The practice of law has changed in many ways during the COVID-19 global pandemic, but a slow-down in class action lawsuits was not one of those changes. In the second half of 2021, consumers filed quite a few lawsuits following a wide range of highly-publicized recalls, involving everything from pharmaceuticals to automobiles.
For example, as previously reported, on June 14, 2021, Philips Respironics voluntarily recalled several different models of CPAP and BiPAP breathing machines because the polyester-based polyurethane (PE-PUR) foam in the machines has the potential to break down, be inhaled or ingested by users, and increase their risk of cancer and other injuries. In the weeks and months that followed the recall, a number of putative class action lawsuits emerged, seeking compensation for injuries, risks, and disrupted use. Generally speaking, plaintiffs allege that Philips Respironics knew about the serious risk of injury caused by its devices long before it warned the public about potential hazards in April 2021 and finally recalled the machines in June 2021. Over a hundred lawsuits have now been consolidated in the U.S. District Court for the Western District of Pennsylvania in the CPAP multi-district litigation, In Re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014, and discovery is ongoing.
Similarly, Pfizer, Inc. is now defending itself against several lawsuits after recalling twelve lots of its varenicline-containing drugs (sold under the brand name Chantix) in July 2021, which contained levels of a nitrosamine impurity, N-nitroso-varenicline, above the FDA interim acceptable intake limit. Although Chantix, a treatment to help patients quit smoking, is intended for short term use, long-term ingestion of N-nitroso-varenicline may increase the risk of cancer. A few weeks later, in August 2021, a purchaser of the recalled medication filed a class action complaint in the U.S. District Court for the Southern District of New York alleging that Pfizer had reason to know of the presence of N-nitroso-varenicline in its drug but failed to disclose this important information. In Harris v. Pfizer, Inc., No. 1:21-cv-06789, the plaintiff has asserted warranty, consumer protection, unjust enrichment, and fraud claims on behalf of herself, a nationwide class of “all persons in the United States who purchased Chantix containing N-nitroso-varenicline,” and a subclass of “all Class members who purchased Chantix containing N-nitroso-varenicline in New Jersey.” After Pfizer extended its recall in September 2021 to include all lots of its Chantix 0.5 mg and 1 mg tablets, additional users filed suit in federal courts in New York, Pennsylvania, Florida, Illinois, and California. In these cases, plaintiffs similarly allege that Pfizer manufactured and sold the drug despite knowing about the N-nitroso-varenicline contamination. As in Harris, plaintiffs assert a variety of contract and tort claims on behalf of themselves, a nationwide class of purchasers, and a state-specific subclass of purchasers. Due to the number of analogous class actions currently pending against Pfizer across the country, the parties have sought a stay in the various proceedings as they negotiate an appropriate forum for a consolidated case.
More recently, in November 2021, Mazda Motor of America, Inc. announced its recall of more than 121,000 vehicles with certain fuel pumps. On November 16, two purchasers filed a putative class action against Mazda in the U.S. District Court for the Central District of California, alleging Mazda knowingly sold vehicles with defective fuel pumps that caused their engines to shut down or fail to start. In Vance, et al. v. Mazda Motor of America, Inc., Case No. 8:21-cv-01890, these plaintiffs assert claims for strict product liability, breach of express warranty, breach of implied warranty of merchantability, negligent recall/undertaking, fraudulent omission/concealment, and violations of specific Alabama and California consumer protection laws. They seek to represent a nationwide class of current and former owners or lessees and two state-specific subclasses. Mazda must answer or otherwise respond to the complaint by January 19, 2022.
Just a few weeks ago, a purchaser of Secret antiperspirant sued Proctor & Gamble Company in the U.S. District Court for the Western District of Pennsylvania after the company recalled these products due to the presence of benzene. According to the complaint in LaBella v. Procter & Gamble Co., No. 3:21-cv-00216, the consumer-protection testing lab Valisure tested and found higher-than-allowed benzene concentrations in several Old Spice and Secret aerosol spray deodorant and antiperspirant products. More specifically, Valisure’s testing found up to 17.7 ppm of benzene in some Old Spice products and 16.2 ppm of benzene in the highest-testing Secret products, more than 8 times the FDA limit of 2 ppm in consumer products. Plaintiff alleges that Proctor & Gamble made misleading representations about the safety of its antiperspirants and failed to warn consumers about the benzene contamination. She asserts claims for breach of express warranty, breach of implied warranty, fraudulent concealment, unjust enrichment and violation of Pennsylvania’s consumer protection law on behalf of herself, a nationwide class of purchasers, and a Pennsylvania subclass. By January 10, 2022, Procter & Gamble must answer or otherwise respond to the complaint.
Product recalls do not always lead to lawsuits. But given the number of recent recalls and the flurry of litigation activity over the last six months, this trend in class action litigation could well continue into next year. Whether and how frequently class action lawsuits will follow company recalls in the coming months is likely to depend, in large part, on the early successes and failures of these cases filed during the second half of 2021.