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Product recalls and product liability litigation: looking at the connection, P.2

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.

Strict product liability does not require proof of fault, and a plaintiff can prevail simply by showing that the manufacture knew or should have known the product was dangerous or defective. Product liability cases may also be brought under the theory of breach of warranty, whether by contract or implied by company’s involvement in the marketplace.

Each of these theories involves unique considerations, and it is important to work with an experienced attorney to determine which types of product liability claims will be most effective. In our next post, we’ll say a bit more about how product recalls can sometimes factor into product liability cases.


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.  

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