You might assume the company that created a dangerous or defective product would automatically be held responsible for the injuries that item caused. Surprisingly, that is not always the case. Depending on the laws in your state and the circumstances surrounding the defective item, anyone in the supply chain from the manufacturer to the retailer might be liable for your injuries.

Strict Liability Laws

In states with a strict liability rule, a consumer injured by a defective product is not required to prove that the retailer was negligent. In other words, a plaintiff in a strict liability state does not have to prove that the seller knew the item in question posed a risk to consumers. Whether the retailer is aware of a defect or recall or not, they may still be required to pay damages caused by a product they sell. Strict liability laws motivate retailers to stay on top of product recalls and do everything in their power to make sure everything they sell is safe – so they can avoid expensive lawsuits and payouts.

Other states require consumers harmed by defective products to go further and prove that retailers are negligent before filing a lawsuit. Negligence means that a retailer knew the potential safety risks of a product and sold it regardless. Stores that sell items that have been recalled are considered negligent. Retailers are also considered negligent if they fail to inform consumers of important product usage guidelines or safety information. Some states even require retailers to notify consumers of recalls issued well after a product has been purchased. Again, these product liability laws regarding negligence exist to protect the safety of the general public.

When we buy something in a store, we assume it will work the way it is intended to. That promise from the buyer to the seller is presumed and can also be expressed more concretely in the form of a warranty. Written warranties are the most explicit and easy to prove when they are violated. Automobiles, electronics, and appliances usually come with written warranties. When these products do not live up to the quality and safety standards promised, the retailer may be liable for breach of warranty. Warranties can also be implied or spoken, and proving breach of warranty in those cases can be more challenging requiring the assistance of a skilled product liability lawyer.

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One of the most commonly known car-related product flaws is the Toyota gas pedal issue, where certain Toyota vehicles had the gas pedal stick when it was pressed down. This issue resulted in numerous drivers losing control, which caused injury accidents and even fatalities. Toyota was forced to recall more than four million vehicles and eventually reached a settlement of $1.1 billion for consumers who had been injured or harmed by the defect. This particular settlement contained no admission of fault on the part of Toyota.

Faulty Takata Airbags Result in Injury and Death

Another car-related product liability issue is the defective Takata airbags, which mostly affected cars built between 2002 and 2008, but also included models through 2014 in some cases. The main issue with the recall is that some airbags can deploy explosively, injuring or even killing car occupations. This issue involved the airbag’s inflator, which is some cases would ignite with explosive force. If the casing ruptured in a crash, there was a possibility that metal shards could be sprayed from the airbag throughout the vehicle’s cabin.

The recall included more than 30 million vehicles in the United States made by 10 different vehicle manufacturers. In total, eight fatalities and more than 100 injuries have been linked to the Takata airbags.

Car Accidents Resulting from Brake and Tire Defects

There have been many manufacturing defects related to the brakes, and they typically include problems with the rotors, drums or pads, which cause the brakes to fail or to not work as intended. Research has shown that cars with Anti-Lock Brake System (ABS) are more likely to be involved in a fatal rollover accident than other types of brakes. Braking systems are extremely complex and can fail for a variety of reasons, whether from improper installation or flaws in the basic design. Brake defects are rarely noticeable until the brakes fail.

Tires today are certainly safer than those manufactured decades ago; however, defects can still exist that lead to tread separation and subsequent car crashes. Years ago, there were a number of injuries and deaths attributed to Firestone tires on Ford Explorer vehicles, which led to millions of tires being recalled. Defective tires can fail suddenly, causing a rollover or other serious accidents from loss of control during normal driving conditions.

Other Car Defects That Can Lead to an Accident and Injuries

Seat belt latches can fail during a crash, or a seat belt can apply undue force in a particular direction, which leads to secondary impact injuries—and often times, those injuries are worse than the ones suffered from the crash itself. Airbags, meant to protect those inside, can fail to deploy during a crash or can deploy with too much force. In some cases, defective airbags can deploy when no crash has occurred. Fuel tanks can be poorly designed, leading to gas leaks or explosions, and door latches have been known to fail, causing a door to come open during a crash.

