It appears as if Philips’ legal problems concerning their CPAP and BiPAP machines in the United States may be coming to an end. Late last year, there was a tentative settlement concerning the plaintiffs’ economic loss claims. Then just recently, a court not only approved the economic loss settlement proposal, but Philips just agreed to pay $1.1 billion to settle the personal injury and medical monitoring claims. Let’s take a closer look at this CPAP settlement and what plaintiffs and future claimants can expect.

Economic Loss Settlement

In October 2023, the U.S. District Court for the Western District of Pennsylvania (District Court) issued an order preliminarily approving a settlement concerning the economic loss claims. These are claims that relate to the financial losses connected to the purchase of the affected machines. In April 2024, the District Court granted final approval of that settlement.

The official website handling the settlement claims process has been set up. It has eligibility information, how to submit a claim and the amount of money eligible claimants can receive. Generally speaking, if you’re eligible for an economic loss settlement payment, you could receive up to three payments.

First, there’s the Device Payment Award. This amount depends on the specific device you used. Award amounts range from $55.63 (for the DreamStation CPAP) to $1,552.25 (for the Trilogy 100/200, Garbin Plus or Aeris LifeVent).

Second, there’s the Device Return Award. This is a flat $100 payment for each recalled device that’s returned to Philips by August 9, 2024.

Third, there’s the Device Replacement Award. This is to reimburse you if you used your own money to buy a CPAP, BiPAP or ventilator device to replace an affected Philips machine. You must have purchased this replacement device on or after June 14, 2021 and before September 7, 2023.

The amount of this award depends on the price of the machine you purchased minus any financial payments you received to help pay for that machine (from an insurance company or third-party payer). The Device Replacement Award amount could also be reduced based on how many valid claims there are.

Personal Injury and Medical Monitoring $1.1 Billion CPAP Settlement

This is the big CPAP settlement that everyone is now talking about. The above-discussed economic loss settlement did not address legal claims relating to personal injuries and medical monitoring.

Medical monitoring claims are for current claimants and/or plaintiffs who aren’t aware of any health problems right now (that are related to the litigation), but believe health issues could develop in the future. As a result, the defendant agrees to pay for future medical tests and doctor visits to find any medical problems so they can be detected and treated as soon as possible.

Philips announced the $1.1 billion settlement on April 29, 2024, with the vast majority of those funds intended to pay for personal injuries. A small fraction, roughly $25 million, will go towards medical monitoring. This settlement came thanks to mediation and applies to the legal claims in the United States.

Because of how recent this settlement is, many details are still unclear. For example, we don’t know how much each victim will receive, as that amount will depend on how many people file a settlement claim and the extent of their injuries.

Additionally, it’s not clear what method will be used to calculate how much money each claimant receives. There will be a point system or formula that determines the settlement award based on factors like the severity of the personal injuries, how long the Philips BiPAP or CPAP device was used and the age of the claimant. The strength of the scientific link between personal injury and the use of the affected device might also be considered.

There are currently tens of thousands of people who are likely eligible for compensation under this settlement. Using very simple math, this means the average payout per person could potentially range anywhere from $10,000 to $100,000, although this is merely rough estimate and should not be considered the official range of settlement payouts.

Finally, we don’t know exactly when the settlement awards will be paid. That being said, we shouldn’t expect any checks to start going out until at least 2025. As I’ve said many times, the administration of settlements of this size move slowly.

If you believe you might be eligible for either settlement, it’s a good idea to talk to an attorney. You may not know which situation may apply to you until you have an initial consultation. After that, you can best decide what to do. I’m available to answer any questions you might have. You can call me at (919) 830-5602.

Note: This post is not legal advice.

What’s Wrong With the Foam?

These machines use polyester-based polyurethane (PE-PUR) foam that can break down into little bits and enter a user’s airway. The foam can also break down by off-gassing harmful chemicals that the user inhales. These can potentially cause health problems for users, such as:

• Cancer
• Dizziness/headaches
• Asthma
• Nausea
• Vomiting
• Cough
• Sinus infections
• Organ damage
• Irritation to the respiratory tract, skin and/or eyes

As you might expect, a lot of people who use these CPAP machines have filed lawsuits. There are so many cases that the courts have set up multi-district litigation, or MDL to handle many of them.

