Cases That Made A Difference

Tampons Causing Toxic Shock Syndrome Pulled From Market

Playtex voluntarily removed from the market tampons linked to toxic shock syndrome (TSS) after a federal court jury awarded compensatory damages and $10 million in punitive damages to the family of Betty O'Gilvie. The Kansas woman died from TSS after using the company's super-absorbent tampons. After the verdict, Playtex strengthened its warnings on other products about the association between tampons and TSS. The company also began a program to alert the public about the dangers of TSS.

Playtex had complied with Food and Drug Administration (FDA) regulations concerning the product's warning labels. However, the jury found FDA requirements only set minimum standards and mere compliance with those standards here had been inadequate under the circumstances.

The trial court, commenting on the jury's decision to assess punitive damages, said the "jurors were actually saying, 'Take that damnable product off the market.'" At a post-trial hearing, the judge told the president of Beatrice Company, the parent company of Playtex, that if no changes in the product were contemplated, the jury's award was probably "only the beginning. There surely will be others." The court also told plaintiffs' counsel that their efforts had "literally changed an industry."

(Subsequent Case History: In light of Playtex's response to this verdict, the trial court reduced the jury's punitive damages award from $10 million to $1.35 million. The 10th Circuit Court of Appeals affirmed the judgment against Playtex, but reinstated the original punitive damages award. The 10th Circuit held that the trial court had no authority to remit the award on the basis of post-trial occurrences. The U.S. Supreme Court declined to hear an appeal.)

O'Gilvie v. International Playtex, Inc., 609 F. Supp. 817 (D. Kan. 1985), rev'd, 821 F.2d 1438 (10th Cir. 1987), cert. denied, 108 S.Ct. 2014 (1988).