IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

Susan Kamuda and Edward Kamuda,

Plaintiffs,

v. Sterigenics U.S., LLC; Sotera Health, LLC; Bob Novak; Roger Clark; and GTCR, LLC;

Defendants.

No. 18 L 10475 Consolidated for discovery with: 18 L 10744 Teresa Fornek; 18 L 11004 Shawn Fornek; 18 L 11252 Anita Govic; 18 L 11939 Heather Schumacher; 19 L 9163 George Vessol; 19 L 9167 Carol Ray; 19 L 9169 Dawn Paganelli; 19 L 9170 Stephanie Lucak; 19 L 9171 Lisa Besch; 19 L 9173 John Lebel; 19 L 9176 Dorothy Beres; 19 L 9177 Judith Hall; 19 L 9178 Patricia Watt; 19 L 9179 Angie Kostopoulos-Andrews; 19 L 9181 Jana Conev; 19 L 9182 Justin Schoenhardt; 19 L 9189 Gerardo Chacin; 19 L 9190 Sandra Allen; 19 L 9196 Arkadiusz Suska; 19 L 9197 Stacey Guido; 19 L 9198 Susan Schemmer; 19 L 9200 Barbara Carkhuff; 19 L 9202 Shirley Ruck; 19 L 9205 Arthur Schmid; 19 L 9206 Denise Baum; 19 L 9207 Jeanne Hochhalter; 19 L 9213 Lee Schramm; 19 L 9214 Susan Pedersen; 19 L 9215 Kristina Janulis; 19 L 9216 Halina Jajic; 19 L 9362 Robert Stafford; 19 L 9454 Gina LaPapa; 19 L 9508 Ivan Harrison III; 19 L 9528 David Gaddis; 19 L 9732 Helen Ramos; 19 L 11510 Sarah Sophie; 19 L 11682 Anne Cahill; 19 L 13486 Loretta Wawak;

FILED4/28/2020 6:15 PMDOROTHY BROWNCIRCUIT CLERKCOOK COUNTY, IL2018L010475

9159337

19 L 13488 Candace Owens; 19 L 13493 Donna DePaolo Engelsman; 19 L 13517 Laura Carbray; 19 L 13518 Janice Bielaga; 19 L 13522 Laura Duran; 19 L 13537 Jan Cheng; 19 L 13538 Ryan Feeney; 19 L 13539 Ada Garro; 19 L 13540 Rose Marth; 19 L 13541 John Chlada; 19 L 13544 LaTangie Young; 19 L 13545 Rajini Mady; 19 L 13546 Nicolas Brinias; 19 L 13550 Virginia Janis; 19 L 13551 Deborah Faulkner; 19 L 13552 Delores Lombardo; 19 L 13554 Cathy Lou Pearson; 19 L 13562 Karen Kostrzewa; 19 L 13568 Phyllis Martin; 19 L 13575 Pam Paziotopoulous; 19 L 13576 Stan Czyzon; 19 L 13857 Arun Ohri; 19 L 13860 Patricia Vanhal; and 19 L 14265 Mary Eskey

Calendar R Judge Christopher E. Lawler

SOTERA HEALTH LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED MASTER COMPLAINT

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TABLE OF CONTENTS Page

INTRODUCTION .......................................................................................................................... 1

PROCEDURAL HISTORY............................................................................................................ 2

LEGAL STANDARD ..................................................................................................................... 2

ARGUMENT .................................................................................................................................. 3

I. PLAINTIFFS FAIL TO ALLEGE SUFFICIENT FACTS TO DISREGARD THE SEPARATE CORPORATE EXISTENCE OF SOTERA HEALTH. ................................ 3

II. PLAINTIFFS FAIL TO ALLEGE SUFFICIENT FACTS TO SUPPORT ANY CLAIM FOR INDEPENDENT TORTIOUS CONDUCT BY SOTERA HEALTH. ...................... 8

A. Plaintiffs’ Collective Pleadings About “Sterigenics” (Defined to Include Sotera Health) Are Improper and Should Be Disregarded. ................................................ 8

B. Plaintiffs’ Allegations Provide No Basis for Any Finding of Tortious Conduct by Sotera Health—a Required Element for Each of Their Counts. ............................. 9

C. Plaintiffs’ Allegations Provide No Basis for Any Finding of a Causal Connection Between Sotera Health’s Actions and Plaintiffs’ Alleged Injuries—a Required Element for Each of Their Counts. ....................................................................... 19

III. PLAINTIFFS’ CLAIM FOR WILLFUL AND WANTON CONDUCT FAILS AS A MATTER OF LAW (COUNT XI). .................................................................................. 21

CONCLUSION ............................................................................................................................. 21

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TABLE OF CASES

Page(s)

Bakes v. St. Alexius Med. Ctr., 2011 Ill. App. (1st) 101646 ......................................................................................................14

Bank of Am., N.A. v. Knight, 725 F.3d 815 (7th Cir. 2013) .....................................................................................................9

Brainerd v. First Lake Cty. Nat’l Bank of Libertyville, 109 Ill. App. 2d 251 (2d Dist. 1969) ..........................................................................................8

Campos v. PB Prods. N. Am., Inc., No. 13 CV 9038, 2014 U.S. Dist. Lexis 159242 (N.D. Ill. Nov. 12, 2014).............................21

Carrizales v. Rheem Mfg. Co., 226 Ill. App. 3d 20 (1st Dist. 1991) .........................................................................................18

Chamberlain Grp., Inc. v. Techtronic Indus. N. Am., Inc., No. 16 CV 06113, 2017 U.S. Dist. Lexis 157301 (N.D. Ill. Sept. 26, 2017) ............................9

Chandler v. Ill. Central R.R. Co., 207 Ill. 2d 331 (2003) ................................................................................................................2

Chaveriat v. Williams Pipe Line Co., No. 94 C 0750, 1994 U.S. Dist. Lexis 15082 (N.D. Ill. Oct. 18, 1994) ..................................12

In re Chicago Flood Litig., 176 Ill. 2d 179 (1997) ..................................................................................................11, 12, 13

Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004) ...................................................................................................... passim

City of Bloomington, Ind. v. Westinghouse Elec. Corp., 891 F.2d 611 (7th Cir. 1989) ...................................................................................................12

Copass v. Ill. Power Co., 211 Ill. App. 3d 205 (4th Dist. 1991) .......................................................................................15

Cosgrove Distrib., Inc. v. Haff, 343 Ill. App. 3d 426 (3d Dist. 2003) ..........................................................................................4

Curlett v. Madison Indus. Servs. Team, Ltd., 863 F. Supp. 2d 357 (D. Del. 2012) ...........................................................................................4

Dvorak v. Primus Corp., 168 Ill. App. 3d 625 (2d Dist. 1988) ........................................................................................17

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Flores v. Santiago, 2013 Ill. App. (1st) 122454 ................................................................................................14, 20

Forsythe v. Clark USA, Inc., 224 Ill. 2d 274 (2007) ........................................................................................................5, 6, 7

