Philips CPAP Litigation Tracker

The public only learned of the potential health hazards caused by the recalled Continuous Positive Airway Pressure (CPAP), Bi-Level Positive Airway Pressure (Bi-Level PAP) and mechanical ventilator devices when Philips Respironics announced the nationwide recall on June 14, 2021, so the litigation is still developing. But  hundreds of CPAP/BIPAP lawsuits are already pending across the country.

Updates

December 2022

On November 1, 2022, the plaintiffs filed their First Amended Complaint against Phillips and the related defendants. According to the Court’s schedule, the defendants’ deadline to respond or move to dismiss the Amended Complaint was December 23, 2022. Phillips has moved to dismiss, as expected, arguing that most of the claims are preempted by federal law and that the plaintiffs have not sufficiently plead the “conspiracy” by defendants to conceal the defects in the machines. The briefing on the Motion to Dismiss will be concluded by early April 2023.

Philips CPAP/BiPAP Multi-District Litigation

The  Philips recall and the long list of potential injuries from using the devices attracted a lot of publicity. Within just a few months more than one hundred lawsuits were pending in thirty one federal courts against the manufacturer (Philips North America LLC and Philips RS North America LLC [collectively “Philips”]).  Most of those cases were attempted consumer class actions based on economic harm, but more than thirty plaintiffs had already filed individual personal injury cases. A plaintiff in one of the early cases filed a motion before the Judicial Panel on Multidistrict Litigation  (“JPML”) to establish an MDL in either the Eastern District or Western District of Pennsylvania. The defendants and fifty+ other plaintiffs responded to that motion, and all supported centralizing the cases.  The JPML agreed, and on October 8, 2021, ordered the creation of MDL 3014 in the Western District of Pennsylvania, where Philips manufactured the devices. The MDL was assigned to Senior U.S. District Judge Joy Flowers Conti. By the spring of 2022, the MDL had expanded to include nearly 300 filed cases.

The parties spent much of fall 2021 battling over how Philips could properly comply with the FDA recall (i.e., replace or repair the affected devices) and still preserve the relevant evidence.  Judge Conti’s first pretrial order, issued on November 10, 2021, included standard provisions requiring the parties “to preserve evidence which ‘may be relevant’ to the litigation.”  Two days later, Philips sought emergency relief from that order, arguing that it was in the midst of repairing or replacing the recalled products as the FDA required. The plaintiffs argued that Philips must preserve evidence, and Judge Conti recognized Philips’ recall obligations but believed Philips should be able to do both. So, over the next two months the parties negotiated about what Philips should do for each recalled model and how. On January 11, 2022, Judge Conti issued an Interim Preservation Order which spelled out detailed procedures Philips would follow to preserve the evidence from the machines.

The plaintiffs and defendants also created a “Tolling Agreement” the Court published on February 8, 2022. The Agreement is a private contract between the parties who sign on, not an official court order, and suspends the relevant statutes of limitation and statutes of repose for potential claimants who identify themselves and their recalled device and sign onto the agreement (through counsel). Either side can terminate the Agreement as to particular claimants by providing advance written notice.  The stated purpose of the Tolling Agreement is to give people time to evaluate their situation and decide whether to file lawsuits in the CPAP MDL. Unstated positive effects for both sides and the court system will include helping them gauge the universe of potential cases and reducing the number of lawsuits filed “just in case” because of an approaching deadline.

On February 15, 2022, after a series of applications and interviews, Judge Conti issued an order appointing co-lead counsel for the plaintiffs and establishing the leadership committee structure.

Through spring 2022, the parties focused on the timing for drafting and filing the consolidated “Master Complaint” and Class Complaints for the MDL—the long-form pleadings detailing the key facts, allegations, and claims common to an entire group of plaintiffs—and the short-form complaints by each personal injury plaintiff, as well as a schedule for the initial motions about the complaints.

On May 4, 2022, Judge Conti appointed an experienced attorney to serve as a Special Master to assist the parties in planning electronic discovery and “general discovery’ in the MDL, oversee the discovery process, and to referee discovery disputes under the judge’s supervision. Judge Conti has also scheduled a Science Day hearing for September 1, 2022. Science Day hearings are intended to allow the parties to educate the court and help prepare it for the scientific evidence it will hear. The Science Day hearing will be a joint hearing for the CPAP MDL and the ongoing SoClean MDL involving the manufacturer of the cleaning agents used to clean the recalled Philips machines.  

On May 19, 2022, Judge Conti set the schedule for filing the complaints and related motions. The deadline to file the Master Complaint for the personal injury cases is August 22, 2022. The defendants’ Answer or responsive motions to that Master Complaint must be filed by October 24, 2022 and briefing on the expected Motions to Dismiss is to be completed by February 6, 2023.

On May 26, 2022, Judge Conti appointed a retired federal Magistrate Judge to serve as a Settlement Mediator to assist the parties and supervise efforts to negotiate a settlement for the MDL and individual cases.

On June 17, 2022, Judge Conti issued a Case Management Order and the initial discovery schedule. Fact discovery began on July 1, 2022.