      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARGARET RUBLEE, individually          )
and as personal representative of      )   No. 75009-7-1
the Estate of VERNON D. RUBLEE,        )
                                       )   DIVISION ONE
                     Petitioner,       )
                                       )
       v.                              )
                                       )
CARRIER CORPORATION; AIR &             )   PUBLISHED OPINION
LIQUID SYSTEMS CORPORATION, )
as successor by merger to              )
BUFFALO PUMPS, INC.; CBS               )
CORPORATION, a Delaware                )
corporation, f/k/a VIACOM,   INC.,     )
successor by merger to CBS             )




                                                                  9S:8 WV 93Er LIR
CORPORATION, a Pennsylvania            )
corporation, f/k/a WESTINGHOUSE        )
ELECTRIC CORPORATION;                  )
ELLIOTT COMPANY; GENERAL               )
ELECTRIC COMPANY; IMO                  )
INDUSTRIES, INC., individually and     )
as successor in interest to DE LAVAL )
TURBINE, INC.; INGERSOLL-RAND )
COMPANY; LONE STAR INDUSTRIES,)
INC., individually and as successor in )
interest to PIONEER SAND & GRAVEL )
COMPANY; METROPOLITAN LIFE             )
INSURANCE COMPANY;                     )
SABERHAGEN        HOLDINGS,    INC.;   )
UNION CARBIDE CORPORATION;             )
and WARREN PUMPS, LLC,                 )
individually and as successor in       )
interest to QUIMBY PUMP COMPANY, )
                                       )
                     Defendants,       )
                                       )
PFIZER, INC.,                          )
                                       )   FILED: June 26, 2017
                      Respondent.      )
                                       )
No. 75009-7-1 / 2



       LEACH, J. — Margaret Rublee appeals the summary judgment dismissal of

her wrongful death action against Pfizer Inc. She seeks to impose liability on

Pfizer as an "apparent manufacturer" under Restatement(Second) of Torts § 400

(Am. Law Inst. 1965), claiming that Pfizer represented itself as a manufacturer of

products that caused her husband's mesothelioma. Because Rublee's evidence

does not create a genuine issue of material fact about Pfizer's status as an

apparent manufacturer, we affirm.

                                     FACTS

       Vernon Rublee died of mesothelioma in 2015.           His wife, appellant

Margaret Rublee, survives him.

       Vernonl was a machinist at Puget Sound Naval Shipyard (PSNS) from

1965 to 1980. He worked on steam turbines that were insulated with asbestos

"lagging." Other workers periodically replaced this lagging. To do this, they tore

off the existing insulation and then "re-lagged" the turbine. To prepare the

lagging, they poured bags of insulation cement, or refractories, "in a trough or a

bucket and mix[ed] it up."2 This created dust that would linger at the worksite,

exposing those working there to asbestos.




      1 We refer to Vernon by his first name to distinguish him from his wife.
       2Pfizer describes "refractories" as "cement-like powders designed to be
mixed with water and applied to the surface of areas exposed to extreme heat."
                                        -2-
No. 75009-7-1 / 3



      The workers at PSNS used two refractory products, Insulag and Panelag.

Vernon and other PSNS workers testified to seeing "Pfizer" on the product bags.

      Quigley Company Inc. actually manufactured Panelag and Insulag.

Quigley trademarked Insulag in 1936 and Panelag in 1945. Both contained

asbestos until the early 1970s when, faced with growing health concerns,

Quigley replaced them with asbestos-free versions.

      Pfizer acquired Quigley as a wholly owned subsidiary in 1968. According

to Pfizer officers, Quigley continued to operate as a separate corporation,

continued to manufacture both products, continued to own the plant where it

made them, and continued to buy the raw materials used in them. Pfizer also

submitted evidence that Quigley continued to handle sales and distribution of

these products by maintaining its own sales employees and receiving and filling

customers' orders. Quigley sales employees continued to communicate with

purchasers and distributors on Quigley stationery and sign letters on behalf of

Quigley. The stationery stated that Quigley was a "Subsidiary of PFIZER, INC."

and included a Pfizer logo in the upper-left corner. Quigley invoices included the

same information. Purchasers and distributors continued to send orders and

letters to "Quigley Company, Inc."     And the product distributors advertised

themselves as distributors for "Quigley Co." The labels on bags of lnsulag and

Panelag identified Quigley as the product manufacturer and stated that it was a

                                       -3-
No. 75009-7-1 /4



subsidiary of Pfizer. Quigley continued to submit forms and distribute safety and

promotional materials that identified lnsulag and Panelag as Quigley products.

