Labaton Sucharow LLP, along with its co-counsel The Miller Law Firm P.C., filed a class action lawsuit on July 14, 2011 in the United States District Court for the District of Delaware. The lawsuit, believed to be the first in the country to address these allegations, was filed on behalf of purchasers and users of DuPont's Imprelis herbicide between Oct. 4, 2010 through and including future date of trial. The action charges DuPont with consumer fraud, unjust enrichment, negligence, product liability and damage to land under both Delaware and Michigan law.
"We intend to seek remedy for all consumers who have potentially suffered harm," said Miller Law Firm Partner E. Powell Miller.
Specifically, Plaintiffs allege that DuPont misrepresented the safety of Imprelis to consumers, and concealed or omitted the fact that Imprelis caused serious environmental damage to trees. Plaintiffs also allege that DuPont had a duty to ensure its product's safety, and in failing to do so, Plaintiffs incurred severe damages from DuPont's negligent conduct. Finally, Plaintiffs allege that DuPont was unjustly enriched by receiving compensation for Plaintiffs' purchases of Imprelis, and it should be divested of such enrichment with damages awarded to Plaintiffs.
Said Labaton Sucharow Partner Christopher J. Keller, "This supposedly safe product potentially killed thousands of mature trees. These can't just be replaced by going to the garden store, it takes 30 years for most species to reach maturity. Many of the people who were affected by Imprelis won't see their trees replaced during their lifetimes and we think that they deserve to be repaid for that damage."Homeowners and turfgrass managers have observed damage to certain tree and shrub species following spring applications of the new broadleaf turfgrass herbicide, Imprelis (active ingredient aminocyclopyrachlor) from DuPont.
DuPont advises to not apply Imprelis where Norway spruce (Picea abies) and eastern white pine (Pinus strobus) are located. But in June 2011 reports from across the Eastern and Midwestern U.S. indicated other conifers, as well as some deciduous species, are showing similar injury that may be due to Imprelis applications, said Laura Jull, department of horticulture, University of Wisconsin-Madison.
Other species that have shown injury include white spruce (Picea glauca), Black Hills spruce (Picea glauca ?Densata'), Colorado blue spruce (Picea pungens), northern white-cedar or arborvitae (Thuja occidentalis), dawn redwood (Metasequoia glyptostroboides), firs (Abies spp.), yews (Taxus spp.) and several other woody ornamental species, she said.
DuPont issued a statement regarding the reported damage:
"Our turf development team has been investigating these reports and we are trying to better understand the circumstances and whether the various symptoms are rlated to appliations of DuPont Impreslis herbicide.
Our investigation is not comolete and we will need your help in gathering necessary information and in determining what variables may have contributed to the symptoms being observed. While this work continues we want to make you awrae of the information we have recieve to date:
* A majority of the reports involve Norway spruce or white pine.
* In most cases, Imprelis was not applied alone, but in a mixture with other herbicides, eithre pre-emergent, post-emergent and/or with a liquid fertilizer.
* Some reports indicate there may have been errors in use rates, mixing practices and/or applications to exposed roots, or the tree.
* Most lawn care professionals and golf course superintendents have used Imprelis to successfully control weeds and have not reported unfavorable tree symptoms.
As a precaution, until we can more fully understand the circumstances, and whether Imprelis may have contributed to the observed symptoms, do not apply Imprelis where Norway Spruce or white pine are present on, or in close proximity to, the property to be treated."
The Imprelis label reads:
Avoiding Spray Drift
Apply IMPRELIS herbicide in a manner that will avoidcontacting nearby susceptible crops or other desirable plantswith spray droplets. Applications must be made only whenthe risk of spray drift is at a minimum. Very small quantitiesof spray, which may not be visible, may seriously injuresusceptible plants including ornamental trees and shrubs.Do not apply when the wind will carry spray mist towardsusceptible crops or ornamental plants.
Growth Products suggests an "essential cocktail" to combat the effects of the damage. See it here.
Photo courtesy of Penn State Extension, Pete Landschoot