Georgia man’s $70M verdict may be slashed in landmark toxic gas case
In a landmark lawsuit finding the owners of a Georgia sterilization facility responsible for a resident’s cancer, state appellate judges have upheld the resident’s $70 million in damages, but also upheld the owners’ ability to slash the verdict by two thirds at a new trial.
Jurors in Gwinnett County decided in May last year that Becton, Dickinson and Company and its predecessor, C.R. Bard, were liable for negligence and creating a public nuisance in the case brought by longtime Covington resident Gary Walker.
The retired truck driver alleged he was diagnosed with non-Hodgkin lymphoma in 2017 because he was unwittingly exposed for decades to a toxic gas emitted from the Covington sterilization facility owned and operated by the companies since the 1960s.
Public concern about the use of that gas, ethylene oxide, erupted in Georgia in 2019 in response to reports about its link to cancer and other health problems. The chemical is used to sterilize medical equipment.
Walker’s case was the first of hundreds like it in Georgia to go to trial. He was awarded $20 million in compensatory damages and an additional $50 million in damages designed to punish Bard and Becton Dickinson, known as BD, which denied wrongdoing.
This week, the Georgia Court of Appeals rejected the companies’ request to erase the verdict and allow a complete retrial. The ruling keeps intact a decision by Gwinnett County State Court Judge Emily Brantley to hold a limited new trial to determine if the $50 million in punitive damages should be reduced under Georgia law to $250,000.
That was the only issue the jurors in last year’s trial couldn’t agree on. They were asked to unanimously decide if the companies knew the gas emitted from their facility was causing harm and allowed it anyway. Eleven jurors found there was intent to cause harm. One disagreed. A partial mistrial was declared.
Georgia law caps punitive damages in such cases at $250,000 unless there is a finding of intent to cause harm. If a jury decides that issue in the companies’ favor at a new trial, Walker’s $70 million in damages will be reduced to $20.25 million.
“The defendants have presented no convincing reason why the issue of specific intent to harm cannot be severed and decided separately from the unanimous portions of the verdict,” Judge Sara Doyle wrote in the appellate opinion Tuesday.
She said a new trial does not have to involve the same jurors from the initial trial, rejecting BD and Bard’s arguments on that point.
A representative for the companies said Thursday that they will “continue pursuing all available avenues of appeal.” That could include seeking review by the Georgia Supreme Court.
“We respectfully disagree with the Court of Appeals’ decision to have an entirely new jury decide an entangled issue that the original jury could not unanimously resolve after hearing all of the evidence,” the representative said in a statement to The Atlanta Journal-Constitution. “We also believe a new trial should have been granted based on the other errors raised in our briefing, which the Court of Appeals deferred until after the limited retrial.”
Michael Geoffroy, an attorney for Walker, said justice has prevailed because the $20 million in compensatory damages remains intact. It’s also possible for Walker to get all $70 million in damages if a new trial on the intent issue goes his way.
“BD has made Gary and his family wait years for this,” Geoffroy said in a news release, adding that the sterilization facility in Covington should be shut down.
BD and Bard are among several owners and operators of Georgia sterilization facilities sued hundreds of times in recent years because of their use and emissions of ethylene oxide. The same thing is happening in other states where such facilities are located.
The companies contend that they operate safely within state and federal laws and regulations, arguing that ethylene oxide is the only viable sterilization method for many medical devices.
Last year, the U.S. Environmental Protection Agency, which acknowledged the chemical can increase the risk for cancer, allowed certain sterilization facilities in Georgia and elsewhere to temporarily skirt stricter air pollution limits.
At Walker’s trial, BD and Bard representatives testified in defense of the operation of the Covington facility at 8195 Industrial Blvd, saying they never intended to harm anyone.
The jurors also heard from half a dozen residents with cancer whose own lawsuits are among more than 400 filed against the companies in relation to the plant, less than a mile from the city’s downtown area and close to schools, churches and houses.
Walker, 75 at trial, worked as a truck driver in the Covington area between 1970 and 1999, transporting sterilized medical products from the facility several times a week, case records show. He also lived within two miles of the plant between 1991 and 2017, the year BD acquired Bard and Walker was diagnosed with cancer.
Walker alleged that Bard, which opened the facility in 1967, didn’t start controlling emissions there until 1990, though it was warned in 1980 by its ethylene oxide supplier, Union Carbide, that exposure to the chemical was linked to cancer.
The companies argued that they never hid their Covington operations, complied with the relevant rules and routinely upgraded the facility’s emissions controls with the best available technology.
