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It seems like once every couple of weeks, we see a story about some plaintiff (such as this one) suing, or threatening to sue, a defendant product manufacturer over some product that, according to the plaintiff, “the company should have recalled sooner.”

That’s garbage.

There is no such claim.  Rather failure-to-recall theories are among the most widely debunked purported “torts” ever.  Today we present Part I of a two-part series on just why that is.  This post looks at state law.

The common law does not impose any duty on a manufacturer of any type of products to recall its products in the absence of a government order to do so.  The law does not require a defendant  to remove a product from the market entirely, or else face universal liability simply for selling that product.  The Third Restatement of Torts addresses recall-related liability, and for once it accurately restates the law.

Restatement (Third) of Torts, Products Liability §11 (1998) comprehensively reviewed the law and determined that recall-based liability has never been recognized outside of two limited situations:  (1) noncompliance following a government ordered recall, or (2) negligently conducting a recall that the defendant voluntarily undertook:

One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to recall a product after the time of sale or distribution if:

(a)(1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or

(a)(2) the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and

(b) the seller or distributor fails to act as a reasonable person in recalling the product.

Restatement Third §11 (emphasis added).

Thus, the Third Restatement’s black letter law rejects any purported common-law obligation either to recall a product in the absence of any governmental order, or for the anticipatory removal of products from the market earlier than any governmental recall required.  Sound reasons support these constraints.  An unlimited duty to recall would impose “significant burdens” on commerce:

Duties to recall products impose significant burdens on manufacturers.  Many product lines are periodically redesigned so that they become safer over time.  If every improvement in product safety were to trigger a common-law duty to recall, manufacturers would face incalculable costs every time they sought to make their product lines better and safer.

Restatement Third §11, comment a.  Further, decisions about whether the public as a whole should be deprived of access to otherwise legal products should not be the province of judges and juries in common-law tort litigation:

[A]n involuntary duty to recall should be imposed on the seller only by a governmental directive issued pursuant to statute or regulation.  Issues relating to product recalls are best evaluated by governmental agencies capable of gathering adequate data regarding the ramifications of such undertakings.

Id.

For similar reasons, in state after state, in both common-law and statutory product-liability regimes, and whether the state otherwise follows the Second or Third Restatement, courts have refused to expand liability by including claims that legal products should not have been sold, but rather should have been recalled.

For instance, in California, where strict liability was invented, no duty to recall an FDA-regulated product (an over-the-counter medicine) exists unless the FDA has decided to authorize such action:

We conclude … as a matter of law, that defendant may not be held liable for failing to withdraw its product from the market….  A few scientific studies had shown [the risk plaintiffs allege] but … the FDA had determined that further studies were needed to confirm or disprove the association.  Pending completion of those studies, the FDA concluded that product warnings were an adequate public safety measure.  Although the FDA’s conclusion is not binding on us, we think it deserves serious consideration.

Ramirez v. Plough, Inc., 863 P.2d 167, 177-78 (Cal. 1993) (citations omitted) (emphasis added).  Even if there were “a court judgment or administrative order for the removal of [a] drug from the market, … it would apply only for the time frame after the judgment or order.”  In re Ranitidine Cases, 2024 WL 2115449, at *16 (Cal. Super. April 23, 2024).

The New York Court of Appeals similarly rejected a purported “post-sale duty to recall or retrofit a product” in Adams v. Genie Industries, Inc., 929 N.E.2d 380, 385 (N.Y. 2010).  Adams involved a lift truck, rather than an FDA-regulated product.  The court found “no justification for creating” a duty to recall, since – again as here – “plaintiff merely asserted that [defendant] should have recalled or retrofitted the [product] for the same reasons that it should not have sold it in the first place[.]”  Id. at 386.  Like Adams, most of the cases rejecting failure-to-recall claims do not involve FDA-regulated products.

Likewise, Illinois law rejects both post-sale warning and recall duties.  Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1160 (Ill. 2011).  As to recalls, specifically:

A duty may be imposed upon a manufacturer by a statute or administrative regulation which mandates the recall of the product….  However, in the absence of such an obligation, or a voluntary undertaking, Illinois has not imposed such a duty on a manufacturer[.]

