Philips CPAP Machine Class Action - Sotos Class Actions
OVERVIEW

Philips CPAP Machines

Philips has recalled allegedly dangerous CPAP machines, BiPAP machines, and mechanical ventilators. The machines contained a foam to make them quieter, but that foam can cause cancer, respiratory damage, throat irritation, damage to various organs, nausea, headaches, and dizziness.

The plaintiff alleges that Philips negligently designed and manufactured the machines, received complaints and did not properly investigate, knew that the devices were unsafe but did not inform customers, misrepresented that they were safe, and breached health law and consumer protection law. The case seeks to allow the class to return their machines for a full refund, and get compensation for the adverse health effects they suffered and the health care and other costs that they, and the government, have incurred as a result.

The Court will decide at a later date if the cases will proceed as class actions.

The case seeks to represent all persons in Canada who purchased or used one of the affected Philips machines.

Please visit www.cpapclassaction.ca for more information.

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FAQ

Class Action Basics

What is a class action?

A class action is a civil lawsuit brought by a representative plaintiff on behalf of a larger group of persons (the class members). A class action allows many people with similar claims to have their claims heard together in a single proceeding whose results are binding on all class members, rather than each class member having to pay their own lawyer to bring their own proceeding.

What is the process for class actions?

The first step in a class action is for the court to decide which law firm is allowed to proceed. This is called “carriage”. This step can be avoided if all of the law firms agree to work together. We are at this step. We had agreed to work with all of the firms that filed when the recall happened. Unfortunately, another firm decided to file several months after that, and will not cooperate with us, so we have to argue carriage.

The next step is for the court to decide whether we are allowed to represent the entire class. This is called “certification”. To succeed at this stage, we will have to show that our claims have merit, and that each class member’s situation is similar enough that they can all be decided together.

The next step is to either negotiate a settlement and get it approved by the court, or proceed to a common issues trial. If we get a settlement or a judgment in our favour at a common issues trial, then we will reach out to class members to let them know how they can claim their portion of the amount recovered.

How long do class actions take?

Unfortunately, class actions move at a glacial pace. We will do everything we can to push this case forward as fast as possible, but it will likely take us many years to get you the compensation you deserve.

How do legal fees work?

Class members do not pay us anything directly. Rather, if we succeed, we will seek a fraction of the settlement amount or damages awarded. That amount will have to be approved by the court. If we fail, then we get nothing.

Replacement Devices

When will I get a new device?

Philips has announced that it will replace the recalled devices by the end of 2023. The announcement is available at this link (Philips Announcement). This is way too long and unfair to class members, but there is nothing that we can do to make Philips speed up the process.

Some retailers have already started offering replacement devices to select customers.

My retailer has offered me a new device. Should I take it?

If Philips or your dealer offers you a replacement device, feel free to take it. Receiving a replacement device, in and of itself, will not disqualify you from participating in the class action. However, if you accept a replacement device, ensure that:

  • You do not sign a release of your claims;
  • You keep the tubing of your old device; and
  • You keep the memory card of your old device.

For instructions on how to remove the memory device, follow this link (Memory Card Instructions). Failure to do any of those could prevent you from recovering the maximum damages available to you.

My retailer will not give me a new device unless I sign a release. What do I do?

Send us the release they want you to sign. We will advise you on how to proceed.

Scope of this Case

Am I a class member?

You are a class member if:

  • You live anywhere in Canada; and
  • You purchased or used one of the recalled devices, or your relative passed away from using one of the recalled devices.

The list of recalled devices is on Our Homepage.

I represent an estate. Is it a class member?

Sorry for your loss. If the deceased lived in Canada and passed away because they used a recalled device, then yes, the estate is a class member.

What damages are you claiming in this class action?

We are seeking all types of damages, including:

  • Emotional distress
  • Financial harms (medical expenses, purchase price of the device and accessories, price of replacements)
  • Health harms (health consequences, loss of income from health consequences, reduced life expectancy)
  • Lack of access to a device while waiting for a replacement

Next Steps

What do I need to do now?

First, sign up for our mailing list at this link. We will send out updates as we get them to people who have signed up.

