Preview
Date Filed 5/7/2024 2:14 PM
=
Superior Court - Plymouth ”
2
Docket Number 2483CVG0053.
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss SUPERIOR COURT
CIVIL ACTION NO. 2: 483CV00053
Y fev [36
DOUGLAS SWINAMER AND
KAREN SWINAMER,
(COMMONWEALTH OF MASSACHUSETTS:
DEPT. OF THE TRIAL QOUNT
x
Plaintiffs,
vs. i
NAY 7 2024
i
PHILIPS RS NORTH AMERICA LLC,
POLYMER TECHNOLOGIES, INC.,
POLYMER MOLDED PRODUCTS, LLC AND
Clark
of Court
REGIONAL HOME CARE, INC.,
Defendants.
JOINT MOTION TO TRANSFER CASE TO MIDDLESEX SUPERIOR COURT TO BE
JOINED WITH ACTIONS CONSOLIDATED WITH MIDDLESEX SUPERIOR COURT
DOCKETN R228 01788
NOW COME the undersigned Parties who hereby request that this Honorable Court
transfer the above-captioned case from Plymouth Superior Court to Middlesex Superior Court to
x be joined to the actions consolidated with Docket No. MICV 2281CV01788 in accordance with
the special assignment made by Chief Justice Heidi Brieger on 10/24/2023. The undersigned
Parties hereby also request that, until a ruling on this motion is provided to Plaintiffs’ counsel,
and transfer of the papers to Middlesex occurs, service of process may continue using Plymouth
ws summonses and the Plymouth docket number.
Y On 1/19/2024, Plaintiff filed the instant litigation alleging personal injuries resulting from
his use of a CPAP machine allegedly manufactured by Defendants Philips RS North America
LLC, Polymer Technologies, Inc., Polymer Molded Products, LLC and distributed by Regional
Inte SLED.
Inc. Plhintiff alleged, inter alia, at paragraphs 18-44; that he used a CPAP machine
FoR TH COUNTY
OF MDDL ESEX'
MAY 23 202%
Gz)
Pe nen,
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053.
and developed cancer as a result thercof. Upon information, several other lawsuits have been
filed by other plaintiffs alleging similar injuries both inside and outside Massachusetts.
On 10/24/2023, Chief Justice of the Superior Court, Heidi Brieger, ordered that all
Massachusetts personal injury cases related to the Phillips’ CPAP machines be specially assigned
to for management by the Hon. Christopher K. Barry-Smith in the Middlesex Superior Court.
(See ExhibitA). On 11/22/2023, Judge Barry-Smith issued an order in St. John v. Phillips, et. al.,
2281 CV 01788, that all cases be managed uniformly in at a case management conference. (See
Exhibit B). During the case management conference held on 2/9/2024, Judge Barry-Smith was
made aware of Mr. Swinamer’s case and agreed that it should be consolidated with the St. John
Case
and the other cases. (See Exhibit C).
On April 19, 2024 this Court allowed Plaintiffs’ Assented To Motion to Extend the Time
For Completion of Service to June 3, 2024.
WHEREFORE, the undersigned Parties, respectfully request that this Honorable Court
grant this Motion and transfer this action to the Middlesex Superior Court to be managed with
the other cases consolidated under St. John, et. al. v. Phillips North America, LLC. et al., MICV
2281CV01788. The undersigned Parties also respectfully request that until a ruling on this
motion is provided to Plaintiffs’ counsel, and transfer of the papers to Middlesex occurs, service
of process may continue using Plymouth summonses and the Plymouth docket number.
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053
Respectfully submitted,
The Plaintiffs, DEFENDANT,
DOUGLAS SWINAMER and KAREN REGIONAL HOME CARE, INC.,
KAREN SWINAMER, By its attorneys,
By their attorneys,
ds/ Kerry Paul Choi ds/ Peter J_ Riordan
Kerry Paul Choi (BBO # 828140) Michael J. Mazurezak, BBO #555106
kerry@bergstresser.com mmazurczak@melicklaw.com
BERGSTRESSER & POLLOCK, LLC Peter J. Riordan, BBO #658851
52 Temple Street, 4th Floor priordan@melicklaw.com
Boston, MA 02111 Melick & Porter, LLP
(617) 682-9211 One Liberty Square, 7 Floor
FAX: (617) 451-1070 Boston, Massachusetts 02109
Telephone: (617) 523-6200
Facsimile: (617) 523-8130
Date Filed 5/7/2024 2:14 PM
Suporior Court - Plymouth
Docket Number 2483CV00053.
EXHIBIT A |
Date Filed 5/7/2024 2:14 PM
939
‘Superior Court - PI uth
Docket Number 2483CV00053.
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
2281CV01788
and others!
CHRISTINE and DOUGLAS ST. JOHN
Ys.
x
PHILIPS NORTH AMERICA LLC, PHILIPS HOLDING USA, INC., and
PHILIPS RS NORTH AMERICA LLC
(and related cases)!
ORDER FOR SPECIAL ASSIGNMENT
After due consideration of the request for special assignment, said request is hereby
ALLOWED. It is hereby ORDERED that the above-captioned cases, and all future related
cases, are specially assigned to the Honorable Christopher K. Barry-Smith, Associate Justice of
the Superior Court, for all purposes. The Clerk’s office will notify all counsel of record. In
future filings, the parties shall note prominently in the caption that the cases are specially
assigned to Judge Barry-Smith.