Ganton Techs., Inc. v. Quadion Corp., 834 F. Supp. 1018 (N.D. Ill. 1993) ..........................................................................................12

Glowacki v. Moldtronics, Inc., 264 Ill. App. 3d 19 (2d Dist. 1994) ....................................................................................14, 15

Great Am. Ins. Co. of N.Y. v. Heneghan Wrecking & Excavating Co., 2015 Ill. App. (1st) 133376 ......................................................................................................12

Hanson v. Hyatt Corp., 196 Ill. App. 3d 618 (5th Dist. 1990) .......................................................................................17

Jackson v. S. Holland Dodge, Inc., 197 Ill. 2d 39 (2001) ..................................................................................................................3

Kozak v. Armstrong World Indus., Inc., 213 Ill. App. 3d 1061 (4th Dist. 1991) .......................................................................................9

Krywin v. Chicago Transit Auth., 238 Ill. 2d 215 (2010) ..............................................................................................................21

Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) ..............................................................................................................15

McNerney v. Allamuradov, 2017 Ill. App. (1st) 153515 (2017) ..........................................................................................15

Mt. Zion Bank & Trust Consol. Commnc’ns, Inc., 169 Ill. 2d 110 (1995) ..............................................................................................................16

Nelson by Tatum v. Commonwealth Edison Co., 124 Ill. App. 3d 655 (2d Dist. 1984) ........................................................................................13

Norabuena v. Medtronic, Inc., 2017 Ill. App. (1st) 162928 ......................................................................................................19

Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072 (2d Dist. 1993) ......................................................................................14

People of the State of Illinois et al. v. Sterigenics U.S., LLC, No. 2018 CH 001329 (18th Jud. Cir. Aug. 30, 2019) ..............................................................11

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Rabel v. Ill. Wesleyan Univ., 161 Ill. App. 3d 348 (4th Dist. 1987) ............................................................................... passim

RehabCare Grp. E., Inc. v. CC Care, LLC, No. 15 C 10876, 2016 U.S. Dist. Lexis 59385 (N.D. Ill. May 4, 2016) ....................................9

Retzler v. Pratt and Whitney Co., 309 Ill. App. 3d 906 (1st Dist. 1999) .........................................................................................4

S. Side Bank v. T.S.B. Corp., 94 Ill. App. 3d 1006 (1st Dist. 1981) .........................................................................................5

Santora v. Starwood Hotel & Resorts Worldwide, Inc., No. 05 C 6391, 2007 U.S. Dist. Lexis 77046 (N.D. Ill. Oct. 16, 2007) ....................................7

Simpkins v. CSX Transp., Inc., 2012 IL 110662 ........................................................................................................................15

Smith v. Eli Lilly & Co., 137 Ill. 2d 222 (1990) ..............................................................................................................20

Sorkin v. Blackman, Kallick & Co., 184 Ill. App. 3d 873 (1st Dist. 1989) .......................................................................................21

Sparks v. Starks, 367 Ill. App. 3d 834 (1st Dist. 2006) .......................................................................................21

Ted Harrison Oil Co. v. Dokka, 247 Ill. App. 3d 791 (4th Dist. 1993) .........................................................................................4

Teter v. Clemens, 112 Ill. 2d 252 (1986) ................................................................................................................3

Traube v. Freund, 333 Ill. App. 3d 198 (5th Dist. 2002) .......................................................................................20

U.S. v. Bestfoods, 524 U.S. 51 (1998) .....................................................................................................................4

Vill. of DePue, Ill. v. Viacom Int’l, Inc., 632 F. Supp. 2d 854 (C.D. Ill. 2009) .......................................................................................10

Westmeyer v. Flynn, 382 Ill. App. 3d 952 (1st Dist. 2008) .........................................................................................4

Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994) ..............................................................................................................21

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Pursuant to 735 ILCS 5/2-615 (“Section 2-615”), Defendant Sotera Health LLC (“Sotera

Health”) moves to dismiss Counts VIII through XIV in Plaintiffs’ First Amended Master

Complaint (“FAMC”)—all of the counts brought against it—for failure to state a legally

cognizable claim.

INTRODUCTION

Plaintiffs allege that they were injured by regulated and permitted levels of ethylene

oxide (“EtO”) emissions from a sterilization facility in Willowbrook, Illinois. That facility is

operated by Defendant Sterigenics U.S., LLC (“Sterigenics U.S.”), which uses EtO to sterilize a

wide range of critical medical devices and equipment, including wound dressings, stents,

surgical kits, medical gowns, and ventilators, ensuring that they are free from dangerous and

potentially deadly organisms prior to patient and healthcare use. Defendant Sotera Health, the

movant here, is the sole member (parent) of Sterigenics U.S. Sotera Health does not own or

operate the Willowbrook facility. Rather, the facility is owned and operated by Sterigenics U.S.

Likewise, Sotera Health does not use EtO and it does not emit EtO. Nevertheless, Sotera Health

was dragged into this litigation in a transparent ploy by Plaintiffs to enlarge the pool of potential

deep pockets.

Plaintiffs appear to pursue claims against Sotera Health both individually and through

some unarticulated theory of corporate liability, but fail to state a claim against Sotera Health

under either approach. Plaintiffs’ 76-page FAMC includes only sparse references to Sotera

Health: Sterigenics U.S. is a subsidiary of Sotera Health, FAMC ¶ 12; Sotera Health performed

certain ordinary “functions” as a parent company, id. ¶ 15; some individuals have responsibilities

for both Sotera Health and Sterigenics U.S., id. ¶ 17; a private equity trust acquired Sotera

Health, id. ¶ 20; and Sotera Health made a cash distribution to its investors, id. ¶ 115(c).

Plaintiffs’ FAMC, however, connects none of those allegations to the regulated and permitted

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emission of EtO from the Sterigenics U.S. Willowbrook facility that is alleged to have caused

Plaintiffs’ injuries; nor does the FAMC allege that any of these actions by Sotera Health failed to

meet an identified standard of care. These irrelevant and untethered allegations cannot

conceivably constitute any sort of tortious conduct by Sotera Health.

To the extent Plaintiffs’ claims against Sotera Health are based solely on its role as

Sterigenics U.S.’s parent company, such an approach violates long-established law vigorously

protecting distinctions between corporate entities, and should be rejected. Indeed, Plaintiffs have

not explicitly invoked the application of any corporate liability theory (likely because they

recognize the weakness of any such theory); nor have they provided any factual support therefor.

Plaintiffs have now had almost two years and two voluminous complaints to attempt to

articulate legally sufficient allegations against Sotera Health. They have failed. Plaintiffs’ claims

against Sotera Health should be dismissed with prejudice pursuant to Section 2-615 for failure to

state a claim.

PROCEDURAL HISTORY

Sotera Health refers to and incorporates by reference the Procedural History section of

Sterigenics U.S., LLC’s Memorandum in Support of Its Motion to Dismiss Plaintiffs’ First

Amended Master Complaint, pp. 5–6, filed concurrently herewith.

