West v. Johnson & Johnson Products, Inc. (174 Cal. App. 3d 831, 1985)

Opinion

BRAUER, J.

Plaintiff Lynette West (hereinafter West) contracted toxic shock syndrome while using a vaginal tampon manufactured by defendant Johnson & Johnson Products, Inc. (hereinafter JJP). In a subsequent action based upon strict product liability, a jury awarded West $500,000 in compensatory damages and $10 million in punitive damages against JJP. A judgment was entered accordingly. Thereafter JJP moved for a new trial and for judgment notwithstanding the verdict. The trial court denied the latter motion, but conditionally granted the motion for new trial on the ground of excessive damages; a new trial was ordered unless West agreed to accept a reduction in compensatory damages to $100,000 and a reduction in punitive damages to $1 million. (Code Civ. Proc., § 662.5, subd. (b).) West filed a written acceptance of the reductions.

JJP appeals from the judgment and from the order denying its motion for judgment notwithstanding the verdict. (Code Civ. Proc., § 904.1, subds. (a) and (d).) West cross-appeals from the order modifying the judgment. (Code Civ. Proc., § 904.1, subd. (b).)

On appeal JJP contends:

1. That West’s counsel, by means of a “semantic ploy,” mischaracterized the action as a “design defect” case rather than a “failure to warn” case; and this “semantic ploy” led to the rejection of JJP’s proffered instructions on “failure to warn”;

2. That no substantial evidence was presented to show that a lack of adequate instructions or of a warning proximately caused West’s injury;

3. That the trial court committed prejudicial error by receiving in evidence, over objection, testimony concerning consumer complaints about JJP’s tampon;

4. That West’s counsel engaged in prejudicial misconduct in opening statement, in examining witnesses, and in argument; and

5. That the trial court committed prejudicial error in instructing the jury (a) on the “consumer expectation” test, rather than the “risk-benefit” test, set forth in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 435 [143 Cal.Rptr. 225, 573 P.2d 443]; (b) on the issue of punitive damages; and (c) on the issue of willful suppression of evidence.

On cross-appeal West contends, in essence, that the trial court abused its discretion in ordering that her remittitur be a condition precedent to a denial of JJP’s motion for new trial.

For reasons hereinafter set forth, we find each of the foregoing contentions to be without merit, and we therefore affirm both the judgment and the order.

I. The Injury

In February of 1980, West was a 20-year-old student living with her parents. During the weekend of February 23-24, her regular menstrual cycle began. As was her custom, she used o.b. tampons manufactured by JJP. She had been using o.b. tampons for close to five years. She preferred o.b. tampons to other brands because (a) they were shorter in length, (b) their fibers were more tightly compacted, and (c) they required no applicator. Depending on the rate of her menstrual flow, she usually used either “regular” or “super” o.b. tampons. On the evening of February 26, 1980 West had a date to attend a rock concert. In preparing for the date, she inserted a fresh o.b. tampon. She felt fine during dinner and during the first part of the concert. But during the latter part of the concert she became “very hot and very light headed, and just started feeling kind of faint—very drained.” She walked around in the hall for awhile, got a drink of water, and returned to her seat. Then she again became “very faint, and very hot.” She again left her seat, and lay down in a cement aisle in the auditorium, to “try and cool down.” Her escort took her home. When she went to bed she was feeling “[rjeally tired, really drained, very hot.”

The next day, February 27, she felt worse. She decided to stay home in bed. Throughout the day she felt “real hot,” “really weak,” and sometimes “really faint.” She thought she had the flu. She was still using tampons; at trial she could not remember whether she changed tampons that day. In the evening she began vomiting, and lost control of her bowels.

On the morning of February 28 she collapsed on the floor of the bathroom, and was unable to move. Her parents carried her out to their car, and then took her to a Kaiser Hospital emergency room.

Initial examination revealed that West had a wealth of symptoms, including the following: (1) abnormally low blood pressure, which was falling— West was “approaching shock”; (2) a fever with a temperature of 104.4 degrees, and chills; (3) vomiting; (4) pronounced reddening of the skin; (5) accelerated heartbeat; and (6) swollen tonsils with exudate. Laboratory tests disclosed abnormalities in the functions of West’s liver and kidneys. West had a tampon in place; she was asked to remove it and did so.

Cultures were taken from West’s vagina, rectum, and throat. The throat culture showed the presence of a bacterium known as beta-hymolytic streptococcus in West’s throat. The vaginal and rectal cultures produced negative results.

Because of her falling blood pressure, West was transferred to the hospital’s intensive care unit. She was given intravenous fluids and antibiotics. One of the antibiotics was penicillin. Her blood pressure continued to fall, and she was in “very severe danger.” She remained in severe shock for approximately 18 hours.

On the morning of February 29 West’s blood pressure gradually began to rise. By evening it had risen to a level of 100 systolic. But her creatinine level continued to rise, indicating that her kidneys were not yet functioning properly. Over the next few days West’s condition stabilized; she ceased vomiting, her fever disappeared, and her blood pressure returned to normal, along with her liver and kidney functions. She was discharged from the hospital on March 4, 1980. Shortly after she returned home, the skin of her palms and of the soles of her feet peeled off in large chunks. She stayed at home for about a week, and then resumed her classes. But her full strength and endurance “didn’t come back until months later.”

When the Kaiser physicians first examined West, they were puzzled by her malady. In the words of one physician: “When someone is that sick, you’re very, very insecure, not knowing what you’re treating. We really had no direction to go on. We thought it was an infection, because of her fever. But we didn’t have any clues at all.” West’s discharge summary contained a primary diagnosis of “shock with oliguric renal failure, etiology unclear,” and a secondary diagnosis of “streptococcal pharyngitis.” But because the case was puzzling, the physicians asked West to come in for followup visits. On March 27, West reported that she was feeling fine, and she appeared to be healthy. On June 30, she appeared to have no residual damage as the result of her illness.

