West v. Johnson & Johnson Products, Inc.

• Decision Date: 21 November 1985
• Citation: 220 Cal.Rptr. 437,174 Cal.App.3d 831
• Court: California Court of Appeals Court of Appeals
• Parties: , 59 A.L.R.4th 1, 54 USLW 2344, Prod.Liab.Rep. (CCH) P 10,883 Lynette WEST, Plaintiff/Appellant, v. JOHNSON & JOHNSON PRODUCTS, INC., Defendant/Appellant. A021842.

Page 437

220 Cal.Rptr. 437

174 Cal.App.3d 831, 59 A.L.R.4th 1, 54 USLW 2344,

Prod.Liab.Rep. (CCH) P 10,883

Lynette WEST, Plaintiff/Appellant, v. JOHNSON & JOHNSON PRODUCTS, INC., Defendant/Appellant.

A021842.

Court of Appeal, Sixth District, California.

Nov. 21, 1985.

As Modified Dec. 23, 1985.

Review Denied March 13, 1986.

Charles F. Preuss, Elliot L. Bien, Bronson, Bronson & McKinnon, San Francisco, David F. Dobbins, New York City, N.Y., Hufstedler, Miller, Carlson & Beardsley, Los Angeles, for plaintiff/appellant.

Robert P. Fisher, Glaspy & Glaspy, Soquel, for defendant/appellant.

BRAUER, Associate Justice.

Plaintiff Lynette West (hereinafter West) contracted toxic shock syndrome while using a vaginal tampon manufactured by defendant Johnson & Johnson Products, Inc. (hereinafter JJP). ¹ In a subsequent action based upon strict product liability, a jury awarded West $500,000 in compensatory damages and $10 million in punitive damages against JJP. A judgment was entered accordingly. Thereafter JJP moved for a new trial and for judgment notwithstanding the verdict. The trial court denied the latter motion, but conditionally granted the motion for new trial on the ground of excessive damages; a new trial was ordered unless West agreed to accept a reduction in compensatory damages to $100,000 and a reduction in punitive damages to $1 million. (Code Civ.Proc., § 662.5, subd. (b).) West filed a written acceptance of the reductions.

JJP appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict. (Code Civ.Proc., § 904.1, subds. (a) and (d).) West cross-appeals from the order modifying the judgment. ² (Code Civ.Proc., § 904.1, subd. (b).)

On appeal JJP contends:

1. That West's counsel, by means of a "semantic ploy," mischaracterized the action as a "design defect" case rather than a "failure to warn" case; and this "semantic ploy" led to the rejection of JJP's proffered instructions on "failure to warn";

2. That no substantial evidence was presented to show that a lack of adequate instructions or of a warning proximately caused West's injury;

3. That the trial court committed prejudicial error by receiving in evidence, over objection, testimony concerning consumer complaints about JJP's tampon;

4. That West's counsel engaged in prejudicial misconduct in opening statement, in examining witnesses, and in argument; and

5. That the trial court committed prejudicial error in instructing the jury (a) on the "consumer expectation" test, rather than the "risk-benefit" test, set forth in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 435, 143 Cal.Rptr. 225, 573 P.2d 443; (b) on the issue of punitive damages; and (c) on the issue of willful suppression of evidence.

On cross-appeal West contends, in essence, that the trial court abused its discretion in ordering that her remittitur be a condition precedent to a denial of JJP's motion for new trial.

For reasons hereinafter set forth, we find each of the foregoing contentions to be without merit, and we therefore affirm both the judgment and the order.

I. THE INJURY

In February of 1980, West was a 20-year-old student living with her parents. During the weekend of February 23-24, her regular menstrual cycle began. As was her custom, she used o.b. tampons ³ manufactured by JJP. She had been using o.b. tampons for close to five years. She preferred o.b. tampons to other brands because (a) they were shorter in length, (b) their fibers were more tightly compacted, and (c) they required no applicator. Depending on the rate of her menstrual flow, she usually used either "regular" or "super" o.b. tampons. ⁴ On the evening of February 26, 1980 West had a date to attend a rock concert. In preparing for the date, she inserted a fresh o.b. tampon. She felt fine during dinner and during the first part of the concert. But during the latter part of the concert she became "very hot and very light headed, and just started feeling kind of faint--very drained." She walked around in the hall for awhile, got a drink of water, and returned to her seat. Then she again became "very faint, and very hot." She again left her seat, and lay down in a cement aisle in the auditorium, to "try and cool down." Her escort took her home. When she went to bed she was feeling "[r]eally tired, really drained, very hot."

