Diono car seat recall and Georgia evidence law on recalls (subsequent remedial measures).

Attorney Richard Armond of The Armond Firm, LLC, is licensed to practice law in the State of Georgia. Based in Gwinnett County, he handles serious injury and wrongful death cases throughout metro Atlanta and the State of Georgia. Call him for a free consultation at (678) 661-9585.

According to CBS News (link to story here), child car seat manufacturer Diono has issued a recall of several models of car seats that when secured using a lap belt without the top tether can result in an increased risk of chest injury in a crash for children over 65 pounds. Recalls happen all the time with all manner of consumer products for safety reasons. This is a good thing as we want consumers to be safe using products and to know if there is an issue with a product.

The law has some protection for manufacturers and businesses involved with defective products that can limit the use of product recalls against them in court. This is so, generally, to encourage companies to take these actions for the protection of consumers. In courts of the State of Georgia, O.C.G.A. § 24-4-407 is the applicable code section. It provides that:

“In civil proceedings, when, after an injury or harm, remedial measures are taken to make such injury or harm less likely to recur, evidence of the remedial measures shall not be admissible to prove negligence or culpable conduct but may be admissible to prove product liability under subsection (b) or (c) of Code Section 51-1-11. The provisions of this Code section shall not require the exclusion of evidence of remedial measures when offered for impeachment or for another purpose, including, but not limited to, proving ownership, control, or feasibility of precautionary measures, if controverted.”

In other words, a product recall generally cannot be used against a company to prove negligence or responsibility. However, such a recall can be used as impeachment. An example of impeachment would be when a company has a witness at trial testify that there was nothing wrong with their product. A recall could be used then to show otherwise. Another example is that O.C.G.A. § 24-4-407 allows evidence of subsequent remedial measures (such as a redesign or recall) to show feasibility of precautionary measures. In other words, if there was testimony by the company that some safety measure was not possible, the evidence of redesign or recall to fix the issue could then potentially be admissible.

Interestingly, Georgia law does not track Federal Rule of Evidence 407 and is less protective of companies. The federal rule also prohibits the use of subsequent remedial measures to show a defect in a product or its design or the need for a warning or instruction. In other words, you cannot use a recall as proof of a defective product or proof that better safety warnings should have been in place under the federal rule. However, with negligence covered by both the Georgia and federal rule, many of the same evidentiary will battles will occur as companies make the attempt at arguing that a defective product is, in effect, negligence.

If you use a product that has been recalled, please make sure to abide by the recall to protect yourself and your loved ones. If you or a loved one have suffered an injury because of product defect please contact attorney Richard Armond at (678) 661-9585 for a free consultation today.

The information above is for informational purposes only and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.