The Non-Existent Tort of “Failure To Recall”

It looks like as soon as each couple of weeks, we see a narrative about some plaintiff (equivalent to this one) suing, or threatening to sue, a defendant product producer over some product that, in response to the plaintiff, “the corporate ought to have recalled sooner.”

That’s rubbish.

There isn’t any such declare.  Rather failure-to-recall theories are among the many most generally debunked purported “torts” ever.  Today we current Part I of a two-part collection on simply why that’s.  This publish seems to be at state regulation.

The frequent regulation doesn’t impose any responsibility on a producer of any sort of merchandise to recall its merchandise within the absence of a authorities order to take action.  The regulation doesn’t require a defendant  to take away a product from the market totally, or else face common legal responsibility merely for promoting that product.  The Third Restatement of Torts addresses recall-related legal responsibility, and for as soon as it precisely restates the regulation.

Restatement (Third) of Torts, Products Liability §11 (1998) comprehensively reviewed the regulation and decided that recall-based legal responsibility has by no means been acknowledged exterior of two restricted conditions:  (1) noncompliance following a authorities ordered recall, or (2) negligently conducting a recall that the defendant voluntarily undertook:

One engaged within the enterprise of promoting or in any other case distributing merchandise is topic to legal responsibility for hurt to individuals or property brought on by the vendor’s failure to recall a product after the time of sale or distribution if:

(a)(1) a governmental directive issued pursuant to a statute or administrative regulation particularly requires the vendor or distributor to recall the product; or

(a)(2) the vendor or distributor, within the absence of a recall requirement below Subsection (a)(1), undertakes to recall the product; and

(b) the vendor or distributor fails to behave as an affordable particular person in recalling the product.

Restatement Third §11 (emphasis added).

Thus, the Third Restatement’s black letter regulation rejects any purported common-law obligation both to recall a product within the absence of any governmental order, or for the anticipatory removing of merchandise from the market sooner than any governmental recall required.  Sound causes assist these constraints.  An limitless responsibility to recall would impose “vital burdens” on commerce:

Duties to recall merchandise impose vital burdens on producers.  Many product traces are periodically redesigned in order that they develop into safer over time.  If each enchancment in product security had been to set off a common-law responsibility to recall, producers would face incalculable prices each time they sought to make their product traces higher and safer.

Restatement Third §11, remark a.  Further, choices about whether or not the general public as an entire must be disadvantaged of entry to in any other case authorized merchandise shouldn’t be the province of judges and juries in common-law tort litigation:

[A]n involuntary responsibility to recall must be imposed on the vendor solely by a governmental directive issued pursuant to statute or regulation.  Issues regarding product remembers are finest evaluated by governmental businesses succesful of gathering ample information concerning the ramifications of such undertakings.

Id.

For comparable causes, in state after state, in each common-law and statutory product-liability regimes, and whether or not the state in any other case follows the Second or Third Restatement, courts have refused to increase legal responsibility by together with claims that authorized merchandise mustn’t have been bought, however moderately ought to have been recalled.

For occasion, in California, the place strict legal responsibility was invented, no responsibility to recall an FDA-regulated product (an over-the-counter medication) exists except the FDA has determined to authorize such motion:

We conclude … as a matter of regulation, that defendant will not be held answerable for failing to withdraw its product from the market….  Just a few scientific research had proven [the risk plaintiffs allege] however … the FDA had decided that additional research had been wanted to substantiate or disprove the affiliation.  Pending completion of these research, the FDA concluded that product warnings had been an ample public security measure.  Although the FDA’s conclusion is just not binding on us, we expect it deserves critical consideration.

Ramirez v. Plough, Inc., 863 P.second 167, 177-78 (Cal. 1993) (citations omitted) (emphasis added).  Even if there have been “a court docket judgment or administrative order for the removing of [a] drug from the market, … it could apply just for the time-frame after the judgment or order.”  In re Ranitidine Cases, 2024 WL 2115449, at *16 (Cal. Super. April 23, 2024).

