724 F.2d 613 (8th Cir. 1983), 82-1910, Kehm v. Procter & Gamble Mfg. Co.

Docket Nº:82-1910.
Citation:724 F.2d 613
Party Name:Michael L. KEHM, Administrator of the Estate of Patricia Ann Kehm, Deceased, Appellee, v. The PROCTER & GAMBLE MANUFACTURING COMPANY; The Procter & Gamble Distributing Company; The Procter & Gamble Paper Products Company; and The Procter & Gamble Company, Appellants.
Case Date:December 02, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 613

724 F.2d 613 (8th Cir. 1983)

Michael L. KEHM, Administrator of the Estate of Patricia Ann

Kehm, Deceased, Appellee,



Gamble Distributing Company; The Procter & Gamble

Paper Products Company; and The Procter

& Gamble Company, Appellants.

No. 82-1910.

United States Court of Appeals, Eighth Circuit

December 2, 1983

Submitted Feb. 17, 1983.

Page 614

[Copyrighted Material Omitted]

Page 615

[Copyrighted Material Omitted]

Page 616

Dinsmore & Shohl, Cincinnati, Ohio, White & Warbasse, Cedar Rapids, Iowa, for appellants.

Tom Riley Law Firm, a Professional Corp., Cedar Rapids, Iowa, for Appellee.

Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

In this products liability action, Procter & Gamble appeals from the district court's 1 judgment enforcing a jury verdict and award against it for $300,000. The action arose following Patricia Kehm's death from toxic shock syndrome (TSS). Plaintiffs-appellees, Mrs. Kehm's surviving husband and children (Kehms), alleged that Mrs. Kehm's use of Rely tampons, a product designed and manufactured by Procter & Gamble, proximately caused her death, and that the tampons were defective and unreasonably dangerous. The jury returned a verdict in the plaintiffs' favor, awarding them $300,000 in compensatory damages, but rejecting the Kehms' demand for punitive damages.

On appeal, Procter & Gamble seeks a new trial, alleging five principal instances of prejudicial trial court error. Procter & Gamble contends the court erred in: (1) admitting reports prepared by the Center for Disease Control and various state health departments because the reports constituted inadmissible hearsay; (2) refusing to instruct the jury on Procter & Gamble's defense that Mrs. Kehm had a unique or "idiosyncratic" susceptibility to TSS; (3) refusing to grant a limiting instruction regarding Procter & Gamble's withdrawal of Rely tampons from the market; (4) admitting, and submitting to the jury, evidence bearing on punitive damages, including information on Procter & Gamble's financial resources; and (5) permitting an expert witness for the Kehms to perform an in-court demonstration. In addition, Procter & Gamble contests several other evidentiary rulings, which it claims resulted in unfair prejudice and improperly influenced the verdict. Finally, Procter & Gamble alleges misconduct by plaintiffs' counsel throughout the trial, which misconduct Procter & Gamble contends gave rise to an atmosphere of prejudice that precluded a fair trial. Procter & Gamble does not contest on appeal the sufficiency of the evidence to support the jury verdict on liability and causation.

Upon review of the entire record, we affirm the judgment of the district court.

I. Background.

Rely tampons consist of two absorbent materials contained in a polyester bag, which is, in turn, enclosed in a plastic inserter. The two materials, carboxymethylcellulose (CMC) and polyester, are not used in other tampons. Procter & Gamble first test-marketed Rely in 1974. By the end of 1979, the company was marketing the product nationally and had sold over half a billion Rely tampons.

Toxic shock syndrome was first identified and named in a November 1978 article by Dr. James K. Todd of the University of Colorado. Dr. Todd listed as symptoms of

Page 617

TSS fever, vomiting, diarrhea, low blood pressure, rash, and subsequent skin peeling. Dr. Todd hypothesized that Staphylococcus aureus (Staph A), a bacterium, caused the symptoms. Dr. Todd had observed the disease only in children, but by early 1980, several state health departments had reported TSS in adult women. In May 1980, the federal Center for Disease Control (CDC) published a summary of reported cases which indicated a strong correlation between the disease and menstruation. A June 27 CDC report drew the initial link between TSS and tampon use, but observed that the incidence of TSS did not appear to vary with the brand of tampon used. The CDC said the risk of TSS was too low to warrant a general recommendation against tampon use, but that women who were concerned about the disease could cut the risk by using tampons through only part of each menstrual period.

