# 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.

Thi s is a products liability matter. Plaintiffs, who are th e recipients of temporomandibular joint (TMJ) implants, prosthetic devices used to correct TMJ disorders, seek to impose liability upon The Do w Chemical Company (Dow Chemical) for injuries alleged to have been caused by the implants. The pretrial proceedings in these various personal injur y actions were consolidated in the District of Minnesota by the Judicia l Panel on Multidistrict

### The Honorable Paul A. Magnuson, Chief Judge, United State s 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 i n these proceedings. All nonbreast implant claims pending agains t Dow Co rning have been transferred to the United States Distric t Court for the Eastern District of Michigan, where Dow Cornin g 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 ) , 1996 WL 668567 (6th Cir. Nov. 18, 1996) (unpublished table decision reported at 103 F.3d 129).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 r e 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. W e 1 affirm.

I.

The TMJ connects the upper and lower jaw. A TMJ implant is a device that i s surgically inserted to replace an improperly functioning TMJ

. Plai ntiffs allege that their implants deteriorated after implantation , causin g, inter alia , surrounding jaw bone disintegration, seriou s 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 containin g silicone

. Dow Chemical and Corning, Incorporated (Corning), each fift y

2 perc ent owners of Dow Corning’s stock, formed Dow Corning in 1943 t o partic ipate in the organosilicon compound industry. Plaintiffs do no t 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 re cord for plaintiffs’ 3 

### assertion that Dow Chemical ever tested in any way any silicon e 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 th e reproductive systems of female rats and concluded that a number of the silicone compounds tested, including a low molecular weigh t 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 a ll silicone implants. However, even assuming the presence of D4 in TMJ implants, plaintiffs can point to no te sting by Dow Chemical that could possibly form the basi s for plaintiffs’ tort claims. By publishing the study highlighting the dangers of D4, Dow Chemical obviously was not concealing th e potential dangers of this comp ound, and absent evidence of further Dow Chemical studies concerning D4 or any other silicone compound allegedly contained in any TMJ implant, plaintiffs cannot es tablish an undertaking on the part of Dow Chemical to ensure the safety of any TMJ implant. Furthermore, plaintiffs have not shown that Dow Che mical knew that any of the specific silicone compounds teste d would be contained in any TMJ implant, or any other medical implant for that matter.
-3- alleged involvement i n the research, testing, and development of silicone used in the TMJ implants.

Since Dow Corning’s inception, Dow Chemical has performed a numbe r of services for Dow Corning. Among Dow Chemical’s services wer e approximatelya 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, publish ed two articles, one in 1948 and one in 1950, describing toxicological research performed on various silicones (none of which ar e alleged to be present in any TMJ i mplant). The 1948 article concluded that silicones as a grou p have a very low order of toxicity. However, the article warned of dangers associa ted with certain silicone compounds. Specific harmful effect s included

### -4-

irritation, inflammation, edema, and necrosis. The 1950 article concluded that no adverse effects were found in rats admin istered certain commercial silicones in their diets.

In 1967 , Dr. Rowe attended a meeting at Dow Corning discussing th e toxi cologyof various Dow Corning products, including Silastic® rubbe r dental liner and dental impression material. The concept of a permanent tooth impl ant was discussed. Before any long-term studies were to b e carried out, preliminary studies on animals were to be performed. There is no indication that Dr. Rowe participated in t his discussion or that TMJ implants ever were discussed. Dow Corning established its own toxicology department within Do w Che mical’s facilities in 1968, hiring a former Dow Chemical employee t o 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 Do w Chemical trademarks and trade names. In return, Dow Chemical retained the right to inspect Dow Corning’s products to protect the integrity of it s trademarks and trade names. Plaintiff s sued both Dow Chemical and Corning for damages resulting from implant-related injuries. The District Court granted summary judgmen t in favor of both defendants in all of the consolidated cases, rejectin g plaintiffs’ theories of corporate control and di rect liability. In re TMJ Implants Prods. Liab. Litig. , 880 F. Supp. 1311 (D. Minn. 1995). First, plaintiffs claimed th at the District Court should disregard Dow Corning’s status as a separate corporate entity and allow a lawsuit against it s parent companies, Dow Chemical and Corning, for the alleged torts of Dow Corning, or at least find the existence of a joint venture between Do w Chemical and Corning. The court concluded as

