Merck's Proposed Jury Verdict Form, In Its California Chromium 6 Contamination Case

Below (in dark blue text) is the salient portion of Merck's proposed jury instruction -- as to the level of water contamination that would constitute a violation of applicable (California state) environmental emissions laws and regulations.

Note that, unfortunately for Merck, the standard in California is significantly more stringent than in many other jurisdictions (even though a good portion of the wood-treatment operations, and thus the alleged emissions of Chromium-6 into the local MErced, California water-table, occurred prior to the US EPA's establishement of federal SuperFund standards, and in fact, prior to the establishment of the federal EPA, itself). Wood was being treated at the Merced facility as early as 1969, according to public documents in the case file.

In water, a violation rate of 50 parts per billion -- for all chromium, hexavalent or otherwise -- is a very very tight filter. In short, I think it likely that more than 50 parts per billion reached water in the complaining residential subdivision, given that it is claimed that five times that concentration reached the convenience store's water supply, which it is stipulated is only about 600 feet beyond the Merck property line. The subdivision apparently begins about 1,300 feet beyond the Merck property line -- or just 700 feet beyond where (it is claimed that Chromium concentrations of 250 parts per billion were found).

In any event, here is the proposed instruction -- it is not yet clear that the very able U.S. District Judge, in teh Central District of California, Oliver W. Wanger, will actually give the instruction to the jury in this particular form -- but here it is:

. . . .You will be asked to decide whether plaintiffs have proved by a preponderance of the evidence whether any chemical from the former wood treating site ever reached a location where plaintiffs could have been exposed to such chemical at a concentration exceeding established regulatory standards or, if no such standard exists, at a concentration that is hazardous to human health. In deciding whether a concentration exceeded a regulatory standard with respect to drinking water and surface water, the applicable regulatory standard is:

Total chromium, including
hexavalent chromium:

50 micrograms per liter
(μg/L) or parts per
billion (ppb)

There are no regulatory standards applicable to hexavalent chromium or arsenic in air. If plaintiffs prove by a preponderance of the evidence that a concentration of hexavalent chromium or arsenic in air reached a location where plaintiffs could have been exposed to it, then you must determine whether that concentration is hazardous to human health.. . .

We will keep you posted.