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Lawrenceville, GA— On Tuesday, a Georgia State Court judge rejected a jury's $50 million punitive award and declared a mistrial in that phase of proceedings against Becton Dickinson and Company, just days after a $20 million compensatory verdict hit the medical technology giant for the role jurors found that its use of a sterilization chemical played in causing a man’s cancer. Walker v. Becton Dickinson, et al., 21-C-08201-S1.
Gwinnett County State Court Judge Emily Brantley declared the mistrial after a juror dissented during polling to the punitive verdict, which included conclusions on "intent to cause harm." Those conclusions would have ultimately determined whether punitive liability was capped at $250,000 under Georgia law.
While the mistrial order scuttles the punitive proceeding, Judge Brantley indicated Friday’s verdict and its $20 million compensatory award in the trial’s first phase will stand, pending any post-trial decisions on the issue. That verdict found Becton Dickinson and its subsidiary, Bard, responsible for the non-Hodgkin lymphoma Gary Walker was diagnosed with in 2017.
Walker, 75, claims that years of exposure to ethylene oxide at and around a Covington, Georgia medical equipment complex run by Bard caused his cancer, which is now in remission.
Walker, who worked as a short-haul truck driver for years, was exposed to ethylene oxide during stops at the facility, where he picked up boxes of equipment sterilized with the chemical, and while living in the surrounding area, where it leaked into the air.
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The case is the first of its kind to go to trial in a Georgia state court and among hundreds of similar claims in the state against companies that use ethylene oxide, or EtO, to sterilize medical devices.
The 15-day trial turned largely on the circumstances surrounding the use of EtO at the complex, as well as whether the chemical caused Walker’s disease.
During Thursday’s closings, on liability and compensatory damages, Troutman Pepper Locke’s Eric Rumanek, representing the defense, told jurors Bard acted responsibly in its use of EtO at the facility. Rumanek reminded jurors of evidence that he said showed Bard complied with a range of regulations across the years and took appropriate action following EtO leaks.
Rumanek also detailed studies that he argued proved EtO caused cancer only at exposure levels far higher than Walker’s. And he reminded jurors of medical evidence he said showed Walker’s cancer bore all the hallmarks of a naturally occurring, unpreventable form of the disease.
"As you evaluate the [causation] evidence that has been presented before you,” Rumanek said, “it is our position that it’s overwhelmingly, no doubt about it, in favor of the defendants.”
But Walker’s attorney, Chance Forlines Carter & King’s Lindsay Forlines, criticized the reliability of defense expert testimony on causation. By contrast, she highlighted evidence she said linked EtO to cancers such as Walker’s. And she noted medical testimony that concluded EtO was a meaningful cause of Walker’s disease.
And Walker’s attorney, Stephen “Buck” Daniel, of Rueb Stoller Daniel, spotlighted evidence he said showed that Bard knew of the link between EtO and cancer, but worked for years to keep information on the chemical’s risks from the public.
“It’s something that every person has a right to know,” Daniel said. “We do have a right to know. But we shouldn’t have to go to a library or some Internet archive, or write our Congresspeople to ask about it.
“The people that are doing the polluting, they should tell us.”
Punitive proceedings are expected to be retried later in the year.
CVN has reached out to parties' representatives and will update this article with their comments.
Email Arlin Crisco at acrisco@cvn.com.
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