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Great question. Yes, the existence of a recall, while not a tacit admission of guilt, can be used as evidence that a product is defective. But part of taking prudent legal action is knowing when you're beat. On the one side you have a victim, possibly a law enforcement officer, who is seriously injured or worse because a gun went off when it shouldn't have. On the other side you have a company with millions of dollars in military and police contracts insisting that the product is perfectly safe even though the exact same thing has happened several times before and the plaintiff has an expert who can describe the defect and explain to the jury exactly how the accident occurred. Make that argument to the right jury and a 5 million dollar wrongful death verdict balloons into 50 million in punitive damages. If the company hasn't figured it out yet, the jury will help them, and they will keep helping them until they either fix the problem or go out of business.
Do a recall now and it will cost a bundle, but a certain percentage of people will take advantage of the recall (especially considering that a large number of guns are owned by institutional customers), preventing some suits from being filed, and accidents that do result in suits net them some advantages. First, punitive damages are much less of a risk since they took affirmative steps to mitigate the problem. Second, it may reduce the liability if the company can prove that the user was on notice that the product was dangerous and should be modified or discarded, and neglected to take advantage of the recall program, based on a theory of comparative negligence or voluntary assumption of the risk. The downside is that it would cost a hell of a lot of money, but they could theoretically have to do it anyway. If a police department bought a bunch of these and was apprehensive about using them, they could try to sue on a theory of breach of implied warranty. This wouldn't be an easy case, though.
That makes sense. I just wanted a bit of clarification about what the liability situation is. The law can get counterintuitive at times.
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