Hollis v. Dow Corning Corp.

Hollis v. Dow Corning Corp.

Majority held that Dow owed a high, continuing duty to warn surgeons (and thus patients in practice) of known or ought-to-be-known risks; the learned intermediary rule applies but only if the intermediary is adequately informed; Dow's pre-1985 warnings were inadequate given field reports and knowledge of loose gel effects, Dow's failure to warn was a cause of Hollis' injury, and the subjective causation test was appropriate here; on documentary record the appellate court could decide the issue and dismissed Dow's appeal.

Citation
[1995] 4 SCR 634
Parties
Appellant (manufacturer): Dow Corning Corporation; Respondent (plaintiff): Susan Hollis; Respondent (surgeon): John Robert Birch
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 December 1995
Procedural Posture
Tort Products Liability / Failure to Warn / Appeal to the Supreme Court of Canada (final Appeal)
Outcome
Appeal dismissed (majority); Sopinka and McLachlin JJ. dissenting
Legal Topics
Duty to Warn, Learned Intermediary, Causation, Informed Consent, Appellate Fact‑finding, Negligence, Apportionment
Source Language
English
Torts Product Liability Medical Law Civil Procedure Duty to Warn Learned Intermediary Causation Informed Consent +3 more

Case Brief

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Parties

Dow Corning Corporation

Appellant (manufacturer)

Susan Hollis

Respondent (plaintiff)

John Robert Birch

Respondent (surgeon)

Procedural Posture

Tort Products Liability / Failure to Warn / Appeal to the Supreme Court of Canada (final Appeal)

Legal Issues

  1. 1 Whether manufacturer owed a duty to warn the patient directly or could discharge duty via the learned intermediary (surgeon)
  2. 2 Whether Dow's warnings to surgeons were adequate given its knowledge of unexplained ruptures and potential harms from loose gel
  3. 3 Whether the appropriate causation test for the patient's decision is subjective or objective

Ratio Decidendi

Majority held that Dow owed a high, continuing duty to warn surgeons (and thus patients in practice) of known or ought-to-be-known risks; the learned intermediary rule applies but only if the intermediary is adequately informed; Dow's pre-1985 warnings were inadequate given field reports and knowledge of loose gel effects, Dow's failure to warn was a cause of Hollis' injury, and the subjective causation test was appropriate here; on documentary record the appellate court could decide the issue and dismissed Dow's appeal.

Court Disposition

Appeal dismissed (majority); Sopinka and McLachlin JJ. dissenting

Orders

  • Appeal dismissed and Court of Appeal finding that Dow breached duty to warn is upheld
  • Costs awarded to respondent Susan Hollis