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Hurt by a Product That Has Been Recalled

Hurt by a Product That Has Been Recalled

In this article, we’ll break down the following:

Defective products are surprisingly common. Each year, the US Consumer Product Safety Commission (CPSC) issues approximately 300 recalls on consumer products, ranging from home appliances and motor vehicles to medical devices and children’s toys.

A product recall is an official request made by a manufacturer, federal regulatory body such as the CPSC, or consumer watchdog to return, replace, or exchange a product with a defect, which could potentially harm consumers, hinder performance, or expose the producers to legal issues.

If a defective product injures you, you can recover damages from the liable party, which in this case would be the manufacturer, designer, or distributor. While manufacturers do their best to ensure consumers are aware of a product recall, this information doesn’t always reach everyone. So, what happens if you are hurt by a product that has been recalled? Here’s everything you need to know.

Marketplace Liability – Overview

There are typically three ways a manufacturer can be made aware of potential defects in their products:

  • Through user complaints;
  • Through discovery by a federal regulatory body such as the Food and Drug Administration; or
  • Through a manufacturer conducting their independent inspections.

If the manufacturer does not issue a recall, federal agencies will step in and push them to do it. A product recall includes critical information consumers need to understand concerning the risks defects pose and what they can do to remedy the situation if they have already purchased the recalled product.

The principal defendant in product liability cases will typically be the manufacturer. However, if a product harms you, you can go after any other entity in the distribution chain.

Marketplace liability is imposed on distributors and retailers to help the injured victim, particularly when they can’t locate the manufacturer to sue them.

In a practical sense, if you purchased a defective product at a brick-and-mortar retailer like Target or Walmart or through an online marketplace such as Amazon, eBay, or Meta, and the product ends up being defective, you can go after the manufacturer, distributor, and retailer.

For instance, if the manufacturer of a defective product is based overseas, marketplace liability allows the consumer to seek legal redress against other entities in the distribution chain. This approach gives the consumer a higher chance of recovering the compensation they deserve.

Amazon Marketplace Liability

Third-party sellers generate more than 50% of Amazon’s sales volume. These third-party products are co-mingled with Amazon’s listings, with a tiny disclaimer indicating that the retail giant isn’t the actual seller.

Third-party sellers listing their products on the site are subject to the terms of the corporation’s Business Solutions Agreement (BSA) which, among other things, states that third-party sellers are liable for any private or public recall or defect or non-conformity of their products.

In a press release dated July 14, 2021, the US Consumer Product Safety Commissions filed an administrative complaint against amazon to force them to pull defective products which pose a risk of serious injury or death to the consumers. These products include 24,00 carbon monoxide detectors, children’s sleepwear garments made of flammable fabric, and 400,000 hair drying sold without protection devices to prevent electrocution of its users. This complaint took a massive step forward in pressuring companies like Amazon to recall products which never should have been sold in the first place. One of Amazon’s defenses is that forcing them to recall such products would also span to other companies who do the same—which is exactly what consumers want to happen. Since this case, Amazon will now be warning consumers of such dangers and recalls, but the fight isn’t over yet.

Additionally, consumers have no choice but to agree to Amazon’s terms and conditions that release them from any liability for the content, products, and actions of these third-party entities selling their products on its platform.

While Amazon has successfully defended against product liability claims in several jurisdictions, particularly those involving third-party sellers, recent rulings such as Loomis v. Amazon and Bolger v. Amazon have ushered in a new dawn in e-commerce marketplace liability cases.

Online retailers operating their own e-commerce marketplaces that sell defective or recalled third-party products may be held strictly liable for injuries arising from them, even if they never had actual possession.

eBay Marketplace Liability

Unlike Amazon, eBay’s business model makes it an auction site. However, recent court opinions indicate that e-commerce intermediaries, including eBay, can now be held strictly liable for selling defective or recalled products on their online marketplaces.

One court opinion noted that entities in the distribution chain with the financial capacity to bear the risks associated with defective product claims aren’t automatically considered strictly liable unless they played a significant role in the stream of commerce.

If eBay facilitates the sale of a defective or recalled product or fails to screen communications between sellers and customers concerning the potential safety issues of products sold in their marketplace, and the product in question goes on to injure the consumer, eBay may be held strictly liable in a civil action against it.

Walmart Marketplace Liability

If you purchased a recalled product at Walmart (online or at a brick-and-mortar store) and are subsequently injured, Walmart and the manufacturer share responsibility for the resulting damages. The timeline of events is very important in these claims.

  • If you knowingly used a product that was already under recall, there’s a good chance your case will be dismissed.
  • If you unknowingly used a recalled product and were subsequently injured, the burden would be on the manufacturer and retailer to prove that you were aware of the recall prior to your injuries.
  • If Walmart sold you a product after a recall was issued on it, and the defective product harmed you because you were unaware of the recall on it, the retail giant would be strictly liable for your injuries.

