Beachwood neighborhood health problems: Lawsuit targets Merck

Pharmaceutical company denies allegations subsidiary contaminated drinking water in area.

March 25, 2010 

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."

"Unfortunately, neither the model nor its conclusion that there was a direct pathway between contamination at the facility and Meadowbrook well No. 2 ever made its way into the final report that was submitted to the board," said Mick Marderosian, a lawyer for the plaintiffs. "These documented efforts by Merck and their counsel to control and manipulate the information provided to the regional board and ultimately to the general public are certainly not consistent with the conclusion that Merck had nothing to hide and the public had nothing to fear from the contamination emanating from the BAC facility."

Merck even directed the deletions from the report, Marderosian charged.

Merck's lawyers said that Merck did consult with Arcadis about that report, but Arcadis made the final decision to omit that section. Its manager Avram Frankel testified to that in his deposition, said Morgan Gilhuly, a lawyer for Merck. "The model described in that draft report was a model of hypothetical events that never occurred," he said. "In fact, no contamination ever reached Meadowbrook well No. 2, which is the well in question."

But Marderosian contends that as far back as 1994 two testing wells near the drinking well in question had levels of chromium 6 far above what is safe to drink. The Arcadis model predicted that when those two testing wells had high chromium readings - as he says they had in 1994 - well No. 2 would already be contaminated by 1999.

Despite Marderosian's strongly worded argument, regional board officials contend they knew the direction of the plume and the potential threat it posed to the well. With that knowledge in mind, they directed Arcadis to begin drilling of monitoring wells around the plume and ultimately a remediation plan, which is under way and reducing the size of the plume.

Antonia Vorster, a program manager with the Water Board, said it's been actively monitoring drinking wells in the area. In fact, the well in question was shut down in mid-2008, she said.

"We have been watching that well very closely for a lot of years," said Duncan Austin, a senior engineer with the Water Board.

Despite the omission, the board knew there was a threat to that well, said Austin. "I think it can be implied if we request monitoring of a public supply well, we believe there is a threat to it."

One of Merck & Co.'s lawyers, Stephen Lewis, has said that while there is no doubt the area's water was polluted by Merck's subsidiary, there's no evidence that anyone got sick because of the pollution. "There's no doubt that there was contamination at the site," said Lewis. But he explained that doesn't automatically make his client responsible for causing people to become sick.

"There was contamination," he said. "It did get into the groundwater that moved a very short distance off site. But we have no reason to believe that any of the plaintiffs ever drank any water that was contaminated by any activity at the site."

Michael Bidart, a lawyer for the plaintiffs, said Chromium 6, along with a list of other contaminants in the ground, sickened his clients and violated the Clean Water Act, among other laws.

Chromium 6, the main pollutant at the site, is a compound that has been linked to cancer and birth defects among other illnesses, said Marderosian.

Meanwhile, water board officials said the local water company's wells show a clean bill of health.

"We do all required monitoring religiously," said Connie Farrif, operations manager with Meadowbrook Water Co., which provides water to more than 1,500 residences in the area. "We are confident that the water is safe to drink. We all drink it here."

Reporter Jonah Owen Lamb can be reached at (209) 385-2484 or jlamb@mercedesun-star.com.