The New York Court of Appeals equally rejected a purported “post-sale responsibility to recall or retrofit a product” in Adams v. Genie Industries, Inc., 929 N.E.second 380, 385 (N.Y. 2010).  Adams concerned a raise truck, moderately than an FDA-regulated product.  The court docket discovered “no justification for creating” an obligation to recall, since – once more as right here – “plaintiff merely asserted that [defendant] ought to have recalled or retrofitted the [product] for a similar causes that it mustn’t have bought it within the first place[.]”  Id. at 386.  Like Adams, most of the circumstances rejecting failure-to-recall claims don’t contain FDA-regulated merchandise.

Likewise, Illinois regulation rejects each post-sale warning and recall duties.  Jablonski v. Ford Motor Co., 955 N.E.second 1138, 1160 (Ill. 2011).  As to remembers, particularly:

An obligation could also be imposed upon a producer by a statute or administrative regulation which mandates the recall of the product….  However, within the absence of such an obligation, or a voluntary enterprise, Illinois has not imposed such an obligation on a producer[.]

Id. at 1160 n.1 (citing Third Restatement §11).  Jablonski additionally approvingly cited Modelski v. Navistar International Transportation Corp., 707 N.E.second 239 (Ill. App. 1999), which held:

The penalties of imposing upon producers an extrastatutory responsibility to recall … could be the equal of mandating that producers insure that their merchandise will all the time adjust to present security requirements.  This we’re unwilling to do.

Id. at 247.

California, New York, and Illinois are hardly outliers.  “[V]irtually each court docket that has confronted the problem head-on has reached the identical conclusion”:  “‘that it’s pointless and unwise to impose or introduce an extra responsibility to retrofit or recall a product’ separate and other than these duties to which producers are already topic.”  Tabieros v. Clark Equipment Co., 944 P.second 1279, 1298 (Haw. 1997).  Tabieros quoted Gregory v. Cincinnati, Inc., 538 N.W.second 325, 333-34 (Mich. 1995), thus including two extra state supreme courts to the checklist of recall-based tort deniers,  since Gregory “didn’t acknowledge any idea that might impose a postmanufacture responsibility to … recall a product.”  Klein v. Caterpillar, Inc., 2023 WL 4760707, at *5 (E.D. Mich. July 26, 2023), aff’d, 2024 WL 1574672 (sixth Cir. April 11, 2024).  That’s hardly all.

The Kentucky Supreme Court reached the identical conclusion, rejecting legal responsibility “by judicial fiat” for alleged failure to recall merchandise in Ostendorf v. Clark Equipment Co., 122 S.W.3d 530, 534 (Ky. 2003).  Product remembers “are correctly the province of administrative businesses, because the federal statutes that expressly delegate recall authority to numerous businesses recommend,” and courts mustn’t “arrogate to themselves an influence equal to that of requiring product recall.”  Id.

As Congress has acknowledged, administrative businesses have the institutional assets to make absolutely knowledgeable assessments of the marginal advantages of recalling a selected product.

Id. at 434-35 (quotation and citation marks omitted).

The Kansas Supreme Court agrees:

[P]roduct remembers are correctly the enterprise of administrative businesses as prompt by the federal statutes that expressly delegate recall authority….  The choice to increase a producer’s publish sale responsibility past implementing cheap efforts to warn … must be left to administrative businesses and the legislature.  These establishments are higher capable of weigh the advantages and prices concerned in finding, recalling, and retrofitting merchandise.

Patton v. Hutchinson Wil-Rich Manufacturing Co., 861 P.second 1299, 1315-16 (Kan. 1993).  Patton quoted V. Schwartz, “The Post–Sale Duty to Warn:  Two Unfortunate Forks within the Road to a Reasonable Doctrine,” 58 N.Y.U.L. Rev. 892, 901 (1983).  Accord Loredo v. Solvay America, Inc., 212 P.3d 614, 632 (Wyo. 2009) (quoting and following Ostendorf); Lovick v. Wil-Rich, 588 N.W.second 688, 696 (Iowa 1999) (affirming {that a} producer “ha[s] no responsibility to recall or retrofit” a product).