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

### they a sserted 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 sens e exist ed between Dow Chemical and Corning. See id. at 1315-16. Second , 4 plaintiffs claimed that Dow Chemical is directly liable under a variety of theor ies, including fraud, aiding and abetting tortious conduct , conspir acy, a trademark licensing theory, negligent performance of a n
un dertaking, violation of state consumer protection laws, and direc t partici pation in the alleged tortious activities of Dow Corning. Th e District Court determ ined 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 tha t 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

. Liti g. , 887 F. Supp. 1455 (N.D. Ala. 1995) [hereinafter In re Breas t Impl ants ]. Plaintiffs also argue that based on the record there ar e genuine issues of material fact which preclude a grant of summary judgment

on their claims of negligent performance of an undertaking, aiding an d abetting tortious conduct, fraudulent concealment and misrepresentation , and conspiracy.

### -6- II.

A t ransferee court in federal multidistrict proceedings has th e authority to enter dispositive orders terminatin g cases consolidated under 28 U.S.C. § 1407 (1994). See Temporomandibular Joint (TMJ) Implan t Recipients v. E.I. Du Pont De Nemours ( In re Tem poromandibular Joint (TMJ) Impla nts 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 Cour t premat urelygranted summary judgment. See, e.g. , Wallace v. Dorse y Trailers Southeast, Inc. , 849 F.2d 341, 344 (8th Cir. 1988). Th e substantive claims, on the other hand, are creat ures 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-la w analysis. Instead, they have based their arguments on generally applicabl e statements of the law, and have not disagreed as to the content of those statements. Accordingly, we take these generall y applicable statements of substantive law as providing the legal standards that govern our review of plaint iffs’ substantive claims. We apply, of course, the establishe d summary judgment principles, as did the District Court.

III.

We first address plaintiffs’ concerns about the timing of the s ummary judgment. These concerns center around Dow Chemical’s use

### The document depository was established by the court in the 5 

### bre ast implants litigation for litigants in any federal or stat e case involving silicone implant product liability. After concluding that summary judgment wa s improper as to the 6 

### neglig ent undertaking claim, the district court in In re Breas t Implants found it unnecessary to address plaintiffs’ other direct liability theories. 887 F. Supp. at 1462.
-7- of I n re Breast Implants . In 1993, the district court in In re Breas t Imp lants granted an interlocutory summary judgment to Dow Chemical in a suit brou ght 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 TM J litigation were directed to the breast implants litigatio n depository for most of the discovery sought, and discovery was to b e 5 coordi nated with discovery in the breast implants litigation. Al l disco very was permitted only by leave of court. Not surprisingly, Do w Chemical r elied heavily on the holdings and reasoning of In re Breas t Implants to support its motion for summary judgment.

The Distr ict Court issued its order in the present consolidated TMJ implants cases granting summary judgment to Dow Chemical on March 31, 1995 , but final judgment wa s not entered at that time. See In re TMJ Implants , 880 F. Supp. at 1322. On April 25, 1995, the court in In re Breas t Implants vacated its order granting summary judgment to Dow Chemical on th e plaintiffs’ direct li ability claims based on evidence acquired subsequent to the entry of that order. See In re Breast Implants , 887 F. Supp. a t 1456. That court held that on the evidence then before it a jury coul d find that Dow Chemical, as a consequence of its testing of silicone , eng aged in a negligent undertaking and therefore was directly liable t o recipients of silicone gel breast implants under the laws of at least some states. Id. at 1460-62. In the present

6

### -8-

litigation, on June 13, 1995, the District Court denied plaintiffs’ motion to vacate and deny summary judgment as to Dow Chemical and granted Do w Chemical’s motion for the entry of final judgment.