LEGAL STANDARD

A motion to dismiss “under section 2-615 of the Code (735 ILCS 5/2-615) challenges the

legal sufficiency of the complaint by alleging defects on its face.” Chicago v. Beretta U.S.A.

Corp., 213 Ill. 2d 351, 364 (2004). “Because Illinois is a fact-pleading jurisdiction, a pleading

must be both legally and factually sufficient.” Chandler v. Ill. Central R.R. Co., 207 Ill. 2d 331,

348 (2003). “It must assert a legally recognized cause of action and it must plead facts which

bring the particular case within that cause of action.” Id. (emphasis added). See also Rabel v. Ill.

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Wesleyan Univ., 161 Ill. App. 3d 348, 354 (4th Dist. 1987) (“[A] complaint must allege facts

which, when considered together, establish the cause of action which the plaintiff seeks to

state.”). Based on this “heavier burden on the plaintiff, . . . a complaint that would survive a

motion to dismiss in a notice-pleading jurisdiction might not do so in a fact-pleading

jurisdiction.” Beretta, 213 Ill. 2d at 368.

Moreover, “mere conclusions of law, argumentative matter, or conclusions of fact

unsupported by allegations of specific facts upon which such conclusions rest, are irrelevant and

must be disregarded by the trial court in ruling on a motion to dismiss” under Section 2-615.

Rabel, 161 Ill. App. 3d at 354. See also Beretta, 213 Ill. 2d at 368–69 (in considering a motion to

dismiss, a court must disregard conclusions “and look only to well-pleaded facts to determine

whether they are sufficient to state a cause of action against the defendant. If not, the motion

must be granted ‘regardless of how many conclusions the count may contain and regardless of

whether or not they inform the defendant in a general way of the nature of the claim against

him.’”) (quoting Knox College v. Celotex Corp., 88 Ill. 2d 407, 426 (1981)); Jackson v. S.

Holland Dodge, Inc., 197 Ill. 2d 39, 52 (2001) (“In opposing a motion for dismissal under

section 2-615 of the Code of Civil Procedure, a plaintiff cannot rely simply on mere conclusions

of law or fact unsupported by specific factual allegations.”); Teter v. Clemens, 112 Ill. 2d 252,

256 (1986) (“Only well-pleaded facts are admitted by a motion to dismiss.”) (emphasis added).

ARGUMENT

I. PLAINTIFFS FAIL TO ALLEGE SUFFICIENT FACTS TO DISREGARD THE SEPARATE CORPORATE EXISTENCE OF SOTERA HEALTH.

Plaintiffs’ legal theory of liability for Sotera Health is difficult to discern from the

FAMC, if it exists at all. Plaintiffs acknowledge—as they should—that Defendants Sotera Health

and Sterigenics U.S. are distinct, separately-formed limited liability companies, FAMC ¶¶ 12–

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13, 14. Thus any effort by Plaintiffs to hold Sotera Health liable simply because it is the parent of

Sterigenics U.S. runs contrary to long-standing rules respecting the separate corporate existence

of these entities. See DEL. CODE ANN. tit. 6, § 18-303(a);1 see also Westmeyer v. Flynn, 382 Ill.

App. 3d 952, 960 (1st Dist. 2008) (applying Delaware law, “the members of an LLC are not

generally liable for the obligations of the LLC”).2 Indeed, “[i]t is a general principle of corporate

law deeply ‘ingrained in our economic and legal systems’ that a parent corporation (so-called

because of control through ownership of another corporation’s stock) is not liable for the acts of

its subsidiaries.” U.S. v. Bestfoods, 524 U.S. 51, 61 (1998) (internal citation omitted). See also

Curlett v. Madison Indus. Servs. Team, Ltd., 863 F. Supp. 2d 357, 363 (D. Del. 2012) (“Mere

ownership of a business does not establish the liability of a parent company for the actions of its

subsidiary.”). To the extent that Plaintiffs rely on some unexplained and unpled theory of

corporate liability to maintain a cause of action against Sotera Health, their FAMC fails to state a

claim.

While Plaintiffs use “buzzwords” related to a possible corporate-veil piercing theory, see

FAMC ¶¶ 17, 166 (“complete unity of interest” and “instrumentality”), Plaintiffs do not actually

ask this Court to pierce the corporate veil between Sterigenics U.S. and Sotera Health. In order to

1 “Except as otherwise provided by this chapter, the debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the limited liability company, and no member or manager of a limited liability company shall be obligated personally for any such debt, obligation or liability of the limited liability company solely by reason of being a member or acting as a manager of the limited liability company.” DEL. CODE ANN. tit. 6, § 18-303(a) (emphasis added). 2 Illinois courts look to the law of the state of incorporation when determining whether to disregard the corporate form, and therefore, the law of Delaware—where Sterigenics U.S. is organized—applies to this inquiry. FAMC ¶ 12; Westmeyer v. Flynn, 382 Ill. App. 3d 952, 957 (1st Dist. 2008) (Delaware law applied to piercing the corporate veil issues where limited liability company was organized in Delaware). Applying Delaware law instead of Illinois law does not alter the outcome because “Delaware law is almost identical to Illinois law as it relates to” efforts to pierce the corporate veil. Retzler v. Pratt and Whitney Co., 309 Ill. App. 3d 906, 917 (1st Dist. 1999). See also Cosgrove Distrib., Inc. v. Haff, 343 Ill. App. 3d 426, 429 (3d Dist. 2003) (Illinois courts are “reluctant to pierce the corporate veil”); Ted Harrison Oil Co. v. Dokka, 247 Ill. App. 3d 791, 795 (4th Dist. 1993) (under Illinois law, “piercing the corporate veil is a task which courts should undertake reluctantly”).

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disregard corporate distinctions, Plaintiffs must, at the very least, expressly seek that relief in

their pleading. See S. Side Bank v. T.S.B. Corp., 94 Ill. App. 3d 1006, 1010 (1st Dist. 1981) (a

party “who seeks to have the courts apply an exception to the rule of separate corporate

existence . . . must seek that relief in his pleading”) (emphasis added). Plaintiffs fail to meet

even this most basic pleading burden as they fail to allege any legal theory or doctrine under

which Sotera Health could be liable in tort for the alleged acts or omissions of Sterigenics U.S.

Plaintiffs’ FAMC also hints at claims against Sotera Health premised on the theory of

corporate parent liability known as “direct participant liability.” FAMC ¶¶ 14–15. Under this

“very narrow exception,” a parent entity may be held liable as a “direct participant” only if the

“parent company mandated an overall business and budgetary strategy and carried that strategy

out by its own specific direction or authorization . . . in disregard for the interests of the

subsidiary.” Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 290 (2007) (emphasis added). In order

to adequately plead direct participant liability—which Illinois courts have applied to negligence

theories only, and not to other torts more broadly—the allegations must include: (1) “a parent’s

specific direction or authorization of the manner in which an activity is undertaken” and

(2) foreseeability that injury would result. Id. (emphasis added). Moreover, to assign liability to a

parent entity as a direct participant, the parent entity’s activities must “surpass[] the control

exercised as a normal incident of ownership” such that the subsidiary is “no longer free to utilize

[its] own expertise.” Id. at 290–91. “[T]he critical question is whether, in degree and detail,

actions directed to the facility . . . are eccentric under accepted norms of parental oversight of

subsidiary’s facility.” Id. at 283–84 (emphasis added) (citing Bestfoods, 524 U.S. at 71–72).

