The judge overseeing a landmark trial in Gwinnett County refused to apply Gov. Brian Kemp’s new lawsuit-limiting legislation to the case Thursday as lawyers made their closing arguments to a jury.
Gwinnett County State Court Judge Emily Brantley is presiding over the first trial in hundreds of Georgia lawsuits alleging people were injured by exposure to ethylene oxide, a gas used to sterilize medical products at several facilities in the state.
Brantley was asked Thursday by defense lawyers in the case to limit what opposing counsel could tell the jury during closing arguments, saying it was mandated by Kemp’s new law. The bill was signed April 21, a week after the trial began.
One of the aspects of the law limits how plaintiffs’ attorneys can calculate the damages they recommend to the jury. In this case, the attorneys suggested their client is owed $27 million to $32 million.
That the law change took effect mid-trial appeared to be a factor in the judge’s decision.
“I have to think it doesn’t apply to this case,” Brantley said of the new law during a courtroom discussion with lawyers. “I don’t know enough about it at this time. Does it apply to a case that’s almost finished?”
Brantley said she wants to be fair to both sides but hasn’t had a chance to read the new law and consider how it applies. She also denied defense lawyers’ requests Thursday to scuttle the trial, citing the time and resources Gwinnett County and the jurors had put into it.
“Three weeks we’ve brought in our citizens,” the judge said. “I’ve had to have extra bailiffs, extra deputies. If my ruling is wrong, then okay. You’ve reserved your right to appeal it.”
Brantley explained in court Friday she would never intentionally choose not to follow a law or order of the governor, who she supports and respects. She said Walker’s case has been litigated for the past three years and the issue of the new law wasn’t raised by the parties until they’d presented their cases to the jury.
“It caught me by surprise and I’m not sure if the Senate Bill is clear about would it apply to a case like this that has been planned and argued without that provision,” the judge said Friday. “The court was put at a great disadvantage.”
The judge took a short break Friday morning to consider the bill before the jury began deliberations. She determined that if the bill does apply to the case, the suggested verdict by Walker’s lawyers did not violate it.
Kemp and supporters of his litigation overhaul say it will stabilize insurance premiums and curb multimillion-dollar verdicts. Critics say it merely panders to insurance companies at the cost of injured people’s rights to seek relief.
Defense counsel representing the owner and operator of a Covington sterilization facility at the center of the trial objected to the plaintiff’s lawyers suggesting to jurors a verdict the defense says was not based on relevant evidence in the case.
Plaintiff Gary Walker, a retired truck driver, alleges his exposure to ethylene oxide from the facility during the decades he worked and lived nearby caused his cancer diagnosis in 2017.
The 75-year-old’s cancer is now in remission. His lawyers said Thursday his medical bills exceeded $2.3 million, following 10 cycles of chemotherapy and a stem cell transplant. They said the facility owner, formerly C.R. Bard and now Becton, Dickinson and Company, released millions of pounds of ethylene oxide into the air outside the facility without warning the public.
“For 22 years (between 1968 and 1990), ethylene oxide was uncontained and uncontrolled from the facility,” Lindsay Forlines, an attorney for Walker, said during her closing arguments. “Bard left even their own employees in the dark.”
Lawyers for Bard and Becton Dickinson, known as BD, say the Covington facility has always been operated safely and responsibly in compliance with state and federal laws and regulation.
There are more than 400 lawsuits like Walker’s pending against Bard and BD in Georgia, in relation to the Covington plant at 8195 Industrial Blvd. Bard opened the facility in 1976. BD acquired Bard in 2017.
Hundreds of other ethylene oxide exposure lawsuits are pending in Georgia against other companies, including Sterigenics, that own and operate medical sterilization facilities in Smyrna and Augusta.
The jury in Walker’s trial heard testimony from six other people from Covington who developed cancer and are suing Bard and BD. Company leaders who worked at the facility for decades also testified in defense of its sterilization and safety protocols.
Forlines said Bard and BD had “a plan to deceive and conceal as long as possible.” She said they took advantage of the limited public knowledge of ethylene oxide, which is invisible, odorless and tasteless, until 2019 when widespread community concern about its use at Georgia sterilization facilities began.
“Bard was reckless with hiding information and reckless in their handling of ethylene oxide,” Forlines said. “Just because you’re permitted doesn’t mean you get to run roughshod over the neighborhood.”
Forlines said Bard was warned in the 1980s by its ethylene oxide supplier, Union Carbide, about the chemical’s link to cancer but chose to ignore that and similar warnings from other organizations. She said ethylene oxide’s status as a carcinogen is acknowledged by several regulators, including the U.S. Environmental Protection Agency.
Forlines said Bard ignored requests in the 1980s to measure its ethylene oxide emissions at the Covington facility, which at the time was one of the largest sterilization plants of its kind in the country. She said medical product sterilization is important but shouldn’t be prioritized over the safety of people.
Eric Rumanek, an attorney for Bard and BD, urged the jury to clear the companies of liability, saying they shouldn’t be punished for performing a public good. He said Walker’s “naturally occurring, fast growing, unpreventable” cancer was not caused by ethylene oxide.
“This case is not about a bad or a dangerous process,” Rumanek said. “It’s a lifesaving process. And it’s not about a bad or dangerous company.”
Rumanek said there is no alternative method of sterilizing the majority of medical products without damaging them. He said Bard voluntarily implemented the latest technology as it became available to monitor, control and reduce ethylene oxide emissions at the Covington plant.
The defendant companies said that Walker’s pickups at the facility added up to only about 72 hours a year while working as a truck driver between 1970 and 1999.
“This is the behavior that we want companies to take,” Rumanek said. “Bard’s number one priority was the safe use of ethylene oxide. Nobody from Bard intended to harm anyone in the community.”
The jury started deliberations Friday afternoon.
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