Plaintiff s contend that the District Court abused its discretion in declini ng to vacate its order granting summary judgment in this case

. Plaintiffs argue that before the court in In re Breast Implants vacate d summary judgment, Dow Chemical asserted that the factual and legal issues

surrou nding Dow Chemical’s summary judgment motion in this case wer e identical to those already adjudicated in its fa vor 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 becaus e breast implant silicone and TMJ implant silicone are different

. Moreover, plaintiffs contend that because of Dow Chemical’s reliance on th e breast implants litigation, Dow Chemical was able to avoid discovery in th e present case concerning its role in the research and development o f silicone, and it avoi ded discovery on the differences, if any, that exist bet ween breast implant silicone and TMJ implant silicone. Without thi s discovery, plaintiffs argue, the grant of summary judgment was premature. A tria l court’s determination that a claim is ripe for summar y judgm ent is reviewed for abuse of discretion. See, e.g. , Humphreys v

. Roche Bi omedical 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 nonmov ant 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 summaryjudgment motion to request a court to postpone a decision unti l completion of adequat e 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 base d 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 an y kin d 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 dis trict 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 gran t of summary judgment was unfair, we note that plaintiffs mischaracterize Do w Chemical’s position i n 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 involve d breast implants and this case involved TMJ imp lants. Plaintiffs have turned this valid contention on its head, reworking Dow Chemical’s argument t o be that because this too is a silicone implant case, the results must be the same. However, neithe r plaintiffs nor Dow Chemical elected to rely solely on the decision in In
re Bre ast Implants ; both parties marshalled evidence to support thei r positi ons regarding Dow Chemical’s motion for summary judgment. Do w Chemic al simply analogized the breast implants litigation to the TM J implants litigation in support of its motion. This does not estop Do w Chemical from pointing out distinctions between the breast implants case and the present case.

### Plaintiffs’ Reply Brief states that Dow Chemical’s counse l 7 

### indicated on August 18, 1994 that filing a Rule 56(f) affida vit was unnecessary. See Reply Br. at 5. Irrespective of this cont ention, in a S eptember 2, 1994 letter to the District Court (a copy o f 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 no t know that discovery on the type of silicone contained in TM J implants was necessary until Dow Chemical made this an issue i n attemp ting to distinguish In re Breast Implants , well after th e court’s September 30, 1994 deadline for filing Rule 56(f ) affidavits. However, as noted in the opening line of plaintiffs’ brie f, “This case concerns the role of Dow Chemical . . . in th e design and testing of the silicone used in [TMJ] implants. ” Appellants’ Br. at 1. There b eing thousands of different silicone compounds, each with varying characteristics, plaintiffs shoul d 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 t esting 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 Cour t expressly relied on reasoning in In re Breast Implants only when discussin g the corporate control claims, see In re TMJ Implants , 880 F. Supp. at 1315 , with re spect to which plaintiffs raise no issue in this appeal. In th e portion of the District Court’s opinion addressing plaintiffs’ direc t liability claims, the court concluded, after “[h]aving carefully reviewed the arguments and evidence,” that no genuine iss ues 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.

Mor eover, neither before nor after the Alabama district court’ s reversal of field in the breast implants litigation did plaintiffs make us e of Federal Rule of Ci vil Procedure 56(f), which allows a party to request

a delay in granting summary judgment until completion of further discovery

. Not on ly did plaintiffs never file an affidavit pursuant to Rule 56(f), 7 but also they

### In a May 25, 1995 letter, plaintiffs aske d the District Court 8 

### to wait on issuing a final ruling until plaintiffs’ counsel ha d obtain ed certain Food and Drug Administration (FDA) documents

. Appellants’ App. at 897. Whil e United States v. Birchem , 100 F.3d 607, 609 (8th Cir. 1996), indicates that asking for a delaye d ruling may suffice to preserve on appeal an argument of inadequate opportunityto conduct discovery even absent a Rule 56(f ) affida vit, a court does not necessarily abuse its discretion b y 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 t o raise discoveryissue, but noting that the absence of a formal reques t for a continuance is relevant as to whether a district court abuses its discretion in ruling on a summary judgment motion withou t waiting for further discovery), cert. denied , 493 U.S. 1076 (1990).
-11- never filed a motion for a continuance or to compel discovery. Becaus e 8 plaintiffs failed to take appropriate action to delay the entry of summary judgment and obtain additional discovery, the entry of summary judgment wa s not premat ure and did not constitute an abuse of the District Court’ s discreti on. See Humphreys , 990 F.2d at 1081 (finding no abuse o f 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 opportun ity for discovery where it did n ot request a continuance to conduct further discovery or state b y affidavit why essential facts justifying opposition to summary judgment ar e
unav ailable). Plaintiffs made a conscious gamble that their case a s presented was sufficient to avoid summary judgme nt 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 lette r 9 

