To what extent did a Merck subsidiary pollute groundwater and soil in Beachwood, Ca.? Why was potentially damaging language about a clean-up plan written by a Merck consultant not included in a final draft sent to local authorities? And were residents actually harmed?
These questions lie at the heart of a federal lawsuit that alleges Merck's Baltimore Aircoil unit polluted a neighborhood for years with Chromium 6, a carcinogen linked to cancer and birth defects, causing sickness and death (this is the same pollutant that Erin Brockovich made famous). Lawyers for about 2,000 plaintiffs say a wood treatment process at the site leached the toxin into the soil and the company failed to notify residents of the danger, The Merced Sun-Star writes. The drugmaker denies the allegations.
One highly debatable issue is whether evidence exists that there was a direct path from the contaminated groundwater and soil to local residents. Interestingly, Merck's remediation firm wrote a 2007 draft clean-up plan saying the toxic groundwater could contaminate some area drinking wells without a clean up, but that language was removed from a final draft sent local authorities.
The finding never made its way into official documents before it was made public, the paper writes and now, Merck lawyers argue the same pathway model shouldn't be admissible. The omission, the plaintiffs' lawyers tell the paper, is part of a pattern by Merck of intentionally manipulating the public record to avoid litigation about the possibility of sickness caused by pollution.
Merck's attorneys maintain there was no evidence pollution caused any illness and there was never any manipulation of documents. "There's no doubt that there was contamination at the site," Merck lawyer Stephen Lewis tells the paper, but that doesn't automatically mean Merck was responsible for causing anyone to become sick.
Meanwhile, the paper adds new filings from March 15 reveal pollution modeling by Merck's consultant, Arcadis, showed the plume of polluted groundwater had contaminated a public drinking well run by the Meadowbrook Water Co., according to plaintiffs' lawyers.
Arcadis made the final decision to omit that section, according to Merck lawyer Morgan Gilhuly, who tells the paper that "the model described in that draft report was a model of hypothetical events that never occurred. In fact, no contamination ever reached Meadowbrook well No. 2, which is the well in question."
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From the Merck website:
"A shining example of environmental commitment"
"As a global company, we are also a global citizen. Our ability to impact the environment is not taken lightly by our thousands of employees worldwide.
We at Merck remain dedicated to being environmentally responsible in how we manufacture our medicines and vaccines. And we work hard to reduce our environmental impact through stewardship of natural resources like water, by conserving energy and also by appropriately eliminating waste. We do so because it is consistent with our values as a good corporate citizen and because it makes good business sense.
We also go beyond the direct impact of our business to positively influence the environment. Our main way of doing so is through financial support of non-governmental organizations and their local partners to protect ecological resources around the world."
Flucking hippocrates.
MB
I guess Whitehouse Station now estimates its liability for these acts at around $160 million (which is UP by about $70 million since last year) per its newly updated SEC Form 10-K (top of page 54):
". . . .As previously disclosed, approximately 2,200 plaintiffs have filed an amended complaint against Old Merck and 12 other defendants in U.S. District Court, Eastern District of California asserting claims under the Clean Water Act, the Resource Conservation and Recovery Act, as well as negligence and nuisance. The suit seeks damages for personal injury, diminution of property value, medical monitoring and other alleged real and personal property damage associated with groundwater and soil contamination found at the site of a former Old Merck subsidiary in Merced, California. Old Merck intends to defend itself against these claims. In management’s opinion, the liabilities for all environmental matters that are probable and reasonably estimable have been accrued and totaled $161.8 million and $89.5 million at December 31, 2009 and 2008, respectively. These liabilities are undiscounted, do not consider potential recoveries from other parties and will be paid out over the periods of remediation for the applicable sites, which are expected to occur primarily over the next 15 years. Although it is not possible to predict with certainty the outcome of these matters, or the ultimate costs of remediation, management does not believe that any reasonably possible expenditures that may be incurred in excess of the liabilities accrued should exceed $170.0 million in the aggregate. Management also does not believe that these expenditures should result in a material adverse effect on the Company’s financial position, results of operations, liquidity or capital resources for any year. . . ."
I suspect -- if the plaintiffs' request that the consultants' draft report be admitted into eidence prevails -- the $160 million is significantly too low. Great reminder of an ongoing battle, Ed!
Namaste
Prove it -- and don't settle. As former counsel to big corporate polluters, I know that they have inexhausible supplies of $$ for spin and delay. This has to be about more than a 1/3 fee.