Preview
Hearing Date: No hearing scheduled
Location: <>
Judge: Calendar, 30
FILED
10/3/2022 6:32 PM
IRIS Y. MARTINEZ
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CIRCUIT CLERK
COOK COUNTY, IL
COUNTY DEPARTMENT, LAW DIVISION
2018L010744
2018L010744
Calendar, 30
IN RE: WILLOWBROOK ETHYLENE 19743292
OXIDE LITIGATION
Consolidated for Pretrial and
FILED DATE: 10/3/2022 6:32 PM
Discovery Purposes Under:
No. 2018-L-010475
This Filing Applies to:
The Honorable Lorna E. Propes
Teresa Fornek & Douglas Fornek v. No. 2018-L-010744
Sterigenics U.S., LLC, et al.
DEFENDANT GTCR LLC’S MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION TO SEVER
Introduction 1
GTCR, LLC (“GTCR”) does not belong in this case. Plaintiff Teresa Fornek (“Plaintiff”
or “Ms. Fornek”) asserts two sets of claims: one based on her 2005 cancer diagnosis and treatment,
and another based on her 2017 eight-week miscarriage. Although Ms. Fornek alleges that the other
defendants, Griffith, Sterigenics, and Sotera, contributed both to her cancer diagnosis and to her
miscarriage, her claims against GTCR are limited: Ms. Fornek does not accuse GTCR of causing
her cancer. See Ex. 1 at 3 (GTCR’s MSJ, Aug. 29, 2022). But it is the cancer claims, which are
entirely unconnected to GTCR, that are indisputably at the heart of her case. In fact, evidence
related to the cancer claims will dominate the trial: to make her case against Griffith, Sterigenics,
and Sotera, Plaintiff relies on evidence going as far back as 1981, decades before a GTCR-advised
fund invested in 2011 in the parent company of Sterigenics, which operates the Willowbrook
1
Following extensive briefing on motions in limine and for summary judgment, the Court is
familiar with the core allegations and facts of this case. To the extent additional context is needed,
this Motion incorporates by reference GTCR’s briefing in support of its Case-Specific Motion for
Summary Judgment. See Ex. 1 (GTCR’s MSJ, Aug. 29, 2022); Ex. 2 (GTCR’s MSJ Reply, Sept.
30, 2022).
1
facility. And the overwhelming majority of Ms. Fornek’s expert testimony will relate to cancer
and to the day-to-day operations of the Willowbrook facility, not to her miscarriage or to the
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conduct of a reasonable private equity advisor far-removed from the Willowbrook facility’s daily
operations. Thus, almost the entirety of Plaintiff’s case will focus on evidence totally irrelevant to
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GTCR and on events spanning almost thirty years before GTCR’s involvement. Yet it is in the
context of that drumbeat of irrelevant evidence that a jury will decide not only whether GTCR is
liable for Ms. Fornek’s 2017 miscarriage, but also whether to award punitive damages against
GTCR.
That risk of a fundamentally unfair and prejudicial trial for GTCR has only sharpened over
the past two weeks. As the motion in limine arguments have made clear, Ms. Fornek intends
largely to repeat the evidence and arguments that Ms. Kamuda presented to her jury. And the jury
in Kamuda found the defendants liable in the amount of $38 million in compensatory damages and
$325 million in punitive damages. Ex. 3 at 3:21-4:23 (Sept. 19, 2022 Kamuda Trial Tr.).
Critically, GTCR was not a defendant in that case. But it now faces the possibility that its rights
will be adjudicated based on nearly identical and wholly irrelevant evidence that caused another
jury to award enormous amounts of both compensatory and punitive damages. If the jury in this
case interprets the cancer-related evidence in the same way, there is a distinct possibility that it
will enter a significant verdict against GTCR—regardless of what evidence Ms. Fornek introduces
about the conduct of a reasonably careful private equity advisor under the circumstances or the
scientific relationship between ethylene oxide and miscarriage.
Given the absence of sufficient evidence and legal grounds to prove her miscarriage claims
against GTCR, GTCR filed a motion for summary judgment, which is currently still pending. If
GTCR is not dismissed at summary judgment, it respectfully requests that the Court sever it from
2
this trial. The miscarriage and cancer claims rely on largely distinct evidence—different injuries,
different time periods, different treatments, different theories of causation, and different exhibits.
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The overwhelming majority of witness testimony, trial days, and exhibits will relate to cancer, not
miscarriage, and events that long preceded any involvement by GTCR. Accordingly, it would be
FILED DATE: 10/3/2022 6:32 PM
unfair to expect jurors to ignore voluminous cancer evidence in assessing GTCR’s liability,
accurately sort through complicated scientific evidence on causation related to two entirely
different injuries, and to assess the strength of the miscarriage evidence in a vacuum without
allowing the voluminous purported cancer evidence to falsely inflate the strength of the
miscarriage evidence. GTCR would face egregious and unfair prejudice in a joint trial that will
overwhelmingly be about Plaintiff’s cancer claims. As a result, Ms. Fornek’s claims against
GTCR should be severed from this trial.
Argument
I. GTCR Would Be Severely and Unfairly Prejudiced if Plaintiff’s Claims Against It
Are Resolved in the Same Trial As the Cancer Claims Against the Other Defendants
Under Illinois law, where the “substantial rights of the litigants” may be prejudiced by a
joint trial, a trial court should sever the claims. See Mount v. Dusing, 414 Ill. 361, 367 (1953)
(Illinois law includes “provisions authorizing severance or consolidation whenever necessary to
enhance the convenient disposition of the business of the court, or to avoid prejudice to the
substantial rights of litigants.”); see also 735 ILCS 5/2-1006. “A motion to sever issues for trial
is thus addressed to the sound discretion of the trial judge, to be exercised in each case by an
appraisal of administrative convenience and the possibility of prejudice to substantial rights of the
litigants in the light of the particular problems which will arise in the course of the trial.” Mount,
414 Ill. at 367. In determining whether severance or consolidation is appropriate, Illinois courts
consider whether a joint trial would deprive a defendant of a “fair and impartial” trial. See Lowe
3
v. Norfolk & W. Ry. Co., 124 Ill. App. 3d 80, 105 (5th Dist. 1984) (“The consolidation deprived
[defendant] of a fair and impartial trial and itconstituted an abuse of discretion and reversible
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error.”).
Here, severance is appropriate and necessary to avoid egregious and unfair prejudice to
FILED DATE: 10/3/2022 6:32 PM
GTCR. First, arguments from the last two weeks have confirmed that Plaintiff’s case will focus
almost entirely on her cancer claims, which not only rely on different evidence from her
miscarriage claims, but also involve evidence that will vastly outweigh and inevitably color any
miscarriage evidence. After listening to weeks of evidence regarding cancer and events pre-dating
GTCR’s involvement in the case, it is unreasonable to expect jurors to ignore that evidence or
distinguish it from the miscarriage evidence in order to independently assess GTCR’s liability and
whether punitive damages are warranted. Inevitably, GTCR will be lumped together with the other
Defendants when jurors try to determine what GTCR knew and when, and whether GTCR’s
conduct was reasonable for a private equity advisor under the circumstances. Similarly, jurors are
likely to conflate the evidence related to the cancer and miscarriage claims, creating an
unreasonable risk of prejudice to GTCR that, for example, jurors will view the miscarriage
evidence as stronger than it would be isolated from the cancer evidence. Nor can jurors be
expected to distinguish between the nuances of causation when faced with complicated scientific
evidence about two medical conditions. Second, there is no prejudice to Plaintiff in severing
GTCR from the case because her ability to put on evidence is entirely unaffected. Third, the
motion is timely because the fact that the trial will overwhelmingly be about evidence irrelevant
to GTCR did not become clear until parties argued their pre-trial motions last week.
