Philips CPAP Injury Lawsuits To Be Selected For Potential Bellwether Trials in October 2024

The U.S. District Judge presiding over all Philips CPAP injury lawsuits has issued a new pretrial schedule that calls for parties to create a plan to select personal injury bellwether claims by the end of October 2024, which will go through case-specific discovery in preparation for the first trial dates over the recalled machines, now unlikely to begin until at least late 2025.

The litigation stems from a Philips recall issued in 2021, which impacted millions of the CPAP, BiPAP and mechanical ventilator machines that contained a defective polyester-based polyurethane (PE-PUR) foam. Although the foam was intended to help reduce noise and vibrations, it has since been discovered that the foam tends to break down over time, releasing toxic particles and gases which may enter the machines’ air pathways.

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.

In the wake of the recall, Philips faced economic loss class action lawsuits brought on behalf of owners who had to have their machines repaired or replaced, which have largely been resolved through a $445 million settlement agreement, which will provide financial compensation for individuals who bought, rented or leased one of the devices. However, thousands of personal injury and wrongful death lawsuits are still pending, involving claims that former users were diagnosed with various forms of cancer, lung damage and respiratory injuries after inhaling the toxic foam particles released by the machines.

Given common questions of fact and law raised in the claims being pursued by individuals nationwide, all Philips CPAP injury 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.

Judge Conti recently held a fairness hearing to determine whether the class action lawsuit settlement agreement can be finalized. However, to drive a potential resolution for the personal injury claims, the Court plans to prepare a small group of bellwether claims for a series of trial dates, to help gauge how juries will respond to evidence and testimony likely to be duplicated in hundreds of trials if no resolution is reached.

Philips CPAP Injury Lawsuit Bellwether Selections

On April16, Judge Conti issued a scheduling order (PDF) laying out key deadlines in moving the Philips CPAP personal injury lawsuits forward.

The order indicates that general causation fact discovery for the personal injury claims will be completed by July 1. The order also calls for parties to submit proposals for the selection of individual bellwether personal injury cases by October 29, 2024.

Following case-specific and expert discovery, the Court indicates that a series of Daubert hearings will be held in either May or June 2025, to evaluate the reliability of export testimony and opinions, and determine which experts will be permitted to testify at trial. Therefore, it is unlikely that the first Philips CPAP injury lawsuit will be ready to go before a jury until at least the end of 2025, at the earliest.

In addition, the order details a schedule for also moving Philips CPAP medical monitoring class action lawsuits along a similar, parallel track, with fact discovery also completed by June 1 and Daubert hearings held in May or June of 2025 as well.

Judge Conti is scheduled to meet with the parties next during a status conference on April 25.

April 2024 Philips CPAP Lawsuit Settlement Update

While the parties are working to identify bellwether cases, they are continuing to meet with a court-appointed mediator to negotiate potential Philips CPAP injury settlements, which are likely to be substantially more complex than the economic loss settlement reached last year, given the wide variety of different types of cancer and lung damage individual plaintiffs allege were caused by 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 negotiations and any bellwether trials, if the parties are unable to reach a global settlement or another resolution for large numbers of claims, it is expected that Judge Conti may begin remanding hundreds of individual claims back to U.S. District Courts nationwide for individual trial dates in the future.