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Dow Chemical Company v. Mahlum12/31/1998
oweth study showing silicone migration, the 1957 Miami study showing that DC 200 fluid decreased the number of white blood cells in female rat tails, the 1967 dog miniature implant study, and the 1970 Sparschu pathology report showing migration of silicone to bone marrow.
The 1948 article, entitled Toxicological Studies on Certain Commercial Silicones and co-authored by Dow Chemical's toxicologist, Dr. Rowe, was printed in the Journal Industrial Hygiene and Toxicology, Vol. 30, No. 6, pp. 332-52. According to the Mahlums, this article misrepresented to the scientific community that silicones were harmless and posed no threat to human health. However, the purported misrepresentation that all silicones are inert was included in a section entitled "Discussion of Practical Handling Problems," where it states that " oxicological studies conducted with representative silicone materials show that the silicones as a group have a very low order of toxicity. When these materials are considered from a practical viewpoint, the hazards they present are exceedingly minor." Once again, the article was specifically addressing industrial hazards. Further, the article does not represent that silicones have no toxicity whatsoever. Rather, it reports skin and eye irritations observed in the test subjects, but concludes that industrial exposure to the substances presents no significant danger. The final sentence of the article concludes as follows: "Toxicological studies with laboratory animals have shown that the silicones (methyl and mixed methyl and phenylpolysiloxanes as a class are very low in toxicity and that they present no significant handling problems."
Next, the 1956 Chenoweth study is an internal Dow Corning study conducted by two Dow Corning scientists and one Dow Chemical scientist, Dr. M. B. Chenoweth. It examined the physiological assimilation of the DC 200 fluid, which was a silicone fluid used for industrial purposes. DC 200 was mixed with an antifoam emulsion and orally administered to three animals: one albino rat and two dogs. No evidence of assimilation was found in the rat, but traces of siloxane were found throughout the bodies of both dogs. Another rat was given an intramuscular injection of the fluid, and siloxane was also found throughout its body in very low concentrations. This study did not address whether the trace amounts of siloxane found in the various organs of the animals harmed the animals or not. I also note that Dr. Chenoweth's role in the study was comprised of "preoperative care, administering of the labeled fluid, sacrificing, and dissecting of the animals." The Dow Chemical radiochemical laboratory also "cooperat " in the analysis of the tissue samples from the animals along with, it appears, Dow Corning's analytical laboratory. Thus, this study was a Dow Corning study with some cooperation from Dow Chemical. There is nothing in Dow Chemical's participation that would serve as a clear warning signal to Dow Chemical that the medical use of silicone should be abandoned.
The 1957 Miami study, the results of which showed that DC 200 fluid depressed the granulocytic elements of the tail blood of female rats, was not conducted by Dow Chemical. However, Dr. Rowe was approached by Dow Corning to set up the study, and he designed the test protocol for Professor Deichmann from the University of Miami. Two versions of this study were prepared by Professor Deichmann, one reporting on the effects of six silicone materials, and the other reporting only on five. The Mahlums argued at trial that the two Dow companies were in cohorts in either preparing or publishing the five materials report to conceal the harmful effects of the sixth silicone material. This assertion is not suppo
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