PHILIPS RECALLED CPAP, BI-LEVEL PAP, AND MECHANICAL VENTILATOR PRODUCTS LIABILITY LITIGATION

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
IN RE: PHILIPS RECALLED CPAP, 	)
BI-LEVEL PAP, AND MECHANICAL 	)
VENTILATOR PRODUCTS 	) 	Master Docket: Misc. No. 21-1230
LITIGATION 	)
)
) 	MDL No. 3014
This Document Relates to: 	)
)
Schadewald v. Philips, et al., #24-735 	)
)
MEMORANDUM OPINION
I. 	Introduction
Pending before the court is a motion (ECF No. 6), to dismiss with prejudice Civil Action
No. 24-735 (and 11 other cases), with brief in support (ECF No. 7), for failure to comply with
this court’s “show cause” order (ECF No. 4) dated June 13, 2025, filed by Defendants Philips RS
North America LLC, Koninklijke Philips N.V., Philips North America LLC, Philips Holding
USA, Inc., and Philips RS North America Holding Corporation (collectively, “Philips”).
Counsel for plaintiffs (collectively, the “Schadewalds”) filed a declaration in response to the
motion at the main MDL docket (Misc. No. 21-1230, ECF No. 3616) and a supplemental report
on October 30, 2025 (ECF No. 11). Philips filed status reports on the Schadewald’s failures to
fully comply with the Docket Management Order (“DMO”) (ECF No. 2769) and show cause
order (ECF Nos. 10, 13).
On November 6, 2025, the court ordered counsel for Schadewald to file a notice with the
court, on or before November 17, 2025, providing the name and resume of the expert plaintiff
retained. (ECF No. 12). Counsel failed to do so. The motion is ripe for decision.
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II. 	Procedural History
On May 9, 2024, Civil Action No. 24-735 was direct filed in the United States District
Court for the Western District of Pennsylvania for inclusion in the coordinated or consolidated
pretrial proceedings for the Philips MDL pursuant to 28 U.S.C. § 1407.
On May 9, 2024, the Court entered the DMO (Misc. No. 21-1230, ECF 2769), which set
deadlines for all personal injury cases filed by “Litigating Plaintiffs” (i.e., individuals who did
not participate in the settlement of personal injury claims). On February 28, 2025, Philips filed a
Notice at the Schadewalds’ case, to reiterate that the DMO deadlines applied to them (ECF No.
2). As set forth in DMO ¶¶ 20 and 21, if Litigating Plaintiffs like the Schadewalds fail to comply
with the DMO, the complaint is subject to dismissal with prejudice.
On June 10, 2025, Philips filed a motion (ECF No. 3) for the court to enter a “show
cause” order for the Schadewalds to explain why their case should not be dismissed with
prejudice for failure to comply with the DMO deadlines. The court granted Philips’ motion and
entered the show cause order (ECF No. 4). That order provided, in relevant part:
ORDER TO SHOW CAUSE. All Plaintiffs listed in Exhibit A to this Order shall,
no later than July 7, 2025, either (1) cure the deficiencies noted in Exhibit A to this
Order and provide proof of having done so to the Court, or (2) file a response
demonstrating good cause for their failure to cure. Pursuant to paragraph 21 of the
Docket Management Order, ECF No. 2769, failure to do so shall result in dismissal
of the relevant Plaintiff's claims with prejudice.
Id.
Counsel for Schadewald filed a declaration in response to the show cause order on July 8,
2025 at the main MDL docket (Misc. No. 21-1230, ECF No. 3438). In the response, counsel for
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the Schadewalds acknowledged awareness that their submissions in response to the DMO
deadlines were deemed insufficient. Id. at 1. Counsel represented that he submitted the
documents attached as Exhibit A to his declaration (ECF No. 3438-1) to the MDL Centrality
portal. Id. at 2. 	Counsel acknowledged that he did not file “certain responsive documents”
such as plaintiff’s medical records and expert disclosures, but represented that he was
“undertaking exhaustive efforts” to obtain medical records and anticipated they would be
uploaded “by the return date of the Order to Show Cause.” Id. at 2. Counsel averred he was a
victim of fraud by a former employee and contended that his efforts constitute good cause for
this case to not be dismissed.
Philips filed an opposition to counsel’s declaration (ECF No. 3459). Philips points out
that counsel conceded that the Schadewalds did not produce numerous documents required by
the DMO, including medical records and expert reports. Id. at 3. Philips also represented that
the Schadewalds did not fully comply with the DMO requirements, despite the passage of
additional time. Philips argues that Schadewald failed to provide any explanation or justification
for these continuing failures to comply with the DMO and show cause order.1 On September 12,
2025, Philips filed the pending motion to dismiss (ECF No. 6).
On October 1, 2025, counsel for the Schadewalds filed a second declaration in response
to the motion (Misc. No. 21-1230, ECF No. 3616). In the second declaration, counsel explained
that his law office was victimized by an ex-employee from May to December 2024. Counsel
acknowledged his failure to comply with the deadline in the show cause order. Id. at 2. He
averred that he took additional steps to comply with his obligations, including execution of
1 The fraud problem in plaintiff’s counsel’s office occurred in 2024 (ECF No. 3616 at 1) and does not
explain the continuing failure to comply with the DMO and show cause order.
