Litigation over DuPont’s herbicide product Imprelis has moved quickly over the past few months and raises important issues over choice of law concerns, speakers at HB Litigation Conferences’ Imprelis Herbicide Litigation Spotlight teleconference said on Nov. 2.

Imprelis was a new class of “remarkably powerful herbicide” recently introduced by DuPont for use by professional landscapers and golf course greenskeepers that was said to be “four times more powerful than Agent Orange,” said Jonathan Selbin of Leiff Cabraser Heimann & Bernstein during the teleconference.

“My understanding in talking to landscapers is that they literally were out there with medicine droppers—that gives you some sense of how powerful this is.  This isn’t something where giant tubs of this were just being sprayed all over the place.  It was a very precise amount that had to be applied at very, very low levels,” he said.

Adam J. Levitt of Wolf Haldenstein Adler Freeman & Herz LLC, who also spoke at the conference said that the product moved from the creative stage to market in a “remarkably fast time”.

“My understanding at least is that this is the first new chemistry in the herbicide field in some time,” said Selbin.

He said that the states of California and New York as well as Washington D.C. and Puerto Rico did not allow the sale of Imprelis.  New York stated that Imprelis does not bind with soil and leaks into groundwater, said Selbin.

However, the herbicide was introduced to the market in August, 2010.  Soon after, however, it was found that it was causing damage to trees.

“In some trees it’s resulted in out and out death of those trees.  In other trees you’ve got a whole season’s worth of growth that is damaged, but we don’t yet know what happens to those trees come next growth season or future growth seasons, quite frankly,” said Selbin.

Selbin said that Imprelis causes a “signature harm” that is “like nothing else you will see on trees.

“This signature damage is a critical feature for litigation purposes,” he said.

The first cases over the product were filed in July and the Environmental Protection Agency (EPA) pulled it from the market in August, said Levitt.  In September, DuPont launched a claims program for damaged trees.

“The key elements of the claims process are that Dupont will remove and dispose of dead trees—they say that they’ll replace trees or provide compensation for those trees,” Levitt said.

He said that a major issue will be DuPont’s claim that it will pay “fair market pricing” for the damaged trees.

“What exactly is fair market pricing?  Because with conversations we’ve had with government officials and others, people can have vastly different views of the upper end and the lower end of the uniform pricing schemes,” he said.

Selbin said that since the recall, “things have moved remarkably fast, more quickly in this litigation than just about any other that I’ve been involved in.”

Selbin and Levitt said that they thought the litigation should be consolidated under Delaware law.

“My saying that I think Delaware law can and should be applied nationwide isn’t to the exclusion of ultimately seeking certification of statewide classes under separate state law,” said Selgin.

“I do think that’s obviously going to be an issue that’s going to be hotly litigated.  Dupont has made it clear that they’re going to contest every aspect of class certification.  But in this day and age first and foremost is choice of law and I think will obviously be a hotly litigated issue,” he said.

“This is truly a paradigmatic situation where the decisions, the choices, the choices the testing, everything emanated out of the company headquarters.  And it’s a Delaware company the one wrinkle in terms of the state-wide issues, there are certain states with statutes, including Ohio, including Michigan that have statutes pertaining to the damaged trees with specific statutory damages and the like,” said Levitt.

Click here to purchase the recording from the November teleconference.