Kehm v. Procter & Gamble Co.

• Decision Date: 29 June 1982
• Docket Number: No. C 80-119.,C 80-119.
• Citation: 580 F. Supp. 890
• Parties: Michael L. KEHM, Administrator of the Estate of Patricia Ann Kehm, Deceased, et al., Plaintiffs, v. The PROCTER & GAMBLE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Iowa

580 F. Supp. 890

Michael L. KEHM, Administrator of the Estate of Patricia Ann Kehm, Deceased, et al., Plaintiffs, v. The PROCTER & GAMBLE COMPANY, Defendant.

No. C 80-119.

United States District Court, N.D. Iowa, Cedar Rapids Division.

June 29, 1982.

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Tom Riley, Peter C. Riley, T. Todd Becker, Cedar Rapids, Iowa, for plaintiffs.

John W. Allured, San Francisco, Cal., Mark B. Hutton, Wichita, Kan., James D. Todd, Jackson, Tenn., James B. Brien, Mayfield, Ky., for amicus curiae parties.

Timothy S. White, Steven K. Warbasse, J. Richard Johnson, Cedar Rapids, Iowa, Thomas S. Calder, Frank C. Woodside, III, Cincinnati, Ohio, for defendant.

Michael A. Guidicessi, Des Moines, Iowa, for Des M. Register, etc.

Lawrence Blades, Richard G. Hileman, Jr., Cedar Rapids, Iowa, for KCRG.

Michael McDermott, Allan W. Vestal, Cedar Rapids, Iowa, for KGAN.

John C. Monroe, Cedar Rapids, Iowa, for Judge McManus on Mandamus action in Appeals Court.

ORDER

McMANUS, Chief Judge.

This matter is before the court on defendant's resisted motions for judgment notwithstanding the verdict and for a new trial, filed May 3, 1982, its unresisted motion to stay imposition of costs, and its resistance to plaintiffs' bill of costs, both of which were filed May 14, 1982. Ruling in accordance with order.

This is a products liability action arising out of the death of Patricia Kehm. Plaintiffs, Mrs. Kehm's surviving husband and children, alleged that Mrs. Kehm died of Toxic Shock Syndrome (TSS) proximately caused by her use of Rely tampons, a product designed and manufactured by defendant, that were defective and unreasonably dangerous. On April 21, 1982, a jury returned a verdict of $300,000.00 for plaintiffs on their claim for compensatory damages. The jury found for defendant on plaintiffs' claim for punitive damages.

The court has before it defendant's motions for judgment notwithstanding the verdict and a new trial, its motion to stay imposition of costs, and its resistance to plaintiffs' bill of costs. These matters will be taken in turn. In this regard, no attempt to detail the facts of this case will be made at this time. Rather, in ruling on the various questions now before it, the court will set out the facts to the extent necessary to achieve that end.

I.

In its motion for judgment notwithstanding the verdict, defendant challenges the sufficiency of the evidence of product defectiveness and of causation. To rule on this motion, the court has to determine whether the jury's verdict was based on "substantial evidence." Duncan v. St. Louis—San Francisco Ry. Co., 480 F.2d 79, 83 (8th Cir.1973); Marcoux v. MidStates Livestock, Inc., 429 F.Supp. 155, 158 (N.D.Ia.1977), aff'd, 572 F.2d 651 (8th Cir. 1978); Volkswagen of Iowa City, Inc. v. Scott's Inc., 165 N.W.2d 789, 793 (Iowa 1969).¹ The "substantial evidence" test requires that the jury verdict be supported by more than a "scintilla" of evidence. Marcoux, 429 F.Supp. at 158-59. In making this determination, the court must examine the record; it must review the testimony, but it may not assign credibility or weight to the witnesses and evidence. Simpson v. Skelly Oil Co., 371 F.2d 563, 567 (8th Cir.1967); Marcoux, 429 F.Supp. at 158-59. The court may not substitute its judgment of the facts for that of the jury, and it must view the evidence in the light most favorable to the plaintiffs. Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Marcoux, 429 F.Supp. at 159. Hence, motions for judgment notwithstanding the verdict are sparingly granted, and then "only where the evidence points all one way and is susceptible of no reasonable inferences sustaining the position of the non-moving party." Id. (quoting Giordano v. Lee, 434 F.2d 1227, 1231 (9th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971)) (emphasis in original).

The thrust of defendant's motion is that the plaintiffs failed to prove that Rely tampons were defective. In making this assertion, defendant suggests that the only evidence offered on this point was the expert opinion of Dr. Tierno that the carboxymethylcellulos absorbents in Rely tampons act as a catalyst for the staphylococcus aureus, or "staph," infection implicated in TSS. This evidence, defendant argues, should be rejected, as it amounts to nothing more than speculation and conjecture; defendant strenuously asserts that Dr. Tierno's conclusions are scientifically invalid because he is the only person who has reached them, because his results have never been duplicated, and because the medical research in this area is incomplete.