What’s Multi-District Litigation?

An MDL is a consolidation of many related lawsuits so the court can more efficiently handle the cases and encourage the parties to settle. MDL usually takes place in federal court, although a state may have its own version of MDL litigation where cases from various counties are consolidated.

MDLs are not the same as class-action lawsuits, though. Class-action litigation involves multiple plaintiffs in a single case. In contrast, an MDL consists of many individual cases that get their pre-trial matters (like discovery) handled by a single court.

MDLs are also sometimes more likely than class action lawsuits to settle, especially after several bellwether cases go to trial.

There are a variety of logistical and legal reasons why cases might end up in a class action lawsuit instead of an MDL or vice versa. The important thing to know concerning the Philips CPAP, ventilator and BiPAP recall litigation is that many (if not most) of the cases have been consolidated into an MDL.

The Philips CPAP, BiPAP and Ventilator MDL

The bulk of the CPAP, BiPAP and ventilator litigation against Philips is part of “MDL 3014 In Re: Philips Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Litigation” (MDL 3014). The Honorable Joy Flowers Conti from the U.S. District Court for the Western District of Pennsylvania is the presiding judge in this case.

The MDL is still in the very early stages, with plaintiffs still joining MDL 3014 and filing their complaints. The cases will progress with parties exchanging information through discovery and the court making decisions about discovery disputes.

Eventually, the court will schedule a few bellwether cases for trial. After the bellwether trials, the parties will see if a global settlement is possible. Depending on how these bellwether cases go, it could give the plaintiffs or defendants a major advantage during settlement talks.

If a global settlement isn’t possible, many of the cases could get sent back to their respective federal district courts where they were originally brought. The litigants can proceed with their lawsuits and settle or go to trial.

How Can I Find Out If Something Important Happens in MDL 3014?

There are three ways to learn about recent developments. First, you can use an online search engine such as Google to look for any news stories, blog posts or articles about the case.

This is the easiest and quickest approach, but the problem is that unless there’s a big development in the MDL, such as a global settlement, you’re not likely to find much.

Second, you can go to the MDL 3014 court website, which is free and readily available to anyone with an Internet connection. Here, you’ll find court orders from the case. A court order usually reflects something “official” the court does, such as transferring a case, deciding a motion or scheduling a bellwether trial.

The drawback of going to the MDL 3014 website is that it only contains a small fraction of what’s going on in the case. This means it’s sometimes hard to understand the meaning or importance of a particular order.

For example, let’s say you see an order that indicates a judge has granted a plaintiff’s motion for sanctions against the defendant for not providing the requested discovery. But you don’t see each side’s legal briefs or memos arguing their legal positions. You also won’t see any other related motions that the court has yet to rule on.

In a way, seeing a court order all by itself is like being told the current score of a football game, but you aren’t told what quarter it is.

The third option for keeping up with MDL 3014 (or any other federal case) is to review the federal dockets. Dockets consist of a list of pretty much everything that happens in a case, organized by date. The docket will reflect pleadings, motions, an attorney’s entrance of appearance or a jury’s verdict after the trial.

If you want to know all the relevant updates to a particular case or MDL, looking at the dockets is the best approach. That being said, it’s not always the easiest way to learn about recent developments. This is because it can be difficult to understand the various bits of legal and court-specific jargon and codes that appear.

Another problem is that they’re not easily accessible by the public. Yes, anyone with access to the Internet can access federal court dockets, but they need to make a free PACER (Public Access to Court Electronic Records) account.

What’s not always free is using PACER. Information you get from PACER can cost 10 cents per page, although there’s a cap of $3.00 when reviewing a particular document. This is handy when you want to look at a particular court document that’s 500 pages and only have to pay $3.00 instead of $50.00.

If your PACER fees are less than $30.00 for a calendar quarter (three months), the fees are waived. This $30.00 threshold gets reset every quarter, so as long as you’re only using PACER sparingly, you can use it all year and not have to pay anything. But the worst part about PACER is that it’s not the most user-friendly website.

