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Dow Chemical Company v. Mahlum12/31/1998
test animals developed vacuolizations which were evidence to them of the presence of silicone in the bone marrow. That is where blood products are produced, the cells of blood are produced primarily in the bone marrow. They also found evidence of lung congestion and evidence of involvement of the liver."
The experiment also found a statistical difference in brain weight in the experimental animals. Dr. Lappe considered it to be significant that this was a Dow Chemical Company internal company report and that, according to Dr. Lappe, it was not filed with the FDA or shared with the scientific community. Dr. Lappe also testified that Dow Corning published a report in its own name that "reads word for word identical" to the Dow Chemical report referred to. All reference to Dow Chemical was deleted in the second, identically-worded Dow Corning report.
Dr. Lappe further testified about two 1973 pathology studies conducted by Dow Chemical "on various silicone implant specimens [involving] tissue specimens taken from rabbits that have been either control or were treated with Dow Corning materials." Experimenters, according to Dr. Lappe, "all [found] evidence of chronic inflammatory reaction characterized by what are called multinucleated giant cells in this particular study."
All of Dr. Lappe's testimony is very much in line with a "joint development agreement" made by Dow Chemical and Dow Corning in 1967. This agreement, both a "joint research agreement" and a "joint development agreement," pertained to "DC 555 and compounds derived from and related thereto." The subject of the Dow Chemical-Dow Corning agreement was "the physiological effects resulting from the ingestion or injection into the systems of animals or men of particular physiologically active silicones, wherein in principle, the parties shall jointly share the costs and shall share the profits and losses of any commercialization." Minutes of a Dow Chemical board of directors' meeting referred to an October 1, 1966, agreement between Dow Corning and Dow Chemical for the "research and commercial development in the field of physiological effects of certain organosilicon compounds," which Dr. Lappe takes to be referring to the determination by these two companies of "whether or not the compounds, like DC 360 or 200 or 555, would have an effect that would perturb or upset or enhance the human body's basic physiological or metabolic life sustaining activities."
Also put into evidence were the March 1977 minutes of the annual meeting of stockholders of Dow Corning. The minutes contain a document entitled "Dow Chemical Company Evaluation of Bioactive Organosilicon Compounds." There can be no denying of Dow Chemical's ongoing interest in silicone research for medical purposes. In 1969, the two Dow companies signed an agreement to work together in a "joint development program" relating to the "biological activity of certain organosilcon compounds," in which the two companies agreed to "maintain such information in confidence" and neither would use the results for its own commercial purposes. All in all, there would seem to be an abundance of evidence to support a jury finding that Dow Chemical "knew that breast implants were likely to be dangerous."
Dow Chemical's second argument is that there is no evidence that it "willfully and deliberately breached a duty to stop Dow Corning from selling breast implants."
I find this to be a very interesting and revealing contention. Dow Chemical seems to be saying that even if it did know that the breast implants were "likely to be dangerous," it would not be liable to users of the device because it was under no duty "to stop Dow Corning from selling breast
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