How a Recall Affects a Product Liability Claim

A recall serves as evidence in a product liability case, but doesn't automatically establish the manufacturer's responsibility for the plaintiff's harm.

By , J.D. · University of San Francisco School of Law

Manufacturers frequently recall defective products, either on their own or at the prompting of a government agency. A step like this may seem akin to the manufacturer's admission of fault if someone ends up ill or injured because of the product (especially when a large amount of people are harmed) but it's not that simple in practice. Let's look at the effect a recall might have on a product liability claim brought by someone whose injury or illness might be caused by the recalled product.

Product Liability In a Nutshell

A person harmed by a product (the plaintiff) may be able to file a lawsuit against the manufacturer, the distributor, and/or the seller of the product. The claim can be based on a number of legal arguments, all of which fall under the umbrella of "product liability":

  • the product had a defective design that makes it unreasonably dangerous
  • the product (or a select group of products, often called a "lot") was manufactured in a way that deviated from the intended design and increased risk to consumers, or
  • the manufacturer failed to adequately warn of risks inherent in use of the product.

In a product liability case, the plaintiff can sue for all financial and non-financial losses ("damages") caused by the defect, including injury or illness, lost income, and "pain and suffering."

How a Recall Works

A manufacturer may become aware of a defect in a product either on its own or because a government agency, such as the U.S. Food and Drug Administration (FDA) or the U.S. Consumer Product Safety Commission (CPSC), 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 published online, 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 any particular dangers posed by the defect.

A Recall Does Not Automatically Make a Manufacturer Liable

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.

A Recall Does Not Automatically Get a Manufacturer Off the Hook

On the other hand, a manufacturer cannot use a recall to defeat any claim brought against it. The manufacturer must usually prove that the particular plaintiff directly received notice of the recall and that the recall 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.

Learn more about a manufacturer's defenses in a product liability case.

Examples of Recalls in Actual Cases

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, in an effort to recover the amount of the settlement.

The manufacturer had sent a recall notice to the dealers about the defective brake 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.

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.

Next Steps

If you're thinking about filing a legal claim over an injury or illness that might be linked to a product, it might be time to discuss your situation (and your options) with a personal injury lawyer.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to a Product Liability attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you