Second, find and store in a safe place:

  • Any receipts for the recalled devices
  • Any receipts for devices you purchase to replace a recalled device
  • Any receipts for medical services that you had to pay for out-of-pocket as a result of using the recalled devices

Please do not send those to us. We do not need that information until after we have won a common issues trial or gotten a settlement approved by the court.

Besides those two things, there is nothing else you can do while waiting

Should I send you my medical information?

No. Please do not send us your medical information. We do not need that information until after we have won a common issues trial or gotten a settlement approved by the court.

Medical Information

What health issues are caused by the recalled devices?

The science with respect to the recalled devices is evolving, so we do not know for sure which symptoms are caused by the recalled devices. At present, there is some indication that the following health issues may be related to the recalled devices:

  • Cancer (blood, lung, lymph node, thyroid)
  • Damage to organs (liver, lung, kidney)
  • Digestive problems (nausea, vomiting)
  • Eye problems (burning, irritation, itchiness, redness)
  • Mental problems (dizziness, headaches, hypersensitivity, vertigo)
  • Respiratory problems (acute respiratory distress syndrome, asthma, chest pressure, coughing, irregular breathing, nose irritation, pleural effusion, reactive airway disease, respiratory failure, shortness of breath, sinus infections, throat irritation)
  • Skin problems (irritation, itchiness, lesions)

Is the DreamStation 2 safe?

We are not aware of any safety issues with the DreamStation 2 at this time.

I cannot get / afford a replacement device. Should I keep using a recalled device while I wait?

This is a medical question that we are not qualified to answer. Talk to a medical professional.

Updates
  • September 20, 2022: We argued the remainder of the motion that will decide which law firm gets to proceed. We are now waiting for a decision.
  • July 27, 2022: Philips has announced that it plans to replace all of the recalled products by the end of 2023. The announcement is available at this link (Philips Announcement 3).
  • June 16-17, 2022: We argued part of the motion that will decide which law firm gets to proceed.
  • March 31, 2022: We held a live virtual town hall will be held to discuss the status and progress of this case and to answer your questions in both English and French. Here is the recording of that town hall (Town Hall Recording).
  • March 1, 2022: Some dealers have started replacing recalled devices. If Philips or your dealer offers you a replacement device, feel free to take it. Receiving a replacement device, in and of itself, will not disqualify you from participating in the class action. However, if you accept a replacement device, ensure that (1) you do not sign a release of your claims; (2) you keep the tubing of your old device; and (3) you keep the memory card of your old device. For instructions on how to remove the memory device, follow this link (Memory Card Instructions). Failure to do any of those could prevent you from recovering the maximum damages available to you.
  • February 7, 2022: We filed an Amended Notice of Civil Claim in the Supreme Court of British Columbia, incorporating new information from the FDA report and Philips’ lack of a remediation plan. That document is available at this link (Amended Notice of Civil Claim).
  • November 9, 2021: The United States Food and Drug Administration released a report concluding that Philips had received hundreds of thousands of complaints about this problem since 2008, but did not take steps to fix the problem or warn consumers. That report is available at this link (FDA Report).
  • October 4, 2021: Unfortunately, our case will be delayed by almost a year because another law firm, Klein Lawyers LLP, has brought an overlapping claim. As a result, the court now needs to decide which firm is allowed to proceed. The British Columbia Supreme Court has scheduled a hearing for June 16-17, 2022.
  • September 1, 2021: Philips announced that it would replace all recalled CPAP machines in the US within 12 months, but did not give any timeline for replacing recalled CPAP machines in Canada. The announcement is available at this link (Philips Announcement 2).
  • August 12, 2021: Sotos, Rice Harbut Elliott, and Thomson Rogers came to an agreement to proceed together in British Columbia, rather than in Ontario.
  • July 16, 2021: Sotos issued a Statement of Claim in the Ontario Superior Court of Justice.
  • June 24, 2021: Our partners, Rice Harbut Elliott and Thomson Rogers, filed a Notice of Civil Claim in the Supreme Court of British Columbia.
  • June 14, 2021: Philips announced the problem to the public. The announcement is available at this link (Philips Announcement 1).
  • April 26, 2021: Philips announced the problem to its investors, but not to the public.
Contacts

Louis Sokolov

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Mohsen Seddigh

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Adil Abdulla

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Karen Whibley

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