Product recalls without robust follow-up may not be enough

By Tony Poland, LegalMatters Staff • There is an assumption in our legal and regulatory systems that, in cases where a product is defective and potentially dangerous, the manufacturer’s recall notice may be sufficient to deem that public safety has been adequately safeguarded, says Barrie-area litigator Steve Rastin.  

In fact, he says in the recent decision of Coles v. FCA Canada Inc., Justice Paul Perell went so far as to dismiss a proposed class action on the grounds that it failed to meet the preferable procedure criterion.

The finding, of course, is driven by the facts, Rastin says, with the judge noting that the proposed class was limited to pure economic loss, and the product posed no imminent threat. 

In the end, the Court found that class members were unlikely to achieve more in the class action than they had been promised in a recall, he says.

Manufacturers should take active steps

However, this outcome should not apply in situations where public safety or well-being is placed at risk by a defective product, says Rastin. In such cases, not only is a recall insufficient, but further requirements ought to be in place to force manufacturers to take active steps – beyond simply putting out a recall notice– to make sure that the public is made aware of any potential risks that they may be facing, he says.  

“A recall system is only as good as the implementation and follow-up processes. Companies in this country need to be more diligent in their follow through,” Rastin tells LegalMattersCanada.ca. “If there is a recall or defect that can affect public safety shouldn’t manufacturers be expected to pick up the phone and call people?

“When there is a recall notice that affects public health, manufacturers ought to be under more obligation to actively track down people and deal with the issue,” he adds.

Rastin points to active cases in his office that highlight the risks to the public. In the first, a large automobile manufacturer issued a recall notice relating to thousands of vehicles which had been built between 2014 and 2020.  

Chances of a traffic accident were increased

In the recall notice, the company said a high-pressure fuel pump failure could lead to fuel starvation and result in an expected loss of driver power, increasing the chance of a crash, he says.

In some instances, it appears that the recall notice may have gone out after the vehicles in question had suffered a malfunction resulting in accident and injury, he says. In Rastin’s case, the vehicle in question lost power, crossed the centre line and struck and killed his client.  

Vehicle recalls are common and when they deal with such issues as paint defects or malfunctioning locking mechanisms, addressing the problem is not a priority, he says.

“But when it comes to a defect that can cause a car to lose power leaving it vulnerable to crash without prior warning shouldn’t there be more urgency for manufacturers to act accordingly? You need to follow up with the people affected until all the vehicles are repaired or off the road,” says Rastin. “Every vehicle in the province of Ontario is registered with the Ministry of Transportation. Track them down.”

Because recalls are often sent out in bulk mailings, he says there can be a tendency to treat them as junk mail, ignore them or delay making a necessary repair. 

Potential for notices to be missed

The other problem is vehicle recall notices can be missed entirely, especially if a car has been resold privately, Rastin says.

In the accident where his client was killed, he says it remains to be seen what active steps, if any, the manufacturer took to warn the at-fault driver that his truck was too dangerous to drive.

Rastin says he cannot help but wonder if more robust government legislation and/or regulation might have saved his client’s life.

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Medical devices are another area where manufacturer recalls need to be proactive and comprehensively communicated to device recipients, he says. 

Rastin and his mass tort team are also looking at a product liability case involving potentially defendant cochlear implant devices.  

Not to be confused with a hearing aid that simply amplifies sound, Rastin says a cochlear implant is a small electronic device that stimulates the cochlear nerve which essentially allows the user to hear. The device is surgically implanted under the skin behind the ear. An external part sits behind the ear and picks up sound with a microphone, transmitting sound to the internal device.

A manufacturer recently announced a recall of the devices due to a defect that allows moisture to enter and short-circuit the electronics. The defect requires removal and replacement.

Recall not enough in some cases

Rastin says in cases where any device is medically implanted and there are problems, announcing a recall is not enough.

“The manufacturer in this case knows every single person in Canada who received them. They should be calling them and offering a free test,” he says. “But what we are seeing is that it is only after people complain about the implants that action is taken.

“Young children get these implants. What happens to someone who is two or three years old? Can they articulate their problems in a way that it is obvious the device is at fault?” Rastin adds. “What happens if there are people who have these implants and fail to fully realize the dangers involved? It seems to me that things are not being done as well as they should.”  

He says most people who have been the victim of someone else’s negligence would agree the compensation they received from a lawsuit was not worth the pain they suffered. 

‘Important to have laws’

“As a lawyer, I can help people rebuild their lives but we should be looking at ways to prevent this suffering. I believe it is important to have laws that placed increased obligations on manufacturers to be diligent and effective when following up on recall notices,” Rastin says. “Perhaps then we could limit the number of children walking around with defective implants or avoid fatal accidents caused by defective cars.”

As it stands now, “the onus to act is on the people who have received the medical devices or have a vehicle that is defective through no fault of their own,” he says.

“There appears to be a default that says if a recall has gone out, the manufacturer has done enough,” Rastin says. “Are we protecting the public as well as we ought to if simply sending out a recall notice is sufficient in these circumstances?

“I suggest recalls should be the beginning of a manufacturer’s duty and not the end. There needs to be an effective follow through to ensure that potentially defective products that are on our roads or in our bodies are removed from the system,” he adds. “Until everyone who is impacted by a defective product is contacted and the dangers are remediated then we are all at increased risk.”