By John Ellis, Fresno Bee
A federal jury late Thursday delivered a mixed verdict in a major toxic contamination case, finding the cancer-causing chemical hexavalent chromium migrated into a Merced-area neighborhood via the air and in a canal, but not through groundwater.
More than 2,200 residents of the Beachwood subdivision claimed contaminants from a nearby plant that used industrial chemicals to pressure-treat wood for cooling tower frames contaminated the air and water.
The plant was once owned by Baltimore Aircoil, a subsidiary of pharmaceutical giant Merck & Co. In 1985, Merck sold the company to Amsted Industries of Chicago. All three were sued by the residents.
“The air in the Valley is not the best, but you don’t make it worse by adding a toxic chemical like this,” said Fresno attorney Mick Marderosian, who represented the residents. “This jury did the right thing.”
But Merck also claimed victory, saying in a statement that it was “pleased” that the jury “found that plaintiffs were not exposed to contamination in drinking water or groundwater.”
It also promised an appeal of the air and canal portions of the jury’s verdict, saying they “were not supported by the evidence and are inconsistent with well-established legal principles.”
Thursday’s verdict, following a two-month trial before U.S. District Judge Oliver W. Wanger, was just the first hurdle in what could end up being a three-part case. A second jury will now be convened to determine whether the residents were harmed by exposure to the hexavalent chromium, which gained attention after the movie “Erin Brockovich.”
Merck, Amsted and Baltimore Aircoil will again be the defendants, and after the jury’s verdict, Marderosian said Thursday he will “absolutely” seek punitive damages.
Merced County, the city of Merced, the Franklin County Water District and Merced Irrigation District settled before the trial.
While the case will continue on the air and canal contamination, the jury’s verdict ended the allegations that hexavalent chromium contaminated the groundwater.
The jury’s finding cleared a third defendant, the Meadowbrook Water Co., a family-owned company.
“Obviously we’re pleased,” said Gary Drummond, an attorney who represented Meadowbrook. “We expected [the verdict] and we deserved it.”
The plant’s history stretches back to the early 1960s, but it didn’t start pressure-treating wood until around 1969. By 1975, it was owned by Baltimore Aircoil, then a Merck subsidiary.
In 1985, Merck sold the company to Amsted.
The contamination was discovered in 1984, but the plant continued to pressure-treat wood until 1991. It was shut down in 1993.
Marderosian said in his closing argument that the hexavalent chromium had migrated from the plant toward the neighborhood, where it was picked up by a Meadowbrook well. He said the well aided in sucking contaminated water into the neighborhood, where it reached other wells.
The jury didn’t find that was the case. It did find, however, that the plant contaminated the air for 25 years. Marderosian argued that the chemicals dripped onto dirt at the plant, and forklifts kicked up contaminated dust that was carried by air to the subdivision.
The jury also found hexavalent chromium was in a canal that ran by the plant and adjacent to the neighborhood from 1969 to 2006 at 87 parts per billion. California’s standard for total chromium is 50 ppb. There is no standard for hexavalent chromium.
In its statement, Merck said that it is a “research-based pharmaceutical company [that] has never operated any wood-treatment facility.”
Its role in this case, the company said, came only from its ownership of Baltimore Aircoil Co.
Since it sold the company to Amsted in 1985, Merck said it has “worked closely with Amsted and state and local environmental regulators to investigate and remediate groundwater and soil at the site.”
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