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Artiglio v. Corning Inc.9/25/1996
BENKE, Acting P.J.:
Plaintiffs in this coordinated products liability litigation are a group of women who received silicone breast implants manufactured by, among others, Dow Corning Corporation (Dow Corning). Dow Corning is now the subject of a bankruptcy proceeding. In addition to their claims against Dow Corning, plaintiffs have made claims against defendants and respondents Dow Chemical Company (Dow) and Corning Incorporated (Corning), the corporate parents of Dow Corning. Plaintiffs assert scientific research Dow and Corning supplied to Dow Corning was inadequate and that this inadequacy makes Dow and Corning directly liable for the injuries plaintiffs suffered.
We recognize that under enumerated circumstances the Restatement 2d of Torts section 324A imposes liability on those who provide services which are designed to protect third persons from harm. However, in this case we reject plaintiffs' attempt to impose such liability based solely on communications between scientists with respect to the outcome of their research. Liability does not arise here because "California courts have consistently required some manifestation on the part of a professional who offers an opinion, information, or advice that he or she is acting to benefit a third party or defined group of third parties in a specific and circumscribed transaction." ( Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 411-412, 834 P.2d 745 (Bily).) In the absence of such a manifestation of responsibility to third parties, liability cannot be imposed on a defendant based solely on the use of information supplied by the defendant to the manufacturer of a product which causes harm to third parties. ( Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588, 605, 163 Cal. Rptr. 132, 607 P.2d 924.)
I
FACTUAL SUMMARY
A. Dow, Corning and Dow Corning
In 1943 Dow and Corning formed Dow Corning. Dow and Corning each contributed to Dow Corning technology and royalty free licenses under patents they held in the field of organo-silicon compounds. Dow and Corning each received 50 percent of the stock of Dow Corning.
Over the following decades Dow and Corning rendered a number of services to Dow Corning. In particular, in 1948 three Dow scientists, V. K. Rowe, H. C. Spencer and S. L. Bass, published an article in which they stated that they had performed toxicological research on silicones and found that as a group silicones have a very low order of toxicity.
The 1948 article did however contain warnings about some potential hazards posed by various silicone compounds. In particular the report stated that some types of silicones caused irritation, inflammation, edema and necrosis, that vapors of volatile silicones caused death in a saturated atmosphere and that exposure to low vapor concentrations resulted in slowed growth in guinea pigs and slight increase in the weight of their liver and the kidneys. The report stated other silicone compounds caused an enlargement of the spleen at high dosages and that most of the compounds tested caused varying degrees of eye irritation.
Throughout the following 40 years both Dow and Dow Corning performed further toxicological tests on silicone. In 1954 Dow and Dow Corning jointly co-operated in commissioning a long term study of the toxicity of a particular type of silica dust Dow Corning was producing. The study was performed because the purity of the silica dust made it useful "in applications such as reproduction paper and other paper coatings. The material is of interest to the pharmaceutical and cosmetic industries because of its fineness, chemical purity, and lack of abrasive characteristics. The combin
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