The next day, February 27, she felt worse. She decided to stay home in bed. Throughout the day she felt "real hot," "really weak," and sometimes "really faint." She thought she had the flu. She was still using tampons; at trial she could not remember whether she changed tampons that day. In the evening she began vomiting, and lost control of her bowels.

On the morning of February 28 she collapsed on the floor of the bathroom, and was unable to move. Her parents carried her out to their car, and then took her to a Kaiser Hospital emergency room.

Initial examination revealed that West had a wealth of symptoms, including the following: (1) abnormally low blood pressure, which was falling--West was "approaching shock"; (2) a fever with a temperature of 104.4 degrees, and chills; (3) vomiting; (4) pronounced reddening of the skin; (5) accelerated heartbeat; and (6) swollen tonsils with exudate. Laboratory tests disclosed abnormalities in the functions of West's liver and kidneys. West had a tampon in place; she was asked to remove it and did so.

Cultures were taken from West's vagina, rectum, and throat. The throat culture showed the presence of a bacterium known as beta-hymolytic streptococcus in West's throat. The vaginal and rectal cultures produced negative results.

Because of her falling blood pressure, ⁵ West was transferred to the hospital's intensive care unit. She was given intravenous fluids and antibiotics. One of the antibiotics was penicillin. Her blood pressure continued to fall, and she was in "very severe danger." She remained in severe shock for approximately eighteen hours.

On the morning of February 29 West's blood pressure gradually began to rise. By evening it had risen to a level of 100 systolic. But her creatinine level continued to rise, indicating that her kidneys were not yet functioning properly. Over the next few days West's condition stabilized; she ceased vomiting, her fever disappeared, and her blood pressure returned to normal, along with her liver and kidney functions. She was discharged from the hospital on March 4, 1980. Shortly after she returned home, the skin of her palms and of the soles of her feet peeled off in large chunks. She stayed at home for about a week, and then resumed her classes. But her full strength and endurance "didn't come back until months later."

When the Kaiser physicians first examined West, they were puzzled by her malady. In the words of one physician: "When someone is that sick, you're very, very insecure, not knowing what you're treating. We really had no direction to go on. We thought it was an infection, because of her fever. But we didn't have any clues at all." West's discharge summary contained a primary diagnosis of "shock with oliguric renal failure, etiology unclear," and a secondary diagnosis of "streptococcal pharyngitis." But because the case was puzzling, the physicians asked West to come in for follow-up visits. On March 27, West reported that she was feeling fine, and she appeared to be healthy. On June 30, she appeared to have no residual damage as the result of her illness.

Some months later, after reading reports published by the federal Center for Disease Control in Atlanta, Georgia, the Kaiser physicians reviewed West's medical records once again, and came to a unanimous conclusion that West had suffered from menstrually-related toxic shock syndrome (hereinafter TSS). One of the physicians told West about the belated diagnosis. As we shall see in Part IV of this opinion, post, the diagnosis was hotly disputed at trial.

II. THE SYNDROME

TSS was first identified as such in 1978 by Dr. James K. Todd of the University of Colorado. Dr. Todd observed the syndrome only in children. Later retrospective studies showed that the syndrome affects adult men and women as well as children, and that the syndrome has been around for many years, although not necessarily recognized as such.

Early in 1980 the federal Center for Disease Control (hereinafter CDC) began receiving reports from physicians and from state health departments about a "new disease." Approximately 97% of the cases reported involved menstruating women. According to reports, the women had fevers, temperatures as high as 107 degrees, profound shock, extremely low blood pressure, skin rashes, and liver and kidney abnormalities. At that time, the origin of the "disease" was unknown. Because its prevalance appeared to be increasing, the CDC organized a task force to study the phenomenon. By May of 1980 approximately 55 cases of the new "disease" had been reported; according to one expert witness, "about ten percent of everybody who got the disease had died."

The CDC task force began by drafting a restrictive definition of the new "disease." Included in the profile were the following elements: (1) a temperature of at least 102 degrees; (2) a sunburn-like rash, usually all over the body; (3) desquamation, i.e., peeling of the skin 7-10 days after the malady subsided; (4) abnormally low blood pressure; (5) diarrhea and vomiting; (6) pain in the muscles; and (7) abnormalities in liver and kidney functions. On May 23, 1980 the CDC published a report which indicated a strong correlation between the new "disease" and menstruation. In a second bulletin published June 27, 1980, the CDC established a close association between incidents of TSS and tampon use.

Sometime in the middle of June, before its second bulletin on TSS was published the CDC invited tampon manufacturers to Atlanta, Georgia, to learn of its findings. Since the CDC knew very little about tampons, it asked the manufacturers...