Users of machines for sleep apnea and ventilators that Philips makes have filed a flood of lawsuits alleging health injuries from degraded polyester-based polyurethane (PE-PUR) in the devices. The company voluntarily recalled certain continuous positive airway pressure (CPAP), bi-level positive airway pressure (BiPAP), and mechanical ventilators devices (Recalled Devices). The Food and Drug Administration (FDA) found that the foam used to lessen the devices’ sound and vibration can result in serious, life-threatening injury and permanent impairment if left untreated.
On February 15, 2022 counsel leadership was announced for the federal lawsuits in this multidistrict litigation.
Learn more about the timeline of CPAP litigation here.
Federal Lawsuit Consolidation
By way of background, a number of federal legal actions were consolidated into a multidistrict litigation (MDL) in the Western District of Pennsylvania on October 8, 2021. A panel of federal judges determined that centralization would eliminate duplicative discovery, promote pretrial ruling consistency, and conserve resources across the board. Since Philips primarily manufactured the devices in Western Pennsylvania, the panel chose the Western District Court forum. The judges named the Honorable Joy Flowers Conti to oversee the MDL.
For the remainder of 2021 and continuing into 2022, requests to transfer more federal cases to the MDL grew. As of January 12, 2021, an additional 122 actions have been transferred to the Western District of Pennsylvania to join the MDL. This brings the total number of lawsuits in the MDL to 132.
Plaintiffs’ Counsel Leaders Named
On February 15, 2022 Judge Conti appointed co-lead counsel, plaintiff’s steering committee, co-liaison counsel, and other committee and subcommittee chairs and members for the Philips Recall MDL.
Co-Lead Counsel
In PreTrial Order #8, the judge named 4 counsel to serve as plaintiffs’ co-lead counsel to assist with the expansive case and complexity of fact, science and law issues. Co-lead counsel will formulate and present positions on substantive and procedural issues and prosecute all claims and coordinate the pretrial proceedings for the individual plaintiffs and classes.
The co-lead counsel for the Philips CPAP, BiPAP, and ventilator MDL are:
Sandra Duggan, Levin Sedran & Berman, Philadelphia, PA
Sandra L. Duggan is Of Counsel at Levin Sedran & Berman, a firm nationally recognized for leadership in MDL cases. The firm has served in leadership roles in nine pharmaceutical and medical device liability class actions. Ms. Duggan was appointed to the plaintiffs’ executive committee in the asbestos property damage class action, Prince George Center, Inc. v. U.S. Gypsum, et al. (C.C.P. Phila.), and she is counsel for class plaintiffs in the Title IX discrimination suit, Cohen v. Brown University, et al., (D.R.I.). Other leadership roles include class counsel for plaintiffs in the global settlement and chair of the fee allocation committee In re: Chinese-Manufactured Drywall Prods. Liab. Litig., MDL 2047, 424 F. Supp. 3d 456 (E.D. La. 2020) and special counsel to the plaintiffs’ fee and cost committee in the BP Oil Spill Litigation,
Kelly K. Iverson, Lynch Carpenter, LLP, Pittsburgh, PA
Kelly Iverson is a partner at Lynch Carpenter and co-chair of the firm’s executive management committee. The firm acted as co-lead counsel, lead plaintiffs’ counsel, or class counsel in many class action cases. Kelly Iverson’s leadership roles in large class actions include plaintiffs’ liaison counsel in In re: Railway Industry (W.D PA, plaintiffs’ steering committee In re: Solara Medical Supplies Data Breach Litigation (S.D. Cal.), and plaintiffs’ co-lead class counsel for settlement classes in Flynn v. Concord Hospitality Enter. Co. (W.D. Pa.) and Flynn v. Aimbridge Hospitality (W.D. Pa.)
Christopher A. Seeger, Seeger Weiss LLP, Ridgefield Park, NJ
Christopher Seeger founded Seeger Weiss with his law school classmate Stephen Weiss in 1999. The firm has represented individuals, companies, and governments in history-making cases. Mr. Seeger served as co-lead of the plaintiffs’ steering committee and on the negotiations committee in the Vioxx multidistrict litigation that achieved a $4.8 billion global settlement. His partner David Buchanan was co-liaison counsel in the New Jersey state Vioxx litigation.
Steven A. Schwartz, Chimicles & Tikellis, Haverford, PA
Chimicles Schwartz Kriner & Donaldson-Smith LLP’s Steven Schwartz will serve as co-lead counsel. The firm has significant experience in achieving substantial results in complex federal and state class actions, having represented plaintiffs in well-known cases such as In Re The Exxon Valdez and In Re Flonase Antitrust Litigation. Mr. Schwartz was co-lead counsel In re Cigna-American Specialty Health Administrative Fee Litigation, No. 2:16-cv-03967-NIQA (E. D. Pa.) and Chambers v. Whirlpool Corp., et al., Case No. 11-1773 FMO (C.D. Cal.). He also was plaintiff’s lead trial counsel in Rodman v. Safeway Inc., No. 11-3003-JST (N.D. Cal.) and lead counsel on behalf of a certified class in Nelson v. Nationwide, July Term 1997, No. 00453 (Phila. C.C.P.).