At the outset, Plaintiffs’ bald assertion that Sotera Health “participated directly” in the

operation of the Willowbrook facility, FAMC ¶¶ 14–15, 166, 172, 176, must be disregarded as a

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legal conclusion without any factual support. See Rabel, 161 Ill. App 3d at 354; Beretta, 213 Ill.

2d at 368—69. While Plaintiffs then list various “functions” in which they allege Sotera Health

participated, FAMC ¶ 15, the activities that Sotera Health allegedly undertook do not “surpass[]

the control exercised as a normal incident of ownership” or rise to the level of “eccentric.”

Forsythe, 224 Ill. 2d at 290–91. For example, Plaintiffs allege that Sotera Health was responsible

for creating unidentified and vague safety procedures, including a “program to monitor the

physical condition of process equipment,” FAMC ¶ 15(f), “procedures for notifying local, state

and federal emergency planning and response agencies about chemical spills,” id. ¶ 15(k), “plans

to address accidental release,” id. ¶ 15(m), and operator training, id. ¶¶ 15(c)-(d), (l)–(m). Even if

there were factual support for these allegations, Illinois courts do not consider “articulation of

general policies and procedures” sufficient grounds to assign direct participant liability.

Forsythe, 224 Ill. 2d at 303 (special concurrence); see also id. at 293 (“to establish liability,

plaintiffs must establish more than the fact that [the parent] made policy decisions and

supervised subsidiary activities”).

Similarly unavailing are Plaintiffs’ allegations that Sotera Health oversaw compliance at

the Sterigenics U.S. Willowbrook facility by “[c]onducting hazard reviews” and “safety audits,”

FAMC ¶¶ 15(b), (h), “[i]nvestigating incidents,” id. ¶ 15(g), and evaluating the facility’s

accident history and condition of systems and equipment, id. ¶¶ 15(e), (j). Under Illinois law,

“monitoring of the subsidiary’s performance” does not transform a parent entity into a direct

participant. Forsythe, 224 Ill. 2d at 303 (“[C]onduct that is entirely ‘consistent with the parent’s

investor status’ does not pose a problem.”) (citing Bestfoods, 524 U.S. at 69).

Additionally, Plaintiffs’ allegations that Sotera Health undertook administrative tasks

related to the permitting process, FAMC ¶¶ 15(n)–(p), communicated with government and

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regulatory bodies, id. ¶¶ 15(q)–(s), (u), (z), and decided to expand the Sterigenics U.S.

Willowbrook facility’s capacity to match customer demand, id. ¶¶ 15(w), (x), are innocuous and

routine for a parent entity. These actions cannot possibly constitute the required pleading that

Sotera Health “surpass[ed] the control exercised as a normal incident of ownership.” Forsythe,

224 Ill. 2d at 290. See also id. at 304–05 (“[R]arely will a parent company that generally

observes corporate formalities step outside the proper role of a parent to so pervasively interfere

with the operations of the subsidiary that it can be viewed as directly inflicting harm.”).3

Even if any of these regular-course activities could possibly be viewed as so “eccentric”

as to completely overtake Sterigenics U.S.’s own expertise and obligations, Plaintiffs have not

causally connected any of these activities to their alleged injuries arising out of the regulated and

permitted emission of EtO. Santora v. Starwood Hotel & Resorts Worldwide, Inc., No. 05 C

6391, 2007 U.S. Dist. Lexis 77046, at *19 (N.D. Ill. Oct. 16, 2007) (finding detailed standards

created by the parent entity insufficient to establish direct participant liability: “Without any

allegation that the specific requirements of the operating standards contributed to plaintiff’s

injury, he cannot maintain a claim for direct participation liability . . . .”).

Plaintiffs have provided no basis to find Sotera Health liable as the parent company of

Sterigenics U.S., and any claims based on such a theory must be dismissed.

3 Plaintiffs’ complaint is littered with allegations that Sterigenics U.S. and “its corporate investors and parents” paid dividends and distributions to shareholders—well before any litigation was filed—in order to “funnel[] away” corporate assets with the purpose of “escap[ing] accountability” to Plaintiffs. FAMC ¶¶ 8, 113–117. Such assertions are bereft of any factual basis and wholly unrelated to any tort claim pled in this case. Plaintiffs’ conclusion about the intent and motivation behind the alleged financial transactions is an untethered and fictitious narrative that has no place in the FAMC, particularly in a fact-pleading jurisdiction such as this one. Rabel, 161 Ill. App. 3d at 354. Such allegations also do not advance any theory of “direct participant liability.”

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II. PLAINTIFFS FAIL TO ALLEGE SUFFICIENT FACTS TO SUPPORT ANY CLAIM FOR INDEPENDENT TORTIOUS CONDUCT BY SOTERA HEALTH.

To the extent that Plaintiffs are attempting to impose liability on Sotera Health for its

own actions—as opposed to the alleged actions of Sterigenics U.S.—such an effort is equally

unavailing. Plaintiffs’ allegations concerning Sotera Health’s own actions fall into one of two

categories—(1) unsupported legal conclusions pled collectively about Sotera Health and

Sterigenics together, as if they were one entity, and (2) irrelevant allegations about Sotera

Health’s general business “functions” as a parent—neither of which is sufficient to support a

legally cognizable cause of action.

A. Plaintiffs’ Collective Pleadings About “Sterigenics” (Defined to Include Sotera Health) Are Improper and Should Be Disregarded.

Despite acknowledging that Defendant Sterigenics U.S. and Sotera Health are distinct,

separately-formed entities, Plaintiffs consistently attempt to treat them as one by collapsing

“Defendant Sterigenics U.S., LLC and Defendant Sotera Health, LLC and their respective

predecessors” into a single, fictional entity referred to throughout the FAMC as “Sterigenics.”

FAMC ¶ 1 n. 2. In 49 of 122 paragraphs of the FAMC, Plaintiffs lob collective allegations

against this fictional conglomerate instead of setting forth the conduct that each specific

defendant is accused of doing and specifying how the allegation relates to Plaintiffs’ specific

claims against a particular Defendant. See FAMC ¶¶ 1–6, 8–9, 11, 23, 32–33, 44, 52, 54, 58–

60, 66, 72, 77–79, 82, 85–87, 89–102, 106–08, 111–12, 116, 119–20.

Allegations that apply indiscriminately to multiple defendants fail to satisfy Illinois’s

fact-pleading standard. See, e.g., Brainerd v. First Lake Cty. Nat’l Bank of Libertyville, 109 Ill.

