United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 95-2886

___________

In re: Temporomandibular *

Joint (TMJ) Implants Products *

Liability Litigation *

________________________ *

*

Temporomandibular Joint (TMJ) *

Implant Recipients, * Appeal from the United States

* District Court for the

Appellants, * District of Minnesota.

*

v. *

*

The Dow Chemical Company, *

*

Appellees. *

___________

 Submitted: June 14, 1996

 Filed: May 16, 1997

___________

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 
 The Honorable Paul A. Magnuson, Chief Judge, United States

1

District Court for the District of Minnesota.

 Because Dow Corning has filed a petition for reorganization 2

under Chapter 11 of the Bankruptcy Code, it has not appeared in

these proceedings. All nonbreast implant claims pending against

Dow Corning have been transferred to the United States District

Court for the Eastern District of Michigan, where Dow Corning filed

its Chapter 11 petition. See Tort Claimants’ Comm. v. Dow Corning

Corp. (In re Dow Corning Corp.), 1996 WL 668567 (6th Cir. Nov. 18,

1996) (unpublished table decision reported at 103 F.3d 129).

-2-

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 granting summary judgment in favor of Dow Chemical. We

1

affirm.

I.

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. Dow Chemical and Corning, Incorporated (Corning), each fifty

2

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 
 In fact, the only support found in the record for plaintiffs’ 3

assertion that Dow Chemical ever tested in any way any silicone

compound actually used in any TMJ implant is a study published in

1972 by scientists at Dow Chemical. See Appellants’ App. at 289-

99. The study examined the effect of silicone injections on the

reproductive systems of female rats and concluded that a number of

the silicone compounds tested, including a low molecular weight

silicone known as D4, were biologically active. Plaintiffs attempt

to link D4 to silicone in TMJ implants by asserting that D4 serves

as a basic building block in all silicone implants. However, even

assuming the presence of D4 in TMJ implants, plaintiffs can point

to no testing by Dow Chemical that could possibly form the basis

for plaintiffs’ tort claims. By publishing the study highlighting

the dangers of D4, Dow Chemical obviously was not concealing the

potential dangers of this compound, and absent evidence of further

Dow Chemical studies concerning D4 or any other silicone compound

allegedly contained in any TMJ implant, plaintiffs cannot establish

an undertaking on the part of Dow Chemical to ensure the safety of

any TMJ implant. Furthermore, plaintiffs have not shown that Dow

Chemical knew that any of the specific silicone compounds tested

would be contained in any TMJ implant, or any other medical implant

for that matter.

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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 
-4-

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® 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 
 Plaintiffs do not appeal these corporate control rulings, and 4

they asserted direct liability claims against only Dow Chemical;

Corning thus is not a party to this appeal. 

-5-

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. See id. at 1315-16. Second,

4

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. 
-6-

II.

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.

III.

We first address plaintiffs’ concerns about the timing of the summary

judgment. These concerns center around Dow Chemical’s use 
 The document depository was established by the court in the 5

breast implants litigation for litigants in any federal or state

case involving silicone implant product liability.

 After concluding that summary judgment was improper as to the 6

negligent undertaking claim, the district court in In re Breast

Implants found it unnecessary to address plaintiffs’ other direct

liability theories. 887 F. Supp. at 1462.

-7-

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 for most of the discovery sought, and discovery was to be

5

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. Id. at 1460-62. In the present 6
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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 granting summary judgment in this case.

Plaintiffs argue that before the court in In re Breast Implants vacated

summary judgment, Dow Chemical asserted that the factual and legal issues

surrounding Dow Chemical’s summary judgment motion in this case were

identical to those already adjudicated in its favor in the breast implants

litigation. Plaintiffs further argue that after summary judgment in the

breast implants litigation was vacated, Dow Chemical reversed direction,

claiming that In re Breast Implants should not affect the TMJ litigation

because breast implant silicone and TMJ implant silicone are different.

Moreover, plaintiffs contend that because of Dow Chemical’s reliance on the

breast implants litigation, Dow Chemical was able to avoid discovery in the

present case concerning its role in the research and development of

silicone, and it avoided discovery on the differences, if any, that exist

between breast implant silicone and TMJ implant silicone. Without this

discovery, plaintiffs argue, the grant of summary judgment was premature.

A trial court’s determination that a claim is ripe for summary

judgment is reviewed for abuse of discretion. See, e.g., Humphreys v.

Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir. 1993).

