Is the availability of new health care products being determined by how good they look in a courtroom rather than how they are evaluated by scientists and health officials? It's increasingly common to hear manufacturers claim that health products are being withdrawn because of the costs of defending the products in court. Consider, for example, the recent shortage of DPT vaccine and the abandonment of production of intrauterine devices (IUDs) for contraception.
In 1980, the Procter & Gamble Corp. faced a number of claims from women who had developed toxic shock syndrome while using the Rely tampon. In "The Price of a Life," attorney and author Tom Riley tells how he battled P&G in court on behalf of the husband and children of one woman who died of tampon-related toxic shock. At the heart of this book is an account of how a major corporation used its enormous resources and influence to defend a health care product in court. Riley not only tells us about P&G, but also details what he did to prepare his case to prove that a Rely tampon caused the death of a young housewife.
P&G manufactures and markets soaps, toothpastes and a variety of personal health products, including tampons. This corporation also produces and sponsors many of the daytime television melodramas we call "soap operas." P&G has a great deal of experience in the use of marketing surveys and melodrama to sell products. Before going to court to claim that Rely tampons did not cause toxic shock, P&G spent about $200,000 just to stage three mock trials in which the "juries" were repeatedly surveyed to determine which courtroom scenarios and witnesses would best "sell" its claims to a real jury.
To make a case against P&G, Riley had to identify expert witnesses to testify on behalf of his client. After a number of frustrating inquiries and refusals, Riley realized that most of the experts in toxic shock had accepted research grants from P&G, which made them unwilling to testify against their benefactor. Eventually Riley uncovered information showing that the $2 milion P&G allocated for toxic shock research, after Rely was implicated as a cause of toxic shock, came out of the legal defense funds P&G was using to fight claims made by toxic shock victims. When Riley did locate a microbiologist who had refused funding from P&G and would testify against the corporation, the lawyer and the scientist held their first meeting in a New Jersey restaurant and the researcher insisted on sitting with his back to a wall -- fearing assassination. Despite these concerns, the record indicates that P&G never approached this scientist with anything more powerful than a loaded billfold.
As Riley describes his own efforts to understand the research data on the causes of toxic shock and the role played by tampons, he presents an accessible account of a great many scientific matters in layman's terms. Establishing a chronology of what research information was available at various times was an essential part of Riley's efforts to demonstrate that P&G had failed to warn Rely users of the risk of toxic shock. In the years since Riley's case came to trial, his continued investigations have also uncovered how some research done at the University of Wisconsin, identifying specific tampon ingredients that increase the formation of toxic shock toxin, had been suppressed in 1981 by pressure from P&G.
Although Riley never had enough money to sponsor toxic shock research or stage elaborate pretrial rehearsals, he managed to defeat P&G in court and won $400,000 in damages for his client. As part of his tactics, Riley called on a psychological consultant (as did P&G) to help select sympathetic jurors. This psychologist made a number of suggestions about seemingly superficial matters, which Riley admits he followed diligently, even though they embarrassed him at times.
For example, the psychologist trimmed the mustache of one of Riley's expert witnesses to make him look less "sinister." She also had the husband of the toxic shock victim take off the vest of his three piece suit so he wouldn't look too wealthy and unworthy of receiving damages.
Riley's account of this case may leave some readers with an unsettled feeling about the importance of facts in many legal battles. The final decision in such a case rests with a jury of average people who wait to be persuaded by whatever courtroom antics the attorneys are allowed by the presiding judge.
When Riley reviews the treatment received by the young woman who died of toxic shock and the experiences of her husband and children through the years that followed her death, he recounts a number of touching and tragic moments.
Because of Riley's legal investigations, P&G had to turn over a large number of corporate memos and records which demonstrate to the reader how the corporation perceived the "problem" of toxic shock and its effect on the marketing of Rely tampons. Discussions between the manufacturers and various health officials inside the government are also documented, offering a perspective on how federal officials make decisions on recalling health products that appear dangerous.
Riley has produced a book that tells what it's like to fight a giant corporation in court. His tale proves it is possible for an individual to make a successful claim, despite the unequal resources available to each side. The legal details that Riley includes will be useful to any general reader who might feel it necessary to enter a product liability claim, as well as lawyers who want to learn some specifics about Riley's tactics against P&G. The book is full of suggestions on how similar cases might be prepared and pursued. This book is also an important document in the history of the toxic shock tragedy, which has victimized hundreds of women. The book may help other women avoid similar victimization.
Armand Lione is president of Associated Pharmacologists and Toxicologists, a nonprofit organization that does education and research in toxicology in Washington.