Over the last five years, hundreds of thousands of defective nail guns have been recalled by their manufacturers. Huge companies like Hitachi, Ridgid and DEWALT have pulled popular nailers off store shelves and requested that existing owners return their nail guns for repair or replacement.

In one way, issuing a recall is an admission of wrongdoing. By recalling a product, manufacturers publicly announce the fact that something was wrong. But in another way, it’s conceivable that coming clean could absolve a company from responsibility. At the least, a nailer company could argue that the recall was sufficient warning of danger, and any injuries are your own fault.

Thousands have been injured by faulty nailers, and some of those nailers have been recalled. Does that make manufacturers instantly liable for injuries that already occurred? Or does taking responsibility get them off the hook?

How Does A Recall Affect Injury Lawsuits? Men on a construction site

In reality, a recall usually has neither effect, at least not directly. Manufacturers aren’t immediately guilty, nor are they immediately innocent. The basic rules of a product liability case are still in effect, whether or not a recall was issued.

To win a defective product lawsuit, you have to prove that your nailer was defective in at least one of three ways:

  • It was defective in design, or “inherently” faulty.
  • It was defective in manufacture. Something went wrong at the factory where your nail gun was made.
  • The manufacturer failed to warn you of specific dangers.

After that, you need to prove that you were injured as a result of the stated defect.

None of these requirements go away because the nailer was recalled. But this seems counter-intuitive; you owned a nailer, and the manufacturer publicly owned up to the fact that it was defective. Doesn’t that prove that your nail gun was faulty?

Right or wrong, fair or not, in a court of law it’s not enough.

What Do I Need To Prove To Win?

In fact, the existence of a recall might not even be admissible in some courts. Many courts consider recalls “prejudicial evidence,” evidence that juries will find it hard to look past to see the specific facts of a singular case. In these courts, your attorney will have to start from square one, proving that every element of negligence pertains to your situation.

Other courts use recalls as evidence that goes some way to prove the existence of a defect, but not all the way. In either case, you’ll have to prove that your specific nail gun was faulty, whether or not it was included in the recall. Next, you’ll have to prove that the defect in question caused your accident, and finally, that your injuries are substantial enough to warrant court-enforced damages.

What Does The Manufacturer Need To Prove To Defeat My Case?

The issuance of a recall usually changes the way a manufacturer argues their side of the case. They’ll most likely try to prove that by warning the public, they should be absolved of any responsibility for injuries sustained after the recall.

But a broad recall is not enough to provide the court evidence that consumers were sufficiently warned of a product’s defect. Instead, the manufacturer has to prove that their recall explicitly warned you personally of the danger. An announcement in a trade publication isn’t enough, because there’s no guarantee that you saw it. Generally, manufacturers send recall notices to distributors, sellers, and known owners. So the question becomes – did you receive notice of the recall, or discover it on your own? For a list of recalled nail guns, visit our recalls page here.

If the court finds that the nailer company failed to adequately warn you, they can be found guilty of “failure to warn,” and held accountable for your injuries.

Other Considerations

Recalls can present another legal wrinkle entirely. There are two ways in which recalls are issued:

  1. the manufacturer becomes aware of the defect themselves and issues the recall, or
  2. a governmental agency, like the Consumer Product Safety Commission (CPSC) does, and asks the company to issue a recall.

The CPSC can command a company to announce a recall, or recommend a recall. The first is legally-binding; the second is not. In either case, if the company fails to recall the defective product, their failure can usually be submitted as evidence. In this instance, the evidence is actually the absence of a recall, in a situation when a recall was warranted.

Contact A Nail Gun Recall Lawyer

Injured by a defective nailer? You may have a case, even if your nail gun was recalled. Contact the personal injury attorneys at Banville Law for a free consultation and learn more about your legal options. Call 877-752-0980 or complete our contact form.