MDL Watch: Panel to weigh CPAP, sunscreen actionsSeptember 29, 2021
- Litigation spurred by summer recalls
- Geico security breach also on JPML agenda
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The Judicial Panel on Multidistrict Litigation on Thursday will hear motions to consolidate or coordinate pretrial proceedings for more than 90 lawsuits against CPAP-maker Philips Respironics, and for at least 16 actions over Johnson & Johnson Consumer Inc’s Neutrogena and Aveeno brand aerosol sunscreens.
Also on the agenda – Geico and parent company Berkshire Hathaway Inc’s motion for MDL treatment of litigation stemming from a weeks-long data security breach the company revealed in April.
In mid-June, two months after Amsterdam-based Koninklijke (Royal) Philips NV publicly warned of “possible risks to users related to the sound abatement foam” in some of its sleep-apnea and respiratory-care devices, the company initiated a voluntary recall of Continuous Positive Air Pressure (CPAP), Bi-Level PAP, and ventilator machines made before April 2021. The company estimated that 3 million to 4 million machines are in use, with about half in the United States.
Philips said it had determined that the polyurethane foam in 11 models could degrade under certain circumstances, releasing toxic fumes and small particles that might be inhaled through the devices. The U.S. Food and Drug Administration deemed it a Class I recall based on the potential for “serious injury or death,” although no such injuries had been reported.
The FDA approved Philips’ plan to repair existing units by replacing the foam with a more stable alternative. Due to the lack of ready replacement kits, though, the recall will last until September 2022. Meanwhile, Philips has not offered “loaners,” and Medicare and most insurers will not pay for a new unit – estimated at $500 to $1,000 retail – unless the prior one was at least five years old.
As of Tuesday, 93 proposed class actions had been filed, generally seeking actual damages for negligence, product liability, failure to warn, breach of warranties; actual and statutory damages for unfair business practices and consumer-law violations; actual and punitive damages for fraud; and injunctive relief, including medical monitoring.
Plaintiff Thomas Starner’s attorneys at Levin Sedran & Berman filed the motion to create the MDL. Philips, represented by Morgan, Lewis & Bockius, opposes only Starner’s suggestion to consolidate the cases in the Eastern District of…