Rublee v. Carrier Corp.

/rrcE\
A IH CLERKS OPFICK X
This opinion was filed for record

at ^'"DDrj^ \

CHIEF JUSTICe SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MARGARET RUBLEE,individually and as
personal representative ofthe Estate of
VERNON D. RUBLEE,
Petitioner,

CARRIER CORPORATION; AIR & LIQUID
SYSTEMS CORPORATION,as successor by
merger to BUFFALO PUMPS,INC.; CBS
CORPORATION,a Delaware corporation, f/k/a
NO. 94732-5
VIACOM,INC., successor by merger to CBS
CORPORATION,a Pennsylvania corporation,
fk/a WESTINGHOUSE ELECTRIC
CORPORATION;ELLIOTT COMPANY;
GENERAL ELECTRIC COMPANY;IMO
INDUSTRIES,INC., individually and as EN BANC
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 Filed " 1 2018
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.,

Respondent.
Rublee v. Pfizer, Inc., et ah, 94732-5

STEPHENS, J.—^This case presents a question of first impression: whether

Washington should adopt the so-called "apparent manufacturer" doctrine for

common law product liability claims predating the 1981 product liability and tort

reform act (WPLA), ch. 7.72 RCW. As set forth in the Restatement (Second) of

Torts § 400(Am.Law Inst. 1965), this doctrine provides 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." Today, we join the clear majority of states that

have formally adopted the apparent manufacturer doctrine. Applying the doctrine

to the facts of this case, we hold that genuine issues of material fact exist as to

whether a reasonable consumer could believe that Pfizer was a manufacturer of the

asbestos products that caused Vemon Rublee's illness and death. We reverse the

Court of Appeals.

FACTS AND PROCEDURAL HISTORY

Margaret Rublee is the surviving spouse of Vemon Rublee and the personal

representative of Vemon's estate.^ Vemon died of mesothelioma in 2015. Vemon

was exposed to asbestos products while working as a machinist at Puget Sound

Naval Shipyard (PSNS) between 1966 and 1980. As a machinist, Vemon worked

on steam turbines that were insulated with asbestos "lagging." Clerk's Papers(CP)

^ We use Vemon Rublee's first name for clarity, intending no disrespect.

-2-
Rublee v. Pfizer, Inc., etal., 94732-5

at 866. PSNS workers periodically "de-lagged" the turbines, removing the existing

insulation and replacing it with new insulation cement. Id. The de-lagging process

involved pouring bags of insulation cement (commonly called refractories) into

buckets or troughs, mixing in water, and stirring the insulation cement mixture with

a trowel or hoe. This process created dust that lingered around the workplace, both

when the cement was poured from the bag and when it was mixed, exposing PSNS

workers to asbestos. Id. at 867.

In the 1960s and early 1970s, PSNS workers used two insulation cement

products on the steam turbines—^Insulag and Panelag. Vemon, as well as other

PSNS workers, observed the name "Pfizer" printed on the product bags. Id. at 869-

70. In fact, Quigley—^not Pfizer—actually manufactured, sold, and distributed the

products. Founded in 1916, Quigley made and sold refractory products for use in

steel plants, power plants, and refineries. Quigley trademarked Insulag in 1936 and

Panelag in 1945. Id. at 87, 89. Insulag and Panelag contained asbestos until 1974,

when Quigley discontinued the sale of both products and replaced them with

asbestos-free alternatives. Id. at 97.

Pfizer was founded in 1849 as a manufacturer of pharmaceutical products.

Over the next century, Pfizer expanded its product line to chemicals, as well as

agricultural and industrial products. In 1968, seeking to "establish[] a position in

-3-
Rublee v. Pfizer, Inc., et al, 94732-5

refractory specialties," Pfizer acquired all of Quigley's capital shares and Quigley

became a wholly owned subsidiary ofPfizer, Id. at 950.

According to Pfizer, following the acquisition, Quigley continued to do

business as it had always done (until the asbestos products were discontinued in

1974). Resp't Pfizer Inc.'s Suppl. Br. at 4. Quigley operated the facility where

Insulag and Panelag were manufactured and purchased the raw materials for both

products from distributors. Quigley continued to handle sales and distribution of

Insulag and Panelag by maintaining its own sales employees and receiving and

filling customer orders. And, Quigley sales employees communicated with

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

Quigley.

There was, however, one undeniable change following Pfizer's acquisition of

Quigley. Following the acquisition, marketing and packaging materials for Insulag

and Panelag were reconfigured to include reference to Pfizer. For example, on

advertising fliers and other promotional materials, the Pfizer and Quigley logos

appeared side by side, with the plural "Manufacturers of Refractories" printed

below. CP at 952, 1028. Quigley sales employees distributed pocket calendars to

customers that included both the Pfizer and Quigley logos. Id. at 965-66. Quigley's

stationery stated that Quigley was a "Subsidiary ofPFIZER,INC." and included a

-4-
 Rublee v. Pfizer, Inc., et al, 94732-5

Pfizer logo in the upper left comer. Id. at 963. Pfizer's logo also appeared in the

top left comer of Quigley's invoices for Insulag and Panelag, and the technical data

sheets for both products were changed to include the Pfizer logo above "Quigley

Company Inc.,""A Subsidiary ofPFIZER INC." Id. at 977,975, 1686; see also id.

at 975 (small print on technical data sheets, requiring "WRITTEN PERMISSION

.FROM PFIZER INC." to reproduce materials). Notably, as Vemon and fellow

workers at PSNS observed, the bag labels on Insulag and Panelag referenced Pfizer.

Post-1968, the bags identified Quigley as the manufacturer and Pfizer as the parent

company. Id. at 567, 1821, 1824.

After the hazardous effects of asbestos became widely known, more than

160,000 plaintiffs filed asbestos-related suits against Quigley. Many of these suits

also named Pfizer as a defendant. Quigley filed for Chapter 11 bankruptcy in 2004.

In 2013, the United States District Court for the Southem District of New York

approved Quigley's reorganization plan creating an asbestos injury tmst under

section 524(g)ofthe bankruptcy code to compensate asbestos claimants. M at 185.

