Temporomandibular Joint (TMJ) Implants Products Liability Litigation, In re, 95-2886

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation113 F.3d 1484
Docket NumberNo. 95-2886,95-2886
Decision Date16 May 1997

Robert J. LaRocca, Lancaster, PA, argued (Joseph C. Kohn, Douglas A. Abrahams, Philadelphia, PA, on the brief), for Appellants.

Michele Odorizzi, Chicago, IL, argued (Herbert L. Zarov, on the brief), for Appellee.

Before BOWMAN, JOHN R. GIBSON, and BEAM, Circuit Judges.

BOWMAN, Circuit Judge.

This is a products liability matter. Plaintiffs, who are the recipients of temporomandibular joint (TMJ) implants, prosthetic devices used to correct TMJ disorders, seek to impose liability upon The Dow Chemical Company (Dow Chemical) for injuries alleged to have been caused by the implants. The pretrial proceedings in these various personal injury actions were consolidated in the District of Minnesota by the Judicial Panel on Multidistrict Litigation pursuant to 28 U.S.C. § 1407 (1994). See In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 844 F.Supp. 1553, 1554-55 (J.P.M.L.1994). Plaintiffs appeal the final order of the District Court 1 granting summary judgment in favor of Dow Chemical. We affirm.


The TMJ connects the upper and lower jaw. A TMJ implant is a device that is surgically inserted to replace an improperly functioning TMJ. Plaintiffs allege that their implants deteriorated after implantation, causing, inter alia, surrounding jaw bone disintegration, serious autoimmune responses, and severe head and neck pain.

Dow Corning Corporation (Dow Corning), together with its subsidiary, Dow Corning Wright, manufactured and sold TMJ implants containing silicone. 2 Dow Chemical and Corning, Incorporated (Corning), each fifty percent owners of Dow Corning's stock, formed Dow Corning in 1943 to participate in the organosilicon compound industry. Plaintiffs do not allege that Dow Chemical ever manufactured, sold, or tested TMJ implants or supplied any component parts of or substances used in such implants. Instead, plaintiffs assert that Dow Chemical is liable because of its alleged involvement in the research, testing, and development of silicone used in the TMJ implants.

Since Dow Corning's inception, Dow Chemical has performed a number of services for Dow Corning. Among Dow Chemical's services were approximately a dozen limited toxicology tests performed on a variety of silicone compounds from 1943 through the early 1970s. None of the tests was conducted to determine whether the specific compound tested could be used safely as a medical implant. 3

Three Dow Chemical scientists, including Dr. V.K. Rowe, published two articles, one in 1948 and one in 1950, describing toxicological research performed on various silicones (none of which are alleged to be present in any TMJ implant). The 1948 article concluded that silicones as a group have a very low order of toxicity. However, the article warned of dangers associated with certain silicone compounds. Specific harmful effects included irritation, inflammation, edema, and necrosis. The 1950 article concluded that no adverse effects were found in rats administered certain commercial silicones in their diets.

In 1967, Dr. Rowe attended a meeting at Dow Corning discussing the toxicology of various Dow Corning products, including Silastic TM rubber dental liner and dental impression material. The concept of a permanent tooth implant was discussed. Before any long-term studies were to be carried out, preliminary studies on animals were to be performed. There is no indication that Dr. Rowe participated in this discussion or that TMJ implants ever were discussed.

Dow Corning established its own toxicology department within Dow Chemical's facilities in 1968, hiring a former Dow Chemical employee to head the department. In 1971, Dow Corning's toxicology laboratory moved into its own space in a Dow Corning building. Four years later, the two companies signed an agreement giving Dow Corning the use of various Dow Chemical trademarks and trade names. In return, Dow Chemical retained the right to inspect Dow Corning's products to protect the integrity of its trademarks and trade names.

