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Dow Chemical Company v. Mahlum12/31/1998
g that Dow Chemical manipulated the results or failed to report them accurately to Dow Corning. It was then Dow Corning's responsibility to interpret these tests and make decisions regarding the information contained therein regarding its product line. Dow Corning was a creature of state corporate law, a deliberately-created separate and economically independent entity that was specifically spun-off from Dow Chemical and Corning Incorporated in order to develop silicones for the marketplace. Dow Corning was not undercapitalized, not created as a vehicle for fraud or abuse, and was subject to proper corporate formalities; it was not, in other words, an alter ego of Dow Chemical and/or Corning Incorporated. Dow Chemical did not undertake to perform tasks for Dow Corning that Dow Corning was specifically created to perform, namely, to design, manufacture, and market silicone products.
DOW CHEMICAL'S ALLEGED BREACH
As I stated earlier, the majority fails to cite any convincing evidence in the record demonstrating that Dow Chemical negligently performed the alleged undertaking. Dow Chemical's breach, according to the majority, was that failed to prevent Dow Corning from marketing silicone breast implants, given its relationship to the subsidiary as a parent corporation and as a consultant, and it failed to warn the public about the dangers of silicone breast implants. This analysis applies only if one concludes that Dow Chemical had a duty to control Dow Corning's product decisions. There is no evidence in the record that Dow Chemical had any such duty.
The California Supreme Court in Artiglio stated that "' he duty of a "good Samaritan" is limited. Once he has performed his voluntary act he is not required to continue to render aid indefinitely.'" 957 P.2d at 1319 (quoting Baker v. City of Los Angeles, 233 Cal. Rptr. 760 (Ct. App. 1986)). "Thus, 'a Good Samaritan who has performed a series of voluntary acts in the past is not thereafter required indefinitely to continue performing such acts into the future.'" Id. (quoting City of Santee v. County of San Diego, 259 Cal. Rptr. 757 (Ct. App. 1989)). It is undisputed that Dow Chemical performed what testing it did non-negligently. Legally, Dow Chemical was not obligated to do more. Dow Chemical was not under a permanent duty to keep track of Dow Corning's silicone fluid products, ascertain whether such products were harmful, and manipulate Dow Corning into stopping production. Accordingly, it cannot be said that Dow Chemical breached any duty.
LACK OF PROXIMATE CAUSE
The majority concludes that Dow Chemical was negligent for failing to oversee and prevent Dow Corning from designing and marketing the breast implants when it had the "Power" to do so. Even assuming negligence, Dow Chemicals, actions in the 1950s and 1960s cannot be the proximate cause of any harm to Mahlum after she received her breast implants in 1985.
Several reasons support my Conclusion. First, when Dow Chemical performed silicone tests on DC 200 or DC 360 for Dow Corning prior to the invention of silicone gel breast implants, Dow Chemical could not have foreseen the uses to which Dow Corning would put these silicone fluids. In Artiglio, the California Supreme Court noted that "many years elapsed between Dow Chemical's seminal toxicology research activities on behalf of Dow Corning and plaintiffs, alleged injuries. When that research was done, any possible consequence for plaintiffs -- who years later allegedly received medical treatments traceable to its influence -- was exceedingly attenuated and remote." Artiglio, 957 P.2d at 1320. Second, Dow Corning also performed its own product safety testing, specifically on breast implants,
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