STATE OF MICHIGAN

IN THE COURT OF CLAIMS

VIRIDIS LABORATORIES, LLC, and

VIRIDIS NORTH, LLC,
Case No. 21-000219-MB
Plaintiffs,
Hon. Christopher M. Murray
v

MICHIGAN MARIJUANA REGULATORY

AGENCY, ANDREW BRISBO, Individually,
JULIE KLUYTMAN, Individually,
DESMOND MITCHELL, Individually,
CLAIRE PATTERSON, Individually,

Defendants.
/

DEFENDANTS’ 12/15/2021 MOTION FOR RECONSIDERATION AS TO

SCOPE OF THE COURT’S 12/03/2021 PRELIMINARY INJUNCTION

Defendants Marijuana Regulatory Agency, Andrew Brisbo, Desmond

Mitchell, Claire Patterson, and Julie Kluytman (collectively, the MRA Defendants),

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through their attorneys, file this motion for reconsideration pursuant to Local Rule

2.119(F)(1), and respectfully request that this Court reconsider and modify the

scope of injunctive relief contained in its 12/03/2021 Order with respect to one

subset of marijuana products that were recalled from Plaintiff Viridis North. For

this motion, the MRA Defendants state:

1. On December 3, 2021, this Court issued an Opinion and Order on

Plaintiffs’ motion for a preliminary injunction that sought to enjoin the MRA’s recall

on products that were tested by Viridis Laboratories, LLC (“Viridis Lansing”) and
Viridis North, LLC (“Viridis North”) between August 10, 2021 and November 16,

2021.

2. This Court GRANTED the injunction with respect to all products

recalled from Viridis North, but DENIED the injunction as to Viridis Lansing, as

well as all other relief. (12/03/2021 Op and Order, p 13.)

3. At the injunction hearing held on December 1 and 2, 2021, the MRA

Defendants did not yet know the specific results of the retesting that had been

performed on recalled Viridis North products. (Ex 1, Affidavit of Claire Patterson.)

The MRA Defendants represented to the Court that of the total retesting that had

been performed as of the hearing (which was an aggregate of both Viridis Lansing

and Viridis North), 27% had shown “failing” results. (Op and Order, p 12.) At that

time, the MRA was not able to provide a more specific breakdown of how much of

the retested product was from each location. (Ex 1.)

4. The Court recognized that with respect to the preliminary injunction

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factor for potential harm to the public, these failing results of recalled products

“causes one to pause.” (Op and Order, p 12.) But without more specific information

available at that time, the Court found the overall 27% failure rate to be “somewhat

inconclusive” and concluded that the harm to the public interest “weighs about

equally.” (Id.)

5. The MRA is now able to provide more specific information about the

recalled products from Viridis North that were either retested or were in the process

of being retested at the time of this Court’s December 3 order.

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 6. As of December 6, 2021, 221 samples of recalled Viridis North source

packages have been retested by means of a microbial testing panel. A microbial

testing panel tests for the presence and/or amount of the following microbials:

E.coli, total coliforms, Salmonella, Aspergillus, and total yeast and mold. (Ex.1) The

221 source packages had either completed retesting or were in the process of being

retested for microbials as of December 3, 2021. (Ex 1.)

7. Of those 221 source packages from Viridis North, the MRA has

received results showing that 58 failed, which means 26% of the Viridis North

recalled and retested source packages as of December 6, 2021 failed microbial

retesting, specifically for total yeast and mold, aspergillus, and/or total coliforms.

(Ex 1, 2.) For reference, a “source package” is a package of marijuana product after

it has been harvested. Source packages are then broken down into various amounts

known as a “derived” or “child” package. A “derived” or “child” package could, in

turn, contain numerous individual packages to be sold to consumers. The 58 source

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packages that have been retested represent 1,050 derived packages. (Ex.1) There

is no way for the MRA to quantify how many individual “for sale” product units

these packages represent until the retailer sells the product and updates that

information in METRC. (Ex.1)

8. METRC is the state-wide monitoring system for seed to sale tracking

of marijuana in Michigan. Marijuana is tracked with tag numbers as it moves

through the market from a grower to, ultimately, a retailer. (Ex.1)

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 9. Test results, including retest results, are logged into the METRC

system by the laboratory conducting the test. The METRC system, as a fail-safe to

prevent contaminated product from being sold, does not allow the MRA or a

licensee-user to delete a test result. The general public does not have access to the

METRC system and therefore does not have access to the retesting results. (Ex.1)

Unless retailers inform their customers, there is practically no way for a consumer

to make an informed choice on the risk of purchasing product that ultimately failed

retesting, but is currently allowed to be sold due to the Court’s 12/3/21 order

enjoining enforcement of the 11/17/21 recall on Viridis North.

