Lawsuit against Kotex for losing leg due to TSS

[zadie]

I think tampon companies have a responsibility that they aren't meeting, TBH. Not to warn about TSS, as they DO warn against TSS. They should be using the safest possible materials (which they aren't) and they should LIST the materials on the package and on their websites. I use a Diva Cup now, because the sheer amount of trash that tampons create was grossing me out. But after I read about this woman, and was horrified about what happened to her, I thought I would look to see if there are any tampons that are made out of cotton. I couldn't find a whole lot of information.

And I do feel for her. For some people, losing mobility IS worse than death.

The thing that bugs me about her is, if she really cared about everything you mentioned above, she could have become an activist. I think this lawsuit is totally going to fail, and if it does win in her favor it will be like others mentioned and they will settle. But the companies settling helps no one but her. If she actually cared about protecting other people, which is what she claims, then the lawsuit is a really useless way to go about it. She could become an acitvist and gain support for a protest of kotex and other tampon companies until they change their materials. Or educate herself and then others on alternatives like natural tampons or diva cups/menstrual cups.

What it really feels like to me is she's significantly upset about losing her leg (understandably) and she wants to get SOMETHING out of this. I just hate that she's painting it as she wants to help others.

[DaffyDill]

/.....snipped

All-cotton tampons would probably cost 2x as much if not more, to cover sudden cotton rises, and then people would bitch and not be willing to pay for it. The companies are using materials that are safe when used right.

We have a company here is Australia which makes 100% cotton tampons, and they are not 2x more expensive, or, in fact, anywhere near that. They are about 50 cents more per box than a similarly priced box of Kotex tampons, and cheaper again if you buy from the companys own website.

TSS does not come from the tampons, it comes from the Staphylococcus aureus bacterium, present on many people's bodies. The problems occur when a person does not have any immunity to that bacterium. Men and children can also get TSS.

From here: http://www.toxicshock.org.au

Q7. Is there a greater risk of developing TSS from tampons made from different fibers, specifically cotton or rayon?

A7. The US Centers for Disease Control, which has conducted careful epidemiological studies of these issues over 15 years, has found no evidence that the use of rayon fibers in a tampon increases the risk of TSS compared to the use of cotton fibers.

Q10. Do tampons cause TSS?

A10. No. After more than 10 years of research by medical and scientific experts, there is no evidence that tampons directly cause TSS. It is important to remember that the bacteria, staphylococcus aureus, are the cause of the illness - not the tampon. This explains why women using pads, men, children and can get TSS. However, women who use tampons during their period have a higher risk of TSS than women who don't.

So, seeing the answer to Q10 above, she'll get nowhere suing Kotex, as her TSS wan't caused by tampons, but rather, her lack of immunity to the bacterium that causes it.

[NoneandDoneinCali]

My understanding of using 100% cotton is that it can actually INCREASE the risk of TSS. TSS happens when naturally-occuring bacteria on the body reaches the level of toxicity, and cotton, as an organic material, may be a better breeding ground. It's nothing introduced by the tampon itself. In fact, I believe instances of TSS have gone down exponentially since the introduction of synthetic materials since the 80's. You can also get TSS from using pads, at least in theory. Also, the "ultra" absorbent tampons I use (I buy them at Target, I think they're Playtex) can be worn for up to 8 hours - the risk of TSS has to do with flow vs absorbency.

I think this is a horrible, but unpredictable, catastrophic event, that could have been prevented if she'd gotten to the ER in time. I am not going to blame her, because I'm pretty sure she's suffered enough. I also don't think she should win a lawsuit. There are warnings inside and outside of most boxes of tampons. She has been using them for ten plus years, without incident. She is an experienced user. Also, the VICE article was incredibly cagey about certain things - when/why she started feeling sick (sorry to be a cynic, but I'm thinking she drank too much and passed out for many hours), how long she left this particular tampon in (it makes sure to say she changed them "every 3 to 4 hours," but this time???), and how she had nothing to feed her dog except carrots, implying either she's not much of a planner, or was sick for a loooooong time. This sounds, to me, like she got very drunk or high, stumbled home, and was passed out for a long time (at least initially, before the TSS hit).

