CPAP Plaintiff Steering Committee Member Roundtable

By Susan Barfield
April 19, 2022

Susan Barfield (00:05):
Hello everyone. Thank you for joining another Case Works stream. Today we are going to be talking all things CPAP. Super excited to have both Lauren Miller and Michael Ram here with us today. Both have been appointed to the plaintiff steering committee. And so again, thankful and grateful to have you guys here to share insights and updates as it relates to this litigation. Lauren, why don’t we start with you, if you’ll give us a little bit of background about the firm that you’re with and your role, that would be awesome.

Lauren Miller (00:37):
Yeah, sure. I am an attorney at Hagens Berman. We are primarily based in Seattle, but I’m down here in Birmingham, Alabama. I mostly focus on mass works. And so my focus is personal injuries, more so than class and consumer fraud cases. My firm, however, has a lot of experience litigating consumer fraud and antitrust cases. I focus on pharmaceutical drug and medical device litigation, and I also serve on the intact plaintiff steering committee.

Susan Barfield (01:10):
Wonderful. Thank you. Mike, you’ll give us a little background about yourself, and the firm that you’re with and your role.

Michael Ram (01:18):
Hi, my name is Michael Ram. And I’m a consumer class action lawyer. This is my 40th year of doing that, and I’m with Morgan and Morgan, and specifically, I’m the head of Morgan and Morgan’s class action, consumer products division.

Susan Barfield (01:39):
So 40 years. So you know a thing or two?

Michael Ram (01:43):
And I’ve forgotten more.

Susan Barfield (01:46):
Hey, one question I get all the time, and I think I do a great… I think I provide a great response, but I’d love to hear from you guys. What exactly is the plaintiff steering committee? What is the role? Lauren, do you want to share your thoughts on plaintiff steering committee?

Lauren Miller (02:04):
Sure. So plaintiff steering committee typically nowadays is appointed by the judge. I feel like in past litigations, we saw a lot of slates submitted and approved by judges, but lately we’ve seen an interview process along with applications that have been submitted, and in the judge making the final decision on who is going to be serving on the plaintiff steering committee. So the steering committee is typically comprised of one or several co-lead council that lead the litigation, and the rest of the steering committee. And then we are also split up into sub-committees. So there are committees that also focus on discovery science and experts, bellwether trials, and typically those that are on the plaintiffs steering committee chair those subcommittees, and we lead the litigation on behalf of plaintiffs.

Susan Barfield (02:56):
Wonderful. Michael, anything else you would add or that pretty much sums it up?

Michael Ram (03:01):
That’s a really good summary. This is the latest in a series of MDLs that are now combining, mass tort lawyers like Lauren with class lawyers like me. And so it’s important to have an organizational structure, as Lauren described, to make sure that the mass side and the class side, and also here, the medical monitoring side are all ably represented.

Susan Barfield (03:34):
Great. Okay. Well, let’s dive into talking about CPAP, and to get things rolling. Michael, I wanted to find out from you, how do the issues with the Phillips recall CPAP BiPAP and the mechanical ventilators get brought into courtroom?

Michael Ram (03:50):
Well, as I think everybody knows by now, in April of 2021 or so, Phillips Restaurant of 2021, the FDA announced that Phillips would be recalling certain CPAP and BiPAP, and ventilators due to the breakdown of the foam that was used to dampen the sound of the machines, that the foams breaking down. And then the people using the CPAP can inhale or ingest the particles, being exposed to toxic chemicals. And so they were going to recall these machines.

Susan Barfield (04:36):
Lauren, will you share with us the exact and machines that are involved in this case?

Lauren Miller (04:44):
Yeah, so there are a number of machines that were manufactured by Phillips. Some are CPAP machines. So that means continuous positive airway pressure. And those are primarily for patients that have sleep apnea, and they work by delivery a stream of oxygenated air into your airway, but that comes in through a mask with a tube attached to it. So the pressurized air prevents your airways from collapsing, and you can breathe as you’re sleeping. Then there are also the bi-level positive airway pressure machines. So those are call BiPAP machines. And those are really similar. They just also, they do an inhale pressure and an exhale pressure.

