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Dow Chemical Company v. Mahlum12/31/1998
from the early 1960s onward. By contrast, Dow Chemical never tested silicone gel breast implants. In addition, Dow Corning relied upon safety testing by Dr. Cronin in the early 1960s before marketing its breast implants. Third, the Mahlums contend that Dow Corning was aware of possible biological effects and migration of silicone fluids from late 1960s onwards; if true, then Dow Corning could not have been relying upon Dow Chemical to ensure the safety of silicone gel breast implants.
CONCLUSION
Finally, the majority holding with regard to the claim of negligent undertaking will have far-reaching implications on our jurisprudence. As mentioned above, Dow Chemical and Corning Incorporated created Dow Corning as a separate entity under corporate legal principles. There is no suggestion that Dow Corning is or was underfunded or a product of fraud or abuse. Indeed, the Mahlums explicitly abandoned their alter ego theories in this case. Yet the Mahlums and this court seek to make Dow Chemical responsible for Dow Corning's alleged product failures.
Additionally, in performing tests and advising on how other tests should be performed, Dow Chemical often served in the role of consultant. It is also in that role of consultant that the Mahlums and this court seek to render Dow Chemical liable in tort for allegedly undertaking responsibilities that were properly Dow Corning's. The majority now states, in effect, that it will hereafter require companies (i. e. consultants) to publish unfavorable test results that they have done for their clients. This duty will also require an attendant duty of consultants to monitor their client's new products, to determine whether their research is implicated in those products. Neither the law nor public policy justifies such a result.
The Mahlums thus lacked evidence to establish that Dow Chemical ever undertook a duty to test the safety of the silicone fluid used in Dow Corning's breast implants or undertook a duty to test and guarantee the safety of the breast implants themselves. The jury's verdict on the Mahlums' claim of negligent performance of an undertaking should not stand. I therefore Dissent from the affirmance of the claim of negligent undertaking, and would reverse the judgment in its entirety.
Maupin J.
I concur: Shearing J.
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