Heidi E. Brieger
Chief Justice
DATED: October 24, 2023
1 Janice LeBlanc v. Philips North America LLC, et al., Middlesex Civil Action No.
2281CV03485, Anthony and Michelle Mazzone v. Philips.North America LLC, et al., Middlesex
Civil Action No. 2381CV00036, Patience Fomunyam v. Philips North America LLC, et al.,
Middlesex Civil Action No. 2381CV00100, Joseph and Ophelia Ardayfio v. Philips North
Ametica LLC, et al., Middlesex Civil Action No. 2381CV00099, John Smith v. Philips North
America LLC, et al., Middlesex Civil Action No. 2381CV01467, Cesar Serrano and Michelle
Cuevas v. Philips North America LLC, et al., Middlesex Civil Action No. 2381CV01466, and
Carlos and Carmen Pla v. Philips North America LLC, et al., Middlesex Civil Action No.
2381CV01468.
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053
EXHIBIT B
Date Filed 5/7/2024 2:14 PM
Superior
Court - Plymouth
Docket Number 2483CV00053,
424
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 2281cv01788
CHRISTINE and DOUGLAS ST. JOHN
ys.
PHILIPS NORTH AMERICAN LLC, PHILIPS HOLDING USA, INC. and PHILIPS RS
NORTH AMERICA LLC (and related cases)
ORDER
By order of Chief Justice Brieger dated October 24, 2023, a series of cases, involving the
recall of CPAP and related devices by certain Philips entities, were specially assigned to me.
Various motions are pending in certain of the related cases. Some of those motions are
addressed below. Those that are not addressed below—including the still-pending Plaintiffs’
motion for a scheduling order (Pleading No. 16) and Philips’ motion to stay (No. 18)—will be
taken up at a hearing/case management conference to be scheduled for in or about January or
February 2024, in the Civil H session in Courtroom 710. Further instructions concerning that to-
be-scheduled case management conference are set forth below.
Certain Pending Motion:
The joint motion to consolidate follow-on actions (Pleading No, 21) in this case,
228 1cv1788, is allowed.
2. Che.joint motion to consolidate follow-on actions (pleading No. 23) in certain follow-on
actiglis$238 1cv00099 and 00100, is allowed.
The clerk’s offite-to ensure that follow-on actions are identified, consolidated with these
cases, and assigned‘ta me.
The Case Management Conference to be scheduled for early 2024
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053
The clerk in the Civil H session will schedule a case management conference for January
or February 2024.' In advance of the scheduled conference, counsel for plaintiffs and defendants
shall confer and be prepared to discuss case management and scheduling, including without
limitation the following topics:
. Relation to and coordination with discovery and other processes underway in the federal
consolidated action pending in Pittsburgh;
Coordination of cases pending here, including whether lead counsel needs to be identified
or appointed;
The parties’ expectation whether additional cases will be filed in this court;
Scheduling of major litigation events in these consolidated cases—dispositive motions,
discovery, expert disclosures, trial(s).
. Other topics that one or both sides believe deserves attention.
Not less than three business days in advance of the scheduled conference, the parties shall submit
a joint proposed agenda for the case management conference. After conferring, the parties may
jointly propose orders to govern the above topics, or other aspects of the litigation. : If the parties
believe an order is appropriate to govern a certain aspect of litigation but do not agree on an
order, they are welcome to raise those issues as well, and submit proposed (not agreed) orders.
The clerk will issue a separate notice scheduling the case management conference.
So ordered.
Christopher K. Barry-Smith
Justice of the Superior Court
DATE: November 22, 2023
1 Of course, a case management conference was held in April 2023. | lacked an appreciation then for the number of
cases likely to be pending in this court and whether they would need a schedule separate from the proceedings in
federal court. | now understand that thase issues—scheduling, stay, and relationship to the federal action—need
specific attention.
Date Filed 5/7/2024 2:14 PM
‘Superior Court
- Plymouth
Docket Number 2483CV00053
EXHIBIT C
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymout!
Docket Number 2483CV00053.
Volume: 1 of 1
Pages: 37
Exhibits: 0
COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS SUPERIOR COURT DEPARTMENT
CIVIL DIVISION
wk kk Oe ek kk kk ok Oe OR Oe Ok OF
*
CHRISTINE ST. JOHN, ET AL Docket No. 2281CV01788
Plaintiffs,
v.
PHILIPS NORTH AMERICA, LLC, ET
AL
Defendants.
kk wk Rk kk kk Rk kk Rk RK
TRANSCRIPT OF MANAGEMENT CONFERENCE
BEFORE HONORABLE CHRISTOPHER K. BARRY-SMITH
APPEARANCES:
For the Plaintiffs:
Walter Kelley, Esq.
Bernheim Kelley, LLC
4 Court Street
Plymouth, Massachusetts 02360
T. Matthew Leckman, Esq.
Leckman Law, LLC
319 Bainbridge Street, 3rd Floor
Philadelphia, Pennsylvania 19147
Amanda L. DePaulis, Esq.
Leckman Law, LLC
1078 Fawcett Avenue
McKeesport, Pennsylvania 15131
Date Filed 5/7/2024 2:14 PM
Superior Gourt - Plymouth
Docket Number 2483CV00053
APPEARANCES: (Continued)
For the Plaintiffs:
Albert Ngo, Esq.