4
A. GTCR Will Suffer Egregious and Unfair Prejudice From Being Associated
With Plaintiff’s Cancer-Related and Pre-2011 Evidence, Which Will
Comprise the Vast Majority of the Five-Week Trial
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Plaintiff asserts two different theories of harm: that she was diagnosed with cancer in 2005
and that she suffered a miscarriage over ten years later, in 2017. See Ex. 4 at 46:3-8 (Dep. of
FILED DATE: 10/3/2022 6:32 PM
Teresa Fornek, May 11, 2021). Plaintiff’s miscarriage-related claims against GTCR require
evidence distinct from Plaintiff’s cancer claims against the other Defendants. There is no dispute
that GTCR has no connection to Plaintiff’s cancer-related claims or any events before 2011. But
Plaintiff will seek to introduce weeks of testimony and thousands of pages of exhibits related only
to events from 1984 to 2011—decades before GTCR was involved—and related only to her cancer
diagnosis and treatment. Thus, the five-week trial will overwhelmingly focus on Plaintiff’s cancer-
related claims, not her miscarriage-related claim against GTCR, and on events at the Willowbrook
facility before GTCR had any remote involvement. Plaintiff has made this clear by indicating last
week—by repeated references to Kamuda and by relying on the same expert witnesses as in the
Kamuda trial—that her evidence will largely be the evidence introduced at the Kamuda trial, which
focused exclusively on cancer. See, e.g., Ex. 5 at 129:6-137:1 (Sept. 28, 2022 Hr’g Tr.) (Plaintiff
intends to call same causation expert introduced at Kamuda trial); id. at 168:20-169:20 (Plaintiff
intends to call same expert on duty introduced at Kamuda trial); id.at 189:9-190:15 (argument
concerning vent control made in Kamuda trial will be made again in Ms. Fornek’s trial).
For example, in arguing pre-trial motions, Plaintiff confirmed that her trial presentation
will heavily emphasize events pre-dating 2011, which will undoubtedly prejudice GTCR’s
defense. See, e.g., Ex. 6 at 56:11-80:19 (Sept. 29, 2022, Hr’g Tr.) (Plaintiff arguing importance
of introducing 1980s cancer-related company documents with no connection whatsoever to, and
no mention by Plaintiffs’ counsel of, GTCR). Specifically, in arguing for the admissibility of a
1980s memorandum, which featured prominently in the Kamuda trial, Plaintiff’s counsel
5
emphasized the importance of Defendants being on notice of ethylene oxide’s carcinogenicity in
the 1980s: “early notice and knowledge, particularly in the 1980s and before are really, really
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important because decisions were made, in our view, with full notice and knowledge that there
was evidence of carcinogenicity in – as early as the ‘60s, ‘70s, and certainly the ‘80s.” Id. at 60:9-
FILED DATE: 10/3/2022 6:32 PM
14. It is undisputed that such evidence is wholly irrelevant to GTCR: these key cancer documents
that featured prominently in the Kamuda trial predate GTCR’s involvement by almost thirty years
and cannot be used to show that GTCR was on notice because Plaintiff has pointed to no evidence
that GTCR authored or ever saw these materials. Contrary to Plaintiff’s assertion that Sterigenics
is a successor in interest to Griffith and that its knowledge can also be imputed to its parent Sotera,
Plaintiff has absolutely no argument (nor has she offered one) that a remote third party like GTCR,
outside of the Sterigenics corporate family tree, can be legally saddled with internal company
documents about ethylene oxide risk from the 1980s through 2011. That critical legal nuance is
not likely to be understood and followed by a jury considering GTCR’s knowledge and alleged
fault. Not only are such documents irrelevant, but they would also be inadmissible hearsay as to
GTCR because they are not statements by a party-opponent (i.e., GTCR). See Ill. R. Evid.
801(d)(2). In short, it would be unfair to expect jurors to separate GTCR from the other defendants
and to ignore the pre-2011 evidence when it comes to assessing GTCR’s liability while
simultaneously assessing the liability of other defendants. Cf. Krulewitch v. United States, 336
U.S. 440, 454 (1949) (Jackson, J., concurring) (“It is difficult for the individual to make his own
case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather
are flocked together.”).
The cancer-related evidence will also severely prejudice GTCR’s causation defense. The
science in this case is complicated enough, even without Plaintiff’s miscarriage claim. If
6
Plaintiff’s claims against GTCR are not severed, jurors tasked with deciding GTCR’s liability and
whether to award punitive damages will have to sit through weeks of testimony about Plaintiff’s
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cancer diagnosis and treatment and the complicated science behind how ethylene oxide might have
been the cause—all of which is likely to confuse the jury about the relationship between ethylene
FILED DATE: 10/3/2022 6:32 PM
oxide emissions from the Willowbrook facility and Ms. Fornek’s miscarriage. A likely result is
that the jury will throw up its hands and decide that whatever evidence Ms. Fornek presents
purporting to link ethylene oxide emissions to her cancer diagnosis must also be relevant to her
miscarriage, too, and that whatever expertise Ms. Fornek’s witnesses may have to talk about cancer
must also qualify them to testify about miscarriages. That will undoubtedly prejudice GTCR.
For example, Plaintiff will testify about being diagnosed with Acute Lymphoblastic
Leukemia at the young age of 20 years old and her “two years of grueling treatment including
chemotherapies and whole brain radiation.” See Ex. 7 at 3 (Pl.’s Opp. to MSJ, Sept. 28, 2022);
see also Ex. 4 at 103:1-121:8 (Dep. of Teresa Fornek, May 11, 2021). Moreover, Plaintiff
anticipates calling numerous purported experts to testify about her cancer claims. See Ex. 8 (Pl.’s
Third Supp. Answers to Defendant Sterigenics U.S., LLC’s 213(F)(3) Interrogatories, Aug. 22,
2022); Ex. 9 (Pl.’s Answers to Defendant Sterigenics U.S., LLC’s 213(F)(3) Interrogatories, Apr.
25, 2022). Specifically, Plaintiff’s experts include:
• Ranajit Sahu, Ph.D., QEP, CEM, an environmental, chemical, and mechanical engineer;
• Dean Felsher, M.D., Ph.D., an oncologist and cancer researcher;
• Martyn Thomas Smith, Ph.D., a professor of toxicology at the University of California
Berkeley;
• Howard Hu, M.D., M.P.H., Sc.D., a professor trained in Occupational/Environmental
Medicine, Internal Medicine, and Epidemiology;
• Michael Freeman, Med.Dr, Ph.D., MScFMS, MPH, MFFLM, DLM, FACE, a consultant
in the fields of forensic medicine and forensic epidemiology; and
• Judith A. Dygdon, PhD, a clinical psychologist that will testify regarding Plaintiff’s
trauma-related disorder resulting from her cancer diagnosis and treatment.
