Tampon Maker Allegedly Offered to Buy-Out Toxic Shock Lawyer
Oct. 26, 1989
WICHITA, Kan. (AP) _ An attorney who has handled more than 100 toxic shock syndrome lawsuits says two lawyers for a tampon maker offered to pay him if he would stop taking such cases.
Playtex Family Products Inc. signed a $500,000 consulting agreement with another plaintiffs' lawyer who has stopped pressing toxic shock cases, said the attorney, Mark B. Hutton.
Hutton and a partner in his Wichita law practice won an $11.2 million civil award for the family of a woman who died of toxic shock syndrome. It is one of hundreds of lawsuits around the country seeking damages from makers of high- absorbency tampons, which were linked to the rare and sometimes fatal infection by the U.S. Centers for Disease Control in 1980.
Hutton said he first was approached by Playtex attorney Charles McCaghey in 1985 or 1986, when McCaghey's New York law firm was coordinating the company's defense against the lawsuits.
Hutton alleged that McCaghey offered him money in addition to any settlement he might get for clients if he would refuse to take future toxic shock cases.
McCaghey, however, denied offering to pay Hutton to back off toxic shock litigation.
''It's false, to my knowledge,'' McCaghey said Wednesday. ''I never offered him anything to buy him off.''
Hutton said he dismissed that approach and others later from William H. Robinson of Richmond, Va., another lawyer for Playtex.
''I thought it was just cocktail talk,'' Hutton said. ''Lawyers do a lot of jousting among themselves and teasing,'' Hutton said. ''I never took it seriously.''
But he thought otherwise after learning another plaintiff's attorney, J. Michael Liles of Fort Worth, Texas, accepted a $500,000 five-year consulting deal with Playtex.
Robinson said today he was unable to comment. ''I would like very much to be able to respond, but because of pending litigation I cannot.''
''Playtex never attempted to do anything unethical or buy anyone's silence,'' said Playtex spokesman Martin Petersen today in a statement issued from his Paramus, N.J., office.
''These allegations are being litigated in court and we are confident that it will be proved the charges are baseless. Since the matter is in litigation, we are unable to comment further.''
Playtex and other manufacturers have stopped making the kind of high- absorbency tampons linked to toxic shock syndrome, but typically don't admit the tampons are to blame in settling damage lawsuits.
Liles said in a telephone interview Wednesday he hasn't done any toxic shock syndrome consulting work yet for Playtex, some 10 months after he signed the agreement with the company. The consulting contract doesn't have anything to do with toxic shock cases, he said, refusing to discuss the terms of the agreement.
''This is a matter where people have brought my ethics into issue and I haven't done anything unethical,'' Liles said Wednesday.
Playtex said in a court brief in an Orange County, Calif., toxic shock case that it is paying Liles ''for being available to consult with it regarding toxic shock syndrome litigation.''
One of Playtex's insurance companies, St. Paul Surplus Lines Insurance Co., refused to pay Liles' $500,000 consulting for the company. In a Dec. 28 letter to Playtex, the company said its coverage didn't encompass such an agreement.
''In addition, we are concerned by the ethical considerations and the long- term ramifications of an agreement of this nature,'' said the letter, which is part of the court file in a Delaware Superior Court case involving a dispute among Playtex, Columbia Casualty Co. and other insurance carriers.
Hutton said he and the attorneys for Playtex never discussed how much he might be paid.
''They didn't get specific with me because I didn't express an interest,'' he said.
Hutton said Liles had found a smoking gun Playtex didn't want revealed. Before he settled a Texas case against Playtex, withdrew from others and accepted the consulting arrangement, Liles telephoned Hutton and said he had found a memo showing Playtex had been planning to remove its super-absorbent tampons from the market since 1983, Hutton said.
That memo is part of the Delaware case record. In that action, the insurance carriers claim Playtex fraudulently obtained recall coverage and other policies by concealing vital information, including long-standing plans to recall the product.