Dow Chemical wants high court to reconsider implant ruling

CARSON CITY -- Dow Chemical Co. has asked the Nevada Supreme Court to reconsider its award of $4.2 million to Charlotte Mahlum in a silicone breast implant case.

But an attorney for the Las Vegas woman said this is another "last-ditch effort" to delay paying the judgment, which has been in litigation for more than five years.

The Supreme Court, in a 3-2 ruling in December, found Dow Chemical negligent, but it reduced Mahlum's award from $14 million to $4.2 million.

Dow's lawyer, Larry Hicks in Reno, said Monday the majority decision conflicts with ruling of all the other appellate courts that have considered similar claims.

Hicks said the majority decision was "unprecedented in American law," because it permits a jury, in hindsight, to impose a duty on the parent company to control subsidiaries that may have engaged in potentially harmful conduct.

Dow Chemical owned 50 percent of Dow Corning, which produced the silicone breast implants. Dow Corning is in bankruptcy.

The petition for rehearing also asked it be heard by the full court, instead of a panel. Such petitions are usually heard by a panel of justices who heard the original case.

It noted that Chief Justice Bob Rose is the only justice still on the court of the majority that approved the award. Justice Charles Springer has left the court and District Judge Jack Ames filled in for Justice Cliff Young.

Justices Bill Maupin and Miriam Shearing, who voted against the award, remain on the court, which has three new justices.

"Such an important decision should not be reached by a single sitting justice," Hicks said.

But Geoffrey White, Mahlum's attorney, called the Dow petition "rank justice shopping" in an attempt to void the judgment. He said Mahlum "has patiently waited nearly five and one-half years to partake of justice from the Nevada judicial system."

Dow, White said, wants to create special rules in the handling of this case. He added the petition is "an insult to the court." It would be a "grave injustice" to Mahlum if Dow were allowed to restart the appeal process, he said.

The court has rarely granted a rehearing after it has issued its initial decision.

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