News of a product recall often motivates potential plaintiffs to a search for a lawyer. But the truth is a product recall is an act of responsibility and should not be used to penalize a manufacturer in court.
More than one hundred years ago, the United States Supreme Court established that evidence of subsequent remedial measures was “incompetent” and inadmissible on multiple grounds. The Supreme Court held:
[T]he taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant.
Columbia & P. S. R. Co. v. Hawthorne, 144 U.S. 202, 207 (1892). Federal Rule of Evidence 407 is the codification of the principal that subsequent remedial measures should be excluded when offered to prove a product defect. The commentary to the rule states that “the more impressive [ ] ground for exclusion rests on a social policy of encouraging people to take . . . steps in furtherance of added safety.” Advisory Committee’s Note to Rule 407.
In Rutledge v. Harley-Davidson Motor Co., 364 F. App’x 103 (5th Cir. 2010), the Fifth Circuit affirmed an exclusion of a product recall pursuant to Fed. R. Evid. 407. The plaintiff in Rutledge alleged she was injured when her motorcycle malfunctioned due to an allegedly defective steering mechanism. Id. at 104. Shortly after the accident, Harley Davidson issued two recall notices advising that the voltage regulator could contact the motorcycles front fender and affect the ability to steer. Id. The Fifth Circuit stated that “[i]f Rutledge had received the notices before the accident and taken the motorcycle to the dealership for repair, it might have made her injury less likely to occur. Therefore, the district court correctly identified the recall notices as subsequent remedial measures under Rule 407.” Id. at 106 (emphasis added).
Other product liability cases have also properly excluded product recalls as subsequent remedial measures under Rule 407. See, e.g., Mildemont, Inc. v. Ford Motor Co., No. 1:15-CV204-HSO-JCG, 2017 WL 151400, at *5 (S.D. Miss. Jan. 13, 2017) (finding recall notices constitute “subsequent remedial measures” under 407 and cannot be construed to be an admission); Cothern v. Baxter Healthcare Corp., 798 F. Supp. 2d 779, 783 (S.D. Miss. 2011) (even if the Court were to assume “arguendo, the recall notices [do] constitute admissible evidence, they themselves do not demonstrate the product in question was defective”). Courts in other jurisdictions have similarly held that recall notices are inadmissible subsequent remedial measures. See, e.g., Hughes v. Stryker Sales Corp., 2010 WL 1961051, at *4 (S.D. Ala. May 13, 2010) (“The Recall Letter was dated four months after Hughes received her prosthetic hip, and plaintiff relies on it for the sole purpose of showing a product defect, not for any permitted purpose enumerated in Rule 407.”).
The Fourth Circuit in Chase v. General Motors Corp., 856 F. 2d 17, 21 (4th Cir. 1988), reversed a $2,000,000 plaintiff verdict in a product liability lawsuit because evidence of a product recall was admitted. In Chase, the plaintiffs purchased a 1980 model Citation in April 1980. Id. at 20. In July 1980 GM changed the design of the brakes on the Citation. Id. The plaintiffs’ accident was in January 1982. Id. As a result of customer complaints of rear brake lock involving Citations made before July 1980, GM conducted a product recall in February 1983 of all Citations manufactured before July 1980 to incorporate the July 1980 design change to all previous models. Id. at 20-21.
The trial court in Chase excluded the recall notice but allowed testimony during trial of the fact of the product recall. Id. at 21. The jury returned a verdict for the Plaintiffs for over $2,000,000. Id. at 18. On appeal, the Fourth Circuit noted that the plaintiffs’ attorney used the fact of the product recall “powerfully” in closing arguments by arguing the recall was, “confirmation that this was a bad, dangerous, defective design by GM . . . .” Id. at 21. The Fourth Circuit overturned the verdict and remanded the case for a new trial after finding “evidence of the fact of recall was improperly admitted under Rule 407 . . . [t]his is not a new principle and has been the rule in the courts of the United States at least since 1892 . . .” Id. (citation omitted).
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