Case No. CV93-05941 Dept. No. 4 FILED 95 APR 19 P4:41 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE CHARLOTTE MAHLUM and MARVIN S. MAHLUM, Plaintlffs, vs . DOW CORNING CORPORATION, DOW CORNING WRIGHT CORPORATION, MCGHAN NUSIL CORPORATION, THE DOW CHEMICAL COMPANY, and DOES 1-50, inclusive, Defendants. SECOND AMENDED COMPLAINT COMES NOW Plaintiffs, CHARLOTTE MAHLUM and MARVIN MAHLUM, by and through their undersigned attorneys, and complain of the above-named Defendants, and each of them alleging as follows: JURISDICTIONAL ALLEGATIONS 1. Plaintiffs, CHARLOTTE MAHLUM and MARVIN MAHLUM areresidents of the County of Elko, State of Nevada. MARVIN MAHLUM is the husband of CHARLOTTE MAHLUM. Except where noted otherwise, all references to "Plaintiff" in the singular made herein are to Plaintiff CHARLOTTE MAHLUM. 2. Defendant DOW CORNING CORPORATION is a Michigan corporation with its principal place of business in Michigan. 3. Defendant DOW CORNING WRIGHT CORPORATION is a Tennessee corporation with its principal place of business in Tennessee. 4. Defendant MCGHAN NUSIL CORPORATION is a Nevada Corporation with its principal place of business in Clark County, Nevada. 5. Defendant THE DOW CHEMICAL COMPANY is a Delaware corporation with its principal place of business in Michigan. 6. Defendants designed, developed, manufactured, distributed, fabricated, supplied, and/or sold silicone breast implants, and/or component parts thereof, during all relevant periods herein. Defendants are conducting, or have conducted, business in the State of Nevada. 7. The true names or capacities, whether individual, corporate, associate, or otherwise, of Defendants DOES 1 through 50, inclusive, are unknown to Plaintiffs at thls time, who therefore sue said Defendants by fictitious names and when their true names and capacities are ascertained, Plaintiffs will amend their Complaint accordingly. Plaintiffs are informed and believe, and thereon allege, that each of the Defendants designated herein by fictitious names are in some manner legally responsible for the events and happenings referred to herein and approximately and foreseeably caused damages to the Plaintiffs as hereinafter set forth. 8. At all times herein mentioned, Defendant DOES were the agents, servants, employees, partners, joint venturers, co-manufacturers, component part suppliers and/or franchisees of each of the remaining defendant manufacturers and/or distributors and were at all times acting within the purpose and scope of said agency, service, employment, partnership, joint venture and/or franchise. ALLEGATIONS AS TO INJURIES 9. On or about July 3, 1985, Plaintiff had silicone tissue expanders placed within her chest for the purpose of reconstructive surgery following mastectomy. Said expanders are identified as Silastic Percutaneous Skin Expanders, Catalog No. P200-0600 and Lot No. HH025039. Plaintiff is informed and believes and thereon alleges that said tissue expanders were manufactured and distributed by Defendants. 10. On or about August 20, 1985, Plaintiff underwent a second surgery to remove said tissue expanders and to have them replaced with Silastic II silicone gel breast prostheses, identified by Catalog No. PO14-400, Lot No. HH055737 (hereinafter referred to as "implants"). Said implants were implanted in Plaintiff's chest for the purpose of reconstruction following subcutaneous mastectomy. Plaintiff is informed and believes and thereon alleges that said implants were manufactured and distributed by Dow Corning Incorporated and other Defendants. 11. After implantation, Plaintiff developed an infection and skin necrosis in the wound located lower aspect of her right side. After implantation Plaintiff also developed numerous other injuries, including but not limited to those listed below. 12. Plaintiff is informed and believes and thereon alleges that said implants and/or the component parts thereof were manufactured and/or distributed in whole or in part by Dow Corning Incorporated and other Defendants, acting jointly or severally or as agents, servants, employees, partners, joint venturers, co-manufacturers, component part suppliers and/or franchisees of one another. 13. On or about July 26, 1993, Plaintiff underwent a third surgery to remove the implants because the left implant had ruptured. 