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Dow Chemical Company v. Mahlum12/31/1998
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I recognize as maintained by Dow Chemical in its briefs, that Nevada has not recognized either concert of action or aiding and abetting as tort actions. This should not prevent this court from recognizing these torts in a case like this, where Dow Chemical controlled Dow Corning and worked hand-in-hand with Dow Corning in developing and marketing the Silastic II. Acting in concert is, to me, the clearer of the two actions because the jury could have believed that Dow Chemical was more of a principal than it was an aider and abettor. My own view is that the jury would have been entitled from the evidence submitted to it to decide that Dow Chemical was more culpable than Dow Corning, that Dow Corning was actually a relatively innocent agent of Dow Chemical, which directed and controlled the whole breast implant "operation." One does not have to go that far, however, to justify the jury's verdict and the punitive damage award against Dow Chemical. All persons who received these implants were owed the duty to be informed that they were subject to the dangers that were inherent in the product that was designed, produced and marketed at the very least through the collaboration of the two Dow companies. Dow Chemical and Dow Corning shared a duty and responsibility to Mrs. Mahlum not to allow a dangerous product to be put into her body or, at the very least, to warn Mrs. Mahlum of the dangerousness of the product. Both Dow Chemical and Dow Corning are liable to Mrs. Mahlum for fraudulent concealment.
Although the jury's finding that Dow Chemical aided and abetted Dow Corning is not so substantial a case as its finding that the two companies acted in concert, I do not believe that the aiding and abetting judgment should be set aside. I see no reason why the jury in this case could not have found that Dow Chemical aided and abetted Dow Corning (although it is more likely that Dow Corning aided and abetted Dow Chemical in Dow Chemical's rush to corner the market in breast implants without conducting the proper human and animal epidemiological studies).
Dow Chemical argues in its brief that the aiding an abetting and the concert of action instructions "effectively allowed the jury to find Dow Chemical liable for fraud for failing to supervise Dow Corning's breast implant business." This to me is a very hollow argument and is based, again, on Dow Chemical's trying to convince this court that its only connection to "Dow Corning's breast implant business" was that it was just a stockholder. That Dow Chemical had a much larger role in the breast implant story than just as a stockholder in Dow Corning should be apparent to any reader of this record.
I understand that the jury denied liabIlity on civil conspiracy claim; but this does not mean that the two companies were not acting with one another to bring about a preconceived result, namely, to gain by marketing a product that was known to be dangerous or by marketing a product without adequately apprising its prospective users of the dangers inherent in the product's use.
I would have no hesitancy in affirming all of the trial court's judgments.
Springer C.J.
MAUPIN, J. , with whom SHEARING, J., joins, Concurring in part and Dissenting in part:
I join that part of the court's opinion reversing the Mahlums, intentional tort claims, but I would reverse the judgment in its entirety. I therefore Dissent from the majority's decision to affirm the Mahlums, negligent undertaking claim.
As the majority notes, Dow Chemical and Corning Incorporated formed Dow Corning in 1943 to explore, develop, and undoubtedly, profit from silicone technology. From its inception, Dow Cornin
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