Philips seeks to escape economic loss claims over recalled sleep apnea machines

A Philips logo is seen at Philips headquarters in Amsterdam, January 28, 2014. REUTERS/Toussaint Kluiters/United Photos/File Photo
  • Plaintiffs cannot seek damages because they have no injury, company says
  • CPAP machines and mechanical ventilators recalled over issues with foam

(Reuters) - Dutch conglomerate Koninklijke Philips NV and its affiliates have asked a judge to dismiss claims from people, hospitals and health plans who say they suffered economic losses when the company recalled 5.5 million CPAP machines, which treat a breathing disorder called sleep apnea, over fears that they could expose users to toxic substances.

In a motion filed Tuesday in federal court in Pittsburgh, Philips said that the plaintiffs — 112 individuals and 10 commercial entities seeking to represent classes of potentially millions of buyers nationwide — had no standing to sue because they did not claim that their devices had actually harmed them, and the company had offered to repair or replace the recalled devices for free.

The plaintiffs seeking economic damages said that they would not have paid for the devices if they knew of the danger, and that despite Philips' offer to repair or replace them, the recall had rendered them worthless.

The Philips unit that sold the recalled products — Philips RS North America LLC, also known as Respironics — further argued in a separate motion that the plaintiffs' claims, brought under state consumer protection laws, were barred by the federal Food, Drug and Cosmetic Act, which gives the Food and Drug Administration authority to regulate medical devices.

The motions do not address hundreds of other cases consolidated in the same mass tort litigation alleging personal injury or seeking medical monitoring for users of the recalled devices, which include continuous positive airway pressure (CPAP) machines and mechanical ventilators.

Lead plaintiffs' lawyers said in a joint statement that the motions were without merit.

"On behalf of all affected consumers, we look forward to moving this litigation forward and holding Philips fully accountable for its egregious misconduct," they said.

Philips recalled the devices in June 2021 over concern that foam used to dampen the machines' sound can degrade and emit toxic gases and small particles, which could irritate patients' airways and potentially cause serious health conditions including cancer.

In addition to the standing and preemption arguments, the Dutch parent company on Tuesday sought to toss the economic loss claims on the grounds that it was outside the court's jurisdiction. The parent and several other corporate affiliates also argued that they were improperly named in the case because the plaintiffs had not linked them to Respironics' conduct.

Philips has been replacing the foam in the recalled devices with silicone. In November it reported that some refurbished ventilators still have problems, including obstruction of airflow and persisting foam contamination in some.

The case is In re Philips Recalled CPAP, Bi−Level Pap, and Mechanical Ventilator Products Liability Litigation, U.S. District Court for the Western District of Pennsylvania, No. 2:21-mc-01230.

For plaintiffs: Sandra Duggan of Levin Sedran & Berman; Kelly Iverson of Lynch Carpenter; Steven Schwartz of Chimicles Schwartz Kriner & Donaldson-Smith; and Christopher Seeger of Seeger Weiss

For Respironics: John Lavelle, Lisa Dykstra and Wendy West Feinstein of Morgan, Lewis & Bockius

For other Philips entities: Michael Steinberg, Tracy Richelle High and William Monahan of Sullivan & Cromwell (NOTE: This story has been updated to add comment from the four lead plaintiffs' attorneys listed above.)

Read more:

Lead counsel appointed in the Philips CPAP MDL

Philips recalls ventilators, sleep apnea machines due to health risks

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.