On June 26, 2017, Division I of the Court of Appeals issued Rublee v. Pfizer, Inc., 2017 WL 2734248 (June 26, 2017), where the Court expressly adopted the test from Restatement (Second) of Torts § 400 for when strict liability may be imposed against entities as “apparent manufacturers” for claims arising before the passage of the Washington Products Liability Act (WPLA), but affirmed summary judgment of dismissal when the plaintiff had failed to meet that test.
Rublee v. Pfizer, Inc., et. al.
From 1965 to 1980, Vernon Rublee worked as a machinist at Puget Sound Naval Shipyard (PSNS). He worked on steam turbines insulated with asbestos “lagging.” To replace the lagging, workers tore off the existing lagging, and then re-lagged the turbine. Preparing the lagging involving pouring bags of insulation cement, or “refractories”. This process created dust that would linger at the worksite, exposing workers to asbestos.
The workers at PSNS used two refractory products, Insulag and Panelag. There was evidence that the products had “Pfizer” written on the bags. However, Quigley Company, Inc. actually manufactured the two refractory products. Pfizer acquired Quigley as a wholly-owned subsidiary in 1968. Quigley continued to operate as a separate corporation, continued to manufacture the products, continued to own the manufacturing plant, and handled the sales and distribution of the product. Quigley employees used Quigley stationery and would sign letters on behalf of Quigley. The product distributors advertised themselves as distributors for Quigley. The labels on bags of Insulag and Panelag identified Quigley as the product manufacturer and stated that it was a subsidiary of Pfizer.
Mr. Rublee died of mesothelioma in 2015. His wife sued numerous defendants, including Pfizer, Inc. Plaintiff argued that Pfizer should be considered the “apparent manufacturer” of the Insulag and Panelag and subject to liability under Restatement (Second) of Torts § 400. The trial court dismissed Pfizer on summary judgment, and Division I accepted discretionary review.
The Rublee Court noted that whether Washington should adopt the Section 400 standard for apparent manufacturer was an issue of first impression. It agreed, consistent with several rulings by the U.S. District Court for the Western District of Washington, that the State Supreme Court would likely adopt Section 400 if confronted with the issue.
The Court affirmed the summary judgment of dismissal, concluding plaintiff had not generated a genuine issue of material fact under the three recognized tests for apparent manufacturer. First, under the “objective reliance test,” where the court asks whether a reasonable consumer would have relied upon a label advertising materials of a product in purchasing it, the Court agreed with Pfizer that the test should be applied from the viewpoint of “the agents who actually purchased Insulag and Panelag and not from the perspective of the ordinary user of the products.” The Court concluded that plaintiff failed to cite any authority asking whether an ordinary user who was not a purchaser would rely on a defendant’s representation.
It further held that there was no issue of fact on this issue, rejecting the plaintiff’s reliance on Pfizer logos on Quigley calendars and correspondence, and captions in shareholder reports, and noting that evidence of a corporate relationship between Pfizer and Quigley would not allow a reasonable industrial purchaser to infer “that Pfizer actually manufactured the refractories”. Testimony from several workers who noticed the Pfizer name on bags of refractory material was of little relevance when there was no evidence any of the workers had any role in any purchasing decision. In explaining why the plaintiff’s “branding specialist” expert declaration was not sufficient evidence, the Rublee Court reiterated its central holding that “the objective reliance test depends on the perception of a reasonable purchaser in the actual purchaser’s position.”
The Court further held that the other two tests for apparent manufacturer were not met by plaintiff. The “actual reliance” 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.” Testimony from former workers indicating that they thought the refractory bags were safe because Pfizer’s name was on them was not sufficient because they failed to also testify that they relied on Pfizer’s name in deciding to use or work near the products, or that actual purchasers relied on Pfizer’s apparent role.
Nor did the plaintiff meet the “enterprise theory” of liability for apparent manufacturer as to Pfizer, which asks whether the defendant participated substantially in the design manufacture, or distribution of the defective product. The plaintiff did not dispute that Quigley made and sold the Insulag and Panelag for decades prior to being bought by Pfizer, or that Pfizer made any changes to the product’s design. Citations to the Pfizer logo on Quigley invoices or order forms did not support an inference that Pfizer was involved in manufacturing.