Some months later, after reading reports published by the federal Center for Disease Control in Atlanta, Georgia, the Kaiser physicians reviewed West’s medical records once again, and came to a unanimous conclusion that West had suffered from menstrually related toxic shock syndrome (hereinafter TSS). One of the physicians told West about the belated diagnosis. As we shall see in part IV of this opinion, post, the diagnosis was hotly disputed at trial.

II. The Syndrome

TSS was first identified as such in 1978 by Dr. James K. Todd of the University of Colorado. Dr. Todd observed the syndrome only in children. Later retrospective studies showed that the syndrome affects adult men and women as well as children, and that the syndrome has been around for many years, although not necessarily recognized as such.

Early in 1980 the federal Center for Disease Control (hereinafter CDC) began receiving reports from physicians and from state health departments about a “new disease.” Approximately 97 percent of the cases reported involved menstruating women. According to reports, the women had fevers, temperatures as high as 107 degrees, profound shock, extremely low blood pressure, skin rashes, and liver and kidney abnormalities. At that time, the origin of the “disease” was unknown. Because its prevalance appeared to be increasing, the CDC organized a task force to study the phenomenon. By May of 1980 approximately 55 cases of the new “disease” had been reported; according to one expert witness, “about ten percent of everybody who got the disease had died.”

The CDC task force began by drafting a restrictive definition of the new “disease.” Included in the profile were the following elements: (1) a temperature of at least 102 degrees; (2) a sunburn-like rash, usually all over the body; (3) desquamation, i.e., peeling of the skin 7-10 days after the malady subsided; (4) abnormally low blood pressure; (5) diarrhea and vomiting; (6) pain in the muscles; and (7) abnormalities in liver and kidney functions. On May 23, 1980, the CDC published a report which indicated a strong correlation between the new “disease” and menstruation. In a second bulletin published June 27, 1980, the CDC established a close association between incidents of TSS and tampon use.

Sometime in the middle of June, before its second bulletin on TSS was published, the CDC invited tampon manufacturers to Atlanta, Georgia, to learn of its findings. Since the CDC knew very little about tampons, it asked the manufacturers for information about how tampons were manufactured and marketed. It also asked the manufacturers for any data they had concerning vaginal physiology and microbiology. For the most part, the manufacturers (including JJP) had no information to offer.

The CDC then undertook its own microbiological studies. Within a period of three to four weeks, the CDC established that the symptoms of TSS are caused by a particular type of toxin (or poison) secreted by a particular strain of bacteria known as staphylococcus aureus. Staphylococcus aureus commonly occurs in the vaginas of a certain small percentage of women; and that fact has been known for at least 50 years.

In the summer of 1980 the CDC recommended that those women who wished to avoid the risk of menstrually associated TSS should stop using tampons. To those women who continued to use tampons, the CDC recommended that the tampons be used only part of the time. The CDC also recommended to the Food and Drug Administration that warnings concerning the hazards of menstrually related TSS be placed on the outside of tampon packages.

III. The Defendant, the Product, Testing, and Complaints

A. The Defendant

JJP is a New Jersey corporation having its principal offices in New Brunswick. It is a wholly owned subsidiary of a parent corporation known as Johnson & Johnson, Inc. The parent is not a party to this action.

At the time of West’s injury in 1980, JJP manufactured a wide range of products, including bandages and surgical dressings, toothbrushes and dental floss, various orthopedic devices, and the like. One of those products was the o.b. tampon.

B. The Product

The o.b. tampon originally was designed in Germany by a female gynecologist, Dr. Judith Esser. It has been marketed throughout Western Europe since the late 1940s by the Carl Hahn Company, a German firm. The Carl Hahn Company is a wholly owned subsidiary of JJP’s parent corporation, Johnson & Johnson, Inc.

The product is composed of 70 percent rayon and 30 percent cotton. In the manufacturing process, a small amount of a surfactant known as Tween 20 is added to prevent the buildup of static electricity in the fibers. The tampon fibers themselves are intertwined, rolled, and compressed in such a way as to maximize their natural capillary capabilities; and as a result, the tampon is highly absorbent. As it begins to absorb menstrual fluid, the o.b. tampon expands radially and pushes against the user’s vaginal walls. Unlike other brands of tampons, the o.b. has no applicator or inserter; the user inserts it with her fingers alone.

In 1974 o.b. tampons were imported into the United States and test-marketed in various regions of the country. In 1977 JJP began manufacturing o.b. tampons in the United States and distributing them throughout the nation.

C. Premarket Scientific Investigations and Testing

In the years 1971-1973, before the o.b. tampon was imported into the United States, several studies were conducted in the microbiology department of Personal Products Company (hereinafter PPC), which is yet another wholly owned subsidiary in JJP’s parent corporation, Johnson & Johnson, Inc. The studies were part of a research program initiated and supervised by the head of the department, Dr. Kenneth S. Kraskin. The purpose of the studies was to explore and define the numbers and types of bacteria present in the vagina both before and during the menstrual period. Among other things, the studies disclosed the following:

Before a menstrual cycle begins, the interior of a normal healthy adult vagina is a slightly acidic environment, in which most pathogenic bacteria (i.e., bacteria capable of producing disease) will not grow. With the onset of the menses, the interior of the vagina ceases to be acidic and becomes a neutral or even slightly alkaline environment. When that happens, various kinds of bacteria “invade” the vagina—including a type of bacterium known as staphylococcus. Some of the invading bacteria are pathogenic. The menstrual fluid provides a rich nutrient material for the invading microorganisms, and they multiply very rapidly. When the menstrual flow ceases, the interior of the vagina once again becomes a slightly acidic environment, and the invading bacteria diminish.

The studies also revealed that about 6 percent of the women tested had in their vaginas a particular strain of staphylococcus known as staphylococcus aureus.

Data collected from the studies was written down in research notebooks kept in the PPC microbiology laboratories. However, Kraskin himself communicated a good deal of that information to a scientist at JJP.

