Our law firm handles Philips CPAP machine lawsuits for injuries from the recalled Philips CPAP machine. After the settlement, we are still reviewing new cases.
The Philips recall covered an estimated 3.5 million sleep apnea devices. There is a CPAP class action lawsuit with thousands of plaintiffs consolidated into a multi-district litigation (MDL-1230). So every Philips CPAP lawsuit in federal court – filed in New York, California, Texas, or wherever – is consolidated in federal court in Pennsylvania.
Victims also want to know what our lawyers think CPAP lawsuit settlement amounts might look like and when the CPAP lawsuit might be settled. So we provide below educated speculation of what settlement payouts – which admittedly could be off now – could be for a CPAP lawsuit and talk about the path to a Philips CPAP lawsuit payout for victims.
Our Philips CPAP lawyers also provide news and updates on the CPAP class action lawsuit, so come back regularly. This page was last updated on April 29, 2024, as we all try to get up to speed on this settlement.
Latest CPAP Lawsuit Updates
Let’s start with the latest CPAP lawsuit updates so you can understand where we are in this litigation in 2024 and the new settlement announcement.
April 29, 2024: There are reports of a CPAP personal injury settlement for $1.1 billion this morning. Phillips stock is soaring this morning. Many had put the estimated cost to Phillips at $2 billion and $4.5 billion to settle personal injury and wrongful death lawsuits. When will the CPAP payout occur? We are most likely looking at 2025 for victims to receive settlement checks.
The settlement “covers all the claims in the US, even the ones that would come in still over the next six months,” according to an interview Phillips’ CEO gave this morning.
Here is the statement from the steering committee of plaintiffs’ lawyers who, due to the eccentricities of mass tort lawsuits, negotiated the deal for other lawyers’ clients:
The agreements with Philips will provide compensation to those users of the now-recalled CPAP and other respiratory devices who suffer from significant physical injuries and important research for the treatment of those injuries.
Ultimately, these combined agreements accomplish what we sought to achieve when this litigation began – holding Philips accountable by obtaining care for those with physical injuries and compensation for those needing new respiratory devices.
That does not tell us much about this CPAP settlement. I don’t know if it is a good or bad settlement… we have to see what the game plan is and how it will play out.
This is what Philips is telling everyone about the settlement. Regardless of whether eligible individuals have initiated a lawsuit, registered in the census, or have taken no action, they will have a six-month period from the date of the settlement to enroll in the settlement. We have 59,000 cases – assuming for a moment all qualify – and still counting to split up $1.1 billion.
One thing is certain. We need to know how many claims there are and how many of these claims are actually viable.
We have just now reopened up the comments section below for any comments or questions you may have.
April 16, 2024: Our CPAP lawyers are narrowing the claims we are handling. We are start first with respiratory conditions:
| Respiratory Injuries |
|---|
| Asthma |
| COPD |
| Pneumonitis |
| Sarcoidosis |
| Interstitial Lung Disease |
| Bronchiectasis |
| Bronchiolitis Obliterans |
| Acute Respiratory Distress Syndrome |
| Bronchitis |
| Lung Irritation/Inflammation |
| Pulmonary Fibrosis |
We have also narrowed the type of cancer our attorneys think we can prove are related to CPAP:
| Cancer Types |
|---|
| Oral cavity |
| Oropharynx |
| Nasal Cavity/Sinus |
| Nasopharynx |
| Larynx |
| Hypopharynx |
| Salivary |
| Esophageal (upper and mid)(squamous cell carcinoma) |
| Lung |
| Blood |
| Thyroid |
April 12, 2024: A new CPAP cancer lawsuit was recently filed asserting that the use of a DreamStation CPAP machine by a Kentucky man for six caused him to be diagnosed with breast and bone cancer in February 2023.
The suit alleges that Philips, the manufacturer, was aware of the risks associated with the polyester-based polyurethane foam used in the machine. This foam reportedly can degrade and release toxic particles that users might inhale, potentially leading to severe health consequences. The plaintiff claims to have suffered considerable physical and emotional distress due to these defects, including invasive cancer treatments and the associated aftereffects.
April 10, 2024: A consent decree between Philips and the FDA has been officially approved by the court. This legal agreement stems from identified problems with certain Philips Respironics sleep and respiratory care devices, leading to a significant action taken by regulatory authorities.
Under the terms of this decree, Philips’ Respironics must halt the production of most sleep and respiratory devices at three of its facilities located in Pennsylvania. This directive will remain in effect until Philips meets the specific requirements set out in the consent decree. So the company is prohibited from selling new CPAP, BiPAP, , or other respiratory care devices within the U.S.
The consent decree mandates that the defendants engage external experts to conduct inspections of their Sleep and Respiratory Care facilities, aside from those already identified, to ensure compliance with the Federal Food, Drug, and Cosmetic Act (FDCA). These experts are tasked with identifying and rectifying any deficiencies, as well as reviewing the testing of foam- the key issue in this litigation – used to replace the sound abatement foam in recalled devices.
The decree also grants the FDA the authority to apply specific injunction provisions to additional facilities owned by the corporate defendants if future inspections reveal non-compliance with the FDCA and relevant regulations. This measure is designed to ensure comprehensive adherence to safety and regulatory standards across all of the company’s operations.
The consent decree likely follows a period of intense regulatory scrutiny prompted by concerns over the safety and reliability of Philips’ devices, which may have included issues such as the degradation of foam used in the machines that has spawned these CPAP lawsuits. This legal and regulatory action aims to ensure that Philips addresses these concerns comprehensively before its products can re-enter the U.S. market so this kind of disaster is never repeated.
Does all this give more moral authority to the Philips CPAP class action lawsuit and does it help push Philips to a more reasonable settlement? Yes and yes.
April 5, 2024: Philips has warned about a malfunction risk in some of its ventilators that could lead to a sudden loss of power, marking another chapter in the company’s ongoing product safety challenges. The Trilogy Evo, Trilogy Evo O2, and Trilogy EV300 models might experience issues. Despite having adequate battery life, these ventilators could mistakenly signal a low battery or power failure alert.
Of course, my reflex is to say here we go again. But the optimist way of looking at it is at least Philips is getting out in front of its problems. There are no reported injuries or deaths, maybe because Philips addressed the problem quickly. We cannot say the same thing in the CPAP recall, where there are hundreds of reported deaths. Had Phillips jumped on the CPAP problem when it became known to them, many lives would have been saved. Philips also would have saved billions in legal costs and settlement payouts
April 1, 2024: Only 14 new cases were added to the Philips CPAP recall class action MDL over the last month. That brings the current total of pending cases to 762, up from 755 at the start of the year.
March 20, 2024: A fair question is whether anyone can make a decent CPAP machine. A worldwide recall for all Sleepnet CPAP and BiPAP masks containing magnets has been initiated due to risks of interference with other medical implants. This interference might cause the implants to malfunction or move, potentially leading to severe injuries or even fatalities. The recall, which affects the Mojo, Mojo 2, iQ 2, and Phantom 2 masks, was confirmed by the FDA on Tuesday.
These masks use magnets to maintain their position, but these same magnets could pose risks to individuals with certain medical implants when they come too close.
After post-market surveillance identified the issue, Sleepnet first announced this global recall at the start of March. The FDA has since classified this as a Class I recall, signifying a high risk of serious injuries or death. However, there have been no reported injuries or deaths associated with the recalled masks, and hopefully, there will not be any.
March 13, 2024: CPAP lawyers for Philips asked a federal court to dismiss a multi-district lawsuit criticizing how the recall was managed, along with various fraud and consumer protection allegations.
Philips argues that even if they did botch the recall (and they most certainly did), claims regarding the recall and subsequent actions are overridden by the Federal Food, Drug, and Cosmetics Act, which prohibits individuals from implementing FDA regulations or seeking damages based on violations of the FDCA and FDA guidelines.
