Philips CPAP Lawsuit Settlement Amount Projections (2024)

Our law firm was handling Philips CPAP machine lawsuits for injuries from the recalled Philips CPAP machine.

The Philips recall covered an estimated 3.5 million sleep apnea devices. A CPAP class action lawsuit with thousands of plaintiffs has been consolidated into a multi-district litigation (MDL-1230). So, every Philips CPAP lawsuit in federal court—filed in New York, California, Texas, or wherever—was consolidated in federal court in Pennsylvania.

After the settlement, we are no longer reviewing new cases.

Latest CPAP Lawsuit Updates

Let’s start with the latest CPAP lawsuit updates so you can understand where we are in this litigation in 2024 and the new settlement announcement.

June 11, 2024: In our June 2nd update, we talked about objections raised to the CPAP settlement. Plaintiffs’ lawyers have responded, pointing out that, unlike a class action settlement, the CPAP settlement requires eligible claimants to actively opt-in to receive compensation in exchange for releasing their personal injury claims against Philips. This ensures that those who do not wish to participate retain their right to pursue independent legal action.

June 3, 2024: We saw 25 new cases added to the MDL in April, but this month only 5 new cases were added. That pushes the total number of pending cases up to 792.

June 2, 2024: A plaintiff has filed a motion objecting to the proposed Master Settlement Agreement (MSA). The plaintiff’s attorney argues that the MSA creates ethical conflicts for lawyers representing the affected clients, violating the American Bar Association (ABA) Model Rules.

The objections focus on two specific paragraphs in the MSA. Paragraph 7.3 restricts attorneys from soliciting or taking on new clients for personal injury claims against the released parties, which plaintiff says violates ABA Model Rule 5.6 that prohibits agreements restricting a lawyer’s right to practice.

Paragraph 7.4 requires attorneys to recommend the settlement program to all clients and mandates withdrawal from representing clients who choose not to participate. This creates a conflict of interest, violating ABA Model Rule 1.7, and forces lawyers to abandon clients against their best judgment, also breaching ABA Model Rule 1.16, according to the motion.

The plaintiff’s attorney urges the court to either remove these problematic paragraphs or deny approval of the entire MSA, arguing that these provisions are unfair to both clients and their legal representatives and do not meet the standards of a fair, reasonable, and adequate settlement as required by Federal Rule of Civil Procedure 23(e).

May 9, 2024:The CPAP settlement agreement came out this morning. We need to take a longer look at this agreement, but we know people want this information so let’s do a preliminary dive into it.

For starters, let’s look at who is eligible for the settlement. Only victims who are U.S. citizens represented by a lawyer before April 29, 2024 (or pro se victims who already brought a claim) and who have used the recalled devices can participate in the $1.075 billion settlement.

Shortly after the agreement is signed, the legal parties involved will ask the overseeing courts (MDL Court and Massachusetts state court) to issue orders that all lawyers and pro se litigants identify themselves or their clients as eligible claimants.

There is a tight 30-day deadline from the time of these court orders to submit declarations identifying eligible claimants. Lawyers must declare all eligible claimants they represent, ensuring all are included. Attorneys without clients currently in suit or on the Census Registry can submit declarations. Individuals not identified by the deadline are considered ineligible unless an exception is made by mutual agreement. Of course, Philips is paying what it is paying. It does not care how this money is distributed.

When will you get your CPAP settlement? It will be in 2025. Philips is required to contribute $25 million to the fund within 14 days of the MSA’s execution to cover initial administrative costs. Philips will deposit $1.05 billion into the Settlement Fund by January 6, 2025, subject to certain conditions being met.

Can you opt out of the CPAP settlement? You can. But will be hard. Opt-out plaintiffs face stringent procedural requirements. Those who opt out of the Settlement Program by missing the registration deadline are designated as opt-outs and must jump through a lot of hoops or face potential dismissal of their cases. They are required to produce comprehensive information about their claims, including detailed medical records, device usage evidence, and causation, all within 60 days of becoming an opt-out.

Expert reports substantiating their claims are due within 90 days. That will be a real challenge. Plaintiffs must also notify relevant parties to preserve necessary records within 30 days. Failure to adhere to these requirements can lead the court to dismiss their cases with prejudice. If plaintiffs fulfill all initial requirements, the court will set further deadlines for additional discovery and motions, maintaining strict control over the litigation process to ensure an efficient and just resolution of the cases. The reality is that few, if any, plaintiffs will make it that far.

We will expand upon this and make any corrections on anything we got wrong. But we know people are waiting to learn more, and this provides some information about this settlement. We are still a long way from understanding what the compensation in these cases will be.

May 7, 2024: The CPAP common benefit fund is 10% (8% fees; 2% expenses). This means that $107.5 million will go to the lawyers in leadership. This is in addition to the near $100 million they received for the economic loss claims.

May 2, 2024: Is our law firm still taking new CPAP cases? We are not. But we have been in this with many of you for a while and we will continue updating the page as if we were still taking new claims.

May 1, 2024:25 new cases were added to the CPAP class action MDL during the month April. That brings the current total number of cases in the MDL up to 787. The global settlement deal that was announced at the end of the month could have an impact on the monthly volume moving forward.

April 30, 2024: We have no new news on how this settlement will work. We probably will not have more on the details until next week.

Ultimately, what victims what to know is how much money they will get in this CPAP settlement. Philips has earmarked $1.075 billion for the settlement of personal injury and wrongful death claims. Philips no longer cares how that money is distributed. What they are paying out is locked in.

Currently, over 59,000 claims have been filed. How many of those are viable and other worth maybe a few thousands dollars at best? I don’t know.

A points system for distributing the settlement is the only way to determine who gets what. This system is anticipated to evaluate claims based on several critical factors, including the claimant’s age, how long the CPAP device was used, the type and severity of the medical condition incurred, and the directness of the scientific link between the device’s use and the resultant health issues. As to the latter point, we have to concede that the science came up empty on many diseases attributed to the CPAP, and the settlement will reflect that.

Now, the elephant in the room: the average CPAP settlement. Let’s assume the 59,000 claims number holds, although I don’t think it will. With $1.075 billion allocated for settlements, the average settlement per claim could be roughly estimated by dividing the total settlement amount by the number of claims. This results in an average of approximately $18,220 per claim. (Is this what we projected? Ah, no.)