14. As a direct and proximate result of the actions and omissions of Defendants as set forth here!in, Plaintiff was injured and continues so in her health, strength and activity, which injuries have caused Plaintiff mental, physlcal, and emotional pain and suffering, including but not limited to, hard, painful breasts, fatigue, skin color changes, depression, dryness of vaginal mucosa, low grade fevers, tightness and hardening of the skin, headaches, sore throat and inability to swallow, joint aches and pains, vision changes, dry eyes, memory loss, numbness, and lumpy, swollen and stiff fingers. Plaintiff is informed and believes, and on that basis alleges, that said injuries are permanent in character, and that she will continue to experience pain and suffering by reason thereof in the future, all to Plaintiff's damage in a sum in excess of $10,000. 15. As a further direct and proximate result of the actions and omissions of Defendants as set forth herein, Plaintiff has incurred and will incur in the future medical and related expenses for her care and treatment all to her damage in an amount not yet ascertained. 16. As a further direct and proximate result of the actions and omissions of Defendants as set forth herein, Plaintiff was prevented from attending to her usual occupation and thereby sustained loss of earnings and a diminished earning capacity. Plaintiff wi11 continue to sustain such damages ln the future, all in an amount according to proof. 17. Plaintiff could not, by exercise of reasonable diligence, have discovered the cause of her injuries at an earlier time since she is a lay person without medical and scientific knowledge necessary to make a diagnosis connecting Defendants to her condition. Furthermore, Plaintiff received no information from Defendants informing her of any possible culpability on the part of Defendants. In fact, Defendants concealed the same from Plaintiff. CLAIMS FOR RELIEF AND THEORIES OF RECOVERY FIRST CLAIM FOR RELIEF (Strict Products Liability) 18. Plaintiff hereby incorporates by reference, as if fully set forth herein, each and every allegation contained in Paragraphs through 17, inclusive, of this Complaint. 19. The breast implants and component parts thereof manufactured and sold by Defendants which were implanted into Plaintiff were defective and unsafe, rendering Defendants strictly liable for all injuries caused thereby, regardless of the state of knowledge of Defendants at the time of manufacture and distribution or otherwise. 20. Prior to the date upon which Defendants' implants and components thereof (hereinafter collectively referred to as "products") were used by Plaintiff, Defendants knew, or should have known, to a reasonable probability, that the products were defective and unsafe in that they were dangerous for purposes of breast implants and caused or could cause grievous injuries to the body when used for such purposes. Despite Defendants having knowledge of the products' actual and potential defects, Defendants failed to warn Plaintiff of these dangers. 21. Defendants knew that said products were to be used by the user without inspection for defects therein or in any of the components or ingredients thereof. 22. Plaintiff neither knew, nor had reason to know at the time of the decision to use or at the time of the use of the aforesaid products, or at any time prior thereto, of the existence of the foregoing described defects. Defendants' products proximately caused Plaintiff to sustain injuries and damages as herein alleged. SECOND CLAIM FOR RELIEF (Negligence) 23. Plaintiff hereby incorporates by reference, as if fully set forth herein, each and every allegation contained in Paragraphs through 22, inclusive, of this Complaint. 24. Prior to the date upon which Defendants' products were used by Plaintiff and at all times herein mentioned, Defendants had a duty to properly design, manufacture, compound, test, inspect, package, label, distribute, market, examine, maintain and prepare for use and sale the said products. 25. At all times herein mentioned, Defendants knew, or in the exercise of reasonable care should have known, that the aforesaid products were of such a nature that if they were not properly designed, manufactured, compounded, tested, inspected, packaged, labeled, distributed, marketed, examined, maintained and prepared for use and sale they were likely to injure the user of the said products. 26. Defendants so negligently and carelessly designed, manufactured, compounded, tested, failed to test, inspected, failed to inspect, packaged, labeled, distributed, marketed, examined, failed to examine, maintained, prepared for use and sold the products that they were dangerous and unsafe for the use and purpose for which they were intended. 