Brooks Law
10 High Street, Suite 3
Medford, Massachusetts 02155
Anthony G. Simon, Esq.
The Simon Law Firm, P.C.
800 Market Street, Suite 1700
St. Louis, Missouri 63101
Brendan A. McDonough, Esq.
Weitz & Luxenberg
700 Broadway
New York, New York 10003
Leo V. Boyle, Esq.
Meehan, Boyle, Black & Bogdanow
100 Cambridge Street, Suite 2101
Boston, Massachusetts 02114
For the Defendant Philips RS North America, LLC:
John P. Lavelle, Esq.
Daniel Scott Savrin, Esq.
David S. Martin, Esq.
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, Pennsylvania 19103
For the Defendants Philips North America, LLC, Philips Holding
USA, Inc, and Philips RS North America Holding Corp.:
Samuel Newland Rudman, Esq.
Natalia Smychkovich, Esq.
Choate, Hall & Stewart, LLP
Two International Place
Boston, Massachusetts 02110
For the Defendants Polymer Technologies and Polymer Molded
Products, LLC:
Michael Chefitz, Esq.
Kiernan Trebach
40 Court Street, 3xd Floor
Boston, Massachusetts 02108
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymouth
Docket Number 2483CV00053
APPEARANCES : (Continued)
For the Defendant Apria Healthcare, LLC:
Paul M. Robertson, Esq.
DeMoura Smith
607 North Avenue, Suite F
Wakefield, Massachusetts 01880
Woburn, Massachusetts
February 9, 2024
TRANSCRIBED BY: Eileen Dhondt, CET-807
Proceedings recorded by electronic sound
recording, transcript produced by transcription service.
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymouth
Docket Number 2483CV00053
PROCEEDINGS
(Proceedings commence at 3:33 p.m.)
THE CLERK: Your Honor, we have parties here on Docket
Number 2281CV01788, St. John, Christine St. John vs. Philips
North America, LLC, also consolidated with several related
cases.
If the parties could please identify yourself for the Court
and the record starting with the plaintiffs?
MR. KELLEY: Good afternoon, Your Honer. Walter Kelley on
10 behalf the plaintiffs.
11 MR. LECKMAN: Good aftexnoon, Your Honor. Matt Leckman for
12 the plaintiffs as well.
13 MR. NGO: Albert Ngo for the plaintiffs.
14 MS. DEPAULIS: Amanda DePaulis for the plaintiffs.
15 MR. SIMON: And Anthony Simon for the plaintiffs.
16 MR. MCDONOUGH: Good afternoon, Your Honor. Brendan
17 McDonough from Weitz & Luxenberg for the plaintiffs.
18 THE COURT: All right. Anyone else for plaintiffs?
19 MR. BOYLE: Yes, Your Honor. Leo Boyle, Meehan, Boyle,
20 Black & Bogdanow from Boston as local counsel for plaintiffs
21 THE COURT: Good afternoon.
22 MR. BOYLE: Good afternoon, Your Honor.
23 MR. SIMON: Your Honor, I just want to make sure. It's not
24 clear if you're hearing me. Anthony Simon. Can you hear me
25 okay?
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053.
THE COURT: I heard you. Sorry, I didn't respond to
everybody. But hello to everybody. How about for the defense?
MR. LAVELLE: Good afternoon, Your Honor. John Lavelle
from Morgan Lewis on behalf of Philips RS, and on the call with
me are my colleagues Daniel Savrin, and David Martin, also of
Morgan Lewis for Philips RS.
THE COURT: Good afternoon.
MR. CHEPITZ: Good afternoon, Your Honor. Michael Chefitz,
Kiernan Trebach for Polymer Technologies, Inc. and Polymer
10 Molded Products, LLC.
11 THE COURT: Good afternoon.
12 MR. RUDMAN: Good afternoon, Your Honor. Sam Rudman from
13 Choate, Hall & Stewart on behalf of Philips North America, LLC,
14 Philips Holding USA, Inc., and Philips RS North America Holding
15 Corp. And I'm joined today by my colleague, Natalia
16 Smychkovich, also of Choate.
17 THE COURT: Good afternoon.
18 MR. ROBERTSON: Good afternoon, Your Honor. Paul Robertson
19 from the law firm of DeMoura Smith for Defendant Apria
20 Healthcare, LLC.
21 THE COURT: Good afternoon.
22 MR. ROBERTSON: Good afternoon, Your Honor.
23 THE COURT: All right. Sorry for the late start. There's
24 a jury deliberating. I hope I don't get interrupted before
25 4:15, but I might, so we'll make as much progress as we can.
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymot
Docket Number 2483CV00053
I'll proceed with the agenda you all have proposed, but if
2 I perceive that time is running out, there's a couple of things
3 that I want some answers on. But let's see if we can
4 efficiently make our way through.
So we'll start with Western District of Pennsylvania. If
you were on any of these prior -- I don't know how many of the
lawyers on today's call were on the prior -- were at the prior
conferences. But one thing that's front of mind for me is the
value of having -- of treating sort of -- I'm debating in my
10 mind whether to give this set of cases, and part of this will
11 depend on how many more are expected, the treatment that we
12 occasionally give cases here in Middlesex County when there are
13 hundreds or thousands filed.
