By Amanda Ernst

Recent highly publicized recalls of children’s products, such as millions of Chinese-made toys allegedly contaminated with lead, have resulted in numerous product liability suits against manufacturers, but experts say these manufacturers will face distinct challenges if they choose to defend themselves against allegations of negligence.

According to the U.S. Consumer Product Safety Commission, over 25.6 million children’s toys were recalled in 61 separate recalls in the 2007 fiscal year. Since the beginning of fiscal year 2008, almost 50 recalls have involved children’s toys or products such as cribs and helmets.

Manufacturers frequently face lawsuits in the wake of recalls.

Mattel Inc., the largest U.S. toy company, and its Fisher-Price subsidiary were hit with a lawsuit following an Aug. 2 recall of about 1 million toys, made in China, that were possibly contaminated with lead paint. After subsequent recalls and several additional suits, the U.S. Judicial Panel on Multidistrict Litigation is considering consolidation.

Because of the possibility of litigation, recalls can be a double-edged sword for manufacturers, said Daniel Malone, a shareholder at Butzel Long.

“Plaintiffs have to prove that the product had a defect and that it was the manufacturer’s fault,” Malone said. “The significance of a recall is that the manufacturer has said, ‘We think there is a safety-related defect with this product.’”

But recalls are sometimes necessary to mitigate damages and show a quick response from a manufacturer in an attempt to correct a product’s defects. How fast a manufacturer worked to fix the problem may come into play during litigation, said Randal Craft, an experienced product liability lawyer and a partner at Holland & Knight LLP.

“If the manufacturer gets multiple reports of injuries, this has to be reported to the CPSC, and if a significant problem is showing up, the manufacturer may have to take prompt steps to head off further injuries,” Craft said. “The plaintiffs’ attorneys will want to argue that the manufacturer heard about the earlier injuries and should have taken certain steps to avoid subsequent injuries but did not do so in a effective way.”

This argument comes up when manufacturers recall products after injuries are reported, which is what Bumbo Ltd. did last month with its Bumbo Baby Sitter seats. The Bumbo seat is a soft foam chair without a safety harness or straps. Its lack of restraints was emphasized by the manufacturer, which claimed in promotional material that a baby’s weight would help keep it in the chair.

On Oct. 25, the CPSC announced the recall of about 1 million Bumbo seats, after the commission received 28 reports of young children falling out of chairs that were placed on high surfaces like counter tops and tables.

Unlike traditional recalls, Bumbo did not instruct customers to return the product or destroy it. Instead, the company issued new warning labels and changed the packaging of the product in order to deter parents from placing their children in the seats on elevated surfaces.

“The Bumbo recall notice is not the usual kind in which customers are asked to return the products or to destroy them,” Craft said. “In this situation, the manufacturer is asking that the product not be used until a new manufacturer-supplied warning has been affixed.”

A CPSC spokeswoman said the commission “rarely” issues recalls like the Bumbo recall. In the past, the CPSC has issued similar recalls for cribs or other items that require assembly, after their instructions led to botched assembly or were found to be confusing for consumers.

Although experts agree Bumbo made the right move by issuing a notice to consumers, the recall might come back to haunt the company in the form of lawsuits.

“Although Bumbo denied in its recall notice to consumers that the product was in any way ‘defective,’ the recall could cut both ways,” said Kurt Stitcher, head of the product liability practice at Levenfeld Pearlstein LLC.

“On the one hand, it shows good corporate citizenship and a concern for consumers. On the other hand, the U.S. Consumer Product Safety Commission rules speak of recalls in the context of product ‘defects.’ Bumbo clearly has defenses to these claims, but those defenses won't stop plaintiffs from filing suit — not only for personal injuries to children but also, perhaps, for the ‘economic loss’ that they will claim resulted from their purchase of a defective product. I wouldn't be surprised to see a consumer class action here,” Stitcher said.

Two families whose children suffered head injuries have already filed suits against Bumbo in federal court, with a third suit filed as a proposed class action seeking refunds for every U.S. customer who purchased the $40 Bumbo seat. Bumbo has not offered refunds.

As Bumbo, Mattel and other children’s products manufacturers prepare to defend themselves in current litigation, they face unique challenges. Like other product liability cases, these manufacturers will try to show that their products are not defective and that injuries were caused by the way the plaintiffs used the products. But when the person using the product is a child, its hard to show negligence.

“When a child of a very young age is injured, the child will not be considered contributorily negligent,” Craft said. “Normally, a parent’s negligence is not imputed to the child.”

In the Bumbo case, the manufacturer may try to prove that parents should have known better than to place their children in the seat on elevated surfaces. But defense attorneys will have to walk a fine line in blaming parents of injured infants.

“As a manufacturer, you have to be careful when blaming the parents,” said Bill Ruskin, a shareholder at Becker, Epstein & Green PC. “I think that the warnings that Bumbo is now putting out about the dangers of placing the child in a Bumbo Baby Sitter seat in an elevated position will reduce their liability going forward. But the company basically designed a product that inadvertently causes misuse.”

If this case was to go before a jury, the jury would be asked to decide what percentage the parents are liable and what percentage the manufacturer is liable. Any damages award would reflect the jury’s decision.

“Although states’ laws differ, if the parents are seeking recovery from the manufacturer for medical bills and other expenses that they incur, the parents’ own claims may be subject to a reduction reflecting whatever fault the jury allocates to them,” Craft said.

A plaintiff’s use of a product plays a role in almost any product liability case, Stitcher pointed out. But that does not mean that the manufacturer will be able to “escape liability.”

“If the product is found to be defective, the plaintiff's comparative fault usually reduces, but does not eliminate, recovery,” Stitcher said. “Also, even if the product is not defective per se, the lack of a proper warning regarding use of the product can lead to liability for the defendant.”

Product liability cases such as these will most likely end up in front of a jury, so another important hurdle for manufacturers to consider is a jury’s sympathy. Juries are generally sympathetic to injured parties, especially when they are children, experts said.

“Whenever you are dealing with children, the sympathy factor becomes more of a consideration,” Malone said. “The law does recognize that young children need to be treated differently, but with jurors, the fact that a small child was involved and injured will result in sympathy for the plaintiffs.”

But manufacturers do stand a chance of convincing a jury that injuries or alleged product defects were not their fault, experts said.

“Despite their sympathy for injured plaintiffs, juries can usually be expected to exonerate manufacturers from liability if the juries can see clearly that the manufacturers were not at fault," Craft said.

Still, litigating any type of product liability case is a risky proposition. Manufacturers frequently choose to settle instead of facing the cost of taking the suit all the way to a jury trial.

Many attorneys advise their clients to weigh their options wisely and consider many factors, including venue. “There are still some places around the country where juries seem to have a penchant for wealth redistribution," Craft said.

--Additional reporting by Erin Coe