Injured by Product that was Recalled

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a person who contacted us online who was using a food product recalled by the manufacturer. The product was regulated by the FDA. The user became ill after using the product. The recall was due to unsanitary conditions at the factory. He wanted to know his legal options.

Generally, consumer recalls are a great feature of our modern consumer society. Consumer recalls often are prompted by regulatory agencies or by sellers wanting to stay ahead of litigation. Yes, a recall may also be prompted by the notion of doing the right thing.

Most everybody is familiar with automobile recalls. These are straightforward because the car maker knows that a specific item on your vehicle associated with your VIN number is defective and needs to be replaced. The recall is specifically tailored to you since the manufacturer knows if you have a bad tire on your car or a defect in your gas tank which may lead to an explosion. These are specific recalls.

Generalized product recalls are different.

When the product you use is part of a generalized recall, the manufacturer has no idea who is using the recalled product.

Suppose a manufacturer sells 200 cases of jarred pickled beets. You buy one of those jars of pickled beets. But of the 200 cases sold, the manufacturer issued a recall on 10 cases of pickled beets based on serial numbers printed on product labels.

This type of recall is a generalized recall. The seller makes an announcement hoping to reach everybody who purchased their pickled beets.

Suppose you took your jar on a camping trip where there is no wi-fi in the wilderness, and you have no idea you should throw your jar of beets out because they’re contaminated.

But, even if you receive the notice, it could be that you already consumed the beets.

Let’s further complicate things. Out of the 200 cases of product sold, only 5% were actually thought to be contaminated. Still, to be safe, the seller recalled 20% of the product (much more than the batch known to be spoiled).

Do you see where I’m going with this? If you sue, you will have the burden of proof to establish that you ended up with the contaminated product and that the product harmed you.

What if you ate the product and didn’t get sick, but the danger posed by the contamination is near inevitable development of cancer 10 years after eating it.

How do you prove that you’ve been harmed? If you no longer have the jar, how do you even prove that the jar of pickled beets you consumed was contaminated in any way?

Consumer food product recalls, especially if the contamination is not widespread, can be very challenging if you sue.

You’re going to have to prove that you got a contaminated item. You’re going to have to prove that you got sick or injured somehow. Your doctors are going to have to explain how you were injured by the allegedly contaminated product. This can be very difficult if you have no product to test to see if the actual jar you ate from was contaminated.

When you sue, you can bet that the defendant company will raise all types of defenses against you. They’ll talk to your family members who consumed food from the same jar and find out if they got sick. They’ll argue that you have no proof that the jar you purchased was contaminated even if it has the correct serial number because the recalled group included many jars likely to have been just fine.

So you see, pursuing a claim based on an injury resulting from a general product recall may be relatively easy or extremely difficult, depending on the situation.

We can’t count the times a caller has no product receipt, or they destroyed the product container or went to the hospital but did not get tested to prove what contaminant was making them sick.

While a manufacturer can be held strictly liable for harm caused by a product that has been recalled, the person who sues and their attorney still have work to do to prove a case.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, a product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com.