Philips Respironics Seeks To Dismiss CPAP Recall Lawsuits Over Personal Injuries, Damages

This is Philips second attempt to have the CPAP recall lawsuits dismissed, and comes as the Court continues to push settlement negotiations and begins preparing a group of bellwether cases for early trial dates.

Philips Respironics is asking a federal judge to dismiss CPAP recall lawsuits being pursued by individuals claiming that exposure to the toxic sound abatement foam used in millions of breathing assistance devices, arguing that the claims are preempted by federal law and should not be allowed to proceed due to alleged deficiencies in plaintiffs’ pleadings.

The manufacturer faces thousands of product liability claims by former users of recalled Philips CPAP devices, which were removed from the market in 2011, after it was discovered that small black particles and toxic chemicals may be released by the machines’ sound abatement foam directly into the machine’s air pathways and users’ lungs.

Due to the serious health issues from breathing the Philips CPAP foam, federal health officials told consumers to immediately stop using their machines unless needed for life supporting treatment. More than two years later, concerns about the way Philips handled the recall, leading the manufacturer to agree to suspend sales of all its CPAP and breathing machine devices in the U.S. late last year, as part of a consent decree with the U.S. Food and Drug Administration and Department of Justice.

While the manufacturer has reached agreements to resolve consumer class action claims, which sought reimbursements for owners of the recalled machines, the company continues to face lawsuits seeking medical monitoring for former users, as well as personal injury lawsuits that seek financial compensation for various health complications linked to the toxic CPAP foam, including cancers, lung damage, pulmonary fibrosis, asthma and other side effects.

Given common questions of fact and law raised in the claims, all Philips CPAP recall lawsuits have been consolidated as part of a federal MDL, which is assigned to U.S. District Judge Joy Flowers Conti in the Western District of Pennsylvania, for coordinated discovery and pretrial proceedings.

Philips Motion to Dismiss CPAP Recall Lawsuits

Early in the MDL proceedings, Judge Conti issued a pretrial order that established a streamlined process for filing Philips CPAP injury lawsuits, asking plaintiffs to file one “Master Complaint”, which then allowed each individual claimant to file a “Short Form Complaint” adopting specific claims and allegations that applied to their lawsuit.

In January 2023, Philips tried to have the cases dismissed, alleging that the Master Complaint and Short Form Complaints were defective and that plaintiffs had failed to properly state a claim. Plaintiffs objected to the company’s arguments, but filed an amended Master Complaint in response, noting that Philips was trying to ignore the very procedures it agreed to in the MDL.

However, on March 11 Philips filed another motion to dismiss (PDF), accompanied by a 212-page memorandum of law (PDF) claiming that the CPAP recall lawsuits were still filed improperly and preempted by federal and various state laws.

“Despite having another opportunity to amend their complaint, guided by specific instructions from this Court, Plaintiffs’ claims remain deficient in myriad ways,” the memorandum states. “Among other defects, (i) their now separately stated negligent execution of the recall and negligent failure to recall claims remain preempted, (ii) their negligent execution of the recall claim remains subject to the primary jurisdiction doctrine, (iii) they still assert common law claims that are subsumed by PLAs, (iv) their amended fraud claim still fails to plead the special relationship required to allege fraud by omission in certain states (an issue identified but not ruled on in the earlier briefing round), and (v) their separately pled consumer protection claims are foreclosed on numerous statute specific grounds. This Court should dismiss these claims with prejudice.”

A dismissal with prejudice would be a drastic measure by the court, preventing claims from being filed again and barring individuals left with life-altering injuries from recalled CPAP machines from pursuing financial compensation.

Plaintiffs have yet to submit a response.

March 2024 Philips CPAP Lawsuit Settlement Update

Despite the procedural motion, the manufacturer has already indicated that it hopes to reach a global settlement for Philips CPAP lawsuits some time this year. However, negotiations to settle the personal injury claims will be complex, given the wide variety of different types of cancer and lung damage individual plaintiffs have alleged may be caused side effects of the Philips CPAP machines, including:

• Leukemia, Lymphoma or other Cancers
• Pulmonary Fibrosis, Sarcoidosis or other Lung Diseases
• Chronic Asthma, Bronchitis or Pneumonia
• Liver Injury, Kidney Injury, Heart Attack, Stroke or Heart Failure

Following pretrial motions, Judge Conti has already established a series of deadlines in Philips CPAP lawsuits designed to prepare cases for potential early trial dates. In addition, a court-appointed mediator is currently working with the parties to negotiate CPAP recall settlements.

However, unless Philips is able to successful convince the court to dismiss the litigation or negotiate a resolution for the claims following mediation efforts and any early bellwether trials, Judge Conti may begin remanding hundreds of individual claims back to U.S. District Courts nationwide for individual trial dates in the future.