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In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation

United States District Court, E.D. Pennsylvania

August 14, 2017

E.l du Pont Nemours & Co. Civil Action No. 16-283 No. 11-md-02284



         Aronimink brought suit against DuPont for Imprelis damage to trees on its golf course related to an application of Imprelis in May, 2012. DuPont then moved to dismiss, or, in the alternative, for an injunction barring Aronimink's suit, arguing that Aronimink also applied Imprelis in May, 2011, which makes it a class member and therefore Aronimink is barred from bringing suit for any Imprelis damages. After oral argument, the Court converted the motion to one for summary judgment and allowed very limited discovery and further briefing. Upon review of all of the briefing now submitted, the Court will grant DuPont's motion and dismiss Aronimink's claims.


         Because the Court has written about the history of this litigation in several opinions, the following summary will be brief.

         In the fall of 2010, DuPont introduced Imprelis, a new herbicide designed to selectively kill unwanted weeds without harming non-target vegetation. After widespread reports of damage to non-target vegetation, the EPA began investigating Imprelis, leading to lawsuits, a suspension of Imprelis sales, and an EPA order preventing DuPont from selling Imprelis. In September 2011, DuPont started its own Claim Resolution Process to compensate victims of Imprelis damage. Despite this voluntary process, various plaintiffs continued to pursue their lawsuits, alleging consumer fraud/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. After months of settlement discussions, including mediation, the parties came to a settlement agreement. The details of the settlement relevant to the instant motions will be discussed in greater detail below.

         A. The Settlement

         The Imprelis Class Action Settlement covers three classes of Imprelis Plaintiffs. Among the three settlement classes is a self-applicator class, to which, DuPont argues, Aronimink Golf Club belongs. The self-applicator class includes, "All persons or entities that, from August 31, 2010 through August 21, 2011, purchased Imprelis (and/or received Imprelis directly or indirectly from a purchaser) and applied it to properties in the United States that they own or owned." See Docket No. 117-2, Settlement Agreement, § I. Under the Settlement, self-applicator class members who filed claims by the claims deadline would receive tree removal (or compensation for tree removal), payments for replacement trees, tree care and maintenance payments, and a 15% payment for incidental damages. The Settlement included a warranty that provided for all benefits but the 15% incidental damages award for Imprelis damage that manifested after the claims period closed but before May 31, 2015. On February 12, 2013, this Court preliminarily approved the Settlement, and specifically ordered that:

Any Settlement Class Member may opt out of the Settlement by following the "Exclusion" procedure set forth in the Long Form Notice and the Settlement Agreement. All Settlement Class Members who do not opt out in accordance with the terms set forth in the Settlement Notice and the Settlement Agreement will be bound by all determinations and judgments in the Action. Any Class Member who wishes to opt out of the Class must do so in writing by mailing a request for exclusion to the Claims Administrator. Any such request must be postmarked no later than the Opt-Out Deadline, June 28, 2013. The request to opt out must be signed by the Class Member seeking to opt out and must set out the Class Member's first and last names (or company name), valid mailing address and functioning telephone number.

         February 12, 2013 Order, Docket No. 160, ¶ 8. The Settlement itself provided that DuPont could terminate the agreement if "in its sole discretion, DuPont believe[d] that the number of Opt-Outs was unsatisfactory." See Settlement Agreement and Release, Docket No. 118-1, § IX.A.

         On October 17, 2013, the Court granted the Class Plaintiffs' Motion for Final Approval of the Settlement. The Order entering final judgment as to the Settlement states that class members are "permanently enjoined and barred from instituting, commencing, or prosecuting any action or other proceeding asserting any Released Claims, against any Releasee ... by whatever means, in any local, state, or federal court, or in any agency or other arbitral or other forum . . . ." February 5, 2014 Order, Docket No. 274, ¶ 7. The Court also retained exclusive jurisdiction over any action relating to the Settlement:

Without affecting the finality of this Order, the Court shall retain jurisdiction over the implementation, enforcement, and performance of the Settlement Agreement, and shall have exclusive jurisdiction over any suit, action, motion, proceeding, or dispute arising out of or relating to the Settlement Agreement or the applicability of the Settlement Agreement that cannot be resolved by negotiation and agreement by Plaintiffs and DuPont.

Id. at ¶ 11. Attached to that Order was a list of all parties who had opted out of the Settlement. Aronimink is not listed in that attachment. See Id. at Ex. A.

         B. Aronimink's Complaint

         According to Aronimink's Complaint, Aronimink purchased Imprelis, and in May, 2012, it applied Imprelis to a large portion of its golf course. During a course inspection in March, 2014, following a heavy storm, Aronimink first noticed signs of Imprelis damage, and by the summer of 2015, 27 "important" trees had suffered some degree of damage, adding up to at least $117, 250 in damages. Not discussed in the Complaint is the fact that Aronimink applied Imprelis to its golf course in May, 2011, and that it filed a warranty claim with DuPont in July, 2014. That claim was denied, and Aronimink then filed suit in Delaware County Court of Common Pleas. DuPont removed the case to this Court and filed a motion to dismiss. Because the spray record from 2011 is key to determining Aronimink's membership in the Class, the Court converted the motion to dismiss to a motion for summary judgment for the purpose of determining class membership and gave both parties ...

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