Discovery does not have to be completed before a court can grant summary

judgment, id. (citing Fed. R. Civ. P. 56), but summary judgment is proper

only after the nonmovant has had adequate time for discovery, see Celotex

Corp. v. Catrett, 477 U.S. 
-9-

317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

Federal Rule of Civil Procedure 56(f) allows a party defending against a

summary judgment motion to request a court to postpone a decision until

completion of adequate discovery. If a party opposing a summary judgment

motion does not seek shelter under Rule 56(f) or otherwise ask for a

continuance, a court generally does not abuse its discretion in granting

summary judgment based on the record before it. See Wallace, 849 F.2d at

344 (holding that entry of summary judgment was not premature in view of

nonmovants failure to take advantage of Rule 56(f) or ask the court for any

kind of continuance); King v. Cooke, 26 F.3d 720, 726 (7th Cir. 1994)

(“[W]hen a party does not avail himself of relief under Rule 56(f), it is

generally not an abuse of discretion for the district court to rule on the

motion for summary judgment.”), cert. denied, 115 S. Ct. 1373 (1995). 

In addressing plaintiffs’ contentions that the timing of the grant

of summary judgment was unfair, we note that plaintiffs mischaracterize Dow

Chemical’s position in the District Court and unduly minimize the role of

the District Court. In referring to the breast implants litigation, Dow

Chemical argued that the court should not discount the analysis in In re

Breast Implants merely because that case involved breast implants and this

case involved TMJ implants. Plaintiffs have turned this valid contention

on its head, reworking Dow Chemical’s argument to be that because this too

is a silicone implant case, the results must be the same. However, neither

plaintiffs nor Dow Chemical elected to rely solely on the decision in In

re Breast Implants; both parties marshalled evidence to support their

positions regarding Dow Chemical’s motion for summary judgment. Dow

Chemical simply analogized the breast implants litigation to the TMJ

implants litigation in support of its motion. This does not estop Dow

Chemical from pointing out distinctions between the breast implants case

and the present case.
 Plaintiffs’ Reply Brief states that Dow Chemical’s counsel

7

indicated on August 18, 1994 that filing a Rule 56(f) affidavit was

unnecessary. See Reply Br. at 5. Irrespective of this contention,

in a September 2, 1994 letter to the District Court (a copy of

which was sent to plaintiffs’ counsel), Dow Chemical unequivocally

stressed its desire to have plaintiffs file a Rule 56(f) motion.

See Reply App. at 8. Plaintiffs also contend that they did not

know that discovery on the type of silicone contained in TMJ

implants was necessary until Dow Chemical made this an issue in

attempting to distinguish In re Breast Implants, well after the

court’s September 30, 1994 deadline for filing Rule 56(f)

affidavits. However, as noted in the opening line of plaintiffs’

brief, “This case concerns the role of Dow Chemical . . . in the

design and testing of the silicone used in [TMJ] implants.”

Appellants’ Br. at 1. There being thousands of different silicone

compounds, each with varying characteristics, plaintiffs should

have known early in this litigation that it would be necessary to

specifically identify the type of silicone in TMJ implants and to

tie that type of silicone to testing performed by Dow Chemical and

not simply rest on the notion that silicone is silicone. 

-10-

Furthermore, the District Court did not rely on the opinion in In re

Breast Implants as heavily as plaintiffs contend. The District Court

expressly relied on reasoning in In re Breast Implants only when discussing

the corporate control claims, see In re TMJ Implants, 880 F. Supp. at 1315,

with respect to which plaintiffs raise no issue in this appeal. In the

portion of the District Court’s opinion addressing plaintiffs’ direct

liability claims, the court concluded, after “[h]aving carefully reviewed

the arguments and evidence,” that no genuine issues of material fact exist

as to any of plaintiffs’ claims against Dow Chemical. Id. at 1316. The

court made an independent decision based on its own analysis of the record;

it did not treat the initial opinion in the breast implants litigation as

determinative of the summary judgment question in this case. 

Moreover, neither before nor after the Alabama district court’s

reversal of field in the breast implants litigation did plaintiffs make use

of Federal Rule of Civil Procedure 56(f), which allows a party to request

a delay in granting summary judgment until completion of further discovery.

Not only did plaintiffs never file an affidavit pursuant to Rule 56(f),7

but also they 
 In a May 25, 1995 letter, plaintiffs asked the District Court 8

to wait on issuing a final ruling until plaintiffs’ counsel had

obtained certain Food and Drug Administration (FDA) documents.

Appellants’ App. at 897. While United States v. Birchem, 100 F.3d

607, 609 (8th Cir. 1996), indicates that asking for a delayed

ruling may suffice to preserve on appeal an argument of inadequate

opportunity to conduct discovery even absent a Rule 56(f)

affidavit, a court does not necessarily abuse its discretion by

granting summary judgment in the face of such a requested delay.

See Bryant v. Ford Motor Co., 886 F.2d 1526, 1534 (9th Cir. 1989)

(stating that Rule 56(f) affidavit is not always necessary to raise

discovery issue, but noting that the absence of a formal request

for a continuance is relevant as to whether a district court abuses

its discretion in ruling on a summary judgment motion without

waiting for further discovery), cert. denied, 493 U.S. 1076 (1990).