Types of Car Defects

There are basically two types of car defects that can lead to serious injury or death.

Design Defects

When the defect is inherent to the design of the part rather than the actual production of the part, then a car design defect has occurred. The court may look into whether the original blueprint of the part in question was unreasonably dangerous and whether it was reasonably foreseeable that the design defect could lead to injury and harm to the occupants of the vehicle.

Manufacturing Defects

This means that the defect occurred not in the original design, but due to an error made during the manufacturing process. A manufacturing defect case can be more complex because the plaintiff must show that the error in assembly or manufacturing directly contributed to the accident. In many cases, tests must be performed to determine whether the part in question actually had a manufacturing defect.

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The use of recalls by manufacturers of all varieties of products, from food to automobiles to pharmaceuticals, to make sure that their products are safe in order to succeed in the marketplace, maintain credibility with their customers and comply with governmental regulations is nothing new. Nor is the inevitable fallout of resulting personal injury litigation which follows such recalls. Recalls often generate a great amount of media attention. However, with the advent of social media, the 24-hour news cycle, and the overwhelming swell in plaintiffs’ attorney television advertising, litigation claims, and often Congressional, governmental agency, Attorneys General, shareholder and other stakeholder investigations and lawsuits are more prevalent and rapid than ever. There is a vast network of plaintiffs’ lawyers who regularly monitor governmental websites for recall announcements. Recall-related litigation can have mammoth, far-reaching, and even “bet the company” effects on manufacturers.

The legal implications of recalls are immense and diverse: from regulatory compliance to securities litigation to criminal investigations. This article aims to focus on a few brief helpful guidelines with regard to personal injury recall-related litigation: how to prepare to refute meritless claims while resolving claims with value in a manner which is cost-effective and timely, while protecting the manufacturer’s interests, image, integrity, and stakeholder and related interests. Having a well-planned litigation strategy in place to prepare and defend against such litigation, while coordinating and protecting the manufacturer’s other connected interests is crucial in surviving and navigating the often rocky terrain of recall-related litigation.

Pre-Litigation planning

Even before the first lawsuit is filed, manufacturers and their counsel should begin planning for the inexorable personal injury litigation once a decision to recall a product has been made. Depending on the product involved, and whether the recall is voluntary or involuntary, consumer notification of recalls is typically spearheaded and closely monitored by the applicable governing agency (FDA, NHTSA, CPSC, etc.), and can involve press releases, direct consumer notifications, Internet notices, or point-of-sale notifications. Litigation counsel should be involved when possible in negotiations with compliance personnel and agencies to balance the necessity of providing adequate notice with the effects the notice could have on subsequent products liability litigation. Manufacturers can be certain that – if evidence of the recall is admitted at trial – the notice(s) will be a key, if not the key, piece of evidence shown to the jury.

Litigation counsel should be involved with all of the recall key players – communications, logistics, compliance, marketing, engineering, distribution – in coordinating the recall strategies, as emails, documents, and even witnesses from all aspects of those branches will undoubtedly be involved in subsequent litigation. Having a voice at the table from a litigation perspective can help shape and in some instances improve the manufacturer’s defense later down the road. More importantly, involving litigation counsel in communications with recall coordination efforts may protect those communications as privileged in subsequent discovery efforts.

While the law of spoliation and the duty to preserve evidence varies by jurisdiction and can be complex, once the recall efforts begin, an early, comprehensive and welldistributed litigation hold notice and evidence and document preservation system should be put in place as soon as possible. There is no general duty to preserve evidence before litigation is filed, threatened, or reasonably foreseeable, unless the duty is voluntarily assumed or imposed by a statute, regulation, contract, or another special circumstance. Thus, the “trigger” to preserve information will depend on the facts specific to each recall. Custodians and information technology personnel should be made aware of the gravity of this duty, as spoliation of evidence can be incredibly harmful in subsequent litigation, resulting in an adverse inference, or severe sanctions.

