The Importance Of The FDA In Initiating Recalls

Products Liability Lawyer

In America, the word and warnings of the FDA is considered the highest expert opinion on food and drug products. As such, the courts heed their word and FDA reports are commonly used as a basis to strengthen a defective product personal injury claim. Products that are deemed unsafe or not fit for consumption are quickly recalled by their respective companies to reduce liability. Although, as a products liability lawyer from Eric Roy Law Firm can explain, some are holdout companies that either don’t believe the FDA research is sound or just stand to lose money because the FDA is speaking ill about a best selling product.

There may be a great many companies losing money due to the FDA’s latest sweeping designation against inflatable neck floats. Neck floats “as therapy interventions” are especially hazardous for babies with developmental delays; birth defects or genetic disorders, such as cerebral palsy; Down syndrome; spina bifida; or spinal muscular atrophy (SMA) type 1, according to the agency. While death from neck floats is rare there has been a case in which a baby that had been placed in a neck float had died. The FDA is convinced that several other cases  of this instance have yet to be reported.

“The FDA came out with their warning and we don’t as an academy speak against specific items. But from a safety standpoint, I would encourage parents to not use these items,” said an FDA spokesperson.

So what would happen if a company had recalled their neck float, but your child was still injured before the recall?

While a recall is the first step to reduce liability for the company, that doesn’t mean they’re off the hook for any injuries that occurred before the recall or subsequent. In order for a manufacturer to defeat your product liability claim they’d need to prove that you specifically received notice of the recall warning you of the dangers of the product and that you used the product anyway after receiving the notice. Also, the manufacturer can’t place blame on the distributor or seller for not providing the notice in the time that they wish. 

Proving Basic Case Elements 

After that, you need to prove the basic elements of a product liability case: that the product had a defective design that makes it unreasonably dangerous, that it was manufactured in a way that deviated from the intended design and increased risk to consumers, or the manufacturer failed to adequately warn of risks inherent in use of the product.