Chimicles Firm Wins J.P.M.L. Argument Transferring All Philips Recalled CPAP, Bi-Level PAP and Mechanical Ventilator Products Cases to Western District of Pennsylvania
October 14, 2021 – The United States Judicial Panel on Multidistrict Litigation issued an Order transferring all of the more than 100 class action and personal injury cases in In re All Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation (MDL No. 3014) to the Western District of Pennsylvania, assigning the MDL to Senior District Judge Joy Conti Flowers. Argument at the October 30 hearing was made by various counsel supporting centralization in one of 12 different federal judicial districts. The Panel ultimately agreed with the Chimicles Firm’s argument that the cases should be centralized in the Western District of Pennsylvania, stating that the forum “will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” The Panel further held:
“These actions share factual questions arising from Philips’ recall of certain Continuous Positive Airway Pressure (CPAP), Bi-Level Positive Airway Pressure (Bi-Level PAP), and mechanical ventilator devices on June 14, 2021. The recalled devices allegedly contain polyester-based polyurethane (PE-PUR) sound abatement foam that may degrade into particles or off-gas volatile organic compounds that may then be ingested or inhaled by the user, causing injury. Plaintiffs allege that defendants concealed the problems with the PE-PUR foam before the recall was announced and made misrepresentations regarding the recalled devices in connection with their marketing and sales.
Most of the actions are putative consumer class actions asserting overlapping claims for violations of state consumer protection statutes, breach of warranties, and unjust enrichment. The asserted nationwide and state classes overlap significantly. Approximately thirty actions assert individual personal injury claims. The parties support inclusion of these personal injury actions in the MDL. We concur. All of the Philips actions will raise similar factual questions regarding the recalled devices and the conduct of the recall, and will require common discovery regarding the development and safety of the recalled devices and the potential harm that can be caused by the alleged defect. See In re Valsartan N-Nitrosodimethylamine (NDMA) Contamination Prods. Liab. Litig., 363 F. Supp. 3d 1378, 1381–82 (J.P.M.L. 2019) (centralizing consumer claims for economic damages with personal injury claims). Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, particularly with respect to class certification motions; and conserve the resources of the parties, their counsel, and the judiciary.
The Western District of Pennsylvania is an appropriate transferee district for this litigation. It appears from the parties’ submissions and arguments that the recalled products were primarily manufactured by Philips RS North America LLC (formerly Philips Respironics) in Murrysville, Pennsylvania. Thus, many of witnesses and much of the documentary evidence relevant to this litigation likely will be located within the Western District of Pennsylvania. The district also presents a convenient and accessible venue for this litigation. We assign this MDL to the Honorable Joy Flowers Conti, an experienced transferee judge, who we are confident will steer this litigation on a prudent and expeditious course.”
Attorneys for this case:
Steven A. Schwartz
Benjamin F. Johns
Beena M. McDonald
Alex M. Kashurba