Other states’ intermediate appellate courts have additionally held that failure-to-recall claims would create extreme and unmanageable legal responsibility.  The most thorough dialogue is in Ford Motor Co. v. Reese, 684 S.E.second 279 (Ga. App. 2009), cert denied (Ga. Feb. 8, 2010).  Reese adopted Restatement Third §11 and rejected failure-to-recall claims absent a government-mandated or negligently undertaken voluntary product recall.  Id. at 284-85.  “Georgia frequent regulation doesn’t impose a unbroken responsibility upon producers to recall their merchandise.”  Id. at 285.  Reese additionally invoked “vital public coverage issues” that assist leaving recall choices to administrative businesses.  Id.

Because the price of finding, recalling, and changing mass-marketed merchandise may be monumental and can doubtless be handed on to customers within the type of increased costs, the recall energy shouldn’t be exercised with out in depth consideration of its financial impression.

Id. (quotation and citation marks omitted).  Cf. Ontario Sewing Machine Co. v. Smith, 572 S.E.second 533, 535 (Ga. 2002) (“disapprov[ing]” of choice that had allowed a failure-to-recall declare, however not reaching subject).

Other intermediate appellate choices to the identical impact are: Lance v. Wyeth, 4 A.3d 160, 167 (Pa. Super. 2010) (“this Court is persuaded by the bulk of trendy jurisdictions which have determined to not impose a standard regulation responsibility to recall on a producer”) (citations omitted) (prescription drug case), aff’d partly & rev’d partly on different grounds, 85 A.3d 434 (Pa. 2014).  Bragg v. Hi-Ranger, Inc., 462 S.E.second 321, 331 (S.C. App. 1995) (following the “regulation adopted by a majority of jurisdictions regarding a producer’s responsibility to recall or retrofit its merchandise”); Morrison v. Kubota Tractor Corp., 891 S.W.second 422, 429 (Mo. App. 1994) (discovering “no such responsibility absent a state or federal regulation mandating a recall of the product”), switch denied (Mo. Feb. 12, 1995); Lynch v. McStome & Lincoln Plaza Associates, 548 A.second 1276, 1281 (Pa. Super. 1988) (discovering no “precedent that imposes such a broad responsibility on a producer, nor do we expect that the imposition of such an obligation could be acceptable”).

Literally scores of federal courts have made state-law predictions that reject failure-to-recall claims below the legal guidelines of many different states.  The sheer vary of merchandise in opposition to which recall claims have been asserted demonstrates how radical a authorized change recall-based legal responsibility would entail, had been it to be accepted.