### concerning the existence of these FDA documents and their pu rported conten ts are relevant as to whether summary judgment wa s prematurely granted, the documents themselves were never bef ore the District Court. As a result, plaintiffs’ January 3, 1996 mo tion to supplement the record on appeal with these FDA documents and a Silastic® Mammary Prosthesis i nformational brochure is denied, and these items will not be consid ered in addressing the merits of Dow Chemical’s summary judgment motion. See Barry v. Barry , 78 F.3 d 375, 379 (8th Cir. 1996) (noting that authority to supplement a record is rarely exercised and represents a narrow exceptionto the gen eral rule that appellate courts consider only evidentiar y materials before the trial court at the time summary judgment i s 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 , 10 2 F.3d 968, 971 n.3 (8th Cir. 1996) (granting motion to supplemen t the record on appeal to the extent that party seeks to supplement the record with material submitted to the district court).

-12- “[Plaintiffs] are cer tainly not submitting a Rule 56(f) affidavit at this time. I think we have more than substantial evidence to survive th e summaryjudgment 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 distin ction between silicone in TMJ implants and silicone in breas t 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--FD A documents pertaining to Dow Corning’s attempt to gain FDA approval for its TMJ im plant--is irrelevant to the direct liability claims against Do w Chemi cal. In its May 25, 1995 letter to the District Court, plaintiff s

9 asserted that the FDA documents would demonstrat e that the silicone in TMJ implants is

### Because the discovery sought in plaintiffs’ May 25, 199 5 1 0 

### letter did not demonstrate how postponement of the summary j udgment ruling would enable plaintiffs to avoid summary judgment, th e letter could not serve as the functional equivalent of a Rul e 56(f) affidavit. See Humphreys , 990 F.2d at 1081 (stating that part y invoking Rule 56(f)’s protecti on must demonstrate how postponement of ruling on a summary judgment motion will enable the nonmo vant to show the existence of a genuine issue of material fact sufficient to avoid summary judgment). Therefore, we need not, and do not , de cide whether strict adherence to Rule 56(f)’s affidavi t req uirement is necessary to preserve the argument on appeal tha t summary judgment was prematurely granted.
-13- equi valent to that contained in previously-marketed silicone products

. Even if this contenti on were correct, plaintiffs never have asserted that the documents would show any contacts between Do w Chemical and Dow Corning sufficient to justify finding Dow Chemical directly liable to plaintiffs; thus, based on plaint iffs own assertions, these documents would not raise

a genuine issue of material fact to create a jury question on any o f plaintiffs’ claims, and the District Court did n ot abuse its discretion in granti ng summary judgment without waiting for discovery of thes e documents. See Anderson , 477 U.S. at 248 (“Only d isputes over facts that

10 might affect the outcome of the suit under the g overning 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 o f inadequate discovery were inconsequential where nonmovants failed to point to any factual disputes that would preclude summary judgment).

We concl ude plaintiffs have failed to show that the District Cour t abused its discretion regarding the timing of its entry of summary judgmen t for Dow Chemical.

### -14- IV.

Plaintiffs argue that the record shows genuine issues of materia l fact with respect to several of their direct liability claims, and tha t summary judgment therefore should have been deni ed. This Court reviews de

novo the decision to grant summary judgment. E.I. Du Pont , 97 F.3d a t 1055. Summary judgment is proper only when, viewing the evidence in the ligh t most favorable to the nonmoving party, the record presents “n o genuine issue as to any material fact and . . . the moving party i s ent itled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); se e 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 genu ine issue of material fact for trial.” Rolscreen Co. v. Pell a 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 i s sufficient to allow a reasonable jury to return a verdict for the nonmovin g party. See Anderson , 477 U.S. at 248-49. However, the mere existence of

a scintill a of evidence in favor of the nonmoving party’s position i s insufficient to create a genuine issue of material fact. See Anderson , 47 7 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 Ma tsushita 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 mus t enter sum mary judgment “against a party who fails to make a showin g sufficient to establish the existence of an element essential to

### -15-

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 partie s’ arguments and submissions, we conclude that no genuine issues of material fact exist as to any o f pla intiffs’ theories for holding Dow Chemical directly liable fo r plaintiffs’ injuries.

A.