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never filed a motion for a continuance or to compel discovery. Because

8

plaintiffs failed to take appropriate action to delay the entry of summary

judgment and obtain additional discovery, the entry of summary judgment was

not premature and did not constitute an abuse of the District Court’s

discretion. See Humphreys, 990 F.2d at 1081 (finding no abuse of

discretion in court’s grant of summary judgment where party failed to file

any affidavit specifying why further discovery is necessary); Cassidy, Inc.

v. Hantz, 717 F.2d 1233, 1235 (8th Cir. 1983) (per curiam) (holding that

appellant cannot complain of inadequate opportunity for discovery where it

did not request a continuance to conduct further discovery or state by

affidavit why essential facts justifying opposition to summary judgment are

unavailable). Plaintiffs made a conscious gamble that their case as

presented was sufficient to avoid summary judgment and cannot now complain

of inadequate discovery. See Tr. of Hr’g on Mot. for Summ. J., Jan. 27,

1995, Appellants’ App. at 847 (Counsel for plaintiffs stated that 
 While assertions in plaintiffs’ May 25, 1995 letter

9

concerning the existence of these FDA documents and their purported

contents are relevant as to whether summary judgment was

prematurely granted, the documents themselves were never before the

District Court. As a result, plaintiffs’ January 3, 1996 motion to

supplement the record on appeal with these FDA documents and a

Silastic® Mammary Prosthesis informational brochure is denied, and

these items will not be considered in addressing the merits of Dow

Chemical’s summary judgment motion. See Barry v. Barry, 78 F.3d

375, 379 (8th Cir. 1996) (noting that authority to supplement a

record is rarely exercised and represents a narrow exception to the

general rule that appellate courts consider only evidentiary

materials before the trial court at the time summary judgment is

granted).

Plaintiffs’ February 12, 1996 motion to supplement the record

on appeal with correspondence between the parties to this case and

the District Court is granted. See United States v. Wilson, 102

F.3d 968, 971 n.3 (8th Cir. 1996) (granting motion to supplement

the record on appeal to the extent that party seeks to supplement

the record with material submitted to the district court).

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“[Plaintiffs] are certainly not submitting a Rule 56(f) affidavit at this

time. I think we have more than substantial evidence to survive the

summary judgment motion.”); Tr. of Hr’g on Continuing Mot. for Summ. J.,

May 24, 1995, Appellants’ App. at 865 (Even after summary judgment in In

re Breast Implants was vacated and Dow Chemical explicitly raised a

distinction between silicone in TMJ implants and silicone in breast

implants, counsel for plaintiffs still insisted that she “[did not] want

to raise a discovery issue.”). 

Finally, the only discovery plaintiffs explicitly sought before the

District Court was to rule on Dow Chemical’s motion for final judgment--FDA

documents pertaining to Dow Corning’s attempt to gain FDA approval for its

TMJ implant--is irrelevant to the direct liability claims against Dow

Chemical. In its May 25, 1995 letter to the District Court, plaintiffs

9

asserted that the FDA documents would demonstrate that the silicone in TMJ

implants is 
 Because the discovery sought in plaintiffs’ May 25, 1995

10

letter did not demonstrate how postponement of the summary judgment

ruling would enable plaintiffs to avoid summary judgment, the

letter could not serve as the functional equivalent of a Rule 56(f)

affidavit. See Humphreys, 990 F.2d at 1081 (stating that party

invoking Rule 56(f)’s protection must demonstrate how postponement

of ruling on a summary judgment motion will enable the nonmovant to

show the existence of a genuine issue of material fact sufficient

to avoid summary judgment). Therefore, we need not, and do not,

decide whether strict adherence to Rule 56(f)’s affidavit

requirement is necessary to preserve the argument on appeal that

summary judgment was prematurely granted.

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equivalent to that contained in previously-marketed silicone products.

Even if this contention were correct, plaintiffs never have asserted that

the documents would show any contacts between Dow Chemical and Dow Corning

sufficient to justify finding Dow Chemical directly liable to plaintiffs;

thus, based on plaintiffs own assertions, these documents would not raise

a genuine issue of material fact to create a jury question on any of

plaintiffs’ claims, and the District Court did not abuse its discretion in

granting summary judgment without waiting for discovery of these

documents. See Anderson, 477 U.S. at 248 (“Only disputes over facts that 10

might affect the outcome of the suit under the governing law will properly

preclude the entry of summary judgment.”); United States v. Birchem, 100

F.3d 607, 610 (8th Cir. 1996) (noting that nonmovants’ complaints of

inadequate discovery were inconsequential where nonmovants failed to point

to any factual disputes that would preclude summary judgment).

We conclude plaintiffs have failed to show that the District Court

abused its discretion regarding the timing of its entry of summary judgment

for Dow Chemical.
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IV.

