Under the U.S. Consumer Product Safety Act the federal government has the power to require the recall of unreasonably hazardous products for the purpose of having them repaired, replaced or the price refunded. See 15 U.S.C. Sec. 2064 (c)-(f). Aside from such consumer protections, a manufacturer or seller is strictly liable under state and federal law, including West Virginia law, to compensate those end users suffering injuries from such a defective product. The rule of strict liability in general says that one who sells a product in a defective condition that is unreasonably dangerous to the intended consumer, is strictly liable for personal injury caused to that consumer.
The product must not be substantially changed after it leaves the seller’s hands. Strict liability applies even if the seller has used all due care in bringing the product to market. Before liability can be established, the claimant must prove that there is in fact a defect in the product. This is at times a daunting task requiring expert testimony. But if there’s a recall of a dangerous household product, for example, that fact may be admissible in court and may lead to additional information proving the existence of a defect.
With respect to one product, a recent recall has issued to customers of a certain snow-cone machine. It’s called a Cra-Z-Art Snoopy Sno-Cone Machine. It has a picture of Snoopy and related characters on the box. It seems that there is a loose brass rivet in the dispensing unit that can fall into a snow cone and cause choking, tooth damage or swallowing. There are numerous incidents of the brass rivet falling into the snow cone, but no known injuries to date.
Normally, the claimant in West Virginia and other jurisdictions will need expert testimony to prove the existence of a defect that constitutes a defective product. The usual medical expert will also have to provide the evidence of a serious injury and medical causation between the defect and the injury sustained. Of course, with respect to the snow-cone machine, that won’t be an issue unless an injury is first reported.
Source: examiner.com, Product Recall: Snoopy Sno-Cone Machine – Madison Food, No author, Nov. 1, 2013