Meta Marketplace Liability

Meta’s terms of use state that buyers and sellers are responsible for products sold on Facebook Marketplace or in groups. Based on those terms, the company effectively exonerates itself from potential lawsuits from consumers injured by defective products purchased through the platform.

Letters from the US Congress and the CPSC to Meta noted with concern that the company did not have adequate procedures for screening marketplace listings to identify consumer products that have been banned or recalled. The company also lacked the appropriate measures for removing banned and recalled products from the platform.

Recent rulings, however, are now challenging the so-called immunity that marketplaces like Facebook have been using to shield themselves against potential product liability lawsuits.

If Meta acts as an intermediary between a buyer and a seller and, based on this position, facilitates a sale of a defective, banned, or recalled product that goes on to injure the customer, they can be held strictly liable for damages.

Product liability cases involving recalled products sold or purchased on marketplaces like Amazon, eBay, Walmart, and Meta can be complicated. Your best bet would be to consult a product liability attorney to discuss the specifics of your case.

What Steps Can You Take?

Right off the bat, if you own a product that had a recall on it, you first need to stop using it immediately. Even if the defect seems minor, continued use of the product will make it harder to recover compensation if it injures you.

Instead, you should get in touch with the manufacturer or retailer where you purchased the product and request a replacement or refund. In other instances, depending on the product in question and the nature of the recall, the defective product may be repaired and returned to you.

Can I sue for being hurt by a previously recalled product?

The short answer is – yes, you can. Florida law offers legal protection for consumers injured by defective products.

Keep in mind that a common strategy manufacturers’ attorneys use when defending against product liability lawsuits involving recalled products is to try to blame you. They may argue that you were aware of the recall and used the product with full awareness of its risks.

Simply because a manufacturer issued a recall on a product does not exonerate them from liability if a consumer gets injured by them. A recall also does not automatically mean that every consumer who purchased the defective product is aware of it. The manufacturer would, have to demonstrate that you were aware of the recall, which can be difficult to do.

Injury cases involving recalled products can have multiple defendants besides the manufacturer. Distributors and retailers can also be held liable for injuries.

If a recalled product has injured you, here are the steps you should take:

  • Seek medical attention as soon as possible. Not only is this important for your health and well-being, but it also ensures that your injuries are well-documented.
  • Open an evidence file and compile every piece of documentation related to your injuries. These include photographs of the defective product, proof of purchase, photos of your injuries on the day of the incident and the weeks after, receipts of your medical expenses, including all your out-of-pocket incidentals, and any other documentation relevant to your case.
  • Write down everything that happened. Your memory may get over time, so writing down everything related to the incident as soon as possible will ensure you don’t forget critical information that can help your case. Remember to include a timeline of events, beginning with when you bought the product, how often you used it, and the last time it was in operation before the incident.
  • Store the defective product, all its packaging, and the instruction manual it came with somewhere safe. You’ll need it as evidence in your lawsuit.
  • Speak to an experienced product liability attorney with a record of obtaining favorable settlements for their clients.

Florida Case Law Related to Getting Hurt by a Previously Recalled Product

Product liability claims in Florida are governed by Florida Statute 768.81, which details the rights and remedies of injured victims. Claims related to injuries involving previously recalled products are filed on the legal doctrines of strict liability, negligence, or breach of warranty. Multiple theories may apply to a single case. The choice of which approach to take will depend on the strategy the attorney intends to use.

A plaintiff pursuing a recalled product injury case under the legal theory of strict liability would have to demonstrate that:

  1. There’s a relationship between the recalled product in question and the defendant;
  2. The previously recalled product had a defect;
  3. The defect rendered the product unreasonably dangerous for its intended use; and
  4. The defective product was the proximate cause of the plaintiff’s injuries.

It is worth noting that a recall on a defective product is not in and of itself proof of the manufacturer’s liability.

On the other hand, a plaintiff pursuing a recalled product injury case under the legal theory of negligence would have to demonstrate that:

  1. The manufacturer, distributor, or retailer owed a duty of care to them;
  2. That duty was breached, making the recalled product dangerous for its intended use;
  3. They were injured as a result of that breach; and
  4. The recalled product was the proximate cause of their injury.

Frequently Asked Questions

If I purchase a recalled product from an online marketplace, can I still sue the manufacturer?

Yes, you can. Recent court opinions such as Loomis v. Amazon and Bolger v. Amazon have set a new precedent in online marketplace liability cases. Online retailers operating their own e-commerce marketplaces that sell defective, banned, or recalled third-party products may be held strictly liable for injuries from using these products, even if they never had actual possession.