In the years 1975 and 1976, PPC conducted additional studies with experimental o.b. tampons supplied by the Carl Hahn Company. The experimental tampons had a small amount of “acidic residue” in them. The purpose of the studies was to discover whether the use of the experimental “acidic” tampon would maintain a more acidic balance in the vagina during menstruation, and thus reduce the multiplication of pathogenic microorganisms. The project ultimately was dropped, because preliminary studies indicated no significant difference in results when using the “acidic” o.b. tampon. But the studies did reveal two significant things. First, when an o.b. tampon (treated or untreated) is in place, the total bacterial count in the interior of the vagina drops markedly during the first days of menstruation—an indication that the tampon absorbs bacteria. Second, when an o.b. tampon is removed, in some cases small fibers are left behind in the vagina. The results of the 1975-1976 studies were made known to personnel at JJP.

In preparing for the American manufacture of the o.b. tampon, JJP sought to duplicate the German product. JJP selected domestic cotton and rayon of the same grade as the German, and then tested the ingredients to determine whether they caused any unusual clinical effects. The exact nature of the tests is not clear from the record. One of West’s experts, a microbiologist, referred to them as “patch tests,” and described them as follows: “You put it on the skin, an allergist does this commonly, to see if there’s any reaction. [1f] They chose twenty-five female panelists, and tested it for seventy-two hours and concluded there was no skin irritation.”

Up to the time of trial, JJP had conducted no studies to ascertain whether use of a tampon was in any way related to vaginal infection.

D. Consumer Complaints

In 1975 JJP began receiving complaints about o.b. tampons from consumers and physicians. Most of the complaints related to adverse reactions experienced in use of the product. According to one witness, consumers complained of (among other things) “irritation, infection, vaginitis, discharge, pain, burning, rash.” Some women complained of “sloughing,” i.e., the phenomenon of fibers remaining in the vagina when the tampon was removed. Others complained that the tampons were difficult to remove; in some cases, the tampons had to be removed surgically. A physician wrote that use of o.b. tampons had caused severe vaginitis in his daughter, and he asked JJP to examine its product to “shed some light on the problem.” One woman complained that use of o.b. tampons had caused a bladder infection, and her report was confirmed by her gynecologist. Another woman complained that she suffered vaginal infections after two consecutive menstrual periods, the second infection more severe than the first. Yet another woman complained of repeated'vaginal infections, requiring medical treatment, after each succeeding menstrual cycle. Still another woman complained that she suffered pelvic inflammatory disease; her report was confirmed by her physician. Another physician wrote that several of his patients had vaginal infections attributable to the use of o.b. tampons. Still another physician complained that o.b. tampons swelled too much in the vaginas of very young girls with intact hymens.

In one instance, a woman suffered from upper abdominal pain, nausea, hot and cold flashes, diarrhea, fever, and dizziness over a period of two days. On her way to work, she fainted on the subway. Her physician discovered an old o.b. tampon in the woman’s vagina; apparently she had forgotten it.

The record does not reveal the total number of consumer complaints registered. But between 1975 and February of 1980 (the month of West’s illness), JJP received approximately 150 complaints of a “more serious” nature.

JJP’s efforts to respond to the complaints varied with the circumstances. Some consumers refused to respond to JJP’s letters. Others refused to allow their physicians to communicate with representatives of JJP. On occasion the physician himself refused to respond to inquiries from JJP. In a few instances the physician responded that he had never treated the consumer in question.

When cooperation and communication were established, JJP usually would ask the consumer to return the unused portion of her box of o.b. tampons. JJP then tested the unused tampons to see if they met manufacturing specifications for size, shape, and durability. Then, depending on the consumer’s wishes, JJP would send her either a refund, a coupon with which to purchase more o.b. tampons, or other products such as shampoo or baby powder.

In the face of the consumer complaints JJP did no additional testing of o.b. tampons. In the words of JJP’s research director: “We did not see enough of those letters to indicate to us that there was anything other than a chance, you know, women with vaginitis, and the use of the tampon, that would indicate to us that we needed to do additional studies, that there might be something unsafe about our tampons.”

IV. The Expert Testimony

Each side produced physicians and microbiologists as expert witnesses at trial. As might be expected, the opinions of the experts differed on a variety of topics. Without setting forth each expert’s testimony in detail, we attempt here to summarize the opinions advanced.

A. On West’s Illness

The experts disagreed as to the diagnosis of West’s illness. In a nutshell, West’s experts testified that West had suffered from menstrually related TSS, whereas JJP’s experts testified that she had contracted streptococcal scarlet fever.

According to West’s experts, West had virtually all of the symptoms of TSS, including fever, abnormally low blood pressure, a sunburn-like rash, diarrhea and vomiting, pain in the muscles, abnormalities in her liver and kidney functions, and peeling of the skin after discharge from the hospital. The smooth rash, the diarrhea, and the liver and kidney abnormalities were symptoms inconsistent with those of streptococcal scarlet fever. The presence of streptococcus bacteria in West’s throat was not inconsistent with a diagnosis of menstrually related TSS. The fact that no staphylococcus bacteria were found in the cultures taken from West was inconsequential, because the hospital laboratory was not instructed to look for staphylococcus.

According to JJP’s experts, the presence of exudate on swollen tonsils (which West had) is extremely unusual in cases of TSS. The presence of streptococcus bacteria in West’s throat, the exudate, and the absence of staphylococcus bacteria in any of her cultures, all indicated that she had streptococcal scarlet fever rather than TSS. Furthermore, staphylococcus aureus—which excretes the toxin which produces TSS—is resistant to penicillin, whereas streptococcus is not. In the course of her hospital treatment West received rather large doses of penicillin. This was the basic reason for her recovery; the penicillin killed the streptococcus, whereas it would have been ineffective against staphylococcus. The other antibiotics given to West would also have been ineffective against staphylococcus. The smooth rash, vomiting, diarrhea, and liver and kidney abnormalities, all were consistent with a diagnosis of streptococcal scarlet fever.