Moreover, they should be advised that their communications moving forward should be treated as evidence that could be put on a big screen in front of a jury or the headline of a news story someday. There are unfortunately too many anecdotes about “smoking gun” emails, some of which include cringeworthy jokes or inappropriate comments made – particularly when consumer safety is involved – which severely harmed the defense of an otherwise defensible case. Retention of the products themselves can be particularly crucial in recall situations where products such as food or pharmaceutical products are recalled for potential manufacturing defect concerns. In those situations, manufacturers often routinely destroy such recalled products. However, careful consideration of whether to retain, and potentially test, samples of recalled products, should be made. This can be a double-edged sword. Manufacturers and their litigation counsel must balance concerns of possible claims of spoliation in future discovery battles with the possibility of retaining and testing samples which may not be representative or could be compromised while stored during protracted litigation. Moreover, depending on the facts of the case, the most advantageous defense strategy may be to focus on the claimant’s actual product as opposed to retained recalled products.

There should also be coordination with litigation counsel regarding any possible revisions to manufacturing-related policies and procedures post-recall. Manufacturers will have to balance wanting to remedy the reason for the recall, governmental agency intervention and compliance, and the potential that such changes could potentially be admitted in subsequent product liability litigation and could be viewed disfavorably by jurors.

Concerns for early litigation stages

Once litigation begins post-recall, there are several early steps manufacturers and their counsel can take to gain an advantageous defensive posture in the litigation. The breadth and type of recall, and number of cases being filed, whether the litigation is in multidistrict (“MDL”), mass tort, consolidated or multiple individual proceedings will affect the strategic decisions made. Often times plaintiffs’ attorneys will attempt to avoid MDL or mass tort actions, in which case quick and careful consideration should be made whether to transfer such cases to the consolidated proceedings. In recalls involving large numbers of claims, defense counsel and manufacturers should coordinate an early and efficient mechanism for tracking service of complaints, so as to avoid any cases “slipping through the cracks”, which could result in losing the ability to transfer or remove a case, or in default judgment being entered against the manufacturer.

In individual recall-related cases, removing a case from state court to federal court should be an early consideration. It depends on the facts of the case and the venue, but generally defendants in products liability recall cases prefer to be in federal court, and plaintiffs prefer to be in state court. In federal court, defendants have the advantages of the Federal Rules of Procedure and Evidence, scheduling orders, wider jury pools, and federal procedural law, amongst others. Plaintiffs’ attorneys often try to circumvent removal by filing complaints in state court which name retailers, prescribers, unrelated distributors or manufacturing facilities, employees, officers, directors, or other third parties as co-defendants in order to destroy diversity. In such instances, an early evaluation of the involvement, if any, of these co-defendants in the recall and the case is crucial to determine whether they have been fraudulently joined. If so, a manufacturer can nonetheless remove the case and assert fraudulent joinder of the codefendants. The doctrine of fraudulent joinder is an exception to the requirement that removal requires complete diversity. In a suit with named defendants who are not diverse, the diverse defendant may remove if it can establish that the non-diverse defendants were “fraudulently” named or joined to defeat diversity. Joinder is fraudulent if there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment. If the court determines that the joinder was fraudulent, it can disregard, for jurisdictional purposes, the citizenship of certain non-diverse defendants, assume jurisdiction over a case, dismiss the non-diverse defendants, and thereby retain jurisdiction. A denial of a motion to remand by a federal court in such situation is a “one-two punch”, since it could also result in dismissal of third-parties affiliated with a manufacturer, including its officers, directors, and employees. This is of particular concern in an era of increased governmental scrutiny and focus on individuals within and in charge of product manufacturing companies.

Another crucial early litigation strategy is the evaluation and filing of a motion to dismiss some or all of plaintiff’s claims. Given the widespread media coverage of most recalls, often plaintiffs’ attorneys are quick to file large numbers of meritless cases using boilerplate complaints when their clients may not have suffered injuries, or in some instances may not have even purchased or used the recalled product, or if they did, their products were not defective. Using the standards in Iqbal and Twombly or their state progeny to weed out these baseless claims early on, forcing plaintiffs to “put up or shut up” with regard to the basic facts of their cases can save manufacturers resources, time, and effort in defending against a case without merit.

