Product recalls and product liability litigation: looking at the connection, P.3

Picking up where we left off in our last post, we wanted to look briefly at the issue of product recalls in the context of product liability litigation.

As we noted last time, the place a product recall will have in product liability litigation depends on the type of claim or claims being made, the state in which the claim is made, and other factors. One such factor is the way in which a recall is conducted. The way a company goes about a recall can affect whether it helps or hurts the company in subsequent product liability litigation.

In product liability cases based on negligence, for example, a product recall notice may contain admissions of negligence that can, in some states at least, be used as evidence in a product liability case. Companies are aware of this and are usually advised by counsel to avoid including any admissions in their recall notices, which can lead to another problem—not including enough information. In other states, including New York, recall notices and documents may not be used as evidence of negligence. Some states do not allow such evidence for negligence claims, but do allow it for strict liability or breach of warranty claims, so it depends where the case is being brought and what law applies.

Recalls which say too little about a product risk may also become evidence of negligence. Failure to include accurate information that sufficiently informs consumers of the risks can lead to additional harm and may be admitted to trial as evidence of negligence. Failure to act quickly enough on known safety risks can also be a factor in establishing negligence, which can happen when a company fails to take adequate account of evidence of the risks of a product.