Philips CPAP/BiPAP Recall Litigation: An Update on Key Deadlines and Proceedings

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. 

Navigating the Legal Tides: Understanding the Landmark AFFF/PFAS Water District Settlement

Unpacking the Monumental AFFF/PFAS Water District Settlements

In recent legal developments, the potential settlements involving AFFF (aqueous film-forming foam) and PFAS (perfluoroalkyl and polyfluoroalkyl substances) have marked a significant turn in environmental and public health litigation. With DuPont, Chemours, and 3M reaching monumental, proposed class action settlements, the legal implications for public water systems and potential personal injury claimants are substantial. Below are key points and a closer discussion on the legal ramifications of these developments:


Key Points: 

  • Dupont and Chemours proposed a class action settlement for $1.185 billion affecting around 7,000 public water systems. 
  • 3M announced a settlement with a net present value of $10.3 to $12.5 billion over 13 years for over 6,000 water systems. 
  • Judge Gergel acknowledged these as potentially the largest drinking water settlements in history. 
  • Settlements present a significant step forward for AFFF and PFAS personal injury claimants. 
  • Future settlement negotiations may extend to a broader group of victims with PFAS-related diseases. 


Legal Implications for Public Water Systems 

The legal environment for entities involved in the management of public water systems has been significantly altered due to the proposed settlements announced by DuPont, Chemours, and 3M. These agreements represent not just financial compensation for the alleged contamination of drinking water but also signal a shift in how companies address massive environmental tort claims. 


DuPont and Chemours Settlement 

The settlement proposed by DuPont and Chemours offers a substantial sum, potentially benefiting thousands of public water systems. While the amount is notable, the allocation of these funds across the various districts remains unclear. Moreover, the settlements are not without their limitations; for instance, they exclude state attorneys general and other entity plaintiffs. Despite these constraints, Judge Gergel has pointed out that the standard for preliminary approval is relatively low, suggesting that the process may progress swiftly, with a fairness hearing expected to occur by late 2023[^1]. 


3M Settlement 

Similarly, 3M’s proposed settlement introduces a complex funding structure to be disbursed over more than a decade. This prolonged payment period adds a layer of complexity to the financial management and planning for public water systems seeking remediation and preventative measures against PFAS contamination[^2]. 


Potential Impact on Individual Entity Litigation 

Judge Gergel’s indication that the settlements could have advantages over continuing individual litigation reflects a broader legal tendency to favor collective resolution in mass tort cases. This preference is underscored by the potential for quicker resolution and the distribution of settlement funds to address pressing contamination concerns[^3]. 


Implications for Personal Injury Claimants 

The settlements carve a path for personal injury claimants within the MDL (multidistrict litigation) to move forward, potentially expediting their claims. It also allows companies like 3M, DuPont, and Chemours to better manage market pressures by quantifying liabilities, potentially improving their financial narratives[^4]. 


The settlements may also open avenues for future negotiations regarding personal injury claimants, particularly those with conditions supported by studies linking PFAS exposure to certain diseases. This suggests a legal landscape that is becoming more receptive to substantial compensation for victims of environmental contamination[^5]. 


Looking Forward 

As these proposed settlements move toward preliminary approval, the legal community, particularly those representing personal injury claimants, is closely monitoring court filings and hearings for additional details that may influence the litigation’s trajectory. 



These settlements are groundbreaking not only in their scale but also in their potential to set precedents for environmental litigation and corporate accountability. While the legal process is far from over, the proposed resolutions reflect a notable shift in addressing the liabilities associated with PFAS contamination and the rights of those affected.