PITTSBURGH – Citing diversity of citizenship and the amount in contested damages, Philips has removed a lawsuit centered on the death of a man using a recalled medical device to treat his sleep apnea, to federal court.
Shawne Thomas (individually and on behalf of the wrongful death beneficiaries of Rodney Thomas, deceased) of Church Point, La. first filed suit in the Allegheny County Court of Common Pleas on April 13 versus Philips RS North America, LLC (formerly known as “Respironics, Inc.”) of Pittsburgh, Koninklijke Philips N.V. of Amsterdam, The Netherlands and Philips North America, LLC, of Cambridge, Mass.
“In September of 2019, the late Rodney Thomas was directed by his physicians at Opelousas General Hospital – Sleep Disorders Center, to begin using a Continuous Positive Airway Pressure (CPAP) device nightly. Shortly thereafter, Mr. Thomas used and continued to use a Philips Respironics DreamStation, SN# J25793296F3CF manufactured by Respironics, Inc. Mr. Thomas used the Philips DreamStation CPAP device, nightly from the date of receipt until his death on June 22, 2021. It is believed and therefore alleged that as a result of Mr. Thomas’s use of this CPAP machine, he developed nasopharyngeal cancer which resulted in his death,” the suit said.
“On June 26, 2021, plaintiff, Shawne Thomas, widow of Rodney Thomas, received an email from CPAP.com advising her that his Philips’s Respironics Remstar Pro and DreamStation Auto CPAP devices were subject to a recall, due to the presence of a dangerous PE-PUR Foam that could cause the users to suffer from adverse health effects, including cancer and organ failure. She was advised to verify whether her husband’s device(s) were subject to the recall by submitting the serial numbers for his devices to an online database Philips established. Plaintiff Shawne Thomas received confirmation that her husband, Mr. Thomas’s CPAP device(s) were subject to recall.”
The suit added that on April 26, 2021, Philips made a public announcement disclosing it had determined there were risks that the PE-PUR Foam used in certain CPAP, Bi-Level PAP, and mechanical ventilator devices it manufactured may degrade or off-gas under certain circumstances – and further, that on June 14, 2021, Royal Philips issued a recall of its CPAP, Bi-Level PAP and mechanical ventilator devices containing PE-PUR Foam in the United States, because Philips determined that (a) the PE-PUR Foam was at risk for degradation into particles that may enter the devices' pathway and be ingested or inhaled by users and (b) the PE-PUR Foam may off-gas certain chemicals during operation.
“At no time prior to its regulatory update on April 26, 2021, did Philips disclose to purchasers or users of the recalled devices that the PE-PUR Foam contained therein may off-gas or degrade upon use. Similarly, prior to the update, Philips did not disclose any health risks associated with use of the recalled devices. Defendants have not disclosed when they first discovered or received reports from users of their Sleep & Respiratory Care devices ‘regarding the presence of black debris/particles within the airpath circuit (extending from the device outlet, humidifier, tubing, and mask),” the suit stated.
“It is believed and therefore averred that in November of 2015, that defendants were made aware that a preventative maintenance procedure for Trilogy ventilator devices was being implemented by another Philips entity due to potential foam degradation, and related complaints, on Trilogy ventilator devices in the field.”
UPDATE
On May 4, the Philips defendants filed to remove the case to the U.S. District Court for the Western District of Pennsylvania, referring to the diversity of citizenship between the parties and the amount of damages at issue exceeding the federal court threshold of $75,000.
“Plaintiff states that she is a citizen of the State of Louisiana. The facts [also] demonstrate that decedent was a resident of Louisiana. Therefore, because his residence is evidence of citizenship, decedent is a citizen of Louisiana. Thus, plaintiff is a citizen of Louisiana. ,” the removal notice stated.
“The only member of Philips RS is Philips RS North America Holding Corporation, a Delaware corporation with its principal place of business located at 222 Jacobs Street, Cambridge, Massachusetts 02141. Accordingly, because Philips RS Holding is a citizen of both Delaware and Massachusetts, Philips RS also is a citizen of both Delaware and Massachusetts. Therefore, Philips RS is diverse from plaintiff. Thus, based on the foregoing, there is complete diversity between the parties.”
The Philips defendants also turned to the amount of damages in question.
“There plainly is more than $75,000 in controversy. Plaintiff does not explicitly plead in the complaint that the amount in controversy exceeds $75,000. Given the nature and extent of the alleged injuries, as well as plaintiff’s claims, however, the amount in controversy plainly exceeds the jurisdictional threshold,” according to the removal notice.
“Although Philips denies any liability to plaintiff, the nature of the case (a medical device products liability action), the harms alleged (cancer, physical injuries, economic damages, and wrongful death), and the nature of the damages requested (compensatory damages and punitive damages), place far more than $75,000 in controversy under either Louisiana law (where plaintiff and decedent are citizens) or Pennsylvania law (where the plaintiff filed their suit).”
For counts of breach of express warranty, breach of implied warranty of merchantability, fraudulent misrepresentation, fraud by omission, negligent misrepresentation, unjust enrichment, violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, medical monitoring and wrongful death, the plaintiff is seeking, jointly and severally, damages in excess of the amount required for compulsory judicial arbitration, for compensatory damages, punitive damages, interest, costs of suit and such other and further relief as this court deems just.
The plaintiff is represented by Kenneth R. Behrend of Behrend Law Group in Pittsburgh, plus Jason Giles and John Love Norris IV of The King Firm, in New Orleans, La.
The defendants are represented by Michael H. Steinberg and William B. Monahan of Sullivan & Cromwell in Los Angeles, Calif. and New York, N.Y., plus John P. Lavelle Jr. of Morgan Lewis & Bockius, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00736
Allegheny County Court of Common Pleas case GD-23-004917
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com