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VARLEY v. TAMPAX, INC.

No. 87-1848.

855 F.2d 696 (1988)

Dorothy VARLEY and Charles Varley, heirs at law of Constance Ann Earhart, and Kathryn Holen, Administratrix of the Estate of Constance Ann Earhart, Deceased, Plaintiffs-Appellees, v. TAMPAX, INC., Barbara D. Taylor, and Saint Mary Hospital, Defendants-Appellants.

United States Court of Appeals, Tenth Circuit.

September 2, 1988.

Attorney(s) appearing for the Case

Joseph P. Moodhe (and Roger E. Podesta of Debevoise & Plimpton, New York City, Ronald D. Heck and Cynthia Schriock of Fisher, Heck & Cavanaugh, Topeka, Kan., with him on the brief), for defendant-appellant Tampax, Inc.

Stephen C. Day (and James Z. Hernandez of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, Kan., with him on the brief), for defendant-appellant Barbara D. Taylor.

Charles D. Green of Arthur, Green, Arthur, Conderman & Stutzman, Manhattan, Kan., for defendant-appellant St. Mary Hosp.

Richard H. Seaton of Everett, Seaton & Miller, Manhattan, Kan. (Melvin Belli, Sr. and George O. Fekete, San Francisco, Cal., with him on the brief), for plaintiffs-appellees.

Before LOGAN and McWILLIAMS, Circuit Judges, and TIMBERS, Circuit Judge.

McWILLIAMS, Circuit Judge.

Following an acute and severe illness, Constance Ann Earhart died on March 5, 1984, while hospitalized at St. Mary Hospital, in Manhattan, Kansas. Ms. Earhart was at the time under the care of Barbara D. Taylor, M.D. For some time prior to her death, Ms. Earhart had been using super tampons manufactured by Tampax, Incorporated, and it was contended that as a result of such use she became ill with what is known as Toxic Shock Syndrome (TSS...

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