Charlotte Mahlum and Marvin Mahlum v. Dow Chemical Company

Products liability - breast implant - Plaintiff, age 41, claimed that her breast implants caused her extreme fatigue, joint aches, loss of nerve sensation and seizures. When removed in 1993, the left implant was found to be ruptured, spilling gel and liquid silicone into her body. In August 1985, as part of reconstructive surgery following a bilateral subcutaneous
mastectomy, Charlotte Mahlum elected to receive silicone gel breast prostheses
(hereinafter "breast implants"). Dow Corning manufactured the two Silastic II breast
implants that Mahlum's surgeon implanted. The Silastic II implant is made up of
several components. A clear outer shell of silicone rubber called an elastomer
contains the silicone gel and is the protective barrier between the gel and the
implant host. The silicone gel itself is comprised of eighty to eighty-five percent
DC 360 silicone fluid. In 1990, Mahlum's health began to deteriorate. In July 1993, one of Mahlum's breast
implants ruptured, requiring the surgical removal of both implants. The surgeon was
unable to remove all of the silicone gel from Mahlum's body, leaving approximately
ten percent of the silicone materials embedded in muscle, tissue, and blood vessels
under her arms and ribs. Mahlum's health continued to deteriorate after the
explantation surgery.

After a four-week trial, the jury returned a verdict against Dow Chemical on theclaims of (1) fraudulent concealment, (2) aiding and abetting Dow Corning'sfraudulent misrepresentation, (3) acting in concert with Dow Corning to commitfraudulent misrepresentation, and (4) negligent performance of an undertaking. Thejury found in favor of Dow Chemical on the claim of conspiracy to commit fraudulentmisrepresentation. The jury awarded Charlotte Mahlum $38,654.00 in past damages and$3,915,000.00 in future damages, and awarded Marvin Mahlum $200,000.00 in futuredamages. The jury also awarded the Mahlums $10,000,000.00 in punitive damages.

Dr. Eric Gershwin, Davis, California, immunologist;
Dr. John Monroe Eaton, treating neurologist;
Dr. Steven Atcheson, rheumatologist; and
Dr. Lappe, expertise unknown

Bruce Kelman, toxicologist; Scott Burchiel, toxicologist;
Warren Blackburn, rheumatologist; Joseph Heinkel, accountant;
Dean Delis, neuropsychologist; and Deal Rosenberg, neurologist.

By a 4-1 vote, the Court reversed the judgment on the three intentional torts (faudulent concealment, aiding and abetting and concert of action), holding that Dow Chemical was entitled to judgment as a matter of law on those claims. Because it reversed on the intentional torts, the court vacated the punitive damage award. By a 3-2 vote, the Court affirmed the compensatory damage award, based on the claim of negligent performance of an undertaking (section 324 (A) of the Restatement.