Again, I am not saying she deserved this, but the article is sketchy on the details.

[FundieFarmer]

Yeah, the "nothing to feed her dog but carrots" thing rang weird with me too. I mean, you get plenty of warning when your dog is getting low on food. And unlike humans, the dog can't just open the fridge or run to the store to get something. I also thought it was weird she said the officer looked around in disgust and left. Sure, pee & poop is gross, but consistent in a situation with a welfare check, I'd think. That whole story seemed a little fishy.

My money is on not a planner...and maybe just irresponsible. But how that factors into the TSS, nobody knows, and like you said, doesn't make her deserving of this.

[DGayle]

We have a company here is Australia which makes 100% cotton tampons, and they are not 2x more expensive, or, in fact, anywhere near that. They are about 50 cents more per box than a similarly priced box of Kotex tampons, and cheaper again if you buy from the companys own website.

100% cotton ANYTHING in the US comes at a premium.

18 pack of Kotex regular tampons for $3.84, which is 21 cents each:

http://www.amazon.com/Kotex-Regular-Tam ... ex+tampons

16 pack of Seventh Generation cotton tampons for $8.93, which is 56 cents each:

http://www.amazon.com/Tampon-Og-Regular ... NEJ3RVYGBD

So we HAVE cotton tampons. I was wrong. They aren't 2x as much. They cost almost 3x as much.

[Mama Mia]

I think she has an excellent case , not that she'll win, based on the misleading name of the product.

It states it was called Kotex Natural. The experts state her chances of getting TSS were practically 0 if it actually had been made from natural material.

It is morally irresponsible for companies to put materials in a product that are much more likely to cause harm if there are acceptable alternatives. It is exponentially more morally reprehensible to give a misleading name to a product, in the hopes consumers will think the potentially harmful component isn't present.

It seems particularly important with tampons to use the safest materials possible. Sure, they can put warnings to change them every 3 or 4 hours, but just common sense would tell the manufacturers that it would be a fairly common occurance for women not be in a position to change it at the recommended interval. Stuck in traffic, not getting your break at work, car breakdown, - or in this case, getting some minor bug and sleeping.

Jeez even if you were uber responsible and set an alarm to get up in the middle of the night to change it -- what if there's a power outage and you sleep through it? There's just too many possible things that can come up in daily life.

[ShepherdontheRock]

I think she has an excellent case , not that she'll win, based on the misleading name of the product.

It states it was called Kotex Natural. The experts state her chances of getting TSS were practically 0 if it actually had been made from natural material.

It is morally irresponsible for companies to put materials in a product that are much more likely to cause harm if there are acceptable alternatives. It is exponentially more morally reprehensible to give a misleading name to a product, in the hopes consumers will think the potentially harmful component isn't present.

It seems particularly important with tampons to use the safest materials possible. Sure, they can put warnings to change them every 3 or 4 hours, but just common sense would tell the manufacturers that it would be a fairly common occurance for women not be in a position to change it at the recommended interval. Stuck in traffic, not getting your break at work, car breakdown, - or in this case, getting some minor bug and sleeping.

Jeez even if you were uber responsible and set an alarm to get up in the middle of the night to change it -- what if there's a power outage and you sleep through it? There's just too many possible things that can come up in daily life.

Well the unfortunate thing is I don't think there's a lot of regulation on the word "natural," especially in the cosmetics/toiletries industries and companies can just claim something is "natural" and therefore people will assume it's good for you. I mean, my face wash from LUSH is natural, and so is the kale that I put in the oven and then stuff in my face, but so is belladonna, hemlock, and a variety of other things that are definitely NOT good for you...

So I don't necessarily think that'll work either.

[zadie]

Well the unfortunate thing is I don't think there's a lot of regulation on the word "natural," especially in the cosmetics/toiletries industries and companies can just claim something is "natural" and therefore people will assume it's good for you. I mean, my face wash from LUSH is natural, and so is the kale that I put in the oven and then stuff in my face, but so is belladonna, hemlock, and a variety of other things that are definitely NOT good for you...