14 I'm not there yet, but one thing on my mind, and the reason
15 I raise this, is I need to hear -- I need to understand the
16 value in here, in state court in Massachusetts, having a
17 separate, meaningful multi-party proceeding underway when there
18 is this giant process underway in Pittsburgh. And I say that
19 without a particular view.
20 Someone from the plaintiff's side will need to persuade me
21 why I shouldn't let the main action be there, and I understand
22 some case -- from our prior hearings, some cases will be here in
23 Massachusetts because of. the nature of who the plaintiffs and
24 defendants are. But as far as dedicating my time and the
25 Middlesex County resources, I just need an understanding of what
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymouth
Docket Number 2483CV00053
type of scope we're talking about and why that makes sense in
the context of a very large proceeding underway in Pittsburgh.
So I'll stop talking and ask whoever would like to provide
me an update of where this stands in Pittsburgh, so go right
ahead.
MR. LAVELLE: Your Honor, John Lavelle from Morgan Lewis
for Philips RS, and, Your Honor, I have provided the Court with
updates on the MDL previously, so with Your Honor's permission,
I'll be happy to give Your Honor an update as succinctly as T
10 can.
11 The MDL has been now progressing for over two years. We've
12 made a substantial amount of progress in that time. There are
13 currently more than 700 cases pending in that multi-district
14 litigation. In addition, the court has established what is
15 called a census registry, that is a tolling agreement, and,
16 essentially, a waiting room for potential claimants to file
17 their intention, perhaps to file a claim for the future. And we
18 have roughly 57,000 potential claimants on that census registry.
19 They haven't filed suit. All they've done is notify the court
20 and provide some limited information that they may file suit at
21 some point.
22 As Your Honor will recall, there are three categories of
23 claims that are in the MDL. The first is economic loss claims,
24 people claiming that they purchased a device that was of less
25 value than they paid or suffered a loss of use. The second type
Date Filed 5/7/2024 2:14 PM
Superior Court - Plymouth
Docket Number 2483CV00053
of claim is a personal injury claim, plaintiffs claiming that
they suffered an injury, developed a medical condition as a
result of using the device. And the third is a potential claim
for medical monitoring seeking the establishment of a fund to
pay for testing to look for future injuries.
The economic loss claims have essentially been resolved by
the parties. We have reached an agreement, which has been
presented to the court and has received preliminary approval,
for a nationwide class settlement of those economic loss claims
10 Notice has been provided to the class members, and we are
11 scheduled for the final fairness hearing before Judge Conti on
12 April 11th, 2024. So the economic loss claims are well
13 underway, hopefully, to be resolved.
14 The objections and exclusions deadline was earlier this
15 week, A number of the objections and exclusion requests have
16 been filed and those will have to be addressed by the court.
17 So turning now to the personal injury and medical
18 monitoring claims, they are in the active discovery phase. And
19 Your Honor will recall when we previously appeared in front of
20 you, we discussed that we had started document production in the
21 MDL. We have now come close to finishing the document
22 production phase of the MDL. We've produced over four million
23 documents in the MDL,
24 We've also entered and are actively in the deposition phase
25 of the MDL. There have been at least 20 depositions and fact
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymouth
Docket Number 2483CV00053
witnesses have been noticed and taken, and there are additional
depositions that are scheduled to occur over the next few
months. Also, we've recently received requests for corporate
designee, what's known under federal rules as 30(b) (6)
depositions of Philips' defendant witnesses. Those have not yet
been scheduled, but we're in the process of negotiating and
scheduling those with plaintiffs' counsel.
We have a couple of discovery deadlines and expert
deadlines that I did want to bring to Your Honor's attention.
10 The parties have agreed on and the court has entered a
11 scheduling order setting the deadline for completion of general
12 causation-related fact discovery of April 30th, 2024. And that
13 will be discovery relating to the issues of whether exposure to
14 degraded foam or mold or organic compounds coming from the
15 device could cause the injuries that are claimed by the
16 plaintiffs.
17 Then a second discovery cutoff has been set of July 30th,
18 2024, and that is for the completion of generally applicable
19 fact discovery. That is fact discovery that would apply to all
20 cases.
21 With respect to individual personal injury cases, the
22 discovery has largely been through the process of plaintiff and
23 defendant fact sheets. The parties negotiated and reached
24 agreement on a detailed form of disclosure for plaintiffs to
25 complete concerning their medical history, their employment
Date Filed 5/7/2024 2:14 PM
‘Superior Court - Plymouth
Docket Number 2483C'V00053.
10
history, providing releases for medical records and employment
records and the like. And plaintiffs fill that in within a
certain period of time commencing suit.
The defendants, in turn, are required to complete a similar
form that discloses specific information concerning that
plaintiff's individual device, its manufacturer, and the
labeling that was enclosed with it.
So at this point, discovery relating to those individual
claims is limited by agreement and by order of the court to
10 those plaintiff and defendant fact sheets.
11 There is contemplated by the court a schedule where the
12 parties will propose later this year in the summer of 2024,
13 either by agreement or in competing proposals, how bellwethers
14 will be selected, how many there need to be, what type they will
15 be, and so on. The reason for the timing is the parties agree
16 that the court ordered that bellwethers should not be addressed
17 until after expert reports on general causation are exchanged.