Dan Comunale (05:28):
Excellent. And Lauren, real quick, with your experience with Zantac, one of the things you’re hearing a lot about this case is, what is the estimated impact? How far back does this go? I imagine your experience dealing with Zantac, dealing with a large volume of claimants is something that’s going to be struggle for the steering committee. If you could just give an estimated impact, sort of the date ranges, and any sort of experience crossover from your Zantac committee.

Lauren Miller (05:58):
That’s going to be a hard question for me to answer. So we might want to pause on that one. I don’t actually know the exact years. I don’t know if we know what Phillips is telling us, but I don’t know if we really know the full impact of this. We haven’t yet looked at every single machine that was manufactured. I mean, we obviously think they’re pretty similar and if they’re recalled, they’re going to have similar issues. Zantac is a little bit different because it’s the same exact formulation, right? So it was always the same compound way back in 82 or 83. This, I don’t know exactly how far back it could go.

Michael Ram (06:46):
I would agree with Lauren that we’re still studying the science. And I would add that the recall covers all CPAPs back to 2009, and then through 2021.

Susan Barfield (07:03):
Okay. I mean, we do know, I think there was some research that came out or some metrics that there was an estimated 22 million of Americans suffer from sleep apnea.

Lauren Miller (07:14):
Right. And millions of products for recall.

Susan Barfield (07:18):
Lauren, a lot of people listening, they may not even know what sleep apnea is. Do you want to share what sleep apnea is?

Lauren Miller (07:27):
Yeah. So sleep apnea is a sleep disorder, and it happens when someone cannot breathe very well during their sleep. So they might stop breathing, a lot of times, maybe even hundreds of times while they’re sleeping, and therefore they’re not getting enough oxygen in their brain or the rest of their body.

Susan Barfield (07:47):

Michael Ram (07:47):
And I want to add just a personal note, that I can’t prevent myself from adding. And that is in addition to adults who snore, as Lauren’s describing, and my own son was born 14 weeks prematurely. And so he stopped breathing, he wasn’t ready to come out of the isolette for 14 weeks. And so he had a CPAP because his brain would forget to breathe. And that kept him alive. So you can’t really overstate the importance of these devices.

Susan Barfield (08:26):
Yeah. Yeah. For sure. So to date, what are the reported injuries and some of the injuries we can expect to see in the future? Michael, do you want to take that one?

Michael Ram (08:42):
Oh, okay. Well, our firm has been very selective in the personal injury cases that we’ve been taking on. So there certain cancers that are linked to respiration, and then there’s some diseases that are linked, for liver, kidney, for example. But we’re still learning the science and that, and I kind of defer to Lauren.

Lauren Miller (09:16):
Yeah. So I’m the co-chair of the science committee in the litigation, and we are absolutely still investigating and need to find out more. We know several of the chemicals that are involved in the off-gassing and that are contained in the particles that are being produced as the foam degrades, but we’re still looking at more information on those chemicals, the amounts of chemicals, and what organ systems they affect.

Susan Barfield (09:45):

Lauren Miller (09:47):
I would say the list that plaintiffs generally are looking at, or any kind of inflammation to the ear, nose, throat, sinus cavities, kidney damage, and liver damage, and then there’s a number of cancer issues potentially as well.

Susan Barfield (10:06):
Okay. Well, you mentioned the plaintiff steering committee was recently appointed. What is the committee working on right now? Or what is the main focus? Lauren, if you…

Lauren Miller (10:19):
Oh man, there’s never a main focus. There’s always a lot of focuses. So initially we’re going to start trying to get together a lot of administrative orders that we have to confer with defendants on. Also, getting started on discovery is really important at this stage because there’s a lot you can’t do until you get the documents from defendants. So we’ve already done some of those early preliminary discussions with defendants, and we’ll certainly do more as we develop an ESI protocol and other things to get document production rolling. Science, of course, is always a really critical focus in the NDL, from start to finish, but especially in the early stages, there’s still, as I’ve said, a lot to understand about the machine, and the foam use, how it degrades, what causes it to degrade, and injuries that it causes. So we’re already working to better understand that and identify and obtain experts as well.

Dan Comunale (11:13):
Has the 30 B6 been scheduled at this point or has that sort of been pushed out a little bit?

Lauren Miller (11:20):
Not that I am aware of, at least not that’s been discussed in larger groups.