7
But Plaintiff offers only a single purported expert to testify about any alleged link between
ethylene oxide and miscarriages—Dr. Felsher. See Ex. 9 at 8 (Pl.’s Answers to Defendant
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Sterigencis U.S., LLC’s 213(F)(3) Interrogatories, Apr. 25, 2022). Dr. Felsher is an oncologist—
not an obstetrician, gynecologist, or reproductive endocrinologist. See id. at 3; Ex. 10, at 135:7-
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17 (Dep. of Dean Felsher, June 3, 2022). His ability to testify on ethylene oxide’s connection to
Plaintiff’s miscarriage is the subject of currently pending motions, including motions for summary
judgment, Ex. 15 at 1-2 (Sterigenics Defendants’ MSJ, Aug. 29, 2022), Ex. 2 at 3 (GTCR’s MSJ
Reply, Sept. 30, 2022), and a Frye motion, Ex. 11 at 3 (Sterigenics Defendants’ Motion to Exclude
the opinions of Plaintiff’s Purported Cancer and Miscarriage Causation Expert Dr. Dean Felsher,
Sept. 15, 2022). Jurors will have to sit through hours of Dr. Felsher’s testimony regarding his
purported expertise in the area of cancer research and opinions regarding the alleged link between
ethylene oxide and cancer, despite the fact that this is largely irrelevant to any claims against
GTCR. If claims against GTCR are not severed for trial and if Dr. Felsher is permitted to testify
about miscarriages, the nuances important to evaluating both general and specific causation will
inevitably be confused as two alleged injuries are discussed at the same time. The risk that the
jury will confuse and conflate the purported cancer causation evidence and miscarriage causation
evidence is further heightened by the fact that the evidence will be presented by the very same
expert. Moreover, if allowed, Dr. Felsher’s miscarriage causation testimony will be especially
problematic and unfair for GTCR because his purported expertise on causes of miscarriage appears
to be based on his cancer research and his miscarriage causation opinion appears to be an extension
of his cancer opinion. See, e.g., Ex. 10 at 132:19-133:3 (Dep. of Dean Felsher, June 3, 2022) (in
describing his research purportedly about causes of miscarriages, “this is a question about cancer
because there is actually [an] intimate connection between cancer, embryogenesis, and having a
8
successful ability to make an embryo. . . . I wouldn’t expect a layperson to realize that a whole
aspect of this paper was arguing that . . . if you model activating an oncogene embryonically, that
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it causes lethality. It causes a miscarriage.”). No instruction, objection, or cross questions will
eliminate juror confusion and enable them to independently assess and distinguish between the
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complicated scientific evidence purportedly underlying the miscarriage and cancer claims. See
Ex. 12 at 38:20-39:2 (June 16, 2022 Kamuda Hr’g Tr.) (Judge Quinn finding that “this is a complex
case with numerous Defendants and very dense scientific causation evidence . . . . [A] limiting
instruction it not an effective tool to cure any confusion and nor would it aid the jury”); see also
Cestone v. Gen. Cigar Holdings, Inc., 2002 WL 424654, at *3 (S.D.N.Y. Mar. 18, 2002)
(considering need to “constantly caution the jury to not consider evidence that is irrelevant or
inadmissible against a particular Defendant” in ordering severance).
Courts have regularly ordered severance in cases where evidence or claims relevant only
to one defendant risked prejudicing the other defendant. See, e.g., Rodriguez v. Winski, 973 F.
Supp. 2d 411, 430 (S.D.N.Y. 2013) (ordering severance in civil rights case where “[o]f the many
allegations in plaintiffs’ prolix complaint, only a small percentage concern[ed]” the severed
defendants); Pane v. Town of Greenburgh, 2012 WL 12886971, at *2-3 (S.D.N.Y. Mar. 21, 2012)
(ordering severance in civil rights case where “the salacious nature of the allegations against” one
defendant would result in prejudice to other defendant “if the jury were to conclude that [defendant
1] did, in fact, engage in the ‘extreme and outrageous’ conduct alleged”); Cestone, 2002 WL
424654, at *3 (ordering severance in employment case where “[t]he potential inferences or
conclusions that the jury may draw from the different claims and the strength of the respective
cases could unfairly prejudice the defendants” (internal quotation marks and citation omitted));
Saleh v. Digital Realty Tr., Inc., 2022 WL 3139733, at *8-9 (S.D.N.Y. Aug. 5, 2022) (ordering
9
severance in employment case where claims were of “different severity and specificity,” such that
“[l]umping these disparate claims together could unfairly prejudice either side”). So too here.
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Judge Quinn’s decision in the Kamuda trial is especially instructive—she severed the trials
between Susan and Brian Kamuda even where they “both allege a cancer injury that they attribute
FILED DATE: 10/3/2022 6:32 PM
to their exposure to ethylene oxide” because the “individual issues predominate,” including the
different nature of the cancers, different treatments, different health histories, “different risk factors
and other personal characteristics relevant to the causation analysis,” and different damages
claims, resulting in juror confusion and prejudice to the defendants. See Ex. 12 at 36:22-37:16
(June 16, 2022 Kamuda Hr’g Tr.). She also considered that there were no claims against GTCR
in Ms. Kamuda’s case. See id. at 38:1-6 (finding that “GTCR is not a Defendant in Susan
Kamuda’s case” and “[s]ignificant portions of the fact[s] and evidence in Susan Kamuda’s case
would not be relevant in Brian Kamuda’s case”), 12-19 (finding that “it would be both confusing
and prejudicial for a jury to hear evidence and admissions and company conduct that occurred
when Brian Kamuda wasn’t living near the Willowbrook facility and for the same jury to hear
about company conduct that occurred after Susan Kamuda was diagnosed and before Defendant
GTCR was in the picture” (emphasis added)).
The same reasoning applies with even more force here where the different theories of injury
are not based on different cancer diagnoses, but on different medical issues entirely, turn on distinct
facts, and require different scientific evidence. A significant portion of Plaintiff’s anticipated
cancer evidence would be inadmissible in a case solely involving a miscarriage injury. See, e.g.,
Ex. 13 at 49:5-60:4 (Sept. 30, 2022 Rough Hr’g Tr.) (granting motion to preclude evidence of
unrelated bad act, glycol spill). At bottom, as Judge Quinn found, “[c]ombining the evidence for
both would invite the jury to make an improper inference based on the commonality between [the
10
miscarriage-related claims and cancer-related claims], not an independent assessment on the facts
and science presented for each individual claim.” See Ex. 12 at 38:2-11 (June 16, 2022 Kamuda
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Hr’g Tr.). Thus, not only would the combined evidence result in juror confusion, but GTCR would
also necessarily suffer prejudice due to a spillover effect from being associated with purportedly
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wrongful acts with which itwas not involved. See id.; cf. Hasman v. G.D. Searle & Co., 106
F.R.D. 459, 461 (E.D. Mich. 1985) (“If the unique circumstances of [these] cases are considered
together in one trial, the jury’s verdict might not be based on the merits of the individual cases but
could potentially be a product of cumulative confusion and prejudice.”).
B. Plaintiff’s Inevitable Focus During Trial on the Conduct of a Reasonable
Sterilization Facility Operator Would Prejudice GTCR Where It Is Not a
Facility Operator
To prevail against GTCR, Plaintiff must prove that the company failed to act like a
reasonably careful private equity advisor under the circumstances. It would be wholly improper
to impose on GTCR the level of conduct expected of a reasonably careful highly-regulated,
“technical” medical equipment sterilization company working hands-on with ethylene oxide
relatively near Plaintiff’s residence. Yet that is exactly what appears likely to happen if GTCR is
not severed from the impending trial. If the jury hears testimony about how the company
responsible for the day-to-day operations of the Willowbrook facility should have controlled
ethylene oxide emissions, the jury may assume that GTCR had a similar responsibility—even
though Ms. Fornek has introduced no evidence suggesting that GTCR involved itself in the
facility’s daily operations or meddled in its ethylene oxide emissions. And if that same testimony
includes references to GTCR, the jury may assume that GTCR should be liable.
The expected testimony of Dr. Sahu is a striking example. This Court recently ruled that
Dr. Sahu may testify whether defendants met the standard for a reasonably careful company
operating in the public with ethylene oxide, but not what a reasonable private equity company
11
would do in this situation. See Ex. 13 at 149:5-150:2 (Sept. 30, 2022 Rough Hr’g Tr.) (GTCR’s
counsel confirming that Dr. Sahu will not opine on “what a reasonable private equity company
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would do in this situation”). Instead, jurors deciding GTCR’s liability will hear about how
reasonably careful entities “engaged in an ultrahazardous activity,” including using ethylene oxide,
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“must take all reasonable, feasible and practical steps to avoid or minimize exposure” and that
“Defendants did not warn the community, and even took steps to conceal their activities and the
likely harm posed to the public.” Ex. 9 (Pl.’s Answers to Defendant Sterigenics U.S., LLC’s
213(F)(3) Interrogatories, Apr. 25, 2022). During his testimony, Dr. Sahu may reference GTCR
or rely on documents produced by GTCR. Furthermore, jurors will hear about decades of evidence
regarding what the defendants knew about the risk of ethylene oxide emissions, cancer, and gene
mutations before 2011, such that it will be impossible for jurors to fairly assess what GTCR knew
about miscarriage risk when it became involved around 2011.