B. On Product Defects and Proximate Cause

At the time of trial (Nov.—Dec. 1982), the exact molecular mechanism by which tampons contributed to menstrually related TSS had not been proven. Attempts were being made to duplicate the syndrome in laboratory animals. JJP’s experts relied heavily on the fact that up to that time, no study had proved a cause-and-effect relationship between the use of tampons and the occurrence of TSS. They also maintained (a) that tampons by themselves did not cause TSS, and (b) that o.b. tampons were not defective in any way.

On the other hand, West’s experts testified that o.b. tampons were defective in several particulars, and they expressed opinions as to how those defects contributed to the incidence of TSS. We summarize their views as follows:

1. A tampon—any tampon—is essentially a body which is foreign to the human vagina. In the presence of a foreign body, the white blood cells which normally attack pathogenic bacteria do not function well. As a result, pathogenic bacteria tend to multiply and to secrete additional toxins.

2. The highly absorbent quality of an o.b. tampon is itself a defect. The addition of Tween 20 to the tampon actually increases its ability to absorb fluid. Because of that quality an o.b. tampon is able to absorb more menstrual fluid, and therefore more of any pathogenic bacteria that may be present in the fluid. The fluid provides food for those bacteria, and so a fluid-filled tampon provides an ideal environment in which they can multiply.

3. The radial expansion feature is also a defect. When an o.b. tampon expands in place, it occludes the vaginal canal and becomes a “plug” which is analogous to an abscess. The radial expansion feature also contributes to the “sloughing” of fibers when the tampon is removed. The fibers left behind in the vagina become breeding sites for pathogenic bacteria.

4. The mesh-like network of fibers in an o.b. tampon is another defect. The network inhibits white blood cells from attacking pathogenic bacteria inside the tampons.

5. An o.b. tampon is potentially dangerous because a woman must insert it with her own fingers. If she has pathogenic bacteria on her hands, the insertion of an o.b. tampon can lead to the introduction of such bacteria into her vagina.

6. Another defect lay in the manufacturer’s instructions, contained in an insert which came with every box of o.b. tampons. Those instructions told the user that “Changing tampons too frequently can be uncomfortable,” and “Try not to change your tampon until it’s nearly saturated.” The instructions thus encouraged the user to leave an o.b. tampon in place longer than was healthy.

7. On the question of proximate cause, West’s experts expressed themselves in varying ways. One said, “Tampons are a critical factor for the development of this infection in the vagina,” and “All the studies that have been done have indicated that tampons are a critical risk factor in developing menstrually associated [TSS].” Another expert testified that the more a particular tampon blocks a vagina, the greater is the risk of contracting TSS. Yet another expert testified that in his opinion, “tampons are a cause of toxic shock syndrome, and I believe in this case that Miss West’s disease was due to the presence of that tampon. If that tampon had not been present, all other things being equal, in my opinion she would not have come down with that disease.”

C. On Conscious Disregard for Public Safety

The experts disagreed (a) as to whether menstrually related TSS could have been discovered prior to June of 1980, and (b) as to whether additional testing of o.b. tampons would have revealed an association between their use and the occurrence of TSS.

According to JJP’s experts, menstrually related TSS is caused by a “newly emergent” strain of staphylococcus aureus, which appeared in the 1970s. The toxin produced by that strain was not isolated until the fall of 1980. Prior to February of 1980, there was “absolutely no way” that anyone could have predicted an association between tampon use and TSS, “unless he had a crystal ball.” The o.b. tampon was thoroughly and adequately tested before being marketed in the United States. The consumer complaints did not indicate that any further testing of the o.b. tampon was required.

West’s experts testified to the contrary. In their opinion;

1. The strain of staphylococcus aureus which produces menstrually related TSS, though rare, has been around for a long time. So has its toxin. Cases of menstrually related TSS occurred as far back as 1947. Had appropriate testing been done, TSS would have been recognized much earlier than 1980.

2. West’s experts were allowed to examine JJP files obtained through discovery. In examining those files, West’s experts could find no evidence that JJP had ever done any significant preliminary studies of the basic microbiology of the human vagina. According to one of West’s microbiologist experts, “I would say that with the knowledge of these microorganisms having existed in that particular body site, the human vagina, and knowing the numbers of organisms are of such a high quantity during non-menstrual times, whereas menstruation increases that concentration to ten to the eleventh to ten to the twelfth [power] cells per cc of fluid, anybody who would disregard this completely and perform experiments which didn’t even take this into consideration, to my mind is an act of unbelievable irresponsibility . . . .” Furthermore, it appeared that JJP had performed no tests to determine whether digital insertion of o.b. tampons would result in pathogenic bacteria being inserted into the vagina. According to the same expert, “the manufacturer that did not do that is obviously in total disregard to the public safety and welfare in my opinion.”

3. The same microbiologist testified that JJP’s instructions to consumers of o.b. tampons were “an unbelievable thing .... What they are saying is, in other words, leave it in, let it grow, and it will reach a point where it will produce a problem in the body.”

4. Faced with the consumer complaints, JJP should have initiated an “adequate appropriate testing program” to ascertain whether the use of o.b. tampons causes vaginal infections. Another of West’s experts testified that JJP’s failure to look at the possibility of infection as a result of tampon use “was conscious, and in my professional opinion as a microbiologist, this was disregarding a very serious problem.” JJP had a scientific obligation to determine whether its tampons were causing infections, and it “completely ignored it.”

5. The 1975-1976 studies done at PPC by Dr. Kraskin and others were inadequate to demonstrate the safety of o.b. tampons. Those studies made use of too few human subjects; no inquiry was made as to what would happen if an o.b. tampon were left in the vagina for varying lengths of time; women with histories of vaginitis were excluded from the studies; and no tests were performed to see whether o.b. tampons caused vaginal infections. In evaluating the tests actually done, an expert testified, “I think they have seriously flubbed. They missed major areas they should have addressed.”

