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Recall

Consumer-driven lawsuits that follow a product recall often focus on what the company knew, when it knew it, and how it acted in response. And for companies who are hoping to avoid such a lawsuit, one of the biggest questions is what do they need to disclose to consumers and how far does that obligation reach? Certainly, companies cannot disclose what they did not know, and manufacturers are not required to warn for every conceivable risk, regardless of how remote. A recent class action, Gurkov v. Real Kosher Ice Cream Inc., No. 1:23-cv-06128 (E.D.N.Y Aug. 14, 2023), brings these issues into focus.…

Continue Reading Recall Litigation Report: Real Kosher Ice Cream Sued Over Listeria Contamination

white paper

In December 2022, the Modernization of Cosmetics Regulation Act (“MoCRA”)—the most significant expansion of the U.S. Food and Drug Administration’s authority to regulate cosmetics in nearly 85 years—was signed into law. Among other things, MoCRA gives the FDA authority to require facility registration and reporting of serious adverse events, impose certain record-keeping obligations, recall cosmetic products, and establish good manufacturing practices. With many of MoCRA’s provisions going into effect at the end of this year, cosmetics companies need to prepare to address these requirements and regulations, which may also have a considerable impact on the litigation landscape.

Crowell’s Product Risk Management team has written two publications to help cosmetics companies prepare for the big changes ahead.…

Continue Reading Modernization of Cosmetics Regulation Act (“MoCRA”) White Paper

Recall

Products are commonly recalled due to a hazard (i.e., a risk of harm), even where large swaths of consumers have never had a problem with the products they purchased. When those consumers then file suit, they often seek to recover economic harm based on the “benefit of the bargain” theory—because the recalled products that they previously purchased are now worth less than what they paid for them. Where a consumer does experience the hazard (i.e., suffers personal injury or property damage) and subsequently files suit, that suit often seeks to recover not just economic harm but also for personal injury or property damage. Regardless of the nature of the harm, the alleged injury naturally precedes any recall of the product.…

Continue Reading Recall Litigation Report: Consumer Lawsuit Alleges Electrolux Dehumidifier Caused Church Fire Years After Recall

Overpass-Aerial-View-GettyImages-947872874-Insights

Since the start of the year, voluntary recalls have led to early dismissals in several putative class action cases. Courts issuing these rulings have based their decision on one of two grounds: (1) the prudential mootness doctrine, and (2) lack of Article III standing.…

Continue Reading Recall Litigation Report: Voluntary Recalls Continue To Lead To Early Dismissal

Compliance

Button cell and coin batteries are ubiquitous. They power countless products that consumers use on a daily basis: key fobs, remote controls, bathroom scales, electronic watches and jewelry, decorative ornaments, flameless candles, and even musical greeting cards. But button cell and coin batteries also pose a unique hazard.…

Continue Reading Reese’s Law to Impact Wide Range of Consumer Products

Recall

In December 2022, the U.S. District Court for the Eastern District of Michigan dismissed a putative class action against FCA US LLC on prudential mootness grounds because FCA announced a voluntary safety recall shortly after plaintiffs filed suit. Earlier this year, LG Energy Solution Michigan (“LG”) showed, yet again, how a voluntary recall can prove an effective defense to pending litigation.…

Continue Reading Recall Litigation Report: LG Energy Solution Michigan Reaps the Benefit of a Quick and Comprehensive Recall

Recall

The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.

Philips CPAP/ BiPAP Machines Still Under Fire

Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suit, Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.

Continue Reading Recall Litigation Report: Year in Review (2022)

As previously reported, a number of consumers filed suit earlier this year against Exactech after it recalled the polyethylene liners in certain hip, knee, and ankle implants. As of February 2022, Exactech’s recall applied to hundreds of thousands of Connexion, Optetrak, Truliant and Vantage brand hip, knee, and ankle replacement liners manufactured as far back as 2004. According to Exactech, the polyethylene liners were packaged in non-conforming vacuum bags that lacked an additional protective layer and allowed air to come into contact with the inserts and increase the risk that the devices would fail once implanted in a patient.…

Continue Reading Recall Litigation Report: Plaintiffs Seek to Consolidate Recall-Related Lawsuits Against  Exactech

New parents have their hands full. Baby bouncy seats and swings offer busy caregivers a way to put an infant down but still allow him or her to see and interact with the surrounding environment. But recent recalls have led parents to think twice before going hands free.

On August 15, 2022, 4moms and the CPSC announced a recall of more than two million 4moms MamaRoo Baby Swings (versions 1.0  – 4.0) and over 220,000 RockaRoo Baby Rockers sold in the U.S. and Canada. According to the announcement, the restraint straps on the 4moms MamaRoo Baby Swing and RockaRoo Baby Rocker can dangle below the seat when the product is not in use, posing a strangulation hazard to crawling infants. On August 29, 2022, residents from North Carolina and South Carolina sued Thorley Industries, LLC (d/b/a 4moms) on behalf of nationwide class of purchasers of the recalled products in federal court in Pennsylvania.…

Continue Reading Litigation Recall Report: Nationwide Lawsuit Follows 4moms Recall of MamaRoo Baby Swing and RockaRoo Baby Rockers

Consumer-driven lawsuits that follow product recalls often focus on what the manufacturer knew and when, bringing a host of fraud-based common law and statutory claims. Sometimes lawsuits go a different route, insisting that companies should warn consumers about every possible complication that could result from the products they manufacture, no matter how remote. A new class action against Lyons Magnus, in Catalono v. Lyons Magnus, LLC, No. 7:22-cv-06867 (S.D.N.Y filed Aug. 11, 2022), is one such case.

In July and August, Lyons Magnus voluntarily recalled 90 of its nutritional beverage products due to possible bacterial contamination from Cronobacter sakazakii and Clostridium botulinum, which can cause food poisoning, fever, and/or urinary tract infection, and in very severe cases, respiratory paralysis and death. And on August 11, 2022, a New York resident sued Lyons Magnus on behalf of nationwide and New York classes of purchasers of the recalled products.…

Continue Reading Litigation Recall Report: Nationwide Lawsuit Follows Lyons Magnus Recall of Contaminated Products