To protect the tmst and ensure the equitable distribution of relief, the district court

issued a "channeling injunction." Id. at 49-51. The channeling injunction requires

asbestos claimants to seek relief solely from the tmst and enjoins claimants from

suing Quigley for asbestos-related injuries. The injunction also bars asbestos-related

-5-
Rublee v. Pfizer, Inc., etal, 94732-5

claims against Pfizer, if based on Pfizer's prior ownership, management, or control

of Quigley, including claims based on piercing the corporate veil or successor

liability. The channeling injunction does not, however, bar claimants from alleging

that Pfizer is liable as an "apparent manufacturer" under Restatement (Second) §

400. Id. at 50-51; see In re Quigley Co.,676 F.3d 45, 59-62(2d Cir. 2012)(holding

the Quigley channeling injunction is inapplicable to § 400 claims because apparent

manufacturer liability hinges on the presence ofPfizer's name and logo on Quigley

products, not Pfizer's ownership interest or control of Quigley).

In September 2014, Vemon filed a personal injury action in King County

Superior Court against Pfizer and several other companies for damages relating to

asbestos exposure throughout his employment at PSNS.^ CP at 1-4. As permitted

by the channeling injunction, the suit sought to impose liability on Pfizer as an

apparent manufacturer under § 400 ofthe Restatement(Second), asserting that Pfizer

represented itself as a manufacturer ofthe Insulag and Panelag products that caused

Vemon's mesothelioma. After limited discovery, Pfizer moved for summary

judgment on the ground that Rublee could not establish apparent manufacturer

liability. Id. at 660.

^ Margaret Rublee converted this case to a wrongful death action following
Vemon's death on March 14, 2015.

-6-
Rublee v. Pfizer, Inc., et al., 94732-5

The trial court held that § 400 applies to jpre-WPLA product liability claims

in Washington. Id. at 2923. Nonetheless, it granted Pfizer's motion, concluding that

"a reasonable purchaser would not have been induced to believe that [Pfizer] was

such apparent manufacturer of the injurious products, within the meaning of

[Restatement (Second) § 400]." Id. at 2924. Recognizing that the scope and

interpretation of § 400 presented questions of first impression in Washington, the

trial court issued an order certifying the case for discretionary review pursuant to

RAP 2.3(b)(4).

On appeal, a three-judge panel ofthe Court of Appeals affirmed the trial court,

holding that Rublee's evidence did not create a genuine issue of material fact about

Pfizer's status as an apparent manufacturer. Rublee v. Carrier Corp., 199 Wn. App.

364, 383, 398 P.3d 1247 (2017). The panel initially considered whether § 400

applies in Washington and decided to "assume that the Washington Supreme Court

would apply § 400 when presented with the appropriate case." Id. at 370-71.

Applying § 400, the Court of Appeals held that Rublee failed to present evidence

sufficient to create an issue of material fact under any ofthe three tests courts apply

for apparent manufacturer liability—objective reliance, actual reliance, and

enterprise liability. /J. at 371. With respect to the objective reliance test, the court

held that apparent manufacturer liability should be viewed jfrom the perspective ofa

-7-
Rublee v. Pfizer, Inc., et ai, 94732-5

sophisticated user or commercial purchaser of the asbestos products, not from the

viewpoint of an ordinary consumer or end user, such as Vemon or other PSNS

workers. Id. at 372. Concluding that Rublee's evidence fell short of satisfying any

theory of apparent manufacturer liability, the Court of Appeals declined to decide

"which ofthese tests, if any, our Supreme Court would adopt." M at 371.

Rublee petitioned this court for review, which we granted. Rublee v. Carrier

Corp., 189 Wn.2d 1023,406 P.3d 284(2017).

ANALYSIS

Summary judgment is appropriate only if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter oflaw. Macias

V. Saberhagen Holdings,Inc., 175 Wn.2d 402,408,282 P.3d 1069(2012); CR 56(c).

We review a trial court's grant ofsummary judgment de novo, engaging in the same

inquiry as the trial court. Macias, 175 Wn.2d at 407. We consider all facts submitted

and all reasonable inferences from the facts in the light most favorable to the

nonmoving party. Wilson v. Steinbach,98 Wn.2d 434,437,656 P.2d 1030(1982).

At the center of this case is the so-called "apparent manufacturer" doctrine,

derived from § 400 ofthe Restatement(Second). The doctrine developed in the early

20th century, many years before the adoption of strict product liability. Rublee, 199

Wn. App. at 370. In its broadest formulation, the apparent manufacturer doctrine

-8-
Rublee v. Pfizer, Inc., etal, 94732-5

imposes a manufacturer's liability on a nonmanufacturing entity that holds itself out

to the public as the actual manufacturer of a product. Given the doctrine's scant

history in our state's product liability jurisprudence, we begin with a brief overview

of its development.

Section 400 of the Restatement (Second), entitled "Selling as Own Product

Chattel Made by Another," provides:

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.

The official comments to § 400 clarify the scope and applicability ofthis rule.

It applies only where a nonmanufacturing entity '"puts out a chattel'" by supplying

"it to others for their own use or for the use of third persons, either by sale or lease

or by gift or loan." Restatement(Second) § 400 cmt. a. Comment d to § 400

describes the two predominant ways a nonmanufacturing entity puts out a chattel as

its own product:(1)the entity appears to be the manufacturer of the product or(2)

the product appears to have been made for the particular entity. In the first situation,

the nonmanufacturer "frequently causes the chattel to be used in reliance upon his

care in making it"; in the second,the entity causes the product to be used in reliance

"upon a beliefthat he has required it to be made properly for him and that the actor's

reputation is an assurance to the user ofthe quality ofthe product."

-9-
Rublee v. Pfizer, Inc., etal, 94732-5

As a historical matter, courts first applied the apparent manufacturer doctrine

to retailers and distributors who placed their own house labels on goods that had

been manufactured by someone else.^ In the early 20th century, nonmanufacturing

sellers were not generally subject to liability for the defective products they sold

unless they altered the goods postmanufacture, breached an express warranty, or

otherwise caused the plaintiffs injury. Stein v. Pfizer Inc., 228 Md. App. 72, 89,

137 A.3d 279 (2016). Against this backdrop, the apparent manufacturer doctrine

emerged as a means to impose a manufacturer's liability on certain

nonmanufacturing sellers who held themselves out to the public as a product's

manufacturer but were otherwise subject to more lenient liability rules than the

actual manufacturer. Hebel v. Sherman Equip.,92 111. 2d 368, 371,442 N.E.2d 199,

65 111. Dec. 888 (1982).

