This post was written by Michelle L. Cheng. As every product liability lawyer knows, a client's voluntary recall of a product will result in lawsuits. Plaintiffs' lawyers for pharmaceutical product liability cases love using the fact of a recall as an easy stand-in for proving that the product in a specific case was in fact defective at the time of manufacture. So while equating a voluntary recall with the existence of a defect is a seductively persuasive assumption, defense lawyers should strenuously argue against it because it's an argument they can win. In a very recent decision issued by the Southern District of Mississippi, Cothren v. Baxter Healthcare Corporation, No. 3:10-CV-347, 2011 WL 2174026 (May 31, 2011), the District Court resisted the temptation to make that very assumption. In Cothren, the plaintiff filed a variety of product liability claims against Baxter based on the injuries she allegedly suffered from use of a dialysis machine. She claimed that her injuries were consistent with the injuries itemized and noted in the two Recall Notices that Baxter had issued with respect to such devices. Id. at *1. Baxter moved for summary judgment – the specific focus being whether the plaintiff satisfied the essential element of a "defect." Id. at *3-*4. While the plaintiff flippantly asserted that "any layman  can review the two recall notices, the press release and the Plaintiff's symptoms and based on common sense, find that the Defendant was negligent as a matter of common sense," the District Court failed to see common sense. Id. at *3. Instead, the District Court flatly rejected this assertion and stated: "Expert testimony is required." Id. "Evidence of a design defect must be supported by expert testimony, and the failure to designate an expert who is prepared to offer such evidence demonstrates the lack of a prima facie case." Id. Further, the District Court noted that the "recall notices  do not constitute admissible evidence to establish liability. See, e.g., Rutledge v. Harley-Davidson Motor Co., 2009 WL 1635762, *2 (S.D. miss. 2009), aff'd, 364 Fed. Appx. 103 (5th Cir. 2010) Fed. R. Evid. 407 bars the use of Recall Notes to be used as defendants' admission that a design is defective.)" Id.; see also Drury v. Cardiac Pacemakers, Inc., No. 8:02CV933, 2003 WL 23319650 (M.D. Fla. June 3, 2003) (fact of recall alone does not establish causation and expert testimony is required). Based on the plaintiff's failure to establish that Baxter breached its duties, the District Court granted summary judgment. Id.
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