Product recalls and product liability litigation: looking at the connection, P.4

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.

A company may also seek to avoid or minimize liability by asserting defenses of contributory negligence, in cases where the plaintiff’s injuries were partly due to his or her own negligence. Another possibility in some cases is that the defendant may assert that superseding causes caused the injury rather than the company’s negligence.

Those who have been seriously harmed by a defective or dangerous product should, of course, always work with an experienced attorney build the strongest possible case and to give themselves the best possible chance of recovery.

Sources:

New York State Bar Association, “Litigating the Products Liability Case: Law and Practice,” Nov. 2013.

Jones Day, “Product Recalls: Anticipating the Product Liability Lawsuits,” Feb. 2012.