The apparent manufacturer doctrine is primarily a "species of estoppel": a

nonmanufacturing seller who,through its labeling or advertising ofa product,causes

the public to believe it is the manufacturer ofthe product and to purchase the product

in reliance on that specific belief is estopped from later denying its identity as the

^ For a summary of the history of the apparent manufacturer doctrine, see Stein v.
Pfizer Inc., 228 Md. App. 72, 85-98, 137 A.3d 279 (2016). The apparent manufacturer
doctrine first appeared in the 1934 publication ofthe Restatement ofTorts: Negligence, as
§ 400, under the title "Vendor Selling as His Own Product Chattel Made by Another."
Restatement of Torts:Negligence § 400(Am.Law Inst. 1934).

-10-
Rublee v. Pfizer, Inc., et al, 94732-5

manufacturer for purposes of liability. Id. Under its estoppel-based rationale, the

apparent manufacturer doctrine focuses on whether the nonmanufacturing seller

induced consumers to believe that the seller actually manufactured the goods in

question and to purchase those goods in reliance on that specific belief.

Restatement of Torts: Negligence § 400 cmt. d(Am.Law Inst. 1934)."^

The first question in this case is whether Washington should recognize

apparent manufacturer liability and adopt Restatement (Second) § 400. Both the

majority and the dissent answer this question in the affirmative.

I. The Apparent Manufacturer Doctrine, as Set Forth in § 400 of the
Restatement(Second), Applies in Washington

Prior to Rublee, no Washington appellate court had discussed the apparent

manufacturer doctrine in any detail. Only a single decision, dating to 1975, briefly

acknowledged § 400 but stopped short of adopting it. See Martin v. Schoonover, 13

Wn. App. 48, 54, 533 P.2d 438 (1975)(stating, "[i]f a retailer adopts a product as

his own, he is subject to the same liability for negligence as is the manufacturer").

^ Comment d to § 400 ofthe Restatement explains:
The rule stated in this Section applies only where the chattel is so put out as
to lead those who use it to believe that it is the product of him who puts it
out. The fact that the chattel is sold under the name of the person selling it
may be sufficient to induce such a belief, but this is not always so, as where
the goods are marked as made for the seller, without stating the name ofthe
maker, or where the seller is known to carry on only a retail business.

-11-
Rublee v. Pfizer, Inc., et al, 94732-5

Despite the absence of precedent, the Court of Appeals decided to assume, "[f]or

purposes ofthis appeal," that this court"would apply § 400 when presented with the

appropriate case." Rublee, 199 Wn. App, at 371. Notably, Pfizer and Rublee agree

that § 400 should apply to common law product liability claims in Washington, and

neither party presently disputes the Court of Appeals' assumption that it does. We

take this opportunity to formally adopt § 400 and recognize the apparent

manufacturer doctrine for claims arising before the WPLA's effective date.

Adoption of§ 400 builds on our general acceptance ofRestatement principles

in similar contexts, including our adoption of Restatement (Second) §§ 402A and

388. See Ulmer v. Ford Motor Co., 75 Wn.2d 522, 531-32, 452 P.2d 729 (1969)

(adopting § 402A); Seattle-First Nat'I Bank v. Tabert, 86 Wn.2d 145, 148-49, 542

P.2d 11A (1975)(applying § 402A to sellers and suppliers); Fleming v. Stoddard

Wendle Motor Co., 70 Wn.2d 465, 467-68, 423 P.2d 926 (1967)(adopting § 388).

It is also in accord with the clear majority ofjurisdictions to consider § 400 and to

formally adopt it. See Rublee, 199 Wn. App. at 371; see also Long v. U.S. Brass

Corp., 333 F. Supp. 2d 999, 1003(D. Colo. 2004)(collecting cases). Federal courts

applying Washington law have twice previously concluded that we would adopt §

400 when presented with the opportunity. Turner v. Lockheed Shipbuilding Co., No.

C13-1747 TSZ,2013 WL 7144096, at *2(W.D. Wash.Dec. 13,2013)(court order);

-12-
Rublee v. Pfizer, Inc., et al, 94732-5

Sprague v. Pfizer, Inc., No. 14-5084 RJB,2015 WL 144330, at *3(W.D. Wash. Jan.

12, 2015)(court order). It should therefore come as no surprise that we conclude

§ 400 appropriately applies to pre-WPLA cases in this state.

Recognizing § 400 for common law claims also aligns with Washington

statutory law. In 1981, the Washington Legislature explicitly adopted apparent

manufacturer liability in the WPLA by defining "manufacturer" to include "a

product seller or entity not otherwise a manufacturer that holds itself out as a

manufacturer." RCW 7.72.010(2). In enacting this provision, the legislature

reasoned that when an entity "adopts the product as its own, [it] has, in a sense,

waived [its] right to immunity and should be subject[ed] to a manufacturer's

liability." 1 Senate JOURNAL,47th Leg., Reg. Sess., at 625(Wash. 1981). Without

question, the common law apparent manufacturer doctrine reverberates throughout

this statement, now incorporated into our statute.

In contrast, the few states that have rejected the apparent manufacturer

doctrine have found that their product liability statutes are incompatible with such

liability. See Goesel v. Boley Int'l (H.K.) Ltd., 664 F. Supp. 2d 923, 925 (N.D. 111.

2009)(refusing to apply the apparent manufacturer doctrine because "the Illinois

Supreme Court would find that the statutory provisions ofthe [Product Liability Act]

have trumped the earlier judge-made doctrine and have defined the sole predicate

-13-
Rublee v. Pfizer, Inc., et al, 94732-5

for the potential imposition of strict liability on a nonmanufacturer"); Seasword v.