• Alabama: Wilhite v. Medtronic, Inc., 2024 WL 968867, at *6 (N.D. Ala. March 6, 2024) (“no responsibility to recall below Alabama regulation”) (medical system); Harman v. Taurus International Manufacturing, Inc., 661 F. Supp.3d 1123, 1133 (M.D. Ala. 2023) (“no such responsibility exists below Alabama regulation” to “proactively recall[]” a product) (firearm); Harris v. Raymond Corp., 2018 WL 6725329, at *9 (N.D. Ala. Dec. 21, 2018) (“there isn’t any responsibility to recall”) (pallet jack).
• Alaska:  Nelson v. Original Smith & Wesson Business Entities, 2010 WL 7125186, at *3-4 (D. Alaska May 18, 2010) (following “the load of jurisdictions which have beforehand decided that failure to recall … is just not a sound trigger of motion”), aff’d, 449 F. Appx. 581, 584 (ninth Cir. 2011) (firearm).  Cf. Jones v. Bowie Industries, Inc., 282 P.3d 316, 335 n.70 (Alaska 2012) (clarifying that recognizing a post-sale responsibility to warn doesn’t embody any responsibility to recall) (mulching machine).
• Colorado:  Perau v. Barnett Outdoors, LLC, 2019 WL 2145467, at *2-3 (M.D. Fla. May 15, 2019) (excluding all failure-to-recall proof) (crossbow) (making use of Colorado regulation).
• Delaware:  Smith v. Daimlerchrysler Corp., 2002 WL 31814534, at *6 (Del. Super. Nov. 20, 2002) (“There can also be no responsibility below Delaware regulation to recall faulty [products]”) (vehicle).  Yes, this can be a state trial court docket choice, however we didn’t have any higher place to place it.
• Florida:  Howey v. Pirelli Tire, LLC, 2017 WL 10978505, at *2 (S.D. Fla. Oct. 31, 2017) (following Wright) (tire); Wright v. Howmedica Osteonics Corp., 2017 WL 4555901, at *4 (M.D. Fla. Oct. 12, 2017) (“discover[ing] no Florida case recognizing a trigger of motion for breach of the responsibility to recall”) (medical system), aff’d, 741 F. Appx. 624 (eleventh Cir. 2018); Thomas v. Bombardier Recreational Products, Inc., 682 F. Supp.second 1297, 1302 (M.D. Fla. 2010) (“Florida regulation doesn’t acknowledge {that a} producer has a post-sale responsibility to recall or retrofit a product”) (private watercraft).
• Georgia:  Clayton v. Alliance Outdoor Group, Inc., 2021 WL 1947886, at *2 (M.D. Ga. March 30, 2021) (“Georgia regulation usually doesn’t acknowledge a trigger of motion based mostly upon a producer’s failure to recall a product”) (tree stand); Williamson v. Walmart Stores, Inc., 2015 WL 1565474, at *6 (M.D. Ga. April 8, 2015) (quoting and following Reese, supra) (fuel container); Yarbrough v. Actavis Totowa, LLC, 2010 WL 3604674, at *4 (S.D. Ga. Sept. 13, 2010) (“product sellers will not be required to subject remembers for faulty merchandise”) (pre-Reese) (prescription drug).
• Indiana:  Timm v. Goodyear Dunlop Tires North America Ltd., 309 F. Supp.3d 595, 602 (N.D. Ind. 2018) (discovering no “assist” for a “declare of negligent recall”) (tire); Cincinnati Insurance Companies. v. Hamilton Beach/Proctor-Silex, Inc., 2006 WL 299064, at *3 (N.D. Ind. Feb. 7, 2006) (“no Indiana state regulation circumstances point out the existence of a separate negligent recall trigger of motion”) (citations omitted) (toaster); Tober v. Graco Children’s Products, Inc., 2004 WL 1987239, at *9 (S.D. Ind. July 28, 2004) (rejecting “the existence of a separate ‘negligent recall’ trigger of motion”), aff’d, 431 F.3d 572 (seventh Cir. 2005) (child swing).
• Iowa:  Burke v. Deere & Co., 6 F.3d 497, 510 (eighth Cir. 1993) (“we discover no unbiased responsibility to retrofit or recall below Iowa regulation”) (mix); Doe v. Baxter Healthcare Corp., 2003 WL 27384538, at *5 (S.D. Iowa June 3, 2003) (“no court docket deciphering Iowa regulation has acknowledged an obligation to recall”), aff’d, 380 F.3d 399 (eighth Cir. 2004) (blood product).