V. The “Semantic Ploy”

West’s first amended complaint contained four causes of action, viz.: (1) negligence; (2) breach of express warranty; (3) breach of implied warranty of fitness; and (4) strict product liability based on defects in design and manufacture. The fourth cause of action also included a paragraph relating to punitive damages, which were requested because JJP allegedly (a) knew that o.b. tampons were defective in design, and (b) nevertheless put the products into the stream of commerce in conscious disregard of the safety of consumers and “without giving notice of the defect to the purchasers. ”

After West had rested her case, her counsel advised the court in chambers that West thereafter would proceed solely on the fourth cause of action, i.e., strict product liability based on defects in design. During a discussion about jury instructions, an argument developed as to whether this action should properly be classified as a “design defect” case or a “failure to warn” case. JJP’s counsel took the position that “[pjlaintiff has emphasized throughout the case that she does not approve of the instructions on the box or the package insert or that we should have tested it, and it is my opinion the case has always been a duty to warn or a duty to test.” West’s counsel maintained that “there is a design defect in the entire product,” “including instructions for the woman to keep the tampon in place until saturated, which the testimony has shown is quite dangerous. ” He also said, “It’s never been my position in this case that the defendant had a duty to warn [of] the potential of toxic shock syndrome . . . .” The trial court decided to give instructions to the jury pertaining to defect in design, and rejected JJP’s proffered instructions on a manufacturer’s duty to give adequate warning and to test its product. Other instructions relating to theories of negligence and of breach of warranty were withdrawn. West’s counsel also withdrew an instruction he had prepared relating to a manufacturer’s duty to warn.

JJP now contends that West’s counsel used a “semantic ploy” to transform what was clearly a “failure to warn” case into a “design defect” case. JJP argues that it had no duty to warn of unknown or unknowable dangers (citing Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338, 343 [157 Cal.Rptr. 142], hg. den. Sept. 20, 1979), and that the rejection of its “failure to warn” instructions “stripped” JJP “of its entire defense.” In short, the argument boils down to this: Had West’s counsel selected the “correct” theory of the case, West would have had no case.

We do not find this argument persuasive. First, we know of no reported decision, and none has been cited to us, which holds that a plaintiff in a product liability action must adhere to a theory of the case which inevitably will result in a nonsuit or in a defense verdict. Second, virtually an identical argument was made and rejected in Brochu v. Ortho Pharmaceutical Corp. (1st Cir. 1981) 642 F.2d 652, 655. In that case a wife suffered a cerebral thrombosis as a result of using an oral contraceptive manufactured by the defendant. In their action for damages, wife and husband proceeded on theories of fraudulent misrepresentation and strict product liability. Their theory of strict product liability was in turn bifurcated into claims of defective design and failure to warn of a concealed danger. A jury found for the plaintiffs. On appeal the defendant manufacturer contended, among other things, that the case had been tried on an erroneous theory of design defect, and that the plaintiffs’ design defect argument was a “semantic ploy.” The court of appeals said flatly, “We disagree,” and went on to note that as to the claim of design defect, “there were evidentiary grounds to support a jury finding of liability on this claim.” The judgment was affirmed. (Id., at pp. 653-655, 664.)

In Kehm v. Procter & Gamble Mfg. Co. (8th Cir. 1983) 724 F.2d 613, a wife died from TSS contracted while using a vaginal tampon manufactured by the defendant. In a subsequent action for wrongful death, the husband advanced two theories of liability, viz., defective design and failure to warn. A jury rendered a general verdict for the plaintiff, and the judgment was affirmed on appeal. The opinion of the court of appeals contains no discussion of whether the plaintiff’s theory of defective design was appropriate, because on appeal the defendant did not contest the sufficiency of the evidence to support the jury verdict on liability and causation. (Id., at p. 616.) But the case nevertheless illustrates that the concept of defective design has been applied to a vaginal tampon.

In its closing brief JJP contends that West herself relied upon the theory of failure to warn, in that her counsel, in opening statement and in closing arguments, referred to the lack of warning. We pause to examine counsel’s remarks.

In his opening statement to the jury, West’s counsel mentioned the fact that after TSS had been identified, the Food and Drug Administration requested all tampon manufacturers to furnish warnings about TSS with their products. He went on to say that after West had recovered from her illness, JJP inserted such a warning in boxes of o.b. tampons. The relevant text of counsel’s comments is set forth in the margin. The thrust of those comments was that the warning itself was evidence that o.b. tampons were defective. The comments were proper. In an action based on a theory of strict product liability, postaccident warnings are admissible to show that the product was defective at the time of injury. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 449-452 [198 Cal.Rptr. 155, 673 P.2d 743].)

A little later in opening statement, counsel alluded to the instructions furnished by the manufacturer concerning the use of o.b. tampons. The text of those remarks is also set forth in the margin. In context, counsel was saying that the forthcoming evidence would show (1) that o.b. tampons were defective, and therefore dangerous, because the instructions for use aggravated other defects in design, and (2) that there could be no dispute as to whether use of an o.b. tampon caused TSS in this case. Counsel did not suggest that JJP had a duty to warn consumers of the danger of contracting TSS. Instead, he concentrated on the fact that the product had several defects. “[I]n a strict liability case, as contrasted with a negligent design action, the jury’s focus is properly directed to the condition of the product itself, and not to the reasonableness of the manufacturer’s conduct.” (Barker v. Lull Engineering Co., supra, 20 Cal.3d at p. 434.)

The subject of instructions for use arose again in the course of counsel’s argument to the jury. Very shortly thereafter, counsel told the jury that his theory of the case was not based on JJP’s failure to warn of the danger of TSS. Specifically, counsel said this: “But I want to make it clear that I don’t think the defect in this product—I have heard this many times in this case. I categorically do not think that the defect in the product was somehow failure to warn about toxic shock syndrome, [f] You are going to see as I develop in my argument—that is really sort of a silly argument. Mr. Gore proposed in his opening statement that somehow, I’m arguing there is a defect because they failed to warn about toxic shock, [f] Toxic shock is a disease entity that wasn’t defined until after Lynette West was released from the hospital. The federal government didn’t uncover the disease problem with tampons until after she went to the hospital. It’s silly to argue that they somehow should have warned about the disease, before the Feds blew the whistle. [1] I can’t make that argument to you, and I’m not going to make that argument to you.”