App. 2d 251, 256 (2d Dist. 1969) (affirming trial court’s dismissal of a complaint that failed to

“specify[] the duty violated by any particular defendant” by asserting “four different causes of

action against ‘defendants’ in vague, ambiguous, [and] conclusory . . . language”). As Judge

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Easterbrook recognized in Bank of Am., N.A. v. Knight, in dismissing a complaint that made

collective allegations against “defendants,” “Liability is personal . . . . Each defendant is entitled

to know what he or she did that is asserted to be wrongful. A complaint based on a theory of

collective responsibility must be dismissed.” 725 F.3d 815, 818 (7th Cir. 2013); see also

Chamberlain Grp., Inc. v. Techtronic Indus. N. Am., Inc., No. 16 CV 06113, 2017 U.S. Dist.

Lexis 157301, at *7, 11 (N.D. Ill. Sept. 26, 2017) (dismissing a complaint that “lumps together

all seven corporate defendants and states it will refer to them ‘collectively’ as ‘TTI’ because ‘[a]

complaint must set forth what each [corporation] is accused of doing’ and the complaint tells us

nothing about the individual actions of . . . the various TTI defendants”); RehabCare Grp. E.,

Inc. v. CC Care, LLC, No. 15 C 10876, 2016 U.S. Dist. Lexis 59385, at *16–22 (N.D. Ill. May 4,

2016) (granting a motion to dismiss because collective pleading against “Defendants” was

insufficient to state a cause of action: “a complaint based on a theory of collective responsibility

must be dismissed”) (internal quotation omitted); Kozak v. Armstrong World Indus., Inc., 213 Ill.

App. 3d 1061, 1067 (4th Dist. 1991) (recognizing plaintiffs’ burden to “apprise [each defendant]

of sufficient facts upon which to base a defense”).

Because Plaintiffs’ allegations against “Sterigenics” do not plead any specific facts as to

Sotera Health’s alleged individual actions, they must be disregarded and cannot serve as a basis

for any finding of liability as to Sotera Health.

B. Plaintiffs’ Allegations Provide No Basis for Any Finding of Tortious Conduct by Sotera Health—a Required Element for Each of Their Counts.

Once Plaintiffs’ improper collective pleadings are disregarded, the only factual

allegations that remain to support a claim of tortious conduct by Sotera Health are the

“functions” listed in Paragraph 15 of the FAMC, none of which Plaintiffs actually connect to

emissions of EtO or Plaintiffs’ alleged injuries. More importantly, Plaintiffs have not pled that

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Sotera Health undertook any of these functions negligently. While Paragraph 16 of the FAMC

alleges that Sotera Health “failed to ensure implementation adequate to keep the community

safe,” it provides no further detail. Plaintiffs do not allege any well-pled facts demonstrating that

Sotera Health owned or operated the Sterigenics U.S. Willowbrook facility, that Sotera Health

employed any employees at the Sterigenics U.S. Willowbrook facility, that Sotera Health used

EtO or conducted EtO sterilization activities, or that Sotera Health emitted EtO. The counts

against Sotera Health (Counts VIII through XIV) are nearly verbatim copies of the counts filed

against Sterigenics U.S. (Counts I through VII), again reflecting that Plaintiffs have not pled any

basis for a finding of separate and independent liability against Sotera Health.

Public Nuisance (Count XIV): In order to state a claim for public nuisance under

Illinois law, a complaint must allege facts demonstrating “the existence of a public right, a

substantial and unreasonable interference with that right by the defendant, proximate cause, and

injury.” Beretta, 213 Ill. 2d at 369. In order to demonstrate such “unreasonable interference,”

“the plaintiff must point to tortious conduct by the defendant”— here, by Sotera Health. Vill. of

DePue, Ill. v. Viacom Int’l, Inc., 632 F. Supp. 2d 854, 865 (C.D. Ill. 2009) (emphasis in original).

The only conduct upon which Plaintiffs base their public nuisance claim against Sotera Health is

“Sotera’s use and emission of EtO.” FAMC ¶ 201.

As an initial matter, Plaintiffs have not provided any factual support for the proposition

that Sotera Health—the parent company of the owner and operator of the Willowbrook facility—

was “using” and “emitting” EtO, requiring that this allegation be disregarded. Beretta, 213 Ill. 2d

at 368. Moreover, even if adequate facts of such use and emission by Sotera Health had been

alleged, conduct that is expressly authorized by the government cannot be subject to a public

nuisance claim. See REST. (2D) TORTS § 821B cmt. f. The Sterigenics U.S. Willowbrook facility

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was operated in accordance with express regulatory requirements regarding EtO emissions—the

very same emissions that Plaintiffs now attempt to label a public nuisance. As the Illinois

Attorney General and DuPage County State’s Attorney both affirmed, “[t]here is no uncertainty

about the fact that for years Sterigenics has operated in compliance with federal standards.”

People of the State of Illinois et al. v. Sterigenics U.S., LLC, No. 2018 CH 001329 (18th Jud. Cir.

Aug. 30, 2019) (Plaintiff’s Response to Villages’ Comments on Consent Order). The specific

authorization of Sterigenics U.S.’s EtO operations and emission controls by the regulators

authorized to regulate these activities—not general public nuisance law—establishes the standard

of care by which Sterigenics U.S.’s emissions at the Willowbrook facility must be assessed. For

all of the reasons explained in Section I.B. of Sterigenics U.S., LLC’s Memorandum in Support

of its Motion to Dismiss, incorporated by referenced herein, Plaintiffs have not adequately

alleged that the government-authorized operation of the Sterigenics U.S. Willowbrook facility

(and the resulting permitted emission of EtO) is a public nuisance—even if Sotera Health could

be held liable for such operation.

Ultrahazardous Activity/Strict Liability (Count XII). Illinois law recognizes the

general principle in Section 519 of the Restatement (Second) of Torts that “a defendant who

performs an abnormally dangerous or ultrahazardous activity . . . is subject to liability for

harm . . . resulting from the activity, although the defendant has exercised the utmost care to

prevent the harm.” In re Chicago Flood Litig., 176 Ill. 2d 179, 208 (1997). In determining

whether an activity is “ultrahazardous,” Illinois courts consider six factors set forth in Section

520 of the RESTATEMENT (SECOND) OF TORTS:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is

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carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.

Chicago Flood, 176 Ill. 2d at 209.

No single factor alone is sufficient to establish that an activity is ultrahazardous. Id. at

209. In general, however, “[u]ltrahazardous activities” are those that are inherently dangerous at

all times and cannot be rendered safe even with the exercise of care.4 Id. at 209. Illinois courts

rarely designate activities as ultrahazardous and have routinely declined to extend strict liability

to objectively dangerous activities. See City of Bloomington, Ind. v. Westinghouse Elec. Corp.,

891 F.2d 611, 617 (7th Cir. 1989) (manufacture of polychlorinated biphenyls);5 Ganton Techs.,

Inc. v. Quadion Corp., 834 F. Supp. 1018, 1020 (N.D. Ill. 1993) (chemical cleanup activities);

Chicago Flood, 176 Ill. 2d at 211–12 (pile driving); Great Am. Ins. Co. of N.Y. v. Heneghan

Wrecking & Excavating Co., 2015 Ill. App. (1st) 133376, ¶ 38 (building demolition). “Whether

an activity is abnormally dangerous presents a question of law in Illinois,” Chaveriat v. Williams

Pipe Line Co., No. 94 C 0750, 1994 U.S. Dist. Lexis 15082, at *14 (N.D. Ill. Oct. 18, 1994), and

“[t]he burden of coming forward with facts sufficient to support a theory of abnormally

dangerous activity rests with the plaintiffs,” id. at *17 (dismissing count for strict liability

brought under abnormally dangerous activity theory).