• Louisiana:  Weams v. FCA US L.L.C., 2019 WL 960159, at *23 (M.D. La. Feb. 27, 2019) (“failure to recall is just not a idea of legal responsibility below the” unique Louisiana product-liability statute) (vehicle).
• Massachusetts:  Ahern v. Sig Sauer, Inc., 2021 WL 5811795, at *4 (D. Mass. Dec. 7, 2021) (plaintiff “cites no authorized responsibility to impose a compulsory recall”) (firearm); National Women’s Health Network, Inc. v. A.H. Robins Co., 545 F. Supp. 1177, 1181 (D. Mass. 1982) (“[n]o court docket has ever ordered a notification and recall marketing campaign on the premise of state regulation”) (contraceptive system).
• Minnesota:  Kladivo v. Sportsstuff, Inc., 2008 WL 4933951, at *5 (D. Minn. Sept. 2, 2008) (“Minnesota courts haven’t acknowledged a trigger of motion for negligent recall”) (inflatable swimming tube); Hammes v. Yamaha Motor Corp., 2006 WL 1195907, at *11 (D. Minn. May 4, 2006) (“this Court declines to impose a separate responsibility to recall”) (motorbike); Berczyk v. Emerson Tool Co., 291 F. Supp.second 1004, 1016 (D. Minn. 2003) (quoting McDaniel) (energy noticed); McDaniel v. Bieffe USA, Inc., 35 F. Supp.second 735, 743 (D. Minn. 1999) (“Minnesota would refuse to impose an obligation on producers to recall and/or retrofit a faulty product as a result of the overwhelming majority of different jurisdictions have rejected such an obligation”) (motorbike helmet).
• Mississippi:  Goodwin v. Premier Ford Lincoln Mercury, Inc., 2020 WL 3621317, at *4 n.2 (N.D. Miss. July 2, 2020) (“there isn’t any post-sale responsibility to warn or recall in Mississippi”) (vehicle); Clark v. General Motors, 2016 WL 3574408, at *7 (S.D. Miss. June 23, 2016) (similar) (vehicle); Murray v. General Motors, 2011 WL 52559, at *2 (S.D. Miss. Jan. 7, 2011) (plaintiffs “can not present that [defendant] breached its responsibility by not recalling their car”), aff’d, 478 F. Appx. 175 (fifth Cir. 2012) (vehicle).
• Missouri:  Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 774 (eighth Cir. 1998) (discovering “no indication … that the Missouri Supreme Court would create a standard regulation responsibility to recall below these circumstances”) (energy noticed); Smith v. Firestone Tire & Rubber Co., 755 F.second 129, 135 (eighth Cir. 1985) (“Since no responsibility to recall was established, a basic prerequisite to establishing negligence was absent”) (tire); Haskell v. PACCAR, Inc., 2021 WL 5407853, at *3 (W.D. Mo. Nov. 18, 2021) (“There isn’t any frequent regulation responsibility to recall below Missouri regulation absent a mandated recall by a governmental company.”) (citations omitted) (business truck); Hackethal v. Harbor Freight Tools USA, Inc., 2016 WL 695615, at *1 (E.D. Mo. Feb. 22, 2016) (“[t]right here isn’t any responsibility below Missouri regulation to recall”) (blow gun); Ardito v. ITW Food Equipment Group, LLC, 2016 WL 10677591, at *7 (W.D. Mo. Feb. 8, 2016) (“there isn’t any basic responsibility to recall”) (business mixer); Simon v. Select Comfort Retail Corp., 2014 WL 5849243, at *4 (E.D. Mo. Nov. 12, 2014) (“there isn’t any frequent regulation responsibility to recall below … Missouri regulation”) (mattress); Dejana v. Marine Technology, Inc., 2013 WL 6768407, at *3 (E.D. Mo. Dec. 20, 2013) (similar as Haskell) (boat); Stanger v. Smith & Nephew, Inc., 401 F. Supp.second 974, 982 (E.D. Mo. 2005) (“below Missouri regulation, there isn’t any trigger of motion for negligent recall”) (medical system); Efting v. Tokai Corp., 75 F. Supp.second 1006, 1010-11 (W.D. Mo. 1999) (“no responsibility in Missouri to recall”) (lighter).