Actual settlement amounts will likely vary significantly, influenced by the severity of each case and the points awarded based on the established criteria. While this method seeks to be objective and structured, the complexities and variations inherent in such a wide array of individual medical cases creates concern about whether the distributions will fully reflect the true impacts experienced by each claimant. This points-based distribution system, while designed to be equitable, faces the challenge of adequately addressing the nuances and specific circ*mstances of each claim within such a large-scale settlement process. There will be people who are very unhappy.

We will tell you more when we know more.

April 29, 2024: There are reports of a CPAP personal injury settlement for $1.1 billion this morning. Phillips stock is soaring this morning. Many had put the estimated cost to Phillips at $2 billion and $4.5 billion to settle personal injury and wrongful death lawsuits. When will the CPAP payout occur? We are most likely looking at 2025 for victims to receive settlement checks.

The settlement “covers all the claims in the US, even the ones that would come in still over the next six months,” according to an interview Phillips’ CEO gave this morning.

Here is the statement from the steering committee of plaintiffs’ lawyers who, due to the eccentricities of mass tort lawsuits, negotiated the deal for other lawyers’ clients:

The agreements with Philips will compensate those users of the now-recalled CPAP and other respiratory devices who suffer from significant physical injuries and essential research for the treatment of those injuries.

Ultimately, these combined agreements accomplish what we sought to achieve when this litigation began – holding Philips accountable by obtaining care for those with physical injuries and compensation for those needing new respiratory devices.

That does not tell us much about this CPAP settlement. I don’t know if it is a good or bad settlement… we have to see what the game plan is and how it will play out.

This is what Philips is telling everyone about the settlement. Regardless of whether eligible individuals have initiated a lawsuit, registered in the census, or have taken no action, they will have a six-month period from the date of the settlement to enroll in the settlement. We have 59,000 cases – assuming for a moment all qualify – and still counting to split up $1.1 billion.

One thing is certain. We need to know how many claims there are and how many of these claims are actually viable.

April 16, 2024:Our CPAP lawyers are narrowing the claims we are handling. We are start first with respiratory conditions:

We have also narrowed the type of cancer our attorneys think we can prove are related to CPAP:

April 12, 2024: A new CPAP cancer lawsuit was recently filed asserting that the use of a DreamStation CPAP machine by a Kentucky man for six caused him to be diagnosed with breast and bone cancer in February 2023.

The suit alleges that Philips, the manufacturer, was aware of the risks associated with the polyester-based polyurethane foam used in the machine. This foam reportedly can degrade and release toxic particles that users might inhale, potentially leading to severe health consequences. The plaintiff claims to have suffered considerable physical and emotional distress due to these defects, including invasive cancer treatments and the associated aftereffects.

April 10, 2024: A consent decree between Philips and the FDA has been officially approved by the court. This legal agreement stems from identified problems with certain Philips Respironics sleep and respiratory care devices, leading to a significant action taken by regulatory authorities.

Under the terms of this decree, Philips’ Respironics must halt the production of most sleep and respiratory devices at three of its facilities located in Pennsylvania. This directive will remain in effect until Philips meets the specific requirements set out in the consent decree. So the company is prohibited from selling new CPAP, BiPAP, , or other respiratory care devices within the U.S.

The consent decree mandates that the defendants engage external experts to conduct inspections of their Sleep and Respiratory Care facilities, aside from those already identified, to ensure compliance with the Federal Food, Drug, and Cosmetic Act (FDCA). These experts are tasked with identifying and rectifying any deficiencies, as well as reviewing the testing of foam- the key issue in this litigation – used to replace the sound abatement foam in recalled devices.

The decree also grants the FDA the authority to apply specific injunction provisions to additional facilities owned by the corporate defendants if future inspections reveal non-compliance with the FDCA and relevant regulations. This measure is designed to ensure comprehensive adherence to safety and regulatory standards across all of the company’s operations.

The consent decree likely follows a period of intense regulatory scrutiny prompted by concerns over the safety and reliability of Philips’ devices, which may have included issues such as the degradation of foam used in the machines that has spawned these CPAP lawsuits. This legal and regulatory action aims to ensure that Philips addresses these concerns comprehensively before its products can re-enter the U.S. market so this kind of disaster is never repeated.

Does all this give more moral authority to the Philips CPAP class action lawsuit and does it help push Philips to a more reasonable settlement? Yes and yes.

April 5, 2024: Philips has warned about a malfunction risk in some of its ventilators that could lead to a sudden loss of power, marking another chapter in the company’s ongoing product safety challenges. The Trilogy Evo, Trilogy Evo O2, and Trilogy EV300 models might experience issues. Despite having adequate battery life, these ventilators could mistakenly signal a low battery or power failure alert.

Of course, my reflex is to say here we go again. But the optimist way of looking at it is at least Philips is getting out in front of its problems. There are no reported injuries or deaths, maybe because Philips addressed the problem quickly. We cannot say the same thing in the CPAP recall, where there are hundreds of reported deaths. Had Phillips jumped on the CPAP problem when it became known to them, many lives would have been saved. Philips also would have saved billions in legal costs and settlement payouts

April 1, 2024:Only 14 new cases were added to the Philips CPAP recall class action MDL over the last month. That brings the current total of pending cases to 762, up from 755 at the start of the year.

March 20, 2024: A fair question is whether anyone can make a decent CPAP machine. A worldwide recall for all Sleepnet CPAP and BiPAP masks containing magnets has been initiated due to risks of interference with other medical implants. This interference might cause the implants to malfunction or move, potentially leading to severe injuries or even fatalities. The recall, which affects the Mojo, Mojo 2, iQ 2, and Phantom 2 masks, was confirmed by the FDA on Tuesday.

These masks use magnets to maintain their position, but these same magnets could pose risks to individuals with certain medical implants when they come too close.

After post-market surveillance identified the issue, Sleepnet first announced this global recall at the start of March. The FDA has since classified this as a Class I recall, signifying a high risk of serious injuries or death. However, there have been no reported injuries or deaths associated with the recalled masks, and hopefully, there will not be any.

