O'Gilvie v. International Playtex, Inc.

Decision Date18 June 1987
Docket NumberNos. 85-1861,85-1887,s. 85-1861
Citation821 F.2d 1438
Parties, Prod.Liab.Rep.(CCH)P 11,428 Kelly M. O'GILVIE, individually, and as Administrator of the Estate of Betty L. O'Gilvie, deceased; and Stephanie L. O'Gilvie, a minor, and Kevin M. O'Gilvie, a minor, By and Through Kelly M. O'Gilvie, their father and natural guardian, Plaintiffs-Appellants, Cross-Appellees, v. INTERNATIONAL PLAYTEX, INC., Defendant-Appellee, Cross-Appellant, Motor Vehicle Manufacturers Association, Inc., Product Liability Advisory Council, Inc., and Gulf & Great Plains Legal Foundation, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Gerald L. Michaud of Michaud, Cordry, Michaud, Hutton & Hutton (Mark B. Hutton, with him on the brief, Donald S. Andersen and Marlys A. Marshall, of counsel), Wichita, Kan., for plaintiffs-appellants, cross-appellees.

Charles M. McCaghey of Olwine, Connelly, Chase, O'Donnell & Weyher, New York City (Glenn J. Pogust and Grace M. Healy of Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, and Larry W. Wall of Stratton, Russell, Toomey & Wall, Wichita, Kan., of counsel), for defendant-appellee, cross-appellant.

Aaron D. Twerski, Professor of Law, Hofstra University School of Law, Hempstead, N.Y., Marc R. Brosseau of Weller, Friedrich, Hickisch, Hazlitt & Ward, Denver, Colo. (William H. Crabtree and Edward P. Good, Motor Vehicle Manufacturers Ass'n of the United States, Detroit, Mich., of counsel), filed a brief on behalf of amici curiae Motor Vehicle Manufacturers Ass'n, Inc. and Product Liability Advisory Council, Inc.

Jerald L. Hill and Mark J. Bredemeier of Gulf & Great Plains Legal Foundation, Kansas City, Missouri, filed a brief on behalf of amicus curiae Gulf & Great Plains Legal Foundation.

Before McKAY, SETH, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Kelly O'Gilvie brought this diversity action, individually and on behalf of the estate of his deceased wife Betty, against International Playtex, Inc. O'Gilvie alleged that Betty's use of Playtex super-absorbent tampons caused her death from toxic shock syndrome, and he sought damages from Playtex under the Kansas law of strict liability in tort. In answers to special interrogatories, the jury found that Playtex tampons had caused Mrs. O'Gilvie to develop toxic shock syndrome, and that Playtex had failed to adequately warn of the fatal risk of toxic shock from the use of its product. The jury awarded actual damages of $1,525,000, 1 and punitive damages of $10,000,000. After the entry of judgment and apparently in response to the trial court's suggestion, Playtex represented that it was discontinuing the sale of some of its products, instituting a program of alerting the public to the dangers of toxic shock syndrome, and modifying its product warning. The court thereupon ordered the punitive damage award reduced to $1,350,000.

Both parties have appealed. O'Gilvie contends that the court abused its discretion by reducing the amount of the punitive damages award. Playtex asserts: 1) it was entitled to a directed verdict because there was no evidence that the warning was inadequate or that it caused the injury; 2) the court erred in refusing to allow the jury to consider the fault of Betty O'Gilvie or the fault of other tampon manufacturers; and 3) the court erred in submitting the issue of punitive damages to the jury. We find no ground for disturbing the liability verdict against Playtex. We conclude, however, that the court's order reducing the punitive damage award must be reversed.

I.

A review of the record reveals the following sequence of events. On Tuesday, March 29, 1983, Betty O'Gilvie attended hairdressing school all day. While there, she told a friend that she had had a sore throat and a vaginal yeast infection all weekend, and that she was going to call her doctor. Mrs. O'Gilvie's husband testified that he first became aware she was not feeling well on Wednesday morning, March 30. She told him she thought she had a cold or the flu. Mrs. O'Gilvie's sister, Cheryl Ballway, took Mrs. O'Gilvie to the office of her physician, Dr. Hays, the morning of March 30 for a 9:30 a.m. appointment. Although Ms. Ballway testified that Mrs. O'Gilvie said she was suffering from vomiting and diarrhea, the doctor testified that Mrs. O'Gilvie did not mention these symptoms to him. Mr. O'Gilvie testified that his wife did not have these symptoms at any time before she went to Dr. Hays.

