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Dow Chemical Company v. Mahlum12/31/1998
bility to "bleed" out of its elastomer shell, Dow Chemical "did not report the studies that would demonstrate what the toxicologic properties were of the known components of silicone gel." Dr. Lappe, went so far as to testify that if Dow Chemical had disclosed the details of the Dow Chemical "research program into . . . how polydimethylsiloxanes used in implants had effects on the immune and central nervous system, . . . the implants would have been taken off the market long before 1992."
As further evidence of Dow Chemical's knowledge and its joint role in a number of experiments relating to the principal component of breast implants, the DC 360 silicone fluid, Dow Chemical admits, as put in its opening brief, that "Dow Chemical tested or participated in tests involving DC 360 fluid, which was later used . . . to make the gel in Silastic II implants." Dow Chemical also admits in its brief that it "conducted or participated in approximately ten tests on DC 200 fluid, which is an industrial silicone fluid that is chemically similar to the DC 360 fluid" that was used in Mrs. Mahlum's implants. Dow Chemical appears to be arguing that even though it tested the silicone fluids that were later used in the implants, it did not do so for the specific "purpose of determining whether it was safe for use in a medical implant." It is hard for Dow Chemical to maintain such a position given its admission that it "tested or participated in tests involving DC 360 fluid." Dr. Lappe testified that DC 360 was used as the major component in the 1970 "miniature breast implants" test in dogs and that the implant experimenters were "following an outline that had been laid out by Dow Chemical and sent to FDRL, to Dr. Carson." (See page 8.) The record belies Dow Chemical's assertion that it did not test components of Silastic II (namely, DC 360 and similar organosilicon compounds) for the purpose of determining the safety of these components for use as medical implants. As I see it, whatever responsibility that Dow Corning might have for employing DC 360 in medical implants must be shared with Dow Chemical, there is evidence to support a jury finding that Dow Chemical should share that responsibility, perhaps equally, with Dow Corning.
From the tests that Dow Chemical "conducted or participated in," Dow Chemical was likely to have known, at the very least, that the mentioned silicone liquids, when introduced into the bodies of mammals, migrated throughout the bodies of the test animals. (See, e.q., 1956 study by Dr. M. B. Chenoweth of Dow Chemical's biochemistry department.)
As I have said, Dow Chemical's position seems to be that although it safety-tested the principal component of breast implants, it did not test silicone implants as such. To this contention I say that, even without considering the Dow Chemical-designed experiment with miniature breast implants, the evidence seems to show that Dow Chemical and Dow Corning jointly "participated" in the development and safety-testing of a substance designed to be placed within the human body and that the two companies should share in responsibility for the adverse consequences associated with placing the substance within the human body.
I see as the gist of the Mahlums' claim against Dow Chemical the two Dow companies' having "participated" and worked together in developing and testing a form of silicone that, was intended by both companies to be placed inside the human body. Whether one wants to say that the two companies are jointly liable for carrying out this activity or to say that Dow Chemical "undertook" the task of assisting Dow Corning in doing so, the facts support a Conclusion that both Dow Corning and Dow Chemical had a duty to Mrs. M
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