27. As a proximate result of the aforesaid negligence of the Defendants, the products caused severe injury to Plaintiff's body and thereby proximately caused Plaintiff to sustain damages and injuries as herein alleged. THIRD CLAIM FOR RELIEF (Breach of Express and Implied Warranties) 28. Plaintiff hereby incorporates by reference, as if fully set forth herein, each and every allegation continued in Paragraphs 1 through 27, inclusive, of this Complaint. 29. Prior to the date upon which Defendants' products were used by Plaintiff, Defendants knew, or reasonably should have known, of the particular purpose for which said products would be used and prior to the time that said products were used by Plaintiff, Defendants impliedly and expressly warranted to Plaintiff that said products were of merchantable quality and safe and fit for the use for which they were intended. (NRS 104.2313, 104.2314, 104.2315) 30. In using said products, Plaintiff relied on the skill and judgment of Defendants. 31. Defendants' products were not:safe for their intended use, nor were they of merchantable quality as said products were not fit for the ordinary purpose for which such goods are used. Defendants products had very dangerous propensities when put to their intended use as silicone gel implants and caused severe injury to the user. 3Z. As a direct and proximate result of the actions and omissions set forth herein Defendants violated said warranties and failed to act in good faith thereby causing Plaintiff to sustain injuries and damages as herein alleged. FOURTH CLAIM FOR RELIEF (Misrepresentation and Concealment) 33. Plaintiff hereby incorporates by reference, as if fully set forth herein, each and every allegation contained in Paragraphs through 32, inclusive, of this Complaint. 34. Prior to the date upon which Defendants products were used by Plaintiff, Defendants knowingly made false representations as to the character, uses, benefits and/or approval for use of said products including, but not limited to, that the implants were safe for the women who used them, that exposure to silicone materials was not dangerous and that the implants would safely last lifetime. Said false representations were made knowingly and/or with wanton disregard for the public, including Plaintiff. These actions and omissions were in violation of, inter alia, Nevada Revised Statutes (NRS) 41.600, 207.171, 598.410, 598.413 and 598.414. 35. The representations by Defendants were, in fact, false. The true facts were that the silicone breast implants were likely to leak or bleed or rupture and send silicone into the human body and that said products were hazardous to the health of the user. Further, Defendants concealed from Plaintiff and the public that there was insufficient information to support Defendants representations. These acts and omissions were in violation of the Nevada Revised Statutes above noted. 36. When Defendants made the aforesaid representations, they knew them to be false and said representations were made by Defendants with the intent to defraud and deceive the public, including Plaintiff, and with the intent to induce Plaintiff to act in the manner herein alleged, i.e., to use the aforesaid products for breast augmentation and reconstruction. 37. Relying upon the aforesaid fraudulent representations of Defendants, Plaintiff had silicone breast implants placed within her body, and said implants caused Plaintiff to sustain the herein described injuries and damages. If Plaintiff had known the true facts, she would not have taken such action. The reliance of Plaintiff upon Defendants' representations was justified because the representations were made by individuals and entities who appeared to be in a position to know the true facts. 38. As a direct and proximate result of Defendants' false representations and concealment, Plaintiff was caused to sustain the herein described injuries and damages. 39. In doing the acts herein alleged, Defendants acted with oppression, fraud and malice, and Plaintiff is therefore entitled to punitive damages to deter Defendants and others from engaging in similar conduct in the future. FIFTH CLAIM FOR RELIEF (Negligent Misrepresentation) 40. Plaintiff hereby incorporates by reference, as if fully set forth herein, each and every allegation contained in Paragraphs 1 through 39, inclusive, of this Complaint. 41. Defendants made the aforesaid representations as to the safety of said products negligently with no reasonable ground for believing those representations to be true; Defendants did not have accurate or sufficient information on which to base those representations; and, Defendants were aware that they lacked sufficient information on which to base the aforesaid representations. 