Mistrial declared after jury awards $50M in landmark toxic gas case

“That’s the only part we had difficulty with,” juror Joy Buffington told The Atlanta Journal-Constitution after the trial, adding she was impressed at each juror’s integrity.

On Tuesday, the jurors unanimously awarded an additional $50 million to Walker in damages designed to punish the companies but couldn’t agree on the companies’ intent. Another female juror said in court she’d gone along with the decision of the other 11 jurors, finding intent to harm, despite believing otherwise.

“We were told we needed to be unanimous,” the juror, whose name is not in the public record, told Gwinnett County State Court Judge Emily Brantley in court. “Other jurors resolved their issues.”

The judge then declared a mistrial in the punitive damages phase of the trial, saying a new jury can be selected for that part of the case to be tried again. The jury’s verdict from Friday, finding the companies liable and awarding $20 million in compensatory damages, remains intact.

“I didn’t expect this,” Brantley said. “I’ve never been faced with this issue before.”

Under Georgia law, the $50 million punitive damages verdict would have been capped at $250,000 if the jurors unanimously found the companies did not intend to cause harm. Jurors were not told about the statutory cap during trial.

“It felt like we were trying to divine their intent,” Buffington said. “It’s hard to believe that even a corporation would have intent to harm. It’s disappointing to get hung up on that.”

Buffington said she and other jurors learned after trial that Walker’s case is one of more than 400 pending in Georgia, which “would have made a huge difference” in their deliberations.

Walker’s attorneys were not allowed to tell the jury about the volume of cases during trial, but the jury did hear testimony from a handful of plaintiffs in other cases over ethylene oxide exposure tied to the Covington facility.

Buffington said Walker’s lawyers did an excellent job of simplifying the complicated issues in the case so the jurors could understand them.

“I’ve learned a lot,” Buffington said. “I walk away with a new respect for the justice system. Seeing it in action has been incredible.”

Walker, 75, said Tuesday he’s thankful to the judge, jurors and everyone else involved.

Michael Geoffroy, an attorney for Walker, said the jurors’ unanimous decision to award $70 million “speaks volumes.” He said he remains confident, though the punitive damages part of the case is “still in question.”

“This is the start of getting justice for cancer victims in Covington who have been poisoned by Bard for decades,” Geoffroy told the AJC. “The dangerous use of ethylene oxide by sterilizing companies like Becton Dickinson and Bard will not be tolerated.”

Lawyers for Bard and Becton Dickinson, known as BD, declined to comment on the case Tuesday.

Travis Anderton, the vice president of sterilization at BD, testified Monday the company has invested more than $55 million in emissions controls in Covington since 2017, when it acquired Bard. He said no other sterilization facility has better technology and that BD’s comprehensive recent air testing shows the levels of ethylene oxide in Covington are safe.

Seth Soine, BD’s senior operations manager of sterilization, testified Monday the jury’s $20 million verdict on Friday was “disserving.”

“We’re trying to lead the way,” he said.

The trial began April 14. Walker’s case is the first of hundreds like it in Georgia to reach trial.

Walker alleged his non-Hodgkin lymphoma was caused by the ethylene oxide he was exposed to between 1970 and 2017 when he lived and worked near the Covington facility. Bard and BD argued the cancer occurred naturally and not because of ethylene oxide.

As a truck driver between 1970 and 1999, Walker picked up sterilized medical products from the facility several times a week, case records show. He contends ethylene oxide -- an invisible, odorless and tasteless gas -- soaked the materials he touched and poisoned the air he and other people living and working in the community breathed.

Millions of pounds of ethylene oxide, acknowledged as a carcinogen by the U.S. Environmental Protection Agency, has been used at the facility, Walker’s lawyers said.

The facility was opened by Bard in 1967. It was one of the largest sterilization plants in the country in the 1980s, when there were no measures to contain or control ethylene oxide emissions on site, case records show.

Bard started controlling emissions in 1990, years after being warned about the link between ethylene oxide and cancer, Walker alleged. His cancer is in remission, following $2.3 million worth of medical treatment, including 10 cycles of chemotherapy and a stem cell transplant.

Bard and BD contend the facility has always been operated safely and reasonably in compliance with state and federal laws and regulations. The companies said they installed the best emissions control technology at the facility as it became available.

Ethylene oxide is the only suitable sterilizer for most medical equipment, the defendants argued.

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. The facility is less than a mile from the city’s downtown area and close to schools, churches, houses and a football field, case records show.

Hundreds of other ethylene oxide exposure lawsuits are pending in Georgia against other companies, including Sterigenics, that own and operate similar facilities in Smyrna and Augusta. Plaintiffs allege the companies are liable for a range of injuries caused by their prolonged use of ethylene oxide.

Sterigenics was about to face its first Georgia trial in ethylene oxide exposure cases — tied to its Cobb County sterilization facility — when it settled that case and more than 70 others for $35 million in October 2023.