Effect of Product Recalls on Litigation

The U.S. Consumer Product Safety Commission (CPSC) is responsible for announcing the recall of products that present a significant risk to consumers. The risk can arise because a product is defective or because it violates a mandatory standard issued by the CPSC. Most product manufacturers will voluntarily recall a product based on a request by the CPSC or the U.S. Food and Drug Administration (FDA) or based on the manufacturer's own determination that the product in question is unsafe.

Clearly, recalling an unsafe product is the best way to prevent defective products from injuring consumers. Nevertheless, recalls have a negative impact on the manufacturer of the recalled product. How does a recall affect a manufacturer's ability to defend itself in a product liability lawsuit? Can the plaintiff introduce evidence of the recall to prove that the product was defective?

Whether a product in a product liability action is defective is a matter for the court or the jury to decide. What types of evidence that are admissible to demonstrate a product's defects depends on the facts of the case and the rules of evidence in the state in which the case is brought. In general, documents filed in conjunction with a recall are admissible in a product liability suit to prove that the defect in question existed at the time that the injury to the plaintiff occurred. However, the recall documents are not usually sufficient, in and of themselves, to prove that the exact product that injured the plaintiff caused the specific injury that the plaintiff suffered. This means that a plaintiff must have other evidence to establish that the product that the plaintiff actually used or came in contact with caused the injury.

Prejudicial Effect?

Some courts have refused to admit evidence of a recall on the ground that the evidentiary value of the recall information is outweighed by the prejudicial effect it would have on the jury. The exclusion of the recall information is based on the theory that a jury would not be able to find that a product that the government thought should be recalled was not defective. Because many jurors would not be willing to disagree with the government's determination that a product is defective, many courts believe that admitting the evidence is unfair to defendants associated with recalled products.

If a defective product is altered after a recall, some courts allow evidence of the alteration to be admitted into evidence. The Federal Rules of Evidence prohibit the introduction into evidence of measures taken subsequent to an adverse event to remedy a defective product to prove that the manufacturer was at fault. However, in most cases, this evidence can be introduced for other reasons, such as to prove that alternative ways of manufacturing the product were available.