Hilti, Inc., 449 Mich. 542, 537 N.W.2d 221, 224 (1995) (refusing to apply the

apparent manufacturer doctrine because "Michigan's existing theories of seller

liability and related tort doctrines ... preclude the need for an apparent-manufacturer

doctrine").

Here, we are not faced with any such conflict between common law apparent

manufacturer liability under § 400 and the WPLA. The apparent manufacturer

doctrine articulated in § 400 is entirely compatible with our state's statutory product

liability law. Based on the WPLA's definition of"manufacturer," the act recognizes

a cause of action for injuries arising after 1981 against a nonmanufacturing seller

whose marketing and other business materials create the appearance that the seller

is a manufacturer of a defective product. Claimants such as Vemon, whose injuries

occurred prior to the WPLA's adoption, should also have the opportunity to hold

nonmanufacturing sellers accountable for injuries caused by allegedly defective

products. Formally adopting § 400 for claims arising before 1981 appropriately

harmonizes common law product liability and negligence rules with the WPLA.

Having established that § 400 applies in Washington, we must decide what

test to apply to determine if a nonmanufacturing entity is an "apparent

manufacturer." The Court of Appeals examined three tests for apparent

-14-
Rublee v. Pfizer, Inc., et al, 94732-5

manufacturer liability—objective reliance, actual reliance, and enterprise liability—

and held that Rublee's apparent manufacturer claim against Pfizer would fail under

any of these tests. Rublee, 199 Wn. App. at 371. Significantly, in applying the

objective reliance test, the Court of Appeals held that "the objective reliance test

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

position," meaning "what a reasonable purchaser in the position ofPSNS purchasers

would have understood." Id. at 376. Rublee argues the Court of Appeals erred in

analyzing objective reliance as from the perspective of the "sophisticated industrial

entity" who actually purchased the product, rather than the ordinary, reasonable

consumer who used it. Id. at 372; Pet. for Review of Margaret Rublee at 7. We

agree. Courts should apply the objective reliance test and assess apparent

manufacturer liability by considering all ofthe defendant's relevant representations

in the advertising, distribution, and sale of the product from the perspective of an

ordinary, reasonable consumer.

II. Under the Objective Reliance Test, Apparent Manufacturer Liability
Should Be Viewed from the Perspective of Ordinary, Reasonable
Consumers

The apparent manufacturer doctrine revolves around the central question of

when nonmanufacturers should be treated as manufacturers for the purpose of

liability. The majority of courts following § 400 apply the objective reliance test.

-15-
Rublee v. Pfizer, Inc., etal, 94732-5

Rublee, 199 Wn. App. at 371. The objective reliance test asks whether an ordinary,

reasonable consumer could infer from the defendant's representations on labels,

advertisements, or other relevant materials that the defendant manufactured the

harmful product at issue. Id. at 371-72.

We join the majority of courts and adopt the objective reliance test for

apparent manufacturer liability. Given its "reasonable consumer" focus, the

objective reliance test is consistent with our general approach in product liability

cases oflooking at the reasonable expectations of ordinary users and consumers, not

the particular plaintiff.^ In fact, both the majority and dissent agree with the adoption

of the objective reliance test to determine apparent manufacturer liability. See

dissent at 1. In this instance, the dissent simply disagrees with the manner in which

the test is applied. Id. Apparent manufacturer liability turns on whether an

^ For this reason, we reject the actual reliance test, which requires proof that the
purchaser or user '"actually and reasonably relied upon the reputed "apparent
manufacturer's" trademark, reputation, or assurances of product quality, in purchasing the
defective product at issue.'" Rublee, 199 Wn. App. at 377 (quoting Stein, 228 Md. App.
at 102). Under this test, a plaintiff cannot establish apparent manufacturer liability absent
proof of direct reliance on the nonmanufacturer's representations. In cases like Rublee's,
where a commercial entity purchases nonconsumer products, plaintiffs will be hard pressed
to prove the entity's actual reliance. Nor would requiring such proof be consistent with our
consumer-focused product liability law. Amici rightly complain that this test drifts too far
from Washington's "reasonable consumer expectations" focus. See Br. of Amicus Curiae
Wash. State Labor Council AFL-CIO at 5; Br. of Amicus Curiae Wash. State Ass'n for
Justice Found, at 12-14; Amicus Br. of Am. Ass'n for Justice at 16-17. We reject such a
narrow approach to apparent manufacturer liability.

-16-
Rublee v. Pfizer, Inc., et al., 94732-5

objectively reasonable consumer looking at Pfizer's representations vis-a-vis

Insulag and Panelag could conclude that Pfizer was a manufacturer of the asbestos

products. While the dissent would hold that an "objectively reasonable consumer"

is best defined as the industrial purchaser in this unique application of apparent

manufacturer liability, consideration of the ordinary, reasonable consumer's

perspective keeps with existing Washington law.

The Court of Appeals below was quick to point out that Rublee's case varies

from the classic apparent manufacturer scenario involving ordinary consumer

goods.^ In Rublee's case, Insulag and Panelag are nonconsumer products that were

purchased by a commercial entity, Rublee's employer, but ultimately used by its

employees. The situation is further complicated by the fact that Pfizer, the alleged

apparent manufacturer, is the corporate parent of the actual manufacturer, Quigley.

Based on these facts, the focus in this case is on determining how the objective

^ A classic case is Swift & Co. v. Blackwell, 84 F.2d 130 (4th Cir. 1936). There, the
plaintiffswallowed broken glass eontained in a sealed can ofevaporated or condensed milk
bearing the Swift & Co. label. Swift argued it was not responsible for the injury because
it did not manufacturer the product and had no direct contact or privity with the plaintiff.
Id. at 132. The evidence established that the milk product was manufactured by another
company for Swift, then sold by Swift to a retailer, who in tum sold the product to the
plaintiff. Id. Relying on § 400 of the Restatement, the eourt concluded that Swift held
itself out as the manufacturer by labeling the can as a Swift & Co. product and was therefore
subject to manufacturer liability for the defeetive eondition ofthe product it had sold to the
retailer. Id.