The confusion and resulting prejudice would be further exacerbated by the fact that Dr.
Felsher purports to rely on Sterigenics internal documents to support his opinion that ethylene
oxide caused Ms. Fornek’s miscarriage. See Ex. 10 at 143:8-17 (Dep. of Dean Felsher, June 3,
2022) (“Sterigenics is a technical company that provided sterilization products to medical
professionals, and if their company documents for their highly technical service write and say that
they believe that ethylene oxide can cause miscarriages, then, yes, I would consider evidence that
their engineering and scientific team describe in their formal literature in multiple places that
ethylene oxide can cause miscarriages, then I would consider that to support my opinion.”). Of
course, GTCR is not a “technical” company, and Ms. Fornek has not pointed to any evidence that
GTCR saw those internal Sterigenics documents (e.g., the internal company memorandum from
decades before GTCR was ever involved that Plaintiff wants to introduce as proof of notice, see,
12
e.g., Ex. 6 at 56:11-80:19 (Sept. 29, 2022, Hr’g Tr.)). An instruction, timely objection, or follow-
up question to confirm that Dr. Sahu does not implicate GTCR or that GTCR was not involved
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with Sterigenics before 2011 will not sufficiently mitigate the risk that the jurors, consciously or
unconsciously, will find GTCR guilty by association or impute reasonableness standards owed by
FILED DATE: 10/3/2022 6:32 PM
other “technical” defendants to GTCR.
II. There is No Prejudice to Plaintiff in Severing the Case Against GTCR
Severing GTCR from the case will have no impact on Plaintiff’s ability to present evidence.
Just as Ms. Kamuda did in her trial,Plaintiff will still be entitled to call Sean Cunningham, a
Managing Director at GTCR and a board member of another defendant, as a witness in connection
with her cancer-related claims. See, e.g., Woodward v. Mettille, 81 Ill. App. 3d 168, 182 (1980)
(affirming decision to sever and finding no prejudice to plaintiffs where they were able to call
severed defendant as witness). Like in the recent Kamuda trial, even without GTCR in the case,
Plaintiff will also be entitled to raise evidence related to GTCR where admissible. See, e.g., Ex.
14 at 71:10-72:19, 85:1-11 (Aug. 18, 2022 Kamuda Trial Tr.). Moreover, as with Brian Kamuda,
Plaintiff can seek the Presiding Judge’s leave to prioritize trying any remaining claims against
GTCR early next year. See Ex. 12 at 39:2-8 (June 16, 2022 Kamuda Hr’g Tr.). GTCR would not
object to that relief. As of the filing of this motion, there have been no other cases set for trial
between the end of the Schumacher trial this year and Mr. Kamuda’s trial in April 2023, leaving a
window to try other cases in early 2023.
III. This Motion to Sever is Timely
That the balance of evidence skews so heavily towards the cancer claims did not become
clear until the parties’ pre-trial motions and arguments. After last week, however, there is no doubt
that Plaintiff’s case is overwhelmingly focused on her cancer claims and events long preceding
GTCR’s involvement. See, e.g., Ex. 6 at 78:11-79:11 (Sept. 29, 2022 Hr’g Tr.) (GTCR’s counsel
13
arguing that “I think 90 percent of the case is going to be about cancer – and then Your Honor and
the lawyers are supposed to try to figure out a way that my client can get a fair trial when it’s all
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about cancer?”). In response to GTCR counsel’s argument that it will not be possible for GTCR
to have a fair trial on the miscarriage claims when the trial is focused on cancer, the Court asked,
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“what am I supposed to do about that?” See id. at 79:3-4. In response, GTCR filed this Motion.
Conclusion
GTCR respectfully requests that this Court sever all claims against GTCR from this trial. 2
Dated: October 3, 2022 Respectfully submitted,
By: /s/ Jeffrey J. Bushofsky
Jeffrey J. Bushofsky
Jeffrey.bushofsky@ropesgray.com
Nicholas M. Berg
nicholas.berg@ropesgray.com
Renai S. Rodney
renai.rodney@ropesgray.com
Nicholas W. Smith
nicholas.smith@ropesgray.com
Philip P. Ehrlich
philip.ehrlich@ropesgray.com
ROPES & GRAY LLP
Firm ID No. 47644
191 N. Wacker Drive
Chicago, Illinois 60606
Telephone: (312) 845-1200
Facsimile: (312) 845-5559
Counsel for GTCR LLC
2
To the extent Douglas Fornek, Plaintiff’s husband, has not abandoned and continues to pursue
his loss of consortium claims (Counts 50, 51, and 52 of the Fifth Amended Complaint), those
claims derive from and depend on Ms. Fornek’s claims and, accordingly, should be severed as
well.
14
CERTIFICATE OF SERVICE
I, Philip Ehrlich, certify that I caused a copy of Defendant GTCR LLC’s Memorandum of
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Law in Support of Its Motion to Sever to be served on all counsel of record via email to the
individuals listed on the service list below, on October 3, 2022.
FILED DATE: 10/3/2022 6:32 PM
SERVICE LIST
Antonio M. Romanucci Bruce R. Braun
Bryce T. Hensley bbraun@sidley.com
ROMANUCCI & BLANDIN, LLC Eric S. Mattson
321 N. Clark Street, Suite 900 emattson@sidley.com
Chicago, IL 60654 Robert S. Velevis
(312) 458-1000 rvelevis@sidley.com
(312) 458-1004 SIDLEY AUSTIN LLP
aromanucci@rblaw.net Firm ID No. 42418
bhensley@rblaw.net One South Dearborn Street
Lead and Liaison Counsel for Plaintiffs Chicago, Illinois 60603
Telephone: (312) 853-7000
Steven A. Hart
Facsimile: (312) 853-7036
Brian Eldrige
HART MCLAUGHLIN & ELDRIDGE
Christopher B. Wilson
22 W. Washington St., Suite 1600
Jonathan R. Buck
Chicago, IL 60602
Kathleen A. Stetsko
(312) 955-0545
Keith G. Klein
shart@hmelegal.com
Jillian Sommers
beldridge@hmelegal.com
PERKINS COIE LLP
Counsel for Plaintiff Schumacher
110 N Upper Wacker Dr., Suite 3400
Chicago, IL 60603-5559
Brian LaCien
CWilson@perkinscoie.com
Todd Smith
JBuck@perkinscoie.com
SMITH LACIEN LLP
KStetsko@perkinscoie.com
70 W. Madison Street, #5770
KKlein@perkinscoie.com
Chicago, IL 60602
JSommers@perkinscoie.com
(312) 509-8900
Willowbrooklit@perkinscoie.com
blacien@smithlacien.com
Counsel for Griffith Defendants
tsmith@smithlacien.com
Counsel for Plaintiff Teresa Fornek
William J. Cople III
wcople@hollingsworthllp.com
Shawn Collins
Robert E. Johnston
THE COLLINS LAW FIRM, P.C.