Dan Comunale (11:27):

Michael Ram (11:28):
Okay. And then from the law and briefing standpoint, the first things we’ll be working on are complaints. There’ll be a class complaint for economic loss. And then after that, there’ll be a separate class complaint for medical monitoring, and there’ll also be a master complaint for personal injuries.

Dan Comunale (11:55):
Excellent. Thank you so much. Typically, during a product recall, the manufacturer usually offers the replacement at no cost, considering this product that people use every single night. Has Phillips taking that step, or have they sort of reached out? Lauren, I don’t know if this on the mass side, if this is something or… But has Phillips initiated that?

Lauren Miller (12:17):
Yeah, they have said that they are willing to replace the devices, but they have not made good on their promise that there are millions of devices recalled and Phillips simply just can’t keep up. So individuals are having to purchase separate devices, usually from a competitor, and that’s typically coming out of their pocket.

Dan Comunale (12:38):

Michael Ram (12:39):
And, and I’d emphasize an obvious point that somebody who needs the CPAP needs it every night.

Dan Comunale (12:49):

Susan Barfield (12:49):

Dan Comunale (12:50):
They can’t wait.

Susan Barfield (12:51):

Dan Comunale (12:51):
Until Phillips gets around sending the new improved device to everybody, even assuming that one’s safe.

Susan Barfield (12:59):
Yeah. Having been involved with multiple class actions and mass torts by this point, what are your feelings on the progression of this case in tort? Lauren, do you want to start?

Lauren Miller (13:14):
Yeah. So I think our leadership, especially our co-leads are working really hard to progress and manage the cases as efficiently as possible. Sometimes you can run into cases, where on one end, the mass court is kind of left in the abyss, and dragged on for years and years with not really a timeline or any urgency. And then there’s kind of what you have as a so-called rocket docket cases that tend to be a little overmanaged and everybody’s running around in a frenzy. This case really seems to kind of be striking the perfect balance thus far, in my opinion.

Susan Barfield (13:50):
Hmm. That’s great. Michael, what are your thoughts?

Michael Ram (13:53):
I’d agree. And add that I think everybody is very impressed with judge Conti, who individually interviewed the 75 candidates.

Susan Barfield (14:06):

Michael Ram (14:07):
For leadership. And is really focusing on this litigation. And one of the things the judge did, which I thought was really cool was to also appoint a leadership development committee of junior lawyers who kind of understudies, who we’ll be mentoring and will also be learning from them.

Lauren Miller (14:37):

Susan Barfield (14:39):
Yeah, go ahead, Lauren.

Lauren Miller (14:40):
Sorry, just to add to that, judge Rosenberg did the same thing also in the Zantac plaintiff steering committee, she really initiated the leadership development committee. It had never been done before, and it was five lawyers and she just recently actually elevated them to full plaintiff steering committee positions, and then appointed an additional set of leadership development committee members who have been working on the litigation, which is really great. I wish I had had that a decade ago when I first got started in litigation, but it’s a really neat opportunity. But we as steering committee members need to be diligent about involving them in substantive matters, and making sure they’re getting the experience and exposure that judge Conti really wants them to have.

Susan Barfield (15:25):
Yeah. That’s awesome. That’s fantastic opportunity for them.

Dan Comunale (15:28):
Yeah. I think that’s also a very great way to incorporate some new, fresh perspectives in different litigation. Obviously, a lot of your colleagues that are on these different steering committees over and over again, it’s good to get a new diverse inclusion into the steering committee. So it’s a tremendous way to include obviously new younger attorneys. So that’s absolutely great. What would be, and I’ll leave this open, whoever wants to… But a successful resolution for these CPAP case… I know that’s such a broad statement at this point, so early, but just to kind of give our… If it could be something that you can put on a crystal ball… Put the crystal ball out, what would be something that would be a successful view in your eyes at this point, with what we know? Mike, I’ll put it on you.

Michael Ram (16:13):
Okay. Well, I’ll go back to the three different complaints that I was talking about. So in the class, economic loss complaint, we’re looking for the cost of the product, which is not a substantial. In medical monitoring, of course, we’re looking for either a program or funding of a program to monitor the users of these devices for many years to come because some of these diseases, we re just learning about, and could have long latency periods. And then the personal injury cases, I would defer to Lauren. But obviously, those cases are extremely valuable. And then there’s a question of [inaudible 00:17:04] images.