       Quigley filed for bankruptcy in 2004.3 By then, over 160,000 workers had

sued the company for injuries caused by asbestos.4 In 2013, the United States

District Court for the Southern District of New York approved a reorganization

plan that created an asbestos injury trust to compensate claimants.5 The court

enjoined all parties from suing Quigley for asbestos-related injuries.         This

"channeling injunction" also prevents asbestos-related injury claims against

Pfizer based on its ownership, management, or control of Quigley, including

claims based on "piercing the corporate veil" or successor liability theories.6 But

the channeling injunction does not bar claimants from alleging that Pfizer is liable

as an apparent manufacturer.7

       Rublee sued Pfizer and several other companies for damages.8 The trial

court dismissed the claims against Pfizer by summary judgment. This court



       3  In re Quigley Co., No. 04-15739(SMB), 2008 WL 2097016, at *1 (Bankr.
S.D.N.Y. May 15, 2008), rey'd, 449 B.R. 196 (S.D.N.Y. 2011), aff'd, 676 F.3d 45
(2d Cir. 2012).
        4 Quigley, 2008 WL 2097016, at *1.
        5 See 11 U.S.C. § 524(g) (Bankruptcy Code). Pfizer states that it has
funded approximately $965 million of the trust.
       6 Quigley, 676 F.3d at 60 & n.18.
        7 Quigley, 676 F.3d at 60-61 (holding that injunction does not prohibit
apparent manufacturer claim because such a claim is not "a legal consequence
of" Pfizer's ownership of Quigley).
        8 Rublee converted this suit to a wrongful death action after Vernon died.
                                          -4-
No. 75009-7-1/ 5



granted discretionary review on the issue of Pfizer's alleged apparent

manufacturer liability.9

       At least two plaintiffs have brought apparent manufacturer claims against

Pfizer in the United States District Court for the Western District of Washington.

In Turner v. Lockheed Shipbuilding Co.1° and Sprague v. Pfizer, Inc.,11 that court

dismissed the claims at summary judgment. The Ninth Circuit stayed an appeal

in Sprague pending this appeal.

                           STANDARD OF REVIEW

       We review an order granting summary judgment de novo, making the

same inquiry as the trial court.12 We affirm summary judgment when no genuine

issue as to any material fact exists and the moving party is entitled to judgment

as a matter of law.13 We view the facts and all reasonable inferences from them

in the light most favorable to the nonmoving party.14 A genuine issue of material

fact exists if reasonable minds could differ about the facts controlling the




       9 See  RAP 2.3(b)(4).
       10 No. C13-1747 TSZ, 2013 WL 7144096 (W.D. Wash. Dec. 13, 2013)
(court order).
       11 No. 14-5084 RJB, 2015 WL 144330 (W.D. Wash. Jan. 12, 2015)(court
order).
       12 Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 787, 108
P.3d 1220 (2005).
       13 Owen, 153 Wn.2d at 787.
       14 Lvbbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
                                       -5-
No. 75009-7-1/6



outcome of the lawsuit.15 The nonmoving party "must set forth specific facts

showing a genuine issue" and "may not rely on speculation, argumentative

assertions that unresolved factual issues remain, or on haying its affidavits

considered at face value."16

                                     ANALYSIS

         Rublee relies on section 400 of Restatement(Second)to establish Pfizer's

liability. Section 400 states that "[o]ne who puts out as his own product a chattel

manufactured by another is subject to the same liability as though he were its

manufacturer." The legal community commonly calls this "apparent manufacturer

liability."

