DuPont agrees to replace trees killed by herbicide

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DuPont has agreed to replace tens of thousands of trees killed by its herbicide, Imprelis, across the country as part of a settlement agreement that got preliminary approval from a federal judge this month.

The settlement, filed in October 2012, was the product of months of discussion and mediation from a retired magistrate judge, according to the opinion.

"The settlement program appears to reflect a meaningful attempt to make property owners quite close to whole for the damage caused to them," said U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania.

DuPont started selling Imprelis, an herbicide that was designed to kill only selected weeds without hurting other vegetation, in fall 2010. Soon after, there came reports of unintended damage to plants, which led to an investigation by the Environmental Protection Agency and thousands of lawsuits.

Although DuPont offered its own claim resolution process, the plaintiffs pursued their lawsuits "alleging consumer fraud and consumer protection act violations, breach of express and/or implied warranty, negligence, strict products liability, nuisance, and trespass claims based on the laws of numerous states," Judge Pratter said.

In October 2011, the Judicial Panel on Multidistrict Litigation consolidated more than 40 cases brought in 18 districts against DuPont.

The settlement splits the plaintiffs into three classes: property owners; applicators, people who applied Imprelis to others' property; and golf courses and other self-applicators. Property owners and self-applicators will get replacement trees for the ones that died and DuPont will pay for the removal of damaged trees. They will also get tree care and maintenance payments and additional compensation for incidental damage that will be 15 percent of the total value of what the class member is getting under the terms of the settlement, according to the opinion.

Members of the self-applicator class will also get reimbursement for the time and expense of investigating and documenting damage from Imprelis, with a $2,000 cap on those claims, according to the opinion.

The applicator class will be paid for "customer site visits, field work, and other such expenses," Judge Pratter said. Participation in the settlement won't bar members of the class from making claims for lost profits or for damages that may come from suits brought against them by third parties, she said.

DuPont is set to pay for expenses in administering the notice and claims as well as attorney fees for the plaintiffs, not to exceed $6.5 million and $500,000 in costs.

Robert Kitchenoff of Weinstein Kitchenoff & Asher in Philadelphia, liaison counsel for the plaintiffs, called the settlement a "great deal for the class members." DuPont's attorneys could not be reached for comment.

legalnews

Saranac Hale Spencer: sspencer@alm.com. To read more, visit www.thelegalintelligencer.com.


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