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Imprelis Judge to Hear Evidence Preservation Arguments Today

Sep 20, 2011 | Parker Waichman LLP

A federal judge in Delaware will hear arguments today over a proposed injunction that would require DuPont to notify property owners and landscapers of the appropriate way to preserve evidence of damage caused by its now-banned Imprelis  herbicide.  The injunction is being sought by plaintiffs’ attorneys in a consolidated case involving six Imprelis lawsuits.

In August, the U.S. Environmental Protection Agency (EPA) formally banned sales of Imprelis 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. DuPont later sent customers a letter with information about its Imprelis recall. Among other things, the letter stated that DuPont has established partnerships with several tree companies contracted to help customers with tree removal and disposal procedures.

The plaintiffs' motion, filed on August 22,  states that "evidence that may be necessary to prove which trees it injured and killed, and the amount of damages that resulted, is dissipating with each passing day and may be unwittingly destroyed as trees are replaced."  According to the Associated Press, they argue that the proposed injunction is needed to prevent victims of Imprelis tree damage from unknowingly disposing of important evidence.  DuPont, however, is seeking to block the injunction, saying it shouldn't assist in preserving evidence that might be used against it in Imprelis lawsuits.

Meanwhile, an Imprelis ban has been issued in the state of Indiana that prevents lawn care professionals from distributing the tree-killing herbicide.  Under the Indiana order, lawn care professionals may only return Imprelis to DuPont.

"This is a way to plug any holes, because the EPA order technically applied only to DuPont," Dave Scott, pesticide administrator with the Indiana State Chemists Office, told 

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