        Apparent manufacturer liability predates the doctrine of strict liability for

harms caused by unreasonably dangerous goods.17                Some courts have

concluded that since both doctrines aim to remedy the same harms, strict

product liability has in effect "absorbed" the apparent manufacturer doctrine.15

Others have expanded the apparent manufacturer doctrine to include actors that



         15   Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886
(2008).
          Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132,
         16
769 P.2d 298 (1989); Leahy v. Quality Loan Serv. Corp. of Wash., 190 Wn. App.
1, 4-5, 359 P.3d 805 (2015) (citing Wash. Fed. Say. v. Klein, 177 Wn. App. 22,
311 P.3d 53 (2013)), review denied, 185 Wn.2d 1011 (2016).
       17 Hebei v. Sherman Equip., 92 III. 2d 368, 442 N.E.2d 199, 201, 65 III.
Dec. 888 (1982).
       15 Hebei, 442 N.E. 2d at 202.
                                       -6-
No. 75009-7-1 / 7



would not be strictly liable because they are outside the good's chain of

distribution, such as trademark licensors.19           The Washington legislature

incorporated both the apparent manufacturer doctrine and strict product liability in

the 1981 Washington product liability act (WPLA), chapter 7.72 RCW.29

Preexisting law governs claims that, like Rublee's, arose before the effective date

of this act, July 26, 1981.21

       First, we must decide whether § 400 applies to claims that arose before

the WPLA took effect. No Washington appellate court has adopted § 400. Our

Supreme Court has adopted similar sections of Restatement (Second).22 This

court cited § 400 in a 1975 decision but did not adopt it.23 And the majority of

jurisdictions to consider § 400 have adopted it.24 From this history, the United


       19  Stein v. Pfizer Inc., 228 Md. App. 72, 137 A.3d 279, 290-91 (2016)
(citing Carter v. Joseph Bancroft & Sons Co., 360 F. Supp. 1103, 1107 (E.D. Pa.
1973); Connelly v. Uniroyal, Inc., 75 III.2d 393, 389 N.E.2d 155, 161, 163, 27 III.
Dec. 343, (1979); Brandimarti v. Caterpillar Tractor Co., 364 Pa. Super. 26, 527
A.2d 134 (1987)), cert. denied, 146 A.3d 476(2016).
        29 RCW 7.72.010(2)(defining "manufacturer" to "include[ ] a product seller
or entity not otherwise a manufacturer that holds itself out as a manufacturer");
RCW 7.72.030(1).
        21 Koker v. Armstrong Cork, Inc., 60 Wn. App. 466, 472, 804 P.2d 659
(1991); RCW 4.22.920.
        22 Ulmer v. Ford Motor Co., 75 Wn.2d 522, 452 P.2d 729 (1969)(applying
§ 402A   strict product liability to manufacturers); Seattle-First Nat'l Bank v. Tabert,
86 Wn.2d 145, 542 P.2d 774 (1975)(applying § 402A to sellers and suppliers);
Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)(applying § 46 and
comments).
        23 Martin v. Schoonover, 13 Wn. App. 48, 54-55, 533 P.2d 438 (1975).
        24 See Long v. U.S. Brass Corp., 333 F. Supp. 2d 999, 1003 (D. Colo.
2004)(collecting cases).
                                            -7-
No. 75009-7-1/ 8



States District Court for the Western District of Washington has twice concluded

that the Washington Supreme Court would adopt § 400.25            We agree.   For

purposes of this appeal, we assume that the Washington Supreme Court would

apply § 400 when presented with the appropriate case.

      Because no Washington court has addressed apparent manufacturer

liability under § 400, this case presents an issue of first impression.       For

persuasive authority, we look to other courts' applications of § 400.

      Courts generally have applied one of three tests for apparent

manufacturer liability:    objective reliance, actual reliance, and "enterprise

liability."28 We do not need to decide which of these tests, if any, our Supreme

Court would adopt because Rublee has not identified evidence sufficient to

satisfy any of them.

      The majority of courts to adopt apparent manufacturer liability have

applied the objective reliance testy      This test asks "whether a reasonable

consumer would have relied upon a label or advertising materials of a product in

purchasing it."28 A court can answer this question "from the vantage point of an

ordinary, reasonable consumer or from the perspective of a reasonable


      25 Turner, 2013 WL 7144096, at *2.
      26 Stein, 137 A.3d at 294.
      27 Stein, 137 A.3d at 290.
      28 Stein, 137 A.3d at 294-95; see, e.q., Hebei, 442 N.E.2d at 203;
Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385, 391 (1932).
                                     -8-
No. 75009-7-1/9



purchaser, in the position of the actual purchaser."29 Pfizer contends that we

should apply the test from the viewpoint of the agents who actually purchased

lnsulag and Panelag for steel mills, power plants, and shipyards like PSNS.