Plaintiffs argue that the record shows genuine issues of material

fact with respect to several of their direct liability claims, and that

summary judgment therefore should have been denied. This Court reviews de

novo the decision to grant summary judgment. E.I. Du Pont, 97 F.3d at

1055. Summary judgment is proper only when, viewing the evidence in the

light most favorable to the nonmoving party, the record presents “no

genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see

McCormack v. Citibank, N.A., 100 F.3d 532, 537 (8th Cir. 1996). After the

moving party points out the absence of evidence to support the nonmoving

party’s case, the nonmoving party “must advance specific facts to create

a genuine issue of material fact for trial.” Rolscreen Co. v. Pella

Prods., Inc., 64 F.3d 1202, 1211 (8th Cir. 1995); see Celotex, 477 U.S. at

323-25. A genuine issue of material fact exists if the evidence is

sufficient to allow a reasonable jury to return a verdict for the nonmoving

party. See Anderson, 477 U.S. at 248-49. However, the mere existence of

a scintilla of evidence in favor of the nonmoving party’s position is

insufficient to create a genuine issue of material fact. See Anderson, 477

U.S. at 252; Devine v. Stone, Leyton & Gershman, P.C., 100 F.3d 78, 81-82

(8th Cir. 1996), cert. denied, ___ U.S.L.W. ___ (U.S. May 12, 1997) (No.

96-1423); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986) (explaining that nonmovant “must do more than simply

show that there is some metaphysical doubt as to the material facts”).

After adequate time for discovery and upon proper motion, a court must

enter summary judgment “against a party who fails to make a showing

sufficient to establish the existence of an element essential to 
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that party’s case, and on which that party will bear the burden of proof

at trial.” Celotex, 477 U.S. at 322.

Having reviewed carefully the parties’ arguments and submissions, we

conclude that no genuine issues of material fact exist as to any of

plaintiffs’ theories for holding Dow Chemical directly liable for

plaintiffs’ injuries. 

A.

Plaintiffs assert that Dow Chemical is liable under section 324A of

the Restatement (Second) of Torts for negligent performance of an

undertaking. Section 324A provides:

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as

necessary for the protection of a third person or his

things, is subject to liability to the third person for

physical harm resulting from his failure to exercise

reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the

risk of such harm, or

(b) he has undertaken to perform a duty owed by the other

to the third person, or 

(c) the harm is suffered because of reliance of the other

or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965). The District Court found that

summary judgment should be granted on this claim because there is no

evidence to show that Dow Chemical undertook to “‘render services to

another’ through its trademark agreements or through any other means.” See

In re TMJ Implants, 880 F. Supp. at 1322. 

An actor’s specific undertaking of the services allegedly performed

without reasonable care is a threshold requirement to 
 We are aware of California Rules of Court 976(d) and 977(a), 11

which limit the citation of opinions superseded by a grant of

review by the California Supreme Court. However, because these

rules are not binding on this Court, we cite to Artiglio but note

its status in the California courts.

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section 324A liability. See, e.g., Patentas v. United States, 687 F.2d

707, 716 (3d Cir. 1982) (“The foundation of [324A] is that the defendant

specifically has undertaken to perform the task that he or she is charged

with having performed negligently.”); Lather v. Berg, 519 N.E.2d 755, 766

(Ind. Ct. App. 1988) (recognizing that an actor must specifically undertake

to perform the task charged). The scope of this undertaking defines and

limits an actor’s duty under section 324A. See, e.g., Homer v. Pabst

Brewing Co., 806 F.2d 119, 121 (7th Cir. 1986). Accordingly, courts have

refused to impose liability under section 324A without a showing that the

defendant undertook a duty with respect to the specific product that caused

the injury. See Evans v. Liberty Mut. Ins. Co., 398 F.2d 665, 666-67 (3d

Cir. 1968) (finding that employee could not recover under section 324A

absent a showing that the defendant insurance carrier had undertaken to

inspect plaintiff’s employer’s entire plant or the particular machine

involved in the accident); Blessing v. United States, 447 F. Supp. 1160,

1189 (E.D. Pa. 1978) (same); Artiglio v. Corning Inc., 56 Cal. Rptr. 2d

877, 883 (Cal. Ct. App. 1996) (noting that courts have refused to impose

section 324A liability without a showing that defendant undertook

responsibility with respect to the specific product that caused the

injury), review granted and opinion superseded by 930 P.2d 399 (Cal. 1997),

and review limited by 932 P.2d 755 (Cal. 1997) (limiting review to

consideration of section 324A claim).11

The existence and nature of a legal duty are generally questions of

law. See, e.g., Homer, 806 F.2d at 121-23 (analyzing existence and scope

of duty under section 324A and holding that 
-17-

defendant owed no duty as a matter of law); Smith v. Allendale Mut. Ins.

