Status Update on Philips CPAP Settlement Negotiations To Be Reported By Court-Appointed Mediator This Week

Tomorrow, a settlement mediator appointed by the U.S. District Judge presiding over all Philips CPAP recall lawsuits being pursued in the federal court system will update the Court on the status of negotiations to resolve thousands of claims brought by individuals who developed respiratory injuries, cancers and other injuries after exposure to toxic sound abatement foam, which led to a massive recall nearly three years ago.

The Philips CPAP DreamStation recall was first announced in July 2021, impacting millions of CPAP, BiPAP and mechanical ventilators sold since 2009, which contained a defective polyester-based polyurethane (PE-PUR) foam that was intended to cut down on noise as the machines were used.

The manufacturer acknowledged at the time of the recall that the CPAP foam was known to degrade and breakdown, releasing small black particles, chemicals and toxic gasses directly into the machine’s air pathways.

Due to the serious health issues from breathing the Philips CPAP foam, consumers were told to immediately stop using their machines unless needed for life supporting treatment. More than two years later, amid continuing concerns about the way Philips handled the recall, the manufacturer announced last week that it is suspending sales of all its CPAP and breathing machine devices in the U.S., 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 thousands of lawsuits seeking financial compensation for personal injuries user have experienced, each involving allegations that the company placed a desire for profits before the health and safety of consumers.

Given similar questions of fact and law raised in the complaints, all Philips CPAP lawsuits, including both class action and individual claims, have been centralized before Senior U.S. District Judge Joy Flowers Conti in the Western District of Pennsylvania, for coordinated discovery and pretrial proceedings as part of a multidistrict litigation (MDL).

Class Action Philips CPAP Settlement Agreement Reached

In September 2023, Philips announced it would pay at least $445 million in a CPAP recall settlement to resolve economic damage class action claims brought on behalf of individuals who bought, rented or leased one of the impacted devices, and another $34 million to health insurance companies and others who paid to reimburse users to replace the machines.

The settlement agreement automatically includes about 1.3 million users who have returned devices to Philips through its recall program, without the need to submit a claim. The deal was granted preliminary approval in October.

However, the agreement had no impact on individuals’ ability to continue pursuing personal injury lawsuits over cancers, respiratory disease and other side effects caused by Philips CPAP foam particles breaking down.

Philips CPAP Personal Injury Settlement Talks Ongoing

Early in the litigation, Judge Conti appointed Magistrate Judge Diane M. Welsh to serve as the Philips CPAP settlement master, working with the parties throughout the litigation to facilitate negotiations that may resolve claims without thousands of individual jury trials being held nationwide.

In November 2023, Judge Conti scheduled a hearing for February 16, on Friday, during which Judge Welsh will provide the court with a Philips CPAP settlement status update (PDF), which is expected to include information on progress made during mediations to resolve both personal injury claims and remaining class action lawsuits that seek to establish funds for medical monitoring, to detect future injuries that users may experience.

The manufacturer has already indicated it hopes to reach a global settlement for Philips CPAP injury claims some time this year. Philips officials had also predicted they would reach a Philips CPAP class action settlement sometime in 2023, a goal which they appear to have achieved, bolstering the likelihood that the personal injury settlement claims will also reach a resolution.

Negotiating Philips CPAP settlements for the injury claims will be more complex than the economic loss class action lawsuits, given the wide variety of different types of cancer and lung damage individual plaintiffs have alleged may be caused by the sleep apnea 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

In the event the parties are unable to successfully settle Philips CPAP lawsuits involving each of the different injury categories, Judge Conti has also directed the parties to establish a bellwether process, where small groups of representative claims will be prepared for early trial dates, to help gauge how juries are likely to respond to certain evidence and testimony that may be repeated throughout larger numbers of cases.

While the outcome of these early verdicts will not have any binding impact on other plaintiffs, the average Philips CPAP lawsuit payout amounts awarded by juries are likely to have a big influence on how much the manufacturer will pay to settle claims, to avoid each claim being remanded to different U.S. District Courts nationwide for separate trial dates in the future. However, a settlement agreement reached before then may make such trials unnecessary.