18 So plaintiffs are required to serve their general causation
19 expert reports the end of May, May 31st, 2024, and defendants
20 are required to serve their general causation expert reports the
21 end of July 2024,
22 Then it is contemplated that there will be depositions of
23 experts, potentially motion practice with respect to experts
24 occurring in the fall of 2024 with the court potentially to hear
25 motion practice such as motions to exclude or limit expert
Date Filed 5/7/2024 2:14 PM
Superior Court - PI uth
Docket Number 2483CV00053
11
testimony in early 2025.
So one other piece of the puzzle I did want to bring to
Your Honor's attention i
Preview
Date Filed 5/7/2024 2:14 PM = Superior Court - Plymouth ” 2 Docket Number 2483CVG0053. COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss SUPERIOR COURT CIVIL ACTION NO. 2: 483CV00053 Y fev [36 DOUGLAS SWINAMER AND KAREN SWINAMER, (COMMONWEALTH OF MASSACHUSETTS: DEPT. OF THE TRIAL QOUNT x Plaintiffs, vs. i NAY 7 2024 i PHILIPS RS NORTH AMERICA LLC, POLYMER TECHNOLOGIES, INC., POLYMER MOLDED PRODUCTS, LLC AND Clark of Court REGIONAL HOME CARE, INC., Defendants. JOINT MOTION TO TRANSFER CASE TO MIDDLESEX SUPERIOR COURT TO BE JOINED WITH ACTIONS CONSOLIDATED WITH MIDDLESEX SUPERIOR COURT DOCKETN R228 01788 NOW COME the undersigned Parties who hereby request that this Honorable Court transfer the above-captioned case from Plymouth Superior Court to Middlesex Superior Court to x be joined to the actions consolidated with Docket No. MICV 2281CV01788 in accordance with the special assignment made by Chief Justice Heidi Brieger on 10/24/2023. The undersigned Parties hereby also request that, until a ruling on this motion is provided to Plaintiffs’ counsel, and transfer of the papers to Middlesex occurs, service of process may continue using Plymouth ws summonses and the Plymouth docket number. Y On 1/19/2024, Plaintiff filed the instant litigation alleging personal injuries resulting from his use of a CPAP machine allegedly manufactured by Defendants Philips RS North America LLC, Polymer Technologies, Inc., Polymer Molded Products, LLC and distributed by Regional Inte SLED. Inc. Plhintiff alleged, inter alia, at paragraphs 18-44; that he used a CPAP machine FoR TH COUNTY OF MDDL ESEX' MAY 23 202% Gz) Pe nen, Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053. and developed cancer as a result thercof. Upon information, several other lawsuits have been filed by other plaintiffs alleging similar injuries both inside and outside Massachusetts. On 10/24/2023, Chief Justice of the Superior Court, Heidi Brieger, ordered that all Massachusetts personal injury cases related to the Phillips’ CPAP machines be specially assigned to for management by the Hon. Christopher K. Barry-Smith in the Middlesex Superior Court. (See ExhibitA). On 11/22/2023, Judge Barry-Smith issued an order in St. John v. Phillips, et. al., 2281 CV 01788, that all cases be managed uniformly in at a case management conference. (See Exhibit B). During the case management conference held on 2/9/2024, Judge Barry-Smith was made aware of Mr. Swinamer’s case and agreed that it should be consolidated with the St. John Case and the other cases. (See Exhibit C). On April 19, 2024 this Court allowed Plaintiffs’ Assented To Motion to Extend the Time For Completion of Service to June 3, 2024. WHEREFORE, the undersigned Parties, respectfully request that this Honorable Court grant this Motion and transfer this action to the Middlesex Superior Court to be managed with the other cases consolidated under St. John, et. al. v. Phillips North America, LLC. et al., MICV 2281CV01788. The undersigned Parties also respectfully request that until a ruling on this motion is provided to Plaintiffs’ counsel, and transfer of the papers to Middlesex occurs, service of process may continue using Plymouth summonses and the Plymouth docket number. Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053 Respectfully submitted, The Plaintiffs, DEFENDANT, DOUGLAS SWINAMER and KAREN REGIONAL HOME CARE, INC., KAREN SWINAMER, By its attorneys, By their attorneys, ds/ Kerry Paul Choi ds/ Peter J_ Riordan Kerry Paul Choi (BBO # 828140) Michael J. Mazurezak, BBO #555106 kerry@bergstresser.com mmazurczak@melicklaw.com BERGSTRESSER & POLLOCK, LLC Peter J. Riordan, BBO #658851 52 Temple Street, 4th Floor priordan@melicklaw.com Boston, MA 02111 Melick & Porter, LLP (617) 682-9211 One Liberty Square, 7 Floor FAX: (617) 451-1070 Boston, Massachusetts 02109 Telephone: (617) 523-6200 Facsimile: (617) 523-8130 Date Filed 5/7/2024 2:14 PM Suporior Court - Plymouth Docket Number 2483CV00053. EXHIBIT A | Date Filed 5/7/2024 2:14 PM 939 ‘Superior Court - PI uth Docket Number 2483CV00053. COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION 2281CV01788 and others! CHRISTINE and DOUGLAS ST. JOHN Ys. x PHILIPS NORTH AMERICA LLC, PHILIPS HOLDING USA, INC., and PHILIPS RS NORTH AMERICA LLC (and related cases)! ORDER FOR SPECIAL ASSIGNMENT After due consideration of the request for special assignment, said request is hereby ALLOWED. It is hereby ORDERED that the above-captioned cases, and all future related cases, are specially assigned to the Honorable Christopher K. Barry-Smith, Associate Justice of the Superior Court, for all purposes. The Clerk’s office will notify all counsel of record. In future filings, the parties shall note prominently in the caption that the cases are specially assigned to Judge Barry-Smith. Heidi E. Brieger Chief Justice DATED: October 24, 2023 1 Janice LeBlanc v. Philips North America LLC, et al., Middlesex Civil Action No. 2281CV03485, Anthony and Michelle Mazzone v. Philips.North America LLC, et al., Middlesex Civil Action No. 2381CV00036, Patience Fomunyam v. Philips North America LLC, et al., Middlesex Civil Action No. 2381CV00100, Joseph and Ophelia Ardayfio v. Philips North Ametica LLC, et al., Middlesex Civil Action No. 2381CV00099, John Smith v. Philips North America LLC, et al., Middlesex Civil Action No. 2381CV01467, Cesar Serrano and Michelle Cuevas v. Philips North America LLC, et al., Middlesex Civil Action No. 2381CV01466, and Carlos and Carmen Pla v. Philips North America LLC, et al., Middlesex Civil Action No. 2381CV01468. Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053 EXHIBIT B Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053, 424 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 2281cv01788 CHRISTINE and DOUGLAS ST. JOHN ys. PHILIPS NORTH AMERICAN LLC, PHILIPS HOLDING USA, INC. and PHILIPS RS NORTH AMERICA LLC (and related cases) ORDER By order of Chief Justice Brieger dated October 24, 2023, a series of cases, involving the recall of CPAP and related devices by certain Philips entities, were specially assigned to me. Various motions are pending in certain of the related cases. Some of those motions are addressed below. Those that are not addressed below—including the still-pending Plaintiffs’ motion for a scheduling order (Pleading No. 16) and Philips’ motion to stay (No. 18)—will be taken up at a hearing/case management conference to be scheduled for in or about January or February 2024, in the Civil H session in Courtroom 710. Further instructions concerning that to- be-scheduled case management conference are set forth below. Certain Pending Motion: The joint motion to consolidate follow-on actions (Pleading No, 21) in this case, 228 1cv1788, is allowed. 2. Che.joint motion to consolidate follow-on actions (pleading No. 23) in certain follow-on actiglis$238 1cv00099 and 00100, is allowed. The clerk’s offite-to ensure that follow-on actions are identified, consolidated with these cases, and assigned‘ta me. The Case Management Conference to be scheduled for early 2024 Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053 The clerk in the Civil H session will schedule a case management conference for January or February 2024.' In advance of the scheduled conference, counsel for plaintiffs and defendants shall confer and be prepared to discuss case management and scheduling, including without limitation the following topics: . Relation to and coordination with discovery and other processes underway in the federal consolidated action pending in Pittsburgh; Coordination of cases pending here, including whether lead counsel needs to be identified or appointed; The parties’ expectation whether additional cases will be filed in this court; Scheduling of major litigation events in these consolidated cases—dispositive motions, discovery, expert disclosures, trial(s). . Other topics that one or both sides believe deserves attention. Not less than three business days in advance of the scheduled conference, the parties shall submit a joint proposed agenda for the case management conference. After conferring, the parties may jointly propose orders to govern the above topics, or other aspects of the litigation. : If the parties believe an order is appropriate to govern a certain aspect of litigation but do not agree on an order, they are welcome to raise those issues as well, and submit proposed (not agreed) orders. The clerk will issue a separate notice scheduling the case management conference. So ordered. Christopher K. Barry-Smith Justice of the Superior Court DATE: November 22, 2023 1 Of course, a case management conference was held in April 2023. | lacked an appreciation then for the number of cases likely to be pending in this court and whether they would need a schedule separate from the proceedings in federal court. | now understand that thase issues—scheduling, stay, and relationship to the federal action—need specific attention. Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483CV00053 EXHIBIT C Date Filed 5/7/2024 2:14 PM Superior Court - Plymout! Docket Number 2483CV00053. Volume: 1 of 1 Pages: 37 Exhibits: 0 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS SUPERIOR COURT DEPARTMENT CIVIL DIVISION wk kk Oe ek kk kk ok Oe OR Oe Ok OF * CHRISTINE ST. JOHN, ET AL Docket No. 2281CV01788 Plaintiffs, v. PHILIPS NORTH AMERICA, LLC, ET AL Defendants. kk wk Rk kk kk Rk kk Rk RK TRANSCRIPT OF MANAGEMENT CONFERENCE BEFORE HONORABLE CHRISTOPHER K. BARRY-SMITH APPEARANCES: For the Plaintiffs: Walter Kelley, Esq. Bernheim Kelley, LLC 4 Court Street Plymouth, Massachusetts 02360 T. Matthew Leckman, Esq. Leckman Law, LLC 319 Bainbridge Street, 3rd Floor Philadelphia, Pennsylvania 19147 Amanda L. DePaulis, Esq. Leckman Law, LLC 1078 Fawcett Avenue McKeesport, Pennsylvania 15131 Date Filed 5/7/2024 2:14 PM Superior Gourt - Plymouth Docket Number 2483CV00053 APPEARANCES: (Continued) For the Plaintiffs: Albert Ngo, Esq. Brooks Law 10 High Street, Suite 3 Medford, Massachusetts 02155 Anthony G. Simon, Esq. The Simon Law Firm, P.C. 800 Market Street, Suite 1700 St. Louis, Missouri 63101 Brendan A. McDonough, Esq. Weitz & Luxenberg 700 Broadway New York, New York 10003 Leo V. Boyle, Esq. Meehan, Boyle, Black & Bogdanow 100 Cambridge Street, Suite 2101 Boston, Massachusetts 02114 For the Defendant Philips RS North America, LLC: John P. Lavelle, Esq. Daniel Scott Savrin, Esq. David S. Martin, Esq. Morgan, Lewis & Bockius 1701 Market Street