rjohnston@hollingsworthllp.com
1770 Park St., Ste. 200
Eric G. Lasker
Naperville, IL 60563
elasker@hollingsworthllp.com
(630) 527-1595
Joe G. Hollingsworth
shawn@collinslaw.com
jhollingsworth@hollingsworthllp.com
Counsel for Plaintiff Teresa Fornek
Marchello D. Gray
mgray@hollingsworthllp.com
1
HOLLINGSWORTH LLP
1350 I St. NW
Washington, DC 20005
2018L010744
(202) 898-5800
Counsel for Sterigenics U.S., LLC, Sotera
Health LLC, Bob Novak, Roger Clark, and
FILED DATE: 10/3/2022 6:32 PM
GTCR LLC
/s/ Philip Ehrlich
One of the Attorneys for GTCR LLC
Preview
Hearing Date: No hearing scheduled Location: <> Judge: Calendar, 30 FILED 10/3/2022 6:32 PM IRIS Y. MARTINEZ IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS CIRCUIT CLERK COOK COUNTY, IL COUNTY DEPARTMENT, LAW DIVISION 2018L010744 2018L010744 Calendar, 30 IN RE: WILLOWBROOK ETHYLENE 19743292 OXIDE LITIGATION Consolidated for Pretrial and FILED DATE: 10/3/2022 6:32 PM Discovery Purposes Under: No. 2018-L-010475 This Filing Applies to: The Honorable Lorna E. Propes Teresa Fornek & Douglas Fornek v. No. 2018-L-010744 Sterigenics U.S., LLC, et al. DEFENDANT GTCR LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO SEVER Introduction 1 GTCR, LLC (“GTCR”) does not belong in this case. Plaintiff Teresa Fornek (“Plaintiff” or “Ms. Fornek”) asserts two sets of claims: one based on her 2005 cancer diagnosis and treatment, and another based on her 2017 eight-week miscarriage. Although Ms. Fornek alleges that the other defendants, Griffith, Sterigenics, and Sotera, contributed both to her cancer diagnosis and to her miscarriage, her claims against GTCR are limited: Ms. Fornek does not accuse GTCR of causing her cancer. See Ex. 1 at 3 (GTCR’s MSJ, Aug. 29, 2022). But it is the cancer claims, which are entirely unconnected to GTCR, that are indisputably at the heart of her case. In fact, evidence related to the cancer claims will dominate the trial: to make her case against Griffith, Sterigenics, and Sotera, Plaintiff relies on evidence going as far back as 1981, decades before a GTCR-advised fund invested in 2011 in the parent company of Sterigenics, which operates the Willowbrook 1 Following extensive briefing on motions in limine and for summary judgment, the Court is familiar with the core allegations and facts of this case. To the extent additional context is needed, this Motion incorporates by reference GTCR’s briefing in support of its Case-Specific Motion for Summary Judgment. See Ex. 1 (GTCR’s MSJ, Aug. 29, 2022); Ex. 2 (GTCR’s MSJ Reply, Sept. 30, 2022). 1 facility. And the overwhelming majority of Ms. Fornek’s expert testimony will relate to cancer and to the day-to-day operations of the Willowbrook facility, not to her miscarriage or to the 2018L010744 conduct of a reasonable private equity advisor far-removed from the Willowbrook facility’s daily operations. Thus, almost the entirety of Plaintiff’s case will focus on evidence totally irrelevant to FILED DATE: 10/3/2022 6:32 PM GTCR and on events spanning almost thirty years before GTCR’s involvement. Yet it is in the context of that drumbeat of irrelevant evidence that a jury will decide not only whether GTCR is liable for Ms. Fornek’s 2017 miscarriage, but also whether to award punitive damages against GTCR. That risk of a fundamentally unfair and prejudicial trial for GTCR has only sharpened over the past two weeks. As the motion in limine arguments have made clear, Ms. Fornek intends largely to repeat the evidence and arguments that Ms. Kamuda presented to her jury. And the jury in Kamuda found the defendants liable in the amount of $38 million in compensatory damages and $325 million in punitive damages. Ex. 3 at 3:21-4:23 (Sept. 19, 2022 Kamuda Trial Tr.). Critically, GTCR was not a defendant in that case. But it now faces the possibility that its rights will be adjudicated based on nearly identical and wholly irrelevant evidence that caused another jury to award enormous amounts of both compensatory and punitive damages. If the jury in this case interprets the cancer-related evidence in the same way, there is a distinct possibility that it will enter a significant verdict against GTCR—regardless of what evidence Ms. Fornek introduces about the conduct of a reasonably careful private equity advisor under the circumstances or the scientific relationship between ethylene oxide and miscarriage. Given the absence of sufficient evidence and legal grounds to prove her miscarriage claims against GTCR, GTCR filed a motion for summary judgment, which is currently still pending. If GTCR is not dismissed at summary judgment, it respectfully requests that the Court sever it from 2 this trial. The miscarriage and cancer claims rely on largely distinct evidence—different injuries, different time periods, different treatments, different theories of causation, and different exhibits. 2018L010744 The overwhelming majority of witness testimony, trial days, and exhibits will relate to cancer, not miscarriage, and events that long preceded any involvement by GTCR. Accordingly, it would be FILED DATE: 10/3/2022 6:32 PM unfair to expect jurors to ignore voluminous cancer evidence in assessing GTCR’s liability, accurately sort through complicated scientific evidence on causation related to two entirely different injuries, and to assess the strength of the miscarriage evidence in a vacuum without allowing the voluminous purported cancer evidence to falsely inflate the strength of the miscarriage evidence. GTCR would face egregious and unfair prejudice in a joint trial that will overwhelmingly be about Plaintiff’s cancer claims. As a result, Ms. Fornek’s claims against GTCR should be severed from this trial. Argument I. GTCR Would Be Severely and Unfairly Prejudiced if Plaintiff’s Claims Against It Are Resolved in the Same Trial As the Cancer Claims Against the Other Defendants Under Illinois law, where the “substantial rights of the litigants” may be prejudiced by a joint trial, a trial court should sever the claims. See Mount v. Dusing, 414 Ill. 361, 367 (1953) (Illinois law includes “provisions authorizing severance or consolidation whenever necessary to enhance the convenient disposition of the business of the court, or to avoid prejudice to the substantial rights of litigants.”); see also 735 ILCS 5/2-1006. “A motion to sever issues for trial is thus addressed to the sound discretion of the trial judge, to be exercised in each case by an appraisal of administrative convenience and the possibility of prejudice to substantial rights of the litigants in the light of the particular problems which will arise in the course of the trial.” Mount, 414 Ill. at 367. In determining whether severance or consolidation is appropriate, Illinois courts consider whether a joint trial would deprive a defendant of a “fair and impartial” trial. See Lowe 3 v. Norfolk & W. Ry. Co., 124 Ill. App. 3d 80, 105 (5th Dist. 1984) (“The consolidation deprived [defendant] of a fair and impartial trial and itconstituted an abuse of discretion and reversible 2018L010744 error.”). Here, severance is appropriate and necessary to avoid egregious and unfair prejudice to FILED DATE: 10/3/2022 6:32 PM GTCR. First, arguments from the last two weeks have confirmed that Plaintiff’s case will focus almost entirely on her cancer claims, which not only rely on different evidence from her miscarriage claims, but also involve evidence that will vastly outweigh and inevitably color any miscarriage evidence. After listening to weeks of evidence regarding cancer and events pre-dating GTCR’s involvement in the case, it is unreasonable to expect jurors to ignore that evidence or distinguish it from the miscarriage evidence in order to independently assess GTCR’s liability and whether punitive damages are warranted. Inevitably, GTCR will be lumped together with the other Defendants when jurors try to determine what GTCR knew and when, and whether GTCR’s conduct was reasonable for a private equity advisor under the circumstances. Similarly, jurors are likely to conflate the