Philips CPAP/BiPAP Recall Litigation: Navigating Through Key Deadlines and Developments 

As of August 15, 2023, the Multi-District Litigation (MDL) involving Philips CPAP and BiPAP devices has 698 pending injury cases. An estimate provided by one of the manufacturing parties suggests that the total number of users potentially impacted by the issue could range from 40,000 to 60,000.

The litigation against Philips and its subsidiaries is divided into three primary segments: First, a class action is seeking restitution for economic losses incurred by claimants who purchased the faulty machines and were subsequently forced to cease their use. Second, a separate class action aims to establish a medical monitoring fund for patients apprehensive about the possibility of future illnesses due to the malfunctioning devices. Third, a comprehensive personal injury claim is being pursued for various injuries alleged to have been caused by exposure to toxic gases emitted by the deteriorating foam within the devices, or by patients inhaling the foam particles directly. 

The motions to dismiss filed by the defendants for all three categories of litigation have been comprehensively briefed. Oral arguments were presented before the MDL Judge, the Honorable Joy Flowers Conti, and the Special Master, the Honorable Thomas Vanaskie, on July 11, 2023. 

Koninklijke Philips N.V. (KPNV), the Dutch holding company, has presented a distinct motion to dismiss on the grounds that its interactions within the United States are insufficient to permit jurisdiction by the MDL court. This motion is scheduled for a decision following oral arguments on October 17, 2023. 

Detailed proposals outlining suggested deadlines were submitted by both plaintiffs and defendants on January 18, 2023. The plaintiffs’ counsel proposed that general fact discovery for personal injury cases conclude by February 18, 2024, that Daubert motions be scheduled for December 2024 or January 2025, and that discovery and mediation for specific or “bellwether” cases proceed throughout 2023. They also suggested that the selection of cases for discovery and a potential bellwether pool occur by April 2025, with trials for bellwether cases ready by mid-2026. 

Defendants have concurred on ending general fact discovery in February 2024. They have proposed that Daubert hearings take place in January or February 2025. Furthermore, they recommend that the subsequent year (2025-2026) be devoted to case-specific discovery and determinations of specific causation, Daubert expert discovery and hearings, culminating in the first bellwether trial toward the end of 2026. 

The protracted timelines are attributed to the anticipated extensive research and expert analysis necessary to address the myriad conditions alleged by victims to have resulted from the now-recalled devices. 

Philips has allocated a reserve of $630 million for the Economic Loss class action litigation, and the company’s CEO has expressed optimism for a resolution within 2023. The setting aside of such a reserve may indicate significant strides in settlement discussions. For context, Bayer earmarked a $650 million charge for a potential resolution of a lawsuit in August 2022, and by December 2022, announced a $698 million settlement with the State of Oregon over PCB contamination allegations. 

Should a class action settlement be negotiated, presented, and subsequently approved by the MDL Judge, it would likely expedite the proceedings and focus on the personal injury litigation. 

A major contention in the litigation revolves around the plaintiffs’ counsel seeking access to pertinent documents and communications from Exponent, Inc., a consulting firm hired by the defendants to generate reports on the chemical emissions from the foam. The defendants have filed for a protective order, asserting attorney-client privilege and protection of work-product. The plaintiffs’ leadership contests this claim, arguing that privilege has been waived, or that even if not, the need for the documents is substantial, or exceptional circumstances warrant their disclosure. The Special Discovery Master has issued a Report and Recommendation in favor of the defendants’ protective order and against the motion to compel the production of the requested documents. Objections to this Report and Recommendation have been filed, with oral arguments before Judge Conti scheduled for September 13, 2023. A favorable ruling for the plaintiffs could potentially discredit the findings of Exponent. 

On August 15, 2023, both parties submitted a Joint Notice of Updated Timeline, outlining the pertinent MDL dates and establishing an extended timeline leading to the first bellwether trials. Notable forthcoming deadlines include: 

– February 28, 2024: Conclusion of fact discovery for class certification for the Economic Loss and Medical Monitoring class actions. 

– June 3, 2024, and August 15, 2024: Plaintiffs to file motions for class certification for the Economic Loss and Medical Monitoring class actions, respectively. 

– October or November 2024: Tentative hearing dates for class certification and related Rule 702/Daubert issues for the Economic Loss class action. 

– February or March 2025: Tentative 

hearing dates for Rule 702/Daubert motions on class certification experts for the Medical Monitoring class action. 

While Judge Conti has yet to determine discovery, Daubert deadlines, or an initial bellwether trial schedule, various deadlines have been set for the amendment of the Master Personal Injury complaint and individual Short-Form Complaints. 

Legal Update 10.20.23: CPAP Development 

Special Master Thomas Vanaskie has delivered detailed and discerning Reports and Recommendations on critical dismissal motions regarding the master personal injury complaint and the medical monitoring class action complaint filed by the Philips Defendants. 

Most of the Defendants’ arguments were not upheld, allowing the majority of the claims within the master personal injury and medical monitoring complaints to proceed. It is expected that both parties will file objections to the aspects of the Recommendations with which they disagree, and it will be the responsibility of MDL Judge Conti to decide on the acceptance or rejection of Special Master Vanaskie’s recommendations, either in whole or in part. 

Despite the perception of slow progress, the current pacing could benefit the Plaintiffs’ Leadership, affording them the opportunity to bolster their scientific evidence and consult further with experts to refine the focus of the diseases they will pursue. Daubert motions, hearings, and the prospect of bellwether trials are projected for late 2024 into the first quarter of 2025.