Rublee asserts that we should instead ask whether an ordinary user of lnsulag

and Panelag would think Pfizer manufactured them.

       We agree with Pfizer. Courts applying the objective reliance test appear

to have done so uniformly from the viewpoint of the "purchasing public." In the

classic apparent manufacturer case, where a consumer sues the retailer or

distributor that sold a harmful good to the consumer, the purchaser would also be

an "ordinary user."39     But in cases where a sophisticated industrial entity

purchased the product, courts have applied the test from the viewpoint of a

"reasonable purchaser" in that position.31

       For example, in Hebel v. Sherman Equipment,32 the Supreme Court of

Illinois rejected as irrelevant a car wash employee's argument that a reasonable

person in his position would think the defendant manufactured the conveyor belt

that injured him. Sherman manufactured most of the other pieces of equipment


       29 Stein, 137 A.3d at 295.
       39 See Hebei, 442 N.E.2d at 202; RESTATEMENT (SECOND) OF TORTS § 400
cmt. d, illus. 1-2; see, e.q., Burckhardt, 161 A. at 391 (holding that distributor put
out corned beef can as its own where it placed trademark on label and label did
not identify actual packer).
       31 Stein, 137 A.3d at 296-97.
       32 92 III. 2d 368, 442 N.E.2d 199, 202-03, 65 III. Dec. 888 (1982).
                                          -9-
No. 75009-7-1 /10



at the car wash, each of which were sold and operated separately from the

hazardous conveyor.33 The court observed that the "primary rationale" of the

apparent manufacturer doctrine is that the defendant "has induced the

purchasing public to believe that it is the actual manufacturer, and to act on this

belief—that is, to purchase the product in            reliance on the apparent

manufacturer's reputation and skill in making it."34       The court held that a

reasonable purchaser of car wash equipment would not rely on the possible

impression a "casual observer" like the plaintiff might have that the defendant

manufactured the machine.35

      The Maryland Court of Special Appeals adopted this reasoning in Stein v.

Pfizer, Inc.36 In applying the objective reliance test to a claim very similar to

Rublee's, the court required the plaintiffs to "show that a reasonable purchaser of

refractory materials, that is, Bethlehem Steel, . . . would have relied upon Pfizer's

reputation and assurances of quality in purchasing . . . Insulag."37

       Rublee cites no case asking whether an ordinary user who was not a

purchaser would rely on a defendant's representation. Instead Rublee relies on

cases that either apply the test from a "purchasing public" viewpoint or address


       33 Hebei, 442 N.E. 2d at 203.
       34 Hebei, 442 N.E. 2d at 203.
       35 Hebei, 442 N.E. 2d at 203.
       36 228 Md. App. 72, 137 A.3d 279, 296, cert. denied, 146 A.3d 476 (2016).
       37 Stein, 137 A.3d at 296.
                                      -10-
No. 75009-7-1 / 11



what parties can recover for injuries from defective products.38 As discussed

above, courts applying an objective test have done so from the perspective of a

"reasonable purchaser in the position of the actual purchaser."39

       Rublee contends that her evidence creates a fact question even under this

test. We disagree.4°

       The   record    contains   several   marketing   items   and   pieces   of

correspondence that include Pfizer's logo.      Advertising fliers show the logo

alongside Quigley's, with "Manufacturers of Refractories" printed beneath.41

Quigley salespeople distributed pocket calendars also bearing Pfizer's logo. In a

Pfizer shareholder report, photographs of Quigley plant construction sites call

them "Pfizer construction sites." Another report refers to "the Quigley Magnesite

Division of Pfizer Chemical Corporation."     Invoices for lnsulag and Panelag

include the Pfizer logo in the corner. And a letter from Quigley's vice president



