Arlington, VA

By Personal Injury Attorney Cade Parian of The Parian Law Firm, LLC

When manufacturers sell products that are defective and people become injured or killed as a result, those manufacturers can be held liable.

This area of law is known as product liability, and it is a fairly simple concept. When manufacturers have recalled those defective products, however, the situation becomes much more complicated. If consumers are hurt, is it their fault for continuing to use a defective product? Or should manufacturers do more to ensure the safety of consumers? This is an issue that has recently been brought to light due to defective infant sleepers.

The Case of the Fisher-Price Rock ‘n Play

The Fisher-Price Rock ‘n Play is a baby product meant to gently rock infants to sleep. It is positioned on an incline and has soft padding and bedding intended to make children more comfortable. It also has restraints to hold children in place. Currently, the sleeper has been recalled due to over 30 infant deaths it has caused in the country.

It is a disturbing story. To add to it, many daycare centers around the country are still using the sleeper, putting more children at risk. According to a study conducted by the U.S. Public Interest Research Group and Kids in Danger, one in ten of the centers they surveyed still have the sleeper and use it on a regular basis.

Who is Liable?

The story sheds light on a legal issue many people face every day. If a product has been recalled but a consumer continues to use it and becomes hurt, who is liable? Is it the manufacturer for creating a defective product, or the consumer for using a product known to be unsafe? There is no definitive answer, unfortunately.

Recalls do not automatically make a manufacturer liable. That means, even though they have admitted that there is a defect in the product, consumers cannot rely on this alone to win their case. Consumers still must prove all elements of a product liability case, including that the defect caused their injuries. Evidence must also be brought forward that helps prove their case.

However, recalls also do not mean that manufacturers are automatically immune from liability. This is because simply issuing a public recall is not enough. Manufacturers must attempt to notify consumers directly to tell them of the defect and warn them to stop using the product.

It may sound like an impossibility for manufacturers to directly reach out to all customers and make them aware of the defect. However, it is not. If companies and manufacturers can collect our information to market to us and sell us more of their products, they can certainly use that information to warn consumers and tell them of any defect in their products that could cause harm.

This may be what courts around the country will find in the coming months and years as lawsuits are brought against Fisher-Price.

Lawsuits Involving Recalled Products

Lawsuits involving recalled products are complicated, and often have their own set of rules. For example, some courts will not allow evidence of the recall to be introduced during the case, for fear that it could bias a jury. However, that does not mean these cases are impossible to win. Several lawsuits have already been filed against Fisher-Price for their dangerous rockers, including two class-actions that were filed in April of 2019.

Anyone wishing to file a lawsuit should always speak with a product liability attorney first. This becomes even more important when the product has been recalled. Manufacturers are likely to argue that they recalled the product and so, they are not liable if a consumer continues to use it. An attorney will refute these points to show that a recall is not enough. This is often a very successful strategy when manufacturers did not take extra steps to contact consumers directly.

Of course, these lawsuits can sadly never bring back the children that have died from sleeping in Fisher-Price’s product. However, they can help get the products off the shelves and out of daycare centers by shining an even brighter light on the dangers associated with the product. Clearly, recalls alone are sadly often not enough.

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