On August 8, 1980, Procter & Gamble received a responsible report that a Rely user had died of TSS. Procter & Gamble learned on August 21 of a Minnesota public health study showing twice as high a percentage of Rely users among TSS victims as among a control group of tampon-using women. On September 19, the CDC reported that its own study confirmed the Minnesota finding: Rely users were at a higher risk for TSS than users of other tampons. Procter & Gamble withdrew Rely from the market on September 22.

Patricia Kehm died on September 6, 1980, of what doctors later concluded was TSS. She had begun using Rely tampons on September 2, and had noticed the first symptoms of illness on September 3.

At trial, the Kehms advanced two theories of liability against Procter & Gamble: (1) Rely tampons were defective and unreasonably dangerous, because the CMC chips they contained fostered the growth of the bacterium that causes TSS; and (2) Procter & Gamble failed to warn Rely users of this defect when it knew or should have known of its existence. Procter & Gamble argued that it had no duty to warn because the tampons were not defective or unreasonably dangerous. Procter & Gamble also contended that Mrs. Kehm did not have TSS, and that even if she did, her unique susceptibility to the illness, rather than her use of Rely, was to blame for her death.

The jury awarded the Kehms $300,000 in compensatory damages, but no punitive damages. The district court denied Procter & Gamble's motions for a new trial and for judgment notwithstanding the verdict, and Procter & Gamble appealed.

II. Discussion.

A. Epidemiological Studies.

The district court admitted into evidence reports of epidemiological studies conducted by the CDC and various state health departments, and allowed the plaintiffs' expert, Dr. Bruce Dan, a former member of the CDC task force, to testify about these studies. Each of the studies analyzed the statistical relationship between tampon use and the incidence of TSS. The CDC's own study focused on cases of TSS which patients, doctors, and state health officials had reported to the CDC. The CDC administered a questionnaire both to a selected group of these TSS victims and to a control group. The questionnaire asked both groups about their exposure to and use of tampons, among other things. The CDC reported the results of its study, as well as the results obtained by the state agencies in their studies, in the CDC Morbidity and Mortality Weekly Report (MMWR). The state studies, including separate studies by health agencies of Utah, Wisconsin, and Minnesota, and a joint study by health authorities of Minnesota, Wisconsin and Iowa, were conducted in much the same manner as the CDC study.

Procter & Gamble contends that the MMWR reports of these studies, and much of Dr. Dan's testimony concerning them, are inadmissible as hearsay. Dr. Dan did not participate in the state studies, nor were either the interviewers who actually administered the CDC and state questionnaires to physicians, patients, and parents

Page 618

of patients, or the questionees themselves, available to testify. 2

The district court admitted the MMWR reports under Fed.R.Evid. 803(8)(C), an exception to the hearsay rule which authorizes admission of investigative or "evaluative" public records and reports. Rule 803(8)(C) excepts from the hearsay rule, in civil cases, the following:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth * * * factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Procter & Gamble argues that the MMWR reports are inadmissible because: (1) the statements they contain are not "factual findings" within the meaning of the rule; (2) the federal and state officials who prepared the studies did not have first-hand knowledge of the matters asserted; and (3) the statements are not trustworthy.

The public records and reports exception rests on "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." Fed.R.Evid. 803(8) advisory committee note, citing Wong Wing Foo v. McGrath, 196 F.2d 120 (9th Cir.1952). The rule "assumes admissibility in the first instance but with ample provision for escape if sufficient negative factors are present." Fed.R.Evid. 803(8) advisory committee note. The burden is on the party opposing admission to prove the report's untrustworthiness. See Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir.1978), cert. denied, 441 U.S. 933, 99 S.Ct. 2054, 60 L.Ed.2d 661 (1979).

Procter & Gamble argues that the studies do not constitute "factual findings" under Rule 803(8)(C) because they rest on medical opinions and diagnoses, and because the government officials conducting the studies did not have first-hand knowledge of the data they collected. But as the district court observed, courts construing the term "factual findings" in Rule 803(8)(C) have given it broad scope. See, e.g., United States v. American Telephone & Telegraph Company, 498 F.Supp. 353, 360 (D.D.C.1980) (citing cases). They have often admitted government reports setting forth agency opinions and conclusions on the ground that such reports, because they are public records based on investigations conducted pursuant to lawful authority, are presumptively...

To continue reading