From the premise that no evidence exists on the issue of defectiveness, defendant next asserts that there exists no evidence of a failure to warn on its part. In essence, defendant argues that no warning was necessary because the product was not defective.

Lastly, defendant maintains that plaintiffs failed to prove that the Rely tampons used by Mrs. Kehm proximately caused her illness or death. Defendant contends that Dr. Tierno was the only witness to testify that Rely tampons cause TSS and that his testimony should be rejected. Also, defendant contends that Mrs. Kehm did not contract and die from TSS, but that she died from a uterine infection unassociated with staphylococcus aureus.

The court, in accordance with the legal standards governing this matter, must disagree with defendant.

This case was submitted only on the theory of strict liability in tort, and plaintiffs identified two varieties of product defectiveness: (1) defective design, and (2) failure to warn. The jury returned a general verdict for plaintiffs on this claim.²

With regard to the first theory, plaintiffs offered evidence, and argued, that the Rely tampons used by Mrs. Kehm were defective and unreasonably dangerous because the carboxymethylcellulos absorbents present in them acted as a catalyst for the development of a staph infection and resulting TSS. With regard to plaintiffs' second theory, plaintiffs offered evidence, and argued, that (1) defendant either knew or should have known of the defective design just described, and (2) that, even if defendant did not have knowledge or reason to know of the details of that design defect, defendant certainly knew or should have known of epidemiological studies that showed a strong statistical association between menstrually related cases of TSS and the use of Rely tampons.

As framed, defendant's argument that plaintiffs failed to prove the existence of a defect in Rely tampons is viewed by the court as untenable. While the court recognizes that the scientific community is not in complete accord as to the cause of TSS and the scientific link between TSS and Rely tampons, and that defendant produced a greater number of experts on this issue than plaintiffs did, the fact remains that plaintiffs' expert, Dr. Tierno, expressed an expert opinion on these points favorable to plaintiffs and the jury's verdict. Defendant makes no claim that the court erred in allowing Dr. Tierno to testify as an expert witness. That being the case, and the court being satisfied that Dr. Tierno's expert testimony was properly admitted,³ defendant is left with the long established rule that the jury is entitled to assign such weight to expert testimony as it sees fit. E.g. Skar v. City of Lincoln, Neb., 599 F.2d 253 (8th Cir.1979). Stated differently, Dr. Tierno's testimony is sufficient to uphold the jury's verdict.

Defendant's argument regarding proof of defectiveness must be rejected for another reason, as well. As indicated, plaintiffs' theory of product defectiveness turned also on defendant's failure to warn Mrs. Kehm of the danger associated with the use of Rely tampons.⁴ This failure to warn theory turned in part on the existence of epidemiological studies that concluded, according to another of plaintiffs' experts, Dr. Dan, that a strong statistical association exists between the use of Rely tampons and the incidence of menstrually related TSS cases. This testimony of Dr. Dan, together with the evidence that defendant knew or should have known of the studies and their conclusion, amounts to substantial evidence in support of the jury's verdict on plaintiffs' failure to warn theory. See Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292, 299-300 (3rd Cir.1961).⁵

The foregoing discussion effectively eliminates the need to further discuss defendant's second argument, to-wit, that there was no duty for it to warn against the use of Rely tampons because there was no evidence that Rely tampons were defective. Therefore, the court proceeds to defendant's last contention.

Defendant maintains that plaintiffs failed to prove that Mrs. Kehm's death was proximately caused by her use of Rely tampons or even that she died of TSS. Again, the court disagrees.

Taking the second contention first, it is sufficient merely to detail the evidence in support of the jury's verdict: (1) the testimony of Doctors Jacobs, Quetsch, and Skopec, the treating and consulting physicians and the pathologist, respectively, that Mrs. Kehm died of TSS; (2) Dr. Skopec's autopsy report; (3) the testimony of Dr. Dan regarding the case study definition of TSS; (4) the testimony of Dr. Tierno regarding the role played by staphylococcus aureus in TSS; (5) Mr. Kehm's testimony concerning Mrs. Kehm's symptoms just prior to her death; and (6) the testimony of Dr. Shirk, Mrs. Kehm's family physician, concerning the absence of any pelvic-area infections just ten days prior to Mrs. Kehm's death. While the court recognizes that defendant believes Mrs. Kehm died as the result of a gram negative shock syndrome and not TSS, and that its expert, Dr. McKinivan, testified to that end, the court, in light of the evidence just detailed, cannot disregard the jury's verdict to the contrary.

Similarly, the court must reject defendant's contention that the death...