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Dow Chemical Company v. Mahlum12/31/1998
ahlum and other intended users of DC 360 to insure that the substance could be used safely for its intended internal-implantation purpose or, at least, a duty to warn of the dangers which were known to both Dow Chemical and Dow Corning.
In its opening brief, Dow Chemical argues: "Dow Chemical never specifically undertook to render any advice with respect to the safety or suitability of silicones for use in breast implants and therefore cannot be liable for its alleged failure to recommend long-term testing." The record, and particularly the testimony of Dr. Lappe, repels this assertion. The miniature breast implant study alone tells us that Dow Chemical not only rendered "advice" in this testing, Dow Chemical people designed and supervised these medical tests, tests that can only be described as breast implant tests.
From at least the time of the Chenoweth Study in 1956, we know from Dr. Lappe that Dow Chemical and Dow Corning were investigating together the biological reactivity of certain kinds of silicones and were working toward the "increasing use of siloxanes for medicinal application." (Emphasis added.) From the time of the Chenoweth Study, both companies were aware that when these silicone compounds were injected into a mammalian body they migrated throughout the body, with injury being done to a number of organic systems. The jury knew, then, that the two companies were involved in more than just "basic research," that they were jointly testing chemicals for a "particular purpose," that purpose most likely being to determine whether DC 360 could be safely used medically within the human body. The issue here, then, is not the Mahlums' seeking to hold Dow Chemical liable for faulty, basic research on silicone products. The Mahlums, on the state of this record, can credibly charge Dow Chemical with actively collaborating with Dow Corning and participating with Dow Corning in the research and development of DC 360, not only for general, internal medical uses, but for the specific use in breast implants, as evidenced by the miniature breast implants which were the subject of the Dow Chemical-Dow Corning, four-dog study. This study was completed in 1970, using miniature silicone gel breast implants. Four dogs were examined after six months and twenty-four months from the time of implantation. One of the dogs died after eleven months, from causes not related to the experiment. This dog, on autopsy, exhibited evidence of liver and kidney congestion and some fibrous tissue reaction at all of the sites of implantation. With reference to the three surviving dogs, after twenty-four months, almost all of the implantation sites had severe or moderate chronic inflammation. A report of the study, co-authored by Silas Braley of Dow Corning, was published in 1973. According to Dr. Lappe, the report falsely told the "scientific community there were no differences at six months and two years and provide only six month's data." Dr. Lappe testified that the Braley Report does not give the scientific community a chance to perform an independent evaluation of the two-year data and falsely represents that the results were the same at six months and twenty-four months. Further, the report failed to say that one of the dogs had died (stating that all four had survived) and did not report the adverse reactions appearing in the autopsy report of the dog that had died.
According to Dr. Lappe, there was another study done by Dow Chemical Company on DC 360 fluid in 1970. This study contains a pathology report of what happens when DC 360 fluid is injected into rats. Dr. Lappe was asked: "What Dow Chemical find out about silicone and where it goes in bone marrow in 1970, sir?" His answer:
" he
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