A Verdict on Tampons

But the impact on toxic-shock cases is unclear

When Procter & Gamble put its first tampon product into national distribution, the ads boasted, "It even absorbs the worry." But Rely tampons soon provoked frantic worry. In 1980 the federal Centers for Disease Control tied tampons to an outbreak of rare--sometimes fatal--toxic-shock syndrome. One study of a group of TSS sufferers found that 71% of them used Rely. Though the product had captured 20% of the market, the company recalled it. Then came the lawsuits--400 against Procter & Gamble, 100 or so against four other manufacturers. Last week plaintiffs and defendants in those cases were watching closely when a federal jury in Denver returned the first verdict on Rely. The result contained bad news for both sides. After nearly 20 hrs. of deliberation, the jury found that Procter & Gamble was negligent in selling a defective product, but it also concluded that the young woman who brought the case did not deserve any money.

That strangely bifurcated outcome--perhaps the result of a compromise by the five-man, three-woman jury--astonished Plaintiff Attorney Jon Kidneigh. "We did win, didn't we?" he asked. "I've never won one and got nothing." Other lawyers, though puzzled by the verdict, had considered the case one of the weakest among those pending. After using Rely in May 1980, Deletha Lampshire, now 18, of Littleton, Colo., said she experienced typical TSS symptoms, including low blood pressure, high fever and peeling skin. She spent six days in the hospital. Since then, Lampshire told jurors, she has suffered memory loss and depression. "I felt dirty, and I still do," she said. "No man would want to marry me." An economist testified that her difficulties, which included poorer college grades, would seriously reduce her long-range earning power. Procter & Gamble countered by noting that Lampshire had seemingly recovered: she was, for example, student-body president at her high school the year after her illness. Asked Defense Lawyer Thomas Calder: "Does that sound to you like a young woman who has been held back?"

Though the jurors apparently decided it did not, lawyers representing women in other TSS cases could take satisfaction from the jury's negligence verdict. It did not explicitly find that Rely caused toxic shock. But Microbiologist Philip Tierno of New York University Medical Center clearly bolstered the plaintiffs case with his testimony that the cellulose chips in Rely "can provide the sole nutrient" to encourage the growth of Staphylococcus aureus, a bacterium sometimes present in the vagina. The bacteria, in turn, generate poisonous waste products, which are circulated by the blood.

Many plaintiffs in other cases have suffered injuries graver than Lampshire's--including brain damage, gangrene, partial paralysis and death. They may not come away emptyhanded, as Procter & Gamble and the other defendants know. Some cases have been settled out of court. International Playtex reportedly agreed last December to pay $500,000 in a fatal case of toxic shock; most other settlements have been less than $15,000. The next major trial, involving a death after the use of Rely, begins in two weeks in Cedar Rapids, Iowa. The plaintiffs lawyer in that case, Tom Riley, went to Denver to watch the Lampshire trial. If he had not known it already, he learned that toxic shock's mysteries now include legal uncertainty as well.

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