March 13, 2024: CPAP lawyers for Philips asked a federal court to dismiss a multi-district lawsuit criticizing how the recall was managed, along with various fraud and consumer protection allegations.

Philips argues that even if they did botch the recall (and they most certainly did), claims regarding the recall and subsequent actions are overridden by the Federal Food, Drug, and Cosmetics Act, which prohibits individuals from implementing FDA regulations or seeking damages based on violations of the FDCA and FDA guidelines.

I’m unsure how the law works or whether Philips has a viable argument. This has nothing to do with the CPAP personal injury and wrongful death lawsuits that our lawyers are focused on in the MDL.

March 8, 2024: MDL Drops 12 Cases

Last summer, we saw a significant uptick in the volume of new cases added to the CPAP recall MDL, but that volume had already started slowing down by the end of the year. Last month, however, the number of pending cases in the CPAP recall MDL decreased from 760 to 748 due to dismissals.

March 1, 2024: Conference With MDL Judge

Yesterday, attorneys involved in the Philips CPAP lawsuits met with Judge Conti to discuss where we are in this litigation. They reviewed the upcoming deadlines as we select representative claims for early trial dates in 2025.

Most people reading this do not care about the trivialities of the lawyers’ work and are rolling their eyes at a 2025 trial date. You want to know when the CPAP lawsuits will settle.

I really do not know. Phillips has said it wants a CPAP settlement this year. Philips aims to reach a global settlement in 2024 because this is a public relations fiasco. But the diverse nature of the alleged health complications presents challenges in the path to a global settlement. However, the bigger problem is that we will not have a CPAP trial date until 2025, and trial dates are often necessary to pressure companies to settle.

February 23, 2024: Preserving Recalled Devices

One big issue in this litigation is preserving the recalled devices. Yesterday, CPAP lawyers submitted a proposed Preservation Order concerning recalled medical devices by Philips and associated parties. This order is a collaborative request from both plaintiffs’ and defendants’ counsel, aimed at managing the preservation of certain recalled CPAP, BiPAP, and mechanical ventilator products involved in ongoing litigation.

The order aims to establish protocols for preserving these devices, which are crucial for the litigation process, ensuring that both parties have fair access to the evidence needed to prosecute or defend their cases. The detailed protocols for preservation include how the devices should be stored and maintained, highlighting the efforts to minimize any further degradation of the devices’ condition, which could affect the outcome of the litigation. The document also outlines obligations for both Philips and the device users in preserving these devices, ensuring a comprehensive approach to evidence preservation.

February 16, 2024 – CPAP Settlement Progress

Today, a settlement mediator appointed by Judge Conti will update the status of CPAP settlement negotiations.

February 6, 2024: CPAP Death Total

Recalled Philips CPAP, BiPAP, and other breathing assistance devices have been linked to at least 561 deaths, according to federal regulators. These fatalities, reported since 2021, are part of nearly 120,000 who have had serious health problem cases attributed to the devices’ toxic sound abatement foam.

There was a time last year when our law firm had a lull of new client CPAP calls. But the latest news of Philips halting sales was a big story that really increased awareness. Now our lawyers are getting as many calls as we have had since the recall was announced in 2021.

January 30, 2024: Philips Will Stop CPAP Sales in U.S.

Yesterday Philips announced that it has agreed to halt all future U.S. sales of CPAP and BiPAP sleep apnea devices. The move comes as part of a tentative settlement agreement with U.S. regulatory authorities who have been investigating the company over product safety concerns.

This is a really big deal that is estimated to cost Philips around $400 million. Rarely do you see a major company like Philips agree not to sell products anymore. The fact that regulators were pushing for this is a clear indication of what they think of Philips and its devices.

I go back to what I have been telling you. The evidence of Philips’s negligence is plentiful. We do not need more. What we need most is for Philips to stay financially healthy and stay out of bankruptcy.

January 22, 2024: New CPAP Lawsuit

A new survival death/wrongful death CPAP lawsuit filed in state court in Illinois alleges that a man’s death from moderately differentiated invasive adenocarcinoma was caused by his use of the recalled Philips CPAP machine.

The decedent started using the Respironics System One CPAP Machine to treat sleep apnea on January 11, 2012. He stopped using it when he discovered a Philips product recall, which included his CPAP model.

Adenocarcinoma is a common type of cancer that arises from glandular tissues in the body, which are responsible for producing and secreting various substances. This form of cancer typically develops in organs with significant glandular structures, such as the lungs, breasts, prostate, pancreas, and colon. The cells in adenocarcinoma originate from the lining of these glands. They vary in appearance, ranging from well-differentiated (closely resembling normal cells) to poorly differentiated (very abnormal and unlike normal cells).

It is hard to evaluate a Philips CPAP lawsuit for settlement without reviewing the entirety of the medical records. But if this man was a nonsmoker – smoking is a well-established risk factor for adenocarcinoma – this case has all the making of a very strong CPAP claim.

The case, initially filed in Cook County, Illinois, will likely be moved to the Northern District of Illinois, Eastern Division, under federal law. This lawsuit will be consolidated into the CPAP machine class action lawsuit in the Western District of Pennsylvania, which houses all these suits in federal court.

January 16, 2024 – 755 Cases in the MDL

There are now 755 pending cases in the Philips CPAP recall class action MDL. Only 13 new cases have been added to this MDL over the last three months after we saw over 200 cases added in the summer of 2023.

The most recent CPAP claim, filed last week, is a wrongful death lawsuit. The plaintiff, acting as the executor of the deceased’s estate and under Illinois law, filed a lawsuit following the death of the deceased, who had purchased a Respironics System One CPAP Machine from Sleep RX, LLC, around nine years before its 2021 recall.

The deceased used this device for treating sleep apnea until becoming aware of the recall. In 2022, the deceased was diagnosed with moderately differentiated invasive adenocarcinoma and passed away on July 27, 2022, due to complications related to this cancer. The lawsuit alleges that the deceased’s cancer and subsequent death were a direct result of using the CPAP machine.

The plaintiff leveled multiple allegations against various defendants. Against Philips and the Burnett Defendants, the plaintiff asserts claims for strict product liability, negligence, and breach of express and implied warranties. Similarly, claims against Sleep RX include strict product liability, negligence, and breaches of express and implied warranties. The essence of these allegations is that the defendants’ actions or the failure thereof contributed to the deceased’s illness and death.