Dan Comunale (17:05):

Michael Ram (17:05):
And perhaps injunctive relief.

Dan Comunale (17:10):
Yeah. Like I said, I’m well aware that there’s still a lot of discovery. There’s a lot that needs to happen in order to find out more. Just kind of… A lot of our, again, our personal injury viewers who aren’t totally familiar, just to kind of give a little bit of a set expectation level set. So understood.

Susan Barfield (17:32):
I guess a question that I am interested in for both of you, it is just, what are the steps your law firms take when approaching a mass tort? What do they look at? What are you looking at? And how do you approach a mass tort, and if it’s one that’s a good fit for your firm? Lauren, if you want to take that first.

Lauren Miller (17:50):
Yeah. So initially, for me, there’s a lot of investigation that goes into the claims that are underlying the mass tort, right? So I love being a science nerd, which is really odd because my dad’s actually a scientist and I hated science growing up. But early on, I really dig into the science and what is really supporting the claims that we’re making in a personal injury case. And then look at the number of claims that might be potentially out there. There are, unfortunately, a lot of products that injure individuals that we probably don’t ever hear about because there might not be quite as many claims out there, and for it to really fit in for a mass tort, it needs to be a significant number of claims that can be brought forth in that way. So that’s kind of the second step. And then we start talking to other firms, and seeing if other people are looking at it, and just collaborating and discussing with are people that are in this field, and deciding whether or not from there we want to move forward with it.

Susan Barfield (18:56):
Okay. Yeah. That’s great. Mike, what about you? What about your firm?

Michael Ram (19:00):
I guess I would add that my colleagues in mass tort, when they’re looking at a new case, with first of all, make sure that this case would stand on its own individually. We wouldn’t sign up everybody just because they used a CPAP machine. So we look and see whether we’ve got plaintiffs who were willing to try the case for because just like Lauren’s firm, our firm, prides itself on trying the cases if necessary. And that’s how you extract the best value.

Susan Barfield (19:41):
Yeah, no, that’s great feedback. And outside of that, any other considerations for a firm looking to get involved in mass tort period?

Michael Ram (19:48):
Well, I’d say our firm, we have got 800 lawyers, and we’ve got a lot of lawyers who are nationally recognized in mass torts. And if somebody at a smaller firm wants to refer a case, we’re definitely interested in that, provided that the case meets our criteria.

Susan Barfield (20:16):
Lauren, any other considerations for a firm that you would have them consider before getting involved into mass torts?

Lauren Miller (20:26):
Yeah. So I would say if a firm is new to mass torts hasn’t done a mass tort before, at least hasn’t managed a large number of cases in a mass tort, previously, to prioritize a couple of things. One would be make sure you set your statute limitations early. It’s very easy to get an influx of cases and then to be playing catch up, and you don’t want to be in a position where you miss a statute. And then another would be to make sure that you have an efficient way to speak to your clients regularly, whether that is a newsletter, whether that’s contact with staff, sending out an email, updating them on the case.

Lauren Miller (21:04):
These cases go on for a really long time found that clients don’t understand that because they’re used to hearing about people calling a lawyer, and they talk to their lawyer, and they have a deposition, and they have trial, and they don’t really understand how mass torts work, and how a lot of what we need from them is paperwork. And then might come in on the backend if they’re picked for a belt with their case. So making sure that you clearly set that expectation for your client and speak to them regularly in some form is really important.

Susan Barfield (21:36):
Yes. I could not agree more. One of our tenants is setting the expectation upfront because clients, I think they sign a retainer, and then they’re going to be seeing get some kind of resolution in six months to a year. And then if we have firms, we try to do that, provide all the communication on behalf of the law firms, just trying to keep the plaintiffs informed and engaged because as you said, it’s years. And if they’re not great communicators, then you, unfortunately, the plaintiff feels as though their lawyer just… I don’t know, isn’t taking care of the case, and they sign up with someone else and there’s just a ton of dual rep issues. So I think that’s fantastic advice, and to have a plan in place before you start taking on cases. So that’s awesome. Thank you for that. And then, I guess, one of the next questions, I was just curious, Lauren, did you consider other areas of law before you got into mass tort?