       38 See, e.q., Heinrich v. Master Craft Enqlq, Inc., 131 F. Supp. 3d 1137,
1160(D. Colo. 2015)("reasonable member of the buying public").
       39 Stein, 137 A.3d at 295; see Hebel, 442 N.E. 2d at 203; Kennedy v.
Guess, Inc., 806 N.E.2d 776, 784 (Ind. 2004)("purchasing public").
       40 See Robinson v. City of Seattle, 119 Wn.2d 34, 57, 830 P.2d 318
(1992); CR 56(c).
       41 Both offer pre-1968 Quigley logos that, they assert, support their side.
Rublee points to an information sheet from before the acquisition, which reads
"Manufacturer of Refractories" under the Quigley logo. Pfizer counters with
materials from before the acquisition that read "Manufacturers of Refractories"
under Quigley's name. Neither argument is determinative because at the time
Pfizer owned Quigley, a reasonable consumer would not necessarily know how
Quigley advertised itself in the past.
                                       -11-
No. 75009-7-1 /12



regarding discontinuing Insulag and Panelag again includes Pfizer's logo in the

top-left corner.

       This evidence does not create a fact question about objective reliance.

Rublee overstates the prominence of the Pfizer logo in the pocket calendar and

correspondence.     While these materials include Pfizer's logo, both feature

Quigley's name more prominently, with "subsidiary of Pfizer" under it.42 The

product invoices feature Quigley's logo and address in the top center.            A

reasonable reader would not infer from these items that Pfizer manufactured the

products.

       Likewise, a caption in a shareholder report that refers to a Quigley plant in

Ireland as a "Pfizer construction site[ 1" does not, in context, give the impression

Rublee attributes to it. While those words appear in small font above the photos,

the text of the report makes clear that the plants belonged to Quigley and that

Quigley was Pfizer's subsidiary.43     And a single reference to "the Quigley

Magnesite Division of Pfizer Chemical Corporation" in another report does not

create a fact question, particularly in light of that passage's opening sentence:

"Nineteen-seventy sales of refractory specialties manufactured and marketed by

       42 Also, a "technical data" sheet on Insulag includes the Pfizer logo but
reads "a subsidiary of Pfizer Inc." under the Quigley name.
       43 The report states, "Construction work continued throughout 1969 on
Quigley's dolomite stone processing plant. . . and on the sea-water magnesite
plant at Dungarvan . . . .They will provide high-purity, low-cost magnesite grain
for use in many of Quigley's specialty refractory formulations."
                                        -12-
No. 75009-7-1/ 13



Quigley Company, Inc., a Pfizer subsidiary. . . . " Thus, while this evidence

shows that Pfizer and Quigley had a corporate relationship, no reasonable

industrial purchaser could infer from it that Pfizer actually manufactured the

refractories.

       The record also contains deposition testimony from several workers who

said that they noticed the Pfizer name on bags of refractory materials at PSNS.

But this testimony has little relevance to a reasonable purchaser's understanding

of the products' manufacturer because Rublee has not shown that any of the

workers had any role in any purchasing decision. And even if this court applied

the objective reliance test from a reasonable user's viewpoint, none of the

workers stated that they took any action based on seeing Pfizer's name on the

products."

       Finally, Rublee contends that her expert's affidavit created an issue as to

a reasonable consumer's understanding that Pfizer manufactured the products.

Rublee submitted an affidavit from a "branding specialist," Steff Geissbuhler,

opining that Pfizer logos on the documents Geissbuhler reviewed would confuse

consumers as to who manufactured the product.           "In general, an affidavit

containing admissible expert opinion on an ultimate issue of fact is sufficient to

       44  Rublee contends the trial court ignored the workers' impressions of
Pfizer's role and her expert's testimony on consumer perceptions. But how the
trial court reached its decision does not affect this court's de novo review. See
Duckworth v. City of Bonney Lake, 91 Wn.2d 19, 21-22, 586 P.2d 860 (1978).
                                       -13-
No. 75009-7-1 /14



create a genuine issue as to that fact, precluding summary judgment."45 But

Geissbuhler's testimony does not preclude summary judgment here because it

does not address the relevant issue of fact.

      Geissbuhler opined that "Pfizer's logo on various Quigley communications

strongly suggested to the average consumer that Pfizer played a supervising role

in the manufacture of the product at issue" and that "the invocation of its brand

identity could impact consumer perception of Insulag and Panelag and effect [sic]

their purchasing decisions." As discussed above, the objective reliance test

depends on the perception of a reasonable purchaser in the actual purchaser's

position. Whether Geissbuhler's declaration created a fact issue on that point

thus depends on what he meant by "average consumer."

