Hearing to Consolidate Imprelis Lawsuits Scheduled for SeptemberAug 16, 2011 | Parker Waichman LLP
The Judicial Panel on Multidistrict Litigation has scheduled a hearing for September 27 in Philadelphia, Pennsylvania to consider consolidating all federal Imprelis tree death and damage lawsuits in a multidistrict litigation (MDL) in one federal court. There are currently 18 Imprelis lawsuits pending against DuPont in federal courts through the U.S.
Imprelis lawsuits claim that DuPont's herbicide caused extensive and permanent damage to plaintiffs’ trees, lawns and gardens. They accuse DuPont of, among other things, negligence and fraud in the marketing of Imprelis, and seek various damages, including the cost of replacing trees allegedly killed by Imprelis.
Of the 18 Imprelis lawsuits currently pending in federal courts, five were filed in Delaware; two each were filed in the states of Indiana, Iowa, Minnesota and Ohio; and one each was brought Kansas, New Jersey, Pennsylvania, Utah and Wisconsin.
Three plaintiffs - two from Delaware and one from Ohio - moved for the consolidation. The Delaware plaintiffs are seeking to have the litigation transferred to the U.S. District Court for the District of Delaware. Luanne Miller, lead plaintiff in the Ohio lawsuit, has requested consolidation in U.S. District Court for the Northern District of Ohio. One of the Delaware plaintiffs requesting consolidation has also suggested the District of New Jersey as an alternative venue.
An MDL allows lawsuits associated with a particular product to be coordinated under one judge for pretrial litigation to avoid duplicative discovery, inconsistent rulings and to conserve the resources of the parties, witnesses and the court. When lawsuits are consolidated as a multidistrict litigation, each retains its own identity. If the multidistrict litigation process does not resolve the cases, they are transferred back to the court where they originated for trial.
DuPont marketed Imprelis, which was only available to licensed turf management professionals, as an environmentally friendly way to eliminate broadleaf weeds. Approved last October, DuPont's promises induced landscapers throughout the country to switch to Imprelis this spring. According to The Columbus Dispatch, industry sources estimate that in central Ohio, for example, 75 percent of landscapers and golf courses switched to Imprelis.
By Memorial Day, however, reports began to crop up around the country of tree damage that followed Imprelis application. In June, several extension services issued warnings about Imprelis. By August 4, DuPont announced it would voluntarily stop selling Imprelis, and was working on a refund and return program for its customers. Last Thursday, the U.S. Environmental Protection Agency issued a stop sale order for the herbicide, after data provided by DuPont confirmed that certain coniferous trees, including Norway spruce, white pine and balsam fir, were susceptible to being damaged or killed by the application of Imprelis.
Parker Waichman LLP, LLP, one of the law firms representing Ohio plaintiff Luanne Miller, has filed a dozen Imprelis lawsuits against DuPont in federal courts across the Midwest, and more are pending. A partner with the firm recently told the New York Times that damages from the Imprelis litigation could exceed a billion dollars.
"You are talking about a lot of people who have dead trees 40 to 50 feet tall, 30 or 50 years old that each cost $20,000 or $25,000 to replace," Jordan Chaikin said.