Philips Respironics has seen an onslaught of litigation related to its CPAP and BiPAP breathing machines, which it recalled in June 2021. For months following the recall, Philips was inundated with hundreds of consumer class action lawsuits, which were consolidated in a CPAP MDL last fall in the U.S. District Court for the Western District of Pennsylvania.

Now, Philips faces off against a different kind of class action plaintiff—medical device suppliers. Earlier this month, Baird Respiratory Therapy, Inc., filed a putative class action lawsuit against Philips in the U.S. District Court for the Eastern District of Pennsylvania, seeking to represent a nationwide class of durable medical equipment suppliers who purchased Philips’ recalled breathing machines. In Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.) (filed March 9, 2022), Baird alleges that Philips breached its express warranty and misrepresented the risks inherent in the polyester-based polyurethane (PE-PUR) foam found in the machines, which can potentially cause cancer and other injuries. According to the complaint (1) Philips “unreasonably delayed its recall” by waiting to notify Baird and other suppliers of reports indicating that the PE-PUR foam could breakdown and put users in harm’s way; (2) it knowingly allowed its packaging, labels, advertisements, promotional materials, and websites to intentionally mislead Baird and other suppliers about the recalled products; and (3) as a result, Baird and other suppliers lost money when they were unable to resell the recalled CPAP and BiPAP machines.

Baird asserts claims against Philips for breach of express warranty, fraudulent misrepresentation, fraud by omission, and unjust enrichment. On behalf of itself and a putative nationwide class of durable medical equipment suppliers, Baird seeks a declaratory judgment and monetary relief of over $5 million.

This most recent lawsuit illustrates that when a company recalls one of its products, class action plaintiffs can come in all shapes and sizes, and from various stages of the distribution chain. Stay tuned for further updates on this case and the Philips’ CPAP MDL.