Philadelphia, Pennsylvania 19103 For the Defendants Philips North America, LLC, Philips Holding USA, Inc, and Philips RS North America Holding Corp.: Samuel Newland Rudman, Esq. Natalia Smychkovich, Esq. Choate, Hall & Stewart, LLP Two International Place Boston, Massachusetts 02110 For the Defendants Polymer Technologies and Polymer Molded Products, LLC: Michael Chefitz, Esq. Kiernan Trebach 40 Court Street, 3xd Floor Boston, Massachusetts 02108 Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483CV00053 APPEARANCES : (Continued) For the Defendant Apria Healthcare, LLC: Paul M. Robertson, Esq. DeMoura Smith 607 North Avenue, Suite F Wakefield, Massachusetts 01880 Woburn, Massachusetts February 9, 2024 TRANSCRIBED BY: Eileen Dhondt, CET-807 Proceedings recorded by electronic sound recording, transcript produced by transcription service. Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483CV00053 PROCEEDINGS (Proceedings commence at 3:33 p.m.) THE CLERK: Your Honor, we have parties here on Docket Number 2281CV01788, St. John, Christine St. John vs. Philips North America, LLC, also consolidated with several related cases. If the parties could please identify yourself for the Court and the record starting with the plaintiffs? MR. KELLEY: Good afternoon, Your Honer. Walter Kelley on 10 behalf the plaintiffs. 11 MR. LECKMAN: Good aftexnoon, Your Honor. Matt Leckman for 12 the plaintiffs as well. 13 MR. NGO: Albert Ngo for the plaintiffs. 14 MS. DEPAULIS: Amanda DePaulis for the plaintiffs. 15 MR. SIMON: And Anthony Simon for the plaintiffs. 16 MR. MCDONOUGH: Good afternoon, Your Honor. Brendan 17 McDonough from Weitz & Luxenberg for the plaintiffs. 18 THE COURT: All right. Anyone else for plaintiffs? 19 MR. BOYLE: Yes, Your Honor. Leo Boyle, Meehan, Boyle, 20 Black & Bogdanow from Boston as local counsel for plaintiffs 21 THE COURT: Good afternoon. 22 MR. BOYLE: Good afternoon, Your Honor. 23 MR. SIMON: Your Honor, I just want to make sure. It's not 24 clear if you're hearing me. Anthony Simon. Can you hear me 25 okay? Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053. THE COURT: I heard you. Sorry, I didn't respond to everybody. But hello to everybody. How about for the defense? MR. LAVELLE: Good afternoon, Your Honor. John Lavelle from Morgan Lewis on behalf of Philips RS, and on the call with me are my colleagues Daniel Savrin, and David Martin, also of Morgan Lewis for Philips RS. THE COURT: Good afternoon. MR. CHEPITZ: Good afternoon, Your Honor. Michael Chefitz, Kiernan Trebach for Polymer Technologies, Inc. and Polymer 10 Molded Products, LLC. 11 THE COURT: Good afternoon. 12 MR. RUDMAN: Good afternoon, Your Honor. Sam Rudman from 13 Choate, Hall & Stewart on behalf of Philips North America, LLC, 14 Philips Holding USA, Inc., and Philips RS North America Holding 15 Corp. And I'm joined today by my colleague, Natalia 16 Smychkovich, also of Choate. 17 THE COURT: Good afternoon. 18 MR. ROBERTSON: Good afternoon, Your Honor. Paul Robertson 19 from the law firm of DeMoura Smith for Defendant Apria 20 Healthcare, LLC. 21 THE COURT: Good afternoon. 22 MR. ROBERTSON: Good afternoon, Your Honor. 23 THE COURT: All right. Sorry for the late start. There's 24 a jury deliberating. I hope I don't get interrupted before 25 4:15, but I might, so we'll make as much progress as we can. Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymot Docket Number 2483CV00053 I'll proceed with the agenda you all have proposed, but if 2 I perceive that time is running out, there's a couple of things 3 that I want some answers on. But let's see if we can 4 efficiently make our way through. So we'll start with Western District of Pennsylvania. If you were on any of these prior -- I don't know how many of the lawyers on today's call were on the prior -- were at the prior conferences. But one thing that's front of mind for me is the value of having -- of treating sort of -- I'm debating in my 10 mind whether to give this set of cases, and part of this will 11 depend on how many more are expected, the treatment that we 12 occasionally give cases here in Middlesex County when there are 13 hundreds or thousands filed. 14 I'm not there yet, but one thing on my mind, and the reason 15 I raise this, is I need to hear -- I need to understand the 16 value in here, in state court in Massachusetts, having a 17 separate, meaningful multi-party proceeding underway when there 18 is this giant process underway in Pittsburgh. And I say that 19 without a particular view. 20 Someone from the plaintiff's side will need to persuade me 21 why I shouldn't let the main action be there, and I understand 22 some case -- from our prior hearings, some cases will be here in 23 Massachusetts because of. the nature of who the plaintiffs and 24 defendants are. But as far as dedicating my time and the 25 Middlesex County resources, I just need an understanding of what Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483CV00053 type of scope we're talking about and why that makes sense in the context of a very large proceeding underway in Pittsburgh. So I'll stop talking and ask whoever would like to provide me an update of where this stands in Pittsburgh, so go right ahead. MR. LAVELLE: Your Honor, John Lavelle from Morgan Lewis for Philips RS, and, Your Honor, I have provided the Court with updates on the MDL previously, so with Your Honor's permission, I'll be happy to give Your Honor an update as succinctly as T 10 can. 11 The MDL has been now progressing for over two years. We've 12 made a substantial amount of progress in that time. There are 13 currently more than 700 cases pending in that multi-district 14 litigation. In addition, the court has established what is 15 called a census registry, that is a tolling agreement, and, 16 essentially, a waiting room for potential claimants to file 17 their intention, perhaps to file a claim for the future. And we 18 have roughly 57,000 potential claimants on that census registry. 