Counsel went on to point out that the warning inserted in boxes of o.b. tampons—the warning requested by the Food and Drug Administration— was contrary to JJP’s position that o.b. tampons could not cause TSS. Counsel’s point was this: “Now, I ask you, if the tampon manufacturer had a serious question as to whether or not their product was associated with toxic shock syndrome, absent a federal court order, why would they put that [warning] in their tampon box? [|] I submit to you that it is an admission that people—that they know, and they are telling the consuming public that their tampons lead to this disease.”

Counsel then argued that under the “consumer expectation” test, an ordinary consumer of o.b. tampons would not expect to “get sick from the product.” His point was that a packaged o.b. tampon was innocuous in appearance, and that the advertising on the back of the package extolled the virtues of the product.

In sum, in opening statement and in argument West’s counsel made (among others) three points: (1) That the subsequent warning about TSS furnished by JJP in boxes of o.b. tampons was itself evidence that o.b. tampons were defective at the time of West’s illness; (2) that the directions for use of o.b. tampons constituted a defect because they at once extolled and exacerbated their “super-absorbent” attributes (another claimed defect); and (3) that an ordinary consumer of o.b. tampons would not expect to become seriously ill from using them. Counsel’s remarks were not, as JJP claims, directed toward failure to warn, but rather toward defect in design and “consumer expectations.”

Whether a particular product is defective in design is a question of fact for the jury to determine. (Self v. General Motors Corp. (1974) 42 Cal.App.3d 1, 6 [116 Cal.Rptr. 575].) “An attorney is permitted to argue to the jury any theory of the evidence of which it is reasonably susceptible. ” (Fleming v. Fricke (1934) 140 Cal.App. 14, 35 [35 P.2d 210].) As noted ante in part IV B of this opinion, substantial evidence was presented in this case to show that o.b. tampons were defective in design. In view of that evidence we cannot say that West’s theory of defective design was without support. Where substantial credible evidence is presented, a jury’s verdict on defective design will not be disturbed on appeal. (Self v. General Motors Corp., supra, 42 Cal.App.3d at p. 6.)

Even if JJP’s requested instructions on failure to warn had been given in addition to the instructions on design defect, the jurors could well have found JJP liable on the basis of design defect, even if they concluded that it was not liable for failing to give an adequate warning about TSS. It does not appear reasonably probable that JJP would have obtained a more favorable result if its requested instructions had been given. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243].)

Consequently we perceive no error either (a) in allowing West to proceed on the theory of defective design, or (b) in rejecting JJP’s instructions on failure to warn. If error there was, it was not prejudicial.

VI. Proximate Cause

JJP next contends that West “failed to adduce proof of a prima facie case of proximate causation” because “there was no evidence that [she] read ... or followed the o.b. tampon instructions.” In particular, JJP argues that West failed to prove that her injury would have been prevented by either (a) different instructions on the use of the o.b. tampon, or (b) any warning about the hazard of TSS.

First, we question the evidentiary premise upon which the argument is based. It is true that there was no direct testimony to the effect that West read the instructions; the question was never put to her. But West testified (1) that she had tried other tampons; (2) that she preferred the o.b. tampon because “the material was more compact” and because “it could stay in longer, and I wouldn’t have to worry about it”; and (3) that at the time of her illness, she had been using o.b. tampons for close to five years (i.e., since about age 15). An insert from a package of o.b. tampons was admitted in evidence as part of plaintiff’s exhibit 1. The insert contained not only instructions on how to use an o.b. tampon, but also a description of the tampon’s attributes. Part of the description read: “o.b. is designed with special outer absorbing and inner holding layers. This method of layering a tampon enables o.b. to absorb twice as fast and hold over 50% more than the leading tampon brand, [t] Even on heaviest days when you lose almost half your menstrual flow, o.b. keeps you safer, longer than any other tampon.” The instructions themselves illustrated to the user the proper .method of “flaring” one end of an o.b. tampon prior to insertion. From this evidence and from West’s testimony, the jurors could reasonably have surmised that at some point in her life, West had read the instructions.

Second, the argument ignores the evidence that actually was presented on the issue of proximate cause. As noted in part IV B of this opinion, ante, there was substantial credible testimony to the effect that the use of tampons is a substantial factor in the occurrence of menstrually associated TSS. One expert said without reservation that an o.b. tampon caused West’s illness. The testimony of one witness, if believed, is sufficient for the proof of any fact. (Evid. Code, § 411.)

VII. Consumer Complaints

At trial one of West’s experts was allowed to testify about the nature of the consumer complaints JJP had received concerning the o.b. tampon, and to give his opinion as to JJP’s reaction to those complaints. At the outset of the testimony the trial court told the jury that the evidence was being admitted solely on the issue of whether JJP had received notice of defects in its product. Initially, the witness not only described the general nature of the complaints, but also read from portions of them. The testimony was interrupted by a conference held in chambers, in the course of which the trial court ruled (1) that the written consumer complaints themselves would not be admitted in evidence, and (2) that the witness should thenceforth refrain from reading the complaints verbatim. Thereafter the witness adhered to the trial court’s rulings. We already have described the consumer complaints ante in part III D of this opinion.

JJP now contends that the admission of the expert’s testimony was prejudicial error, because (1) the consumer complaints could not have, and did not, alert JJP to the hazard of TSS, which was unknown at the time; and (2) the verbatim reading of portions of the complaints was unduly inflammatory. In support of its contention, JJP cites Wolf by Wolf v. Procter & Gamble Co. (D.N.J. 1982) 555 F.Supp. 613.

Wolf was an action for damages for personal injuries sustained as the result of contracting TSS while wearing another brand of tampon. We note that the opinion concerns rulings made in limine on the admissibility of certain evidence. The court there ruled prior to trial that evidence of consumer complaints of “rashes, allergic reactions, vaginitis, irritation, burning, disintegration of the tampon, ulcerations, and lacerations would not serve to put defendants on notice of a defect in their product such as to cause the complex illness that is the subject of this litigation.” (Id., at p. 622.) Because there was no trial record, we cannot evaluate the connection, if any, between the consumer complaints and the defect which was in issue in Wolf.

