O'GILVIE v. Intern. Playtex, Inc., 83-1846-K.

• Decision Date: 24 May 1985
• Docket Number: No. 83-1846-K.,83-1846-K.
• Citation: 609 F. Supp. 817
• Parties: 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, v. INTERNATIONAL PLAYTEX, INC., a Corporation, Defendant.
• Court: U.S. District Court — District of Kansas

609 F. Supp. 817

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, v. INTERNATIONAL PLAYTEX, INC., a Corporation, Defendant.

No. 83-1846-K.

United States District Court, D. Kansas.

May 24, 1985.

Gerald L. Michaud and Mark B. Hutton, Wichita, Kan., for plaintiffs.

Larry Wall, Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., Charles M. McCaghey, Olwine, Connelly, Chase, O'Donnell & Weyner, New York City, for defendant.

REMITTITUR OF PUNITIVE DAMAGES

PATRICK F. KELLY, District Judge.

On February 25, 1985, the jury unanimously responded to certain questions propounded by the Court as follows:

1. Was decedent Betty O'Gilvie, in late March 1983 and during the course of her menstrual cycle, using defendant's product?

Yes X No ____

2. In March 1983, did use of Playtex super deodorant tampons cause or contribute to the cause of toxic shock syndrome?

Yes X No ____

3. As compared to all other tampons, including competitors, is there an increased risk of contracting toxic shock syndrome when using these super deodorant tampons?

Yes X No ____

4. Did the label and instructions inside and outside the Playtex box at the time the product was being used by Betty O'Gilvie adequately and fairly inform and warn Betty O'Gilvie of the risk of TSS which may be fatal from using Playtex tampons?

Yes ____ No X

5. Do you find International Playtex and/or Dr. Thomas Hays to be at fault in this case?

Yes X No ____

6. If you answer No. 5 "yes", then, considering all of the fault at 100%, what percentage of fault is attributable to each of the following:

                International Playtex           (0 to 100%)  80% 
                Dr. Hays (and his agents or
                employees)                      (0 to 100%)  20%
                Total                                       100%
                

7. Without considering the percentage of fault found in No. 6, what total amount of damages do you find should be awarded:

                Conscious pain and suffering of
                 Betty O'Gilvie                        $250,000.00
                Nonpecuniary loss (not to
                 exceed $25,000.00) to Kelly
                 O'Gilvie and children                   25,000.00
                Pecuniary loss to Kelly O'Gilvie
                 and children                           1,250,000.00
                

8. Did International Playtex know, or should it have known, of the increased risk of developing toxic shock syndrome when using Playtex super deodorant tampons at the time of the death of Betty O'Gilvie?

Yes X No ____

9. Was the failure of International Playtex to adequately warn about the increased risk of toxic shock syndrome with the usage of Playtex super deodorant tampons a reckless disregard by International Playtex of the consequences of its acts?

Yes X No ____

10. If your answer to No. 9 is "yes", you may assess punitive damages as you feel are warranted from the evidence.

Punitive damages $10 million

On March 21, 1985, the Court took up defendant's motions, all of which were overruled. Specifically, the jury's assessment of punitive damages, while substantial, was found to be not excessive, nor did it shock the Court's conscience. In the Court's view, in light of the evidence and the jury's findings, the jurors expressed their "outrage" the only way they could — with money damages. Conversely, the jurors were actually saying, "Take that damnable product off the market!"

Following the Court's findings and rulings, the Court tendered a provocative proposition to the defendant. Speaking indirectly to the President of Beatrice Company, the parent company of defendant International Playtex, the Court commented in substance as follows:

That this person should know, that in the Court's view, there was ample evidence to support each finding of the jury; that punitive damages are essentially intended to deter wrongdoing; that in the event there are no changes contemplated by the defendant International Playtex, such damages as manifested by this jury are probably "only the beginning. There surely will be others!"

Further, the Court ventured that the President of Beatrice was probably an entirely decent person, and if he concurred with these findings, he would surely order a change.

The Court then represented to defendant's counsel that in the event this person, or his authorized representative, elected to appear in this Court on April 29, 1985, to acknowledge the jury's findings as factually established and announce the removal of the polyacrylate tampon from the market-place, the Court in turn would consider a substantial reduction, if not elimination, of the punitive damages award.

The Court's tender of a reduction of any portion of the jury verdict on the basis of the conditions set forth was probably without precedent. This proposition was an innovative remedy geared to what the Court reasoned as "that which ought to be." In this, the Court has drawn from similar experiences in dealing with those persons who have appeared here for the purposes of punishment. In many instances the ordeal itself is punishment enough. In others, deterrence is paramount. When wrongdoing is acknowledged, where changed is agreed to, indeed, where change has occurred, the Court is usually impressed and persuaded principally as to what further punishment, if any, is then in order. In the Court's view, such remedial events are appropriate elements of mitigation which, in the Court's discretion, should be noted and considered.

Within two weeks of that hearing, the Court noted the defendant's public announcement to the effect that its Playtex Slender, Super and Super Plus Tampons — those containing polyacrylate fibers — will no longer be made. Shortly thereafter, defendant's counsel communicated with the Court in the interest of further conference and for a continuance of the pending hearing. With the concurrence of plaintiffs' counsel, the Court conferred with counsel for International...