Discovery

Discovery in recall-related litigation, particularly in cases involving enormous numbers of claims, can be arduous and cost manufacturers millions in man-hours and dollars. In defending these cases, manufacturers and their counsel should try to “tame the beast” before it gets out of control. Prior to the onset of discovery, it is critical to seek a discovery and electronically stored information (“ESI”) plan with opposing counsel (or via motion practice if an agreement cannot be reached) which limits the scope and amount of discovery as much as reasonable, but possible. This can avoid lengthy and costly discovery battles later on, and often keeps manufacturers in the good graces of the court, as courts often spurn such fights between parties. During the course of discovery, although discovery rules are broad, companies should try to limit the discovery of recall-related evidence when possible. Defendants can object and seek to limit discovery based on requests which are overly broad, vague (i.e., “all documents in any way related to the recall”), or not reasonably calculated to lead the discovery of admissible evidence (i.e., seeks information regarding another recalled product or component part), or that it should be limited because of undue burden or cost (i.e., the product has a very long history or was widely, if not globally, distributed). The relatively recent proportionality requirements of Rule 26 of the Federal Rules, which permit limitations on discovery proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit, are an excellent resource for seeking to limit the discovery of recall-related evidence.

Preparing for Trial

When preparing for trial, exclusion of recall-related evidence is key. Companies may successfully move to exclude recall evidence based on relevancy grounds, or in the basis that its probative value is substantially outweighed by the probability that its admission will create a danger of unfair prejudice or confusing or misleading the jury, or require an undue consumption of time. Courts may also exclude recallrelated evidence as inadmissible hearsay.

Perhaps one of the strongest arguments companies have for exclusion of recall-related evidence is that it is a subsequent remedial measure. Courts routinely exclude evidence of product recalls under Rule 407. However, this exclusion is somewhat narrow. Post-accident studies, tests, and reports may fall outside of the exclusionary power of Rule 407, even if these documents later lead to a recall campaign. Moreover, courts may find that actions must be voluntary actions taken by the party in order to be excludable, and thus involuntary recall-related evidence will not be excluded. Certain state rules of evidence or common law may also have idiosyncratic applications of the subsequent remedial measures rule with regard to recall-related evidence.

Companies may also want to consider using recall-related evidence at trial to show their efforts to improve the product and to protect the public, where a plaintiff is seeking punitive damages. Where pre-recall complaints come into evidence, excluding recall evidence means that the manufacturer could lose the benefit of showing measures it took to make the product safer. Where the plaintiff ignored recall notices or refused remedial offers, recall evidence could assist with a contributory negligence defense.

With regard to jury voir dire, if recall-related evidence has been excluded prior to trial, a defendant should tread carefully to avoid questions relating to the recall, instead asking potential jurors such questions as: if they have read anything about or used the product; their thoughts on the product; whether they or anyone they know had a bad experience with it; if they have ever stopped using a product or decided not to use a product because they were worried about the safety of it and if so, what was the product what was the nature of their worry. Defendant should focus questions on any negative impressions, feelings or opinions about companies in terms of the testing of their products, the warnings that are issued on their products, the marketing of their products or the conduct of the sales representatives and marketing and advertising for their products that would make it difficult for them to be fair in a case involving a manufacturer. In the event the recall-related evidence is not excluded, manufacturers would want to delve into which potential jurors know about the recall, what they know about it, and of course whether they or someone they know purchased or used the recalled product (or any recalled product). In the event recall-related evidence is admitted at trial, consider requesting a jury instruction explaining that evidence of a recall campaign may only be considered after the plaintiff, independent of the recall, establishes by a preponderance of the evidence that a defect existed in the product.

In conclusion, although litigation stemming from product recalls can be massive, expensive, and have worrisome and farreaching effects for companies, utilizing efficient, effective, and smart recall-related litigation strategies can ease the burden on manufacturers and get their focus back to what they do best – making safe, useful products for their customers to use and enjoy.

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The bad news for individuals who are trying to control their weight by drinking diet soda is that new evidence links artificially sweetened sodas to an elevated risk of stroke and dementia. The bad news for the Coca-Cola Company and PepsiCo is that they might face a wave of lawsuits if they fail to warn consumers of that risk.