On the other hand, in Kehm v. Procter & Gamble Mfg. Co., supra, 724 F.2d 613, 625-626, the trial court admitted evidence of consumer complaints which, though they all related to tampons, failed to mention TSS. On appeal from a judgment based on a verdict for the plaintiff, the defendant manufacturer contended that the admission of such evidence was reversible error. The court of appeals disagreed, and said this: “In this case, consumer complaints need not match the exact scientific description of TSS in order to show substantial similarity between other consumers’ illnesses and Mrs. Kehm’s illness. Procter & Gamble had ample opportunity, of which it availed itself, to rebut the force of the other complaints by pointing out dissimilarities between the complainers’ symptoms and the symptoms of TSS. It was up to the jury to decide what weight to give the complaints from other consumers.” (Id., at pp. 625-626.)

As of this writing, there appears to be no California decision directly on point. Both Wolf and Kehm are decisions of federal courts lower than the United States Supreme Court, and neither decision is binding on us. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 674, pp. 4587-4588, and cases there cited.) But we find the Kehm opinion persuasive on this point, because it appears to be in accord with previous California law. For example, in Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 121-122 [117 Cal.Rptr. 812, 528 P.2d 1148], it was held: “Evidence of other accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote.” And in Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 404 [185 Cal.Rptr. 654, 650 P.2d 1171], we encounter the following paragraph:

“When evidence is offered to show only that defendant had notice of a dangerous condition, the requirement of similarity of circumstances is relaxed: ‘ “all that is required ... is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation. . . .’” (Laird v. T. W. Mather Inc. (1958) 51 Cal.2d 210, 220 [331 P.2d 617].)”

We note that in Kehm the court of appeals approved the admission in evidence of the actual documents containing the consumer complaints. (Kehm v. Procter & Gamble Mfg. Co., supra, 724 F.2d at pp. 625-626.) In this case, the trial judge admitted testimony about the documents, but refused to allow the documents themselves to be admitted in evidence. Apparently the trial judge attempted to draw a line in accord with the provisions of Evidence Code section 352. Technically, the consumer complaints probably embodied a good deal of hearsay. Evidence about the complaints was admissible, if at all, only to show that the complaints had in fact been made. But in order to demonstrate the relevance of the complaints, some description of them had to be given; otherwise, the jury would have been told simply that “consumer X complained about o.b. tampons,” without more. Therefore the trial judge allowed the witness to describe the nature of the complaints and, as a part of the description, to read excerpts from pertinent ones.

The consumer complaints formed the basis of an expert’s opinion. Based on his review of the complaints, the expert testified that JJP should have initiated an “adequate appropriate testing program,” and that if testing had been done in 1977 or 1978, “we certainly would have seen toxic shock much earlier than we saw it.” An expert is entitled to base his opinion on evidence which is not itself admissible. (Evid. Code, § 801, subd. (b).)

JJP had ample opportunity to point out the dissimilarities between the complainants’ symptoms and the symptoms of TSS. For example, one of JJP’s experts (a physician) testified that in his opinion there was “no relationship” between TSS and vaginitis, or cystitis, or monilia, or salpingitis. Another witness (a microbiologist) testified that the letters did not indicate the need for any further testing of o.b. tampons.

JJP made no request for a limiting instruction, to the effect that matters on which an expert based his opinion were admitted only to show the basis of the opinion and not for the truth of the matter. (See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 789 [174 Cal.Rptr. 348].)

In the light of the foregoing circumstances, we conclude that the trial court committed no error in admitting testimony about the consumer complaints.

VIII. Alleged Misconduct of Counsel

Next, JJP contends that West’s counsel exceeded “the bounds of proper advocacy” in the course of the trial. In particular, JJP complains of counsel’s continued reference to JJP as “Johnson & Johnson,” of his description of JJP as “old and big and very successful,” of his suggestion that JJP had to be dragged “kicking and screaming into the courthouse,” and of other comments of the same ilk. JJP also complains that on two occasions, West’s counsel asserted facts which were not supported by any evidence, and that he attempted in effect to testify himself.

We need not recite counsel’s comments at length. We have examined each of the allegedly offending episodes in detail, and have noted the following:

First, the trial was not a short one. Opening statements began on December 1, 1982, and closing arguments ended on December 16. A handful of suspect comments was spread over a period of 13 court days. With the exception of the reference to “Johnson & Johnson,” the comments were isolated and were not repeated. The reference to “Johnson & Johnson” cannot have worked to the prejudice of JJP since, after all, “Johnson & Johnson” is a part of JJP’s full corporate name, “Johnson & Johnson Products, Inc.”

Second, in the majority of the instances of which JJP complains, JJP’s counsel raised no objection. Even when an objection was interposed, JJP’s counsel made no request for an admonition to the jury. “ ‘Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. ... In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.’” (Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892 [112 Cal.Rptr. 540, 519 P.2d 588], quoting from Horn v. Atchison T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610 [39 Cal.Rptr. 721, 394 P.2d 561], cert. den. (1965) 380 U.S. 909 [13 L.Ed.2d 796, 85 S.Ct. 892], italics ours.) If there is no request that the jury be instructed to disregard the objectionable conduct, the error is deemed waived unless the conduct was of such an aggravated character that it could not be cured by any instruction. (Id., at p. 892.)

Third, when an objection was made, it was often sustained; and while no admonition was given to the jury, an admonition occasionally was given to West’s counsel. Counsel heeded the admonishment.

Fourth, on occasion West’s counsel himself recognized that he had stepped over the line, and he apologized to the court.

Fifth, misconduct of counsel was one of the grounds upon which JJP’s motion for new trial was based, and “the trial court impliedly found no misconduct, or at least no prejudice, when ruling on the motion for new trial. ‘A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong.’” (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 407 [196 Cal.Rptr. 117], quoting from Cope v. Davison (1947) 30 Cal.2d 193, 203 [180 P.2d 873].)

