MDL Watch: Panel to weigh CPAP, sunscreen actions

Johnson & Johnson’s Neutrogena Ultra Sheer sunscreen, which is part of a voluntary recall of five Neutrogena and Aveeno brand aerosol sunscreen products after a cancer-causing chemical was detected in some samples, sits on a shelf at a store in Gloucester, Massachusetts, U.S., July 15, 2021. REUTERS/Brian Snyder
  • Litigation spurred by summer recalls
  • Geico security breach also on JPML agenda

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 Pennsylvania, where three cases are pending.

Instead, Philips suggests Massachusetts, where Philips North America is located and 26 cases are pending, or the Western District of Pennsylvania, home to defendant Philips Respironics and 18 cases.

For Philips et al.: John Lavelle Jr of Morgan, Lewis & Bockius

For Thomas Starner: Sandra Duggan of Levin Sedran & Berman

In mid-July, Johnson & Johnson voluntarily recalled four Neutrogena aerosol sunscreen products and one from Aveeno after finding small amounts of benzene, a carcinogen, in samples it had tested after an independent lab, Valisure LLC, reported finding the carcinogen in many sunscreen products in May. J&J said the levels it detected were too low to pose a health risk, but “out of an abundance of caution” pulled all lots of the products and offered refunds.While some litigation had followed the Valisure report, the recall immediately spurred additional actions on behalf of proposed nationwide classes and state-wide subclasses estimated to contain “tens of thousands” of purchasers.

As of Wednesday, 16 actions were pending. The complaints generally seek actual and punitive damages for fraud, actual damages for breach of warranties, and actual or statutory damages for violation of other consumer-protection laws.Plaintiff Melissa Jimenez, represented by Shub Law Firm and Mason Lietz & Klinger, filed the motion for consolidation and wants it assigned to Chief U.S. District Judge Freda Wolfson in New Jersey, J&J’s home state. The company, represented by Patterson Belknap Webb & Tyler, fully supports Jimenez’s proposal. It suggests the Southern District of Florida as an alternative, since Wolfson is already handling two MDLs – including J&J’s talcum powder MDL – and “may not have the bandwidth to take on a third.”

For J&J: Steven Zalesin of Patterson Belknap Webb & Tyler

For Melissa Jimenez: Jonathan Shub of Shub Law Firm; Gary Klinger of Mason Lietz & Klinger

Geico and parent company Berkshire Hathaway have moved to consolidate five proposed class actions, and any subsequent lawsuits, stemming from their revelation that online “fraudsters” posing as Geico customers gained access to an unspecified number of driver’s license numbers in Geico’s system between Jan. 21 and March 1.

The plaintiffs say Geico exposed them to the risk of identity theft by unreasonably failing to safeguard their personal identifying information in violation of its own privacy policy, common law duties, various state statutes such as the New York SHIELD Act, and the federal Drivers Privacy Protection Act. They are seeking damages of at least $5 million, including actual and statutory damages and penalties, as well as credit monitoring services beyond the one year that Geico has offered.

Geico wants the MDL assignedto the Eastern District of New York where three of the five cases are pending (and, it thinks, where most potential victims are located); or in Maryland, its home state. A set of Maryland plaintiffs say the MDL belongs there.Plaintiffs in the fifth action, Mark and Reanna Vennerholm of California, oppose consolidation “at a minimum” as to their case, which is the only one so far to include a California subclass. They seek statutory damages of up to $750 per violation of the California Consumer Privacy Act, which took effect last year. The Vennerholms say the CCPA requires proof of “unique material facts” not shared by the other actions.

For Geico: John Marino and Kristen Wenger of Smith, Gambrell & Russell; Shari Lewis of Rivkin Radler

For the Vennerholms: Michael Murphy of Franklin D. Azar & Associates

Our Standards: The Thomson Reuters Trust Principles.