42. At the time said representations were made by Defendants, and at the time Plaintiff took the actions herein alleged, Plaintiff was ignorant of the falsity of Defendants' representations and reasonably believed them to be true. In reliance upon said representations, Plaintiff was induced to, and did, use the silicone gel implants for breast augmentation and/or reconstruction. If Plaintiff had known the actual facts, she would not have taken such action. The reliance of Plaintiff upon Defendants' representations was justified because the representations were made by individuals and entities who appeared to be in a position to know the true facts. 43. As a direct and proximate result of Defendants' actions and omissions, Plaintiff was caused to sustain the herein described injuries and damages. SIXTH CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 44. Plaintiff herein incorporates by reference, as if fully set forth herein, each and every allegation contained in Paragraphs through 43, inclusive, of this Complaint. 45. The conduct of the Defendants was done intentionally and with the knowledge that their conduct would cause Plaintiff severe emotional distress. Furthermore, the conduct of Defendants was outrageous and wanton, amounting to reckless disregard for the Plaintiff's rights thereby causing Plaintiff to suffer anxiety, mental anguish, and severe emotional and physical distress and Plaintiff is thereby entitled to recover exemplary and punitive damages to set an example and punish Defendants and deter their wrongdoing. SEVENTH CLAIM FOR RELIEF (Loss of Consortium) 46. Plaintiffs herein incorporate by reference, as if fully set forth herein, each and every allegation contained in Paragraphs through 45, inclusive, of this Complaint. 47. At all times herein mentioned, Plaintiff MARVIN S. MAHLUM was, and now is, the spouse of Plaintiff CHARLOTTE MAHLUM. MARVIN S. MAHLUM has been, and will continue to be, deprived of the consortium and loss of the full society, comfort, protection, service and support of his spouse, thereby proximately causing Plaintiff MARVIN S. MAHLUM sorrow, mental anguish, pain and suffering, all to the Plaintiff's damage in excess of $10,000. 48. For purposes of the instant action, Plaintiff hereby adopts and incorporates by reference each and every applicable part and paragraph of a document entitled, "First Amended Master Complaint," attached hereto as Exhibit "A" as though fully set forth herein, including paragraphs: 1, 14, 15, 37, 52, 53, 59, 60, 61, 62, 65, 67, 68, 69, 70, 71, and 75. Said "First Amended Master Complaint" is a document which is included in a multidistrict litigation case styled IN RE: SILICONE GEL BREAST IMPLANT PRODUCTS LIABILITY LITIGATION (MDL-926) File No. CV-92-P-10000-S, and currently pending in the Northern District of Alabama. ADDITIONAL THEORIES OF RECOVERY (As contained in "First Amended Master Complaint," Exhibit "A") Count VI: Breach of Uniform Commercial Code or applicable state law Count VII: Breach of Uniform Commercial Code or applicable state law/Negligence Per Se Count XIII: Violation of State Consumer Protection Statutes/Negligence Per Se. Count XIV: Res Ipsa Loquitur Count XV: Common Plan to Prevent Public Awareness of Breast Implant Hazards Count XVI: Conspiracy/Concert of Action Count XIX: Negligent Infliction of Emotional Distress Count XXI: Liability for Participation in Joint Enterprises/Joint Ventures and/or Parent/Subsidiary Relationships Count XXII: Control and/or supervision of Joint Ventures and/or Parent Subsidiary Relationships Count XXIII: Invalidity of Indemnification Agreements Count XXIV: Controlling Persons/Aiders and Abetters/and/or Alter Egos Count XXV: Application of Collateral Estoppel/Res Judicata Count XXIX: Punitive Damages WHEREFORE, Plaintiffs pray for judgment against the Defendants, and each of them, as follows: 1. For general and compensatory damages in excess of $10,000, according to proof; 2. For medical, hospital and related expenses according to proof; 3. For future medical, hospital and related expenses according to proof; 4. For loss of earnings and for loss of earning capacity according to proof; 5. For future loss of earnings and for loss of earning capacity according to proof; 6. For attorney's fees and costs of suit incurred herein: 7. For punitive and exemplary damages; and 8. For such other and further relief as the Court may deem just and proper. DATED this 19 day of April, 1995. Law Offices of White & Meany 3185 Lakeside Drive Reno, Nevada 89509 Attorneys for Plaintiff /s/ LISA M. MCGRADY,