-17-
Rublee v. Pfizer, Inc., et al, 94732-5

reliance test applies in situations "[wjhere the purchaser and consumer are not one

and the same." Suppl. Br. of Pet'r at 2. Specifically, "whose perceptions are

determinative to trigger liability under § 400"—^the industrial purchaser or the end

user ofthe product? Id.

The Court of Appeals agreed with Pfizer that the test should be applied from

the viewpoint of a reasonable commercial purchaser of Insulag and Panelag, i.e.,

the agents who actually purchased the products for PSNS. Rublee, 199 Wn. App. at

372. Observing that "in cases where a sophisticated industrial entity purchased the

product, courts have applied the test from the viewpoint of a 'reasonable purchaser'

in thatpositionf id.(emphasis added), the court held that the objective reliance test

should be applied from the perspective of a "reasonable industrial purchaser" of the

nonconsumer asbestos products. /J. at 375.

To support its sophisticated purchaser approach to objective reliance, the

Court ofAppeals relied primarily on the reasoning in Stein, 228 Md. App. at 98-102,

a Maryland Court of Special Appeals' decision involving a similar apparent

manufacturer claim against Pfizer. As in Rublee's case, the issue in Stein was

whether Pfizer could be deemed an apparent manufacturer of Insulag, which was

manufactured and sold to the plaintiffs employer by Quigley, both before and after

Quigley became a wholly owned subsidiary ofPfizer. Id. at 75.

-18-
Rublee v. Pfizer, Inc., etal, 94732-5

In deciding which viewpoint to apply in assessing objective reliance,the court

in Stein initially concluded that'"whether a holding out has occurred must be judged

from the viewpoint of the purchasing public, and in light of circumstances as of

the time of purchase.'" Id. at 101 (quoting Hebel, 92 111. 2d at 375). Having

determined that the circumstances surrounding the purchase were relevant to

analyzing objective reliance, the Stein court resolved that the proper viewpoint from

which to judge reliance depends on the type of product and purchaser at issue.

According to the court, "in an 'apparent manufacturer' case involving a consumer

product," the reliance issue is "merely a question of whether an ordinary, reasonable

consumer purchaser would have relied upon a reputed 'apparent manufacturer's'

reputation and assurances of quality in deciding whether to purchase the product at

issue." Id. at 102 n.24. In contrast, where "the product at issue was not a consumer

product" and "was purchased by a sophisticated user," id., reliance must be judged

"from the perspective of a reasonable purchaser, in the position of the actual

purchaser." Id. at 99.

Applying this reasoning, the court in Stein required the plaintiff to show that

"a reasonable purchaser of refractory materials, that is, [the defendant] Bethlehem

Steel, during the time period from 1968 to 1974, would have relied upon Pfizer's

reputation and assurances of quality in purchasing the refractory material at issue."

-19-
Rublee v. Pfizer, Inc., et al., 94732-5

M at 101, Because "Bethlehem Steel was unquestionably a sophisticated purchaser

of Insulag and . . . Insulag was not a consumer product," the court held that no

reasonable fact finder could conclude that"a reasonable person, in the position of a

Bethlehem Steel purchasing manager . .., who had purchased Insulag for decades

from Quigley, could have purchased Insulag in reliance upon Pfizer's reputation and

assurances ofquality." Id. at 102. As the court elaborated,there could be no reliance

when it was "manifest that Bethlehem Steel knew, at all relevant times, that it was

purchasing Insulag from Quigley, not Pfizer." Id.

In rejecting Rublee's apparent manufacturer claim, the Court of Appeals

indiscriminately adopted the reasoning ofStein, holding that "the objective reliance

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

position." Rublee, 199 Wn.App.at376. Focusing on the perspective ofa reasonable

industrial purchaser in the position of PSNS, the Court of Appeals concluded that

"[njone of the evidence relevant to the understanding of industrial purchasers

suggests they would think Pfizer manufactured the [refractory] products." Id.

We reject this "sophisticated purchaser" approach to apparent manufacturer

liability as inconsistent with Washington law. We have long recognized that

consumer protection is the touchstone of Washington's product liability law.

Zamora v. Mobil Oil Corp., 104 Wn.2d 199, 206, 704 P.2d 584(1985)(describing

-20-
Rublee v. Pfizer, Inc., et ai,94732-5

the "primary policy justification" for extending strict liability to remote sellers as the

provision of"maximum of protection'" to consumers). For that reason, the focus

of our product liability jurisprudence has always been on the ordinary product

consumer. More generally, we do not differentiate between types of users or

consumers for purposes of liability. For example, Washington courts have

uniformly rejected a sophisticated user defense, under which product distributors are

not required to instruct or warn sophisticated users about certain risks because such

users are presumably already aware of the risks due to their expertise or

sophistication.^

^ This approach is consistent with comment / to Restatement (Second) § 402A,
which describes a produet liability claimant broadly, stating:
User or consumer. In order for the rule stated in this Section to apply, it is
not necessary that the ultimate user or consumer have acquired the product
directly from the seller, although the rule applies equally if he does so. He
may have acquired it through one or more intermediate dealers. It is not even
necessary that the consumer have purchased the product at all. He may be a
member of the family of the final purchaser, or his employee, or a guest at
his table, or a mere donee from the purchaser. The liability stated is one in
tort, and does not require any contractual relation, or privity of contract,
between the plaintiff and the defendant.
"Consumers"include not only those who in fact consume the product,
but also those who prepare it for consumption; and the housewife who
contracts tularemia while cooking rabbits for her husband is included within
the rule stated in this Section, as is also the husband who is opening a bottle
of beer for his wife to drink. Consumption includes all ultimate uses for
which the product is intended, and the customer in a beauty shop to whose
hair a permanent wave solution is applied by the shop is a consumer."User"
includes those who are passively enjoying the benefit of the product, as in
the case of passengers in automobiles or airplanes, as well as those who are

-21-
Rublee v. Pfizer, Inc., et ah, 94732-5

The only scenario in which we differentiate between types of users or

consumers is in the pharmaceutical or medical device context, where the "learned

intermediary" doctrine applies. Under the learned intermediary doctrine, a

manufacturer of certain medical products, obtainable solely through the services of

a physician, fulfills its duty to warn when it gives adequate warning to the physician

who must prescribe the product. Terhune v. A.H. Robins Co., 90 Wn.2d 9, 17, 577

P.2d 975 (1978). We adopted this doctrine primarily for public policy reasons

focused on preserving the physician-patient relationship, and it is considered sui

generis. We have expressly declined to adopt the learned intermediary doctrine in

other contexts, particularly where workers are injured using products purchased by

their employer. See Ruiz-Guzman v. Amvac Chem. Corp., 141 Wn.2d 493, 508-11,

7 P.3d 795 (2000) (declining to adopt the learned intermediary doctrine in the

pesticide context, where the farm business entity purchased the pesticides, but farm

workers applied it).