Plaintiffs sued both Dow Chemical and Corning for damages resulting from implant-related injuries. The District Court granted summary judgment in favor of both defendants in all of the consolidated cases, rejecting plaintiffs' theories of corporate control and direct liability. In re TMJ Implants Prods. Liab. Litig., 880 F.Supp. 1311 (D.Minn.1995). First, plaintiffs claimed that the District Court should disregard Dow Corning's status as a separate corporate entity and allow a lawsuit against its parent companies, Dow Chemical and Corning, for the alleged torts of Dow Corning, or at least find the existence of a joint venture between Dow Chemical and Corning. The court concluded as a matter of law that plaintiffs could not "pierce the corporate veil" to reach Dow Chemical and Corning and that no joint venture in the legal sense existed between Dow Chemical and Corning. 4 See id. at 1315-16. Second, plaintiffs claimed that Dow Chemical is directly liable under a variety of theories, including fraud, aiding and abetting tortious conduct, conspiracy, a trademark licensing theory, negligent performance of an undertaking, violation of state consumer protection laws, and direct participation in the alleged tortious activities of Dow Corning. The District Court determined that no genuine issues of material fact existed as to any of plaintiffs' direct liability claims and that Dow Chemical was entitled to judgment as a matter of law. See id. at 1322.

In this appeal, plaintiffs argue that the District Court prematurely granted summary judgment. Plaintiffs' contentions primarily concern the relationship between this litigation and the consolidated breast implants litigation in Alabama. In re Silicone Gel Breast Implants Prods. Liab. Litig., 887 F.Supp. 1455 (N.D.Ala.1995) [hereinafter In re Breast Implants ]. Plaintiffs also argue that based on the record there are genuine issues of material fact which preclude a grant of summary judgment on their claims of negligent performance of an undertaking, aiding and abetting tortious conduct, fraudulent concealment and misrepresentation, and conspiracy.


A transferee court in federal multidistrict proceedings has the authority to enter dispositive orders terminating cases consolidated under 28 U.S.C. § 1407 (1994). See Temporomandibular Joint (TMJ) Implant Recipients v. E.I. Du Pont De Nemours (In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig.), 97 F.3d 1050, 1055 (8th Cir.1996) [hereinafter E.I. Du Pont ].

Federal law governs our review of whether the District Court prematurely granted summary judgment. See, e.g., Wallace v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 344 (8th Cir.1988). The substantive claims, on the other hand, are creatures of state law, and the transferee court--and by extension this Court--ordinarily must apply the state law that would have been applied in an individual case had the case not been transferred for consolidation. See E.I. Du Pont, 97 F.3d at 1055. Here, however, the parties have not informed the Court of any difference in the applicable state laws, nor have they provided any choice-of-law analysis. Instead, they have based their arguments on generally applicable statements of the law, and have not disagreed as to the content of those statements. Accordingly, we take these generally applicable statements of substantive law as providing the legal standards that govern our review of plaintiffs' substantive claims. We apply, of course, the established summary judgment principles, as did the District Court.


We first address plaintiffs' concerns about the timing of the summary judgment. These concerns center around Dow Chemical's use of In re Breast Implants. In 1993, the district court in In re Breast Implants granted an interlocutory summary judgment to Dow Chemical in a suit brought by the recipients of silicone gel breast implants. 837 F.Supp. 1128, 1142 (N.D.Ala.1993). Many of the factual and legal issues in the breast implants litigation were similar, if not identical, to the issues in the present TMJ implants litigation. Accordingly, plaintiffs in the TMJ litigation were directed to the breast implants litigation depository 5 for most of the discovery sought, and discovery was to be coordinated with discovery in the breast implants litigation. All discovery was permitted only by leave of court. Not surprisingly, Dow Chemical relied heavily on the holdings and reasoning of In re Breast Implants to support its motion for summary judgment.

The District Court issued its order in the present consolidated TMJ implants cases granting summary judgment to Dow Chemical on March 31, 1995, but final judgment was not entered at that time. See In re TMJ Implants, 880 F.Supp. at 1322. On April 25, 1995, the court in In re Breast Implants vacated its order granting summary judgment to Dow Chemical on the plaintiffs' direct liability claims based on evidence acquired subsequent to the entry of that order. See In re Breast Implants, 887 F.Supp. at 1456. That court held that on the evidence then before it a jury could find that Dow Chemical, as a consequence of its testing of silicone, engaged in a negligent undertaking and therefore was directly liable to recipients of silicone gel breast implants under the laws of at least some states. 6 Id. at 1460-62. In the present litigation, on June 13, 1995, the District Court denied plaintiffs' motion to vacate and deny summary judgment as to Dow Chemical and granted Dow Chemical's motion for the entry of final judgment.

Plaintiffs contend that the District Court abused its discretion in declining to vacate its order...

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