In a case with undertones of "Erin Brokovich," some of the more than 2,000 people from the Beachwood neighborhood, who have been battling sickness and ill health, will soon witness the first phase of a lawsuit against the pharmaceutical giant Merck & Co.
The lawsuit alleges that a subsidiary of Merck polluted groundwater and soil in the area for years and caused sickness and death in the area.
Merck strongly denies the allegations.
A federal court will soon decide which of the more than 2,000 plaintiffs will act as representatives in the first phase of the lawsuit against the $100 billion-plus company, as well as a group of other defendants. The first part of the lawsuit is meant to determine how much pollution was dumped on the site and how much were residents exposed to that pollution.
For the past four years, lawyers representing Beachwood residents have been preparing for a trial in federal court in Fresno against Merck. Specifically, the case involves allegations that the Baltimore Aircoil Co. (BAC), a subsidiary of Merck & Co., polluted the Beachwood area's soil and groundwater with Chromium 6, a carcinogen.
From 1969 to about 1991 a wood treatment process at the site leached the toxin into the soil, the suit alleges, and the company failed to notify residents of the danger. That pollution allegedly caused illness and death in the neighborhood.
While the trial in Judge Oliver Wanger's court is set for Nov. 23, the two sides have been arguing over the science of the case. One point of contention is whether there's any evidence showing a direct pathway from the contaminated groundwater and soil to residents in the area.
In the midst of this process, new filings from March 15 reveal that pollution modeling by Merck's own consultants (Arcadis, a cleanup company) showed the plume of polluted groundwater had already contaminated a public drinking well run by the Meadowbrook Water Co., according to the plaintiffs' lawyers.
But that finding was stricken from official documents before it was made public. Now Merck's lawyers are arguing that very same pathway model shouldn't be admissible in the case, according to lawyers for Beachwood's residents.
For their part, Regional Water Quality Control Board officials said they were well aware of the plume and its potential to affect a water well, even if Merck did omit such references from its documents.
The omission, the plaintiffs' lawyers argue, is just part of a pattern by Merck of intentionally manipulating the public record to avoid litigation about the possibility of pollution-related sickness.
Merck's attorneys maintain that not only is there no evidence the pollution caused illness among the plaintiffs, but also that there was never any manipulation of the documents.
A 2007 draft plan for cleanup at the site written by Merck's remediation company Arcadis said the toxic groundwater plume could contaminate some drinking wells in the area if it wasn't cleaned up. But in the final draft sent to the Regional Board, that language had been removed. It never showed up in an obvious way in the public record, according to filings.
"Groundwater modeling results suggest that contamination would migrate toward MWC-2 (a drinking well)," stated part of the document that was ultimately omitted from the final version. The omitted section goes on to say if the contamination went uncleaned and reached certain testing wells, at least one drinking well would be contaminated within "five years."