Plaintiff s assert that Dow Chemical is liable under section 324A of the Re statement (Second) of Torts for negligent performance of a n undertaking. Section 324A provides:


### One who undertakes, gratuitously or for consideration, to rend er services to another which he should recognize a s nec essary for the protection of a third person or hi s things , is subject to liability to the third person fo r phy sical harm resulting from his failure to exercis e reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases th e risk of such harm, or (b) he has undertaken to perform a duty owed by the othe r to the third person, or (c) the harm is suffered because of reliance of the othe r or the third person upon the undertaking.

Restatement (Second) of Torts § 324A (1965). The District Court found tha t
summ ary judgment should be granted on this claim because there is n o evid ence to show that Dow Chemical undertook to “‘render services t o another’ through its trademark agreements or through any other means.” Se e 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 R ules of Court 976(d) and 977(a), 11 

### which limit the citation of opinions superseded by a grant o f review by the California Supreme Court. However, because thes e rules are not binding on this Court, we cite to Artiglio but note its status in the California courts.
-16- section 324A liability. See, e.g. , Patentas v. United States , 687 F.2 d 707, 716 (3d Cir. 1982) (“The foundation of [324A] is that the defendant specifically has unde rtaken to perform the task that he or she is charged with having performednegligently.”); Lather v. Berg , 519 N.E.2d 755, 766 (Ind. Ct. App. 1988) (recognizing that an actor must specifically undertak e to perform the task charged). The scope of this undertaking defines and lim its an actor’s duty under section 324A. See, e.g. , Homer v. Pabs t Brewing Co. , 806 F.2d119, 121 (7th Cir. 1986). Accordingly, courts have refused to impose lia bility under section 324A without a showing that the defendant undertook a duty with respect to the specific product that cause d the injury. See Evan s v. Liberty Mut. Ins. Co. , 398 F.2d 665, 666-67 (3d Cir. 1968) (finding that employee could not recover under section 324 A abs ent a showing that the defendant insurance carrier had undertaken t o inspect plaintiff’s employer’s entire plant or the particular machin e 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. 2 d 877, 883 (Cal. Ct. App. 1996) (noting that courts have refused to impose

sec tion 324A liability without a showing that defendant undertoo k respon sibilitywith respect to the specific product that caused th e injury), review granted and opinion superseded by 930 P.2d 399 (Cal. 1997) , and review limited by932 P.2d 755 (Cal. 1997) (limiting review t o consideration of section 324A claim). 11

The exist ence and nature of a legal duty are generally questions of law. See, e.g. , Home r , 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 an d

con cluding that it is “for the court to determine what evidence i s 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 (2 d Cir. 1992). Regardless of whether the scope of a duty is deemed a questio n of law or a question of fact, if in viewing the evidence in the light most favorable to the plai ntiff 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 summar y judgment for state when plaintiff failed to show a section 324A undertakin g as a matter of law). To establish liability under section 324A, plaintiffs must prov e that Dow Chemical undertook a duty with respect to TMJ implants. Plaintiff s argu e that Dow Chemical assumed such a duty by undertaking to rende r services to Dow Corni ng through its trademark agreements with Dow Corning and through its silicone research and testing performed for Dow Corning an d that Dow Chemical should have recognized that these services were necessar y for the protection of plaintiffs. Plaintiffs assert that the trademar k agreements provided that Dow Chemical could examine the quality of Do w Corning’s products as a condition for the use of Dow Chemical’s trademarks and trade names. Also, plaintiffs contend that Dow Chemical performe d substantial silicone research and testing, at Dow Corning’s request, that Dow Corning did not and could not perform. Through these endeavors , pla intiffs argue, Dow Chemical undertook at least part of Dow Corning’ s duty to ensure the safety of Dow Corning’s TMJ implants.