January 10, 2024 – Lawyers Seek Fees in CPAP Consumer Class Action

Lawyers representing consumers who purchased Philips ventilators with faulty insulation foam have requested $95 million in fees and expenses from a Pennsylvania federal court. Again, these are not personal injury or wrongful death lawsuits but a CPAP consumer class action lawsuit that settled for $500 million. How much did plaintiffs get? Plaintiffs will receive compensation between $55 to $1,552 per recalled device and $100 for each returned device.

So the lawyers get a lot of money while the consumers walk away with less than $2,000. But, truthfully, I don’t know why we would care. Philips is fine with the $95 million. I’m just happy to clear the decks with this CPAP Respironics settlement so everyone can drill down on getting the CPAP personal injury and wrongful death lawsuits prepared for trial or settlement in 2024.

Lawyers I talk to are trying to get every last case that they can in expectation of a CPAP settlement in 2024. So are we. If you have a viable CPAP lawsuit, call us today.

January 8, 2024 – Philips Blames SoClean

Philips alleges that SoClean’s products contributed to the degradation of insulating foam in some of the machines in the CPAP recall. SoClean is, as most of you know, a brand that produces ozone-cleaning machines primarily marketed for cleaning CPAP machines. Specifically, it claims SoClean knowingly causing damage to its machines with their ozone cleaners while simultaneously misleading distributors and consumers with inaccurate claims about the cleaners being safe for use with Philips’ respiratory devices.

January 4, 2024 – The “Best” CPAP Lawsuits

CPAP lawyers mostly agree that the CPAP lawsuits with the best settlement value are cases where the victim has been diagnosed with lung cancer, head cancer, or neck cancer. The science is good on these cases, and it also makes intuitive sense to a jury because the injury is near the chemical exposure. If the victim was a smoker, that will make the lung cancer claims more challenging.

Next in line, at least in our minds, is asthma, Stage 4 COPD, pneumonitis, pulmonary fibrosis, or sarcoidosis. After that, our attorneys also think liver cancer and injury cases and kidney cancer and disease cases may also be strong.

January 1, 2024 – Plaintiffs’ File Response to Philips Discovery Motion

In the final days of 2023, the CPAP Plaintiffs filed a response to recent discovery motions filed by Philips seeking to compel the production of wide-ranging documents. In the response, the plaintiffs accuse Philips of seeking “broad private and privileged information.” Otherwise, it was a very slow week in the CPAP MDL.

December 22, 2023 – Another Philips Recall

Philips needs to get its act together. In yet another recall, the company recalled an MRI system after concerns about the potential for explosions due to excessive helium gas pressure buildup. This recall, categorized as Class I by the FDA—the most severe type—comes amid one reported incident of an explosion, which Philips attributed to non-compliance with its guidelines. For context, there are approximately 340 Panorama systems, with 150 units in the U.S. And there have been no injuries or serious harm have been reported with the MRI device. But this just adds to Philips’ ongoing challenges with their sleep therapy products.

December 19, 2023 – MDL Adds 12 More Cases

The Phillips Respironics CPAP recall MDL only added 12 new cases this last month, bringing the current total of pending cases up to 754. Over the summer, we saw a significant spike in new case filings in this MDL. Since then, however, the new case volume has dropped back to about 10-15 per month.

November 29, 2023 – Upcoming CPAP Deadlines

Below are the latest deadlines the court has set in the CPAP class action lawsuit:

So, while we hope for a CPAP settlement in 2024, we will hopefully see a trial in 2025 if the settlement does not pan out.

October 17, 2023 – CPAP MDL Adds 70 New Cases

Over the last month, only 70 new cases were added to the Philips CPAP recall MDL. That brings the total number of pending cases in the class action up to 784 and marks a slight decrease in the new cases we have recently seen.

October 12, 2023 -CPAP Class Action Settlement (Consumer Claims) Update

Under the CPAP consumer class action settlement terms, the Philips companies have agreed to pay a minimum of $479 million. This compensation will go to individuals who paid for the affected breathing machines out of their own pockets and to insurance companies that reimbursed users for these machines.

Consumers impacted by the recall may receive compensation ranging from $56 to $1,552, with an additional $100 offered to those who return their recalled devices. The settlement is awaiting final approval, scheduled for April 11, 2024. Plaintiffs’ lawyers are, of course, seeking attorneys’ fees and litigation costs to the tune of $95 million.

Remember, this settlement has nothing to do with the personal injury and wrongful death lawsuits our firm is pursuing. Those CPAP machine lawsuits are still pushing forward.

October 7, 2023 – Phillips CPAP Recall Going Poorly… Still Two Years Later

The FDA is still unhappy with the progress of the Philips CPAP recall two years later.

What is the problem? The concern is the testing data submitted does not sufficiently address the concerns related to the degradation of sound-dampening foam – the core issue in the recall and every CPAP lawsuit that has been filed. Philips says the foam particle exposure is likely to be harmless. It would be more reassuring if Phillps had any credibility on this issue.

October 6, 2023 – Joint Motion Seeks to Revise Plaintiff Fact Sheets

With the CPAP recall, MDL is starting to grow at a faster pace. Both the plaintiffs and defense lawyers recently filed a joint motion for some amendments to the mandatory Plaintiff Facts Sheets. The revisions to the PFS aim to streamline the process of identifying critical facts for incoming personal injury plaintiffs in the litigation.

September 23, 2023 – Lawyers Withdrawing from Filed Cases

In every mass tort claim, attorneys and clients have differences. In two cases in the MDL, a CPAP lawyer had sought to be excused from representing a client who had filed a CPAP lawsuit, citing “irreconcilable differences.”

Judge Flowers ordered the withdrawing lawyer to provide the client with the request to withdraw and inform them that they have 21 days to raise any objections to this request upon receiving it. Furthermore, the attorney must document in the case records that they have delivered the request to the client and communicated the 21-day objection period to the client.

Clients tend to get frustrated by two things: (1) lack of communication and (2) the need for more advancement in their case. In this case, the first complaint is valid; the second is just the nature of the beast.