I’m unsure how the law works or whether Philips has a viable argument. This has nothing to do with the CPAP personal injury and wrongful death lawsuits that our lawyers are focused on in the MDL.
March 8, 2024: MDL Drops 12 Cases
Last summer, we saw a significant uptick in the volume of new cases added to the CPAP recall MDL, but that volume had already started slowing down by the end of the year. Last month, however, the number of pending cases in the CPAP recall MDL decreased from 760 to 748 due to dismissals.
March 1, 2024: Conference With MDL Judge
Yesterday, attorneys involved in the Philips CPAP lawsuits met with Judge Conti to discuss where we are in this litigation. They reviewed the upcoming deadlines as we select representative claims for early trial dates in 2025.
Most people reading this do not care about the trivialities of the lawyers’ work and are rolling their eyes at a 2025 trial date. You want to know when the CPAP lawsuits will settle.
I really do not know. Phillips has said it wants a CPAP settlement this year. Philips aims to reach a global settlement in 2024 because this is a public relations fiasco. But the diverse nature of the alleged health complications presents challenges in the path to a global settlement. However, the bigger problem is that we will not have a CPAP trial date until 2025, and trial dates are often necessary to pressure companies to settle.
February 23, 2024: Preserving Recalled Devices
One big issue in this litigation is preserving the recalled devices. Yesterday, CPAP lawyers submitted a proposed Preservation Order concerning recalled medical devices by Philips and associated parties. This order is a collaborative request from both plaintiffs’ and defendants’ counsel, aimed at managing the preservation of certain recalled CPAP, BiPAP, and mechanical ventilator products involved in ongoing litigation.
The order aims to establish protocols for preserving these devices, which are crucial for the litigation process, ensuring that both parties have fair access to the evidence needed to prosecute or defend their cases. The detailed protocols for preservation include how the devices should be stored and maintained, highlighting the efforts to minimize any further degradation of the devices’ condition, which could affect the outcome of the litigation. The document also outlines obligations for both Philips and the device users in preserving these devices, ensuring a comprehensive approach to evidence preservation.
February 16, 2024 – CPAP Settlement Progress
Today, a settlement mediator appointed by Judge Conti will update the status of CPAP settlement negotiations.
February 15, 2024: Medical Monitoring
The Special Master recommended that Respironics’ motion to dismiss the medical monitoring complaint be granted in part. This recommendation was based on the analysis of tort claims under the laws of 30 states that adhere to the traditional “manifest physical injury” rule, suggesting that claims under these states’ laws should be dismissed due to the lack of alleged manifest personal injury.
The recommendation was to deny the motion to dismiss in all other respects. This implies that in jurisdictions not strictly requiring a manifest physical injury for medical monitoring claims or where the law was interpreted to potentially allow for medical monitoring based on subcellular changes or economic loss, the claims should not be dismissed at this stage.
The MDL judge did not adopt this recommendation. The court asked the Special Master for further analysis, specifically instructing a detailed examination of state laws concerning medical monitoring claims. The judge emphasizes the need for a clear roadmap on how each claim under each state law should be treated, particularly regarding the requirements for manifest physical injury and the possibility of claiming subcellular injuries.
February 8, 2024: PolyTech
Polytech is another defendant in this case that we have not talked much about. The claims against Polymer Technologies and Polymer Molded Products, LLC (collectively referred to as “PolyTech”) are centered around their role in supplying component parts—specifically, the foam called PE-PUR that is central to this litigation—used in these devices.
Plaintiffs allege that the PE-PUR foam supplied by PolyTech contributed to the harm caused to victims because the foam could degrade and release harmful particles or gases, potentially leading to health issues for users of the devices.
Polytech filed a motion to dismiss, arguing that it cannot be held liable under the component parts doctrine because it did not control the incorporation of its foam into the final products. But the court this month denied the motion to dismiss on this ground, noting that PolyTech’s role in selecting and modifying the foam for use in the devices may fall within an exception to the component parts doctrine.
Obviously, Philips is the focus of this case. But it’s a good thing that another culpable defendant may be available to chip into the billions of dollars needed for a global CPAP settlement.
February 7, 2024: Another Philips Recall
Royal Philips NV has initiated a recall for an older model of its medical scanning equipment following the discovery of possible component malfunctions, highlighted by a customer’s feedback.
This is a Class I recall, but it is not that big of a deal. But this company is having a rough go of it, right?
February 6, 2024: CPAP Death Total
Recalled Philips CPAP, BiPAP, and other breathing assistance devices have been linked to at least 561 deaths, according to federal regulators. These fatalities, reported since 2021, are part of nearly 120,000 who have had serious health problem cases attributed to the devices’ toxic sound abatement foam.
There was a time last year when our law firm had a lull of new client CPAP calls. But the latest news of Philips halting sales was a big story that really increased awareness. Now our lawyers are getting as many calls as we have had since the recall was announced in 2021.
February 2, 2024: Only 5 Cases Added to MDL in January
Despite recent speculation about a potential global settlement in the coming months, the CPAP recall MDL docket remained sluggish in January, with only 5 new cases added. This brings the total number of pending cases to 760. Tens of thousands of cases are in the registry, which makes this number a bit misleading.
January 30, 2024: Philips Will Stop CPAP Sales in U.S.
Yesterday Philips announced that it has agreed to halt all future U.S. sales of CPAP and BiPAP sleep apnea devices. The move comes as part of a tentative settlement agreement with U.S. regulatory authorities who have been investigating the company over product safety concerns.
This is a really big deal that is estimated to cost Philips around $400 million. Rarely do you see a major company like Philips agree not to sell products anymore. The fact that regulators were pushing for this is a clear indication of what they think of Philips and its devices.
I go back to what I have been telling you. The evidence of Philips’s negligence is plentiful. We do not need more. What we need most is for Philips to stay financially healthy and stay out of bankruptcy.
January 22, 2024: New CPAP Lawsuit
A new survival death/wrongful death CPAP lawsuit filed in state court in Illinois alleges that a man’s death from moderately differentiated invasive adenocarcinoma was caused by his use of the recalled Philips CPAP machine.
The decedent started using the Respironics System One CPAP Machine to treat sleep apnea on January 11, 2012. He stopped using it when he discovered a Philips product recall, which included his CPAP model.
Adenocarcinoma is a common type of cancer that arises from glandular tissues in the body, which are responsible for producing and secreting various substances. This form of cancer typically develops in organs with significant glandular structures, such as the lungs, breasts, prostate, pancreas, and colon. The cells in adenocarcinoma originate from the lining of these glands. They vary in appearance, ranging from well-differentiated (closely resembling normal cells) to poorly differentiated (very abnormal and unlike normal cells).
It is hard to evaluate a Philips CPAP lawsuit for settlement without reviewing the entirety of the medical records. But if this man was a nonsmoker – smoking is a well-established risk factor for adenocarcinoma – this case has all the making of a very strong CPAP claim.
The case, initially filed in Cook County, Illinois, will likely be moved to the Northern District of Illinois, Eastern Division, under federal law. This lawsuit will be consolidated into the CPAP machine class action lawsuit in the Western District of Pennsylvania, which houses all these suits in federal court.
January 19, 2024 – Resmed Mask Recall
Yesterday, the FDA announced a recall of certain Resmed masks used for treating sleep apnea. This recall is due to a safety issue involving the masks’ magnets, which can potentially interfere with certain implanted metallic medical devices or metallic objects in the body, leading to injuries or even death. The models affected by this recall include the AirFit and AirTouch. This recall has been classified as Class I, indicating it is of the most serious type.
This has nothing to do with the CPAP Respironics litigation but many of you are now using Resmed after the recall so I wanted to make sure you were aware of this.