Id. at 1160 n.1 (citing Third Restatement §11).  Jablonski also approvingly cited Modelski v. Navistar International Transportation Corp., 707 N.E.2d 239 (Ill. App. 1999), which held:

The consequences of imposing upon manufacturers an extrastatutory duty to recall … would be the equivalent of mandating that manufacturers insure that their products will always comply with current safety standards.  This we are unwilling to do.

Id. at 247.

California, New York, and Illinois are hardly outliers.  “[V]irtually every court that has confronted the issue head-on has reached the same conclusion”:  “‘that it is unnecessary and unwise to impose or introduce an additional duty to retrofit or recall a product’ separate and apart from those duties to which manufacturers are already subject.”  Tabieros v. Clark Equipment Co., 944 P.2d 1279, 1298 (Haw. 1997).  Tabieros quoted Gregory v. Cincinnati, Inc., 538 N.W.2d 325, 333-34 (Mich. 1995), thus adding two more state supreme courts to the list of recall-based tort deniers,  since Gregory “did not recognize any theory that would impose a postmanufacture duty to … recall a product.”  Klein v. Caterpillar, Inc., 2023 WL 4760707, at *5 (E.D. Mich. July 26, 2023), aff’d, 2024 WL 1574672 (6th Cir. April 11, 2024).  That’s hardly all.

The Kentucky Supreme Court reached the same conclusion, rejecting liability “by judicial fiat” for alleged failure to recall products in Ostendorf v. Clark Equipment Co., 122 S.W.3d 530, 534 (Ky. 2003).  Product recalls “are properly the province of administrative agencies, as the federal statutes that expressly delegate recall authority to various agencies suggest,” and courts should not “arrogate to themselves a power equivalent to that of requiring product recall.”  Id.

As Congress has recognized, administrative agencies have the institutional resources to make fully informed assessments of the marginal benefits of recalling a specific product.

Id. at 434-35 (citation and quotation marks omitted).

The Kansas Supreme Court agrees:

[P]roduct recalls are properly the business of administrative agencies as suggested by the federal statutes that expressly delegate recall authority….  The decision to expand a manufacturer’s post sale duty beyond implementing reasonable efforts to warn … should be left to administrative agencies and the legislature.  These institutions are better able to weigh the benefits and costs involved in locating, recalling, and retrofitting products.

Patton v. Hutchinson Wil-Rich Manufacturing Co., 861 P.2d 1299, 1315-16 (Kan. 1993).  Patton quoted V. Schwartz, “The Post–Sale Duty to Warn:  Two Unfortunate Forks in the Road to a Reasonable Doctrine,” 58 N.Y.U.L. Rev. 892, 901 (1983).  Accord Loredo v. Solvay America, Inc., 212 P.3d 614, 632 (Wyo. 2009) (quoting and following Ostendorf); Lovick v. Wil-Rich, 588 N.W.2d 688, 696 (Iowa 1999) (affirming that a manufacturer “ha[s] no duty to recall or retrofit” a product).

Other states’ intermediate appellate courts have also held that failure-to-recall claims would create excessive and unmanageable liability.  The most thorough discussion is in Ford Motor Co. v. Reese, 684 S.E.2d 279 (Ga. App. 2009), cert denied (Ga. Feb. 8, 2010).  Reese followed Restatement Third §11 and rejected failure-to-recall claims absent a government-mandated or negligently undertaken voluntary product recall.  Id. at 284-85.  “Georgia common law does not impose a continuing duty upon manufacturers to recall their products.”  Id. at 285.  Reese also invoked “important public policy concerns” that support leaving recall decisions to administrative agencies.  Id.

Because the cost of locating, recalling, and replacing mass-marketed products can be enormous and will likely be passed on to consumers in the form of higher prices, the recall power should not be exercised without extensive consideration of its economic impact.

Id. (citation and quotation marks omitted).  Cf. Ontario Sewing Machine Co. v. Smith, 572 S.E.2d 533, 535 (Ga. 2002) (“disapprov[ing]” of decision that had allowed a failure-to-recall claim, but not reaching issue).

