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FRESNO, Calif. - (Mealey's) A federal jury in California on April 1 returned a verdict for the plaintiffs in the first phase of a mass tort action against the owners of an industrial site in Merced County, Calif., for allowing hexavalent chromium and arsenic to contaminate air, soil and surface water; the jury concluded that a public water utility had not provided the plaintiffs with contaminated water from the groundwater aquifer, according to defendant Merck & Co. Inc. (Raul Valencia Abarca, et al. v. Merck & Co. et al., No. 07-388, E.D. Calif.).
Raul Abarca is the lead plaintiff in the litigation. Some 2,200 individuals and businesses allege personal injury, diminution of property value and loss of income in the lawsuit pending in the U.S. District Court for the Eastern District of California. The plaintiffs allege that hexavalent chromium and arsenic were allowed to escape from the so-called BAC-Pritchard industrial site into the Beachwood neighborhood of Merced County.
Amsted Industries Inc., Baltimore Aircoil Co. Inc. and Merck, through subsidiaries, owned and operated manufacturing facilities at the BAC-Pritchard industrial site. Among the manufacturing on the site was pressure-treating wood. All operations at the BAC-Pritchard industrial site ended in 1994.
These so-called BAC defendants and the Meadowbrook Water Co. of Merced are parties in Phase I of the trial. The jury's verdict was for Meadowbrook Water and against the BAC defendants.
Judge Oliver W. Wanger entered an order in August 2009 establishing a three-phase trial plan. The first phase of the trial, which began Feb. 3, considered evidence of case-wide exposure. The second phase of the trial will consider general medical causation. The third phase will consider plaintiff-specific causation and exposure.
Judge Wanger instructed the jury that the first question it was to address is whether hexavalent chromium and arsenic from the BAC-Pritchard industrial site arrived at locations where the plaintiffs could have been exposed. He instructed the jury that the exposure standard for hexavalent chromium and arsenic in water is 50 parts per billion and that there is no standard for exposure in air. If the plaintiffs could have been exposed, the jury was then to decide what chemicals arrived when and at what concentrations, according to Judge Wanger. The jury also was instructed to determine how long the chemicals were present and the concentrations of the chemicals at the locations where the plaintiffs could have been exposed.
Merck issued a press release after the verdict in which it said it is pleased that the jury found that the plaintiffs could not have been exposed to hexavalent chromium and arsenic in groundwater and public utility water.
"The company disagrees with the jury's finding about whether plaintiffs possibly could have been exposed to contamination transported by air between 1969 and 1994 or in canal water that may have left the canal during a 2006 flood," according to Merck. "Merck will appeal that portion of these Phase I trial results, which the company believes were not supported by the evidence and are inconsistent with well-established legal principles."
[Editor's Note: Full coverage will be in the April 5 issue of Mealey's Emerging Toxic Torts. In the meantime, the jury instructions are available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #15-110405-076R. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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