evidence related to the cancer and miscarriage claims, creating an unreasonable risk of prejudice to GTCR that, for example, jurors will view the miscarriage evidence as stronger than it would be isolated from the cancer evidence. Nor can jurors be expected to distinguish between the nuances of causation when faced with complicated scientific evidence about two medical conditions. Second, there is no prejudice to Plaintiff in severing GTCR from the case because her ability to put on evidence is entirely unaffected. Third, the motion is timely because the fact that the trial will overwhelmingly be about evidence irrelevant to GTCR did not become clear until parties argued their pre-trial motions last week. 4 A. GTCR Will Suffer Egregious and Unfair Prejudice From Being Associated With Plaintiff’s Cancer-Related and Pre-2011 Evidence, Which Will Comprise the Vast Majority of the Five-Week Trial 2018L010744 Plaintiff asserts two different theories of harm: that she was diagnosed with cancer in 2005 and that she suffered a miscarriage over ten years later, in 2017. See Ex. 4 at 46:3-8 (Dep. of FILED DATE: 10/3/2022 6:32 PM Teresa Fornek, May 11, 2021). Plaintiff’s miscarriage-related claims against GTCR require evidence distinct from Plaintiff’s cancer claims against the other Defendants. There is no dispute that GTCR has no connection to Plaintiff’s cancer-related claims or any events before 2011. But Plaintiff will seek to introduce weeks of testimony and thousands of pages of exhibits related only to events from 1984 to 2011—decades before GTCR was involved—and related only to her cancer diagnosis and treatment. Thus, the five-week trial will overwhelmingly focus on Plaintiff’s cancer- related claims, not her miscarriage-related claim against GTCR, and on events at the Willowbrook facility before GTCR had any remote involvement. Plaintiff has made this clear by indicating last week—by repeated references to Kamuda and by relying on the same expert witnesses as in the Kamuda trial—that her evidence will largely be the evidence introduced at the Kamuda trial, which focused exclusively on cancer. See, e.g., Ex. 5 at 129:6-137:1 (Sept. 28, 2022 Hr’g Tr.) (Plaintiff intends to call same causation expert introduced at Kamuda trial); id. at 168:20-169:20 (Plaintiff intends to call same expert on duty introduced at Kamuda trial); id.at 189:9-190:15 (argument concerning vent control made in Kamuda trial will be made again in Ms. Fornek’s trial). For example, in arguing pre-trial motions, Plaintiff confirmed that her trial presentation will heavily emphasize events pre-dating 2011, which will undoubtedly prejudice GTCR’s defense. See, e.g., Ex. 6 at 56:11-80:19 (Sept. 29, 2022, Hr’g Tr.) (Plaintiff arguing importance of introducing 1980s cancer-related company documents with no connection whatsoever to, and no mention by Plaintiffs’ counsel of, GTCR). Specifically, in arguing for the admissibility of a 1980s memorandum, which featured prominently in the Kamuda trial, Plaintiff’s counsel 5 emphasized the importance of Defendants being on notice of ethylene oxide’s carcinogenicity in the 1980s: “early notice and knowledge, particularly in the 1980s and before are really, really 2018L010744 important because decisions were made, in our view, with full notice and knowledge that there was evidence of carcinogenicity in – as early as the ‘60s, ‘70s, and certainly the ‘80s.” Id. at 60:9- FILED DATE: 10/3/2022 6:32 PM 14. It is undisputed that such evidence is wholly irrelevant to GTCR: these key cancer documents that featured prominently in the Kamuda trial predate GTCR’s involvement by almost thirty years and cannot be used to show that GTCR was on notice because Plaintiff has pointed to no evidence that GTCR authored or ever saw these materials. Contrary to Plaintiff’s assertion that Sterigenics is a successor in interest to Griffith and that its knowledge can also be imputed to its parent Sotera, Plaintiff has absolutely no argument (nor has she offered one) that a remote third party like GTCR, outside of the Sterigenics corporate family tree, can be legally saddled with internal company documents about ethylene oxide risk from the 1980s through 2011. That critical legal nuance is not likely to be understood and followed by a jury considering GTCR’s knowledge and alleged fault. Not only are such documents irrelevant, but they would also be inadmissible hearsay as to GTCR because they are not statements by a party-opponent (i.e., GTCR). See Ill. R. Evid. 801(d)(2). In short, it would be unfair to expect jurors to separate GTCR from the other defendants and to ignore the pre-2011 evidence when it comes to assessing GTCR’s liability while simultaneously assessing the liability of other defendants. Cf. Krulewitch v. United States, 336 U.S. 440, 454 (1949) (Jackson, J., concurring) (“It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together.”). The cancer-related evidence will also severely prejudice GTCR’s causation defense. The science in this case is complicated enough, even without Plaintiff’s miscarriage claim. If 6 Plaintiff’s claims against GTCR are not severed, jurors tasked with deciding GTCR’s liability and whether to award punitive damages will have to sit through weeks of testimony about Plaintiff’s 2018L010744 cancer diagnosis and treatment and the complicated science behind how ethylene oxide might have been the cause—all of which is likely to confuse the jury about the relationship between ethylene FILED DATE: 10/3/2022 6:32 PM oxide emissions from the Willowbrook facility and Ms. Fornek’s miscarriage. A likely result is that the jury will throw up its hands and decide that whatever evidence Ms. Fornek presents purporting to link ethylene oxide emissions to her cancer diagnosis must also be relevant to her miscarriage, too, and that whatever expertise Ms. Fornek’s witnesses may have to talk about cancer must also qualify them to testify about miscarriages. That will undoubtedly prejudice GTCR. For example, Plaintiff will testify about being diagnosed with Acute Lymphoblastic Leukemia at the young age of 20 years old and her “two years of grueling treatment including chemotherapies and whole brain radiation.” See Ex. 7 at 3 (Pl.’s Opp. to MSJ, Sept. 28, 2022); see also Ex. 4 at 103:1-121:8 (Dep. of Teresa Fornek, May 11, 2021). Moreover, Plaintiff anticipates calling numerous purported experts to testify about her cancer claims. See Ex. 8 (Pl.’s Third Supp. Answers to Defendant Sterigenics U.S., LLC’s 213(F)(3) Interrogatories, Aug. 22, 2022); Ex. 9 (Pl.’s Answers to Defendant Sterigenics U.S., LLC’s 213(F)(3) Interrogatories, Apr. 25, 2022). Specifically, Plaintiff’s experts include: • Ranajit Sahu, Ph.D., QEP, CEM, an environmental, chemical, and mechanical engineer; • Dean Felsher, M.D., Ph.D., an oncologist and cancer researcher; • Martyn Thomas Smith, Ph.D., a professor of toxicology at the University of California Berkeley; • Howard Hu, M.D., M.P.H., Sc.D., a professor trained in Occupational/Environmental Medicine, Internal Medicine, and Epidemiology; • Michael Freeman, Med.Dr, Ph.D., MScFMS, MPH, MFFLM, DLM, FACE, a consultant in the fields of forensic medicine and forensic epidemiology; and • Judith A. Dygdon, PhD, a clinical psychologist that will testify regarding Plaintiff’s trauma-related disorder resulting from her cancer diagnosis and treatment. 