Manufacturers frequently recall defective products, either on their own or at the prompting of a government agency. This article discusses the effect a recall has on a product liability claim brought by someone who ends up being injured by the defective product.
A person injured by a product (the plaintiff) can sue the manufacturer, the distributor, and/or the seller of the product. The claim can be based on a defective design that makes the product inherently dangerous, a failure to adequately warn of a risk, or defective construction. The plaintiff can sue for all financial losses caused by the defect, as well as any physical harm. For more detail on product liability laws, see the articles we have filed under Defective and Recalled Product Injuries.
A manufacturer may become aware of a potentially widespread defect in a product either on its own or because a government agency, such as the Food and Drug Administration (FDA) or the Consumer Product Safety Commission (CPSC), officially brings the defect to its attention.
Typically, the manufacturer will then issue its own voluntary recall. If the manufacturer does not do so, the CPSC or FDA may issue a recall. A notice will typically be sent out to all distributors and sellers of the products, as well as all known purchasers, to the extent that is possible. Notices will also typically be placed in trade journals and provided to the general media, depending on the extent of the recall. The recall will instruct the customers how to have the product repaired or replaced, and will warn of the particular danger posed by the defect.
While many courts allow evidence of a recall to help establish that the product was defective, such evidence does not make a defendant manufacturer automatically liable in a civil lawsuit.
A plaintiff must still prove the elements of a product liability case -- that the particular product was defective and that the defect caused his or her injuries. Circumstantial evidence of a recall can help establish that the kind of defect the plaintiff is alleging existed when the plaintiff was injured, but additional direct evidence, like witness testimony and photos of the actual product, will still typically be required.
Other courts simply do not allow evidence of a recall to be admitted in a case. Those courts reason that if a jury found out about a recall, the jurors would be "prejudiced" by that information and be unable to consider other evidence in the proper light.
On the other hand, a manufacturer cannot use a recall to defeat any claim brought against it. The manufacturer must prove that the particular plaintiff directly received notice of the recall and that the contents adequately warned the plaintiff of the dangers posed by the defective product.
A broadly issued recall, unaccompanied by successful efforts to direct the recall notice to the plaintiff, is not enough. Also, the manufacturer cannot defeat the plaintiff’s suit by blaming a distributor or seller for not providing the notice directly to the customer -- although the manufacturer may be able to sue the distributor or seller afterwards, depending on the facts of the case.
1. Auto Manufacturer vs. Dealer Liability. After settling with a plaintiff who was injured as a result of a defective rear brake light, a manufacturer sued the dealer and leasing agency that leased the car to recover the amount of the settlement. The manufacturer had sent a recall notice to the dealers about the defective break light, so it alleged that the dealers were really the ones at fault for the injury. However, the court ruled that the manufacturer was the one that produced the defective car and that it had made no attempt to notify the customer directly, therefore the manufacturer was the primary party at fault and was owed nothing from the dealers.
2. Tire Manufacturer Failed to Recall: A major tire manufacturer was given a strong recommendation by a government agency to recall a tire because of particular safety defects. The recommendation, however, was not an order to recall. The tire company declined to recall the tire, some version of which had been on the market and in circulation for over 25 years. A plaintiff was subsequently injured when the tire exploded. The court allowed the letter from the government agency to be submitted into evidence, along with the instruction to the jury that the letter was not an official government finding of a defect. The plaintiff won the case and was awarded, among other things, four million dollars in punitive damages for the tire company’s willful failure to recall the product.