Pfizer's sophisticated purchaser/informed user approach to apparent

manufacturer liability is inconsistent with our consumer-focused product liability

law. First, by considering only "evidence relevant to the understanding ofindustrial

utilizing it for the purpose of doing work upon it, as in the case of an
employee of the ultimate buyer who is making repairs upon the automobile
which he has purchased.

-22-
Rublee v. Pfizer, Inc., et al, 94732-5

purchasers," this approach broadly imports a type of sophisticated user defense into

Washington law. Rublee, 199 Wn.App. at376. As noted, a product user's expertise

or sophistication is generally irrelevant to a product distributor's liability. Second,

by drawing a line between an "ordinary user" and "industrial purchasers" ofasbestos

products, this approach inches toward expanding the learned intermediary doctrine

without a public policy necessity. Terhune, 90 Wn.2d at 16-17. For these reasons,

we reject the "sophisticated purchaser" approach and any notion that objective

reliance turns on the nature ofthe particular product(consumer versus nonconsumer)

or the identity ofthe particular purchaser(informed user versus ordinary end user).^

^ The analysis in Brandimarti v. Caterpillar Tractor Co., 364 Pa. Super. 26, 527
A.2d 134 (1987), provides a useful example of how the reasonable consumer approach to
objective reliance properly applies to cases involving nonconsumer products in commercial
settings. In Brandimarti, the plaintiff was injured when the forklift he was operating
overtumed. Id. at 28. The record indicated that the forklift was purchased by the plaintiffs
employer and manufactured by Towmotor Inc., a wholly owned subsidiary of the
defendant. Caterpillar Tractor Company. Id. at 35. Although the forklift was manufactured
by Towmotor,"[t]he Caterpillar trade name was, however, conspicuously displayed on the
forklift." Id. (emphasis omitted). The Brandimarti court held that "[ujnder such
circumstances Caterpillar could expect others to purchase the product in reliance on the
skill and reputation associated with the Caterpillar name." Id. at 36. Rather than focusing
on the fact that the forklift was a nonconsumer product purchased by a commercial entity,
the court based its holding on the rationale underlying the apparent manufacturer doctrine:
"The Restatement(Second)ofTorts § 400 was drafted in recognition ofthe fact that where
one's name appears on a product 'the actor's reputation is an assurance to the user of the
quality of the product.'" Id.(quoting RESTATEMENT(SECOND) § 400 cmt. d). As noted,
under the Restatement product "users" include both purchasers and end users who did not
directly purchase the product. RESTATEMENT(SECOND)§ 402A cmt. I.

-23-
Rublee v. Pfizer, Inc., et al., 94732-5

While we reject Pfizer's sophisticated user approach, we also reject Rublee's

call to ignore entirely Pfizer's representations made to commercial purchasers. For

example, if we accepted as true Rublee's argument that the focus of§ 400 "is on the

perceptions of the end user," we would presumably look only to Pfizer's

representations on Insulag and Panelag product packaging, or other similar materials

available to the casual observer or end user,in determining whether Pfizer held itself

out as the product manufacturer. Pet. for Review of Margaret Rublee at 11. We

would ignore the fact that Pfizer's logo appeared on invoices for Insulag and

Panelag, as well as on pieces of sales correspondence between Quigley salespeople

and their commercial customers. Properly applying § 400, however, this evidence

is potentially relevant to the ultimate issue offact in this case—whether Pfizer held

itself out as manufacturer ofInsulag and Panelag.

We therefore believe it is appropriate to assess apparent manufacturer liability

by considering all evidence relevant to reasonable consumers ofthe product at issue,

consistent with Washington's "ordinary consumer expectation" approach. Under a

consumer-focused objective reliance test, the plaintiff is required to show that an

ordinary, reasonable consumer could have (1) inferred fi-om the defendant's

representations in the advertising, distribution, and sale of the product that the

defendant manufactured the product and (2)relied on the defendant's reputation as

-24-
Rublee v. Pfizer, Inc., et al,94732-5

an assurance of the product's quality. The nature of the product or purchaser does

not change the analysis. Unlike Pfizer's sophisticated purchaser/informed user

approach, analyzing objective reliance from the perspective of the ordinary,

reasonable consumer is consistent with the logical underpinnings of the apparent

manufacturer doctrine and with our consumer-focused product liability law.

Moreover, the reasonable consumer approach furthers the apparent manufacturer

doctrine's estoppel-based rationale by focusing on all of the defendant's

representations, whether on labels, advertisements, and other relevant materials.

Applying the objective reliance test to the facts in this case, resolution of

Rublee's apparent manufacturer claim against Pfizer presents a close question that a

trier of fact could decide either way. On the one hand, there is sufficient evidence

in the record to support a fmding of apparent manufacturer liability. The record

shows that the labeling of Panelag and Insulag changed after Pfizer acquired

Quigley, so that the logo listed both companies as''Manufacturers ofRefractories—

Insulations." CP at 952, 1028 (emphasis added). The product labels had formerly

indicated that Quigley was the (singular) manufacturer. Id. at 923. On advertising

fliers and other promotional materials, the Pfizer and Quigley logos appeared side

by side, with the plural "Manufacturers of Refractories" printed below. Id. at 952,

1028 (emphasis added). Also relevant is evidence that the technical data sheets for

-25-
Rublee v. Pfizer, Inc., etal, 94732-5

Insulag and Panelag included the Pfizer logo, listed Pfizer's address and telephone

number, and instructed readers not to copy any ofthe information contained on the

sheets "WITHOUT WRITTEN PERMISSION FROM PFIZER,INC." Id. at 975,

1686.