7 But Plaintiff offers only a single purported expert to testify about any alleged link between ethylene oxide and miscarriages—Dr. Felsher. See Ex. 9 at 8 (Pl.’s Answers to Defendant 2018L010744 Sterigencis U.S., LLC’s 213(F)(3) Interrogatories, Apr. 25, 2022). Dr. Felsher is an oncologist— not an obstetrician, gynecologist, or reproductive endocrinologist. See id. at 3; Ex. 10, at 135:7- FILED DATE: 10/3/2022 6:32 PM 17 (Dep. of Dean Felsher, June 3, 2022). His ability to testify on ethylene oxide’s connection to Plaintiff’s miscarriage is the subject of currently pending motions, including motions for summary judgment, Ex. 15 at 1-2 (Sterigenics Defendants’ MSJ, Aug. 29, 2022), Ex. 2 at 3 (GTCR’s MSJ Reply, Sept. 30, 2022), and a Frye motion, Ex. 11 at 3 (Sterigenics Defendants’ Motion to Exclude the opinions of Plaintiff’s Purported Cancer and Miscarriage Causation Expert Dr. Dean Felsher, Sept. 15, 2022). Jurors will have to sit through hours of Dr. Felsher’s testimony regarding his purported expertise in the area of cancer research and opinions regarding the alleged link between ethylene oxide and cancer, despite the fact that this is largely irrelevant to any claims against GTCR. If claims against GTCR are not severed for trial and if Dr. Felsher is permitted to testify about miscarriages, the nuances important to evaluating both general and specific causation will inevitably be confused as two alleged injuries are discussed at the same time. The risk that the jury will confuse and conflate the purported cancer causation evidence and miscarriage causation evidence is further heightened by the fact that the evidence will be presented by the very same expert. Moreover, if allowed, Dr. Felsher’s miscarriage causation testimony will be especially problematic and unfair for GTCR because his purported expertise on causes of miscarriage appears to be based on his cancer research and his miscarriage causation opinion appears to be an extension of his cancer opinion. See, e.g., Ex. 10 at 132:19-133:3 (Dep. of Dean Felsher, June 3, 2022) (in describing his research purportedly about causes of miscarriages, “this is a question about cancer because there is actually [an] intimate connection between cancer, embryogenesis, and having a 8 successful ability to make an embryo. . . . I wouldn’t expect a layperson to realize that a whole aspect of this paper was arguing that . . . if you model activating an oncogene embryonically, that 2018L010744 it causes lethality. It causes a miscarriage.”). No instruction, objection, or cross questions will eliminate juror confusion and enable them to independently assess and distinguish between the FILED DATE: 10/3/2022 6:32 PM complicated scientific evidence purportedly underlying the miscarriage and cancer claims. See Ex. 12 at 38:20-39:2 (June 16, 2022 Kamuda Hr’g Tr.) (Judge Quinn finding that “this is a complex case with numerous Defendants and very dense scientific causation evidence . . . . [A] limiting instruction it not an effective tool to cure any confusion and nor would it aid the jury”); see also Cestone v. Gen. Cigar Holdings, Inc., 2002 WL 424654, at *3 (S.D.N.Y. Mar. 18, 2002) (considering need to “constantly caution the jury to not consider evidence that is irrelevant or inadmissible against a particular Defendant” in ordering severance). Courts have regularly ordered severance in cases where evidence or claims relevant only to one defendant risked prejudicing the other defendant. See, e.g., Rodriguez v. Winski, 973 F. Supp. 2d 411, 430 (S.D.N.Y. 2013) (ordering severance in civil rights case where “[o]f the many allegations in plaintiffs’ prolix complaint, only a small percentage concern[ed]” the severed defendants); Pane v. Town of Greenburgh, 2012 WL 12886971, at *2-3 (S.D.N.Y. Mar. 21, 2012) (ordering severance in civil rights case where “the salacious nature of the allegations against” one defendant would result in prejudice to other defendant “if the jury were to conclude that [defendant 1] did, in fact, engage in the ‘extreme and outrageous’ conduct alleged”); Cestone, 2002 WL 424654, at *3 (ordering severance in employment case where “[t]he potential inferences or conclusions that the jury may draw from the different claims and the strength of the respective cases could unfairly prejudice the defendants” (internal quotation marks and citation omitted)); Saleh v. Digital Realty Tr., Inc., 2022 WL 3139733, at *8-9 (S.D.N.Y. Aug. 5, 2022) (ordering 9 severance in employment case where claims were of “different severity and specificity,” such that “[l]umping these disparate claims together could unfairly prejudice either side”). So too here. 2018L010744 Judge Quinn’s decision in the Kamuda trial is especially instructive—she severed the trials between Susan and Brian Kamuda even where they “both allege a cancer injury that they attribute FILED DATE: 10/3/2022 6:32 PM to their exposure to ethylene oxide” because the “individual issues predominate,” including the different nature of the cancers, different treatments, different health histories, “different risk factors and other personal characteristics relevant to the causation analysis,” and different damages claims, resulting in juror confusion and prejudice to the defendants. See Ex. 12 at 36:22-37:16 (June 16, 2022 Kamuda Hr’g Tr.). She also considered that there were no claims against GTCR in Ms. Kamuda’s case. See id. at 38:1-6 (finding that “GTCR is not a Defendant in Susan Kamuda’s case” and “[s]ignificant portions of the fact[s] and evidence in Susan Kamuda’s case would not be relevant in Brian Kamuda’s case”), 12-19 (finding that “it would be both confusing and prejudicial for a jury to hear evidence and admissions and company conduct that occurred when Brian Kamuda wasn’t living near the Willowbrook facility and for the same jury to hear about company conduct that occurred after Susan Kamuda was diagnosed and before Defendant GTCR was in the picture” (emphasis added)). The same reasoning applies with even more force here where the different theories of injury are not based on different cancer diagnoses, but on different medical issues entirely, turn on distinct facts, and require different scientific evidence. A significant portion of Plaintiff’s anticipated cancer evidence would be inadmissible in a case solely involving a miscarriage injury. See, e.g., Ex. 13 at 49:5-60:4 (Sept. 30, 2022 Rough Hr’g Tr.) (granting motion to preclude evidence of unrelated bad act, glycol spill). At bottom, as Judge Quinn found, “[c]ombining the evidence for both would invite the jury to make an improper inference based on the commonality between [the 10 miscarriage-related claims and cancer-related claims], not an independent assessment on the facts and science presented for each individual claim.” See Ex. 12 at 38:2-11 (June 16, 2022 Kamuda 2018L010744 Hr’g Tr.). Thus, not only would the combined evidence result in juror confusion, but GTCR would also necessarily suffer prejudice due to a spillover effect from being associated with purportedly FILED DATE: 10/3/2022 6:32 PM wrongful acts with which itwas not involved. See id.; cf. Hasman v. G.D. Searle & Co., 106 F.R.D. 459, 461 (E.D. Mich. 1985) (“If the unique circumstances of [these] cases are considered together in one trial, the jury’s verdict might not be based on the merits of the individual cases but could potentially be a product of cumulative confusion and prejudice.”). B. Plaintiff’s Inevitable Focus During Trial on the Conduct of a Reasonable Sterilization Facility Operator Would Prejudice GTCR Where It Is Not a Facility Operator To prevail against GTCR, Plaintiff must prove that the company failed to act like a reasonably careful private equity advisor under the circumstances. It would be wholly improper to impose on GTCR the level of conduct expected of a reasonably careful highly-regulated, “technical” medical equipment sterilization company working hands-on with ethylene oxide relatively near Plaintiff’s residence. Yet that is exactly what appears likely to happen if GTCR is not severed from the impending trial. If the jury hears testimony about how the company responsible for the day-to-day operations of the Willowbrook facility should have controlled ethylene oxide emissions, the jury may assume that GTCR had a similar responsibility—even though Ms. Fornek has introduced no evidence suggesting that GTCR involved itself in the facility’s daily operations or meddled in its ethylene oxide emissions. And if that same testimony includes references to GTCR, the jury may assume that GTCR should be liable. The expected testimony of Dr. Sahu is a striking example. This Court recently ruled that Dr. Sahu may testify whether