EPA put out plume maps and information stating that some neighborhoods within a certain distance of EtO emissions could see higher than the natural background level of cancer cases over long periods of time.
In 2018, the EPA released an update to its national database of toxic chemical releases, focusing on 26 manufacturers around the nation using EtO at levels the agency said could pose added cancer risks to neighbors. Terumo’s large Lakewood plant was one of those facilities.
The Colorado Department of Public Health and Environment set up temporary air monitoring outside the Terumo buildings after the EPA reports. The state’s measurements confirmed the EPA findings that there could be an elevated risk of developing cancer. But the state also conducted an epidemiological study of actual cancer cases in surrounding ZIP codes. They later announced there was no perceptible increase in cancer cases over the number expected in an average neighborhood.
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