If you want more information about the CPAP litigation, or are thinking about joining MDL 3014, feel free to reach out to me at (919) 830-5602.

If you’ve used a Philips Respironics (Philips) CPAP or BiPAP machine to help with your sleep apnea, then there’s a good chance you’re aware that your Philips machine could be subject to a recall. I’ve written about this recall, as well as the health risks related to it and potential legal options if you’ve been harmed by your defective CPAP or BiPAP machine. In this blog post, I’ll look at one of the reasons why using one of these defective machines is so dangerous. I’ll focus on some of the studies that support the possibility that using one of these Philips machines could put you at greater risk for developing cancer.

How Do the Philips CPAP and BiPAP Machines Potentially Cause Cancer?

Many Philips CPAP and BiPAP machines (as well as Philips ventilators, but this blog post won’t focus on those) are made with polyester-based polyurethane (PE-PUR) foam. This foam is used to reduce the perceived sound and vibration coming from the CPAP and BiPAP machines. This is because many people who use these machines only use them when trying to sleep. So it’s important to make the machine as quiet as possible.

The problem is that the PE-PUR foam may break down and harm the user in two potential ways. The first way is when the foam physically falls apart so that the user inhales or ingests small bits of foam. The second way is when the foam releases harmful chemical gasses (off-gassing) which the user then breathes in. It’s this off-gassing that possesses the greatest risk for cancer.

What Kind of Chemicals Are the Recalled Machines Releasing?

There are many chemicals potentially off-gassed by the recalled BiPAP or CPAP machines. Some of these chemicals include:

• Dimethyldiazene (aka: azomethane)
• Phenol (aka: carbolic acid)
• Toluenediamine
• Toluene diisocyanate

Some of these can be classified as volatile organic compounds, or VOCs. Perhaps you’ve heard of these and how they should be avoided whenever possible. Various studies have examined these and related chemicals and the negative health effects they may have, including cancer.

“Cancer Incidence and Mortality in the Swedish Polyurethane Foam Manufacturing Industry” (British Journal of Medicine, 1993)

This study examined the effects of exposure to toluene diisocyanate and methylene diphenyldiisocyanate in the work setting. The researchers found that exposure to these chemicals resulted in a higher risk of rectal cancer and non-Hodgkin’s lymphoma.

“Infant Exposure to Emissions of Volatile Organic Compounds from Crib Mattresses” (Environmental Science and Technology, 2014)

This study compared crib mattresses made of polyurethane foam to crib mattresses made out of polyester foam. The authors of this study observed that both types of foam released VOCs, but that mattresses with polyurethane foam released a greater variety of VOCs.

“Carcinogenic Risk of Toluene Diisocyanate and 4,4’-Methylenedophenyl Diisocyanate: Epidemiological and Experimental Evidence” (Critical Reviews in Toxicology, 2001)

This article looked at the limited number of studies that examined the cancer-causing properties of Toluene Diisocyanate and 4,4’-Methylenedophenyl Diisocyanate. The goal was to see if these chemicals caused cancer through exposure in the work setting.

No definite conclusions were obtained, but the authors noted both chemicals likely damaged cellular DNA. Combined with the fact that these chemicals caused cancer in laboratory animals, the authors suspected that these chemicals could cause cancer in humans through exposure at work.

Do the Recalled Philips BiPAP and CPAP Machines Cause Cancer?

There’s evidence to suggest there is a link. But assuming there’s a link between the PE-PUR foam from faulty CPAP and BiPAP machines and cancer, the question remains of what amount of exposure to PE-PUR foam is sufficient to dramatically increase the risk of cancer. Additional studies are looking into this question. Still, it seems clear that prolonged exposure to PE-PUR foam can be harmful to your health.

You can expect that in any lawsuit alleging cancer, Philips will attempt to argue that the plaintiffs’ cancer was caused by something else, such as their lifestyle choices or what they did for a living.