So I don't necessarily think that'll work either.

Yup. There aren't regulations on what is called natural. Or if there are they are extremely loose. Kotex is working totally within the law on that one.

[Maggie Mae]

Just because it's legal doesn't mean it's not misleading. Or morally and ethically questionable.

[treemom]

TSS dropped sharply (even though it was still rare) when Rely tampons were taken off the market. They would the perfect storm breeding ground and the synthetic materials that made them awesome to use also made them risky to use.

[DGayle]

It seems particularly important with tampons to use the safest materials possible. Sure, they can put warnings to change them every 3 or 4 hours, but just common sense would tell the manufacturers that it would be a fairly common occurance for women not be in a position to change it at the recommended interval. Stuck in traffic, not getting your break at work, car breakdown, - or in this case, getting some minor bug and sleeping.

Jeez even if you were uber responsible and set an alarm to get up in the middle of the night to change it -- what if there's a power outage and you sleep through it? There's just too many possible things that can come up in daily life.

This isn't an instance of a woman leaving in a tampon overnight, which many many many many many tampon-using women have done now and then. She left it in for multiple days. There's no way Kotex is responsible for that. And if you aren't sure you can change it every 4 hours, then use pads. The risk of a power outage is something each woman should consider. A manufacturer shouldn't have to plan to every contingency like we women are too stupid to make our own decisions based on our own risks. This isn't rocket science. It's not Kotex's fault if a user uses a product wrong despite the clear instructions. There really is a point when the user is solely responsible for what happens. How the hell can Kotex even remotely be on the hook because somebody was getting sick, used a tampon, then forgot to change it for days?

[FundieFarmer]

DGayle has a great point. If she wins this suit, it opens the door for more "I used your product wrong and it's your fault" suits. Every product can be dangerous when used incorrectly in the hands of an idiot.

An out-there example...let's say I have a canopy bed and I decide to use the bars across the top of the bed as a jungle gym. The bed comes crashing down on me and bones break, blahblahblah. Do I sue? Do we stop making beds because as a jungle gym, they're not safe?

[Mama Mia]

This isn't an instance of a woman leaving in a tampon overnight, which many many many many many tampon-using women have done now and then. She left it in for multiple days. There's no way Kotex is responsible for that. And if you aren't sure you can change it every 4 hours, then use pads. The risk of a power outage is something each woman should consider. A manufacturer shouldn't have to plan to every contingency like we women are too stupid to make our own decisions based on our own risks. This isn't rocket science. It's not Kotex's fault if a user uses a product wrong despite the clear instructions. There really is a point when the user is solely responsible for what happens. How the hell can Kotex even remotely be on the hook because somebody was getting sick, used a tampon, then forgot to change it for days?

Because they are using a material that increases the risk of a dangerous, possibly fatal, medical catastrophe taking place. They don't need to use it. They do it purely for profit. And then misleadingly name the product in a way that makes the consumer assume the dangerous component isn't in there. Companies should have responsibility for not using toxic crap in the first place. I don't think she'll win the suit. But I think she should. People's life and health is absolutely meaningless to these corporations, and it doesn't need to be that way.

[DaffyDill]

Because they are using a material that increases the risk of a dangerous, possibly fatal, medical catastrophe taking place. They don't need to use it. They do it purely for profit. And then misleadingly name the product in a way that makes the consumer assume the dangerous component isn't in there. Companies should have responsibility for not using toxic crap in the first place. I don't think she'll win the suit. But I think she should. People's life and health is absolutely meaningless to these corporations, and it doesn't need to be that way.

As a result of Kotex Rely tampons being recalled and pulled of the shelf in the US in 1980, there have since been guidelines laid down by the CDC, instructing manufacturers on what can and cannot be used in manufacturing of tampons.

Quotes from here: https://en.wikipedia.org/wiki/Rely_(brand)

Rely was unique: it used carboxymethylcellulose and compressed beads of polyester for absorption - the company released the new product after having conducted extensive research on its safety.[1] This tampon design could absorb nearly twenty times its own weight in fluid.[2] Further, the tampon would "blossom" into a cup shape in the vagina in order to hold menstrual fluids. Because of this, its advertising slogan was "It even absorbs the worry!", and claimed it could hold up longer than the leading tampon, because it was made differently.