Co., 303 N.W.2d 702, 710 (Mich. 1981) (interpreting section 324A and

concluding that it is “for the court to determine what evidence is

minimally necessary to establish the elements of a relationship on which

tort liability may be premised”). However, at least one federal circuit

court of appeals construing section 324A has held that the existence and

scope of an undertaking, and thus the concomitant duty, are questions of

fact for a jury. See Pratt v. Liberty Mut. Ins. Co., 952 F.2d 667, 671 (2d

Cir. 1992). Regardless of whether the scope of a duty is deemed a question

of law or a question of fact, if in viewing the evidence in the light most

favorable to the plaintiff a reasonable jury could not find the existence

of a duty, a court may find the absence of a duty as a matter of law. See,

e.g., Andrew v. State, 682 A.2d 1387, 1392 (Vt. 1996) (granting summary

judgment for state when plaintiff failed to show a section 324A undertaking

as a matter of law).

To establish liability under section 324A, plaintiffs must prove that

Dow Chemical undertook a duty with respect to TMJ implants. Plaintiffs

argue that Dow Chemical assumed such a duty by undertaking to render

services to Dow Corning through its trademark agreements with Dow Corning

and through its silicone research and testing performed for Dow Corning and

that Dow Chemical should have recognized that these services were necessary

for the protection of plaintiffs. Plaintiffs assert that the trademark

agreements provided that Dow Chemical could examine the quality of Dow

Corning’s products as a condition for the use of Dow Chemical’s trademarks

and trade names. Also, plaintiffs contend that Dow Chemical performed

substantial silicone research and testing, at Dow Corning’s request, that

Dow Corning did not and could not perform. Through these endeavors,

plaintiffs argue, Dow Chemical undertook at least part of Dow Corning’s

duty to ensure the safety of Dow Corning’s TMJ implants.
-18-

The record, however, contains no evidence to show that Dow Chemical

undertook to render services to Dow Corning through its trademark

agreements. A standard trademark agreement, in and of itself, does not

establish an affirmative duty to inspect that could result in tort

liability to third parties, see Mini Maid Servs. Co. v. Maid Brigade Sys.,

Inc., 967 F.2d 1516, 1520 (11th Cir. 1992) (asserting that “the licensor’s

duty to control a licensee’s use of the licensor’s own trademark cannot be

blindly converted into a duty to prevent a licensee’s misuse of another

party’s trademark”); In re Breast Implants, 887 F. Supp. at 1461, and

nothing in the record suggests that these are other than standard trademark

agreements. Plaintiffs can point to no evidence that Dow Chemical in fact

inspected any Dow Corning product or provided any services to Dow Corning

pursuant to these agreements. These agreements can only be viewed, then,

as a vehicle for Dow Chemical to protect its intellectual property rights,

and thus they do not represent an undertaking on the part of Dow Chemical

to render services to another. Accordingly, these agreements do not

trigger section 324A. See Roberson v. United States, 382 F.2d 714, 721

(9th Cir. 1967) (stating that actions solely to protect a defendant’s own

interests are not a basis for section 324A liability).

The silicone research allegedly performed by Dow Chemical at the

request of Dow Corning also does not demonstrate an undertaking sufficient

to impose liability on Dow Chemical under section 324A. For section 324A

liability to attach, Dow Chemical must have specifically undertaken the

task of ensuring the safety of Dow Corning’s TMJ implants or of ensuring

the safety of Dow Corning’s entire array of silicone products. See

Blessing, 447 F. Supp. at 1189 (recognizing that liability attaches only

when defendant charged with negligent inspection undertakes to inspect the

specific device causing the injury or the entire physical plant, of 
 Plaintiffs contend that the 1948 article spawned the medical 12

implant industry through its assertion that silicones are inert.

The article, however, did not make such a broad assertion. The

article concluded that “silicones . . . as a class are very low in

toxicity,” Appellants’ App. at 428 (emphasis added), but

specifically mentioned dangers associated with some of the

silicones tested, Appellants’ App. at 421-23. To find an

undertaking based on this 1948 article would stretch the parameters

of section 324A to impermissible bounds. Scientists engaged in

preliminary research would be required to forever update their

research, familiarize themselves with all the subsequent and

previously inconceivable applications of their research, or face

tort liability (here, almost fifty years after completion of the

research). See Artiglio, 56 Cal. Rptr. 2d at 885 (rejecting a

similar argument in breast implants litigation “because researchers

-19-

which the specific device is a part); cf. Klein v. Council of Chem.

Ass’ns., 587 F. Supp. 213, 224 (E.D. Pa. 1984) (granting defendant’s motion

to dismiss because by failing to identify any specific product that caused

the injury, plaintiffs could not allege which product defendant tested and

negligently failed to warn plaintiffs about). Plaintiffs contend that Dow

Chemical undertook a duty with respect to all of Dow Corning’s silicone

products, but the record shows that Dow Chemical never tested the use of

silicone in any medical implants and that Dow Chemical never was informed

that any of the silicones it tested would be used in medical implants.

Thus, examining the evidence in the light most favorable to plaintiffs, Dow

Chemical’s silicone research cannot form the basis of a section 324A

undertaking for the protection of plaintiffs. See Artiglio, 56 Cal. Rptr.

