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Dow Chemical Company v. Mahlum12/31/1998
component. Dow Corning has over the years been in the business of manufacturing silicone related products for thousands of applications. If this court were to hold that Dow Chemical assumed a duty of care based on its silicone related testing and consulting to every potential ultimate consumer of a product which contained silicone, the duty imposed on Dow Chemical would be indeterminate and infinite." Id. at 955, 956-57 (quoting Waters v. New York City Housing Authority, 505 N.E.2d 922 (N.Y. 1987) , and Eiseman v. State of New York, 511 N.E.2d 1128 (N.Y. 1987)). The Appellate Division affirmed the court's decision, concluding that , party who gives advice to a manufacturer of consumer goods does not owe a duty to then-unknown individual purchasers of the manufacturer's goods[.]" In re N.Y. State Silicone, 642 N.Y.S.2d at 682. I believe, as the New York court did, that to impose liability on Dow Chemical under these facts would be to endorse a duty that is indeterminate and infinite.
Likewise, the Eighth Circuit Court of Appeals noted that n actor's specific undertaking of the services allegedly performed without reasonable care is a threshold requirement to section 324A liability. . . . Accordingly, courts have refused to impose liability under section 324A without a showing that the defendant undertook a duty with respect to the specific product that caused the injury ." TMJ Implants, 113 F.3d at 1493 (citations omitted). The TMJ Implants court concluded that, to establish liability under section 324A, plaintiffs had to prove that Dow Chemical undertook a duty with respect to TMJ implants. Id. Like the plaintiffs in our case, the TMJ plaintiffs argued that Dow Chemical assumed such a duty by "undertaking to render services to Dow Corning through its trademark agreements with Dow Chemical Corning and through its silicone research and testing performed for Dow Corning and that Dow Chemical should have recognized that these services were necessary for the protection of plaintiffs." Id. The TMJ court concluded that Dow Chemical did not undertake a duty, either under the trademark agreement, or through silicone testing, or because Dow Corning lacked an adequate laboratory.
"The silicone research allegedly performed by Dow Chemical at the request of Dow Corning also does not demonstrate an undertaking sufficient to impose liability on Dow Chemical under section 324A. For section 324A liability to attach, Dow Chemical must have specifically undertaken the task of ensuring the safety of Dow Corning's TMJ implants or of ensuring the safety of Dow Corning's entire array of silicone products. Plaintiffs contend that Dow Chemical undertook a duty with respect to all of Dow Corning's silicone products, but the record shows that Dow Chemical never tested the use of silicone in any medical implants and that Dow Chemical never was informed that any of the silicones it tested would be used in medical implants . . . . Plaintiffs can point only to Dow Chemical's performance of approximately a dozen tests involving silicone (but not its use in medical implants) performed over four decades at the request of Dow Corning, . . . a 1948 and a 1950 article published by three Dow Chemical scientists [i.e., the articles by Dr. Rowe] discussing toxicological research on various silicones, and a trademark agreement allowing Dow Chemical to inspect the quality of Dow Corning's products. However, these Dow Chemical actions and Dow Corning's purportedly inadequate laboratory facilities are insufficient to establish an undertaking of such breadth and magnitude as to create a duty on the part Dow Chemical to ensure the safety of all of Dow Corning's silicone products." TMJ Implants, 113 F.3d at 1495 (citations and footnote, omitt
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