On the other hand, as the dissent observes,there is evidence in the record from

which a trier of fact could find no apparent manufacturer liability. For example,

Pfizer offered testimony that the product labels on bags of Insulag and Panelag

identified the corporate relationship between Pfizer and Quigley and showed

Quigley as the manufacturer of both products. ^ Id. at 567, 1821, 1824. While

^ We caution, however, that comment d to § 400 suggests that this type of labeling
is not necessarily dispositive. Restatement (Second) § 400 cmt. d. According to
comment d:
The mere fact that the goods are marked with such additional words as"made
for" the seller, or describe him as a distributor, particularly in the absence of
a clear and distinctive designation of the real manufacturer or packer, is not
sufficient to make inapplicable the rule stated in this Section. The casual
reader of a label is likely to rely upon the featured name, trade name, or
trademark, and overlook the qualification of the description of source. So
too, the fact that the seller is known to carry on only a retail business does
not prevent him from putting out as his own product a chattel which is
marked in such a way as to indicate clearly it is put out as his product.
However, where the real manufacturer or packer is clearly and accurately
identified on the label or other markings on the goods, and it is also clearly
stated that another who is also named has nothing to do with the goods except
to distribute or sell them,the latter does not put out such goods as his own.
(Emphasis added.) Thus, even assuming Quigley was identified as the product
manufacturer, Pfizer is not relieved of liability when its name also appears on the
product unaccompanied by a statement clarifying that Pfizer had nothing to do with
the goods except to distribute or sell them. See Carter v. Joseph Bancroft & Sons

-26-
Rublee v. Pfizer, Inc., et al., 94732-5

Pfizer's logo appears in the top left comer of Quigley's invoices for Insulag and

Panelag, Quigley's logo is arguably featured more prominently in the top center,

with "A Subsidiary ofPFIZER INC." noted undemeath it. Id. at 977. The Quigley

pocket calendar and stationery similarly include Pfizer's and Quigley's logos, while

identifying Quigley as a "Subsidiary ofPFIZER,INC." Id. at 965-66, 963.

Considering all of the relevant facts in context and allowing for competing

inferences therefrom, Pfizer's status as an apparent manufacturer cannot be decided

as a matter oflaw on summary judgment. There remains a genuine issue of material

fact as to whether an ordinary, reasonable consumer of Insulag and Panelag could

infer from all of Pfizer's representations that Pfizer manufactured the asbestos

products that caused Vemon's illness and death.

III. Apparent Manufacturer Liability Is Not Limited to Sellers and Others in
the "Chain of Distribution"

One final matter merits discussion. As an altemative ground to uphold the

order granting summary judgment, Pfizer contends that "the apparent manufacturer

doctrine applies only to parties that sell or distribute the product in question." Resp't

Co., 360 F. Supp. 1103, 1107 (E.D. Penn. 1973) (holding defendants liable as
apparent manufacturers of a defective dress when the dress label identified the
actual manufacturer and included the defendants' trademark but did not "clearly
state that defendants had nothing to do with the goods except to distribute or sell
them").

-27-
Rublee v. Pfizer, Inc., et al, 94732-5

Pfizer Inc.'s Suppl. Br. at 18. Because "Pfizer neither sold nor distributed the

Quigley products," Pfizer asserts that it cannot be liable as an "apparent

manufacturer" under § 400. Id. Stated differently, Pfizer argues that an apparent

manufacturer must be in the "chain of distribution." We reject this argument.

Starting with § 400's text and comments, we see no indication that an entity's

participation in the chain of distribution is dispositive of apparent manufacturer

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

manufactured by another." RESTATEMENT(SECOND)§ 400. The words '"one who

puts out a chattel' include anyone who supplies it to others." Id. cmt. a. And as

comment d to § 400 clarifies, "one puts out a chattel as his own product when he

puts it out under his name or affixes to it his trade name or trademark." The language

in § 400 suggests that a nonmanufacturing defendant that places its trade name on

products manufactured by another may assume apparent manufacturer liability

based on the nature of its representations, regardless of whether it was a link in the

chain of distribution. This makes good sense. Like the product assembler,the entity

that affixes its trademark to a product manufactured by another represents a level of

quality to the consumer and ultimate user, derives an economic benefit from the sale

of the product, and should share in the costs of injury resulting from the defective

product.

-28-
Rublee v. Pfizer, Inc., et ah, 94732-5

While the dissent would require all apparent manufacturers to be within a

product's direct chain of distribution, this is incompatible with the reasonable

consumer focus of apparent manufacturer liability. Dissent at 13. The apparent

manufacturer doctrine does not require contractual privity, or focus on sellers and

purchasers, as Pfizer maintains. Resp't Pfizer Inc.'s Suppl. Br. at 20. Instead, in

addition to cost sharing, the justification for apparent manufacturer liability is that

the defendant derives a benefit from including its trade name on a product

manufactured by another, representing to consumers that the product is of a certain

origin or quality. This is precisely why the doctrine's focus is on the expectations

ofordinary, reasonable consumers. We hold that whether Pfizer played a role in the

chain of distribution of Insulag or Panelag is not dispositive of Pfizer's status as an

"apparent manufacturer."

CONCLUSION

We formally adopt § 400 ofthe Restatement(Second) and recognize apparent

manufacturer liability for claims arising before the WPLA's effective date. In

assessing apparent manufacturer liability, we apply the objective reliance test,

viewing all of the defendant's relevant representations from the perspective of the

ordinary,reasonable consumer. The Court ofAppeals erred in holding that objective

reliance must be judged solely from the perspective of a sophisticated industrial

-29-
Rublee v. Pfizer, Inc., et al, 94732-5

purchaser of asbestos products. Because Rublee presented sufficient evidence to

create a genuine issue of material fact as to whether reasonable consumers could

conclude that Pfizer was an apparent manufacture of the asbestos products, we

reverse the Court of Appeals and remand for further proceedings.