2d at 884 (concluding that with an undisputed record that Dow Chemical did

not test the safety of breast implants, “there is no basis upon which a

reasonable inference can be drawn that Dow [Chemical] . . . in fact

undertook to protect the eventual recipients of Dow Corning’s products”).

Plaintiffs can point only to Dow Chemical’s performance of

approximately a dozen tests involving silicone (but not its use in medical

implants) performed over four decades at the request of Dow Corning, a 1967

meeting attended by a Dow Chemical employee in which the idea of a tooth

implant was discussed, a 1948 and a 1950 article published by three Dow

Chemical scientists discussing toxicological research on various

silicones, and a trademark 12
would have no practical means of ascertaining the scope of their

liability or making rational decisions regarding their research

undertakings”).

-20-

agreement allowing Dow Chemical to inspect the quality of Dow Corning’s

products. However, these Dow Chemical actions and Dow Corning’s

purportedly inadequate laboratory facilities are insufficient to establish

an undertaking of such breadth and magnitude as to create a duty on the

part Dow Chemical to ensure the safety of all of Dow Corning’s silicone

products. See In re New York State Silicone Breast Implant Litig., 632

N.Y.S.2d 953, 956-57 (Sup. Ct. 1995) (remarking that if court were to hold

that Dow Chemical assumed a duty of care to all potential consumers of

silicone products, “the duty imposed on Dow Chemical would be indeterminate

and infinite”), aff’d, 642 N.Y.S.2d 681 (App. Div.), appeal dismissed, 676

N.E.2d 493 (1996).

Absent the threshold requirement of a specific undertaking of the

services that form the basis for Dow Chemical’s alleged duty under section

324A, plaintiffs’ claim must fail, and we need not consider the remaining

aspects of section 324A liability. The District Court did not err in

granting summary judgment to Dow Chemical on plaintiffs’ negligent

undertaking claim.

B.

Plaintiffs also advance the theory that Dow Chemical is liable for

aiding and abetting Dow Corning’s tortious conduct under Restatement

(Second) of Torts § 876(b) (1979). Secondary liability 
-21-

under section 876(b) attaches when one actor “knows that the other’s

conduct constitutes a breach of duty and gives substantial assistance or

encouragement to the other so to conduct himself.” Courts have recognized

three basic requirements for aiding and abetting liability: (1) the primary

actor must commit a wrongful act that causes an injury; (2) the aider and

abettor must be generally aware of his role in the overall wrongful

activity at the time assistance is provided; and (3) the aider and abettor

must knowingly and substantially assist the wrongful act. See, e.g.,

Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983).

In analyzing the present case under the standard outlined above, we

assume, as the District Court did, that plaintiffs can establish a wrongful

act on the part of Dow Corning. See In re TMJ Implants, 880 F. Supp. at

1319. We evaluate the second and third requirements in tandem--the

stronger the evidence of Dow Chemical’s general awareness of the alleged

tortious activity, the less evidence of Dow Chemical’s substantial

assistance is required, and the stronger the evidence of substantial

assistance, the less evidence of general awareness is required. See Metge

v. Baehler, 762 F.2d 621, 624 (8th Cir. 1985), cert. denied, 474 U.S. 1057,

1072 (1986). In determining what constitutes “substantial assistance,” the

comments to section 876 of the Restatement provides a list of five factors:

“the nature of the act encouraged, the amount of assistance given by the

defendant, his presence or absence at the time of the tort, his relation

to the other and his state of mind.” Restatement (Second) of Torts

§ 876(b), cmt. d. (1979). Additionally, the court in Halberstam provided

a sixth factor, the duration of the assistance provided. See Halberstam,

705 F.2d at 484. Finally, the alleged substantial assistance must be the

proximate cause of plaintiffs’ harm. See Metge, 762 F.2d at 624. 
-22-

Applying the foregoing legal standards to this case, the second

requirement of section 876(b) clearly is not satisfied. The record is

silent as to Dow Chemical’s general awareness of both the hazards

associated with TMJ implants and its supposed role in assisting Dow

Corning’s tortious conduct at the times the alleged assistance was

provided. Plaintiffs contend that the knowledge requirement is satisfied

by the transfers of various employees between Dow Chemical and Dow Corning

and by the sale of silicone products by Dow Chemical subsidiaries.

However, there is no indication that any information regarding the dangers

of TMJ implants or any silicone implants was ever disseminated to Dow

Chemical. Thus, plaintiffs have not established a genuine issue of

material fact regarding Dow Chemical’s general awareness of the dangers of

TMJ implants. Cf. Anguiano v. E.I. Du Pont de Nemours & Co., 44 F.3d 806,

812 (9th Cir. 1995) (affirming summary judgment for defendant manufacturer

of TMJ implant component on strict liability and negligent failure to warn

claims because plaintiffs failed to raise genuine issue of fact with

respect to defendant’s knowledge of the hazards associated with TMJ

implants even though defendant knew of component’s use, the problems with

this component in another load-bearing joint, and apprehension of implant’s

use by some practitioners).