The only activities that Plaintiffs allege Sotera Health undertook are the mundane,

administrative tasks of a parent entity: developing procedures and protocols, developing and

implementing training, engaging in compliance oversight, managing the permitting process,

communicating with government and regulatory bodies, and making business decisions related to

4 The terms “abnormally dangerous” and “ultrahazardous” are used interchangeably by Illinois courts when discussing strict liability. See, e.g., Chicago Flood, 176 Ill. 2d at 209.

5 This case was decided under Indiana law. However, the court acknowledged that “there is no indication that Indiana law differs” from Illinois law on this issue. Bloomington, 891 F.2d at 616.

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facility capacity. FAMC ¶ 15. None of these activities, however, could conceivably be construed

as “ultrahazardous” such that they create a “high degree of risk of some harm.” Chicago Flood,

176 Ill. 2d at 209, quoting REST. (2D) TORTS § 520.

Even assuming the truth—contrary to the weight of authority—of Plaintiffs’ unsupported

and conclusory allegation that “[t]he use and emission of EtO from [Sterigenics US’s

Willowbrook] facilit[y] constitutes an ultrahazardous activity,” FAMC ¶ 185, the FAMC is

devoid of any actual facts demonstrating that (1) Sotera Health under took such an activity, and

(2) the activity cannot be rendered safe with the exercise of due care. Instead, Plaintiffs tick

through the six factors required by Section 520 in a perfunctory and conclusory fashion. FAMC

¶¶ 186–88. The rote recitation of legal conclusions is insufficient to state a claim under Illinois

law. See Beretta, 213 Ill. 2d at 368 (in assessing a complaint “a court must disregard the

conclusions that are pleaded and look only to well-pleaded facts to determine whether they are

sufficient to state a cause of action”).

Even if the Court were inclined to accept Plaintiffs’ conclusory statements as true—

which it should not—the operation of an EtO sterilization facility is not an ultrahazardous

activity particularly where, as here, the Sterigenics U.S. Willowbrook facility operated in full

compliance with strict safety regulations and permits. See Nelson by Tatum v. Commonwealth

Edison Co., 124 Ill. App. 3d 655, 667 (2d Dist. 1984) (“[T]he concept of absolute liability is

reserved only for abnormally dangerous activities for which no degree of care can truly provide

safety.”). This position is further explained in Section III of Sterigenics U.S., LLC’s

Memorandum in Support of Its Motion to Dismiss, which is incorporated herein by reference.

Civil Battery (Count XIII). To maintain a civil battery claim, Plaintiffs must adequately

allege that Sotera Health “(a) [ ] act[ed] intending to cause a harmful or offensive contact with

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the person . . . or an imminent apprehension of such contact, and (b) a harmful [or offensive]

contact with the person of the other directly or indirectly result[ed].” Flores v. Santiago, 2013 Ill.

App. (1st) 122454, ¶ 14; see also Bakes v. St. Alexius Med. Ctr., 2011 Ill. App. (1st) 101646,

¶ 22 (same), citing REST. (2D) TORTS § 13. Because Plaintiffs do not allege that Sotera Health

committed an unlawful act, Sotera Health’s intent is “material” to the viability of this claim.

Glowacki v. Moldtronics, Inc., 264 Ill. App. 3d 19, 22 (2d Dist. 1994) (where “the party

inflicting the injury is not doing an unlawful act, the intent to harm is material”).

Plaintiffs’ battery claim is deficient in several important respects. As an initial matter,

Plaintiffs have not provided any factual support for the proposition that it was Sotera Health—

the parent company of the owner and operator of the Willowbrook facility—that was

“intentionally emitting” EtO, FAMC ¶ 195, requiring that this allegation be disregarded. Beretta,

213 Ill. 2d at 368. Equally fatal to their battery claim, Plaintiffs do not allege that Sotera Health

specifically intended to bring EtO into contact with them. Instead, Plaintiffs merely allege that

Sotera Health “intentionally emitted EtO into the air despite its knowledge that it would contact”

those in the Willowbrook area generally. FAMC ¶ 195 (emphasis added). Notably absent is any

specific, factual support for Plaintiffs’ conclusion that Sotera Health knew that EtO emissions

would contact the individual Plaintiffs in this lawsuit, let alone that Sotera Health specifically

intended that they do so. See Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1085–86 (2d Dist.

1993) (plaintiff’s battery claims were properly dismissed for failing to sufficiently allege “that

any of the office’s smokers intended that [plaintiff] be exposed to their smoke” even though it

was alleged that the smokers “continued to smoke after being informed that [plaintiff] suffered ill

effects from secondhand smoke”).

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Plaintiffs also fail to allege that Sotera Health specifically intended to harm them.

Plaintiffs’ vague generalization that Sotera Health “knew” of the alleged dangers associated with

EtO, FAMC ¶ 192, falls far short of a legally sufficient allegation that Sterigenics U.S. intended

to harm Plaintiffs. This pleading deficiency is fatal to their battery claim. See, e.g., Glowacki,

264 Ill. App. 3d at 22–23 (affirming lower court’s decision to dismiss plaintiff’s battery claim for

absence of “support for the conclusion that defendants specifically intended to injure plaintiff”);

Copass v. Ill. Power Co., 211 Ill. App. 3d 205, 212–13 (4th Dist. 1991) (battery requires

“specific-intent-to-injure” rather than the lower standard of “substantial certainty that injury

w[ill] result”).

Finally, while Plaintiffs’ civil battery claim is based solely on allegations of discharge of

regulated and permitted EtO emissions by the Sterigenics U.S. Willowbrook facility, an

expansion of battery to cover any company that emits or discharges in compliance with permits

and regulations has no support in Illinois law and has been expressly rejected by other courts, as

discussed in Section II of Sterigenics U.S., LLC’s Memorandum in Support of its Motion to

Dismiss, which is hereby incorporated by reference.

Negligence, Negligent Training, and Negligent Supervision (Counts VIII, IX, and X).

