Judge Shifts Damages In Breast-Implant Trial

A flawed verdict by a jury led a judge Tuesday to overturn the first-ever award against Dow Chemical Co. in a breast implant trial.

State District Judge Michael Schneider tossed out Dow Chemical’s 20 percent liability in the Feb. 15 verdict that awarded $5.23 million to a woman who claimed defective implants were responsible for her physical impairments.

Schneider upheld the liability of the implant manufacturer, Dow Corning Corp., which is half-owned by Dow Chemical. The judge’s action means Dow Corning, which the jury said was 80 percent liable because it had deceptively misrepresented the implants, must pay all of the jury’s award to Gladys Laas.

Schneider’s one-page preliminary order emphasized that his actions are based only on the jury’s verdict and laws governing it. Still to come are arguments on motions for a new trial, which could further affect the outcome.

Attorneys close to the case conceded there was no precedent in Texas case law for upholding a verdict in which the jury reached such apparently contradictory conclusions.

Jurors ruled the companies had not shown negligence or conspiracy in the manufacture or marketing of the implants. And yet it found that Dow Chemical contributed to the Laas injuries by knowingly giving “substantial encouragement or assistance” to Dow Corning’s marketing of inadequately tested implants.

In a prepared statement, Dow Chemical general counsel John Scriven said the judge’s findings confirm that the company “did nothing wrong and caused no harm to the plaintiffs.

As big an issue is the potential impact on a proposed global breast implant settlement. Dow Corning is one of several companies that have created a $4.2-billion pool for payouts to 380,000 women who claim injuries from breast implants.

A finding of liability against Dow Chemical could force it into the pool or lead to lawsuits by individual plaintiffs, because Dow Chemical has deep pockets - far deeper than those of the much smaller Dow Corning.