January 16, 2024 – 755 Cases in the MDL
There are now 755 pending cases in the Philips CPAP recall class action MDL. Only 13 new cases have been added to this MDL over the last three months after we saw over 200 cases added in the summer of 2023.
The most recent CPAP claim, filed last week, is a wrongful death lawsuit. The plaintiff, acting as the executor of the deceased’s estate and under Illinois law, filed a lawsuit following the death of the deceased, who had purchased a Respironics System One CPAP Machine from Sleep RX, LLC, around nine years before its 2021 recall.
The deceased used this device for treating sleep apnea until becoming aware of the recall. In 2022, the deceased was diagnosed with moderately differentiated invasive adenocarcinoma and passed away on July 27, 2022, due to complications related to this cancer. The lawsuit alleges that the deceased’s cancer and subsequent death were a direct result of using the CPAP machine.
The plaintiff leveled multiple allegations against various defendants. Against Philips and the Burnett Defendants, the plaintiff asserts claims for strict product liability, negligence, and breach of express and implied warranties. Similarly, claims against Sleep RX include strict product liability, negligence, and breaches of express and implied warranties. The essence of these allegations is that the defendants’ actions or the failure thereof contributed to the deceased’s illness and death.
January 14, 2024 – Consequence of Moving Slowly
There are no fast-moving MDLs. But everyone should remember that delayed justice is denied justice.
A “Suggestion of Death” notice was filed in the MDL on Thursday. A “Suggestion of Death” notice is a formal document filed in a court case that officially informs the court of a party’s death. The purpose of this notice is to alert the court and all parties involved in the case that one of the litigants has passed away. Practically, it means a personal injury lawsuit will become a wrongful death lawsuit, a survival action, or both.
It just underscores for everyone – or should anyway – the importance of doing everything possible to push the ball forward toward a resolution.
January 10, 2024 – Lawyers Seek Fees in CPAP Consumer Class Action
Lawyers representing consumers who purchased Philips ventilators with faulty insulation foam have requested $95 million in fees and expenses from a Pennsylvania federal court. Again, these are not personal injury or wrongful death lawsuits but a CPAP consumer class action lawsuit that settled for $500 million. How much did plaintiffs get? Plaintiffs will receive compensation between $55 to $1,552 per recalled device and $100 for each returned device.
So the lawyers get a lot of money while the consumers walk away with less than $2,000. But, truthfully, I don’t know why we would care. Philips is fine with the $95 million. I’m just happy to clear the decks with this CPAP Respironics settlement so everyone can drill down on getting the CPAP personal injury and wrongful death lawsuits prepared for trial or settlement in 2024.
Lawyers I talk to are trying to get every last case that they can in expectation of a CPAP settlement in 2024. So are we. If you have a viable CPAP lawsuit, call us today.
January 8, 2024 – Philips Blames SoClean
Philips alleges that SoClean’s products contributed to the degradation of insulating foam in some of the machines in the CPAP recall. SoClean is, as most of you know, a brand that produces ozone-cleaning machines primarily marketed for cleaning CPAP machines. Specifically, it claims SoClean knowingly causing damage to its machines with their ozone cleaners while simultaneously misleading distributors and consumers with inaccurate claims about the cleaners being safe for use with Philips’ respiratory devices.
January 4, 2024 – The “Best” CPAP Lawsuits
CPAP lawyers mostly agree that the CPAP lawsuits with the best settlement value are cases where the victim has been diagnosed with lung cancer, head cancer, or neck cancer. The science is good on these cases, and it also makes intuitive sense to a jury because the injury is near the chemical exposure. If the victim was a smoker, that will make the lung cancer claims more challenging.
Next in line, at least in our minds, is asthma, Stage 4 COPD, pneumonitis, pulmonary fibrosis, or sarcoidosis. After that, our attorneys also think liver cancer and injury cases and kidney cancer and disease cases may also be strong.
January 1, 2024 – Plaintiffs’ File Response to Philips Discovery Motion
In the final days of 2023, the CPAP Plaintiffs filed a response to recent discovery motions filed by Philips seeking to compel the production of wide-ranging documents. In the response, the plaintiffs accuse Philips of seeking “broad private and privileged information.” Otherwise, it was very slow week in the CPAP MDL.
December 22, 2023 – Another Philips Recall
Philips needs to get its act together. In yet another recall, the company recalled an MRI system after concerns about the potential for explosions due to excessive helium gas pressure buildup. This recall, categorized as Class I by the FDA—the most severe type—comes amid one reported incident of an explosion, which Philips attributed to non-compliance with its guidelines. For context, there are approximately 340 Panorama systems, with 150 units in the U.S. And there have been no injuries or serious harm have been reported with the MRI device. But this just adds to Philips’ ongoing challenges with their sleep therapy products.
December 19, 2023 – MDL Adds 12 More Cases
The Phillips Respironics CPAP recall MDL only added 12 new cases this last month, bringing the current total of pending cases up to 754. Over the summer, we saw a significant spike in new case filings in this MDL. Since then, however, the new case volume has dropped back to about 10-15 per month.
November 29, 2023 – Upcoming CPAP Deadlines
Below are the latest deadlines the court has set in the CPAP class action lawsuit:
| Date | Event |
|---|---|
| 2/16/2024 | Settlement Mediator Welsh report to Court on status of mediations of personal injury claims. |
| 4/30/2024 | Conclusion of general causation fact discovery. |
| 5/30/2024 | Plaintiffs’ Rule 26(a)(2) expert disclosures on general causation. |
| 7/30/2024 | Defendants’ Rule 26(a)(2) expert disclosures on general causation. Conclusion of generally applicable fact discovery, including Defendant and non-party depositions. |
| 8/30/2024 | Parties to submit stipulated or competing proposals for selecting individual bellwether personal injury cases. Plaintiffs’ Rule 26(a)(2) rebuttal expert disclosures on general causation. |
| 10/30/2024 | Deadline to complete expert depositions on general causation. |
| 12/2/2024 | Deadline to file Rule 702/Daubert motions on general causation experts. |
| 1/17/2025 | Deadline for Parties to file oppositions to Rule 702/Daubert motions on general causation experts. |
| 2/18/2025 | Deadline for reply briefs on Rule 702/Daubert motions on general causation. |
| 3/2025 or 4/2025 | Potential hearing date on Rule 702/Daubert motions on general causation (subject to Court’s scheduling). |
So, while we hope for a CPAP settlement in 2024, we will hopefully see a trial in 2025 if the settlement does not pan out.
November 17, 2023 – MDL Contracts in Size
The CPAP recall MDL has tripled since the start of 2023, posting an average of around 50 new cases per month between January and October. Curiously, however, the CPAP recall MDL shrunk over the last month, going from 784 to 742 pending cases. It is currently not clear what, if anything, prompted this.
November 3, 2023 – Special Master Recommends Denial of Philips Motion
A Special Master submitted a Report and Recommendation to the CPAP recall MDL judge advising the court to reject virtually all of the arguments set forth by Philips in its prior motion to dismiss. Last week, Philips objected to the Report and Recommendation, seeking to reassert its arguments. The judge will almost certainly follow the Special Master’s recommendation and dismiss the motion.
October 23, 2023 – Philips Announced Further Recalls
Another Philips recall? Incredible. Philips Respironics has announced a recall of its V60 and V60 Plus Ventilators. The reason? The Power Management Printed Circuit Board Assemblies in these ventilators don’t meet the required standards, says the FDA.
The recall concerns nine ventilators: eight in the U.S. and one in the Philippines. An external warehouse supplied these PCBAs. Philips stock is down 4% this morning.
October 17, 2023 – CPAP MDL Adds 70 New Cases
Over the last month, only 70 new cases were added to the Philips CPAP recall MDL. That brings the total number of pending cases in the class action up to 784 and marks a slight decrease in the new cases we have recently seen.