To adequately plead a claim for negligence under Illinois law, a complaint must contain well-

pled facts to support (1) the existence of a duty owed by the defendant to the plaintiff; (2) a

breach of that duty; and (3) injury proximately caused by the breach. Marshall v. Burger King

Corp., 222 Ill. 2d 422, 429–30 (2006); see also McNerney v. Allamuradov, 2017 Ill. App. (1st)

153515, ¶ 61 (2017) (outlining similar elements for negligent supervision or training). While all

individuals and entities owe a standard of ordinary care, this obligation does not create a general

“duty to the world at large.” Simpkins v. CSX Transp., Inc., 2012 IL 110662, ¶ 19. Instead,

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individuals only have a duty to protect others from a particular harm if the individual’s course of

conduct creates a foreseeable risk of that particular harm. Id. Conversely, “[i]f the injury was not

reasonably foreseeable, no duty can exist.” Id. at 24. In order to adequately plead a cause of

action for negligence, “[i]t is not sufficient that the complaint merely allege a duty, rather the

pleader must allege facts from which the law will raise a duty.” Rabel, 161 Ill. App. 3d at 356.

“Whether such a duty exists is a question of law, the determination of which must be resolved by

the court. If no duty exists, it is axiomatic that no recovery can occur.” Mt. Zion Bank & Trust

Consol. Commnc’ns, Inc., 169 Ill. 2d 110, 116 (1995) (internal citation omitted).

Plaintiffs’ negligence claims fail to satisfy basic pleading requirements because they fail

to articulate the duty of care to which Sotera Health—as the parent of Sterigenics U.S.—was

purportedly subject and then purportedly breached. To be sure, Plaintiffs purport to describe the

administrative roles, common to a parent entity, which Sotera Health allegedly filled. FAMC

¶ 15. Plaintiffs allege (in unidentified and vague language) that Sotera Health was involved in

creating and implementing various safety procedures, corporate training programs, conducting

compliance oversight, communicating with government and regulatory bodies, and deciding to

expand the Sterigenics U.S. Willowbrook facility to meet increased customer demand. Id.

Plaintiffs then allege that Sotera Health was required to “ensure implementation [of the functions

listed in ¶ 15 of the FAMC] adequate to keep the community safe.” FAMC ¶ 16. But Plaintiffs

do not explain how the functions were implemented in an unsafe way, or how they should have

been changed to “keep the community safe.” Similarly, while Plaintiffs generally assert that

Sotera Health “fail[ed] to ensure that the facilities were operated with ordinary care for the

health, safety, and well-being of Plaintiffs,” id. ¶ 169 (focusing on the emissions from the

Sterigenics U.S. Willowbrook facility), they make essentially the same allegation against

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Sterigenics U.S., id. ¶ 128. And Plaintiffs allege that “Sterigenics U.S. and Sotera declined to

take measures to improve their emissions control systems due to the debt and dividend payments

orchestrated by GTCR,” id. ¶ 122, without providing any clarity as to what emission control

technology Sotera Health should have been investing in or for whom, given that the emissions

control equipment installed at Sterigenics U.S. ensured full compliance with all federal and state

standards. (Indeed, Plaintiffs’ negligence allegations against Sotera Health (Counts VIII–X) are

almost verbatim of the allegations against Sterigenics U.S. (Counts I–III)).6) As such, it is

impossible to ascertain from the FAMC precisely what Sotera Health independently is alleged to

have done, or not done, that might have breached any theoretical duty owed to Plaintiffs.

Plaintiffs also allege that Sotera Health “had a duty” to exercise ordinary care and

properly train and supervise the employees at the Sterigenics U.S. Willowbrook facility (not

Sotera Health’s own employees). FAMC ¶¶ 172, 176. But such boilerplate legal conclusions—

particularly as applied to a parent company that is not alleged even to have employed the

workers at the facility—are exactly the sort of deficient pleadings that Illinois courts routinely

dismiss. See e.g., Dvorak v. Primus Corp., 168 Ill. App. 3d 625, 634 (2d Dist. 1988) (affirming

dismissal of complaint that “summarily state[d] only that [defendant] negligently failed to

require [its alleged agent] to employ specific safety procedures or devices”); Hanson v. Hyatt

Corp., 196 Ill. App. 3d 618, 623 (5th Dist. 1990) (dismissing complaint where plaintiff alleged

conclusion but not underlying factual support and noting that “[a] court is bound to consider only

those facts well pleaded”).

6 For this reason, Sotera Health also incorporates Section IV of Sterigenics U.S., LLC’s Memorandum in Support of its Motion to Dismiss, discussing Plaintiffs’ failure to adequately describe the standard of care that they allege governed—but was not met—at the Sterigenics U.S. Willowbrook Facility.

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Finally, Plaintiffs’ claims that Sotera Health had a duty to warn Plaintiffs and community

members, FAMC ¶ 169(e)–(g), fail primarily because Plaintiffs have not sufficiently alleged

what warning Sotera Health should have provided to prevent Plaintiffs’ alleged injuries. In

Illinois, “[a] duty to warn of a particular hazard will be imposed only where there is unequal

knowledge, either actual or constructive and the defendant knows or should know that injury

may occur if no warning is given.” Carrizales v. Rheem Mfg. Co., 226 Ill. App. 3d 20, 25 (1st

Dist. 1991). The Sterigenics U.S. Willowbrook facility operated in accordance with strict

regulatory requirements. Plaintiffs offer no facts to support their nebulous theory that, despite

Sterigenics U.S.’s full compliance with the stringent requirements imposed by the Illinois EPA

and the U.S. EPA—two agencies with the expertise and authority granted by Congress to

regulate the industrial use and emission of a multitude of chemicals, including EtO—Sotera

Health somehow had a separate duty to warn the public of potential health risks associated with

EtO. Sotera Health is not involved in the boots-on-the-ground, day-to-day operation of the

Sterigenics U.S. Willowbrook facility and was not directly involved in EtO sterilization

activities. Plaintiffs’ theory, if accepted, would require every parent entity that owns a subsidiary

involved in an industrial endeavor (even one that is highly regulated) to provide warnings (even

when the subsidiary operates in full compliance with all regulations).

Instead of clarifying what Sotera Health should have done to warn Plaintiffs and how that

warning would have prevented Plaintiffs’ alleged injuries, the FAMC primarily focuses on what

information was already publicly available. Plaintiffs admit that Sterigenics U.S. publicly

reported its emissions information from the Willowbrook Facility and that decades of such

emission data is publicly available. FAMC ¶¶ 51, 52. Specifically, Sterigenics U.S. reported its

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emissions information to USEPA, which posted that information on a public website.7 Plaintiffs

further allege that the health risks associated with EtO were researched and published by

numerous organizations, including the National Institute for Occupational Safety and Health, the

U.S. Department of Health and Human Services, the World Health Organization, OSHA, and

USEPA. FAMC ¶¶ 28–38. And Plaintiffs include a table of over two decades of the Sterigenics

U.S.’s Willowbrook facility’s publicly available emissions data. Id. ¶¶ 51, 52 (Table 1). These

allegations detailing publicly-available information on EtO, generally, and the Sterigenics U.S.

Willowbrook facility’s emissions, more specifically, serve as additional barriers to Plaintiffs’

allegation that Sotera Health should have known that an additional warning was necessary or that

additional information would have altered Plaintiffs’ behavior. This deficiency warrants

dismissal of Plaintiffs’ failure to warn claim. See, e.g., Norabuena v. Medtronic, Inc., 2017 Ill.

