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The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.

Philips CPAP/ BiPAP Machines Still Under Fire

Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suit, Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.

Continue Reading Recall Litigation Report: Year in Review (2022)

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Companies faced with a potential product recall are often concerned with possible adverse publicity and increased litigation risk. But a quick and comprehensive recall can be the very tool that stops a lawsuit in its tracks. In a recent Law360 article titled, “Quick and Comprehensive Recall Moots Claims and Proves an Effective Tool in Defeating…

Companies take note: over the past month or so, the U.S. Consumer Product Safety Commission (CPSC) has issued four unilateral press releases instructing consumers to stop using a product. Since May of this year, that number rises to seven. If that number does not seem high, consider this: between 2011 and 2019—a nine-year period—the agency issued two. So, what exactly is a “unilateral press release” and what does the agency’s issuance of four over recent weeks mean for you?…

Continue Reading CPSC Enforcement Trend: Unilateral Press Releases

New parents have their hands full. Baby bouncy seats and swings offer busy caregivers a way to put an infant down but still allow him or her to see and interact with the surrounding environment. But recent recalls have led parents to think twice before going hands free.

On August 15, 2022, 4moms and the CPSC announced a recall of more than two million 4moms MamaRoo Baby Swings (versions 1.0  – 4.0) and over 220,000 RockaRoo Baby Rockers sold in the U.S. and Canada. According to the announcement, the restraint straps on the 4moms MamaRoo Baby Swing and RockaRoo Baby Rocker can dangle below the seat when the product is not in use, posing a strangulation hazard to crawling infants. On August 29, 2022, residents from North Carolina and South Carolina sued Thorley Industries, LLC (d/b/a 4moms) on behalf of nationwide class of purchasers of the recalled products in federal court in Pennsylvania.…

Continue Reading Litigation Recall Report: Nationwide Lawsuit Follows 4moms Recall of MamaRoo Baby Swing and RockaRoo Baby Rockers

Consumer-driven lawsuits that follow product recalls often focus on what the manufacturer knew and when, bringing a host of fraud-based common law and statutory claims. Sometimes lawsuits go a different route, insisting that companies should warn consumers about every possible complication that could result from the products they manufacture, no matter how remote. A new class action against Lyons Magnus, in Catalono v. Lyons Magnus, LLC, No. 7:22-cv-06867 (S.D.N.Y filed Aug. 11, 2022), is one such case.

In July and August, Lyons Magnus voluntarily recalled 90 of its nutritional beverage products due to possible bacterial contamination from Cronobacter sakazakii and Clostridium botulinum, which can cause food poisoning, fever, and/or urinary tract infection, and in very severe cases, respiratory paralysis and death. And on August 11, 2022, a New York resident sued Lyons Magnus on behalf of nationwide and New York classes of purchasers of the recalled products.…

Continue Reading Litigation Recall Report: Nationwide Lawsuit Follows Lyons Magnus Recall of Contaminated Products

It is impossible to deny the convenience of having pre-made or ready-to-make meals delivered to your doorstep. Daily Harvest, which launched in 2015, has cornered the market on ready-to-eat, “actually healthy” meal delivery. Recently, however, a recent recall of one of its products after consumers fell ill, has led to several lawsuits against the company.

On June 17th, Daily Harvest initiated a voluntary recall after consumers reported adverse reactions after eating the “French Lentil + Leek Crumbles.” After an investigation, Daily Harvest announced that the source of the problem was tara flour, which is one of the ingredients. Just a short while later, on June 27th, a New York resident filed a putative class action lawsuit against Daily Harvest, Peni v. Daily Harvest, 1:22-cv-05443 (S.D.N.Y. filed June 27, 2022), alleging that she bought and consumed the French Lentil + Leek Crumbles and then “became violently ill with gastrointestinal illness and was hospitalized” for “fever, nausea, extreme abdominal pain, chills and joint pain,” which led in the removal of her gallbladder. The plaintiff seeks to assert strict liability, breach of express and implied warranties, and negligence claims against the company on behalf of a Nationwide and New York subclasses of persons who suffered “gastrointestinal illness” as a result of Daily Harvest’s French Lentil + Leek Crumbles.…

Continue Reading Litigation Recall Report: Daily Harvest Sued After Recall of French Lentil + Leek Crumbles

Peanut butter has been a staple of the American diet for well over 100 years, but it is rarely newsworthy. That changed recently after J.M. Smucker Co. (“Smucker”) pulled some of its famous Jif-brand peanut butter products from shelves across the country.

In mid-May, Smucker recalled several varieties of  Jif peanut butter as a result of potential salmonella contamination after customers reported illnesses in several states. Shortly after the recall, on May 25, South Carolina resident, John Kraljevich filed a putative class action lawsuit in Kentucky, Kraljevich v. The J.M. Smucker Company, No. 5:22-cv-00134-GFVT (E.D. Ky. filed May 25, 2022). Although plaintiff Kraljevich does not allege that he contracted salmonella or was ever sick after consuming Jif peanut butter, he alleges that he would not have purchased these products if he had known about the contamination and as a result, he and other purchasers suffered economic loss. Plaintiff Kraljevich asserts claims for breach of warranty, negligence, strict liability, fraud, unjust enrichment, and punitive damages on behalf of himself as well as nationwide and South Carolina classes of purchasers of the recalled products.…

Continue Reading Recall Litigation Report: J.M. Smucker Co. Faces Class Action Suits Following Jif Peanut Butter Recall

Despite imposing onerous new compliance terms, the recently announced Vornado civil penalty was criticized by three commissioners as too low amid their urgent calls for larger penalties in the future. On July 7, the U.S. Consumer Product Safety Commission (CPSC) announced a $7.5 million civil penalty settlement with manufacturer of air circulation products, Vornado Air (Vornado). Vornado agreed to pay the civil penalty to resolve charges that the Company knowingly failed to immediately report allegedly defective electric space heaters to the CPSC under Section 15(b) of the Consumer Product Safety Act (CPSA). The Commission voted 4-0-1 to provisionally accept the settlement. Notably, three of the agency’s five commissioners published individual statements alongside the agency’s announcement of the penalty, which is atypical. The statements provide product safety stakeholders with insights on how the “new” Commission views civil penalties and its enforcement authority. …

Continue Reading “Wiping the Slate Clean”— CPSC Commissioners Signal Higher Penalties to Come in Wake of Vornado Penalty Resolution

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. …
Continue Reading Recall Litigation Report: Philips Faces Supplier Class Action Following CPAP/BiPAP Recall

Recalls in Review: A monthly spotlight on the trending regulatory enforcement issues at the CPSC.

With the winter holiday season approaching, many families are looking forward to hard-earned vacations and fun activities with their loved ones. And many will be looking to ride, rent, or purchase recreational vehicles for some fun—from all-terrain vehicles (“ATVs”) and golf cars to off-road motorcycles and snowmobiles. Thus, as we head into the winter season, we turn our attention to Consumer Product Safety Commission (“CPSC”) regulatory actions involving recreational and utility vehicles for this month’s installment of “Recalls in Review.”…
Continue Reading Recalls in Review: Recreational and Utility Vehicles