19 They haven't filed suit. All they've done is notify the court 20 and provide some limited information that they may file suit at 21 some point. 22 As Your Honor will recall, there are three categories of 23 claims that are in the MDL. The first is economic loss claims, 24 people claiming that they purchased a device that was of less 25 value than they paid or suffered a loss of use. The second type Date Filed 5/7/2024 2:14 PM Superior Court - Plymouth Docket Number 2483CV00053 of claim is a personal injury claim, plaintiffs claiming that they suffered an injury, developed a medical condition as a result of using the device. And the third is a potential claim for medical monitoring seeking the establishment of a fund to pay for testing to look for future injuries. The economic loss claims have essentially been resolved by the parties. We have reached an agreement, which has been presented to the court and has received preliminary approval, for a nationwide class settlement of those economic loss claims 10 Notice has been provided to the class members, and we are 11 scheduled for the final fairness hearing before Judge Conti on 12 April 11th, 2024. So the economic loss claims are well 13 underway, hopefully, to be resolved. 14 The objections and exclusions deadline was earlier this 15 week, A number of the objections and exclusion requests have 16 been filed and those will have to be addressed by the court. 17 So turning now to the personal injury and medical 18 monitoring claims, they are in the active discovery phase. And 19 Your Honor will recall when we previously appeared in front of 20 you, we discussed that we had started document production in the 21 MDL. We have now come close to finishing the document 22 production phase of the MDL. We've produced over four million 23 documents in the MDL, 24 We've also entered and are actively in the deposition phase 25 of the MDL. There have been at least 20 depositions and fact Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483CV00053 witnesses have been noticed and taken, and there are additional depositions that are scheduled to occur over the next few months. Also, we've recently received requests for corporate designee, what's known under federal rules as 30(b) (6) depositions of Philips' defendant witnesses. Those have not yet been scheduled, but we're in the process of negotiating and scheduling those with plaintiffs' counsel. We have a couple of discovery deadlines and expert deadlines that I did want to bring to Your Honor's attention. 10 The parties have agreed on and the court has entered a 11 scheduling order setting the deadline for completion of general 12 causation-related fact discovery of April 30th, 2024. And that 13 will be discovery relating to the issues of whether exposure to 14 degraded foam or mold or organic compounds coming from the 15 device could cause the injuries that are claimed by the 16 plaintiffs. 17 Then a second discovery cutoff has been set of July 30th, 18 2024, and that is for the completion of generally applicable 19 fact discovery. That is fact discovery that would apply to all 20 cases. 21 With respect to individual personal injury cases, the 22 discovery has largely been through the process of plaintiff and 23 defendant fact sheets. The parties negotiated and reached 24 agreement on a detailed form of disclosure for plaintiffs to 25 complete concerning their medical history, their employment Date Filed 5/7/2024 2:14 PM ‘Superior Court - Plymouth Docket Number 2483C'V00053. 10 history, providing releases for medical records and employment records and the like. And plaintiffs fill that in within a certain period of time commencing suit. The defendants, in turn, are required to complete a similar form that discloses specific information concerning that plaintiff's individual device, its manufacturer, and the labeling that was enclosed with it. So at this point, discovery relating to those individual claims is limited by agreement and by order of the court to 10 those plaintiff and defendant fact sheets. 11 There is contemplated by the court a schedule where the 12 parties will propose later this year in the summer of 2024, 13 either by agreement or in competing proposals, how bellwethers 14 will be selected, how many there need to be, what type they will 15 be, and so on. The reason for the timing is the parties agree 16 that the court ordered that bellwethers should not be addressed 17 until after expert reports on general causation are exchanged. 18 So plaintiffs are required to serve their general causation 19 expert reports the end of May, May 31st, 2024, and defendants 20 are required to serve their general causation expert reports the 21 end of July 2024, 22 Then it is contemplated that there will be depositions of 23 experts, potentially motion practice with respect to experts 24 occurring in the fall of 2024 with the court potentially to hear 25 motion practice such as motions to exclude or limit expert Date Filed 5/7/2024 2:14 PM Superior Court - PI uth Docket Number 2483CV00053 11 testimony in early 2025. So one other piece of the puzzle I did want to bring to Your Honor's attention i