September 18, 2023 – MDL Passes 700 Cases

For the fifth straight month in a row, the Philips CPAP recall class action MDL has posted an increase in the monthly volume of new cases. There are now 716 total cases pending in the MDL, an increase of over 200 since the start of this summer.

September 7, 2023 – Philips CPAP Settlement

Koninklijke Philips has agreed to pay a minimum of $479 million to settle part of the ongoing litigation related to the 2021 recall of sleep apnea machines.

The CPAP lawsuit our law firm is focused on – the injury and wrongful death cases – is unaffected by this settlement. Still, it is progress; this had to get done first. Philips CEO said that these economic loss cases – for refunds, etc. – would get solved this year, and the injury and death claims would get solved next year. So we are on pace for that.

Analysts estimate that Philips might face settlements of up to $4.5 billion for personal injury lawsuits associated with the recalled devices.

August 17, 2023 – 25 More Cases Added to MDL

Only 25 new cases were added to the Phillips CPAP class action MDL over the last 30 days, leaving the total number of pending cases in the MDL at 698. Our CPAP lawsuit update last month reported a record high of 125 new CPAP cases added to the MDL. The recent downtick could just be a summer slowdown. It will be very interesting to see if the volume picks back up next month.

August 2, 2023 – Long Time Frame for MDL

Based on the most recent Case Management Order, it looks like the Philips CPAP class action MDL is moving forward in the litigation slow lane. The recently updated deadlines go all the way out to February 2025, which is when the court anticipates that it will hold a Daubert hearing. That means that the first test trial would not be until June or July 2025 at the earliest.

July 18, 2023 – 125 New CPAP Cases Added to MDL

125 new CPAP recall injury lawsuits were transferred into the MDL over the last 30 days. That is the highest monthly new case volume since the MDL was created over two years ago. There are now 673 active cases pending in the class action.

July 1, 2023 – 30 New Cases Added to CPAP Recall MDL

Over the last monthly period, 30 new lawsuits were transferred into the Philips CPAP recall MDL class action. 200 new CPAP cases have been added to the MDL since the start of the year, bringing the current total up to 548.

So we are seeing an unsurprising increase in new CPAP lawsuits. But this docket was generally slow-moving in June. We expect things to heat up more after the summer.

June 1, 2023 – Some CPAP Claimants May Face Filing Deadline in 2 Weeks

Two weeks will mark the two-year anniversary of the massive Philips CPAP recall. The recall prompted a large number of CPAP device users to pursue legal claims against Philips, alleging that they were harmed by inhaling toxic particles from the machines. As that date approaches, many prospective CPAP claimants could potentially be barred if they do not file suit or register their claim with Philips. Philips will likely argue that the recall announcement put claimants on notice and started the clock ticking on the applicable statute of limitations. This means that for those claimants in states with a 2-year statute of limitations period, Philips could assert that their claims will be time-barred after June 14^th. There are exceptions to the statute of limitations… but you do not want to assume one applies if you can avoid it.

The statute of limitations passing for some CPAP claims makes it easier for Philips to offer settlement payouts. Why? The announcement of a global settlement draws in more plaintiffs. If the filing deadline has passed, Philips will not have to deal with more litigation. A Philips CPAP settlement is not imminent. But we explain this to underscore one reason why mass torts take as long to settle as they do.

May 12, 2023 – 13 New CPAP Cases Added to the MDL

A month ago we saw a significant spike in the volume of new CPAP recall lawsuits filed in the MDL. We assumed this might be the start of a new phase in which we started to see 100-200 new CPAP cases added each month. But the most recent monthly case totals suggest otherwise. After last month’s record high of 64 new CPAP cases, the number of new cases dropped to 13. There are now 518 pending cases in the Philips CPAP class action.

May 10, 2023 – Example CPAP Lawsuit

An example of a recently filed Philips CPAP lawsuit is the case of Deidra Jackson Holmes v. Koninklijke Philips N.V., et al., (2:21-mc-1230). Jackson filed her lawsuit in the MDL using the Short Form Complaint based on using a recalled Philips DreamStation CPAP device for sleep apnea. According to Jackson’s Complaint, her use of the CPAP machine caused several injuries, including cancer (multiple myeloma) and pulmonary inflammation. She also claims that she developed severe sinus infections requiring corrective surgery.

May 1, 2023 – Money Set Aside for a Philips CPAP Settlement

On its most recent financial statements, Philips has earmarked $630 million in future costs for the settlement of consumer class action lawsuits alleging economic damages resulting from the CPAP recall.

Our firm is handling CPAP injury and wrongful death claims. This set aside is for people who only suffered economic loss. The company has previously stated that it hopes to resolve all economic loss lawsuits by the end of the year.

Philips will still have to deal with the growing number of CPAP lawsuits alleging that the recalled devices caused severe personal injuries like cancer. Philips claims it wants to resolve the injury claims next year (if not this year, its CEO tells us). Saying the price tag for settlement payouts for these cases will be significantly higher would be an understatement.

April 14, 2023 – FDA and Philips Continue to Disagree on the Color of the Sky

The FDA and Philips really disagree about where the company is in dealing with the recall.

April 1, 2023 – The Broken Record of CPAP Injuries

The FDA recently published updated data on CPAP-related health incidents reported to the agency in the last two months of 2022. During those 60 days, over 8,000 new adverse health events connected to recalled CPAP devices were reported to the FDA, and the number of CPAP-related death reports increased by 30%. Over 98,000 adverse health events and 346 deaths related to CPAP devices have been reported to the FDA.

February 20, 2023 – Lawsuits Filed Update

Over the last month, 62 new Philips CPAP machine lawsuits were added to the MDL. There are now 420 cases pending against Philips in the CPAP recall class action. This is the most significant single volume of new cases since the start of the CPAP litigation. It is probably the result of the claims registration program ending recently, and we anticipate that this trend will continue throughout 2023.

February 14, 2023 -Latest Adverse Event Data

The FDA released updated data on the Medical Device Reports concerning the Philips CPAP and BiPAP devices recalled in June 2021. The news is not good.

As of the recent report in November 2022, there have been 98,000 serious adverse health incidents and 350 deaths allegedly linked to the recalled devices. In the three months since the last report, the FDA has received reports of an additional 9,000 adverse health incidents and, sadly, 90 deaths related to these devices.

