Syracuse Personal Injury Law Blog

We’ve been looking in recent posts at the issue of product recalls and product liability litigation. Last time, we began looking at how product recall can sometimes, in some states, be used as evidence of liability for negligence in connection with a defective or dangerous product. That is not the case here in New York, which subscribes to the though there are certain exceptions.

Another possible way a recall can go badly for a company is when the company, knowing litigation is possible, destroys evidence that could demonstrate its own negligence. This is known as spoliation, and can sometimes serve as a basis for product liability. The point we’ve been trying to make with respect to how recalls are conducted is that companies who don’t conduct careful recalls can open themselves up to liability, though there may be limitations on plaintiffs’ ability to use recalls as evidence of liability due to the subsequent remedial measures rule.  

Another potential limitation on plaintiffs in product liability cases where a recall has been issued is that a company may have the ability to assert the defense that the plaintiff assumed the risk of using a product after receiving a warning through a recall notice or some other means but continued to use the product.

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.

Last time, we mentioned a recent batch of product recalls issued last week and began discussing the importance of working with an experienced attorney to seek just compensation for injuries connected to defective products. Although litigation is not always the answer for an injured consumer, it may be necessary in some cases to ensure the consumer has a chance to be fairly compensated.

Product recalls, or lack thereof, can sometimes be a factor, or an issue to be dealt with, in some product liability cases. Any plaintiff pursuing product liability litigation is required to prove certain basic elements for each claim. For product liability, there are several theories on which a plaintiff may be held liable. The place a product recall has in a product liability case depends on which theory a plaintiff is basing a claim, the state in which the suit is brought, the specific facts of the case. 

One theory on which a plaintiff may pursue product liability is negligence, or failure to abide by some established duty with respect to the design, manufacture, marketing and distribution of a product. The duty of care owed under a negligence theory depends on the company’s role with respect to the product, but generally a duty of reasonable care is owed.

Companies recall products all the time for various reasons. In the last week, for example, a number of product recalls were issued, including three models of Coleman flashlights, a Rollerblade inline skating safety helmet, two models of Yamaha off-highway vehicles, three models of Fisher-Price cradle swings, Outdoor Gourmet marinade injectors, a model of a Staples and Quill office chair, and a Miniland Educational plush fastening toy.

Some of the recalls were issued after safety incidents had been reported, though none of the recent batch of recalls were issued in response to any injuries. This isn’t always the case. When companies are responsible, they do enough pre-market safety development and respond quickly enough to post-market safety concerns that the harm to consumers is kept to a minimum. In some cases, though, companies fail to reveal the risks their products post and choose instead to benefit from market demand, or fail to respond responsibly to product failures.  

For consumers who are harmed by a defective product, the primary concern is addressing the injuries themselves, and then seeking just compensation from parties responsible for the injury. In some cases, it may be possible to settle privately over defective product injuries, but obtaining just compensation is only possible in some cases by pursuing litigation.