Other intermediate appellate decisions to the same effect are: Lance v. Wyeth, 4 A.3d 160, 167 (Pa. Super. 2010) (“this Court is persuaded by the majority of modern jurisdictions that have decided not to impose a common law duty to recall on a manufacturer”) (citations omitted) (prescription drug case), aff’d in part & rev’d in part on other grounds, 85 A.3d 434 (Pa. 2014).  Bragg v. Hi-Ranger, Inc., 462 S.E.2d 321, 331 (S.C. App. 1995) (following the “law adopted by a majority of jurisdictions concerning a manufacturer’s duty to recall or retrofit its products”); Morrison v. Kubota Tractor Corp., 891 S.W.2d 422, 429 (Mo. App. 1994) (finding “no such duty absent a state or federal law mandating a recall of the product”), transfer denied (Mo. Feb. 12, 1995); Lynch v. McStome & Lincoln Plaza Associates, 548 A.2d 1276, 1281 (Pa. Super. 1988) (finding no “precedent that imposes such a broad duty on a manufacturer, nor do we think that the imposition of such a duty would be appropriate”).

Literally scores of federal courts have made state-law predictions that reject failure-to-recall claims under the laws of many other states.  The sheer range of products against which recall claims have been asserted demonstrates how radical a legal change recall-based liability would entail, were it to be accepted.

  • Alabama: Wilhite v. Medtronic, Inc., 2024 WL 968867, at *6 (N.D. Ala. March 6, 2024) (“no duty to recall under Alabama law”) (medical device); Harman v. Taurus International Manufacturing, Inc., 661 F. Supp.3d 1123, 1133 (M.D. Ala. 2023) (“no such duty exists under Alabama law” to “proactively recall[]” a product) (firearm); Harris v. Raymond Corp., 2018 WL 6725329, at *9 (N.D. Ala. Dec. 21, 2018) (“there is no duty to recall”) (pallet jack).
  • AlaskaNelson v. Original Smith & Wesson Business Entities, 2010 WL 7125186, at *3-4 (D. Alaska May 18, 2010) (following “the weight of jurisdictions that have previously determined that failure to recall … is not a valid cause of action”), aff’d, 449 F. Appx. 581, 584 (9th Cir. 2011) (firearm).  Cf. Jones v. Bowie Industries, Inc., 282 P.3d 316, 335 n.70 (Alaska 2012) (clarifying that recognizing a post-sale duty to warn does not include any duty to recall) (mulching machine).
  • ColoradoPerau v. Barnett Outdoors, LLC, 2019 WL 2145467, at *2-3 (M.D. Fla. May 15, 2019) (excluding all failure-to-recall evidence) (crossbow) (applying Colorado law).
  • DelawareSmith v. Daimlerchrysler Corp., 2002 WL 31814534, at *6 (Del. Super. Nov. 20, 2002) (“There is also no duty under Delaware law to recall defective [products]”) (automobile).  Yes, this is a state trial court decision, but we didn’t have any better place to put it.
  • FloridaHowey v. Pirelli Tire, LLC, 2017 WL 10978505, at *2 (S.D. Fla. Oct. 31, 2017) (following Wright) (tire); Wright v. Howmedica Osteonics Corp., 2017 WL 4555901, at *4 (M.D. Fla. Oct. 12, 2017) (“find[ing] no Florida case recognizing a cause of action for breach of the duty to recall”) (medical device), aff’d, 741 F. Appx. 624 (11th Cir. 2018); Thomas v. Bombardier Recreational Products, Inc., 682 F. Supp.2d 1297, 1302 (M.D. Fla. 2010) (“Florida law does not recognize that a manufacturer has a post-sale duty to recall or retrofit a product”) (personal watercraft).
  • GeorgiaClayton v. Alliance Outdoor Group, Inc., 2021 WL 1947886, at *2 (M.D. Ga. March 30, 2021) (“Georgia law generally does not recognize a cause of action based upon a manufacturer’s failure to recall a product”) (tree stand); Williamson v. Walmart Stores, Inc., 2015 WL 1565474, at *6 (M.D. Ga. April 8, 2015) (quoting and following Reese, supra) (gas container); Yarbrough v. Actavis Totowa, LLC, 2010 WL 3604674, at *4 (S.D. Ga. Sept. 13, 2010) (“product sellers are not required to issue recalls for defective products”) (pre-Reese) (prescription drug).
  • IndianaTimm v. Goodyear Dunlop Tires North America Ltd., 309 F. Supp.3d 595, 602 (N.D. Ind. 2018) (finding no “support” for a “claim of negligent recall”) (tire); Cincinnati Insurance Companies. v. Hamilton Beach/Proctor-Silex, Inc., 2006 WL 299064, at *3 (N.D. Ind. Feb. 7, 2006) (“no Indiana state law cases indicate the existence of a separate negligent recall cause of action”) (citations omitted) (toaster); Tober v. Graco Children’s Products, Inc., 2004 WL 1987239, at *9 (S.D. Ind. July 28, 2004) (rejecting “the existence of a separate ‘negligent recall’ cause of action”), aff’d, 431 F.3d 572 (7th Cir. 2005) (baby swing).
  • IowaBurke v. Deere & Co., 6 F.3d 497, 510 (8th Cir. 1993) (“we find no independent duty to retrofit or recall under Iowa law”) (combine); Doe v. Baxter Healthcare Corp., 2003 WL 27384538, at *5 (S.D. Iowa June 3, 2003) (“no court interpreting Iowa law has recognized a duty to recall”), aff’d, 380 F.3d 399 (8th Cir. 2004) (blood product).
  • LouisianaWeams v. FCA US L.L.C., 2019 WL 960159, at *23 (M.D. La. Feb. 27, 2019) (“failure to recall is not a theory of liability under the” exclusive Louisiana product-liability statute) (automobile).
  • MassachusettsAhern v. Sig Sauer, Inc., 2021 WL 5811795, at *4 (D. Mass. Dec. 7, 2021) (plaintiff “cites no legal duty to impose a mandatory recall”) (firearm); National Women’s Health Network, Inc. v. A.H. Robins Co., 545 F. Supp. 1177, 1181 (D. Mass. 1982) (“[n]o court has ever ordered a notification and recall campaign on the basis of state law”) (contraceptive device).
  • MinnesotaKladivo v. Sportsstuff, Inc., 2008 WL 4933951, at *5 (D. Minn. Sept. 2, 2008) (“Minnesota courts have not recognized a cause of action for negligent recall”) (inflatable swimming tube); Hammes v. Yamaha Motor Corp., 2006 WL 1195907, at *11 (D. Minn. May 4, 2006) (“this Court declines to impose a separate duty to recall”) (motorcycle); Berczyk v. Emerson Tool Co., 291 F. Supp.2d 1004, 1016 (D. Minn. 2003) (quoting McDaniel) (power saw); McDaniel v. Bieffe USA, Inc., 35 F. Supp.2d 735, 743 (D. Minn. 1999) (“Minnesota would refuse to impose a duty on manufacturers to recall and/or retrofit a defective product because the overwhelming majority of other jurisdictions have rejected such an obligation”) (motorcycle helmet).
  • MississippiGoodwin v. Premier Ford Lincoln Mercury, Inc., 2020 WL 3621317, at *4 n.2 (N.D. Miss. July 2, 2020) (“there is no post-sale duty to warn or recall in Mississippi”) (automobile); Clark v. General Motors, 2016 WL 3574408, at *7 (S.D. Miss. June 23, 2016) (same) (automobile); Murray v. General Motors, 2011 WL 52559, at *2 (S.D. Miss. Jan. 7, 2011) (plaintiffs “cannot show that [defendant] breached its duty by not recalling their vehicle”), aff’d, 478 F. Appx. 175 (5th Cir. 2012) (automobile).
  • MissouriHorstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 774 (8th Cir. 1998) (finding “no indication … that the Missouri Supreme Court would create a common law duty to recall under these circumstances”) (power saw); Smith v. Firestone Tire & Rubber Co., 755 F.2d 129, 135 (8th Cir. 1985) (“Since no duty to recall was established, a fundamental prerequisite to establishing negligence was absent”) (tire); Haskell v. PACCAR, Inc., 2021 WL 5407853, at *3 (W.D. Mo. Nov. 18, 2021) (“There is no common law duty to recall under Missouri law absent a mandated recall by a governmental agency.”) (citations omitted) (commercial truck); Hackethal v. Harbor Freight Tools USA, Inc., 2016 WL 695615, at *1 (E.D. Mo. Feb. 22, 2016) (“[t]here is no duty under Missouri law to recall”) (blow gun); Ardito v. ITW Food Equipment Group, LLC, 2016 WL 10677591, at *7 (W.D. Mo. Feb. 8, 2016) (“there is no general duty to recall”) (commercial mixer); Simon v. Select Comfort Retail Corp., 2014 WL 5849243, at *4 (E.D. Mo. Nov. 12, 2014) (“there is no common law duty to recall under … Missouri law”) (mattress); Dejana v. Marine Technology, Inc., 2013 WL 6768407, at *3 (E.D. Mo. Dec. 20, 2013) (same as Haskell) (boat); Stanger v. Smith & Nephew, Inc., 401 F. Supp.2d 974, 982 (E.D. Mo. 2005) (“under Missouri law, there is no cause of action for negligent recall”) (medical device); Efting v. Tokai Corp., 75 F. Supp.2d 1006, 1010-11 (W.D. Mo. 1999) (“no duty in Missouri to recall”) (lighter).
  • NebraskaAnderson v. Nissan Motor Co., 139 F.3d 599, 602 (8th Cir. 1999) (“limiting [Nebraska] products liability law to actions or omissions which occur at the time of manufacture or sale”) (forklift); Dubas v. Clark Equipment Co., 532 F. Supp.3d 819, 830 (D. Neb. 2021) (“claims asserting post-sale duties to … recall … are dismissed”) (forklift).
  • New HampshireBartlett v. Mutual Pharmaceutical Co., 2010 WL 3659789, at *10 (D.N.H. Sept. 14, 2010) (“‘almost all of the opinions which have addressed the issue have found that there is no common law duty to recall’ products from the market, even if they are unreasonably dangerous”) (quoting 5 L. Frumer & M. Friedman, Products Liability, §57.01[4], at 57–9 (2010)) (generic prescription drug)
  • New JerseyLeslie v. United States, 986 F. Supp. 900, 913 (D.N.J. 1997) (“no authority … requires manufacturers of legally distributed [products] to ensure instantaneous removal of their products”) (ammunition), aff’d mem., 178 F.3d 1279 (3d Cir. 1999).
  • New MexicoMorales v. E.D. Etnyre & Co., 382 F. Supp.2d 1285, 1287 (D.N.M. 2005) (rejecting a “duty to retro-fit or recall”; following Third Restatement §11) (road paving machine).
  • North DakotaEberts v. Kawasaki Motors Corp., 2004 WL 224683, at *2-3 (D.N.D. Feb. 2, 2004) (following Third Restatement §11 and “the overwhelming majority of other jurisdictions [that] have refused to impose a duty on manufacturers to recall … a defective product”) (ATV).
  • OhioKondash v. Kia Motors America, Inc., 2016 WL 11246421, at *14 (S.D. Ohio June 24, 2016) (given the weight of contrary precedent, “[t]he Court cannot conclude that Ohio law recognizes a duty in negligence to recall”) (automobile).
  • PennsylvaniaMcKnight v. Amazon.Com Inc., 2024 WL 2156223, at *6 (E.D. Pa. May 14, 2024) (quoting Liebig) (OTC drug); Liebig v. MTD Products, Inc., ___ F. Supp.3d ___, 2023 WL 5517557, at *4 n.6 (E.D. Pa. Aug. 25, 2023) (“Pennsylvania law does not recognize a duty to recall or retrofit products”) (snow blower); Bradley v. Amazon.com, Inc., 2023 WL 4494149, at *5 (Mag. E.D. Pa. July 12, 2023) (quoting and following Boyer) (phone charger), certif. denied, 2023 WL 7196427 (Mag. E.D. Pa. Sept. 20, 2023); Cleaver v. Honeywell International, LLC, 2022 WL 2442804, at *4 (E.D. Pa. March 31, 2022) (“Under Pennsylvania law, manufacturers and distributors do not have a duty to recall or retrofit products.”) (vacuum truck); Talarico v. Skyjack, Inc., 191 F. Supp.3d 394, 401 (M.D. Pa. 2016) (no “independent negligence cause of action exists in Pennsylvania under a duty to recall”) (forklift); Padilla v. Black & Decker Corp., 2005 WL 697479, at *7 (E.D. Pa. March 24, 2005) (Pennsylvania law “does not, however, extend to the duty to recall”) (miter saw); Boyer v. Case Corp., 1998 WL 205695, *2 (E.D. Pa. Aug. 28, 1998) (“Pennsylvania does not recognize a duty to recall”) (industrial equipment).
  • South CarolinaAndrews v. CBS Corp., 2015 WL 12831309, at *1 (D.S.C. June 24, 2015) (“there is no-post sale duty to recall or retrofit products”; citing and following Bragg, supra) (asbestos containing products).
  • South DakotaRobinson v. Brandtjen & Kluge, Inc., 2006 WL 2796252, at *8 (D.S.D. Sept. 27, 2006) (“[n]othing … indicates that South Dakota permits a claim based on a manufacturer’s duty to recall”; citing Restatement Third §11), aff’d, 500 F.3d 691 (8th Cir. 2007) (printing press).
  • TennesseeSpence v. Miles Laboratories, Inc., 810 F. Supp. 952, 959 (E.D. Tenn. 1992) (product-liability statute did not “require manufacturers and suppliers of [their] products to recall and test a product already on the market”) (blood product).
  • TexasSyrie v. Knoll International, 748 F.2d 304, 311-12 (5th Cir. 1984) (“Texas does not impose on manufacturers the duty … to recall products”) (stool); Gomez v. ALN International, Inc., 2021 WL 3774221, at *8 (S.D. Tex. March 24, 2021) (“there is no general, post-sale, duty to retrofit or recall under Texas law”) (medical device); Nester v. Textron, Inc., 2015 WL 9413891, at *13 (W.D. Tex. Dec. 22, 2015) (Texas rejects failure-to-recall claims prior to any actual recall) (utility vehicle); Hernandez v. Ford Motor Co., 2005 WL 1574474, at *1 (S.D. Tex. June 28, 2005) (“Texas law generally does not recognize a common law post-sale duty … to recall defective products”) (automobile); Flock v. Scripto-Tokai Corp., 2001 WL 34111725, at *8-9 (S.D. Tex. Sep. 11, 2001) (following Restatement Third §11) (cigarette lighter).
  • UtahMarcovecchio v. Wright Medical Group, Inc., 2019 WL 1406606, at *7 (D. Utah March 28, 2019) (“Plaintiff has alleged only that [defendant] failed to recall the product, which is insufficient to state a claim”; following Restatement Third §11) (medical device); Dowdy v. Coleman Co., 2011 WL 6151432, at *3 (D. Utah Dec. 12, 2011) (“declin[ing] to recognize a post-sale duty to recall or retrofit”; citing Restatement Third §11) (propane heater).
  • VirginiaBoyer v. Abbott Vascular Inc., 2023 WL 4269764, at *2 (N.D. Cal. June 29, 2023) (predicting that Virginia would follow Restatement §11 and dismissing recall claim; quoting Powell, supra) (catheter) (applying Virginia law); Putman v. Savage Arms, Inc., 2019 WL 1007527, at *9 (W.D. Va. March 1, 2019) (“no such duty to recall is recognized under Virginia law”) firearm); In re General Motors LLC Ignition Switch Litigation, 202 F. Supp.3d 362, 371-72 (S.D.N.Y. 2016) (same) (automobile) (applying Virginia law); Powell v. Diehl Woodworking Machinery, Inc., 198 F. Supp.3d 628, 634 (E.D. Va. 2016) (“Virginia law does not recognize a duty to recall”) (ripsaw); Paschall v. CBS Corp., 2011 WL 4345283, at *4 n.2 (E.D. Va. Sept. 15, 2011) (“a duty to recall [is] not recognized under Virginia law”) (asbestos products).
  • WashingtonBear v. Ford Motor Co., 2007 WL 870344, at *3 (E.D. Wash. March 20, 2007) (failure-to-recall claim does not exist because “the issue of recall is not addressed in the Washington Products Liability Act”) (automobile).
  • Wisconsin:  Carlson v. Triton Industries, Inc., 605 F. Supp.3d 1124, 1138 (W.D. Wis. 2022) (rejecting “failure to recall” theory as “much more drastic” than anything Wisconsin law has permitted) (boat).

That’s not even everything.  Where we have state high court authority, we haven’t looked for decisions by other courts bound by such precedent.  Nor have we included any related “duty to retrofit” cases.  For additional precedent, see our prior recall-related posts here and here.

It is quite clear to us that the  overwhelming weight of precedent nationwide rejects failure-to-recall claims except in the limited circumstances mentioned in Restatement Third §11.  That a recall occurred later, or was “voluntary,” does not matter.  Recall-based claims go far beyond ordinary negligence and strict-liability theories.  They usurp executive and legislative powers to regulate the public’s access to lawful products.  Moreover, even if a failure-to-recall claim did exist against an FDA-regulated product, it would be preempted – which will be the subject of our forthcoming Part II (hint, see our New Hampshire law citation), above).