From our examination of the record, we cannot say that West’s counsel was overly blatant, or that he proceeded in bad faith, or that he disregarded standards of professional conduct. In the odd sentence or two he may have been overzealous, but he retreated quickly. The trial judge exercised firm control over the conduct of the trial, and he instructed the jurors that the statements of counsel were not to be considered as evidence.

We find no prejudice to JJP, and no miscarriage of justice.

IX. Instructions

We now turn to JJP’s claims of error regarding the instructions actually given to the jury.

A. The ‘‘Consumer Expectation” Instructions

At West’s request the trial court gave an instruction which was based upon, but omitted portions of, BAJI No. 9.00.5. The exact wording of the instruction given is set forth in the margin. The court also instructed the jury that West had the burden of proving that the o.b. tampon manufactured by JJP “was defective in that it failed to perform as safely as an ordinary consumer would expect.”

In Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, the California Supreme Court set forth two tests for determining whether a product is defective in design. The tests subsequently have become known as the “consumer expectation” test and the “risk-benefit” test. The tests are described in Barker as follows: “We hold that a trial judge may properly instruct the jury that a product is defective in design (1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the plaintiff proves that the product’s design proximately caused his injury and the defendant fails to prove, in light of the relevant factors discussed above, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.” (Id., at p. 435.) The two tests are alternative tests. (Id., at p. 432; accord Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118 [184 Cal.Rptr. 891, 649 P.2d 24].)

JJP now contends that the trial court erred in giving an instruction based on the “consumer expectation” test described in Barker. According to JJP, the court should have instructed the jury to apply the “risk-benefit” test instead.

To this argument there are two short answers. First, there is absolutely nothing in the record which indicates that JJP requested an instruction based on the “risk-benefit” test. “ ‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.’ ” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951 [160 Cal.Rptr. 141, 603 P.2d 58], quoting from Downing v. Barrett Mobile Home Transport, Inc. (1974) 38 Cal.App.3d 519, 523 [113 Cal.Rptr. 277].) Neither a trial court nor a reviewing court is obligated to seek out theories which a party might have advanced, or to articulate for him that which he has left unspoken. (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701-702 [200 Cal.Rptr. 870, 677 P.2d 1147].)

Second, under the “risk-benefit” theory a manufacturer has the burden of proving that the benefits of the product’s design outweigh the risk of danger inherent in the design. (Barker v. Lull Engineering Co., supra, 20 Cal.3d at pp. 431-432, 435.) In applying the “risk-benefit” test a jury is entitled to consider, among other things, the “feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” (Id., at p. 431.) Here, JJP produced no evidence to show (1) that a safer alternative design of the o.b. tampon was not feasible, or (2) that the cost of a different design would have been prohibitive, or (3) that any different design of the o.b. tampon would have been more dangerous to the consumer. Consequently, even if an instruction based on the “risk-benefit” test had been requested, it would have been inappropriate because it had no support in the evidence.

JJP persists, and in its closing brief contends that “the consumer expectation test is not appropriate in a case requiring the presentation of expert testimony,” citing Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485 [200 Cal.Rptr. 387].

Lunghi was an action for wrongful death brought by the heirs of a man who had been crushed by parts of a front-end loader. The action was based on theories of negligence and strict product liability. The trial court refused instructions based on the “consumer expectation” test, and instead instructed the jury to apply the “risk-benefit” test. The jury returned a verdict in favor of the defendant manufacturer, and a judgment was entered accordingly. On appeal the plaintiffs claimed error in (among other things) the trial court’s refusal to instruct on the “consumer expectation” test. On that point the First Appellate District, Division Three, found no error. It said: “Appellants themselves identify the subject of inquiry in the instant case as ‘whether the user of a loader would expect that boom arms and bucket could descend with fatal crushing force when the loader is at rest with the engine off.’ This does not seem to be the kind of question that twelve ordinary people drawn from the community at large could evaluate based on their own ‘common knowledge.’ The ‘user of a loader’ is distinguishable from ‘ordinary consumers.’ [Citation.] Frankly, we think that an ordinary consumer would not know what to expect from a piece of heavy machinery like the Bobcat loader, even if the engine was turned off.” (Id., at p. 496.) The court’s conclusion was based upon its interpretation of certain language found in Campbell v. General Motors Corp., supra, 32 Cal.3d 112, 126-127.

In Campbell, a 62-year-old female bus passenger was injured when a bus manufactured by the defendant turned a corner sharply, and she was propelled from her seat. In a subsequent product liability action, the plaintiff claimed that the bus had been defective in design because it had lacked handrails or guardrails which would have prevented her fall. In her case in chief the plaintiff testified to what had happened, and she presented photographs of the bus in question. At the close of her case in chief the trial court granted the manufacturer’s motion for a nonsuit. The Supreme Court reversed, holding that the plaintiff had presented sufficient evidence, under either the “risk-benefit” or “consumer expectation” test, to withstand a motion for nonsuit. Under the “consumer expectation” test, it was not necessary for the plaintiff to present expert testimony as to design defects. The court said: “Here, plaintiff presented sufficient evidence to have the case submitted to the jury on this theory as well. Not only did she testify about the accident (her use of the product), but she also introduced photographic evidence of the design features of the bus. This evidence was sufficient to establish the objective conditions of the product. The other essential aspect of this test involves the jurors’ own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence. Since public transportation is a matter of common experience, no expert testimony was required to enable the jury to reach a decision on this part of the Barker inquiry.” (Id., at p. 126; fn. omitted.) The court noted that “it is difficult to conceive what testimony an ‘expert’ could provide” on the issue of “the safety expectations of the general public as represented by the ordinary consumer . . . .” (Id., at pp. 126-127.) The court concluded thus: “The quantum of proof necessary to establish a prima facie case of design defect under the first prong [i.e., the ‘consumer expectation’ test] of Barker cannot be reduced to an easy formula. However, if the product is within the common experience of ordinary consumers, it is generally sufficient if the plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features o