When Mrs. O'Gilvie asked Dr. Hays about toxic shock syndrome, he assured her that she did not have it and diagnosed scarlet fever. Mrs. O'Gilvie's temperature rose to 105? by Wednesday evening, and Mr. O'Gilvie testified that she had more or less lost consciousness. He called Dr. Hays at about 10 p.m., and Dr. Hays reassured him that the scarlet fever was running its course. The doctor instructed him to continue giving Mrs. O'Gilvie aspirin, fluids, and the prescribed medication. Mrs. O'Gilvie's mother-in-law, who was caring for her, called Dr. Hays' office at about 9 a.m. Thursday, March 31. She did not speak with Dr. Hays and was told by office personnel to continue the treatment. Mrs. O'Gilvie's condition steadily deteriorated Thursday morning, and her mother-in-law called the office at 1:30 p.m. to report that Mrs. O'Gilvie's fingers were turning blue. Shortly thereafter Mrs. O'Gilvie was brought to the office, emergency measures were begun, and she was rushed to the hospital. She died Saturday, April 2, of toxic shock syndrome.

II.

Playtex contends that it was entitled to a directed verdict because O'Gilvie presented no evidence that the warning accompanying its super-absorbent tampons was inadequate or that the warning was the cause of Mrs. O'Gilvie's injury. We disagree. A directed verdict is not proper if the record, viewed most favorably to the party opposing the motion, contains evidence upon which a reasonable jury could return a verdict for the nonmoving party. See Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986); Mackey v. Burke, 751 F.2d 322, 325 (10th Cir.1984).

O'Gilvie argued at trial that the warning was inadequate because it did not properly apprise users of the causal connection between toxic shock and the use of tampons, or of the increased risk from the use of super-absorbent tampons. 2 The record contains substantial expert testimony that a causal link exists between toxic shock and the use of super-absorbent tampons such as the Playtex product at issue here. Experts also testified that the warning did not alert buyers to the increased risk from use of high-absorbency tampons, and that simply mentioning an association between toxic shock and tampon use did not adequately alert users to the cause and effect relationship. Indeed, Playtex' own expert, Dr. David Hall, testified that if Playtex tampons cause toxic shock, the Playtex package warning was inadequate. See rec., vol. 25, at 2690, 2721, 2723.

Playtex' argument that there is no evidence of a causal connection between the inadequacy of the warning and the injury is also without merit. Under Kansas law, an inadequate warning creates a presumption of causation. See Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1057 (1984). This presumption, considered together with Kelly O'Gilvie's testimony on the consideration his wife would have given an adequate warning, was sufficient to send the causation issue to the jury.

Playtex also argues that its warning was adequate as a matter of law because it complied with Food and Drug Administration (FDA) regulations. In the alternative Playtex contends that the court's instruction on the effect of compliance with FDA requirements was erroneous. We are not presuaded by these arguments.

The district court instructed the jury as a matter of law that the Playtex package warning was in conformity with FDA regulations, and further instructed:

"If the warning on the product was, at the time of manufacture, in compliance with administrative regulatory safety standards relating to warnings or instructions, then such warning is evidence of due care, and the product shall be deemed not defective by reason of the warning or instructions, unless the plaintiff proves that a reasonably prudent manufacturer could and would have taken additional precautions.

"In other words, you are instructed that even if you find that defendant International Playtex met all government regulations and requirements, which are minimum standards, such compliance is not a defense if a reasonable and prudent manufacturer would have taken added precautions."

Rec., vol. 1, at 129.

On appeal, Playtex contends that the court erred in this instruction by characterizing the FDA requirements as minimum standards. This argument fails on two grounds. Although the record bristles with objections by everyone to virtually everything on every conceivable ground, Playtex did not object to this instruction on that ground. See, rec., vol. 29, at 3364-65. Moreover, the instruction is an accurate reflection of the law of Kansas. See Kan.Stat.Ann. Sec. 60-3304 (1983); Jones v. Hittle Serv., Inc., 219 Kan. 627, 549 P.2d 1383 (1976).

We also reject Playtex' argument that its compliance with FDA standards entitled it to judgment as a matter of law. Compliance is not dispositive under Kansas law if the plaintiff shows that a reasonable manufacturer would have done more. O'Gilvie presented ample evidence that mere compliance with the FDA standards was not adequate under the circumstances. The court therefore properly sent the issue to the jury. 3

III.

Playtex contends that it is entitled to a new trial because the district court refused to allow the jury to consider the issue of the comparative fault of Betty O'Gilvie or of other tampon manufacturers.

A.

Playtex correctly points out that, under Kansas law, "all types of fault, regardless of degree, are to be compared with that of defendant whether the fault is...

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