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Dow Chemical Company v. Mahlum12/31/1998
the quality of goods sold under a trademark license, this duty cannot result in tort liability. See, e.g., TMJ Implants, 113 F.3d at 1494; Mini Maid Servs. Co. v. Maid Brigade Sys., Inc., 967 F.2d 1516, 1520 (11th Cir. 1992) Nevertheless, even though this language in the trademark agreement, by itself, is not sufficient to create tort liability on Dow Chemical's part, we agree with the federal district court that the agreement's "existence is one factor in assessing Dow Chemical's knowledge and involvement in Dow Corning's breast implant activities." In re Silicone Gel, 887 F. Supp. at 1461.
Based upon the aforementioned evidence, the jury could have found that Dow Chemical undertook to render testing, advisory, laboratory and personnel services for the purpose of promoting the safety of Dow Corning's silicone fluid in order to benefit third persons and had significant control over the development of this fluid.
Because the jury could reasonably conclude that Dow Chemical undertook to completely test the safety of the liquid later used in Dow Corning's silicone breast implants, Dow Chemical had a duty to exercise reasonable care in the performance of this undertaking. See Section 324A. Comment b to section 324A explains that the section "applies to any undertaking to render services to another, where the actor's negligent conduct in the manner of performance of his undertaking, or his failure to exercise reasonable care to complete it, or to protect the third person when he discontinues it, results in physical harm to the third person." Thus, under section 324A, once Dow Chemical undertook to test and advise Dow Corning on the safety of liquid silicone, it was obligated to fully complete this Course of conduct. Alternatively, if Dow Chemical discontinued its undertaking at some point, it was required to protect Dow Corning's consumers.
Based upon the evidence adduced at trial, the jury was free to conclude that Dow Chemical failed to perform its undertaking with reasonable care, resulting in physical harm to Charlotte Mahlum. See Pratt, 952 F.2d at 671. The Mahlums assert that Dow Chemical negligently performed its undertaking by failing to either conduct further tests to determine the long-term effects of silicones in the human body or at least advise Dow Corning on the need for such studies. We agree and additionally conclude that Dow Chemical was negligent by failing to intervene in the marketing of Dow Corning's breast implants. Thus, we conclude that the evidence supports the jury's finding of negligence.
Under the circumstances, once Dow Chemical undertook to test the safety of Dow Corning's liquid silicone, it was required to fully complete this testing until a reliable safety determination was made. Charlotte Mahlum's expert witness, Dr. Lappe, testified that Dow Chemical did not use reasonable care in designing and conducting follow up studies to confirm or reject results that suggested dangers. The record suggests that Dow Chemical did very little with respect to follow up, long-term testing. Dr. Lappe testified as follows:
"My opinion is a very clear and forceful one that what-ever long term testing they did do was inadequate. The results were misreported. The findings were suggestive of problems rather than safety. And in the aggregate, there was absolutely no basis for assuming long term safety based on the animal testing."
Given its knowledge about silicones in general and silicone gels in particular through its testing and advising on silicone fluids research over a thirty-year period, its involvement in and knowledge of breast implants through its controlled subsidiary Lepetit, its parent/subsidiary relationship with Dow Corn
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