October 12, 2023 -CPAP Class Action Settlement (Consumer Claims) Update
Under the CPAP consumer class action settlement terms, the Philips companies have agreed to pay a minimum of $479 million. This compensation will go to individuals who paid for the affected breathing machines out of their own pockets and to insurance companies that reimbursed users for these machines.
Consumers impacted by the recall may receive compensation ranging from $56 to $1,552, with an additional $100 offered to those who return their recalled devices. The settlement is awaiting final approval, scheduled for April 11, 2024. Plaintiffs’ lawyers are, of course, seeking attorneys’ fees and litigation costs to the tune of $95 million.
Remember, this settlement has nothing to do with the personal injury and wrongful death lawsuits our firm is pursuing. Those CPAP machine lawsuits are still pushing forward.
October 7, 2023 – Phillips CPAP Recall Going Poorly… Still Two Years Later
The FDA is still unhappy with the progress of the Philips CPAP recall two years later.
What is the problem? The concern is the testing data submitted does not sufficiently address the concerns related to the degradation of sound-dampening foam – the core issue in the recall and every CPAP lawsuit that has been filed. Philips says the foam particle exposure is likely to be harmless. It would be more reassuring if Phillps had any credibility on this issue.
October 6, 2023 – Joint Motion Seeks to Revise Plaintiff Fact Sheets
With the CPAP recall, MDL is starting to grow at a faster pace. Both the plaintiffs and defense lawyers recently filed a joint motion for some amendments to the mandatory Plaintiff Facts Sheets. The revisions to the PFS aim to streamline the process of identifying critical facts for incoming personal injury plaintiffs in the litigation.
September 23, 2023 – Lawyers Withdrawing from Filed Cases
In every mass tort claim, attorneys and clients have differences. In two cases in the MDL, a CPAP lawyer had sought to be excused from representing a client who had filed a CPAP lawsuit, citing “irreconcilable differences.”
Judge Flowers ordered the withdrawing lawyer to provide the client with the request to withdraw and inform them that they have 21 days to raise any objections to this request upon receiving it. Furthermore, the attorney must document in the case records that they have delivered the request to the client and communicated the 21-day objection period to the client.
Clients tend to get frustrated by two things: (1) lack of communication and (2) the need for more advancement in their case. In this case, the first complaint is valid; the second is just the nature of the beast.
September 18, 2023 – MDL Passes 700 Cases
For the fifth straight month in a row, the Philips CPAP recall class action MDL has posted an increase in the monthly volume of new cases. There are now 716 total cases pending in the MDL, an increase of over 200 since the start of this summer.
September 7, 2023 – Philips CPAP Settlement
Koninklijke Philips has agreed to pay a minimum of $479 million to settle part of the ongoing litigation related to the 2021 recall of sleep apnea machines.
The CPAP lawsuit our law firm is focused on – the injury and wrongful death cases – is unaffected by this settlement. Still, it is progress; this had to get done first. Philips CEO said that these economic loss cases – for refunds, etc. – would get solved this year and the injury and death claims would get solved next year. So we are on pace for that.
Analysts estimate that Philips might face settlements of up to $4.5 billion for personal injury lawsuits associated with the recalled devices.
September 1, 2023 – Few Plaintiff Seek Remand Out of MDL
Yesterday was the deadline for any plaintiffs in the CPAP class action MDL in federal court to file motions to remand their cases back to state court and out of the MDL. In the last two weeks of August, only three motions to remand were filed. This is a good indication that the CPAP plaintiffs feel confident that their scientific evidence will be deemed admissible by the MDL judge. If there were doubts or concerns, we probably would have seen many more remand motions from plaintiffs seeking to bail out.
August 18, 2023 – New CPAP Lawsuit
A new CPAP lawsuit – Haffner v. Philips North America LLC – was filed last week in Illinois.
The plaintiff acquired a Philips Respironics REMstar SE Auto REMstar CPAP device and consistently used it every day for seven years until late 2021. On September 1, 2021, the plaintiff became aware of Philips’ recall of numerous CPAP devices after being informed by his doctor.
His CPAP suit alleges that his CPAP caused his kidney cancer diagnosis, resulting in the need for the removal of his right kidney and adrenal gland in 2022.
He and his wife seek compensation for their pain, suffering, and other damages. The case was filed in federal court in Illinois but will be transferred to the CPAP MDL in Pittsburgh.
August 17, 2023 – 25 More Cases Added to MDL
Only 25 new cases were added to the Phillips CPAP class action MDL over the last 30 days, leaving the total number of pending cases in the MDL at 698. Our CPAP lawsuit update last month reported a record high of 125 new CPAP cases added to the MDL. The recent downtick could just be a summer slowdown. It will be very interesting to see if the volume picks back up next month.
August 15, 2023 – More Problems with Philips
Philips is facing challenges in ensuring product safety. That is a gentle as I can say it. The FDA is elevating its concerns over the potential serious health risks associated with over 70,000 Philips Trilogy Evo Ventilators. These ventilators have been recalled because of issues that could lead debris in the breathing tubes, posing life-threatening risks to patients. Yesterday, the FDA upgraded this recall to Class I because it is now associated with at least one death and two severe injuries.
This is a Class I recall which is a big deal. Class I signifies the FDA’s belief that the recalled Philips Trilogy Evo ventilators could severely harm or result in the death of patients. Philips was at one point a really good company. It is time for the board of directions at Philips to take a long look at what they are doing here. Because this company is not only endangering patients, it is endangering something maybe more dear to them: their profits.
August 2, 2023 – Long Time Frame for MDL
Based on the most recent Case Management Order, it looks like the Philips CPAP class action MDL is moving forward in the litigation slow lane. The recently updated deadlines go all the way out to February 2025, which is when the court anticipates that it will hold a Daubert hearing. That means that the first test trial would not be until June or July 2025 at the earliest.
July 18, 2023 – 125 New CPAP Cases Added to MDL
125 new CPAP recall injury lawsuits were transferred into the MDL over the last 30 days. That is the highest monthly new case volume since the MDL was created over two years ago. There are now 673 active cases pending in the class action.
July 12, 2023 – CPAP Medical Monitoring Cases
Our Philips CPAP attorneys are focusing on injury and wrongful death claims, as opposed to representing victims seeking future medical monitoring for potential complications. The multidistrict litigation involving the CPAP lawsuits also has a medical monitoring component. Philips challenged these claims in a federal court over the last two days, arguing that CPAP lawsuits failed to provide adequate evidence of the plaintiffs’ exposure to the insulating foam’s toxins or the subsequent injuries warranting long-term monitoring.
The gist of it is that the lawyers representing Philips argue that the “medical monitoring” complaint is overly speculative. The complaint failed to present a specific plan essential for monitoring those who were potentially exposed to the degraded sound-insulating foam in the CPAP and BiPAP machines and ventilators, for the early detection of possible future illnesses.
As a part of a more extensive MDL class action centralized in Pittsburgh, the lawsuits are divided into different categories. These categories include claims for economic losses, personal injuries, and those demanding long-term medical monitoring in anticipation of potential diseases.
Our lawyers are with the medical monitoring plaintiffs. Sort of. A decrease in their settlement compensation might indirectly increase the settlement payouts for wrongful death and injury plaintiffs.
Koninklijke Philips NV has set aside $633.17 million as a provision, expecting to settle the economic class action lawsuit in the U.S. linked to the company’s recalled sleep apnea devices and respirators. So their goal here is to claw back some of that money they have set aside.
July 1, 2023 – 30 New Cases Added to CPAP Recall MDL
Over the last monthly period, 30 new lawsuits were transferred into the Philips CPAP recall MDL class action. 200 new CPAP cases have been added to the MDL since the start of the year, bringing the current total up to 548.