These tampons worked too well, in that they made the vagina too dry and this excessive dryness occasionally caused ulceration of the vaginal wall when some women removed tampons. The ulcerations allowed bacteria to creep in and Voila! - perfect recipe for TSS.

When Proctor and Gamble were made to recall their 1980 version of the Rely tampon by the CDC, it cost them around $75 million, and strict guidelines were down up by the FDA, regulating tampons as medical devices. That's when tampon manufacturers were made to standardise tampon absorbencies, and place a warning about TSS on their packaging.

They simply are not allowed to use ingredients deemed to be dangerous any longer. Many tampon manufacturers use rayon, as it is considered safe by the CDC. If it can be proven Kotex DID use previously banned ingredients, she has a case.

[DGayle]

DGayle has a great point. If she wins this suit, it opens the door for more "I used your product wrong and it's your fault" suits. Every product can be dangerous when used incorrectly in the hands of an idiot.

An out-there example...let's say I have a canopy bed and I decide to use the bars across the top of the bed as a jungle gym. The bed comes crashing down on me and bones break, blahblahblah. Do I sue? Do we stop making beds because as a jungle gym, they're not safe?

This is just my problem. Manufacturers are too often on the hook for people using products wrong, even with warnings. Personal accountability seems like it's dead in this country. Why the hell should anybody bother paying attention to warnings or using reasoning skills when you can just sue and get a lot of money because the manufacturer is to blame for your stupidity? That not only raises product costs to cover the lawsuits, but can put others in danger if the way a product is misused can hurt someone. The tampon case only hurt the user. Parents ignoring the warnings on Bumbos and putting their tiny babies in them on a table and walking off hurt their babies, then get pissed off at the company despite multiple warnings.

In the tampon case, it's clear. It wasn't just a few hours more of time, but even if it was, how can Kotex or Tampax or any maker prevent that without putting an antibacterial of some sort in the tampons, which creates new problems? There is literally nothing else they can do. Cotton might not inhibit the growth of staph, and the rate of TSS has gone down. They've done what they can. There's a point when the user has to be responsible and make their own decisions, and stop trying to blame the makers of a properly-made product when they use it wrong.

[polecat]

"Change your tampon every four to eight hours, including overnight." The family argues that these instructions are unclear. They plan to argue that "overnight" can mean longer than eight hours, especially when it comes to young girls, who can easily sleep nine or ten hours on a weekend. "

The only way in the world that this would say what the family thinks it's saying is if it said EXCLUDING overnight or except overnight. It doesn't. It says you need to change it every four to eight hours *including overnight. If you sleep longer than eight hours, then you need to either wear a pad or get up at some point and change it.

And what does it even mean to overdose on food?

[Bragandbounce]

I don't think that the TSS warnings on tampon packaging could be any clearer or more strongly worded than they are. As a teenager, I read and understood the TSS warnings that come on both the outer packaging and on a separate insert in tampon packages, and since I knew that I was likely to sleep for longer than the recommended maximum 8 hours, I used alternative products overnight. It's certainly unfortunate what happened to this young woman, but it's hardly Kotex's or anybody else's fault. I question the priorities of someone who, after this happens, is more focused on suing every retailer and manufacturer in the vicinity of the situation than on, say, educating girls about the risk of TSS.

[jaelh]

So I think many people upset about this aren't clear on how tort law actually works. I know Australian law, not US. However, many of these principles are likely to apply. Many of these issues are raised in the article, but perhaps how they are relevant isn't clear.

So Kotex, as a manufacturer, as a duty to customers to take reasonable care to ensure their products are safe.

So how did they fail to take reasonable care? seems they are planning to argue something along the lines of

- the packaging led her to believe the product was made "naturally" and was therefore safer than it was.

- Kotex didn't use a safer substance to manufacture the product.