• Nebraska:  Anderson v. Nissan Motor Co., 139 F.3d 599, 602 (eighth Cir. 1999) (“limiting [Nebraska] merchandise legal responsibility regulation to actions or omissions which happen on the time of manufacture or sale”) (forklift); Dubas v. Clark Equipment Co., 532 F. Supp.3d 819, 830 (D. Neb. 2021) (“claims asserting post-sale duties to … recall … are dismissed”) (forklift).
• New Hampshire:  Bartlett v. Mutual Pharmaceutical Co., 2010 WL 3659789, at *10 (D.N.H. Sept. 14, 2010) (“‘virtually all of the opinions which have addressed the problem have discovered that there isn’t any frequent regulation responsibility to recall’ merchandise from the market, even when they’re unreasonably harmful”) (quoting 5 L. Frumer & M. Friedman, Products Liability, §57.01[4], at 57–9 (2010)) (generic prescription drug)
• New Jersey:  Leslie v. United States, 986 F. Supp. 900, 913 (D.N.J. 1997) (“no authority … requires producers of legally distributed [products] to make sure instantaneous removing of their merchandise”) (ammunition), aff’d mem., 178 F.3d 1279 (3d Cir. 1999).
• New Mexico:  Morales v. E.D. Etnyre & Co., 382 F. Supp.second 1285, 1287 (D.N.M. 2005) (rejecting a “responsibility to retro-fit or recall”; following Third Restatement §11) (highway paving machine).
• North Dakota:  Eberts v. Kawasaki Motors Corp., 2004 WL 224683, at *2-3 (D.N.D. Feb. 2, 2004) (following Third Restatement §11 and “the overwhelming majority of different jurisdictions [that] have refused to impose an obligation on producers to recall … a faulty product”) (ATV).
• Ohio:  Kondash v. Kia Motors America, Inc., 2016 WL 11246421, at *14 (S.D. Ohio June 24, 2016) (given the load of opposite precedent, “[t]he Court can not conclude that Ohio regulation acknowledges an obligation in negligence to recall”) (vehicle).
• Pennsylvania:  McKnight v. Amazon.Com Inc., 2024 WL 2156223, at *6 (E.D. Pa. May 14, 2024) (quoting Liebig) (OTC drug); Liebig v. MTD Products, Inc., ___ F. Supp.3d ___, 2023 WL 5517557, at *4 n.6 (E.D. Pa. Aug. 25, 2023) (“Pennsylvania regulation doesn’t acknowledge an obligation to recall or retrofit merchandise”) (snow blower); Bradley v. Amazon.com, Inc., 2023 WL 4494149, at *5 (Mag. E.D. Pa. July 12, 2023) (quoting and following Boyer) (cellphone charger), certif. denied, 2023 WL 7196427 (Mag. E.D. Pa. Sept. 20, 2023); Cleaver v. Honeywell International, LLC, 2022 WL 2442804, at *4 (E.D. Pa. March 31, 2022) (“Under Pennsylvania regulation, producers and distributors don’t have an obligation to recall or retrofit merchandise.”) (vacuum truck); Talarico v. Skyjack, Inc., 191 F. Supp.3d 394, 401 (M.D. Pa. 2016) (no “unbiased negligence trigger of motion exists in Pennsylvania below an obligation to recall”) (forklift); Padilla v. Black & Decker Corp., 2005 WL 697479, at *7 (E.D. Pa. March 24, 2005) (Pennsylvania regulation “doesn’t, nevertheless, lengthen to the responsibility to recall”) (miter noticed); Boyer v. Case Corp., 1998 WL 205695, *2 (E.D. Pa. Aug. 28, 1998) (“Pennsylvania doesn’t acknowledge an obligation to recall”) (industrial gear).
• South Carolina:  Andrews v. CBS Corp., 2015 WL 12831309, at *1 (D.S.C. June 24, 2015) (“there’s no-post sale responsibility to recall or retrofit merchandise”; citing and following Bragg, supra) (asbestos containing merchandise).
• South Dakota:  Robinson v. Brandtjen & Kluge, Inc., 2006 WL 2796252, at *8 (D.S.D. Sept. 27, 2006) (“[n]othing … signifies that South Dakota permits a declare based mostly on a producer’s responsibility to recall”; citing Restatement Third §11), aff’d, 500 F.3d 691 (eighth Cir. 2007) (printing press).
• Tennessee:  Spence v. Miles Laboratories, Inc., 810 F. Supp. 952, 959 (E.D. Tenn. 1992) (product-liability statute didn’t “require producers and suppliers of [their] merchandise to recall and check a product already available on the market”) (blood product).
