INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

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GM, Depuy, Stryker and Other Product Recalls: Evidence or Not?

GM recently recalled over a million of its Chevrolet Cobalt and HHR, Pontiac G5 and Solstice, and Saturn Ion Sky models. Other recent examples are the defective DePuy and Stryker hip replacements, Graco toddler and booster seat restraints, and 8.7 million pounds of Rancho beef.

When a consumer is injured or killed by a product that is subject to a recall, fairness and logic would dictate that a jury asked to decide the consumer’s suit against the manufacturer be told about the recall. However reasonable this might seem, it is not the rule in some courts. Manufacturers when sued for a product-caused injury do everything possible to try to keep the jury from hearing about the recall.

Massachusetts state courts have long followed the rule that a jury can be told of a product recall where the consumer, “…has independently proved, by expert or other testimony, that the defect that was the subject matter of the recall existed in his vehicle at the time of the accident….” Once allowed into evidence, the recall becomes part of the proof of the manufacturer’s liability. The landmark case of Carey v. General Motors Corp, setting the law in Massachusetts regarding evidence of recalls, was successfully handled at trial and on appeals by SUGARMAN attorneys.

The rule is completely different in the Federal Courts – even those located in Massachusetts. The Federal Rules of Evidence which govern Federal Court trials state: “…[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction….” Recalls are generally considered subject to this rule as “subsequent remedial measures”. Although there are some exceptions to this rule, the reality is that juries rarely hear about product recalls in Federal Court trials.

The theory behind the Federal Rule keeping recall evidence from the jury is that allowing the evidence would discourage manufacturers from recalling their products. Recent studies have found that recalls, as important as they are to consumer safety, have a dismal record of locating and taking out of use the recalled products. Federal Courts allow the jury to hear about a recall if it occurs before the product causes injury but not if the recall occurs after the product injures a consumer.

Does this rule, when combined with the cost and embarrassment of recalling a product, exert pressure on a manufacturer to delay a recall as long as possible? Doing so assures that virtually all the injuries that the product can cause will have occurred before the recall date for the product. The Federal Court juries in all the injury or death cases caused by the product would never hear of the recall, giving the manufacturer a better chance of winning in court. In this perverse way, the rule intended to encourage recalls may, in fact, delay them and as a consequence further endanger consumer and public safety.

Thus, where a case involving a recalled product is tried can have a big effect on whether the jury hears of the recall which, in turn, can affect their decision of the case. SUGARMAN has a team of dedicated personal product liability attorneys representing those injured by defective products, including products subject to a recall. If you have been hurt by a product defect and wish to speak to one of our attorneys regarding liability, please fill out a Contact Form, call us at (617) 542-1000 or e-mail