The U.S. arm of Philips has until Monday to prove why a court order that prohibits the company from destroying or altering tangible evidence in relation to its recalled sleep apnea machines would slow or prevent the company from taking back and repairing thousands of its defective CPAP machines.
CPAP lawsuits have been consolidated in an MDL based in a Pittsburgh federal court since October. On November 10, the court ordered Philips to preserve evidence related to CPAP lawsuits. However, the company hit back filing a motion declaring that the order was in direct conflict with the U.S. Food and Drug recall remediation.
Philips filed an emergency request on Friday, November 13, asking the court to oversee the MDL stay or modify the pretrial order.
So far in its recall, Philips Respironics has gotten about 335,000 recalled devices and repaired and returned about 115,000. The company argues that the Nov. 10 order will put 56,500 devices behind schedule for repairs according to a mid-December timeline.
What are CPAP Plaintiffs Attorneys arguing?
Plaintiff’s attorneys filed a brief opposing Philips’ request arguing that at minimum Philips should preserve the defective foam it was removing from recalled machines. In addition, that the company should make copies of the device’s memory cards as evidence of users’ exposure to the foam.
“Plaintiffs do not take issue with Philips repairing recalled machines and sending them to class members. … But Philips proposes to destroy evidence unnecessarily,” the opposition brief said. “Philips should preserve all relevant evidence, including the PE-PUR foam that is at issue in this litigation, memory cards in the devices, and other component parts of machines that are removed in the retrofitting process, for possible inspection and testing at a later time. No person’s legal rights should later be prejudiced because they returned their machine at Philips’ request and Philips discarded relevant components.”
What does the Court say?
U.S. District Judge Joy Flowers Conti has given Philips until Wednesday to file a response brief.
“The court appreciates the need for Philips RS North America LLC (Respironics) to comply with its obligations with respect to the FDA recall remediation,” the judge’s text order on the docket said. “The court, however, lacks information about why Respironics is unable to preserve the items identified in the brief in response to its emergency motion, i.e., the PE-PUR foam, memory cards in the devices, and other component parts of the machines that are removed in the retrofitting process.”
We’ve got your six.
Thousands of Veterans received a Philips sleep apnea device. If you’ve had any adverse health effects, contact our VLAP team to find out how to get help.