Keep in mind that even if using a recalled Philips BiPAP, CPAP or ventilator did not give you cancer, it could have still harmed your health. So if you have any sustained symptoms that might be related to using your Philips machine, don’t hesitate to talk to your doctor. And if you want to learn about your possible legal options, feel free to give me a call (919.830.5602). Good luck.

There are as many as four million machines affected by the CPAP recall. The Philips CEO has stated that it may take a year or longer to fully repair or replace the affected machines. When he says repair he’s talking about replacing that problematic foam or replacing the entire machine for a brand new machine, so it’s going to take a while. And that’s one of the problems that a lot of the people that are calling my office are saying, and that is, that they use this machine to sleep and some of them are worried that they will have to use the recalled machine to sleep. So they’re in a tough position. Again, I’m not a doctor and I don’t give medical advice, but I would say if you can find a replacement machine quickly, set aside your recalled CPAP machine and don’t use it and beyond that, you just have to talk to your doctor about what’s going on and what you should do next.

Potential Injuries from the Recalled CPAP Machines

What are the potential injuries from the recalled CPAP machines? These injuries would include somewhat modest problems like irritation to the eyes or skin, a cough, headache or dizziness. These are not unimportant issues, they can be serious problems, and they run from the gamut from headaches and nausea to sinus infection. More serious injuries include organ damage, asthma and even cancers. The medical community is looking at this aggressively and quickly and trying to figure out all the many problems that can result from inhaling these particulate foam pieces from the CPAP machines or getting exposed to the off-gassing.

The FDA has classified the CPAP recall as Type 1, the most serious one they have, and they’re taking it very seriously. So there is a constellation of symptoms that could result from a breakdown in these CPAP and BiPAP and ventilator machines. Just be very aware of your health and any changes in your health and if you’re feeling a new and suspicious cough or an infection of the sinus, headaches, vomiting, nausea, anything like that, you need to take it and have a doctor to check you out.

CPAP Lawsuits

As you might imagine lawsuits have begun to be filed around the CPAP recall. Millions of these devices have been used for years by millions of patients. Now they’ve been recalled and and they have caused injuries. They suffered through no fault of their own. This litigation is very new and it’s emerging but a multi-district litigation (MDL) site was established in October 2021, in the US District Court for the Western District of Pennsylvania. The judge that is going to be overseeing the MDL for the CPAP device is Judge Conti. If you think you have a case, you can certainly call me ((919) 830-5602) and we can discuss further.

What Should You Do Next?

If you believe you may have a recalled CPAP machine and you have injuries that are flowing from this defective machine, you should not discard the machine. Don’t throw it away and don’t send it back to Philips. Hold on to it. I would encourage you to get a replacement machine if you need one to sleep with, but in any event, the existing machine that is subject to recall, you need to keep all of it and that includes the hoses, pieces and accessories. You want to keep it all because it may end up being evidence in your case.

The very next thing that I would do if I were in your position is to contact your doctor, schedule a visit and explain everything. Explain the kind of machine you have and that it has been recalled, that you are aware of at least two ways for the recalled machine to have caused injury and that you want to be checked out. The third thing I would do is to take inventory, take stock of what’s happened to you in the last few months, the last few years, whether there’s been a new onset of symptoms that you didn’t recognize but you just kind of wrote off because you know, you just thought it was the normal process of aging. I would also write down every detail you can think of that might help your case down the road, which includes when you started using the device, when you stopped using the device, how many nights a week you used it, how many hours per night. You can even note the pressure settings. If you know that how the device was cleaned, how you cleaned the device, and the products used to clean the device. Any time you keep kind of a journal of the basic facts of any case, it’s going to help out your attorney, it’s going to help out your case and it’s going to be useful for you down the road. These facts can be lost to memory and time if you don’t stay on top of it.

So that’s where we are at the moment in this defective product area. The MDL site has been created in Pennsylvania. Dozens of cases are already filed. There are going to be thousands of cases filed in the next year. If you are a user of the Philips CPAP, BiPAP or any ventilator machine that was subject to recall, and you also have symptoms, you need to be well aware of it and keep checking this site as I try to keep people up-to-date. Call me if you want to discuss your case further. But either way, good luck and good health