Stroke and Dementia Risk

The study, published in the peer-reviewed medical journal Stroke, found that people who drink at least one can of diet soda each day have a risk of stroke or dementia that is three times higher than those who do not drink diet soda. That correlation raises red flags about a causal link between drinking artificially-sweetened beverages and stroke or dementia.

A correlation, however, does not prove causation. The study’s authors caution that they do not know why artificial sweeteners would increase the risk of either stroke or dementia. It is possible that people who are more likely to suffer from those conditions are also more likely to drink artificially-sweetened beverages and that diet soda consumption does not cause either condition.

The correlation with dementia, in fact, is only statistically significant in people who have vascular “risk factors.” Those people may have been advised to cut down on sugar, which might suggest that they drink more diet soda than the rest of the population.

The correlation with stroke, however, is statistically significant even after controlling for risk factors. It is, therefore, more difficult to explain the correlation if artificial sweeteners do not cause an elevated risk of stroke.

Duty to Warn

Consuming too much sugar can lead to a range of health problems, so consumers may decide that the risks associated with diet soda are less than risks involved in drinking a sugary soda. Consumers who are completely risk-averse might want to stick to water.

Consumers cannot make an informed choice, however, without having information. That raises the question of whether diet soda manufacturers have an obligation to inform consumers of evidence that links diet soda to an elevated stroke risk.

As a general rule, companies (and individuals) have a duty to warn others of a known danger if the failure to warn might lead to a foreseeable harm. For example, property owners have a duty to warn of hidden hazards (like an open well or a cliff) that might imperil other users of the property who fail to notice them. A fence or warning signs are common ways of satisfying that duty.

Supermarkets have a duty to warn customers when the store becomes aware of product spills that might cause customers to slip and fall before store employees have a chance to clean the spill. Doctors have a similar duty to warn patients about non-negligible risks of surgery or prescription drugs.

Providing warnings gives the person who might be placed at risk an opportunity to make an informed choice about taking the risk. A patient, for example, might decide that the benefits of surgery outweigh the risk of a bad outcome. Warnings also allow people to take sensible precautions, such as avoiding a wet area on a floor.

Liability for Failing to Warn

Most people are aware that cigarette packs warn smokers that smoking is hazardous to their health. For years, the tobacco industry not only resisted those warnings but maintained that smoking was perfectly safe. Warnings appear on cigarette packages not because tobacco companies recognized a duty to provide them, but because Congress passed a law that requires them.

The legal standards for tobacco liability (perhaps improperly influenced by tobacco companies) have made it difficult for smokers to win cases based on a company’s failure to warn about the dangers of smoking. In other cases involving unsafe products, however, the law often protects consumers by requiring manufacturers to warn of known hazards that may not be obvious to consumers who use the product.

The duty to warn also exists if product manufacturers should know that the product is potentially unsafe. That standard prevents manufacturers from hiding behind self-imposed ignorance to avoid liability.

For example, juries have repeatedly awarded large verdicts to women who were diagnosed with ovarian cancer after using talcum powder manufactured by Johnson & Johnson. Three recent verdicts, ranging from $72 million to $55 million, reflected the jury’s conclusion that Johnson & Johnson was aware of the risk but pretended otherwise so that the company would not jeopardize sales by warning women that the product might cause cancer.

Diet Soda and the Duty to Warn

While there are a variety of exceptions to the “duty to warn,” and while the law is not always consistent from state to state, the general principle suggests that PepsiCo, Coca-Cola, and other soft drink manufacturers might have a duty to warn consumers that drinking a diet soda could increase the risk of having a stroke. If that duty does not yet exist, it may be on the horizon.

Whether the current studies are sufficient to put soft drink makers on notice that diet sodas cause an elevated stroke risk is a question that courts will need to decide. The study cited above puts soft drink companies on notice that their products might increase the risk of having a stroke, but courts could conclude that the evidence is insufficient to put the companies on notice that diet sodas are actually unsafe. If the evidence of causation grows, however, diet soda drinkers who suffer from strokes may have a sound argument that their strokes were caused both by drinking diet soda and by the manufacturer’s failure to warn them of that risk.

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