Now here, things may vary to in the US, however here, the Court looks at (amongst other things) the likely seriousness of harm posed by the thing Kotex did or didn't do (TTS is serious, chance of death), the probability that the harm would happen (pretty damn low), the burden of taking precaution (so, how much would the better product cost? how much market share would be lost etc..) and the social utility of the activity (in this case, none). In order to make out the first two, the Plaintiff is going to have to 'prove' that there is a greater risk posed by synthetics than naturals.

The Court asks - well considering these things, what would a reasonable person in Kotex's position have done? Would they have used a different substance etc? If the answer is affirmative then...

Did the act/omission actually cause the harm that the plaintiff suffered? So it'd be - did the TTS happen because of the substance of the product, or because it was left in so long? If yes then...

Is there a defence? The obvious one here would be contributory negligence - that is, did the woman fail to take reasonable care for her own safety by leaving the tampon in? And if so, did it materially contribute to the actual harm? There may be a tension here such that if causation was established then there would be no defence available here. If it's about increased probabilities (for both the cause and any contribution) then everything gets very messy here. And if she was so ill, then a 'reasonable person' might have forgotten to change the tampon anyway - eh. then it wouldn't make a difference. And, whatever the warning says, leaving a tampon in is something that manufacturers should be assuming that people do (both intentionally, and because they are ill, or somehow unable to attend to hygiene etc)

Even if she was contributorily negligent, her damages are only reduced in a "fair and equitable matter" - balancing how far both parties strayed from the reasonable person standard, and the extent to which the negligence of both sides caused the harm.

I realise the "why isn't she suing her mother" is a tongue in cheek question, but honestly.. who has the insurance? Moreover, if Kotex has been saving say, 1c profit per packet to use a less safe product, why not sue Kotex? Someone who loses a leg is going to have ongoing issues with adaptive equipment/health care. If Kotex could have done something that reduced the chance of this happening, at very little cost to themselves, why on earth would we not want them held responsible for this? And "questioning the priorities" - I dunno, seems pretty damn reasonable to me. This woman's medical expenses won't just impact her. fall to family, she is no longer able to work at her former job as a model etc. Also, it sounds like she IS framing this as an "I need to do something about this bad thing"

Re the warning: Just sticking a warning on something doesn't (and shouldn't) absolve you of responsibility for failing to do other things. It shouldn't. I don't like people gaming the system, though I realise its inevitable. At the same time, I have very very little sympathy for companies that put people at risk for the sake of profit. The test is what the reasonable person would do, so the Court does balance how likely something is with the cost of avoiding the harm - but if the cost is low, but the benefit is clear - I want companies to be held to a higher standard of conduct. When you go through it element by element, what they're arguing isn't actually unreasonable. It all depends on what they can establish as fact.

Negligence claims often get a bad rap. I think part of it is because people see it as getting a windfall. Over here, we don't have punitive damages which goes some way to helping with this. But the numbers involved can be shocking. Remember though that negligence damages are never intended to do anything other than put the plaintiff back in the position that they were in before the injury - in this case, it would be medical costs; the costs of ongoing prosthesis'; physical therapy etc; mental harm (you might think she sounds like a "brat" but heck - if you lost the thing that defined you, that is likely to cause you huge emotional distress); loss of income from lost work years/jobs. There isn't some gold at the end of the rainbow scenario; it's cost recovery basically.

[twin2]

No, I think most people DO understand how tort law works. I think they also understand that sometimes, shit happens.

She was sick. She had also had a period and used a tampon. Her sickness caused her to pass out, she couldn't take her tampon out and she ended up with TSS. This is not necessarily a foreseeable circumstance the company could prepare for.

I feels sorry for her, this is not her fault, but it is also not Kotex's fault, or Kroger's fault, it is just a series of unfortunate events.

[Mama Mia]

I think tampon companies have a responsibility that they aren't meeting, TBH. Not to warn about TSS, as they DO warn against TSS. They should be using the safest possible materials (which they aren't) and they should LIST the materials on the package and on their websites. I use a Diva Cup now, because the sheer amount of trash that tampons create was grossing me out. But after I read about this woman, and was horrified about what happened to her, I thought I would look to see if there are any tampons that are made out of cotton. I couldn't find a whole lot of information.

