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Dow Chemical Company v. Mahlum12/31/1998
g has maintained an impenetrable, separate corporate identity from its two parent corporations, such that the Mahlums abandoned any attempt to "pierce" the corporate veil dividing Dow Corning from Dow Chemical (at least as that term is used in the traditional sense).
Precluded from pursuing claims against Dow Chemical based on derivative liability, the Mahlums sought to establish that Dow Chemical, by its own actions, was responsible for the injuries to Mrs. Mahlum allegedly caused by Dow Corning's silicone breast implants. At trial, the Mahlums succeeded in convincing the jury that Dow Chemical was liable for several intentional torts, as well as the tort of negligent performance of an undertaking.
The jury found Dow Chemical liable for the negligent performance of an undertaking pursuant to Restatement (Second) of Torts ยง 324A. The definition of this tort, often referred to as the Good Samaritan rule, is as follows:
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if"
"(a) his failure to exercise reasonable care increases the risk of such harm or"
"(b) he has undertaken to perform a duty owed by the other to the third person or"
"(c) the harm is suffered because of reliance of the other or the third person upon the undertaking." Restatement (Second) of Torts 324A (1979) [hereinafter section 324A].
I find the majority's analysis of the section 324A claim against Dow Chemical troubling for several reasons.
First, the majority appears to ignore a basic and, by any standards, a reasonable precept regarding duty in a negligent undertaking action: that a plaintiff asserting a section 324A claim must show that the defendant specifically undertook to perform the task that he is charged to have performed negligently. See In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1493 (8th Cir. 1997) ("TMJ Implants") ("The scope of th undertaking defines and limits an actor's duty under section 324A."). Further, a close examination of the tests of liquid silicone does not show that Dow Chemical undertook a duty to ensure the safety of the final product, silicone gel breast implants.
Second, even assuming that Dow Chemical did undertake to perform safety-testing of the silicone fluid that five to ten years later came to be used in Dow Corning's breast implants, the majority fails to cite any evidence in the record demonstrating that Dow Chemical negligently performed that undertaking.
Third, the majority fails plausibly to show the proximate nexus between this alleged breach and the harm that Charlotte Mahlum suffered.
Fourth, the result of the majority's decision is that a research facility that tests some component, with or without knowledge of its purpose, may now be deemed to have undertaken an everlasting duty to supervise, monitor, and control a manufacturer's use of the component in any and all future products, or face infinite liability.
DOW CHEMICAL'S ALLEGED UNDERTAKING AND DUTY
Like any other claim of negligence, a threshold element of a negligent undertaking claim is the existence of a duty to use due care towards another's legally protected interest. See Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991) (observing that to prevail on a negligence theory, the plaintiff generally must show five elements, the first of whic
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