CONCORD, N.H. — New Hampshire is appealing a trial court order that would place most of the state’s record $236 million verdict against Exxon Mobil in a groundwater contamination case into a trust fund.
Exxon successfully argued for the trust saying the set-aside would ensure the money is available for its intended purpose and not diverted to such state expenses as legal fees for private attorneys hired to litigate the case.
Asked Thursday about the appeal, Senior Assistant Attorney General Allen Brooks said the jury verdict in April came with no restrictions and the money was intended for the state to use for the benefit of its residents. The award is by far the largest in New Hampshire history.
Brooks acknowledged the state wants to use some of the money to pay private counsel hired to litigate the case. But “Everyone understood that outside counsel need to get paid. We wouldn’t have any money if it weren’t for outside counsel helping us,” he said.
A Merrimack Superior Court jury held Exxon Mobil liable for the state’s costs to test groundwater in private wells and other drinking water sources over the coming decades and to remove contamination by the gasoline additive MTBE.
Since then, Superior Court Judge Peter Fauver denied Exxon’s motion to set aside the verdict but granted the company’s request to establish a trust fund and ordered that $195 million of the total be set aside. Fauver acknowledged that part of the award would be needed to pay for past cleanup costs.
The state has yet to receive any of the money, while Exxon appeals the verdict to the state Supreme Court.
MTBE was added to gasoline in the late 1980s and early 1990s to reduce smog, but was found to travel farther and faster in groundwater than gasoline without the additive. Jurors found that Exxon Mobil was negligent in adding MTBE to its gasoline and that MTBE was a defective product.
The Pawa Law Group in Boston and Sher Leff law firm in California have been involved in the lawsuit since it was filed a decade ago. The trial — considered the most complex in state court history — lasted nearly four months.
Brooks said he didn’t know what was owed the private law firms. He said the state has paid private counsel who negotiated settlements against two dozen other defendants named in the original lawsuit about $35 million out of $136 million received in settlement money.