Plaintiffs’ Steering Committee (PSC)
The judge also named the members of the plaintiffs’s steering committee for the Philips Recall MDL. The PSC members will coordinate discovery, hearings, and meetings with co-lead counsel. Co-lead counsel also serve as ex-officio members of the PSC.
The court-appointed the following 12 counsel to serve on the PSC:
William Audet, Audet & Partners, LLP, San Francisco, CA
The firm where Mr. Audet is the name-partner has served in leadership roles in dozens of significant MDL cases. For example, attorneys from Audet & Partners, LLP acted as one of four plaintiffs’ counsel in the Bay Networks MDL litigation and as a member of the plaintiffs steering in In Re: Pfizer Chantix MDL No. 2092. William personally was named to the plaintiffs’ executive committee in the Zyprexa mass tort MDL and appointed as co-lead class counsel In Re Menu/Pet Food Recall Litigation, among other leadership roles in his career.
Ron Anthony Austin, Ron Austin Law, Harvey, LA
Ron Austin’s firm is a nationally recognized leader in personal injury and mass torts, with broad, extensive experience in multi-state and multi-district lawsuits. Mr. Austin is a sought-after speaker on mass torts, product liability and leadership and entrepreneurship. Ron has represented clients in many toxic torts, medical device, personal injury, and other class-action lawsuits.
Michael J. Blakely II, Pope McGlamry, P.C., Atlanta, GA
Pope McGlamry’s Michael Blakley II has extensive experience in mass torts, class actions and other complex litigation cases, as well as catastrophic personal injury and wrongful death cases. The firm, where Mr. Blakely II is a shareholder, has shown leadership in multidistrict litigation. Michael served as co-lead counsel in In Re: Profemur Hip Implant Products Liability Litigation MDL No. 2949 and In Re: Zantac (Ranitidine) Products Liability Litigation, MDL No. 2924. Pope McGlamry was a member of the plaintiffs’ steering committee, communications committee and as co-lead counsel on the discovery committee for the NFL players concussion MDL.
Virginia Marie Buchanan, Levin Law Firm, Pensacola, FL
Virginia is a shareholder at Levin Papantonio Rafferty. Ms. Buchanan heads the firm’s medical negligence department and co-chairs the class action department. Her practice is limited to serious cases involving personal injury and wrongful death. Firm lawyer leadership roles in MDLs are numerous, including In re:Chinese Drywall Prods. Liab. Litig. MDL 2047 (E.D. LA) (Plaintiffs’ Steering Committee; Science Committee), In re Cisco Systems, Inc., Securities & Derivative Litig., MDL 1527 (N.D. CA) (Plaintiffs’ Co-Lead Counsel), and In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., MDL 2921 (D. N.J.) (Co-Lead Counsel).
Shanon J. Carson, Berger Montague PC, Philadelphia, PA
Mr. Carson, an executive shareholder at the firm, has served in many complex litigation leadership roles. A sampling includes co-lead counsel in Clements v. JPMorgan Chase Bank, N.A., No. 3:12-cv-2179 (N.D. Cal.), Citibank Force-Placed Insurance Litigation, Nos. 5:12-cv-00820, 1:13-cv-353 (N.D.N.Y.), and Allergan BIOCELL Textured Breast Implant Products Liability Litigation, No. 2:19-md-02921, MDL No. 2921 (D.N.J.). Lawyers at Berger Montague LLP have been appointed co-lead counsel or co-lead class counsel in a long list of cases such as Alcatel Alsthom Securities Litigation, MDL No. 1263; Adriana Castro, M.D., P.A., et al. v. Sanofi Pasteur Inc. Lawsuit, and the class action against CertainTeed Fiber Cement WeatherBoard Siding.
Ruth Anne French-Hodson, Sharp Law, LLP, Prairie Village, KS
Ms. French-Hodson, a partner at Sharp Law, focuses her practice on complex consumer class actions and appeals. Courts have appointed Ruth to serve on the Executive Committee in the In Re Crops Inputs Antitrust Litigation (E.D. Mo.) and as a member of the co-lead team in In Re: EpiPen. The firm’s lawyers have acted as lead or co-lead counsel in more than 50 class actions in state and federal courts.
Lauren Sanderson Miller, Hagens Berman Sobol Shapiro LLP, Seattle, WA
Ms. Miller is an associate at Hagens Berman Sobol Shapiro. Lauren’s practice spans defective pharmaceutical drugs and medical devices plaintiff cases, consumer fraud and personal injury litigation, and advocacy for sexual assualt survivors. Miller is a member of the plaintiffs’ steering committee in In Re: Zantac (Ranitidine) Products Liability Litigation. The firm is recognized for its class action leadership roles ranging from plaintiffs’ steering committee membership in the Volkswagen Emissions Litigation, to co-lead counsel in the dynamic random access memory (DRAM) price-fixing class action, to co-lead counsel in the Average Wholesale Price Drug Litigation.
