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By John Kristensen of Kristensen, LLP posted in Product Liability on Thursday, March 22, 2018.
Yes, You Can Sue Manufacturers For Defective Products After a Recall, But It’s Not That Simple

Each year, there are thousands of recalls in California and all across the United States. Even big-name manufacturers do it. But does it mean that you cannot sue a liable manufacturer for producing and selling a defective product just because it issued a recall?

We brought our Los Angeles product liability attorney from the Kristensen LLP to finally help you understand what happens to all defective product liability complaints filed before or after a recall.

What is a recall?

A recall is a request issued by a manufacturer to return a product that was found to be potentially unsafe or containing product defects that might put the safety of consumers in danger or put the manufacturer and other responsible parties at risk of litigation and legal action.

In Los Angeles and elsewhere in California, manufacturers recall defective products either on their own or after a government agency such as Food and Drug Administration (FDA) or the Consumer Product Safety Commission (CPSC) asks the manufacturer to do so.

But before we answer the question “How does a recall affect product liability claims?” let’s ensure that you understand how product liability laws work in California.

How product liability laws work in California

In Los Angeles and other cities across California, a person who was injured while using a defective product – or, speaking in legal terms, the plaintiff – is entitled to bring a product liability lawsuit against the manufacturer, assembler, seller, distributor and other parties in the chain of distribution – the defendants – and recover both economic and non-economic damages.

Under California’s defective product liability laws, there are 3 types of claims: manufacturing defect, design defect, and inadequate warning.

What happens after a recall

After a manufacturer becomes aware of a defect or safety concerns regarding one or multiple of its products, it can voluntarily issue a recall. If it fails to do so and continues to sell the defective or potentially hazardous product prioritizing its reputation and profits over the safety of consumers, one of the government agencies such as the FDA and CPSC may issue a recall after it discovers the defect.

When a recall is used, all distributors, sellers, and other parties in the distribution chain will receive a notice detailing the safety concerns or defects. Also, the manufacturer that issues a recall is required to send out a notice to all known purchasers, as many as possible (through emails, phone calls, mail, and other means if the seller or any other party gathered consumers’ contact information upon selling the product).

Also, notices of recall are placed in trade journals and shared with local media outlets. In the recall, the manufacturer typically instructs the consumers who have purchased the defective product how to repair it, replace, or get a refund, as well as warn of the risks and dangers of using the defective product.

Recalls do not automatically make manufacturers liable

One of the biggest misconceptions among consumers in Los Angeles and all across California is that a recall automatically makes a manufacturer liable. It is simply not true. Although courts consider a notice of recall as evidence to back up the plaintiff’s claim that the product was defective, the plaintiff will still have to present evidence that this particular defect caused injuries.

In other words, just because there has been a recall, a defendant manufacturer is not automatically liable in a product liability lawsuit. You will still require the legal help of a Los Angeles product liability lawyer in order to establish all three elements of your claim and obtain compensation.

Recalls do not make manufacturers immune from legal action

It would be wrong to assume that manufacturers who issue a recall are immune from any product liability claims brought against the product in question. A recall does not get a liable manufacturer off the hook, and he/she or the company will still be legally required to compensate for injuries and damages caused by the defective product.

However, if the manufacturer can prove that you – the plaintiff – directly received notice of the recall and the issued recall warned you of the defect, safety concerns, and potential hazards of using the product, you may have a hard time proving the manufacturer’s liability for your injuries.

Do note, however, that just because there has been a recall does not necessarily mean that the manufacturer will be able to defend himself/herself against your claim. In order to be qualified as a valid defense, the manufacturer will have to prove that the notice of recall was provided directly to you (not generally to all consumers).

Contact the Kristensen LLP to get a free consultation about your particular case. Let our Los Angeles product liability attorney provide you with top-notch legal representation and help you obtain compensation for your injuries and damages whether there has been a recall or not. Call our offices at 310-984-1297 or complete this contact form for a free case evaluation.