So we are seeing an unsurprising increase in new CPAP lawsuits. But this docket was generally slow-moving in June. We expect things to heat up more after the summer.
June 1, 2023 – Some CPAP Claimants May Face Filing Deadline in 2 Weeks
Two weeks will mark the two-year anniversary of the massive Philips CPAP recall. The recall prompted a large number of CPAP device users to pursue legal claims against Philips, alleging that they were harmed by inhaling toxic particles from the machines. As that date approaches, many prospective CPAP claimants could potentially be barred if they do not file suit or register their claim with Philips. Philips will likely argue that the recall announcement put claimants on notice and started the clock ticking on the applicable statute of limitations. This means that for those claimants in states with a 2-year statute of limitations period, Philips could assert that their claims will be time-barred after June 14th. There are exceptions to the statute of limitations… but you do not want to assume one applies if you can avoid it.
The statute of limitations passing for some CPAP claims makes it easier for Philips to offer settlement payouts. Why? The announcement of a global settlement draws in more plaintiffs. If the filing deadline has passed, Philips will not have to deal with more litigation. A Philips CPAP settlement is not imminent. But we explain this to underscore one reason why mass torts take as long to settle as they do.
May 12, 2023 – 13 New CPAP Cases Added to the MDL
A month ago we saw a significant spike in the volume of new CPAP recall lawsuits filed in the MDL. We assumed this might be the start of a new phase in which we started to see 100-200 new CPAP cases added each month. But the most recent monthly case totals suggest otherwise. After last month’s record high of 64 new CPAP cases, the number of new cases dropped to 13. There are now 518 pending cases in the Philips CPAP class action.
May 12, 2023 – Philips Reaches Settlement With SEC
Philips, already facing scrutiny for its handling of CPAP safety issues, has again come under the spotlight. The company has been hit with a $62 million settlement by the SEC over alleged violations of the Foreign Corrupt Practices Act in relation to its sales of medical equipment in China. Philips has attributed the settlement to “irregularities in the medical device industry” from 2014 to 2019 in China.
May 10, 2023 – Example CPAP Lawsuit
An example of a recently filed Philips CPAP lawsuit is the case of Deidra Jackson Holmes v. Koninklijke Philips N.V., et al., (2:21-mc-1230). Jackson filed her lawsuit in the MDL using the Short Form Complaint based on using a recalled Philips DreamStation CPAP device for sleep apnea. According to Jackson’s Complaint, her use of the CPAP machine caused several injuries, including cancer (multiple myeloma) and pulmonary inflammation. She also claims that she developed severe sinus infections requiring corrective surgery.
May 1, 2023 – Money Set Aside for a Philips CPAP Settlement
On its most recent financial statements, Philips has earmarked $630 million in future costs for the settlement of consumer class action lawsuits alleging economic damages resulting from the CPAP recall.
Our firm is handling CPAP injury and wrongful death claims. This set aside is for people who only suffered economic loss. The company has previously stated that it hopes to resolve all economic loss lawsuits by the end of the year.
Philips will still have to deal with the growing number of CPAP lawsuits alleging that the recalled devices caused severe personal injuries like cancer. Philips claims it wants to resolve the injury claims next year (if not this year, its CEO tells us). Saying the price tag for settlement payouts for these cases will be significantly higher would be an understatement.
April 14, 2023 – FDA and Philips Continue to Disagree on the Color of the Sky
The FDA and Philips really disagree about where the company is in dealing with the recall.
April 1, 2023 – The Broken Record of CPAP Injuries
The FDA recently published updated data on CPAP-related health incidents reported to the agency in the last two months of 2022. During those 60 days, over 8,000 new adverse health events connected to recalled CPAP devices were reported to the FDA, and the number of CPAP-related death reports increased by 30%. Over 98,000 adverse health events and 346 deaths related to CPAP devices have been reported to the FDA.
March 13, 2023 – Plaintiffs’ Response to Philips Motion to Dismiss
Several weeks ago, Philips filed a strange Motion to Dismiss a group of CPAP cases because the MDL Short Form Complaint (SFC) used in the cases is deficient and fails to meet the minimum requirements for a lawsuit. The plaintiffs filed a response in opposition to this motion last week. The opposition points out the obvious fact that Philips reviewed the SFC and expressly consented to its use in the MDL last year without making any objection to the deficiencies alleged in the motion to dismiss. In fact, Philips and its lawyers participated in drafting the SFC. Judge Conti also had an opportunity to review the SFC before she approved its use last year, so it seems highly unlikely she will grant the motion.
February 20, 2023 – Lawsuits Filed Update
Over the last month, 62 new Philips CPAP machine lawsuits were added to the MDL. There are now 420 cases pending against Philips in the CPAP recall class action. This is the most significant single volume of new cases since the start of the CPAP litigation. It is probably the result of the claims registration program ending recently, and we anticipate that this trend will continue throughout 2023.
February 14, 2023 -Latest Adverse Event Data
The FDA released updated data on the Medical Device Reports concerning the Philips CPAP and BiPAP devices recalled in June 2021. The news is not good.
As of the recent report in November 2022, there have been 98,000 serious adverse health incidents and 350 deaths allegedly linked to the recalled devices. In the three months since the last report, the FDA has received reports of an additional 9,000 adverse health incidents and, sadly, 90 deaths related to these devices.
January 30, 2023 – Philips Continues to Feel Pain from Recall
To cut costs, Philips announced that it will cut over 6,000 jobs. Philips has been hurting financially since the CPAP recall was launched in June 2001.
January 26, 2023 – CPAP Lawsuit Update
We summarize where we are now in the CPAP class action lawsuit.
January 25, 2023 – Conflicting Proposed Trial Dates
Both sides in the CPAP MDL submitted case management proposals to Jude Conti today. The plan endorsed by the plaintiffs would give us a bellwether trial in the summer of 2024. Under the defense proposal, however, we wouldn’t get a bellwether trial until late 2025 or even early 2026.
January 18, 2023 – Three New CPAP Lawsuits But…
The Philips CPAP MDL has 358 pending cases, an increase of just three since last month.
Is this small litigation? Of course not. Thousands of CPAP recall claims have been sitting on the claim registry. It does not make sense to file a CPAP lawsuit in the MDL if you can just park your case and toll the statute of limitations, and see if a reasonable settlement offer comes your way when the litigation advances to that stage.
January 9, 2023 – New CPAP Nasal Cavity Cancer Lawsuit
Plaintiffs continue to file new CPAP lawsuits. In one newly filed suit, Kirsh v. Koninklijke Phillips, N.V. (2:22-cv-01884), the plaintiff alleges that his defective CPAP caused nasal cavity cancer. The man’s wife also filed a loss of consortium claim. Nasal cavity cancer is rare, particularly for a non-smoker.
January 4, 2023 – New CPAP Lawsuit Involving Tongue and Mouth Cancer
A Long Island man filed the Philips CPAP recall lawsuit alleging that inhalation of toxic foam particles led to oral cancer. The plaintiff’s CPAP lawsuit asserts that he had sleep apnea and used Philips CPAP devices nightly for years before he began to suffer from recurring mouth and tongue cancer. His lawsuit contends that his cancer was caused by chronic exposure to the carcinogenic chemicals he inhaled from his CPAP machine at night.
Our lawyers think the tongue and mouth cancer lawsuits against Philips will be particularly strong.
January 2, 2023 – CPAP MDL Webpage Is Finally Up
As we usher in a new year that will likely be make or break for the CPAP lawsuits, the Western District of Pennsylvania has finally published a webpage for the MDL. The new Philips CPAP MDL page features an extensive index of documents, including all court orders and a schedule for monthly status conferences. This page has taken a while. But better late than never.
