Recall Litigation Report: Year in Review (2021)

The practice of law changed in many ways during the global COVID-19 pandemic, but a slowdown in class actions was not among those changes. In the second half of 2021, consumers filed a number of lawsuits following a wide range of high-profile recalls, involving everything from pharmaceuticals to automobiles.

For example, as previously reported, on June 14, 2021, Philips Respironics voluntarily recalled several different models of CPAP and BiPAP respirators because the polyester-based polyurethane foam (PE-PUR) in the devices has the potential to break down. break down, to be inhaled or ingested by users, and increase their risk of cancer and other injuries. In the weeks and months following the recall, a number of alleged class actions have emerged seeking compensation for the injuries, risks and disrupted use. Generally speaking, the complainants allege that Philips Respironics was aware of the serious risk of injury from its devices long before warning the public of the potential dangers in April 2021 and finally recalling the machines in June 2021. More than a hundred of lawsuits have now been consolidated in the US District Court for the Western District of Pennsylvania in the multidistrict CPAP litigation, In Re: Philips CPAP, Two-Tier PAP Recall and Mechanical Ventilator Product Liability Litigation, MDL No. 3014, and the discovery is in progress.

Likewise, Pfizer, Inc. is now defending itself against several lawsuits after recalling twelve lots of its drugs containing varenicline (sold under the brand name Chantix) in July 2021, which contained levels of an impurity of nitrosamine, the N-nitroso-varenicline, above the FDA interim acceptable intake limit. Although Chantix, a treatment to help patients quit smoking, is intended for short-term use, long-term ingestion of N-nitroso-varenicline may increase the risk of cancer. Weeks later, in August 2021, a buyer of the recalled drug filed a class action lawsuit in the United States District Court for the Southern District of New York, alleging that Pfizer had reason to know about the presence of N-nitroso-varenicline in its drug but did not disclose this important information. In Harris v. Pfizer, Inc., No. 1: 21-cv-06789, the plaintiff made warranty, consumer protection, unjust enrichment and fraud claims on its behalf, a national category of “all persons in the States United Who Purchased Chantix Containing N-nitroso-varenicline “and a subclass of” All Group Members Who Purchased Chantix Containing N-nitroso-varenicline in New Jersey “. After Pfizer extended its recall in September 2021 to include all lots of its Chantix 0.5 mg and 1 mg tablets, other users filed lawsuits in federal courts in New York, Pennsylvania, Florida, Illinois and California. In these cases, the complainants allege in the same manner that Pfizer manufactured and sold the drug despite being aware of the contamination with N-nitroso-varenicline. A sin Harris, plaintiffs bring forward a variety of contractual and tort claims on their behalf, a nationwide buyer category and a state-specific buyer subcategory. Due to the number of similar class actions currently pending against Pfizer across the country, the parties have requested a stay of various proceedings as they negotiate an appropriate forum for a consolidated case.

More recently, in November 2021, Mazda Motor of America, Inc. announced the recall of more than 121,000 vehicles equipped with certain fuel pumps. On November 16, two buyers filed a class action lawsuit against Mazda in the U.S. District Court for the Central District of California, alleging that Mazda knowingly sold vehicles with faulty fuel pumps that caused their vehicles to stop or start. engines. In Vance, et al. v Mazda Motor of America, Inc., Case No. 8: 21-cv-01890, these plaintiffs are making claims for strict product liability, breach of express warranty, breach of implied warranty of merchantability, negligent recall / obligation, fraudulent omission / concealment and specific rule violations in Alabama and California. consumer protection laws. They seek to represent a national class of current and former landlords or tenants and two state-specific subclasses. Mazda is expected to respond or respond to the complaint by January 19, 2022.

Just a few weeks ago, a buyer of the Secret antiperspirant sued Proctor & Gamble Company in U.S. District Court for the Western District of Pennsylvania after the company recalled these products over the presence of benzene. According to the complaint in LaBella v. Procter & Gamble Co., # 3: 21-cv-00216, the Valisure Consumer Protection Testing Lab has tested and found concentrations of benzene greater than those permitted in several Old Spice and Secret deodorant and antiperspirant aerosol products. Specifically, Valisure’s tests found up to 17.7 ppm benzene in some Old Spice products and 16.2 ppm benzene in the most tested Secret products, more than 8 times the 2 ppm limit of the FDA in consumer products. The plaintiff alleges that Proctor & Gamble made misleading claims about the safety of its antiperspirants and failed to warn consumers of the benzene contamination. She is making claims for express warranty breach, breach of implied warranty, fraudulent concealment, unjust enrichment, and violation of Pennsylvania consumer protection law on her behalf, a class of buyers nationwide and a Pennsylvania subcategory. By January 10, 2022, Procter & Gamble must respond or otherwise respond to the complaint.

Product recalls don’t always lead to legal action. But given the number of recent recalls and the wave of litigation activity over the past six months, this trend in class actions may well continue into the next year. Whether and how often class actions will follow company recalls in the coming months will likely depend, in large part, on the early successes and failures of those cases filed in the second half of 2021.