CASE TITLE Hollis (respondents) v Dow Corning Corporation (appellant)

(PARTIES
INVOLVED)

ISSUE Was there a duty to warn (plastic surgeon who conducted the surgery)?
• Was Dow liable to Hollis for failing to warn Dr. Birch adequately
for the risk of a post-surgical implant rupture?

LAW Negligence = failure to behave with the level of care that someone of
ordinary prudence would have exercised under the same circumstances
• Behavior usually consists of actions, but can also consist of
omissions when there is some duty to act (e.g., a duty to help
victims of one's previous conduct).

Negligent Manufacture

APPLICATION Facts - Holly

• Hollis got breast implant surgery to fix a congenital deformity
(1984) and her surgeon, Dr. Birch, failed to warn her about risks of
post-surgical complications and possibility that the implants might
rupture inside her body
• 1 year later, after exerting energy from her upper body while
baking, she discovered a lump in R breast & it was painful
• She got the implant removed by another surgeon who discovered
that while the L was intact, the R had ruptured → he removed the
gel from the R implant but couldn’t find the envelope, thereafter,
Hollis’s physical condition got worse
• 1987: visited a 3rd surgeon and had a successful subcutaneous
mastectomy on both breasts & opted for a new diff model of breast
implants

Facts - Dr. Birch

• Had little warning from implant manufacturer regarding possibility
of implants’ rupturing
• Failure to warn: as early as 1979, Dow was aware of the
implications of implants’ rupturing; all warnings up to 1979 made no
reference to rupture occurring from anything less than “abnormal
squeezing or trauma” BREACH OF DUTY TO WARN
• 1 year after Hollis’ surgery, 1985 warning referred to the dangers of
“enlarged lymph nodes, scar formation, inflammation” & potential,
after a rupture, for “distant migration of the gel”

General facts
• At trial in 1989, Hollis successfully claimed against Dow for
negligent manufacture of breast implant & was awarded damages
& costs; rest of her claims were dismissed

A manufacturer of a product has a continuing duty in tort to warn

consumers of dangers it knows or ought to know are inherent in the
product's use
 • requiring manufacturers to warn not only of dangers known at
the time of sale, but also of dangers discovered after the product
has been sold and delivered
• All warnings must be reasonably communicated, and must
clearly describe any specific dangers that arise from the ordinary
use of the product.

CONCLUSION Appeal was dismissed.

• Dow's failure to warn caused Hollis’ injury;

• Ms. Hollis, who encountered great informational inequality in
regards to both the manufacturer and the doctor, played no part
in creating the set of causal conditions leading to her injury
• Justice dictates that she should not be penalized for the fact that
had the manufacturer actually met its duty to warn, the doctor
still might have been at fault

• Disagreed that Dow had negligently manufactured the implant, but

dismissed appeal on ground that Dow failed to warn Hollis
adequately about the risks of rupture
• Warnings of the dangers of silicone breast implants should be
given to physicians who would perform the implant operation; if this
had been done, a direct warning to the public might’ve been
unnecessary
• Majority of Court of Appeal enabled Hollis’ appeal from the
dismissal of her action against Birch and ordered a new trial in
respect of that claim