December 21, 2022 – CPAP Brain Cancer Lawsuit Filed
Now that the claim registration process with Philips is over, we will see more CPAP injury lawsuits get filed in the MDL. Last week, we saw the first CPAP brain cancer case get filed. Plaintiff Salvatore DiGrazia filed a 60-page Complaint that alleges that he used one of the recalled Philips CPAP machines, cleaned it with the SoClean ozone device for many years, and was later diagnosed with brain cancer. The Complaint names both Philips and SoClean as defendants. This is the first lawsuit our attorneys have seen asserting that toxic foam particles in a recalled CPAP device caused brain cancer. We expected we would see more brain cancer cases than we have.
December 15, 2022 – Consumer Class Action Lawsuit
Philips asks the court to dismiss the consumer class action case pending for economic damages related to recalled CPAP devices. Philips claims that the named plaintiffs (and the class they seek to represent) have no standing to sue because they cannot show that the recall harmed them. Philips claims there was no harm because it offered to repair or replace recalled machines for free. In response, the plaintiffs assert that they would never have bought the CPAP devices in the first place had they known about the risk.
November 24, 2022 – Updated CPAP Death Numbers
In a new report on Tuesday, the FDA reports that it has received more than 90,000 Medical Device Reports (MDRs). There were 260 reports of death from Philips ventilators, BiPAP, and CPAP machines.
November 23, 2022 – Is Philips CPAP Settlement with Justice Department Imminent?
The DOJ is close to finalizing a consent decree with Philips that will force the company to accept blame for the CPAP recall and take steps to avoid future problems. The fact that a consent decree is being negotiated is a clear sign of how bad things have gotten for Philips in the wake of the CPAP recall. The recall has already cost Philips a CEO and billions in valuation, not to mention the growing tide of CPAP recall injury lawsuits.
How does this impact the CPAP cancer and respiratory injury lawsuits? It takes the steam off the “we did nothing wrong” pushback when you publicly admit that you did something very wrong. Yes, Philips’ lawyers will continue to fight and argue that the CPAP did not cause specific injuries.
But if this Justice Department settlement happens, it will take some of the wind out of their sails of these defenses in the CPAP class action lawsuit.
November 22, 2022 – More Pain for CPAP Recall Victims
The FDA issued another public safety warning regarding a Philips CPAP and ventilator device last week. The Philips Trilogy ventilators were part of the massive CPAP recall due to problems with the toxic PE-PUR sound abatement foam. Philips sought to remedy the problem by replacing the ventilator’s PE-PUR foam with a new silicone foam insert.
Now, these new silicone inserts are causing their own problems. Seriously? How is this possible? This feels like a Saturday Night Live sketch, right? According to the FDA warning, the inserts frequently become detached and block the air pathways.
This is just the most recent in a long string of bad news for Philips over the last two years. Is this related to the litigation? I think it is. Philips is more likely to offer reasonable settlement amounts to settle these cases because it is becoming a larger daily embarrassment. Philips will want to put this disaster behind them.
October 28, 2022 – More Philips Disaster News
Philips can’t seem to get much right these days. After recalling millions of CPAP devices last year, in September, Philips was forced to recall millions of magnetic facemasks used with its CPAP machines (both new and old). This recall was prompted by complaints that the magnets in the masks were causing nearby medical devices (such as pacemakers) to stop working. This week, the FDA designated this as a Class I recall meaning it poses the risk of severe injury or death.
October 24, 2022: Philips’ Economic Health
Royal Philips NV announced it cut 4,000 jobs. A new CEO is looking to fix this mess. Bankruptcy is not out of the question, and it might now be the worst thing for victims in this case. The company might be worth more in pieces than it is put together right now.
October 23, 2022: SoClean Lawsuit Against Philips
SoClean Inc. recently filed a newly amended complaint in its separate action accusing Philips of wrongfully attempting to blame the CPAP recall on the ozone-cleaning device manufactured by SoClean.
According to SoClean, Philips attempted to deflect blame for the CPAP recall by perpetuating a false belief that SoClean’s ozone disinfection device was somehow to blame for the foam degradation in the CPAP machines. In the newly revised complaint, SoClean cites evidence that has arisen during the MDL, including internal documents showing that Philips knew about the real reason for the degrading foam as early as 2015.
October 20, 2022: CPAP Lawsuit Status Conference Dates Scheduled
The court scheduled a monthly status conference in the class action in Pittsburgh through March 2022.
October 15, 2022: Short Form Complaint When Filing a CPAP Lawsuit
The Philips CPAP Recall MDL judge now requires all new plaintiffs to use the court-approved Short Form Complaint when filing new CPAP lawsuits in the MDL class action.
This is par for the course. Short-form complaints are widespread in consolidated mass tort class action lawsuits. They help to streamline the process for new – case filings. Victims’ lawyers can initiate a claim – and protect the statute of limitations – with just a simple form rather than a formal pleading. Adopting the Short Form Complaint in the CPAP MDL comes as thousands of prospective claimants are expected to start filing their cases over the next few months.
October 1, 2022: Hits Keep Coming for Philips
More bad news for CPAP manufacturer Philips. The Department of Justice that the embattled CPAP maker recently agreed to pay over $24 million to the U.S. Government. Why? The government alleged it engaged in an illegal kickback scheme. The company allegedly paid illegal kickbacks to incentivize medical equipment suppliers to submit insurance claims for Philips CPAP and other breathing devices. These types of kickback schemes are unlawful. They defraud the federal Medicare and Medicaid programs.
What did this have to do with the CPAP lawsuit? Nothing and everything. CPAP lawyers alleged that Philips consistently goes off-grid in search of profits. This story is consistent with that thesis.
September 18, 2022: Investor Group Says Philips Will Pay Billions
Dutch investor association VEB says Koninklijke Philips NA is liable for billions of euros for misinforming investors about issues with sleep apnea devices. The interesting statistic was that Philips lost $27 billion in stock market value.
Everyone agrees that Philips will pay billions in settlement compensation and jury payouts in these suits.
September 15, 2022: Philips Adverse Event Reports
The FDA issued an update notice on the Philips CPAP recall. The FDA disclosed that it received over 48,000 adverse event reports associated with the breakdown of the sound foam in the recalled Philips CPAP and BiPAP devices between May 1 and July 31.
Forty-four of these side effects reports have involved fatalities, and 168 CPAP-related deaths have been reported since April 2021. In the Philips CPAP MDL, there were 323 pending cases as of August 15, 2022. But that is just the tip of the iceberg. Thousands of additional cases remain unfiled because the plaintiffs have entered into tolling agreements with Philips.
August 11, 2022: Science Day in CPAP Class Action Lawsuit
We talked about Science Day in the Philips CPAP machine lawsuit class action coming up in a few weeks on September 1, 2022, in the CPAP class action lawsuit in the Western District of Pennsylvania. The CPAP MDL Judge (Hon. Joy Flowers Conti) has invited a state court judge handling CPAP cases in Massachusetts to attend the event, at which both judges will be educated on scientific issues through presentations from both sides.
After the science day, Judge Conti is expected to set the schedule for the first round of bellwether test trials. As we have said before, trial dates are crucial to getting to meaningful Philips CPAP settlement negotiations because defendants need pressure before offering reasonable settlement compensation payouts to resolve lawsuits.
August 4, 2022: Science Day Coming
A “science day” has been scheduled for September 1 in the Philips CPAP Recall MDL. This is a good sign of progress – the judge is ready to start digging into the science, and most CPAP lawyers are bullish on the scientific evidence that links a large number of side effects to the CPAP recall.
In class action MDLs, a science day is intended to allow attorneys for both sides to make presentations to the MDL judge to educate the Court about complex scientific issues. The CPAP MDL Judge ordered the science day in response to a joint motion by the parties and gave them until August 18, 2022, to submit proposals for how the science day should be handled. Science days are common in MDLs involving product liability claims.