Under Loomis v. Amazon, the application of strict liability on Amazon turns on the following:

(1) whether Amazon may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end,
(2) whether Amazon may be the only member in the distribution chain reasonably available to the injured plaintiff, and
(3) whether Amazon is in a position to adjust the costs of compensating the injured plaintiff amongst various members in the distribution chain.

Courts have often found that companies like Amazon can be held responsible in strict product liability cases because they often exert pressure on the manufacturers to push the products down the line and into the hands of the consumer.

In Bolger v. Amazon, the court outlined the following findings necessary to hold Amazon accountable under the stream of commerce theory:

(1) the defendant received a direct financial benefit from its activities and from the sale of the product;
(2) the defendant’s role was integral to the business enterprise such that the defendant’s conduct was a necessary factor in bringing the product to the initial consumer market; and
(3) the defendant had control over, or a substantial ability to influence, the manufacturing or distribution process.

Both analyses are intertwined to a certain extent, and reflect the overall goal of holding all those down the chain of commerce responsible for placing the defective products into the hands of the consumer.

What steps should I take if I am injured by a product that has been recalled?

If you have been injured by a recalled product, here’s what you should do:

  • Seek medical attention as soon as possible. Not only is this important for your health and well-being, but it also ensures that your injuries are well-documented.
  • Create a file and compile every piece of documentation related to your injuries. These include photographs of the defective product, proof of purchase, photos of your injuries on the day of the incident and the weeks after, receipts of your medical expenses, including all your out-of-pocket incidentals, and any other documentation relevant to your case.
  • Write down everything that happened. Your memory may fade over time, so writing down everything related to the incident in question will ensure you don’t forget critical information that can help your case. Remember to include a timeline of events, beginning with when you bought the product, how often you used it, and the last time it was in operation before the incident.
  • Store the defective product, all its packaging, and the instruction manual it came with somewhere safe. You’ll need it as evidence in your lawsuit.
  • Speak to an experienced product liability attorney with a record of obtaining favorable settlements for his clients.

Do I need a lawyer if I am injured by a recalled product?

Yes, you do. Product liability cases involving recalled products sold or purchased on marketplaces like Amazon and eBay or traditional brick-and-mortar stores like Walmart and Home Depot can be complicated.

The manufacturer’s, distributor’s, or retailer’s attorneys will likely try to blame you by alleging that you were aware of the recall on the product and went ahead to use it anyway. Only an experienced product liability attorney can craft a winning strategy to help you recover the compensation you deserve.

How much compensation can I receive if a previously recalled product injures me?

There’s no standard figure for defective product settlements. The compensation you can recover will depend on several factors, including:

  • The severity of your injuries
  • The extent of present and future medical care you might need
  • The manufacturer’s, distributor’s, or retailer’s level of strict liability or negligence
  • The defendant’s insurance coverage (or lack thereof)
  • Medical expenses you have incurred
  • The extent to which your ability to earn an income has been impaired
  • The extent of your pain and suffering
  • The impact of your injuries on the quality of your life
  • The cost of retaining in-home support if you are permanently disabled and unable to perform day-to-day tasks

Compensation for these claims can range anywhere from a couple of thousand dollars to millions.

What kind of damages can I recover in a recalled product injury claim?

The damages you can ask for in your recalled product injury claim include, but are not limited to, the following:

  • Current and future medical expenses
  • Lost wages and benefits
  • Lost earning capacity
  • Pain and suffering
  • Punitive damages
  • Other economic and non-economic damages

How can I prove that I was hurt by a product that has been recalled?

On the one hand, you can pursue a recalled product injury case under the legal theory of strict liability. To prove cause, you would have to demonstrate that:

  1. There’s a relationship between the recalled product in question and the defendant;
  2. The previously recalled product had a defect;
  3. The defect rendered the product unreasonably dangerous for its intended use; and
  4. The defective product was the proximate cause of your injuries.

On the other hand, you can pursue a recalled product injury case under the legal theory of negligence. To prove cause, you would have to demonstrate that:

  1. The manufacturer, distributor, or retailer owed a duty of care to you;
  2. That duty was breached, making the recalled product dangerous for its intended use;
  3. You were injured as a result of that breach; and
  4. The recalled product was the proximate cause of your injury.

Do You Have A Question? Call Alan Sackrin Today For a Free Case Evaluation

As a Board-Certified Civil Trial Expert for over 40+ years, Alan Sackrin has extensive experience with product liability lawsuits. He offers a free initial consultation (over the phone or in-person) to answer your questions. When you’re ready to speak with an expert civil trial lawyer about your product liability case, call Alan at 945-458-8655.