### -18- The recor d, however, contains no evidence to show that Dow Chemical undert ook to render services to Dow Corning through its trademar k agreements. A standard trademark agreement, in and of itself, does no t establis h an affirmative duty to inspect that could result in tor t liability to third parties, see Mini Maid Servs. Co. v. Maid Brigade Sys., Inc. , 967 F.2d 1516, 1520 (11th Cir. 1992) (asse rting that “the licensor’s duty to control a licensee’s use of the licensor ’s own trademark cannot be blindlyconverted into a duty to prevent a licensee’s misuse of anothe r party’s tr ademark ”); In re Breast Implants , 887 F. Supp. at 1461, an d nothing in the record suggests that these are other than standard trademar k agreements. Plaintiffs can point to no evidence that Dow Chemical in fact inspected any Dow Cor ning product or provided any services to Dow Corning pursuant to these agr eements. These agreements can only be viewed, then, as a vehicle for Dow Chemical to protect its int ellectual property rights, and thus they do not represent an undertaking on the part of Dow Chemical to r ender services to another. Accordingly, these agreements do no t trigger s ection 324A. See Roberson v. United States , 382 F.2d 714, 72 1 (9th Cir. 1967) (stat ing 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 th e request of Dow Corning also does not demonstrate an undertaking sufficient to impose liability o n Dow Chemical under section 324A. For section 324A liabil ityto attach, Dow Chemical must have specifically undertaken th e task of ensuring the safety of Dow Corning’s TMJ implants or of ensuring the safet y of Dow Corning’s entire array of silicone products. Se e Blessing , 447 F. Supp. at 1189 (recognizing that liability attaches only when defendant charged with negligent inspectionundertakes to inspect the specific device causing the injury or the entire physical plant, of

### Plaintiffs contend that the 1948 article spawned the medical 12 

### implan t industry through its assertion that silicones are inert

. The a rticle, however, did not make such a broad assertion. Th e article concluded that “silico nes . . . as a class are very low in toxi city,” Appellants’ App. at 428 (emphasis added), bu t specificallymentioned dangers associated with some of th e silico nes tested, Appellants’ App. at 421-23. To find a n undertaking based on this 1948 article would stretch the par ameters of sec tion 324A to impermissible bounds. Scientists engaged i n pr eliminaryresearch would be required to forever update thei r res earch, familiarize themselves with all the subsequent an d pr eviouslyinconceivable applications of their research, or fac e tor t liability (here, almost fifty years after completion of th e re search). See Artiglio , 56 Cal. Rptr. 2d at 885 (rejecting a similar argument in breast implants litigation “because rese archers
-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 motio n to dismiss because by failing to identify any sp ecific product that caused the injury, plaintiffs could not allege which pr oduct defendant tested and negligently failed to warn plaintiffs about). P laintiffs contend that Dow Chemical undertook a duty with respect to all of Dow Corning’s silicon e products, but the record shows that Dow Chemical never tested the use of silicone in any medic al 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, Do w Chem ical’s silicone research cannot form the basis of a section 324 A undertaking for the protection of plaintiffs. S ee Artiglio , 56 Cal. Rptr. 2d at 884 (concluding that with an undisputed re cord that Dow Chemical did not tes t the safety of breast implants, “there is no basis upon which a reasonabl e inference can be drawn that Dow [Chemical] . . . in fac t undertook to protect the eventual recipients of Dow Corning’s products”).

Pl aintiffs can point only to Dow Chemical’s performance o f approximately a dozen tests involving silicone ( but not its use in medical implants) performed over four decades at the request of Dow Corning, a 196 7 meeting attended by a Dow Chemical employee in which the idea of a tooth implant w as discussed, a 1948 and a 1950 article published by three Do w Chemical scientists discussing toxicological research on variou s silicones, and a trademark

12

### would have no practical means of ascertaining the scope of thei r

liab ility or making rational decisions regarding their researc h undertakings”).
-20- agr eement allowing Dow Chemical to inspect the quality of Dow Corning’ s produc ts. However, these Dow Chemical actions and Dow Corning’ s purportedly inadequate laboratory facilities are insufficient to establish

an unde rtaking of such breadth and magnitude as to create a duty on th e part Dow Chemical to ensure the safety of all of Dow Corning’s silicon e products. See In re New York State Silicone Breast Implant Litig. , 63 2 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 o f silicone products, “the duty imposed on Dow Chemical would be indeterminat e and infinite”), aff’d , 642 N.Y.S.2d 681 (App. Di v.), appeal dismissed , 676 N.E.2d 493 (1996).

Absent the threshold requirement of a specific undertaking of th e services that form the basis for Dow Chemical’s alleged duty under section 324A, plaintiffs’ cla im must fail, and we need not consider the remaining asp ects of section 324A liability. The District Court did not err i n granting summary judgment to Dow Chemical on plaintiffs’ negligen t undertaking claim.

