If you have cancer, lung problems, leukemia, myeloma or other injuries from using a recalled Phillips CPAP machine, you might be able to join a lawsuit to sue Phillips for injures sustained from their CPAP, BiPAP and ventilator machines potentially caused by carcinogens and toxic chemical exposure.
What went wrong?
Philips Respironics manufactures “continuous positive airway pressure” (CPAP), bilevel positive airway pressure (BiPAP), and ventilators for the treatment of obstructive sleep apnea. Those with this condition experience disruption of normal breathing during sleep, as manifested by snoring.
These machines use polyester-based polyurethane foam to diminish the noise and vibrations generated while the user sleeps. When the foam degrades, it releases toxic gases and matter, which the users may inhale and ingest. As explained more below, the toxins may sicken users and expose them to serious conditions such as organ failure and cancer.
Philips issued a recall on June 14, 2021, for the first-generation devices. In the wake of this recall, numerous users have sued Philips for personal injuries and other damages. Below, we explain whether you can sue Philips if you claim one of its devices has resulted in illness or serious disease.
Did You Use One of the Recalled Models?
Determine if you used a device with potentially toxic foam. Philips manufactured the CPAP, BiPAP, and ventilator machines that used polyester-based polyurethane foam between 2009 and April 26, 2021. The devices which Philips recalled include:
*A-Series BiPAP V30 Auto Ventilator
*C Series ASV, S/T, AVAPS
*E30 (Emergency Use Authorization)
*DreamStation CPAP, Auto CPAP, BiPAP
*DreamStation ST, AVAPS
*DreamStation GO CPAP, APAP
*Dorma 400, 500 CPAP
*Garbin Plus, Aeris, LifeVent Ventilator
*OmniLab Advanced Plus In-Lab Titration Device
*REMStar SE Auto CPAP
*SystemOne (Q series)
*Trilogy 100 Ventilator
*Trilogy 200 Ventilator
The company has a page devoted to the recall of these devices. You can enter the device’s serial number to learn if Philips has recalled it.
The fact that your machine is subject to recall does not automatically mean you will recover from Philips. Generally, a voluntary recall is not admissible to prove fault. However, you can use evidence of such a recall to show that Philips manufactured and controlled your device. Below, we’ll tell you the specific legal theories upon which plaintiffs may rely in Philips CPAP lawsuits.
Have You Suffered Harm From a Philips CPAP Device?
You need to show that you suffered an illness through exposure to the toxins in the foam.
Studies have noted that diisocyanates and other chemicals in polyurethane foam may increase the risk of cancer. You might have a claim if you received a cancer diagnosis after using one of the devices. These cancers include:
- Lung cancer
- Breast cancer
- Thyroid cancer
- Prostate cancer
- Liver cancer
- Testicular cancer
If you believe that one of these devices caused your cancer, defense lawyers likely will want and review your medical records to see if you have a history of pre-existing cancer, smoking, other tobacco use, other exposure to carcinogens, or other cancer risk factors. A prior family history of cancer might provide some argument to the defense that the machines did not heighten your risk of or cause cancer.
Other Adverse Effects
Users of these devices may develop discomfort or other illnesses from inhaling or digesting the toxins. These symptoms include:
- Asthma attacks
- Irritation of airways
- Sinus infections
- Chest pressure
From these adverse effects comes the need for examination and treatment of potentially more serious medical conditions. Poisoning from degraded polyester-based polyurethane foam may cause, among other things, kidney failure, lung failure, renal disease, liver disease, and respiratory failure.
Claims might arise even for those who have not been diagnosed with cancer or suffered any of the above effects from toxic exposure. For such claimants, lawsuits may allege that the defects and delay in replacing the defective devices may exacerbate obstructive sleep apnea. If you faced a delay in treatment, you might have suffered from complications such as fatigue, sleepiness, headaches in the morning, sore throats, loss of sexual drive, depression, anxiety, and irritability.
What Are the Legal Theories For Suing Philips?
Lawsuits against Philips arising from the CPAP, BiPAP, and ventilators are founded in products liability. Plaintiffs allege that Philips designed and manufactured a defective product by including polyester-based polyurethane that can degrade into toxic substances. The product liability claims also include the failure of Philips to warn about the defect even though Philips knew about the risk that the foam would degrade into a toxic and potentially cancer-causing form.
Other legal theories include violation of consumer protection statutes, breaches of warranty, fraudulent concealment or misrepresentation, and unjust enrichment.
Are There Time Limits to Sue Philips?
The statute of limitations and statute of repose may render you ineligible to participate in a Philips CPAP lawsuit.
A statute of limitations sets the deadline after you become injured or should have discovered an injury from a wrongful act to sue. Should you face such a defense, you may be able to argue that the Philips recall of June 14, 2021, represents the earliest that you should have discovered harm from the defect. The date of your diagnosis of a condition connected with your use of one of these machines may also show when you should have discovered your injury. Generally, the bodily or personal injury statute of limitations will apply to Philips CPAP lawsuits.
With a statute of repose, the time to sue starts from either the date the user purchased the item or from the date of manufacture. The deadline might pass even if you have not suffered an injury or discovered it until later. For that reason, statutes of repose run longer than statutes of limitation. Depending on your state, the statutes of repose last six to ten years. With the recalled machines being manufactured as early as 2009, users of the oldest of the first-generation devices might encounter significant barriers to bringing their suits.
Where Can You Bring Your Lawsuit?
On October 8, 2021, the United States Judicial Panel on Multidistrict Litigation consolidated Philips CPAP lawsuits in federal court in the Western District of Pennsylvania. At the time of the transfer, a reported 104 lawsuits arising out of the Philips CPAP machines were pending in 31 federal district courts. These include class actions, non-class actions, and personal injury claims.
In multidistrict litigation in federal court, a single federal district judge oversees the scheduling and conduct of discovery, pretrial motions, and setting of cases for trial. This approach seeks to avoid inconsistent rulings on common or recurring factual and legal issues. During the supervision of multidistrict cases, the judge selects a small number of claims for “bellwether” trials to allow the parties to assess the general overall strength of the claims.