       Geissbuhler's deposition testimony shows that he meant an ordinary

member of the public. Geissbuhler conceded that he did not know who was

buying Insulag and Panelag. He did not know, for instance, whether the products

were available at the hardware store or bought by sophisticated industrial

purchasing departments.46 His testimony thus does not help Rublee show what

       45 J.N. v. Bellingham Sch. Dist. No. 501, 74 Wn. App. 49, 60-61, 871 P.2d
1106 (1994).
       46 Geissbuhler's deposition transcript reads in part: "Q. Do you have an
opinion . . . on whether or not purchasers of, say, Insulag would be more
knowledgeable than the average consumer? A. I don't. I mean, I really don't."
The testimony from Geissbuhler that Rublee relies on to show "that sophisticated
industrial purchasers could reach similar conclusions" to Vernon's coworkers
does not support such a conclusion. Geissbuhler did not directly answer the
                                        -14-
No. 75009-7-1 / 15



a reasonable purchaser in the position of PSNS purchasers would have

understood.

       None of the evidence relevant to the understanding of industrial

purchasers suggests they would think Pfizer manufactured the products. For

instance, Lone Star Industries and Pioneer Sand & Gravel—distributors that sold

the products to PSNS—continued to send purchase orders and questions to

Quigley and to advertise Quigley as the products' manufacturer.47

      Because the record does not create a genuine issue of material fact as to

whether a reasonable purchaser of Insulag and Panelag would think Pfizer

manufactured them, Rublee's argument fails under the objective reliance test.48

       Likewise, Rublee's claim would not succeed under any of the alternative

tests the parties advance.




attorney's questions on whether "the average purchasing agent of a fireproofing
insulation company would be confused as to who the manufacturer of the Insulag
product is"; he appeared to answer instead from either an ordinary person's
viewpoint or his own.
       47 A former Lone Star employee confirmed that he understood his
company to be a distributor for Quigley and Insulag and Panelag to be "Quigley
refractory products."
       48 Rublee asserts that the trial court impermissibly weighed evidence in
considering the summary judgment motion. But the trial court did not decide
what a reasonable purchaser would understand.                Rather, it necessarily
determined that a  reasonable     person could not find from the evidence presented
that a reasonable purchaser would think Pfizer manufactured the products. As
long as a trial court faithfully applies the CR 56 standard, this is an appropriate
question to answer.
                                          -15-
No. 75009-7-1/ 16



       First, Rublee's claim would fail under an "actual reliance" test. This test

asks whether the plaintiff showed "that he or she actually and reasonably relied

upon the reputed 'apparent manufacturer's' trademark, reputation, or assurances

of product quality, in purchasing the defective product at issue."49 A court can

again apply this test from either of two viewpoints: the actual user's or the actual

purchasers.5°

       While Pfizer asks this court to require actual reliance, few courts have

done so. The Stein court cited just one case where the court did this, a 1962

opinion from the Fourth Circuit.51 And the Stein court held that the plaintiffs had

not satisfied the test from either perspective, as they had not shown evidence

that the decedent was even aware of the product, let alone relied on Pfizer's

apparent manufacture of it.52 The court also found that the record showed that

the purchaser, Bethlehem Steel, had purchased the products from Quigley for



      49  Stein, 137 A.3d at 297.
       5° Stein, 137 A.3d at 297.
       51 See Stein, 137 A.3d at 297; Carney v. Sears, Roebuck & Co., 309 F.2d
300, 304 (4th Cir. 1962) ("[T]he basic test is whether or not the vendee
reasonably believed in and relied upon the vendor's apparent manufacture of the
product."). Pfizer cites several other cases; these do not articulate an actual
reliance test but simply list lack of reliance evidence as a factor in granting or
affirming summary judgment. See Yoder v. Honeywell, Inc., 900 F. Supp. 240,
245 (D. Colo. 1995), aff'd, 104 F.3d 1215 (10th Cir. 1997); Bernier v. One World
Techs., Inc., 746 F. Supp. 2d 240, 243 (D. Mass. 2010); Stones v. Sears,
Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540, 545 (1997); Sherman v.
Sunsonq Am., Inc., 485 F. Supp. 2d 1070, 1080(D. Neb. 2007).
       52 Stein, 137 A.3d at 297.
                                        -16-
No. 75009-7-1 / 17



years before Pfizer acquired Quigley and continued to do so after, apparently

without relying on Pfizer's role.53

       Here, Rublee presented evidence that former workers noticed Pfizer's

name on bags of Insulag and Panelag. At least one worker suggested that the

Pfizer name made him think the products were safe. But no worker testimony

shows that a worker relied on Pfizer's name in deciding to use or work near the

products. Nor did Rublee present evidence that actual purchasers relied on

Pfizer's apparent role when they purchased the products. Instead, as in Stein,

the record shows that the industrial purchasers bought the products from Quigley

without interruption before and after the Pfizer acquisition.