B. Plaintif fs also advance the theory that Dow Chemical is liable fo r ai ding and abetting Dow Corning’s tortious conduct under Restatemen t (Second) of Torts § 876(b) (1979). Secondary liability

### -21-

unde r 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 primar y actor must commit a w rongful act that causes an injury; (2) the aider and abettor m ust be generally aware of his role in the overall wrongfu l activity at the time assistance is provided; and(3) the aider and abettor must kn owingly and substantially assist the wrongful act. See, e.g. , Halberstam v. Welch , 705 F.2d 472, 477 (D.C. Cir. 1983).

In analyz ing the present case under the standard outlined above, we
assume, as the District Court did, that plaintiffs can establish a wrongfu l 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--th e stronger the evidence of Dow Chemical’s general awareness of the alleged tortious activity, the less evidence of Dow Chemical’s substantia l assist ance is required, and the stronger the evidence of substantia l assistance, the less evidence of general awarene ss 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,” th e 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 ot her and his state of mind.” Restatement (Second) of Tort s § 876(b), cmt. d. (1979). Additionally, the co urt in Halberstamprovided a sixth factor, the d uration of the assistance provided. See Halberstam , 705 F.2d at 484. Fin ally, 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 secon d requi rement of section 876(b) clearly is not satisfied. The record i s silen t as to Dow Chemical’s general awareness of both the hazard s associated with TMJ implants and its supposed role in assisting Do w Cornin g’s tortious conduct at the times the alleged assistance wa s provided. Plaintiffs contend that the knowledge requirement is satisfied by the transfers of various employees between Do w Chemical and Dow Corning and by t he sale of silicone products by Dow Chemical subsidiaries

. However, there is no indication that any informa tion regarding the dangers of TMJ imp lants or any silicone implants was ever disseminated to Do w Chemical. Thus, plaintiffs have not established a genuine issue o f material fact regarding Dow Chemical’s general a wareness of the dangers of TMJ implants. Cf. Anguiano v. E.I. Du Pont de N emours & Co. , 44 F.3d 806, 812 (9th Cir. 1995) (affirming summary judgment for defendant manufacturer of TMJ implant component on strict liability andnegligent failure to warn clai ms because plaintiffs failed to raise genuine issue of fact wit h respec t to defendant’s knowledge of the hazards associated with TM J 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 thirdaiding and abetting requirement is also unsatisfied. The record does not indicate that Dow Chemical eithe r 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 liabilit y cannot attach unless the primary party commits a wrong, the aider knows of the wro ng, and the aider substantially assists the achievement of th e primar y violation), cert. denied , 115 S. Ct. 1958 (1995); Nationa l Westminster Bank v. Weksel , 511 N.Y.S.2d 626, 63 0 (App. Div.) (noting that plaint iff must establish that alleged aider and abettor acted wit h intention

### -23-

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

. An analysis of the Restatement’s substantial assistance factor s supports this conclusion. First, we look at the nature of the ac t encouraged and analyze the import of Dow Chemica l’s aid. The record shows that Dow Corning desi gned, manufactured, and sold the TMJ implants on its

own . Dow Corning was not “heavily dependent” on Dow Chemical in thi s endeavor. Cf. Halberstam , 705 F.2d at 488. Next, we examine the amount of assistance. A doz en 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 tw o 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. Th e third factor, the defendant’s absence or presenc e at the time of the tort, indica tes that although Dow Corning and Dow Chemical shared facilitie s during much of the period in question, there is no evidence that Do w Chemical knew of the testing or production of TMJ implants so as to b e 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 relationshi p between defendant andtortfeasor, who were live-in companions, and noting uneasiness with finding civil liability on the basis of normal spousa l support activities). The fifth factor is Dow Chemical’s state of mind

. There is no indication that Dow Chemical’s actio ns were knowingly done for the purpose of assist ing the design, production, or sale of TMJ implants, much less that Dow Chemical was “one in spirit

### -24-

with” the alleged tor tfeasor, Dow Corning. Id. at 484. The sixth factor applied by the court in Halberstamwas the duration of the assistanc e provided. Despite contacts between Dow Corning and Dow Chemical extending

over four decades, evidence of any assistance by Dow Chemical concerning TMJ imp lants is nonexistent. See id. The record is barren of evidenc e from whi ch a reasonable jury could find that Dow Chemical provide d substantial assistance to Dow Corning’s alleged tortious activity.

