DuPont Imprelis lawsuit consolidation to be considered in federal court

A panel of federal judges will hear arguments next month about whether all lawsuits over tree death from DuPont’s Imprelis weed killer should be consolidated before one judge for pre-trial litigation. 

The U.S. Judicial Panel on Multidistrict Litigation has scheduled oral arguments for September 27 in Philadelphia to determine whether an MDL, or multidistrict litigation, should be formed for the DuPont Imprelis lawsuits.

To date, at least 18 complaints have been filed in 11 federal courts throughout the United States. All of the cases involve similar allegations that the weed killer actually killed otherwise healthy trees on golf courses, parks or other property, leaving unattractive dead husks in its wake.

As a result of the problems, it has been reported that a DuPont Imprelis recall is likely to be issued in the near future.

Last week the U.S. Environmental Protection Agency (EPA) issued a “Stop Sale, Use or Removal Order (SSURO) against DuPont, which halts the ability of the company to market the herbicide. DuPont had announced it was voluntarily stopping sales the week before. The EPA has encouraged the company to release thousands of documents about the herbicide as well.

At least three plaintiffs have called for consolidation and centralization of the lawsuits, but disagree on where the lawsuits should be centralized. Plaintiffs have suggested the District of Delaware, the Northern District of Ohio and the District of New Jersey as possible venues for Imprelis litigation. To date, Delaware has five Imprelis lawsuits; the largest number of any district.

Centralization as part of an MDL would allow one judge to rule on all pre-trial motions, preventing duplicative or contradictory rulings. Centralized management would also help avoid duplicative discovery and serve the convenience of the parties, witnesses and the court. Although the cases would be consolidated during pretrial proceedings, if a DuPont Imprelis settlement agreement is not reached, each case could be remanded back to its originating federal district court for trial.

Last month, the first DuPont Imprelis class action lawsuit was filed in Delaware on behalf of several Michigan-area country clubs and property owners. Since then, an increasing number of Imprelis lawsuits have been filed on behalf of plaintiffs who allege that the herbicide killed or damaged trees on their property.

While DuPont promoted Imprellis as a herbicide to target broadleaf weeds, such as dandelion, clover, plantains, wild violet and ground ivy, the company advised consumers in June 2011 not to use Imprellis near Norway spruce and white pines.

Since Memorial Day, Imprelis is suspected of causing the death of thousands of shallow-rooted trees on lawns, golf courses, parks and cemeteries throughout the U.S., including willows, poplars and conifers. Lawsuits over Imprelis allege that tens of thousands of additional trees are likely to be killed as a result of the weedkiller.

DuPont has said it is in discussions with the EPA on the most effective way to implement an Imprelis recall, including a product return and refund program.