Consumers Can’t Use Report Against Scotts Miracle-Gro

(CN) — A report filed in a criminal case against Scotts Miracle-Gro for selling poisonous bird feed cannot be used against the company in a consumer class action, the Sixth Circuit ruled.

"Scotts failed to disclose that its bird seed contained pesticides that were known to be highly toxic to birds," the 2012 class-action lawsuit states. "Instead, defendant knowingly sold millions of units of its defective and toxic bird feed products, knowing the products would be widely used to feed birds at purchasers' homes, in back yards and in wild and natural environments across the United States."

The products in question were marketed under names including Country Pride, Morning Song, Scotts Songbird Selections and Scotts Wild Bird Food, according to the complaint.

The class claims that Scotts started adding the insecticides Storcide II and Actellic 5E to its bird feed in November 2005 to prevent insect infestation of feed grains during storage. They claim those insecticides were not authorized for use by the Environmental Protection Agency and that the EPA specifically warns that Storcide II is extremely toxic to birds, fish and other wildlife.

The government filed a criminal action against Scotts Miracle-Gro in 2012 for treating 73 million units of wild bird food with insecticide that is actually toxic to birds.

Scotts pleaded guilty to pesticide misuse, and agreed to pay a penalty of $4 million and make a charitable donation of $500,000.

However, the plaintiffs in the consumer class action cannot have access to a presentence report from Scotts' criminal case, the Sixth Circuit ruled Thursday after grilling attorneys at oral arguments in April.

Scotts inadvertently produced unredacted copies of its objections to the report from the criminal case in the course of discovery, and requested that the plaintiffs destroy the unredacted documents.

Judge Richard Suhrheinrich, writing for the three-judge panel, agreed with Scotts that the consumers showed they have no "special need" for this disclosure.

"Disclosure of objection letters could thus, in some circumstances, threaten government informants and undermine criminal investigations," the 24-page opinion states. "Routine disclosure of objections could very well stifle parties' willingness to object to the contents of the [presentence report] at all."

The consumers have not shown that their need for this information overrides the policy concerns that advocate for keeping presentence reports and objections thereto confidential, the Cincinnati-based panel ruled.

"The information plaintiffs seek is available from multiple other sources in addition to the sentencing transcript. Plaintiffs may retain their own experts to comment on the toxicity of the bird seed, depose Scotts's experts and employees on this subject, or acquire the underlying documents that the government and Scotts relied upon to reach the conclusions contained in their objections," Suhrheinrich said.

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