Last month, medical device company Philips issued a sweeping safety recall of its popular CPAP and BiPAP sleep apnea devices that millions of Americans use to sleep every night. The recalled devices contain a polyurethane sound abatement foam that can degrade and cause users to inhale foam particles that can cause respiratory damage and possibly cancer.
The Philips recall covered an estimated 3.5 million sleep apnea devices so many plaintiffs’ lawyers are naturally wondering whether this will turn into a new product liability mass tort with thousands of plaintiffs consolidated into a Multi-District-Litigation (MDL). In this post we will take a close look at the nature of the recall and whether we have the necessary ingredients for a full-blown MDL.
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. These include 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.
Last month, Philips publicly announced a nationwide safety recall of almost all 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.
According to the recall announcement from Philips, inhalation of the 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|
Lawsuits Following the Philips CPAP Recall
The CPAP and BiPAP safety recall has already generated at least 18 lawsuits against Philips in federal courts across the country. The chart below shows pending cases in the federal court system as of July 19, 2021.
|C.D. Cal.||Mitrovich v. Koninklijke Philips N.V. et al||7/16/2021|
|D. La.||Stewart v. Koninklijke Philips N.V. et al||7/16/2021|
|D. Mass.||McGuire v. Philips North America, LLC et al||7/14/2021|
|D. Mass.||Algofi et al v. Koninklijke Philips N.V. et al||7/13/2021|
|D. Mass||Swann v. Koninklijke Philips N.V. et al||7/12/2021|
|D. Mass||Ramirez v. Philips North America, LLC et al||7/9/2021|
|W.D. Pa.||THOMAS v. KONINKLIJKE PHILIPS N.V. et al||7/8/2021|
|S.D. Tx.||Dewitt v. Crux Biomedical, Inc. et al||7/8/2021|
|W.D. Pa.||HEILMAN v. KONINKLIJKE PHILIPS N.V. et al||7/5/2021|
|D. Del.||Shrack v. Koninklijke Philips N.V. et al||7/2/2021|
|M.D. Fl.||Emmino v. Philips North America, LLC et al||7/2/2021|
|E.D. Pa.||Starner v. KONINKLIJKE PHILIPS N.V. et al||7/1/2021|
|D. Mass.||Boudreau et al v. Philips North America LLC et al||7/1/2021|
|D. Mass.||Schuckit v. Philips North America, LLC et al||6/30/2021|
|D. Mass.||Oldigs v. Philips North America LLC et al||6/29/2021|
|D. Mass.||Shelton v. Koninklijke Philips N.V. et al||6/29/2021|
|D. Mass.||Griffin v. Koninklijke Philips N.V. et al||6/29/2021|
|D. Mass.||Manna v. Koninkelijke Philips N.V. et al||6/17/2021|
Earlier this a petition was filed with the Judicial Panel on Multidistrict Litigation (JPML) seeking to consolidate these cases into a new class-action MDL.
None of these pending lawsuits involve 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, these plaintiffs are claiming that they were victims of consumer fraud because they wasted money on CPAP devices that are now basically worthless.
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 actually 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 product liability tort cases would seek large amounts of financial compensation for serious physical injuries resulting from the defective devices.
Expect to See CPAP Recall Product Liability Lawsuits Soon
We can reasonably expect that the current collection of various consumer protection lawsuits involving the Philips CPAP recall will be followed by a steady stream of product liability tort suits involving actual physical injuries. These types of cases are more complex and need to be supported by expert medical and scientific evidence, so they take much longer to evolve compared to consumer fraud cases.
Right now, we do not have the benefit of any scientific studies establishing a concrete link between the inhalation of the PE-PUR foam particles and any type of cancer or other physical injury or condition. Something along those lines may be forthcoming over the next few months and that would substantially bolster the viability of these cases.
Contact Us About Filing a CPAP Recall Lawsuit
If you believe you were physically injured as a result of using one of the recalled Philips sleep apnea devices, contact our CPAP recall lawyers today for a free case evaluation.