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Dow Chemical Company v. Mahlum12/31/1998
hat Dow Chemical "willfully and deliberately failed to avoid" the dangerous consequences of silicone breast implantation. Put another way, the jury believed that Dow Chemical and Dow Corning, joint developers of the breast implant marketed by Dow Corning, were aware of what they were doing and acted in conscious disregard of the "dangerous consequences" inherent in placing silicone in the human body in the Dow Corning Silastic II.
In its brief, Dow Chemical's first response to t1ne damning consequences of the special verdict is that there is "no evidence that Dow Chemical knew that breast implants were likely to be dangerous." (Emphasis in Dow Chemical's brief.) Dow Chemical's second argument is that there is not "any basis for the plaintiff's claim that it willfully and deliberately breached a duty to stop Dow Corning from selling breast implants."
With regard to the first argument, it appears to me that there is quite a bit of evidence from which the jury could have concluded that Dow Chemical "knew" that breast implants were likely to be dangerous. The overriding answer to Dow Chemical's contention is that by virtue of such Dow Chemical-Dow Corning arrangements as their "joint development program," their "joint research agreement," their mutual "obligation of confidence and nonuse" (relating to the biological activity of silicones) and, especially, the joint testing of miniature breast implants in dogs, whatever Dow Corning knew about the dangers of biological uses of silicone, Dow Chemical probably knew of the dangers, as did Dow Corning. It is plain that the two Dow companies had been working together for years on the use of silicones for medical purposes and that in later years they worked together on the development of breast implants.
I give special significance to Dow Chemical's declaration of its control over Dow Corning in its agreement with Dow Corning, dated May 5, 1975. In this written document, Dow Chemical and Dow Corning concur in the understanding that from the time Dow Corning was formed in 1943, Dow Chemical and Corning Corporation had "controlled equally" the share capital of what Dow Chemical calls its "Associate Company" namely, Dow Corning, and that, since that time, Dow Chemical and Corning Corporation have "controlled its [Dow Corning's] operations, including the quality of its goods and services." (Emphasis added.) Although Dow Chemical may argue in its brief "that there was no evidence that Dow Chemical knew that Dow Corning was misrepresenting the safety of its products," it seems to me that if Dow Chemical had been controlling Dow Corning's operations, as it says it was, and was controlling the quality of its goods and services, it is hard for Dow Chemical to argue that it did not know that Dow Corning was misrepresenting the safety of the Silastic II.
There is other evidence (other than Dow Chemical's declaration that it had control over the operation of Dow Corning and the quality of its products) that Dow Chemical knew that silicone breast implants were potentially dangerous and that Dow Corning was "misrepresenting the safety" of this product. Actually, given the state of this record, it is a very difficult task for Dow Chemical to deny that it did not know about the dangerous potential inherent in placing the Silastic II silicone gel into the human body. Dr. Marc Alan Lappe, toxicologist, medical ethician and expert in the field of silicone chemistry, testified that Dow Chemical possessed the "key findings of adverse effects of the components of Dow I Corning's silicone based breast implants." Dr. Lappe pointed out that although Dow Chemical had knowledge about such things as the migration of silicone throughout the body and silicone's a
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