And I do feel for her. For some people, losing mobility IS worse than death.

But...but...but.... the giant corporation might lose some profit margin if they used safe materials! We can't expect them to do THAT ! People dying or losing limbs is just a normal risk of being alive -- we can't expect less toxic products , why that would be crazy ! :naughty: :roll:

[Bethella]

snipI realise the "why isn't she suing her mother" is a tongue in cheek question, but honestly.. who has the insurance? snip

Actually I wasn't being tongue in cheek with that question I was quite serious. If you aren't going to hold her responsible for not following the instructions and warnings and using the product in a way that is known to be dangerous, than maybe you should hold her mother and the police officer responsible for not intervening and getting her help. If either her mother or the police officer had gotten her to a hospital there's a real chance she wouldn't have lost her leg. Maybe her mother doesn't have the insurance to make suing her worthwhile but the police department should.

[polecat]

Actually I wasn't being tongue in cheek with that question I was quite serious. If you aren't going to hold her responsible for not following the instructions and warnings and using the product in a way that is known to be dangerous, than maybe you should hold her mother and the police officer responsible for not intervening and getting her help. If either her mother or the police officer had gotten her to a hospital there's a real chance she wouldn't have lost her leg. Maybe her mother doesn't have the insurance to make suing her worthwhile but the police department should.

Unless I completely misread the article, I thought it was the mother who sued in the first place.

[Bethella]

Unless I completely misread the article, I thought it was the mother who sued in the first place.

Going back and rereading the article it does say that but I don't see how her mother would have any standing to sue since she wasn't the one who lost a leg.

[jaelh]

No, I think most people DO understand how tort law works. I think they also understand that sometimes, shit happens.

She was sick. She had also had a period and used a tampon. Her sickness caused her to pass out, she couldn't take her tampon out and she ended up with TSS. This is not necessarily a foreseeable circumstance the company could prepare for.

I feels sorry for her, this is not her fault, but it is also not Kotex's fault, or Kroger's fault, it is just a series of unfortunate events.

See, that's where I get confused. IF (and only if) they can establish the material makes a difference, then this isn't a "shit happens" situation. It's a situation where a company used a substance that was cheaper, maximising profits and putting people at risk.

That someone might be ill and not remove their tampon is very much a foreseeable event. (Heck, someone might be drunk and not remove their tampon. Or might just forget.)

This whole - well, it's not Kotex's fault: Why is everyone so damn sure they know the answer to that question? no one actually knows that right now. That's the point of the trial. information held by the company has to be disclosed, the science is scrutinised and a balancing is carried out. Right now, that information isn't in front of us.

But hey. If you're all so sure you know the answer, I'm glad there's a system that's not trial by internet to examine the actual substance of the claim.

Re the mother - she doesn't owe a duty of care to the adult child, so there would be no grounds to sue.

[Walking Cat Bed]

No, I think most people DO understand how tort law works. I think they also understand that sometimes, shit happens.

She was sick. She had also had a period and used a tampon. Her sickness caused her to pass out, she couldn't take her tampon out and she ended up with TSS. This is not necessarily a foreseeable circumstance the company could prepare for.

I feels sorry for her, this is not her fault, but it is also not Kotex's fault, or Kroger's fault, it is just a series of unfortunate events.

This is where I am -- she was sick and didn't take her tampon out when she was asleep/unconscious/whatever actually happened. The combination of her illness and the tampon's presence led to a serious infection. It's not necessarily her "fault" based on the story as it's told, but it's most certainly neither the manufacturer's nor the retailer's fault that she was sick, used a tampon, and got sicker. This isn't like the incidents in which certain brands recall batches due to mold or other contaminants; this was a combination of circumstances that ended badly.

Not that she'd surrounded herself with quality people, but I'd HOPE that it wouldn't have taken several days, an allegedly dismissive welfare check, and nearly dying for someone in my life to notice that things were very wrong. I didn't see any mention of friends noticing that she wasn't looking well, making sure she got home safely, checking in to make sure she was all right, or acting like actual friends.

Honestly, she needs some therapy more than money from Kotex and Kroger.