Lauren Miller (22:29):
I did. I have to admit, I actually worked for a defense firm out of law school. And I did insurance defense and employment law for three years. So I wasn’t even exposed to large complex litigation. And oddly enough, I had to do some Googling about mass torts before I went for the job interview because I didn’t remember from law school really what a mass tort was, or maybe had never even heard the term before. So I did some other work before I ended up in mass tots, but I’ve been doing this for almost seven years now, and I love it. I couldn’t do anything else.

Susan Barfield (23:04):
Yeah. That’s cool. Well, Michael, with you, been practicing for 40 years, I’m sure you’ve done a lot of other things. Do you enjoy this litigation, and what have you primarily been focused on or what is the area of law that you’ve really enjoyed the most?

Michael Ram (23:23):
Yeah. I really enjoy class actions and all always have. And I like this case in particular because I think it’s something really important issue, and a really good group of lawyers. And I particularly am focusing on medical monitorings. Like Lauren’s firm, ours is one of the few that’s nationally recognized on the mass tort side and on the class side. And medical monitoring in a sense, even though it’s part of the class action [inaudible 00:24:02], and since it’s a hybrid, because you looking at a lot of the same science you’d look at in a PI case, but then you’re looking at some of the legal issues in a class case. And so… And it’s also kind of on the cutting edge. And in this case, particularly, I think it’s appropriate. So that’s what I’m excited about in this [inaudible 00:24:26].

Susan Barfield (24:27):
Yeah. When you think back, just on your career, I know most attorneys, they have that one career defining case or moment that comes to mind when we ask them about, what’s the case that stands out the most? Lauren, anything come to mind?

Lauren Miller (24:47):
Yeah. So as far as a career-defining moment, I’m probably going to tell on myself a little bit, but like the CPAP litigation, the Zantac litigation had an application and an interview process. So it was two days of interviews. I think there was about 65 applicants. And I was so freaked out about the interviews that I’m already in over prepared. For interviews, we had to have a two to three minute pitch, and I wrote out my pitch probably a month in advance, and I recorded myself practicing it over 300 times. So when that order came out, that appointed me to my first plaintiff steering committee. I don’t I’ve ever, nor will I ever have that kind of defining moment again in my life.

Susan Barfield (25:32):
Yeah. That’s awesome. Congratulations. That’s great. That’s an awesome story. Michael, what about you? What is your career defining moment?

Michael Ram (25:43):
Well, many years ago, I had the privilege to co try national association of radiation survivors versus the veterans administration for veterans who had been exposed to radiation in atomic testing, and whose VA claims were getting denied, who couldn’t get a lawyer. And so that kind of… Well, inspired me to see the power of class actions, especially if you’re not afraid to go to trial, and to just appreciate how much more satisfaction there is being on the right side.

Susan Barfield (26:31):
Yes. Well, as we kind of mentioned in the very beginning and Dan touched on this, we have a couple of listeners, one might be personal… I mean, yeah. Personal injury that are looking to get into CPAP, work up some of the cases, maybe leverage a team like Case Works, and then refer out those cases. And also just mass tort groups that we’re working with, that might be doing something similar, where they maybe need some advice or to be able to refer out those cases. So I’d love for you guys to be able to share. Lauren, if you want to go first, how can they in touch with you? Maybe they have some questions or maybe they want to talk to you about referring cases. What’s the best way to track you down?

Lauren Miller (27:10):
Yeah. I’m happy to chat with anybody. Just send me an email and we can connect from there.

Susan Barfield (27:16):
Awesome. Yep. And we’ll include emails. And when we send this out. Michael, how can folks get a hold of you?

Michael Ram (27:23):
Same for me. And one of the reasons that I am so happy to be at Morgan and Morgan is our email address. So I’m at MRAM at for the people. Just how it sounds, not the number four. MRAM@forthepeople.com, and love to talk to anybody who’s got a potential case.

Susan Barfield (27:48):
Yeah, that’s awesome. That is a cool email. Well, Lauren, Michael, again, thank you so much. It’s just really a privilege and a pleasure to have time to connect with you both. Share insights and updates about this litigation, and we’re just grateful for your time.

Dan Comunale (28:06):
Absolutely. Thank you both so very much for your time.

Michael Ram (28:10):
Thank you very much, Lauren. Please give my regards to Steve Berman.

Lauren Miller (28:12):
Will do, thanks.

Susan Barfield (28:14):
Thank you.

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