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Articles Posted in Defective Products

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.

When we go to the grocery store to pick up our weekly meals, we tend to trust that the food that we are purchasing is safe to consume. We put a certain level of trust in the many products that are at the grocery store, especially if they are popular national brand names.

So when we read about a recall related to one of these large brands, it can be extremely disheartening. Recently Nestle announced a voluntary recall of some products that most of us have heard of: Stouffer’s, Lean Cuisine and DiGiorno. The company has recalled specific products from each of these brands. Most of the products contain spinach.

The company says that several customers found small pieces of glass in the food, which prompted the recall. The company says they believe the source of the glass is the spinach that is in many of the products. The products are mostly a variety of pizzas, raviolis and lasagnas.

In our last post about car seats and car seat safety, we wanted to discuss the very important topic of car seat recalls. Parents often do a lot of research when it comes to picking a car seat. They learn about the different types of seats and the state’s laws related to those seats. They buy the seat ahead of time and make sure to install it properly. They may even get it checked by a technician to make sure that everything is perfectly installed and ready to go.

Parents can understand how frustrating it can be to go through all these steps just to learn that the car seat you purchased has been recalled. Or even worse, it can be devastating if a recall has not yet been made and your child is one of the first children to be injured by the defective product.

Thankfully manufacturers are required to let car seat owners know about these types of recalls. That is why it is extremely important for parents to register their car seats when they buy them. On top of that, you can also sign up with the National Highway Traffic Safety Administration to receive email alerts about any recalls that happen.

In our last post of the week concentrating on the topic of recalls, we discuss the very dangerous threat of food contamination. When we think about food recalls we often think about foods that are easily contaminated such as raw meats or products that need to be refrigerated. The scary thing is that just about any food that is distributed nationally or even locally carries a risk for some sort of contamination. While some contaminations may be low-risk, others can have deadly effects. For this reason, the Food and Drug Administration does not mess around, and as soon as they learn about a possible contamination, they do their best to alert the public in an urgent fashion.

Recently, the FDA announced a voluntary recall of raw pistachios from a specific company. The recall was issued by International Foodsource, LLC on four separate products that all contain pistachios. Thankfully no illnesses have been reported due to the contamination as of the second week of February but as we all know, sometimes it takes quite a bit of time for an illness to be linked to a specific food contamination.

The product apparently poses a possible salmonella risk. Laboratory analysis found the presence of salmonella in a five-ounce bag of one of the four products being recalled. While healthy adults may be able to get through salmonella poisoning with just stomach pains and diarrhea, this type of poisoning poses a great threat to children, the elderly and anyone who is frail or has a weak immune system. That covers a very large percentage of our population.

In our last post we started a discussion on recalls. The website is a great place to start if you are curious about what recalls are out there. Although the site exists, the big problem is that consumers can’t constantly be hovering on the site waiting for the next dangerous product to pop up on the screen. If you think about it, we buy tons of new products every week, from grocery items to articles of clothing to gasoline. Any product that a consumer can buy has a potential of being dangerous. There’s no way for consumers to constantly know if one of the products they bought over the last decade may eventually harm them.

Recently a huge issue has come up in regards to hoverboards. These boards, which are self-balancing scooters, were really popular over Christmas. They made it under the tree in many homes in New York and across the nation.

Unfortunately, as reported by the U.S. Consumer Product Safety Commission, these hoverboards have been linked to as many as 52 fires so far. The boards have caused more than $2 million in property damage. They have even destroyed two homes.

This week we will be taking a deeper look at defective products and how the government issues recalls. We often hear about products being recalled from news reports either online or during a television broadcast. Some of our readers may wonder if there is one place they can go to find out about all possible recalls that could affect them.

There actually is a convenient place to find out what products are considered hazardous, unsafe or defective. The site is called The site came to be as a group effort between six different agencies: the United States Department of Agriculture, the U.S. Food and Drug Administration, the United States Environmental Protection Agency, the United States Consumer Product Safety Commission, the United States Coast Guard, and the National Highway Traffic Safety Administration.

The site lists recalls in various categories including cosmetics, environmental products, food, medicine, motor vehicles, boats and consumer products. The site will help you figure out what the most recent recalls are and who to contact regarding the recall.

Although most New York residents would hope that various industries are regulated in order to make sure a bad product does not injure consumers, that is simply not always the case. Take, for example, beauty products. Such products that do not make medical claims or contain drugs are not really regulated by the Food and Drug Administration. Nor can the administration force them to reveal results of their testing or make them recall a product. Unfortunately, some products end up slipping through the cracks and injuring many individuals.

Currently, there is a class action lawsuit filed against the company that sells the hair care product called Wen. Some 200 women have joined the lawsuit and there have reportedly been some 17,000 complaints sent to the company regarding their cleansing conditioner and other Wen products.

According to news reports, the product is apparently causing hair loss for many individuals who use it. Some women experience large clumps of hair loss ending up with small bald spots. The company claims there is no scientific proof that their product is causing any problem.

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