The third aiding and abetting requirement is also unsatisfied. The

record does not indicate that Dow Chemical either knew of or substantially

assisted Dow Corning’s alleged tortious activity. See Ezzone v. Riccardi,

525 N.W.2d 388, 398 (Iowa 1994) (stating that aiding and abetting liability

cannot attach unless the primary party commits a wrong, the aider knows of

the wrong, and the aider substantially assists the achievement of the

primary violation), cert. denied, 115 S. Ct. 1958 (1995); National

Westminster Bank v. Weksel, 511 N.Y.S.2d 626, 630 (App. Div.) (noting that

plaintiff must establish that alleged aider and abettor acted with

intention 
-23-

of advancing the tortious activity), appeal denied, 513 N.E.2d 1307 (1987).

An analysis of the Restatement’s substantial assistance factors

supports this conclusion. First, we look at the nature of the act

encouraged and analyze the import of Dow Chemical’s aid. The record shows

that Dow Corning designed, manufactured, and sold the TMJ implants on its

own. Dow Corning was not “heavily dependent” on Dow Chemical in this

endeavor. Cf. Halberstam, 705 F.2d at 488. Next, we examine the amount

of assistance. A dozen random tests on silicone (none concerning its use

for human implantation), use of some Dow Chemical facilities, attendance

at a meeting in which the idea for a tooth implant was raised, and two

articles (published nearly fifty years ago) on the toxicity of silicones

is not significant assistance, especially when compared to the extensive

efforts necessary to bring the idea for a TMJ implant to fruition. The

third factor, the defendant’s absence or presence at the time of the tort,

indicates that although Dow Corning and Dow Chemical shared facilities

during much of the period in question, there is no evidence that Dow

Chemical knew of the testing or production of TMJ implants so as to be

present during the tort’s supposed commission. Dow Chemical’s relation to

Dow Corning is the fourth factor. As Dow Corning’s parent, Dow Chemical

obviously wants to be supportive; however, this generic desire to support,

without more, is not sufficient to form the basis for aiding and abetting

liability. Cf. id. at 488 (cautioning against overemphasis of relationship

between defendant and tortfeasor, who were live-in companions, and noting

uneasiness with finding civil liability on the basis of normal spousal

support activities). The fifth factor is Dow Chemical’s state of mind.

There is no indication that Dow Chemical’s actions were knowingly done for

the purpose of assisting the design, production, or sale of TMJ implants,

much less that Dow Chemical was “one in spirit 
-24-

with” the alleged tortfeasor, Dow Corning. Id. at 484. The sixth factor

applied by the court in Halberstam was the duration of the assistance

provided. Despite contacts between Dow Corning and Dow Chemical extending

over four decades, evidence of any assistance by Dow Chemical concerning

TMJ implants is nonexistent. See id. The record is barren of evidence

from which a reasonable jury could find that Dow Chemical provided

substantial assistance to Dow Corning’s alleged tortious activity.

Because there is no genuine issue of material fact to create a jury

question on plaintiffs’ aiding and abetting tortious conduct claim,

plaintiffs’ claim must fail. The District Court’s grant of summary

judgment on this claim must be sustained.

C.

Plaintiffs contend that Dow Chemical is liable for material

misrepresentations and omissions concerning the safety of silicone.

Plaintiffs assert two fraud-based claims: (1) fraudulent concealment, based

upon Dow Chemical’s alleged duty to plaintiffs to correct its prior

representations concerning the safety of silicone after discovering that

silicone presented a health risk; and (2) fraudulent misrepresentation,

based upon Dow Chemical’s representations concerning the appropriateness

of silicone use in medical implants after learning of silicone’s health

risks. 

A fraudulent concealment claim requires:

(1) Deliberate concealment by the defendant of a material

past or present fact, or silence in the face of a duty to

speak;

(2) That the defendant acted with scienter;

(3) An intent to induce plaintiff’s reliance upon the

concealment;
-25-

(4) Causation; and 

(5) Damages resulting from the concealment.

Nicolet, Inc. v. Nutt, 525 A.2d 146, 149 (Del. 1987). Plaintiffs cannot

establish the first element of a fraudulent concealment claim. Plaintiffs

allege that a duty to speak on the part of Dow Chemical arose because Dow

Chemical published two articles asserting the inertness of silicone and

subsequently learned that certain silicone polymers were not inert.