defendants met the standard for a reasonably careful company operating in the public with ethylene oxide, but not what a reasonable private equity company 11 would do in this situation. See Ex. 13 at 149:5-150:2 (Sept. 30, 2022 Rough Hr’g Tr.) (GTCR’s counsel confirming that Dr. Sahu will not opine on “what a reasonable private equity company 2018L010744 would do in this situation”). Instead, jurors deciding GTCR’s liability will hear about how reasonably careful entities “engaged in an ultrahazardous activity,” including using ethylene oxide, FILED DATE: 10/3/2022 6:32 PM “must take all reasonable, feasible and practical steps to avoid or minimize exposure” and that “Defendants did not warn the community, and even took steps to conceal their activities and the likely harm posed to the public.” Ex. 9 (Pl.’s Answers to Defendant Sterigenics U.S., LLC’s 213(F)(3) Interrogatories, Apr. 25, 2022). During his testimony, Dr. Sahu may reference GTCR or rely on documents produced by GTCR. Furthermore, jurors will hear about decades of evidence regarding what the defendants knew about the risk of ethylene oxide emissions, cancer, and gene mutations before 2011, such that it will be impossible for jurors to fairly assess what GTCR knew about miscarriage risk when it became involved around 2011. The confusion and resulting prejudice would be further exacerbated by the fact that Dr. Felsher purports to rely on Sterigenics internal documents to support his opinion that ethylene oxide caused Ms. Fornek’s miscarriage. See Ex. 10 at 143:8-17 (Dep. of Dean Felsher, June 3, 2022) (“Sterigenics is a technical company that provided sterilization products to medical professionals, and if their company documents for their highly technical service write and say that they believe that ethylene oxide can cause miscarriages, then, yes, I would consider evidence that their engineering and scientific team describe in their formal literature in multiple places that ethylene oxide can cause miscarriages, then I would consider that to support my opinion.”). Of course, GTCR is not a “technical” company, and Ms. Fornek has not pointed to any evidence that GTCR saw those internal Sterigenics documents (e.g., the internal company memorandum from decades before GTCR was ever involved that Plaintiff wants to introduce as proof of notice, see, 12 e.g., Ex. 6 at 56:11-80:19 (Sept. 29, 2022, Hr’g Tr.)). An instruction, timely objection, or follow- up question to confirm that Dr. Sahu does not implicate GTCR or that GTCR was not involved 2018L010744 with Sterigenics before 2011 will not sufficiently mitigate the risk that the jurors, consciously or unconsciously, will find GTCR guilty by association or impute reasonableness standards owed by FILED DATE: 10/3/2022 6:32 PM other “technical” defendants to GTCR. II. There is No Prejudice to Plaintiff in Severing the Case Against GTCR Severing GTCR from the case will have no impact on Plaintiff’s ability to present evidence. Just as Ms. Kamuda did in her trial,Plaintiff will still be entitled to call Sean Cunningham, a Managing Director at GTCR and a board member of another defendant, as a witness in connection with her cancer-related claims. See, e.g., Woodward v. Mettille, 81 Ill. App. 3d 168, 182 (1980) (affirming decision to sever and finding no prejudice to plaintiffs where they were able to call severed defendant as witness). Like in the recent Kamuda trial, even without GTCR in the case, Plaintiff will also be entitled to raise evidence related to GTCR where admissible. See, e.g., Ex. 14 at 71:10-72:19, 85:1-11 (Aug. 18, 2022 Kamuda Trial Tr.). Moreover, as with Brian Kamuda, Plaintiff can seek the Presiding Judge’s leave to prioritize trying any remaining claims against GTCR early next year. See Ex. 12 at 39:2-8 (June 16, 2022 Kamuda Hr’g Tr.). GTCR would not object to that relief. As of the filing of this motion, there have been no other cases set for trial between the end of the Schumacher trial this year and Mr. Kamuda’s trial in April 2023, leaving a window to try other cases in early 2023. III. This Motion to Sever is Timely That the balance of evidence skews so heavily towards the cancer claims did not become clear until the parties’ pre-trial motions and arguments. After last week, however, there is no doubt that Plaintiff’s case is overwhelmingly focused on her cancer claims and events long preceding GTCR’s involvement. See, e.g., Ex. 6 at 78:11-79:11 (Sept. 29, 2022 Hr’g Tr.) (GTCR’s counsel 13 arguing that “I think 90 percent of the case is going to be about cancer – and then Your Honor and the lawyers are supposed to try to figure out a way that my client can get a fair trial when it’s all 2018L010744 about cancer?”). In response to GTCR counsel’s argument that it will not be possible for GTCR to have a fair trial on the miscarriage claims when the trial is focused on cancer, the Court asked, FILED DATE: 10/3/2022 6:32 PM “what am I supposed to do about that?” See id. at 79:3-4. In response, GTCR filed this Motion. Conclusion GTCR respectfully requests that this Court sever all claims against GTCR from this trial. 2 Dated: October 3, 2022 Respectfully submitted, By: /s/ Jeffrey J. Bushofsky Jeffrey J. Bushofsky Jeffrey.bushofsky@ropesgray.com Nicholas M. Berg nicholas.berg@ropesgray.com Renai S. Rodney renai.rodney@ropesgray.com Nicholas W. Smith nicholas.smith@ropesgray.com Philip P. Ehrlich philip.ehrlich@ropesgray.com ROPES & GRAY LLP Firm ID No. 47644 191 N. Wacker Drive Chicago, Illinois 60606 Telephone: (312) 845-1200 Facsimile: (312) 845-5559 Counsel for GTCR LLC 2 To the extent Douglas Fornek, Plaintiff’s husband, has not abandoned and continues to pursue his loss of consortium claims (Counts 50, 51, and 52 of the Fifth Amended Complaint), those claims derive from and depend on Ms. Fornek’s claims and, accordingly, should be severed as well. 14 CERTIFICATE OF SERVICE I, Philip Ehrlich, certify that I caused a copy of Defendant GTCR LLC’s Memorandum of 2018L010744 Law in Support of Its Motion to Sever to be served on all counsel of record via email to the individuals listed on the service list below, on October 3, 2022. FILED DATE: 10/3/2022 6:32 PM SERVICE LIST Antonio M. Romanucci Bruce R. Braun Bryce T. Hensley bbraun@sidley.com ROMANUCCI & BLANDIN, LLC Eric S. Mattson 321 N. Clark Street, Suite 900 emattson@sidley.com Chicago, IL 60654 Robert S. Velevis (312) 458-1000 rvelevis@sidley.com (312) 458-1004 SIDLEY AUSTIN LLP aromanucci@rblaw.net Firm ID No. 42418 bhensley@rblaw.net One South Dearborn Street Lead and Liaison Counsel for Plaintiffs Chicago, Illinois 60603 Telephone: (312) 853-7000 Steven A. Hart Facsimile: (312) 853-7036 Brian Eldrige HART MCLAUGHLIN & ELDRIDGE Christopher B. Wilson 22 W. Washington St., Suite 1600 Jonathan R. Buck Chicago, IL 60602 Kathleen A. Stetsko (312) 955-0545 Keith G. Klein shart@hmelegal.com Jillian Sommers beldridge@hmelegal.com PERKINS COIE LLP Counsel for Plaintiff Schumacher 110 N Upper Wacker Dr., Suite 3400 Chicago, IL 60603-5559 Brian LaCien CWilson@perkinscoie.com Todd Smith JBuck@perkinscoie.com SMITH LACIEN LLP KStetsko@perkinscoie.com 70 W. Madison Street, #5770 KKlein@perkinscoie.com Chicago, IL 60602 JSommers@perkinscoie.com (312) 509-8900 Willowbrooklit@perkinscoie.com blacien@smithlacien.com Counsel for Griffith Defendants tsmith@smithlacien.com Counsel for Plaintiff Teresa Fornek William J. Cople III wcople@hollingsworthllp.com Shawn Collins Robert E. Johnston THE COLLINS LAW FIRM, P.C. rjohnston@hollingsworthllp.com 1770 Park St., Ste. 200 Eric G. Lasker Naperville, IL 60563 elasker@hollingsworthllp.com (630) 527-1595 Joe G. Hollingsworth shawn@collinslaw.com jhollingsworth@hollingsworthllp.com Counsel for Plaintiff Teresa Fornek Marchello D. Gray mgray@hollingsworthllp.com 1 HOLLINGSWORTH LLP 1350 I St. NW Washington, DC 20005 2018L010744 (202) 898-5800 Counsel for Sterigenics U.S., LLC, Sotera Health LLC, Bob Novak, Roger Clark, and FILED DATE: 10/3/2022 6:32 PM GTCR LLC /s/ Philip Ehrlich One of the Attorneys for GTCR LLC