Michael F. Ram, Morgan & Morgan, P.A., San Francisco, CA
Mr. Ram is an attorney at Morgan & Morgan where he heads the consumer protection department. He was co-lead counsel in Keilholtz et al. v. Superior Fireplace Company, No. 08-cv-00836 (N.D. Cal. 2008) and in Chamberlan v. Ford Motor Company, No. 03-cv-2628 (N.D. Cal.) Michael currently is co-lead counsel in a number of consumer class actions, including Gold v. Lumber Liquidators, N.D. Cal. No. 14-cv-05373-RS. Morgan & Morgan is a very large firm with more than 800 lawyers and a long list of successful case results.
Jason Rathod, Migliaccio & Rathod LLP, Washington, DC
Jason Rathod, a partner in the firm, has a portfolio of class actions where he represented clients notably in consumer protection, worker rights, and civil rights. Mr. Rathod served as class counsel in a number of significant class actions. M&R’s leadership in complex litigation is broad. Firm lawyers were on the plaintiff steering committee in Fath et al. v. Honda North America, Inc.: Case No. 0:18-cv-01549 (D. Minn.) and were among the court-appointed class counsel in a nationwide Lenovo settlement with laptop owners.
Joyce Chambers Reichard, Kelley & Ferraro, LLP, Cleveland, OH
Ms. Chambers Reichard is an associate at Kelley & Ferraro. Her practice concentrates on pharmaceutical litigation, products liability litigation, asbestos, workers’ compensation, personal injury, lien resolution cases. The firm, a leader in representing victims of asbestos exposure resulting in lung, colon and esophageal cancers and mesothelioma, has recovered over $1 billion for asbestos and mesothelioma clients.
Dena C. Sharp, Girard Sharp LLP, San Francisco, CA
Ms. Sharp approaches her representation of clients in complex litigation as a problem solver. Dana serves as co-lead counsel in the In re Juul Labs Inc. multidistrict litigation, In re Xyrem Antitrust Litigation, and In re California Gasoline Spot Market Antitrust Litigation. She is co-lead counsel for a certified class in In Restasis Antitrust Litigation, and co-lead counsel in In re Lidoderm Antitrust Litigation. Girard Sharp has been co-lead counsel in a medical sexual abuse class action against the Unversity of California and gynecologist Tyndell, and worked in leadership roles in many other complex litigations.
David S. Stellings, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY
Mr. Stellings , a partner in the firm’s New York office, serves as co-lead counsel in an MDLin Los Angeles federal court concerning defective safety systems made by certain auto part makers and automobile manufacturers. He has also had leadership roles in the Volkswagen “Clean Diesel” Emissions Fraud Litigation, the Takata exploding airbag nationwide class action, and the Fiat Chrysler “EcoDiesel” multidistrict litigation, to name a few such cases. The firm has led in a wide range of MDL cases – such as serving on the plaintiffs’ steering committee in the Deepwater Horizon oil rig MDL, the Multi-District Vioxx Litigation, and the Silicone Gel Breast Implants Litigation.
Co-Liaison Counsel Appointed
In PreTrial Order #8 Judge Conti also announced the appointment of co-liaison counsel. These two attorneys will assist with essential administrative functions for this complex litigation and have liaison oversight over the entire MDL. In addition, co-lead counsel may direct Mr. Wolff and Mr. Rihn to attend any co-lead, PSC, committee, or subcommittee meeting.
The named co-liaison counsel are:
D. Aaron Rihn, Robert Peirce & Associates, P.C., Pittsburgh, PA
Mr. Rhin is a partner at Robert Peirce & Associates, where he leads the firm in complex litigation cases. The practice spans class actions, pharmaceutical, product liability, and other types of civil cases. Aaron’s leadership was recognized when he was appointed to serve on the plaintiffs’ steering committee in the Federal Prempro MDL.
Judge Contin gave Mr. Rihn primary responsibility for the administrative tasks set forth in her order related to the personal injury claims. He is also appointed an ex-officio member of any subcommittee tasked with duties or issues related to those claims.
Peter S. Wolff, Pietragallo Gordon Alfano Bosick & Raspanti, LLP, Pittsburgh, PA
Peter Wolff is a partner in the class action, commercial litigation and fiduciary, estates and trusts litigation practice groups at his firm. Pietragallo Gordon Alfano Bosick & Raspanti class action practice group includes corporate shareholder and derivative actions, products liability cases, health care fraud, and employment discrimination claims.
Judge Conti announced that with respect to the class action and medical monitoring claims, Mr. Wolff has primary responsibility for the administrative tasks. He will also serve as an ex-officio member of any subcommittee tasked with duties or issues related to those claims.
Committee and Subcommittee Appointments
Judge Conti appointed three counsel to act as chair and vice-chairs for the settlement committee. She also appointed attorneys to serve in other committees and subcommittees. Her list in this order is not an exhaustive list of the subcommittees which may be appointed in this MDL.
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