July 7, 2022: CPAP Lawsuit Moving Forward
Judge Conti just put out an order that gets the CPAP class action lawsuit moving. Attorneys can begin pretrial discovery. This is all work that needs to be done to get the CPAP lawsuit in a settlement posture for both sides. We are never going to get a CPAP settlement without a trial date to scare Philips with, and we will not get a trial date until discovery is completed.
June 27, 2022: New Court Order
The Philips CPAP MDL Judge recently issued a discovery management order imposing certain deadlines for the parties to submit joint proposals on pretrial discovery matters. Proposed plaintiff fact sheets and implementation rules are due by July 8, a protocol for depositions of fact and expert witnesses is due by August 15, and a proposal for written discovery, including deadlines and limitations, is due by September 9. What does this mean? It means the CPAP lawsuit is progressing.
June 14, 2022: Pre-Trial Discovery Going Poorly for Philips
Discovery in some of the CPAP recall lawsuits has yielded internal documents showing Philips knew about the issues with the sound abatement foam in their CPAP devices for 3 years before announcing a recall.
Back in April 2018, a product engineer from Philips contacted the foam supplier about customer reports of the foam shedding and getting into the airways of the CPAP devices. Philips knew of the problem and did nothing.
The email and the customer reports are powerful evidence that Philips knew about the health hazards of their CPAP machines for years before doing anything. This will help plaintiffs build the case against Philips in the CPAP lawsuit and hopefully speed up the path to a Philips CPAP settlement.
June 6, 2022: New Order from Judge False Flag for a CPAP Settlement
The judge presiding over the Philips CPAP recall class action lawsuit MDL recently issued Pretrial Order #16. This order appoints a retired Magistrate Judge (Diane M. Welsh) to serve as a settlement mediator in the litigation.
This is probably a false flag for a CPAP settlement. I do not think Philips is ready to offer reasonable settlement amounts until we get to the two-year statute of limitations point for older claims.
So, frustratingly for victims, this appointment does not suggest a CPAP settlement is imminent. Rule 16.1 of the Local Rules for the Western District of Pennsylvania requires participation in Court-sponsored ADR.
The appointment of Judge Welsh, an experienced jurist, as a settlement mediator was done to comply with this requirement. But Judge Welsh could take a large role in a CPAP settlement down the road.
May 25, 2022: Adverse Event Reports Post Recall
It has been a year since Philips first initiated the massive safety recall of over 15 million CPAP and BiPAP machines used for sleep apnea. During that time, regulators at the FDA have been deeply involved in – and concerned about – the CPAP recall investigation process and have kept the public well informed.
The FDA has published data on adverse health event reports it received between April 2021 and April 2020 in connection with recalled Philips CPAP devices. According to these reports, the FDA received over 21,000 reports of adverse health events connected to the CPAP machines.
Problems reported have included cancer, pneumonia, and respiratory problems. Depressingly, there have been 124 deaths related to CPAP were reported. There is no conclusive evidence that all 124 deaths were solely due to the recalled CPAP machines. But it is an accumulation of evidence.
You also have to remember that adverse events are woefully underreported to the FDA. These reports to the FDA offer a glimpse into what we can expect to see in the developing CPAP recall lawsuits.
May 10, 2022: New CPAP Lawsuit
CPAP defects will likely cause many deaths. Victims are just beginning to link the deaths of their loved ones with CPAP. One recently filed wrongful death CPAP lawsuit is a case in point. The plaintiff, Doug Shiffler of Oregon, lost his wife to cancer and filed a product liability lawsuit against both Philips and a Maryland company that manufactured the toxic sound abatement foam in the recalled CPAP machines (Wm. T. Burnett & Co). The CPAP lawsuit filed by Shiffler asserts that his wife used one of the recalled Philips DreamStation CPAP machines every night for about 20 months. She was diagnosed with advanced lung cancer. Joleen eventually died from her lung cancer and Doug filed a wrongful death lawsuit claiming that her lung cancer and death were caused by toxic particles in the foam of her DreamStation device.
May 6, 2022: CPAP Refund
The FDA is contemplating requiring Phillips to offer a full refund for people who want their money back for their defective CPAP. This seemingly logical decision is a bigger deal than you might think. It is a rare remedy that underscores how angry the FDA is with how Philips has botched the CPAP recall.
May 3, 2022: Criminal Implications for Philips in CPAP Recall?
I have been writing about how Philips completely botched the CPAP recall and against all reasons kept a product on the market it should have been recalled. But I always wonder who out there is dismissing my diatribes as a CPAP lawyer who just wants to make money off CPAP lawsuits. So today’s update underscores that I’m not using hyperbole. The Wall Street Journal reports that the medical device company recently received a subpoena from the Department of Justice seeking information and documents related to the CPAP recall. The subpoena suggests the DOJ has launched a formal investigation which could lead to penalties and actions beyond the growing number of civil lawsuits.
April 16, 2022: Philips CPAP Lawsuit Update
There are now 274 active CPAP lawsuits in the MDL class action. This is a small fraction of the number of CPAP recall lawsuits. So where are these CPAP suits? Thousands of lawsuits will be registered with the MDL Court with a mechanism that allows victims to hold back filing a lawsuit but tolls the statute of limitations to preserve their claims.
The good news is these suits are now pushing forward. We have seen a surge of activity from the court of late. This is a good sign that the pretrial work should begin to flow.
March 23, 2022: Philips Ham-Handed Recall
The hits keep coming for Philips when it comes to their breathing machines. Philips is bungling everything. Nine months ago, the company had to recall 15 million CPAP and BiPAP breathing devices that were causing users to inhale small particles of cancer-causing foam during their sleep. Now Philips is announcing that they are recalling hundreds of ventilator machines used in hospitals across the country because defective adhesives can cause the machines to suddenly stop working. How does this relate to the CPAP recall lawsuit? It underscores that Philips is not a company that has its act together.
March 19, 2022: FDA Frustrated with Philips Recall
The FDA has now formally intervened in the Philips CPAP recall process. There is no question the FDA is frustrated with Philips. Earlier this month, the FDA sent Philips a letter advising the company that its efforts to notify consumers about the health risks posed by its recalled CPAP and BiPAP machines have been deficient. The FDA is now requiring Philips to “improve its communication about the recall and the serious risk posed by the foam used in the recalled products.” You do not typically see the FDA giving such a public lashing. The new notification efforts by Philips will take place under the close supervision of the FDA.
March 16, 2022: CPAP Lawsuit Update
There are now 262 filed CPAP recall lawsuits in the MDL class action.
March 10, 2022: CPAP Lawyers in Place
The next status conference on March 22, 2022, will be a different dynamic with the new CPAP lawyers Steering Committee in place. There were a lot of skeptics of the CPAP lawsuits’ viability in the early stages. But it is increasingly clear that many of these CPAP side effects lawsuits will be viable.
January 29, 2022: Preserving Evidence of Defective CPAP Machines
The Philips CPAP MDL judge recently issued an order laying out options for evidence preservation of recalled CPAP and BiPAP devices. Plaintiffs can return their recalled device to Philips to have it repaired for free, in which case Philips will be required to take pictures and document the condition of the device as evidence. Plaintiffs can also elect to send their device to Philips and have it held in evidence preservation and not repaired.
January 22, 2022: CPAP Repair Program Goes Awry
After issuing a recall of around 15 million CPAP and BiPAP machines last year, Philips got the FDA’s preliminary blessing on a repair program that would have replaced the toxic PE-PUR foam in the recalled devices with an alternative silicone-based foam. Soon after this new repair program was announced, however, concerns arose as to whether the new silicone foam presented potential health risks. Earlier this week, the FDA ordered Philips to submit independent testing of the new silicone replacement foam.
