In product liability litigation, plaintiffs often treat a product recall as though it is conclusive proof that the product is defective or that its warnings are inadequate. Some plaintiffs even cite clearly inapplicable recalls — for example, lot-specific recalls spurred by a manufacturing or labeling issue that did not impact the unit that the plaintiff received — in an effort to bolster their case before a court or in settlement discussions. Federal Rule of Evidence 407’s prohibition on the use of recall evidence to prove those points seems to do little to quell the enthusiasm. Of course, Rule 407 is grounded in part on “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s note. But Rule 407 is not the only grounds on which recall evidence can (and should) be excluded.
For example, in Pecan Trust v. Nexus RVs, LLC, 2025 WL 1503940 (N.D. Ind. May 27, 2025), the plaintiffs sued the manufacturers of an RV and certain component parts alleging, among other things, that a defect in the brake pressure switch represented a fire risk. In support of that claim, they pointed solely to a safety recall for the part due to a possible fire risk and an expert witness who, based on the recall alone, concluded that the issue might pose a fire risk. The parts manufacturer moved for summary judgment, and the court granted the motion as to the breach of warranty claim after concluding that the plaintiffs had not proffered sufficient evidence of a defect. As the court noted: “That a recall has occurred may be evidence of certain things—namely as a subsequent remedial measure—but it cannot show a product defect. In reality, products subject to a recall might have a defect or might not, as a recall implements a safety campaign to ensure that none do or will manifest one.” (internal citations omitted). And, as the court noted in the specific context of the warranty claim, the fact that the plaintiffs had never presented the RV for work under the recall posed a second, equally problematic obstacle to their claim.
Pecan Trust is hardly alone in holding that the mere fact of a recall alone is not substantive evidence of a relevant product defect or inadequate warning. Indeed, federal regulations permit manufacturers and distributors to recall any product voluntarily at any time. See, e.g., 21 C.F.R. § 7.40(b). There are a number of reasons that a manufacturer may choose to initiate a recall –failure to list allergens or ingredients on packaging, software corrections or updates, contamination or sterility concerns, adverse event reports, or quality control issues such as the presence of foreign objects. See, e.g., FDA 101: Product Recalls, available at https://www.fda.gov/consumers/consumer-updates/fda-101-product-recalls; In re McNeil Consumer Healthcare, 877 F. Supp. 2d 254, 259 (E.D. Pa. 2012). Consumer satisfaction issues might prompt a recall, even where there is no true “defect” and no safety concerns.
Even recalls that do relate to concerns about a potential defect do not automatically prove a specific defect in the particular product used by any individual plaintiff. “A recall notice by a manufacturer ‘does not admit a defect in a particular product, but refers to the possibility of a defect in a class of products.’” Velazquez v. Abbott Lab’ys, 901 F. Supp. 2d 279, 292 (D.P.R. 2012) (quoting Bailey v. Monaco Coach Corp., 350 F. Supp. 2d 1036, 1045 (N.D. Ga. 2004); see also Cerqua v. Stryker Corp., 2013 WL 1752284, at *5 (S.D.N.Y. Apr. 23, 2013) (“The fact of the recall alone cannot raise a triable issue of fact as to whether the particular implant here at issue was defective.”); Cothren v. Baxter Healthcare Corp., 798 F. Supp. 2d 779, 783 (S.D. Miss. 2011) (recall notices “themselves do not demonstrate the product in question was defective”).
In sum, defendants who face evidence of a recall should not rely solely on Rule 407’s prohibition on citing subsequent remedial measures to prove a defect or the need for a warning. They should not even rely solely on a combination of Rule 407 and Rule 403, although they should certainly argue that the evidence should be prohibited even for limited uses that Rule 407 permits because “jurors would too readily equate a recall notice with an admission that the product was defective.” Velazquez, 901 F. Supp. 2d at 292. Where appropriate, defendants should also argue that the existence of the recall is simply irrelevant and inadmissible under Rule 402 because it cannot establish a defect in the product or its warnings. And, in responding to plaintiffs who believe the recall singlehandedly proves their case for them, this last argument may prove to be uniquely effective in the pretrial stages.
A special thank you to Bryce Hull for his invaluable research and insights that helped inform this post.
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