January 9, 2023 – New CPAP Nasal Cavity Cancer Lawsuit

Plaintiffs continue to file new CPAP lawsuits. In one newly filed suit, Kirsh v. Koninklijke Phillips, N.V. (2:22-cv-01884), the plaintiff alleges that his defective CPAP caused nasal cavity cancer. The man’s wife also filed a loss of consortium claim. Nasal cavity cancer is rare, particularly for a non-smoker.

January 4, 2023 – New CPAP Lawsuit Involving Tongue and Mouth Cancer

A Long Island man filed the Philips CPAP recall lawsuit alleging that inhalation of toxic foam particles led to oral cancer. The plaintiff’s CPAP lawsuit asserts that he had sleep apnea and used Philips CPAP devices nightly for years before he began to suffer from recurring mouth and tongue cancer. His lawsuit contends that his cancer was caused by chronic exposure to the carcinogenic chemicals he inhaled from his CPAP machine at night.

Our lawyers think the tongue and mouth cancer lawsuits against Philips will be particularly strong.

December 21, 2022 – CPAP Brain Cancer Lawsuit Filed

Now that the claim registration process with Philips is over, we will see more CPAP injury lawsuits get filed in the MDL. Last week, we saw the first CPAP brain cancer case get filed. Plaintiff Salvatore DiGrazia filed a60-page Complaint that alleges that he used one of the recalled Philips CPAP machines, cleaned it with the SoClean ozone device for many years, and was later diagnosed with brain cancer. The Complaint names both Philips and SoClean as defendants. This is the first lawsuit our attorneys have seen asserting that toxic foam particles in a recalled CPAP device caused brain cancer. We expected we would see more brain cancer cases than we have.

December 15, 2022 – Consumer Class Action Lawsuit

Philips asks the court to dismiss the consumer class action case pending for economic damages related to recalled CPAP devices. Philips claims that the named plaintiffs (and the class they seek to represent) have no standing to sue because they cannot show that the recall harmed them. Philips claims there was no harm because it offered to repair or replace recalled machines for free. In response, the plaintiffs assert that they would never have bought the CPAP devices in the first place had they known about the risk.

November 24, 2022 – Updated CPAP Death Numbers

In a new report on Tuesday, the FDA reports that it has received more than 90,000 Medical Device Reports (MDRs). There were 260 reports of death from Philips ventilators, BiPAP, and CPAP machines.

November 22, 2022 – More Pain for CPAP Recall Victims

The FDA issued another public safety warning regarding a Philips CPAP and ventilator device last week. The Philips Trilogy ventilators were part of the massive CPAP recall due to problems with the toxic PE-PUR sound abatement foam. Philips sought to remedy the problem by replacing the ventilator’s PE-PUR foam with a new silicone foam insert.

Now, these new silicone inserts are causing their own problems. Seriously? How is this possible? This feels like a Saturday Night Live sketch, right? According to the FDA warning, the inserts frequently become detached and block the air pathways.

This is just the most recent in a long string of bad news for Philips over the last two years. Is this related to the litigation? I think it is. Philips is more likely to offer reasonable settlement amounts to settle these cases because it is becoming a larger daily embarrassment. Philips will want to put this disaster behind them.

October 23, 2022: SoClean Lawsuit Against Philips

SoClean Inc. recently filed a newly amended complaint in its separate action accusing Philips of wrongfully attempting to blame the CPAP recall on the ozone-cleaning device manufactured by SoClean.

According to SoClean, Philips attempted to deflect blame for the CPAP recall by perpetuating a false belief that SoClean’s ozone disinfection device was somehow to blame for the foam degradation in the CPAP machines. In the newly revised complaint, SoClean cites evidence that has arisen during the MDL, including internal documents showing that Philips knew about the real reason for the degrading foam as early as 2015.

October 20, 2022: CPAP Lawsuit Status Conference Dates Scheduled

The court scheduled a monthly status conference in the class action in Pittsburgh through March 2022.

October 15, 2022: Short Form Complaint When Filing a CPAP Lawsuit

The Philips CPAP Recall MDL judge now requires all new plaintiffs to use the court-approved Short Form Complaint when filing new CPAP lawsuits in the MDL class action.

This is par for the course. Short-form complaints are widespread in consolidated mass tort class action lawsuits. They help to streamline the process for new – case filings. Victims’ lawyers can initiate a claim – and protect the statute of limitations – with just a simple form rather than a formal pleading. Adopting the Short Form Complaint in the CPAP MDL comes as thousands of prospective claimants are expected to start filing their cases over the next few months.

September 15, 2022: Philips Adverse Event Reports

The FDA issued an update notice on the Philips CPAP recall. The FDA disclosed that it received over 48,000 adverse event reports associated with the breakdown of the sound foam in the recalled Philips CPAP and BiPAP devices between May 1 and July 31.

Forty-four of these side effects reports have involved fatalities, and 168 CPAP-related deaths have been reported since April 2021. In the Philips CPAP MDL, there were 323 pending cases as of August 15, 2022. But that is just the tip of the iceberg. Thousands of additional cases remain unfiled because the plaintiffs have entered into tolling agreements with Philips.

August 11, 2022: Science Day in CPAP Class Action Lawsuit

We talked about Science Day in the Philips CPAP machine lawsuit class action coming up in a few weeks on September 1, 2022, in the CPAP class action lawsuit in the Western District of Pennsylvania. The CPAP MDL Judge (Hon. Joy Flowers Conti) has invited a state court judge handling CPAP cases in Massachusetts to attend the event, at which both judges will be educated on scientific issues through presentations from both sides.

After the science day, Judge Conti is expected to set the schedule for the first round of bellwether test trials. As we have said before, trial dates are crucial to getting to meaningful Philips CPAP settlement negotiations because defendants need pressure before offering reasonable settlement compensation payouts to resolve lawsuits.

August 4, 2022: Science Day Coming

A “science day” has been scheduled for September 1 in the Philips CPAP Recall MDL. This is a good sign of progress – the judge is ready to start digging into the science, and most CPAP lawyers are bullish on the scientific evidence that links a large number of side effects to the CPAP recall.