10. The presence and level of microbials in these products poses a real and

significant health hazard to unknowing consumers who may ultimately purchase

and consume these products, particularly those individuals who are medical

marijuana patients, as they necessarily have debilitating medical conditions.

Moreover, 67.5% of the 1,050 derived packages that failed retesting is medical

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marijuana. (Ex 1.)

11. Absent a modification of the Court’s order, those 58 failed source

packages, which could ultimately make up hundreds of individual “for sale” items,

either have been or are in the process of being returned to the market and

potentially available for purchase and consumption by the public. (Id.) In fact,

some of those products may have already been returned to growers or provisioning

centers and placed for sale to the public. (Id.)

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 12. As this Court correctly observed, “[p]ublic safety concerns are one of

the main purposes and duties of the MRA[.]” (Op and Order, p 13.)

13. Indeed, protecting public health and safety when it comes to the

recently legalized market for marijuana products is of paramount concern to the

MRA.

14. In light of the now-known failing results for some Viridis North

products, the MRA should not be compelled to turn a blind eye to the obvious

hazard of returning products to the market that have – in fact – failed a microbial

testing panel.

15. Modifying the injunction to account for this specific subset of Viridis

North products does not foreclose Viridis North’s ability to pursue its underlying

claims on the merits; rather, it rightly rebalances the “public interest” factor (which

this Court originally found to be balanced “about equally”) to take into account the

potential harm to the public that would come from enjoining the Viridis North recall

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in full.

16. Under LR 2.119(F)(3), the moving party “must demonstrate a palpable

error by which the court and the parties have been misled and show that a different

disposition of the motion must result from correction of the error.”

17. This Court is vested with “considerable discretion” in determining

whether to reconsider its decision to grant a full injunction as to the Viridis North

recall. Kokx v Bylenga, 241 Mich App 655, 658 (2000).

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 18. The new evidence regarding the retesting results, which was not yet

available at the time of the hearing and the Court’s decision, is an appropriate basis

for this Court to reconsider its decision to fully enjoin the recall of Viridis North

products. See Yoost v Caspari, 295 Mich App 209, 220 (2012) (noting that a trial

court has discretion to decline to consider evidence that could have been presented

at the time of the decision).

19. Specifically, this information significantly impacts the “harm to the

public interest” factor for injunctive relief, and should tip the balance in favor of

denying the injunction as to this narrowly-defined subset of products that were

originally recalled from Viridis North.

20. To be clear, the MRA Defendants are seeking reconsideration as to

products that were tested by Viridis North that (1) were subject to the November

17, 2021 recall; (2) had been retested or were in the process of being retested when

the Court issued its injunction on December 3, 2021; and (3) failed microbial

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retesting.

21. Given the immediate and ongoing harm to the public of having these

products on the market, the MRA Defendants ask that the Court act as promptly as

possible to grant the relief requested in this motion.

22. Pursuant to Local Rule 2.119(A)(2), counsel for the MRA requested

concurrence in the relief sought herein from Plaintiff’s counsel via email on

December 14, 2021. Plaintiff’s counsel did not acquiesce in the relief sought;

therefore, it is necessary to present this motion to the Court.

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 Therefore, the MRA Defendants respectfully request, pursuant to LR

2.119(F)(1), that this Court reconsider the scope of its December 3, 2021

preliminary injunction, and modify its order to DENY Plaintiffs’ motion for a

preliminary injunction as to the recalled products described in Paragraph 20.

Respectfully submitted,

/s/ Alyssa A. Grissom

Risa Hunt-Scully (P58239)
Alyssa A. Grissom (P82329)
Erika N. Marzorati (P78100)
Assistant Attorneys General
Licensing & Regulation Division
525 West Ottawa Street
P.O. Box 30758
Lansing, Michigan 48909
Telephone: (517) 335-7569
Dated: December 15, 2021 Fax: (517) 241-1997

LF: 2021-0335175-A \ Viridis Laboratories v MRA, Brisbo, et al (COC) \ Ds’ Mtn for Recon. of 12/3/21 order – 2021-12-15

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EXHIBIT 2:

Table A. Packages tested by Viridis North and subsequently re-tested by another

laboratory (non-Viridis) for a complete microbial panel from 8/10/2021 –
12/6/2021. The data were sorted to remove all duplicates and include only unique
package sources. The percentages passed/failed are reflective of the current status
each package has in METRC.

Total Total
Total unique
Source Source Percent Percent
source
Packages Packages Passed Failed
packages:
(pass) (fail)
221 163 58 74% 26%

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1
Exhibit 2