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Dow Chemical Company v. Mahlum12/31/1998
implants. " The way Dow Chemical puts this argument goes to the very heart of its defense, which is: "We are merely a stockholder in Dow Corning; and, if Dow Corning decided to develop and market a dangerous product, we had no duty to stop them and, for that matter, did not have the power to stop Dow Corning if we so chose. " If Dow Chemical had neither the duty nor the right to "stop" Dow Corning "from selling implants," Dow Chemical could not be guilty for any misconduct engaged in by Dow Corning. The problem with Dow Chemical's argument, however, is that it fails to recognize that the jury could have found what might be said to be the real relationship between Dow Chemical and Dow Corning, which is that Dow Chemical "operated," "controlled," assisted and otherwise "jointly" worked with Dow Corning in the development and probably the marketing of this potentially dangerous product. Once this is recognized, the jury could have concluded that it makes just as much sense to say that Dow Corning "failed to stop" Dow Chemical as it does to say that Dow Chemical failed to stop Dow Corning. Again, Dow Chemical cannot rely on its "We-are-just-a-stockholder" defense. There is much more to it. Sure, if Dow Chemical were only a stockholder, it would have no duty, no right to "stop" Dow Corning from doing the things that it did; but the jury could, from this evidence, have found that Dow Chemical acted in a role that went far beyond just being a stockholder.
If the jury believed the evidence bearing on Dow Chemical's control over "the quality of [Dow Corning's] goods and services" and Dow Chemical's operation of Dow Corning, then it is not too large a step for the jury to have found that both companies had "act with conscious disregard of the safety" of Mrs. Mahlum.
Witness Dr. Marc Lappe gave powerful affirmation to the Mahlums' punitive damage case when he testified with a "strong and decisive yes" that Dow Chemical had `demonstrated conscious disregard for the safety and welfare of the ultimate users of products that it had direct or indirect control over." Dr. Lappe testified that
"for a protracted period extending up to the time of Miss Mahlum's implant, Dow Chemical by its own actions initiated control over toxicology testing in the '50s and '60s that would be done on components of Dow Corning breast implants. Thereafter, they [Dow Chemical] participated in selecting for the test labs, they knew and referred Dow Corning: to the proper testing individuals in their view."
Most persuasive to me is Dr. Lappe's testimony that "Dow Chemical had and did exercise control over what went into these external tests by actually designing the test for Dow Corning of what a toxicological assay would look like." (Citing the "specific test that moved [Dr. Lappe] the most," namely, a test laid out by Dow Chemical, in which "the analog of a breast implant," "miniature breast implants" were placed experimentally in dogs.)
Dr. Lappe's testimony is very much in harmony with the previously quoted language in the Dow Chemical-Dow Corning agreement of May 5, 1975, stating that Dow Chemical had control of Dow Corning's operations, "including the quality of its [Dow Corning's] goods and services." It seems to me that the jury had sufficient evidence to conclude that Dow Chemical and Dow Corning have been in the silicone research business together for many years and that one of the products of their "joint research" was the Silastic II. It is difficult, then, to give much credence to the argument in Dow Chemical's brief that "it had no knowledge of any dangers associated with silicone gel breast implants." With regard to Dow Chemical's argument that it "did not willfully and deliberatel
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