Each year, thousands of products—from cosmetics to motor vehicles to children’s toys—are taken off the market over defects that pose potential safety concerns. Product recall announcements can generate a lot of publicity and quickly lead to class action or mass action lawsuits. Although a product recall does not automatically make a manufacturer liable, a quick and effective response can make all the difference. Product recalls are not necessarily “silver bullets” that defeat all civil claims, but a voluntary recall can serve as a strong defense in such suits, regardless of whether plaintiffs are claiming personal injury or only economic damage.

Earlier this year, Dutch medical equipment company Philips Respironics, experienced this first hand as consumers have filed more than a hundred putative class action lawsuits against the company following its recall of sleep apnea machines (i.e. continuous positive airway pressure (CPAP) and bilateral positive airway pressure (BiPAP) machines) and ventilators.

On June 14, Philips publicly announced a recall of several different models of CPAP and BiPAP breathing machines because it discovered that the polyester-based polyurethane (PE-PUR) foam found in the machines could break down, be inhaled or ingested by users, and increase their risk of cancer and other injuries. Philips first publicized these adverse effects  in its Q1 2021 Quarterly Report, which was published seven weeks earlier, on April 26, 2021.

In the weeks and months that followed the June 14 recall, putative class action lawsuits emerged in droves, seeking compensation for injuries, risks and disrupted use. Among other things, these lawsuits allege that Philips knew about the serious risk of injury caused by its devices long before it warned the public about potential hazards in April and finally issued a recall in June. According to the complaints, patients using these devices complained to Philips about black particles in their machines for years. These devices have been distributed around the world since July 2009 and the recall affects roughly 3-4 million devices.

In response to the growing number of CPAP recall lawsuits filed in federal courts throughout the United States, a new “class-action” CPAP multi-district litigation (MDL) was formally created in early October. Now, over a hundred lawsuits will be consolidated before U.S. District Judge Joy Flowers Conti in the U.S. District Court for the Western District of Pennsylvania (Pittsburgh).

Stay tuned for further updates as this case progresses and on this interesting intersection between product recalls and class action lawsuits.