However, absent any relationship between plaintiffs and Dow Chemical, there

can be no duty to speak. See Moore v. Fenex, Inc., 809 F.2d 297, 303 n.2

(6th Cir.) (stating that court is aware of no case finding liability for

fraudulent nondisclosure absent direct dealing with plaintiff), cert.

denied, 483 U.S. 1006 (1987); Magna Bank v. Jameson, 604 N.E.2d 541, 544

(Ill. App. Ct. 1992) (asserting that “[t]here is no duty to speak absent

a fiduciary or other legal relationship between the parties”), appeal

denied, 612 N.E.2d 514 (Ill. 1993) (table); cf. Restatement (Second) of

Torts, § 551(2)(c) (providing that a party to a business transaction is

under a duty to disclose subsequently acquired information that will make

untrue or misleading an earlier representation that was true or believed

true when made). Furthermore, there was nothing for Dow Chemical to

correct. The articles in question state that silicones as a class are

inert, but do not include the broad assertion that all silicones are inert.

Additionally, plaintiffs can point to no evidence of active concealment or

suppression of information relating to silicone implants on the part of Dow

Chemical. Because plaintiffs did not put forth evidence necessary to

satisfy the first element of a fraudulent concealment claim, we need not

go through the remaining elements. See Celotex, 477 U.S. at 322

(explaining that nonmovants must establish all essential elements of cause

of action on which they bear the burden of proof at trial in order to avoid

summary judgment); Forbes v. Par Ten Group, Inc., 
-26-

394 S.E.2d 643, 647 (N.C. Ct. App. 1990) (requiring that genuine issue of

material fact must exist as to each element of fraud in order to avoid

summary judgment), review denied, 402 S.E.2d 824 (N.C. 1991).

Plaintiffs’ fraudulent misrepresentation claim also must fail. A

viable fraudulent misrepresentation claim requires showing that:

(1) [a] representation was made;

(2) the representation was false;

(3) when the representation was made, it was known to be

false or made recklessly without knowledge of its truth and

as a positive assertion;

(4) the representation was made with the intention that

it would be relied upon;

(5) there was reliance upon the representation; and

(6) damage occurred as a result.

Citizens Nat’l Bank v. Kennedy and Coe, 441 N.W.2d 180, 182 (Neb. 1989).

Plaintiffs contend that after learning that some silicones were not

physiologically inert, Dow Chemical continued to assert the safety and

utility of silicone in medical implants. These contentions, however, are

entirely without support in the record. Without evidence of a false

representation, the misrepresentation claim cannot succeed, and further

analysis of this claim is unnecessary. See Celotex, 477 U.S. at 322 (same

as above); Forbes, 394 S.E.2d at 647 (same as above).

Summary judgment was correctly granted on plaintiffs’ fraud claims.

D.

Finally, plaintiffs allege that Dow Chemical conspired with Dow

Corning to conceal and misrepresent the dangers of implanted 
-27-

silicone. To establish a civil conspiracy, plaintiffs must show five

elements: (1) two or more persons; (2) an object to be accomplished; (3)

a meeting of the minds on the object or course of action to be taken; (4)

the commission of one or more unlawful overt acts; and (5) damages as the

proximate result of the conspiracy. See, e.g., State ex rel. Mays v.

Ridenhour, 811 P.2d 1220, 1226 (Kan. 1991); Massey v. Armco Steel Co., 652

S.W.2d 932, 934 (Tex. 1983). Without evidence of specific facts tending

to show an agreement or a “meeting of the minds” and concerted action, a

plaintiff seeking to show a civil conspiracy cannot survive a defendant’s

summary judgment motion. See, e.g., Anderson v. Douglas County, 4 F.3d

574, 578 (8th Cir. 1993), cert. denied, 510 U.S. 1113 (1994); Mike Pratt

& Sons, Inc. v. Metalcraft, Inc., 383 N.W.2d 758, 763 (Neb. 1986) (stating

that plaintiff must prove existence of agreement between two or more

persons to inflict an injury upon or wrong against another).

Plaintiffs have not presented evidence sufficient to create a genuine

issue of material fact on their civil conspiracy claim. As already

detailed, there is no evidence that Dow Chemical knew what type of silicone

was used in TMJ implants or the dangers associated with this silicone, much

less that Dow Chemical agreed with Dow Corning to conceal the hazards of

the silicone in TMJ implants. Similarly, plaintiffs offer only pure

speculation, but no evidence, of a broader conspiracy encompassing all

silicone products. See Anderson, 4 F.3d at 578 (noting that conclusory

allegations are insufficient to prove conspiracy). While plaintiffs assert

that Dow Chemical and Dow Corning conspired to selectively publish only

favorable silicone test results, the research cited discusses both

beneficial and potentially harmful properties of the silicones studied, and

plaintiffs have made no showing that any of the research done by Dow

Chemical involved the suitability of silicone for human implantation. On

the basis of plaintiffs’ evidence, no 
-28-

reasonable trier of fact could conclude that Dow Chemical conspired with

Dow Corning to misrepresent or conceal the dangers of silicone in medical

implants. Here again, summary judgment was correctly granted in favor of

Dow Chemical.

V.

The District Court’s grant of summary judgment in favor of Dow

Chemical is affirmed.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT