When manufacturers of products are notified of an issue with their merchandise, whether it’s an inherent danger or failure of the product to work as intended, the company has a duty to notify the public. In some cases, a recall will be issued.
Recalls in and of themselves will not excuse a company from liability for harm the product causes – even if the injury or harm occurs after the announcement of the recall. However, neither is a recall proof positive of injury. Plaintiffs still have to prove causation.
In the case of Kallal v. CIBA Vision Corp., defendant conceded it had produced and sold a defective product – contact lenses – and it had even issued a huge recall of those lenses in 2007. However, defense argued plaintiff had no grounds on which to stake an injury claim because there was no proof he’d used the defective contacts and his only proof of defect was the recall.
This case is noteworthy in so far as it deals with something that is incredibly common: Problems with contact lenses.
There are approximately 30 million people in the U.S. who wear contact lenses, according to the Centers for Disease Control and Prevention, and eye infections can occur under certain conditions. In fact, 1 out of 500 contact lens users will suffer an eye infection in a given year. Most will clear up on their own, but some can lead to horrible complications, up to and including blindness. There may be a number of reasons for these sort of effects, but when someone requires extensive medical treatment or suffers permanent damage as a result, it’s important to explore whether the contact lenses themselves may have been defective.
In this case, plaintiff began his use of defendant’s contact lenses in late 2006, when he received a sample pack from his doctor. He then purchased more of the lenses. However, within a week of purchasing his new lenses, he began to experience sharp pains in his eyes. He didn’t stop using them right away because he had previously experienced trouble with other brands and assumed his eyes were simply growing accustomed to the new lenses. To cope, he limited his use of the contacts to only times when he was exercising. He wore them on and off for a few months, and even purchased another set. However, he stopped using them altogether about four months after his initial purchase.
In the meantime, defendant company realized a large number of its product had been poorly manufactured in such a way that oxygen was not reaching corneas in the levels it should. The company issued a recall, which included some lots that were distributed to plaintiff’s eye doctor.
Two year later, defendant sued the company with claims of negligence, strict product liability and breach of implied warranty. He alleged the lenses were defective and had caused him pain.
Eventually, trial court granted summary judgment to defense on grounds plaintiff had never used the recalled lenses. Evidence was produced indicating none of the recalled lenses that were shipped to plaintiff’s eye doctor were in his prescription strength.
Plaintiff appealed, arguing there remained a genuine issue of material fact, which was that the company’s recall was so large, the company couldn’t possibly have known which lenses were defective. He also noted the company that made the lenses he wore were produced in the same Indonesian factory where the recalled lenses were made. He indicated all other lenses produced at that facility must have been defective.
However, the appellate court ruled the evidence doesn’t support that leap of logic. The district judge had characterized plaintiff’s assertion as a “wisp of circumstantial evidence,” and appellate court agreed ti was too thin of an argument.
This was especially true considering plaintiff’s own concession that he had suffered poor reactions to other brands of contacts. No defective design theory would hold water if plaintiff were allergic to all contacts, but he never presented any evidence to show not all of his contact use led to this sort of pain and discomfort.
Further, the court ruled plaintiff’s assertion that defendant’s employees produced “suspicious” records to be too vague to be considered from a legal standpoint.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Kallal v. CIBA Vision Corp., Feb. 24, 2015, U.S. Court of Appeals for the Seventh Circuit
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