In class action MDLs, a science day is intended to allow attorneys for both sides to make presentations to the MDL judge to educate the Court about complex scientific issues. The CPAP MDL Judge ordered the science day in response to a joint motion by the parties and gave them until August 18, 2022, to submit proposals for how the science day should be handled. Science days are common in MDLs involving product liability claims.

July 7, 2022: CPAP Lawsuit Moving Forward

Judge Conti just put out an order that gets the CPAP class action lawsuit moving. Attorneys can begin pretrial discovery. This is all work that needs to be done to get the CPAP lawsuit in a settlement posture for both sides. We are never going to get a CPAP settlement without a trial date to scare Philips with, and we will not get a trial date until discovery is completed.

June 14, 2022: Pre-Trial Discovery Going Poorly for Philips

Discovery in some of the CPAP recall lawsuits has yielded internal documents showing Philips knew about the issues with the sound abatement foam in their CPAP devices for 3 years before announcing a recall.

Back in April 2018, a product engineer from Philips contacted the foam supplier about customer reports of the foam shedding and getting into the airways of the CPAP devices. Philips knew of the problem and did nothing.

The email and the customer reports are powerful evidence that Philips knew about the health hazards of their CPAP machines for years before doing anything. This will help plaintiffs build the case against Philips in the CPAP lawsuit and hopefully speed up the path to a Philips CPAP settlement.

June 6, 2022: New Order from Judge False Flag for a CPAP Settlement

The judge presiding over the Philips CPAP recall class action lawsuit MDL recently issued Pretrial Order #16. This order appoints a retired Magistrate Judge (Diane M. Welsh) to serve as a settlement mediator in the litigation.

This is probably a false flag for a CPAP settlement. I do not think Philips is ready to offer reasonable settlement amounts until we get to the two-year statute of limitations point for older claims.

So, frustratingly for victims, this appointment does not suggest a CPAP settlement is imminent. Rule 16.1 of the Local Rules for the Western District of Pennsylvania requires participation in Court-sponsored ADR.

The appointment of Judge Welsh, an experienced jurist, as a settlement mediator was done to comply with this requirement. But Judge Welsh could take a large role in a CPAP settlement down the road.

May 25, 2022: Adverse Event Reports Post Recall

It has been a year since Philips first initiated the massive safety recall of over 15 million CPAP and BiPAP machines used for sleep apnea. During that time, regulators at the FDA have been deeply involved in – and concerned about – the CPAP recall investigation process and have kept the public well informed.

The FDA has published data on adverse health event reports it received between April 2021 and April 2020 in connection with recalled Philips CPAP devices. According to these reports, the FDA received over 21,000 reports of adverse health events connected to the CPAP machines.

Problems reported have included cancer, pneumonia, and respiratory problems. Depressingly, there have been 124 deaths related to CPAP were reported. There is no conclusive evidence that all 124 deaths were solely due to the recalled CPAP machines. But it is an accumulation of evidence.

You also have to remember that adverse events are woefully underreported to the FDA. These reports to the FDA offer a glimpse into what we can expect to see in the developing CPAP recall lawsuits.

May 10, 2022: New CPAP Lawsuit

CPAP defects will likely cause many deaths. Victims are just beginning to link the deaths of their loved ones with CPAP. One recently filed wrongful death CPAP lawsuit is a case in point. The plaintiff, Doug Shiffler of Oregon, lost his wife to cancer and filed a product liability lawsuit against both Philips and a Maryland company that manufactured the toxic sound abatement foam in the recalled CPAP machines (Wm. T. Burnett & Co). The CPAP lawsuit filed by Shiffler asserts that his wife used one of the recalled Philips DreamStation CPAP machines every night for about 20 months. She was diagnosed with advanced lung cancer. Joleen eventually died from her lung cancer and Doug filed a wrongful death lawsuit claiming that her lung cancer and death were caused by toxic particles in the foam of her DreamStation device.

April 16, 2022: Philips CPAP Lawsuit Update

There are now 274 active CPAP lawsuits in the MDL class action. This is a small fraction of the number of CPAP recall lawsuits. So where are these CPAP suits? Thousands of lawsuits will be registered with the MDL Court with a mechanism that allows victims to hold back filing a lawsuit but tolls the statute of limitations to preserve their claims.

The good news is these suits are now pushing forward. We have seen a surge of activity from the court of late. This is a good sign that the pretrial work should begin to flow.

March 19, 2022: FDA Frustrated with Philips Recall

The FDA has now formally intervened in the Philips CPAP recall process. There is no question the FDA is frustrated with Philips. Earlier this month, the FDA sent Philips a letter advising the company that its efforts to notify consumers about the health risks posed by its recalled CPAP and BiPAP machines have been deficient. The FDA is now requiring Philips to “improve its communication about the recall and the serious risk posed by the foam used in the recalled products.” You do not typically see the FDA giving such a public lashing. The new notification efforts by Philips will take place under the close supervision of the FDA.

March 16, 2022: CPAP Lawsuit Update

There are now 262 filed CPAP recall lawsuits in the MDL class action.

March 10, 2022: CPAP Lawyers in Place

The next status conference on March 22, 2022, will be a different dynamic with the new CPAP lawyers Steering Committee in place. There were a lot of skeptics of the CPAP lawsuits’ viability in the early stages. But it is increasingly clear that many of these CPAP side effects lawsuits will be viable.

January 29, 2022: Preserving Evidence of Defective CPAP Machines

The Philips CPAP MDL judge recently issued an order laying out options for evidence preservation of recalled CPAP and BiPAP devices. Plaintiffs can return their recalled device to Philips to have it repaired for free, in which case Philips will be required to take pictures and document the condition of the device as evidence. Plaintiffs can also elect to send their device to Philips and have it held in evidence preservation and not repaired.

January 22, 2022: CPAP Repair Program Goes Awry

After issuing a recall of around 15 million CPAP and BiPAP machines last year, Philips got the FDA’s preliminary blessing on a repair program that would have replaced the toxic PE-PUR foam in the recalled devices with an alternative silicone-based foam. Soon after this new repair program was announced, however, concerns arose as to whether the new silicone foam presented potential health risks. Earlier this week, the FDA ordered Philips to submit independent testing of the new silicone replacement foam.

