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 week.

The settlement, filed in October of last year, was the product of months of discussion and mediation from a retired magistrate judge, according to the opinion in In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation.

"Although detailed discussion of the actual terms of the settlement agreement is more appropriate at the final approval stage, 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 the fall of 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," Pratter said.

In October 2011, the Judicial Panel on Multidistrict Litigation consolidated over 40 cases brought in 18 districts against DuPont after Imprelis allegedly killed certain kinds of trees. The panel put the case in the Eastern District of Pennsylvania because the U.S. Environmental Protection Agency office investigating the matter is in Philadelphia, DuPont is headquartered in nearby Wilmington, Del., and some of the plaintiffs had asked for that venue, among other things, according to the panel’s transfer order.

The settlement agreement splits the plaintiffs into three classes: property owners, who either had Imprelis applied to their land or who own property near an application site from which they suffered residual effects; applicators, people who applied Imprelis to others’ property; and golf courses and other self-applicators, who applied Imprelis to their own property.

The first and third groups — 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.

"Should class members disagree with the settlement amount offered, they may appeal their offer to a panel of arborists," Pratter said.

She also noted that members of the property owner class wouldn’t be releasing their claims for environmental or personal injury damages by taking part in the settlement.

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," 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 all of the 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, which cannot be deducted from funds earmarked for the class members.

The settlement also includes a $1,500 bonus for individual property owners who are class representatives and $2,500 for commercial entities that are class representatives, according to the opinion.

Robert Kitchenoff of Weinstein Kitchenoff & Asher in Philadelphia called the settlement a "great deal for the class members." Kitchenoff is the liaison counsel for the plaintiffs. They’ll have the affected trees removed and they’ll be compensated, he said, adding that the process has been efficient since the first cases were filed just over two years ago.

Adam Hoeflich of Bartlit Beck Herman Palenchar & Scott in Chicago represented DuPont and couldn’t be reached for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the eight-page opinion in In re Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation, PICS No. 13-0304, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •