In 2021, Philips recalled millions of CPAP and BiPAP breathing devices. The recall came after it was discovered that foam used in the devices was degrading and releasing toxic, carcinogenic chemicals in the user’s airways. Following the recall, thousands of CPAP users filed lawsuits (or registered claims with Philips) alleging that exposure to the toxic foam particles caused severe injuries such as cancer.
The CPAP recall lawsuits were consolidated into a class action MDL which could eventually be resolved in a global settlement with Philips. In this post, we will look back at how the Philips CPAP litigation has unfolded and discuss the latest developments in this ongoing mass tort.
Millions of CPAP Devices are Recalled
CPAP and BiPAP devices use forced air pressure to help people breathe. CPAP machines are used by millions of people every night for the treatment of sleep apnea, and Philips is the leading manufacturer of CPAP devices.
In June 2021, Philips announced that it recalled all its existing CPAP and BiPAP machines. The recall covered over 1 million devices. Philips launched this massive safety recall in response to overwhelming evidence that polyurethane sound abatement foam (called “PE-PUR”) used in the machines was degrading and causing users to inhale tiny particles of harmful chemicals.
The inhalation of particles from the degraded foam presented a significant health hazard to users because the particles contained Volatile Organic Compounds (VOCs) that are known carcinogens. Soon after the recall, the FDA issued a public safety announcement recommending that individuals stop using recalled CPAP devices unless otherwise advised by their doctor.
CPAP Recall Leads to Product Liability Lawsuits
Within weeks after Philips initiated the CPAP recall, the first CPAP product liability lawsuits started getting filed across the country.
The lawsuits were filed by former users of the recalled CPAP devices who alleged that they suffered severe injuries (including cancer) due to exposure to toxic foam particles. The lawsuits also accused Philips of ignoring the problem for years before issuing the recall.
CPAP Claim Registry
In response to the influx of CPAP lawsuits, Philips also created a CPAP claims registry program.
The claim registry allowed potential CPAP plaintiffs to register a formal claim with Philips instead of filing a civil lawsuit. Once a claim was registered, it would toll any applicable statute of limitations, and the claimant could file suit later if necessary.
Class Action MDL Created for CPAP Lawsuits
In November 2021, just a few months after the recall announcement, there are enough Philips CPAP lawsuits (and registered claims) to prompt the JPML to consolidate the cases into a new class action MDL. The new CPAP recall class action MDL was assigned to Judge Joy Flowers Conti in the Western District of Pennsylvania.
The initial transfer Order establishing the CPAP class action MDL included 110 pending CPAP recall lawsuits from federal courts across the country. As of January 2023 there were just over 300 pending cases in the CPAP recall MDL. However, this number is very misleading because most prospective CPAP plaintiffs opted to register claims with Philips rather than file a civil lawsuit. The claim registration program has kept the number of pending cases in the MDL artificially low.
CPAP Class Action Moves at Slow Pace
When the Philips CPAP lawsuits were consolidated into the class action MDL assigned to Judge Conti, most plaintiffs’ lawyers viewed the move with optimism. Since the outset, however, Judge Conti has moved the litigation along at a frustratingly slow pace.
It took Judge Conti nearly five months to finalize appointments of attorneys to the plaintiffs’ leadership committees (a collective body that makes decisions on behalf of all the CPAP plaintiffs in the MDL). In other MDLs, leadership committee appointments are made within the first month.
The long road process of committee appointments proved to be an early indication of the pace of the litigation overall. It has now been 16 months since the MDL was established and we still have no indication of when to expect the first round of bellwether test trials, or even how those cases will be selected.
Miscues by Philips Following Recall
After initiating the CPAP recall in June 2021, things for Philips have gone from bad to worse to disaster. In the wake of the recall announcement, the FDA began an internal investigation to determine whether the company properly handled the situation. In November 2021, the FDA released a report stating it had found proof that Philips was aware of the problem with PE-PUR foam degrading as early as 2015 (6 years before the recall).
In September 2022, Philips reported that the recall was a financial disaster for the company and the CEO stepped down. By October, a new CEO was in place and Philips announced that it was laying off 4,500 employees.
In December 2022, it was announced that the Department of Justice was negotiating the terms of a consent decree with Philips. The consent decree would require Philips to take responsibility for its failure to handle the problem with the sound abatement foam that led to the massive CPAP recall last year.
What’s Next in the CPAP Litigation?
As we head into the new year, the CPAP recall MDL continues to plod along at the plodding pace that Judge Conti has set from the start. We are still basically in mid-discovery phase right now. That means that at this point, there is no chance that we will get the first bellwether trial in 2023.
The bellwether trials are critically important in a mass tort MDL like this because they help set the expectations and get both sides to start negotiating a global settlement. Without a bellwether trial on the schedule, there is nothing to compel a beleaguered defendant such as Philips to work toward a settlement that could cost billions. Philips would probably be glad to litigate these cases for the next decade just to delay that.
When can we expect the bellwether trials to begin? The first CPAP bellwether test trial could happen around September 2024. That is our best guess based on how things are going so far and the time frames we have seen for bellwether trials in other mass tort MDLs driving in the judicial “slow lane” (the Paragard MDL being one prime example).
Could we envision a plausible scenario where the first bellwether trial in the CPAP litigation does not happen in 2024? Unfortunately, the answer to that has to be yes. We would like to blow smoke for you. But we have an obligation to tell you what we think.
Bringing a CPAP Recall Lawsuit
Our lawyers are pretty amazed at how many call with get with victims with a potential CPAP lawsuit in 2023. If you believe you are eligible because of side effects from the recalled Philips sleep apnea devices, call us today at 800-553-8082. You can also discuss your case with us online and we will give you immediate feedback on your claim.