       The evidence thus fails to create an issue of fact about either the

purchasers' or the product users' actual reliance.

       Second, Rublee's claim would fail under an "enterprise theory" of liability.

       The enterprise liability test does not focus on consumer reliance but

instead asks "whether the defendant `participate[d] substantially in the design,

manufacture, or distribution' of the defective product."54 It also requires that the

defendant's trademark appear on the product.55

        Stein, 137 A.3d at 299.
       53
       54Stein, 137 A.3d at 297 & n.25 (alteration in original) (quoting
RESTATEMENT (THIRD) OF TORTS: PRODUCT LIABILITY § 14 cmt. d (Am. LAW INST.
1998)). The Stein court noted that while reliance is a rationale for this test, it
does not appear to be a requirement. According to Restatement (Third),
"Trademark licensors are liable for harm caused by defective products distributed
                                       -17-
No. 75009-7-1/ 18



      Only a few courts have applied this test.56 In Lou v. Otis Elevator Co.,57

the court held that a trademark licensor was liable as an apparent manufacturer

because the plaintiff had shown that it "participated substantially in the design or

manufacture of" a defective escalator. An escalator "prominently bore the Otis

trademark" and "no other trade name or mark."58 The court distinguished cases

where plaintiffs failed to submit evidence, apart from the placement of the

trademark on the product, that the defendant "was engaged in the actual

manufacture, distribution, or marketing."59 Similarly, in Connelly v. Uniroyal,

Inc.,66 the court held that issues of fact precluded summary judgment on a claim

that the defendant was liable as an apparent manufacturer for injuries caused by

a tire bearing its trademark.       The defendant provided the tire's actual

manufacturer—a licensee and subsidiary—with plans, specifications, and

technical knowledge for the tire's production, authorized the manufacturer's use

of its trademark, and received quarterly payments in return.61


under the licensor's trademark or logo when they participate substantially in the
design, manufacture, or distribution of the licensee's products. In these
circumstances they are treated as sellers of the products bearing their
trademarks." RESTATEMENT (THIRD)§ 14, cmt. d.
       55 Stein, 137 A.3d at 297.
       56 See Stein, 137 A.3d at 297-98.
       57 77 Mass. App. Ct. 571, 933 N.E.2d 140, 150 (2010).
       58 Lou, 933 N.E.2d at 143.
       59 Lou, 933 N.E.2d at 149-50.

      60 75 III. 2d 393, 389 N.E.2d 155, 163, 27 III. Dec. 343(1979).
       61 Connelly, 389 N.E.2d at 161. The same court later distinguished this
decision, observing in Hebei that it based liability in Connelly on "the defendant's
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        The Stein court noted that Pfizer and Quigley did not have a trademark

licensing agreement.62 It concluded that even if the companies' arrangement

was analogous to such an agreement, the plaintiff had presented no evidence

that Pfizer "participated 'substantially' in the design, manufacture, or distribution

of I nsu lag."63

        Although Rublee does not explicitly assert this theory of liability, she

contends that she presented evidence that Pfizer participated substantially in

bringing Insu lag and Panelag to market. We disagree.

        Rublee's evidence of Pfizer's active involvement includes corporate

annual reports referring to the Ireland construction site, purchase orders on

Pfizer forms for the raw asbestos used to make the products, budget sheets that

include research for different refractory methods, the invoices bearing the Pfizer

logo, a Quigley sales manager's testimony that he was paid by Pfizer and known

as a Pfizer employee, Pfizer's accounting for the products' costs and sales,

evidence that Quigley and Pfizer shared insurance and that Pfizer provided

safety guidance to Quigley, and a Quigley officer's statement, in response to a




integral involvement in the overall producing and marketing enterprise that
placed the dangerous product in the stream of commerce, and its participation in
the profits from the distribution of the product," and that such factors were absent
in the case before it. Hebei, 442 N.E. 2d at 204.
       62 Stein, 137 A.3d at 298.
       63 Stein, 137 A.3d at 298.
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question about "the leasing of [refractory] guns," that "[e]verything is handled in

New York."