January 19, 2022: CPAP Lawsuit Update

There are now 221 CPAP lawsuits in the MDL class action lawsuit.

Recall of Philips CPAP and BiPAP Sleep Apnea Devices

Philips is one of the world’s leading manufacturers of night-time breathing assistance machines that are widely used for the treatment of sleep apnea. It was a company on the rise until this CPAP recall debacle.

Philips makes both Continuous Positive Airway Pressure (CPAP) devices and Bilevel Positive Airway Pressure (BiPAP). CPAP is a continuous airway stream that keeps those airways open to prevent sleep apnea and even snoring.

Philips announced in June 2021, a nationwide safety recall of almost all of its existing CPAP and BiPAP devices. The recall was prompted by potential dangers related to a polyurethane foam called PE-PUR that all the Philips devices used for “sound abatement” to make them run quietly. Philips disclosed that this PE-PUR foam may degrade into small particles or “off-gas” into chemicals that get inhaled by machine users as they sleep.

Polyurethane Foam

Polyurethane foam is a type of synthetic material that is widely used in a variety of applications due to its unique properties. It is made by reacting polyols and diisocyanates in the presence of other chemicals and additives, which causes the mixture to expand and form a foam.

There are several different types of polyurethane foam, including flexible foam, rigid foam, and spray foam. Flexible foam is used in furniture cushions, bedding, and automotive interiors, while rigid foam is used in insulation, packaging, and construction materials. Spray foam is often used for insulation and sealing in construction applications.The type of polyurethane foam used in CPAP masks and headgear is typically a flexible foam

Polyurethane foam is used as a cushioning material in Phillips CPAP masks and headgear.CPAP masks and headgear are designed to create a seal around the nose and mouth or the nose only, allowing air to be delivered from a machine through a hose to keep the airway open during sleep. To ensure a comfortable fit and reduce pressure points, many CPAP masks and headgear are designed with soft, flexible cushions made from polyurethane foam.

According to the recall announcement from Philips, inhalation of this PE-PUR foam “can result in serious injury which can be life-threatening, cause permanent impairment, and/or require medical intervention to preclude permanent impairment.” Lab analysis of the degraded PE-PUR foam particles identified several very harmful chemicals including Toluene Diamine (“TDA”), which is a known human carcinogen.

Lawsuits Following the Philips CPAP Recall

The CPAP and BiPAP safety quickly generated 18 CPAP lawsuits against Philips in federal courts across the country. The early lawsuits were not actual product liability tort claims or personal injuries. So far, all of these cases are what we would call “consumer class actions.” The plaintiffs in these cases are NOT alleging that they suffered serious bodily injury or developed cancer from using one of the recalled CPAP devices. Instead, the plaintiffs are claiming that they were victims of consumer fraud because they wasted money on CPAP devices that are now basically worthless. These CPAP lawsuits spawned a petition with the Judicial Panel on Multidistrict Litigation (JPML) seeking to consolidate these cases into a new class-action MDL. This motion was granted

These types of “consumer fraud” class actions often follow in the wake of major product recalls. They often get confused with traditional product liability tort lawsuits, but they are much different. The individual plaintiffs in these consumer fraud cases are only seeking limited economic damages, basically reimbursem*nt for time and money wasted on defective machines.

By contrast, plaintiffs in the MDL CPAP class action lawsuit seek large amounts of financial compensation for serious physical injuries resulting from these defective devices.

CPAP Recall Product Liability Lawsuit Evidence

The Philips CPAP recall has led to thousands of plaintiffs in the MDL CPAP class action in Pennsylvania. Every CPAP lawsuit is complex and needs to be supported by expert medical and scientific evidence. But plaintiffs’ experts have done a great job of finding the evidence that links CPAP to cancer and a host of other problems. These scientific studies establish a concrete link between the inhalation of PE-PUR foam particles and any type of cancer or other physical injury or condition.

CPAP Cancer Settlement Amounts

I think the average settlement value of a CPAP cancer lawsuit that can make it to the jury – a big if – is between $100,000 and $500,000. I don’t see proving Philips is at fault as a huge obstacle. The key will be marshaling the science to link the defects in PE-PUR foam to cancer.

Not all cancers are the same. Our lawyers project higher settlement amounts for lung cancer and head and neck cancer than we do for liver cancer or kidney cancer.

CPAP Respiratory Settlement Amounts

Last year, I thought the respiratory cases that were successful would be worth less than cancer cases. I was predicting between $100,000 and $150,000 for serious respiratory injuries that can make it past any Daubert scientific challenges. But my thinking has evolved on this. The science on many of these respiratory cases is really strong. So I think these claims will have a higher value.

Our CPAP attorneys are looking for cases with asthma, Stage 4 COPD, pneumonitis, pulmonary fibrosis, or sarcoidosis.

Other CPAP Settlement Amounts

There are also Philips CPAP lawsuits for liver injury, kidney failure, and kidney disease. These cases are not as strong as the other cancers and the respiratory cases because the evidence linking these conditions to the CPAP machine is not as strong. But these are still very viable claims.

Expected CPAP Jury Payouts

The trial value of these cases is much higher. Punitive damages will absolutely be in play in most jurisdictions. I don’t think jurors will be happy with Philips if it ever comes to a jury trial.

Nuisance Claims

There will also be less serious side effects in CPAP lawsuits where the claims fall as low as $5,000 or $10,000, dragging the average CPAP settlement down.

CPAP Settlement Compensation Payout Predictions Are Fluid

Every CPAP lawyer seems to have a different opinion about the projected settlement amounts in the CPAP claims. Some attorneys believe it will be hard to prove respiratory claims and easier to prove cancer cases. And I have heard the exact opposite, too. My settlement compensation amount predictions are fluid. But these are my thoughts as of today.

Projecting settlement amounts in a mass tort lawsuit is difficult. I cannot think of a piece of litigation that is more difficult to project in 2024 than the ultimate settlement amounts in the CPAP recall lawsuits (and—importantly—how many cases will survive summary judgment). So please do not put a ton of stock in these settlement projections. Check back, and I will modify them as appropriate.

• Settlement and verdicts in cases involving a CPAP