• Texas:  Syrie v. Knoll International, 748 F.second 304, 311-12 (fifth Cir. 1984) (“Texas doesn’t impose on producers the responsibility … to recall merchandise”) (stool); Gomez v. ALN International, Inc., 2021 WL 3774221, at *8 (S.D. Tex. March 24, 2021) (“there isn’t any basic, post-sale, responsibility to retrofit or recall below Texas regulation”) (medical system); Nester v. Textron, Inc., 2015 WL 9413891, at *13 (W.D. Tex. Dec. 22, 2015) (Texas rejects failure-to-recall claims previous to any precise recall) (utility car); Hernandez v. Ford Motor Co., 2005 WL 1574474, at *1 (S.D. Tex. June 28, 2005) (“Texas regulation usually doesn’t acknowledge a standard regulation post-sale responsibility … to recall faulty merchandise”) (vehicle); Flock v. Scripto-Tokai Corp., 2001 WL 34111725, at *8-9 (S.D. Tex. Sep. 11, 2001) (following Restatement Third §11) (cigarette lighter).
• Utah:  Marcovecchio v. Wright Medical Group, Inc., 2019 WL 1406606, at *7 (D. Utah March 28, 2019) (“Plaintiff has alleged solely that [defendant] did not recall the product, which is inadequate to state a declare”; following Restatement Third §11) (medical system); Dowdy v. Coleman Co., 2011 WL 6151432, at *3 (D. Utah Dec. 12, 2011) (“declin[ing] to acknowledge a post-sale responsibility to recall or retrofit”; citing Restatement Third §11) (propane heater).
• Virginia:  Boyer v. Abbott Vascular Inc., 2023 WL 4269764, at *2 (N.D. Cal. June 29, 2023) (predicting that Virginia would observe Restatement §11 and dismissing recall declare; quoting Powell, supra) (catheter) (making use of Virginia regulation); Putman v. Savage Arms, Inc., 2019 WL 1007527, at *9 (W.D. Va. March 1, 2019) (“no such responsibility to recall is acknowledged below Virginia regulation”) firearm); In re General Motors LLC Ignition Switch Litigation, 202 F. Supp.3d 362, 371-72 (S.D.N.Y. 2016) (similar) (vehicle) (making use of Virginia regulation); Powell v. Diehl Woodworking Machinery, Inc., 198 F. Supp.3d 628, 634 (E.D. Va. 2016) (“Virginia regulation doesn’t acknowledge an obligation to recall”) (ripsaw); Paschall v. CBS Corp., 2011 WL 4345283, at *4 n.2 (E.D. Va. Sept. 15, 2011) (“an obligation to recall [is] not acknowledged below Virginia regulation”) (asbestos merchandise).
• Washington:  Bear v. Ford Motor Co., 2007 WL 870344, at *3 (E.D. Wash. March 20, 2007) (failure-to-recall declare doesn’t exist as a result of “the problem of recall is just not addressed within the Washington Products Liability Act”) (vehicle).
• Wisconsin:  Carlson v. Triton Industries, Inc., 605 F. Supp.3d 1124, 1138 (W.D. Wis. 2022) (rejecting “failure to recall” idea as “far more drastic” than something Wisconsin regulation has permitted) (boat).

That’s not even the whole lot.  Where we have now state excessive court docket authority, we haven’t appeared for choices by different courts certain by such precedent.  Nor have we included any associated “responsibility to retrofit” circumstances.  For extra precedent, see our prior recall-related posts right here and right here.

It is sort of clear to us that the  overwhelming weight of precedent nationwide rejects failure-to-recall claims besides within the restricted circumstances talked about in Restatement Third §11.  That a recall occurred later, or was “voluntary,” doesn’t matter.  Recall-based claims go far past peculiar negligence and strict-liability theories.  They usurp govt and legislative powers to control the general public’s entry to lawful merchandise.  Moreover, even when a failure-to-recall declare did exist in opposition to an FDA-regulated product, it could be preempted – which would be the topic of our forthcoming Part II (trace, see our New Hampshire regulation quotation), above).