       But Rublee does not dispute that Quigley made and sold Insulag and

Panelag for decades before Pfizer acquired the company. She does not contend

that Pfizer made any changes to the products' design. The references to a

"Pfizer construction site" and Quigley being a "division of Pfizer" do not support

an inference that Pfizer was involved in manufacturing. Nor does Pfizer's logo on

Quigley invoices help show that Pfizer itself distributed the products. And while

the asbestos order forms bear the Pfizer logo, a Quigley employee signed all of

them. As in Stein, this evidence does not create an issue of fact as to whether

Pfizer "'participate[d] substantially in the design, manufacture, or distribution" of

Quigley's prod ucts.64

       Finally, Rublee's theory of liability based on comment d to § 400 also fails.

Comment d indicates that a company can be liable as an apparent manufacturer

if it "affixes to [the product its] trade name or trademark."65      The comment

explains that when a label identifies the company "as an indication of the quality

or wholesomeness of the chattel, there is an added emphasis that the user can

rely upon the reputation of the [company]."66 But the comment also specifies that


       64 Stein, 137 A.3d at 298 (quoting RESTATEMENT(THIRD)§ 14 cmt. d).
       55 RESTATEMENT(SECOND)§ 400 cmt. d.
       55 RESTATEMENT(SECOND)§ 400 cmt. d.
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a trademark "licensor, who does not sell or otherwise distribute products, is not

liable under this Section of this Restatement."67

       Rublee contends that Pfizer vouched for the asbestos products' safety by

allowing Quigley to use its well-known logo as an assurance of quality. While no

evidence indicates the companies had a trademark licensing agreement, this

court could view this situation as analogous.68     Still, Pfizer did not "sell" or

"distribute" the products as a more recent version of the Restatement requires for

trademark license liability.69 Moreover, the record shows that Quigley was clearly

identified to purchasers as the manufacturer of lnsulag and Panelag. Pfizer and

Quigley employees testified that Quigley continued to manufacture the products

and sell them using the same sales personnel. Quigley's sales force continued

to correspond on Quigley letterhead, signing as Quigley. Invoices came from

Quigley. Purchase orders went to Quigley. And numerous materials, including

product labels, marketing materials, federal Occupational Safety & Health

Administration (OSHA) data sheets, and a report to purchasers, identified

Quigley to purchasers as the products' manufacturer. When those materials

mentioned Pfizer, it was either as a parent company or in a small logo in the

corner. And, as noted above, the record shows that actual purchasers like Lone


       67 RESTATEMENT(THIRD)§ 14 cmt. d.
       68 See Stein, 137 A.3d at 298.
       69 RESTATEMENT (THIRD)§ 14 cmt. d.
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Star knew Quigley was still the manufacturer. Comment d thus does not provide

a basis for liability.

        A company that, like Pfizer, placed its logo on a product but did not sell it

or "'participate substantially in [its] design, manufacture, or distribution" should

not expect to be held liable for harms the product caused.7° On this record, any

liability Pfizer incurred would stem not from representing itself as the dangerous

products' manufacturer but from owning the company that did manufacture and

sell the products.

        Because Rublee's evidence does not create a genuine issue of material

fact as to any theory of apparent manufacturer liability, the trial court did not err

by granting summary judgment.

        Pfizer separately contends that a defendant cannot be liable as an

apparent manufacturer unless it was part of the "chain of distribution" that

brought the harmful product to the plaintiff. But because Rublee's evidence does

not satisfy any of the theories of apparent manufacturer liability, we do not decide

whether the Washington Supreme Court would impose a chain of distribution

requirement.




        70 Stein, 137 A.3d at 297 (quoting RESTATEMENT(THIRD)§ 14 cmt. d).
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                                   CONCLUSION

          Because Rublee does not present evidence sufficient to create an issue of

fact about any of the tests courts apply for apparent manufacturer liability, we

affirm.




WE CONCUR:



                                                    Zec_ke-ite,




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