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Dow Chemical Company v. Mahlum12/31/1998
y breach a duty to stop Dow Corning form selling breast implants," the argument is misplaced. It continues to assume that Dow Chemical is only a stockholder and that it, therefore, has no duty to "stop" Dow Corning's illicit activities. The jury, as I have pointed out, could very well have found that Dow Chemical and Dow Corning shared a general duty to stop "selling breast implants" or, rather, not to sell them at all until proper testing had been done.
As I see Dr. Lappe's testimony, it has the value of being both opinion evidence and percipient evidence. Lappe gave his opinion, "based on all the evidence available to me," that Dow Chemical was guilty of a conscious disregard of Mrs. Mahlum's safety and welfare. The Dow Chemical brief is devoted to the inadmissibility of Dr. Lappe's testimony as to "due care" but says little or nothing about his "conscious disregard" testimony. Dr. Lappe qualified as an expert in the field of medical ethics, and I find nothing in Dow Chemical's arguments that would lead me to disregard Dr. Lappe's testimony or to say that it had not been properly considered by the jury.
Dr. Lappe gave testimony, based on his understanding and knowledge of the standards for animal testing," to the effect that Dow Chemical did not conduct the studies that it did do "with an end in mind of protecting the public or use reasonable care in the design and conduct of follow-up studies to assure that results that suggested adverse finding could be confirmed or rejected." Even if the opinion portion of Dr. Lappe's testimony were to be rejected, Dr. Lappe provided supporting factual testimony for his opinion, testifying, without objection, that Dow Chemical had "concealed the hazards of the silicone fluids that went into silicone gel breast implants." There is no reason why the jury could not have properly concluded from this evidence that Dow Chemical did, in fact, conceal known dangers of silicone breast implants from persons whom Dow Chemical knew were going to be using the dangerous product. From the Conclusion Dow Chemical was concealing known dangers, the Jury reasonably have concluded from the facts of this case that Dow Chemical did so "willfully and deliberately" and, hence, in "conscious disregard of the safety of others."
The only remaining subject that calls for Discussion is identification of the legal rubric that should be applied to cases in which a jury makes a specific finding that implied malice is present by reason of proof of a conscious disregard of the safety of others. A number of theories of liability may be properly applied to this case. The majority has affirmed the trial court's judgment that Dow Chemical negligently performed its undertaking to assist Dow Chemical in researching the safety of breast implants and advising Dow Corning with respect to the safety of its product. When we consider this tort liability in connection with the jury's having concluded, by clear and convincing evidence, that Dow Chemical is guilty of implied malice, conscious disregard of Mrs. Mahlum's safety, we need go no further. We have tortious conduct on the part of Dow Chemical coupled with the requisites of implied malice. As I see it, this, by itself, supports a jury finding that Mrs. Mahlum is entitled to recover punitive and exemplary damages.
I would also note that plaintiffs have judgment in this case on the basis of Dow Chemical's having fraudulently concealed from Mrs. Mahlum and other breast implant recipients the dangerousness of this product. Judgment was entered on two bases: Dow Chemical's having aided and abetted Dow Corning's fraudulent misrepresentations and Dow Chemical's having acted in concert with Dow Corning in concealing the dangers.
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