January 19, 2022: CPAP Lawsuit Update
There are now 221 CPAP lawsuits in the MDL class action lawsuit.
Recall of Philips CPAP and BiPAP Sleep Apnea Devices
Philips is one of the world’s leading manufacturers of night-time breathing assistance machines that are widely used for the treatment of sleep apnea. It was a company on the rise until this CPAP recall debacle.
Philips makes both Continuous Positive Airway Pressure (CPAP) devices and Bilevel Positive Airway Pressure (BiPAP). CPAP is a continuous airway stream that keeps those airways open to prevent sleep apnea and even snoring.
Philips announced in June 2021, a nationwide safety recall of almost all of its existing CPAP and BiPAP devices. The recall was prompted by potential dangers related to a polyurethane foam called PE-PUR that all the Philips devices used for “sound abatement” to make them run quietly. Philips disclosed that this PE-PUR foam may degrade into small particles or “off-gas” into chemicals that get inhaled by machine users as they sleep.
Polyurethane Foam
Polyurethane foam is a type of synthetic material that is widely used in a variety of applications due to its unique properties. It is made by reacting polyols and diisocyanates in the presence of other chemicals and additives, which causes the mixture to expand and form a foam.
There are several different types of polyurethane foam, including flexible foam, rigid foam, and spray foam. Flexible foam is used in furniture cushions, bedding, and automotive interiors, while rigid foam is used in insulation, packaging, and construction materials. Spray foam is often used for insulation and sealing in construction applications. The type of polyurethane foam used in CPAP masks and headgear is typically a flexible foam
Polyurethane foam is used as a cushioning material in Phillips CPAP masks and headgear. CPAP masks and headgear are designed to create a seal around the nose and mouth or the nose only, allowing air to be delivered from a machine through a hose to keep the airway open during sleep. To ensure a comfortable fit and reduce pressure points, many CPAP masks and headgear are designed with soft, flexible cushions made from polyurethane foam.
According to the recall announcement from Philips, inhalation of this PE-PUR foam “can result in serious injury which can be life-threatening, cause permanent impairment, and/or require medical intervention to preclude permanent impairment.” Lab analysis of the degraded PE-PUR foam particles identified several very harmful chemicals including Toluene Diamine (“TDA”), which is a known human carcinogen.
Which Sleep Apnea Machines Were Recalled?
Philips is one of the largest manufacturers of sleep apnea devices. The safety recall applied to an estimated 3.5 million existing CPAP and BiPAP devices. Below is a list of recalled devices:
| LIST OF RECALLED PHILIPS SLEEP DEVICES | ||
| DreamStation ASV | DreamStation ST | AVAPS |
| SystemOne ASV4 | C Series ASV | OmniLab Advanced Plus |
| SystemOne (Q Series) | DreamStation CPAP | DreamStation Auto CPAP |
| DreamStation BiPAP | DreamStation Go | Dorma 400 |
| Dorma 500 CPAP | REMStar SE Auto CPAP | Trilogy 100 and 200 |
| Garbin Plus | Aeris | LifeVent |
| A-Series BiPAP | ||
How serious is the CPAP recall?
The recall of all Philips CPAP and BiPAP devices is considered very serious. The machines were recalled because they could be causing users to inhale chemicals that are known to be toxic and potentially cause cancer. The recalled devices pose a legitimate health hazard to users.
Lawsuits Following the Philips CPAP Recall
The CPAP and BiPAP safety quickly generated 18 CPAP lawsuits against Philips in federal courts across the country. The early lawsuits were not actual product liability tort claims or personal injuries. So far, all of these cases are what we would call “consumer class actions.” The plaintiffs in these cases are NOT alleging that they suffered serious bodily injury or developed cancer from using one of the recalled CPAP devices. Instead, the plaintiffs are claiming that they were victims of consumer fraud because they wasted money on CPAP devices that are now basically worthless. These CPAP lawsuits spawned a petition with the Judicial Panel on Multidistrict Litigation (JPML) seeking to consolidate these cases into a new class-action MDL. This motion was granted
These types of “consumer fraud” class actions often follow in the wake of major product recalls. They often get confused with traditional product liability tort lawsuits, but they are much different. The individual plaintiffs in these consumer fraud cases are only seeking limited economic damages, basically reimbursement for time and money wasted on defective machines.
By contrast, plaintiffs in the MDL CPAP class action lawsuit seek large amounts of financial compensation for serious physical injuries resulting from these defective devices.
CPAP Recall Product Liability Lawsuit Evidence
The Philips CPAP recall has led to thousands of plaintiffs in the MDL CPAP class action in Pennsylvania. Every CPAP lawsuit is complex and needs to be supported by expert medical and scientific evidence. But plaintiffs’ experts have done a great job of finding the evidence that links CPAP to cancer and a host of other problems. These scientific studies establish a concrete link between the inhalation of PE-PUR foam particles and any type of cancer or other physical injury or condition.
What Are Expected CPAP Settlement Amounts?
Below are projected settlement compensation payouts for CPAP recall victims. I don’t mind speculating about settlement amounts. But you have to understand that with so many different types of injuries from the Dreamstation and other CPAP machines, settlement compensation projections are difficult. That said, I will give you my current speculation as of January 2024.
CPAP Cancer Settlement Amounts
I think the average settlement value of a CPAP cancer lawsuit that can make it to the jury – a big if – is between $100,000 and $500,000. I don’t see proving Philips is at fault as a huge obstacle. The key will be marshaling the science to link the defects in PE-PUR foam to cancer.
Not all cancers are the same. Our lawyers project higher settlement amounts for lung cancer and head and neck cancer than we do for liver cancer or kidney cancer.
CPAP Respiratory Settlement Amounts
Last year, I thought the respiratory cases that were successful would be worth less than cancer cases. I was predicting between $100,000 and $150,000 for serious respiratory injuries that can make it past any Daubert scientific challenges. But my thinking has evolved on this. The science on many of these respiratory cases is really strong. So I think these claims will have a higher value.
Our CPAP attorneys are looking for cases with asthma, Stage 4 COPD, pneumonitis, pulmonary fibrosis, or sarcoidosis.
Other CPAP Settlement Amounts
There are also Philips CPAP lawsuits for liver injury, kidney failure, and kidney disease. These cases are not as strong as the other cancers and the respiratory cases because the evidence linking these conditions to the CPAP machine is not as strong. But these are still very viable claims.
Expected CPAP Jury Payouts
The trial value of these cases is much higher. Punitive damages will absolutely be in play in most jurisdictions. I don’t think jurors will be happy with Philips if it ever comes to a jury trial.
Nuisance Claims
There will also be less serious side effects in CPAP lawsuits where the claims fall as low as $5,000 or $10,000, dragging the average CPAP settlement down.
CPAP Settlement Compensation Payout Predictions Are Fluid
Every CPAP lawyer seems to have a different opinion about the projected settlement amounts in the CPAP claims. Some attorneys believe it will be hard to prove respiratory claims and easier to prove cancer cases. And I have heard the exact opposite, too. My settlement compensation amount predictions are fluid. But these are my thoughts as of today.
Projecting settlement amounts in a mass tort lawsuit is hard. I cannot think of a piece of litigation that is more difficult to project in 2024 than the ultimate settlement amounts in the CPAP recall lawsuits (and – importantly – how many cases will survive summary judgment). So please do not put a ton of stock in these settlement projections and check back, and I will modify them as appropriate.
- Settlement and verdicts in cases involving a CPAP
Contact Us About Filing a CPAP Recall Lawsuit
If you believe you are eligible because of side effects from the recalled Philips sleep apnea devices, contact our CPAP recall lawyers today for a free case evaluation at 800-553-8082. You can also discuss your case with us online.