A recall leads to lawsuits because injuries are connected to the product being recalled thus a lawsuit. Plaintiff’s hope the three can be connected

Plaintiff crashed her bike suffering head injuries. Plaintiff was wearing a bicycle helmet that was subject to a recall, earlier. Plaintiff hoped her injury could be paid by the helmet manufacturer using the recall as the influence with the jury.

Jenish v. Monarch Velo Llc dba Catlike USA, 2007 U.S. Dist. LEXIS 34120; CCH Prod. Liab. Rep. P17,754 (E.D. Mich. S.D. 2007)

State: Michigan

Plaintiff: Tracy Ann Jenish

Defendant: Monarch Velo Llc dba Catlike USA, a Texas Corporation, The Kreb Cycle, a New York Corporation, and Catlike Sport Components SL

Plaintiff Claims: negligence, gross negligence, and breach of warranty

Defendant Defenses:

Holding: for the defendant

Year: 2007

This is why recalls are such a problem. The recalls themselves are a nightmare for the outdoor recreation industry because the problems don’t fit in the Consumer Product Safety Council (CPSC) mold. The cost goes through the roof trying to comply with the requirements of the recall and deal with the resulting bad publicity.

The biggest problem is recalls immediately show up on plaintiff attorney’s websites with the line have you been hurt using/wearing this product “call us.”

In this case, the plaintiff purchased a bicycle helmet from the defendant retailer. The bicycle helmet was subject to a recall prior to the plaintiff’s crash. The plaintiff exchanged the helmet for a newer one due to the recall, prior to her crash. The plaintiff fell while riding her bike suffering head and other injuries and sued.

The first defendant was a retailer in New York. The retailer purchased the helmet from a distributor in Texas. The distributor imported the helmet from the manufacturer, a Spanish corporation. All three, the manufacturer, distributor and retailer were defendants to the litigation. All three were in the chain of sale from the manufacturer to the consumer.

The theory behind allowing suits against everyone involved in the litigation is anyone in the chain could have spotted the defect and prevented the consumer from purchasing a defective product. That was a great theory when wagon wheels were being sold. Everyone understood wagon wheels and could see a flaw or defect in a wagon wheel before the consumer purchased the wheel.

That general theory does not work any longer in software, computers or in this case a bike helmet. If you could understand the physics and engineering behind the creation of the helmet, you could not see the defects in many cases because the defects are covered by plastic.

The suit was filed in Michigan the home state of the plaintiff in the United States District Court for the Eastern District of Michigan, Southern Division. Federal courts are the courts in place to deal with litigation between parties from different states or of the US and another country. The federal courts are not subject to the issue of “hometowning” or deciding a case solely on the issue of where the parties live the courts’ hometown.

The three defendants filed a motion for summary judgment, which was granted.

Federal District Court decisions are reported. Very few states report trial court decisions. However, this is different in the federal system, and we have an interesting case.

Analysis: making sense of the law based on these facts.

The plaintiff dismissed its negligence and gross negligence claims and proceeded on its breach of warranty claims prior to this motion. The plaintiff stated there was no express warranty claim, only a breach of implied warranty. Implied warranties are warranties that attach to any sale. They are not written down on in the manual, they occur whenever there is a sale. Implied warranty of merchantability and implied warranty of fitness for a particular purpose are warranties that go with every sale and are the two main claims in lawsuits.

These warranties are not in writing and unless disclaimed, they go with any sale. The first, warranty of merchantability means the product meets the requirements of the industry where they are sold. The implied warranty of fitness for a particular purpose is a warranty that the promises made by the sellers will be met by the product. For more information on these warranties see The legal relationship created between manufactures and US consumers.

No specific warranty was mentioned in the decision other than the warranty of fitness and merchantability. There were also allegations that there was a breach of warranty under Michigan’s law, which may be the same or different from the warranties explained above.

The plaintiff’s case was based on the recall. The CPSC required recall “poster” which was entered into evidence as proof of the recall and the defect. The plaintiff also had an expert who opined that plaintiff’s head injury “directly related to the inadequacies of the Catlike Kompact bike helmet.”

No other evidence was introduced. The expert’s opinion was not specific, and did not provide any cause for the injury or the failure of the helmet. The court held that because there was no analysis of the crash, speed, location of impact or details of the accident that the expert’s opinion was of no value.

As discussed at oral argument, plaintiff has not brought forth any evidence of the reason the Catlike Kompact helmet failed impact testing. All that has been presented is a one-page press release from the CPSC, set forth above, including a statement that “[t]he helmets fail impact testing required un-der CPSC’s safety standard for bicycle helmets, violating the Consumer Product Safety Act.” Without additional information from the CPSC or any other source, or the results of any independent testing, it is the opinion of the court that Dr. Kress’ statement that “[t]he severity of the head injury sustained by Ms. Jenish is a direct result of the inability of the Catlike Kompact to comply to the CPSC’s safety standards” can be nothing but inadmissible speculation.

Although warranty claims require very little evidence to prove, in this case, no evidence was presented that the court could rely upon to uphold the claims of the plaintiff. The court granted the three defendants motion and dismissed the case.

So Now What?

This case has little value in teaching about helmet crashes, and the liability issues involved in manufacturing helmets. What it does teach is the unintended consequence of dealing with a recall and the CPSC.  

It is impossible, probably, now days to create a product that will never have a recall. However, that does not mean you should try. As important, if you are looking at a recall, make sure you fully understand the consequences and work with counsel to lessen the impacts of the recall on your company and the effects it may have.

You also must disclaim all warranties other than the warranties you want for your product. If the proper disclaimer had been part of the information going with the sale of the helmet than this case would not have gone this far.

It is common for many products in the outdoor recreation industry to be brought into the US without the proper warranties and disclaimers. Additionally, many times when translated a product manual the word warranty will be translated into the word guaranty in English, which creates even greater liability issues.


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By Recreation Law       Rec-law@recreation-law.com              James H. Moss               #Authorrank

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