App. (1st) 162928, ¶ 38 (affirming dismissal of failure to warn claim where plaintiffs “failed to

sufficiently allege facts indicating that [defendant’s] acts or omissions proximately caused the

complained of injuries”).

C. Plaintiffs’ Allegations Provide No Basis for Any Finding of a Causal Connection Between Sotera Health’s Actions and Plaintiffs’ Alleged Injuries—a Required Element for Each of Their Counts.

Even if Plaintiffs had somehow adequately pled tortious conduct by Sotera Health,

which they do not, Plaintiffs’ irrelevant and conclusory allegations are insufficient to show that

any alleged tortious conduct by Sotera Health actually caused Plaintiffs’ alleged injuries. Under

Illinois law, proximate cause is required to establish Plaintiffs’ public nuisance claim, Beretta,

7 See TRI Explorer: Release Reports, United States Environmental Protection Agency, https://enviro.epa.gov/triexplorer/release_trends?p_view=COYR&trilib=TRIQ1&sort=_VIEW_&sort_fmt=1&state=17&county=17043&chemical=000075218&core_year=&industry=ALL&year=All+years&tab_rpt=1&fld=AIRLBY&fld=E1&fld=E2&fld=E3&fld=E4&fld=E41&fld=E42&fld=E5&fld=E52&fld=E53&fld=E53A&fld=E53B&fld=E54&fld=E51&fld=E51A&fld=E51B&fld=TSFDSP&fld=TSFDSP&fld=m10&fld=m41&fld=m62&fld=potwmetl&fld=m71&fld=m81&fld=m82&fld=m72&fld=m63&fld=m64&fld=m65&fld=m66&fld=m67&fld=m73&fld=m79&fld=m90&fld=m94&fld=m99&fld=RELLBY (last accessed Apr. 27, 2020).

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213 Ill. 2d at 394–95; strict liability/ultrahazardous activity claim, Traube v. Freund, 333 Ill.

App. 3d 198, 201–02 (5th Dist. 2002); civil battery claim, Flores v. Santiago, 2013 Ill. App.

(1st) 122454, ¶ 14; and negligence claim, Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 232–33

(1990).

Proximate cause encompasses two distinct requirements: (1) Cause-in-fact, which is

present “when there is a reasonable certainty that a defendant’s acts caused the injury or

damage;” and (2) legal cause, which “is established only if the defendant’s conduct is so closely

tied to the plaintiffs’ injury that he should be held legally responsible for it.” Beretta, 213 Ill. 2d

at 395 (citing Lee v. Chicago Transit Auth., 152 Ill. 2d 432, 455 (1992) and Simmons v. Garces,

198 Ill. 2d 541, 558 (2002)). Plaintiffs’ strained attempt to connect Sotera Health’s conduct to

their alleged injuries relies on conclusory and vague allegations, and is insufficient to show

either cause-in-fact or legal cause. Plaintiffs’ conclusory allegations that Sotera Health owned,

managed, and operated the Sterigenics U.S. Willowbrook facility, FAMC ¶¶ 14, 166, and used

and emitted EtO, FAMC ¶ 201, must similarly be disregarded under Illinois’s fact-pleading

standards. This leaves only Plaintiffs’ general allegations about various “functions” that Sotera

Health engaged in, FAMC ¶ 15, none of which Plaintiffs even attempt to connect in any way to

Plaintiffs’ central allegation that they were exposed to EtO emissions that caused their claimed

injuries. Indeed, Plaintiffs do not identify a single specific act or omission attributable

specifically to Sotera Health that could have been the proximate cause of Plaintiffs’ alleged

injuries.8

8 “Although proximate cause is generally a question of fact, the lack of proximate cause may be determined by the court as a matter of law where the facts alleged do not sufficiently demonstrate both cause in fact and legal cause.” Beretta, 213 Ill. 2d at 395–96 (internal citations omitted).

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III. PLAINTIFFS’ CLAIM FOR WILLFUL AND WANTON CONDUCT FAILS AS A MATTER OF LAW (COUNT XI).

Illinois does not recognize a “separate and independent tort of ‘willful and wanton’

misconduct.” Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994); see also Campos v. PB

Prods. N. Am., Inc., No. 13 CV 9038, 2014 U.S. Dist. Lexis 159242, at *20 (N.D. Ill. Nov. 12,

2014); Sparks v. Starks, 367 Ill. App. 3d 834, 837 (1st Dist. 2006). Rather, such claims are

properly used to determine the appropriate level of recoverable damages only once liability for

gross negligence has been proven. Krywin v. Chicago Transit Auth., 238 Ill. 2d 215, 235–36

(2010); see also Ziarko, 161 Ill. 2d at 276 (willful and wanton conduct is grounds for punitive

and compensatory damages); Sorkin v. Blackman, Kallick & Co., 184 Ill. App. 3d 873, 879–80

(1st Dist. 1989) (“Willful and wanton misconduct affects the amount of damages and is not a

separate tort.”).

Plaintiffs’ allegation of willful and wanton misconduct as the basis of an independent

cause of action must therefore be dismissed under Illinois law. See, e.g., Campos, 2014 U.S.

Dist. Lexis 159242, at *20 (“[T]o the extent it purports to state a separate cause of action, [the

willful and wanton misconduct claim] is dismissed.”).

CONCLUSION

For the reasons stated above, Sotera Health respectfully requests that the Court dismiss

with prejudice Counts VIII through XIV of the First Amended Master Complaint, brought

against Sotera Health, pursuant to 735 ILCS 5/2-615.

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Date: April 28, 2020 Respectfully submitted, By: /s/ Maja C. Eaton Maja C. Eaton, IL Bar No. 6188479 meaton@sidley.com Jana D. Wozniak, IL Bar No. 6288881 jwozniak@sidley.com Michael L. Lisak, IL Bar No. 6299347 mlisak@sidley.com SIDLEY AUSTIN LLP One South Dearborn Street Chicago, IL 60603 (312) 853-7000 Firm I.D. Number: 42418 Kimberly Moses, IL Bar No. 0029601 KMoses@Calfee.com Lindsey E. Sacher, IL Bar No. 0087883 LSacher@Calfee.com CALFEE, HALTER & GRISWOLD LLP The Calfee Building 1405 East Sixth Street Cleveland, Ohio 44114-1607 Phone: (216) 622-8200 Fax: (216) 241-0816 Attorneys for Sotera Health LLC

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CERTIFICATE OF SERVICE

I hereby certify that on April 28, 2020, I caused a copy of Defendant Sotera Health

LLC’s Memorandum in Support of its Motion to Dismiss Plaintiffs’ Master Complaint to be

served upon counsel of record by service on Lead Counsel Antonio Romanucci and Liaison

Counsel Bryce Hensley via email.

By: /s/ Bojan Manojlovic

SERVICE LIST

Antonio M. Romanucci Bryce T. Hensley ROMANUCCI & BLANDIN, LLC 321 N. Clark Street, Suite 900 Chicago, IL 60654 (312) 458-1000 (312) 458-1004 aromanucci@rblaw.net bhensley@rblaw.net

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