Because t here is no genuine issue of material fact to create a jury quest ion on plaintiffs’ aiding and abetting tortious conduct claim , plaintiffs’ claim must fail. The District Court’s grant of summar y judgment on this claim must be sustained.

C.

Plainti ffs contend that Dow Chemical is liable for materia l misrepresentations and omissions concerning the safety of silicone

. Plaintiffs assert two fraud-based claims: (1) fraudulent concealment, base d upon Dow Chemical’s alleged duty to plaintiffs to correct its prio r 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 healt h risks.

A fraudulent concealment claim requires: 

### (1) Deliberate concealment by the defendant of a materia l 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 th e 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 conc ealment claim. Plaintiffs allege that a duty to speak on the part of Dow Chemical arose because Dow Chemic al published two articles asserting the inertness of silicone an d subse quentlylearned that certain silicone polymers were not inert

. However, absent any relationship between plaintiffs and Dow Chemical, ther e can be no duty to spe ak. 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 fra udulent 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 fidu ciary or other legal relationship between the parties”), appea l den ied , 612 N.E.2d 514 (Ill. 1993) (table); cf. Restatement (Second) o f Torts, § 551(2)(c) (providing that a party to a business transaction i s under a duty to discl ose 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 t o correct. The articles in question state that silicones as a class ar e inert, but do not include the broad assertion that all silicones are inert

. Additionally, plaintiffs can point to no evidenc e of active concealment or suppression of information relating to silicone implants on the part of Do w Chemica l. Because plaintiffs did not put forth evidence necessary t o satisfythe first element of a fraudulent concealment claim, we need not go through the remaining elements. See Celotex , 477 U.S. at 32 2 (explaining that nonmovants must establish all e ssential elements of cause of action on which they bear the burden of proof at trial in order to avoi d 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 avoi d summary judgment), review denied , 402 S.E.2d 824 (N.C. 1991).

Plain tiffs’ 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 representatio n was made, it was known to be false or made recklessly without knowledge of its truth an d 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). Plaint iffs contend that after learning that some silicones were no t physio logicallyinert, Dow Chemical continued to assert the safety an d utility of silicone i n medical implants. These contentions, however, are enti relywithout support in the record. Without evidence of a fals e repre sentation, the misrepresentation claim cannot succeed, and furthe r analysis of this claim is unnecessary. See Celo tex , 477 U.S. at 322 (same as above); Forbes , 394 S.E.2d at 647 (same as above).

Summary j udgment was correctly granted on plaintiffs’ fraud claims.

D.

Fin ally, plaintiffs allege that Dow Chemical conspired with Do w Corning to conceal and misrepresent the dangers of implanted

### -27-

silicon e. To establish a civil conspiracy, plaintiffs must show fiv e elements: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of the mind s 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 pro ximate result of the conspiracy. See, e.g. , State ex rel. Mays v

. Ridenhour , 811 P.2d 1220, 1226 (Kan. 1991); Mass ey 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 summaryjudgment motion. See, e.g. , Anderson v. Douglas County , 4 F.3 d 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 mor e persons to inflict an injury upon or wrong against another). Plaintiffs have not presented evidence sufficient to create a g enuine issue of material fact on their civil conspiracy claim. As alread y detailed, there is no evidence that Dow Chemical knew what type of silicon e
was used in TMJ implants or the dangers associated with this silicone, muc h less that Dow Chemical agreed with Dow Corning to conceal the hazards of the silicone in TMJ implants. Similarly, plaintiffs offer only pur e specul ation, but no evidence, of a broader conspiracy encompassing al l silicone products. See Anderson , 4 F.3d at 578 (noting that conclusor y allegations are insufficient to prove conspiracy). While plaintiffs asser t tha t Dow Chemical and Dow Corning conspired to selectively publish onl y favorable silicone test results, the research cited discusses bot h beneficial and potentially harmful properties of the silicones studied, an d plaint iffs have made no showing that any of the research done by Do w 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 misrep resent or conceal the dangers of silicone in medical implants. Here again , summary judgment was correctly granted in favor of Dow Chemical.

V.

The Di strict Court’s grant of summary judgment in favor of Do w Chemical is affirmed.

A true copy.

Attest:

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