Finally, the Rublee Court rejected the plaintiff’s reliance on Comment d to Section 400, which states a company can be liable as an apparent manufacturer if it affixes to the product its trade name or trademark. The Court rejected this argument, noting that Quigley was clearly identified to purchasers as the manufacturer of Insulag and Panelag, and that Pfizer and Quigley employees testified that Quigley continued to manufacture the products and sell them using the same personnel. Further, Quigley was identified as the manufacturer in product labels, marketing materials, and submissions required by federal law. The Rublee Court concluded: “A company that, like Pfizer, places 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.”
Several aspects of the Rublee Court’s analysis is significant to Washington law. First, this is the first known instance in which a state appellate court concluded that the Supreme Court would likely adopt Section 400 to claims that arose before the passage of the WPLA in 1981. This is a key ruling because pre-existing law applies to claims arising before the passage of WPLA. The only known previous reference to Section 400 was in Martin v. Schoonover, 13 Wn. App. 48, 533 P.2d 438 (1975), a pre-WPLA case that referenced the section in dicta. This is a point of controversy amongst jurisdictions, as some states have expressly rejected the application of Section 400 on the basis that the exclusive and comprehensive statutory schemes for products liability actions, including how to define “manufacturer” and “product seller”, conflict with the section, and that the passage of such schemes reflect the Legislatures’ intent to restrict rather than expand the availability of products liability claims against a nonmanufacturing seller as previously existed in the common law.
Second, the Rublee Court specifically recognized, for the first time, that the apparent manufacturer doctrine was incorporated by the Legislature through the passage of the WPLA. This suggests that the common law doctrine, and how it is interpreted, has survived the passage of the WPLA. Indeed, RCW 7.72.010(2) defines manufacturer to “include… a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer.” (Emphasis added.) However, it bears noting that the Rublee Court did not address RCW 7.72.040(2)(e), which establishes the “marketing and branding” exception to the general rule that a product seller who is not a manufacturer is subject to the negligence standard and not strict liability. Washington courts have interpreted this provision to mean that a seller of a defective product under its own brand name assumes the liability of a manufacturer, and precludes the allocation of fault to the actual manufacturer.
Third, and related to the above issues, it remains unanswered to what extent the three tests for apparent manufacturer apply to claims arising after the passage of the WPLA, which specifically articulates the limited circumstances in which non-manufacturers could be subject to strict liability. Minimal state and applicable federal authority exists interpreting the aforementioned “hold out” and “marketing and branding” provisions in the WPLA, but the common law tests from § 400 may be considered persuasive by the lower courts in light of Rublee despite the specific statutory definitions and limitations contained in the WPLA.
If you have questions about this client alert or related topics, please feel free to contact either of the attorneys below:
 Generally, the apparent manufacturer doctrine allows a plaintiff to recover against the successor of a manufacturer even if the successor had no role in actually manufacturing the product itself.
 “Lagging” is a type of thermal insulation that is applied to the surface of conduits, such as steam pipes, to reduce or prevent the transfer of heat.
 Mesothelioma is a type of cancer that develops from the thin layer of tissue that covers many of the internal organs, including most commonly the lining of the lining of the lungs and chest wall. It is estimated that greater than 80% of mesothelioma cases are caused by exposure to asbestos.
 “One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.”
 2017 WL 2734248 *3.
 2017 WL 2734248 *3.
 Id. at *4.
 Id. at **4-5 (emphasis added).
 Id. at *6.
 See id.
 Id. at *7.
 Id. at **7-8.
 Id. at *8.
 Id. at *9.
 2017 WL 2734248 *2
 See id. at 54.
 See, e.g., Bornsen v. Pragotrade, LLC, 804 N.W.2d. 55, 59-60 (N.D. 2011); Kennedy v. Guess, Inc., 806 N.E. 2d 776, 783 (Ind. 2004) (limiting § 400 to negligence claims, and not strict liability claims).
 2017 WL 2734248 *2 n.20.
 Johnson v. Recreational Equipment, Inc., 159 Wn. App. 939, 946-48247 P.3d 18 (2011)