A California federal jury found last month that Kimberly-Clark Corp. and its spinoff Halyard Health Inc. misled buyers about the impermeability of the companies’ MicroCool surgical gowns. A class of buyers was awarded $454 million in compensatory and punitive damages.
The jury ordered Kimberly-Clark to pay $3,889,327 in compensatory damages and $350 million in punitive damages. In addition, jurors ordered Halyard Health to pay $261,445 in compensatory damages and $100 million in punitive damages.
Bahamas Surgery Center’s class action, filed in October 2014, claims Kimberly-Clark and Halyard Health falsely represented that their MicroCool surgical gowns provided the highest level of liquid barrier protection. It was alleged that while the gowns are marketed as “impermeable” and effective against pathogens like Ebola, they put health care workers at substantial risk. The class action was brought on behalf of persons and entities in California who purchased the gowns between February 2012 and January 2015.
This appears to have been a classic case of a corporation putting “money and profits” over safety and customer interest. The class presented to the court and jury an assortment of internal company documents stating concerns about the quality of the gowns’ seams and testing failures, including emails and chat messages. A May 2013 presentation given to Kimberly-Clark chairman and CEO Tom Falk, saying “the company had 80 compliance challenges on gowns that were delaying progress on cost savings,” was also presented and was very damaging.
Additionally, jurors learned of an electronic instant message chat in March 2012 in which a Kimberly-Clark senior research scientist asked a manager at the company’s manufacturing plant in Honduras to create a “pretext for rerunning tests,” telling him “something, anything” would do. The biggest concern for the company, according to the evidence presented at trial, were problems with the gowns’ sleeve seams actually coming apart.
AAMI Level 4 protection is the top rank for protective apparel, appropriate for situations where there’s a high-risk of infection. The standard is set by the Association for the Advancement of Medical Instrumentation. It was proved at trial that it was widely known inside the companies that their surgical gowns were not compliant with the safety standard. That posed a safety risk to users.
The class was represented by Michael Avenatti of Eagan Avenatti. The case is Bahamas Surgery Center LLC v. Kimberly-Clark Corporation et al. (case number 2:14-cv-08390) in the U.S. District Court for the Central District of California.
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