$11.5 Million Verdict Against Playtex in Toxic Shock Death of Kansas Woman

Betty O'Gilvie was 21 years old when she died on April 2, 1983, three days after toxic shock syndrome overtook her body. She had been using Playtex Super tampons. Her husband, Kelly O'Gilvie, filed suit individually and as administrator of her estate, naming International Playtex, Inc. as defendant and alleging the product's design caused Betty's death.

The central issue at trial was Playtex's use of polyacrylate fibers in its super-absorbent tampons. By 1980, the Centers for Disease Control had already linked tampon use to toxic shock syndrome, and research linked polyacrylates specifically to elevated risk. Plaintiffs presented evidence that Playtex continued marketing its super-absorbent lines to young women, the demographic most vulnerable to TSS, while failing to adequately warn consumers of the known danger.

The jury returned its verdict in February 1985 in the U.S. District Court for the District of Kansas. It awarded $1,525,000 in actual damages and $10,000,000 in punitive damages, a total of $11,525,000. The firm of Michaud, Cordry, Michaud, Hutton and Hutton, with Gerald L. Michaud and Mark B. Hutton representing the O'Gilvie family, secured the verdict.

After the verdict, Playtex moved to remit the punitive award. The trial court reduced the $10 million to $1,350,000, reasoning that because Playtex had voluntarily recalled the three affected tampon lines and removed polyacrylate fibers from all of its products, further deterrence was no longer necessary. The recall covered Playtex Super, Super Plus, and Slender tampons in both scented and unscented versions.

The O'Gilvie family appealed the remittitur. On June 18, 1987, the Tenth Circuit Court of Appeals affirmed the judgment against Playtex on liability but reversed the trial court's reduction of punitive damages, reinstating the full $10,000,000 punitive award. See O'Gilvie v. International Playtex, Inc., 821 F.2d 1438 (10th Cir. 1987). The case later reached the U.S. Supreme Court on the separate question of whether punitive damages constitute taxable income, with the Court ruling 6-3 in 1996 that they do.