'We have no control over' Sterigenics' emissions, landlord says

·4 min read

Dec. 17—MARIETTA — Attorneys representing Prologis, the multinational firm that is the landlord of Sterigenics' Smyrna plant, argued in court Friday Prologis is not liable for damages stemming from emissions of ethylene oxide, a known cancer-causing gas.

Their argument in effect rests on the claim that once Sterigenics signed the lease and took the keys to the building, whatever happens as a result of its medical sterilization operation there — including alleged cancer cases in nearby residents — is out of Prologis' hands.

"When we hand it over, we don't have anything to do with Sterigenics' business. We have no control over it. We have no real knowledge of it," said Prologis attorney Michael DiOrio.

Friday's hearing was the latest installment in a more than two-year battle between Sterigenics and residents living near the plant. A Georgia Health News and WebMD investigation in 2019 revealed the Environmental Protection Agency had linked ethylene oxide emissions — which the company uses to sterilize medical equipment — to an elevated risk of cancer in the surrounding area.

In the ensuing uproar, hundreds of residents and dozens of workers filed lawsuits against the company. Sterigenics has since been the subject of state hearings, legal battles with Cobb County, and intense public scrutiny. The plant was shuttered for a time, but reopened in 2020 due to the nationwide shortage of medical supplies in the early months of the pandemic.

Judge Jane Manning presided over the hearing in Cobb State Court Friday morning, and didn't come back with an immediate decision. Attorneys representing the plaintiffs in the case, the hundreds of residents who say they were affected by the plant, said they expected to hear from Manning in January.

One of those attorneys, Cale Conley, singled out two of Prologis' claims for rebuttal: first, that Prologis was in effect an "absentee landlord" with no control over the property, and second, that leaks in the roof which may have allowed the toxic gas to escape weren't Prologis' prerogative.

Conley pointed to a passage in the lease specifying that Prologis was responsible for structural upkeep of the building, including its roof, saying he didn't blame DiOrio for "burying" that point.

"If I were defending Prologis, I'd bury this paragraph under the ocean," Conley said.

He went on to display emails and testimony from Prologis employees demonstrating the roof had been reported to be leaking water on several occasions.

"If water can flow in during rain, gas can flow out when it's not raining," Conley added. "I mean, that's third-grade science right there. Their negligent repair of the roof ... is directly contributory to the claims that we're making."

And at any rate, these were questions to be settled at trial, not in a hearing.

"Those arguments (DiOrio) made so well, he can make to a jury," Conley said.

DiOrio countered by way of example. Had Prologis failed to make structural repairs to the roof, and had the roof collapsed, that would be their responsibility. But DiOrio found no precedent for the landlord's liability in the case of damages sustained off the property.

"Nowhere in the lease does it say that we have an obligation to make the facility airtight," DiOrio said, later adding, "The only question we're talking about is the maintenance issue. The maintenance issue that they allege is the roof. What we're talking about is the mishandling of ethylene oxide. The two are not the same."

Manning chimed in, "That, I think, is your best argument."

"Glad I had one," joked DiOrio.

'Ultra-hazardous'

Also at issue Friday were the plaintiffs' attempts to hold Sterigenics to account on the grounds that its operations are "ultra-hazardous" — so inherently dangerous that the company was liable regardless of its intentions or practices.

The "ultra-hazardous" claim is a critical one for the defense because it requires a far lower standard of proof than claims of negligence or nuisance. In other words, Sterigenics could be found liable for damages, even if it wasn't negligent. Judge Manning previously granted a motion from Sterigenics to dismiss the claim, but the plaintiffs asked her Friday to reconsider.

Max Thelen, an attorney for the plaintiffs, presented case law he believed refuted Sterigenics' claim that the "ultra-hazardous" standard had no place being applied to its circumstances. He laid out six factors that courts can consider in "ultra-hazardous" claims, including an inappropriate location, a high risk of harm, and a risk despite reasonable care taken by the operator, arguing all those applied to the matter at hand.

Clay Massey, an attorney for Sterigenics, waved Thelen's argument away, saying the plaintiffs were trying to "bootstrap" their way into the realm of an "ultra-hazardous" claim.

"Nothing they have presented is a legal basis for reconsidering Your Honor's right, correct decision to dismiss that claim," as Massey put it.

And as with the matter of Prologis' liability, Judge Manning's decision will have to wait for another day.

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