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Hollis v Dow Corning Corp, [1995] 4 SCR 634 (Link)

Facts:

Plaintiff had breast implant surgery. Implants ruptured, and plaintiff needed corrective surgery to remove implants. Literature warned of rupturing during surgery, but not during normal use (post-surgery). Plaintiff sued surgeon and manufacturer (Dow Corning)

Trial:
** Action against surgeon dismissed: risk of injury that materialized was not well-known.
** Action against Dow successful: liability based on implant being negligently manufactured.

BC Court of Appeal:
** Allowed appeal and ordered new trial on surgeon’s liability
** Dow liable: not due to negligent manufacturing, but due to failing to warn of risks of post-surgery rupture even though had knowledge.

Issue(s):

If a manufacturer does not adequately warn users of its products of the risks, is it liable for injuries caused by the materialization of those risks?

Ratio:

A manufacturer is held a higher standard of care, and can only be said to have discharged its duty to the consumer if it informs a "learned intermediary" who in turn informs the consumer, and the knowledge of the intermediary approximates that of the manufacturer.

Analysis:

1. Duty of care and standard of care:
** There is a duty to warn: requirement to warn of dangers that could arise from the ordinary use of the product.
** Manufacturers have more knowledge of defects and risks of using the product. The imbalance is rectified by imposing a duty of care on manufactures to warn users of risks, even after the initial sale of the good -- the standard of care for medical products is high.
** When there is a learned intermediary, duty of care to consumer can transfer from manufacturer to intermediary. However manufacture still has duty of care to the intermediary.
** Dow’s warning to surgeon was inadequate. Dow had knowledge of risk of post-surgery rupture (Dow had received a number of unexplained rupture reports).

2. Did breach cause injury:
** Would she have consented to operation if she knew risks?
*** Objective test? Subjective test? It is dependent on adequate information being given. Policy reasons: manufactures have to be held to high standard due to imbalance of knowledge. Here, a modified objective test necessary -- it asks whether a reasonable person in the patient's position, with the proper information, would have decided to have the surgery.
** Application of facts to case:
*** Plaintiff testified that she would not have had the operation if property warned of risks
*** Dow warned doctor only of dangers of extreme use, even though had evidence of dangers of regular use

Policy 1: Manufacturer would benefit (profit) from under-emphasizing the risks
** So they have a higher duty
** Duty to warn can be discharged by passing info to intermediary

Policy 2: If intermediary doesn’t pass info on, that is about the duty of the intermediary
** Because it is desirable for the plaintiff to be able to recover
** If Dow had properly warned surgeon, would surgeon have property warned plaintiff?
*** Obiter: Cannot ask plaintiff to prove a hypothetical (no onus on the plaintiff in this case, to prove that surgeon would have warned her if Dow had properly warned surgeon)

Holding:

Appeal dismissed. Court of Appeal’s decision stands.

Comments:

This case is also an exception to the But For test for causation: the court stated that Dow could not used the learned intermediary rule to shield itself from claims arising from its own negligence.


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