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medical authorizations, preservation letters, Rule 26 disclosures and a plaintiff fact sheet. Id. at
3. Counsel did not explain (or address) the failure to submit an expert report.
Counsel for the Schadewalds noted that, in other cases in the Philips MDL (but not the
Schadewalds’ case), the court granted motions for extensions of time. Counsel requested that the
court permit him to comply with the deadlines set forth in the court’s order of July 29, 2025
(ECF No. 3462). Specifically, plaintiffs’ counsel sought a deadline of September 22, 2025, for
Rule 26 disclosures and fact sheets, and a deadline of October 21, 2025, for an expert report
(ECF No. 3616-1 at 2, 5). Counsel represented that his delay in this case was measured in
weeks, not months, and was “fully curable by September 22, 2025.” (ECF No. 3616-1 at 4).
On October 22, 2025, the court ordered Philips to “file a report on plaintiff's compliance
with his duties under the DMO and show cause order.” (ECF No. 9). Philips reported that as of
October 28, 2025, the Schadewalds failed to produce: (1) a compliant Litigating Plaintiff Fact
Sheet; and (2) an expert report. Philips noted that counsel for the Schadewalds provided no
explanation for the continuing failure to provide those items.
On October 30, 2025, counsel for Schadewald provided a supplemental status report
(ECF No. 11). He stated that all requirements of the DMO, except an expert report, had been
submitted. He explained that the expert report was not submitted “due to our just being in
receipt of the medical records from Dr. Ortiz which are quite lengthy.” (ECF No. 11 at 3.) He
assured the court that the report “will be submitted as soon as possible; following our expert’s
review of over nine hundred (900) pages of medical records.” Id. (emphasis added). Given that
representation, the court understood that counsel for the Schadewalds had, on behalf of plaintiffs,
already retained an expert.
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On November 6, 2025, the court ordered counsel for Schadewald to file a notice with the
court, on or before November 17, 2025, providing the name and resume of the expert plaintiffs
retained. (ECF No. 12). The court also ordered counsel for Philips to file a supplemental
response with respect to Schadewald's representation that he complied with all requirements of
the DMO other than the expert report. Id.
Philips on November 17, 2025, filed its status report and reported that the Schadewalds
still had not provided an expert report, but complied with the DMO in all other respects (ECF
No. 13). Counsel for the Schadewalds failed to respond to the court’s November 6, 2025 order
and did not identify the expert purportedly retained by plaintiffs.
III. 	Discussion
Philips seeks dismissal of this case with prejudice. With respect to the DMO and show
cause orders, Philips reports (and plaintiff’s counsel acknowledges) that the Schadewalds did not
provide all the required information. The Schadewalds’ responses discussed their partial
compliance with the DMO, but did not articulate any explanation or good cause for the multiple
continuing failures to fully comply with those orders. On August 20, 2025, plaintiffs’ counsel
representation that the noncompliance was “fully curable by September 22, 2025.” (ECF No.
3616-1 at 4). Full compliance did not occur, i.e., an expert report still had not been submitted
despite the passage of almost three more months (from August 20, 2025 until November 20,
2025), and counsel for the Schadewalds failed to even identify the expert who would prepare a
report.
The deadlines in the DMO were designed to create an efficient process for all litigants –
including the Schadewalds. The DMO provided that the court expected “complete and full
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compliance” with the DMO. Id. at 1. A reminder to the Schadewalds was docketed on February
28, 2025. The Schadewalds, therefore, were on notice of their duties, among other things, to
obtain an expert report. Much of the information required by the DMO concerns only the
Schadewalds’ claims and is not dependent on access to forms or discovery directed to other
parties. The court gave counsel for the Schadewalds numerous opportunities to comply.
The Schadewalds’ counsel did not articulate the specific steps they took to obtain an
expert report, i.e., specifically there was no identification of an expert as required by the court’s
November 6, 2025 order. At this point, it is apparent that (six months after the original deadline
to provide the expert report to Philips) the Schadewalds did not comply with that aspect of the
DMO or show good cause for that failure.
As set forth in DMO ¶ 20 and 21, the Schadewalds’ complaint is subject to dismissal with
prejudice. The court issued the “show cause” order contemplated by ¶ 21 of the DMO to
Schadewald on June 13, 2025 (ECF No. 4). The Schadewalds failed to fully cure the
deficiencies or to demonstrate good cause for that failure.2
2 This court’s orders implicate Rule 37(b) and its authority to dismiss this case. See DMO, ECF No.
2769. To the extent evaluation of the “Poulis factors,” see Poulis v. State Farm Fire & Cas. Co., 747
F.2d 863 (3d Cir. 1984), is even necessary in light of the Schadewalds’ failure to comply with the clear
language of this court’s orders, the court considered them and concurs with Philips’ analysis of the Poulis
factors, ECF No. 3510 at 10-11. The court finds the Poulis factors weigh heavily in favor of dismissal
with prejudice of this case.
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IV. 	Conclusion
For the reasons set forth above, this case will be dismissed with prejudice for failure to
comply with the court’s orders with respect to the DMO deadlines and failure to show good
cause for the failure to cure the deficiency. Philips Defendants' motion to dismiss with
prejudice (ECF No. 6) will be granted.
An appropriate order will be entered.
Dated: November 20, 2025
BY THE COURT:
/s/ Joy Flowers Conti
Joy Flowers Conti
Senior United States District Court Judge
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