-30-
Rublee v. Pfizer, Inc., etal, 94732-5

WE CONCUR:

31
Rublee v. Carrier Corp. et. al, No. 94732-5
Yu, J. (dissenting)

No. 94732-5

YU,J. (dissenting) — I am concerned with our adoption of an archaic

feature of product liability law in order to compensate the plaintiff for claims

already allowed under modem product liability standards. I agree with the

majority that, in the right case, we should adopt the "apparent manufacturer"

doctrine from the Restatement(Second) ofTorts § 400(Am. Law Inst. 1965). I

also agree that the "objective reliance" test is the correct test under Washington

law. I disagree, however, with the way the majority has applied that test here.

While compensation for injuries caused by products is imperative, we should

not expand the apparent manufacturer doctrine to circumvent the reality that the

plaintiffs claims are subject to an asbestos injury bankruptcy trust. The apparent

manufacturer doctrine is not intended to address when a parent company is liable

for a subsidiary's actions. Thus, we should reject the majority's attempt to
Rublee v. Carrier Corp. et. al, No. 94732-5
Yu, J. (dissenting)

shoehorn that issue into a doctrine where it simply does not fit in order to achieve a

particular outcome.

The trial court's analysis ofthe plaintiffs claims from the perspective of a

reasonable purchaser was correct. I would therefore affirm the Court of Appeals

and hold that Pfizer Inc. cannot be held liable in Margaret Rublee's wrongful death

action as a matter of law. As such, I would not reach Pfizer's alternative argument

that it cannot be held liable because it was not in the "chain of distribution."

However, I must address the majority's incorrect conclusion that no such

requirement exists. I respectfully dissent.

ANALYSIS

The majority is generally accurate in its recitation ofthe history and purpose

ofthe apparent manufacturer doctrine. See majority at 8-11. However,the

majority's application ofthe objective reliance test is entirely inconsistent with its

history and purpose because it ignores the crucial factor of reliance. I would hold

that where the ordinary consumer of a product is not the ordinary purchaser, the

objective reliance test must consider the ordinary purchaser's perspective. The

perspective of consumers who play no role in purchasing the product cannot create

a genuine issue of material fact precluding summary judgment.
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

A. The objective reliance test should be applied from the perspective ofthe
ordinary purchaser

Prior to the adoption of strict products liability in the 1960s and 1970s, a

person who was injured by an unsafe product was required to prove negligence by

the manufacturer or the seller. See generally Stein v. Pfizer Inc., 228 Md. App. 72,

87-88, 137 A.3d 279(2016)(citing Restatement OF Torts §§ 388, 394-95(Am.

Law Inst. 1934))(detailing the history ofthe apparent manufacturer doctrine).

Manufacturers had more duties than sellers, so there were more ways to prove

negligence by a manufacturer than negligence by a seller. For example, a

manufacturer had a duty to warn of potential danger from use of a product; a seller

did not. Id. A manufacturer had a duty to exercise reasonable care in

manufacturing a potentially dangerous product; a seller did not. Id.

The apparent manufacturer doctrine emerged in cases where a retail seller or

distributor held itself out to the public as the manufacturer, and where an ordinary

purchaser would have no way of knowing who had actually manufactured the

product. E.g., Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304-05 (4th Cir.

1962)(Sears liable for defects in ladder manufactured by another where purchaser

relied on Sears's advertising and trade name on ladder); Burkhardt v. Armour &

Co., 115 Conn. 249, 264-65, 161 A. 385 (1932)(distributor of canned ham liable

where the label containing the Armour name and trademark, but not the name of
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

the actual manufacturer, would lead an ordinary person to infer that Armour

guaranteed safety of can's contents); Thornhill v. Carpenter-Morton Co., 220

Mass. 593, 596-97, 108 N.E. 474(1915)(paint manufacturer and dealer held liable

for damage caused by paint manufactured by another where it put its label on

product and represented that it was the manufacturer).

As noted by the majority, the apparent manufacturer doctrine is a "species of

estoppel." Majority at 10-11. The doctrine applies where the seller "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." Hehel v. Sherman Equip., 92 111. 2d 368, 371,

375, 442 N.E.2d 199, 65 111. Dec. 888 (1982). It is not intended to impose strict

liability on everyone in the chain of distribution; its purpose is to hold sellers

accountable for the reliance they induce.

It follows that whether a seller's representations have caused a purchaser to

rely on a belief that the seller is the manufacturer of a product "must be judged

from the viewpoint ofthe purchasing public, and in the light of circumstances as of

the time of purchase." Id. at 375. In the case of consumer goods, the purchasing

public consists of ordinary consumers. Kennedy v. Guess, Inc., 806 N.E.2d 776,

784 (Ind. 2004)(purchasing public of umbrellas). But in commercial settings, the

purchasing public is often different from the ordinary consumer. Hehel, 92 111. 2d
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

at 375 (purchasing public of car washing equipment). In both cases, the objective

reliance test should be applied from the perspective of a reasonable purchaser in

the position of the actual purchaser.^

This does not mean that in cases where the consumer is not the purchaser,

the consumer can never recover. It just means that the inquiry is whether an

ordinary, reasonable purchaser might have relied on a mistaken belief that the

product's seller was also its manufacturer. If so, then the apparent manufacturer

may be liable for the consumer's injury. Heinrich v. Master CraftEng'g, Inc., 131

F. Supp. 3d 1137, 1160(D. Colo. 2015); Brandimarti v. Caterpillar Tractor Co.,

364 Pa. Super. 26, 36, 527 A.2d 134 (1987).^

'The majority contends that applying the objective reliance test from the perspective of
an ordinary purchaser "broadly imports a sophisticated user defense into Washington law," and
"inches toward expanding the learned intermediary doctrine without a public policy necessity."
Majority at 22-23. That is simply not the case. When a seller induces the public to purchase a
product on the belief that it is the manufacturer of that product, it is held liable as if it had
actually manufactured the product. The extent ofthat liability has nothing to do with the
sophistication of either the user or the purchaser and does not take into account what a "learned
intermediary" would know.
^ I disagree with the majority's claim that Brandimarti "provides a useful example of how
the reasonable consumer approach to objective reliance properly applies to cases involving
nonconsumer products in commercial settings." Majority at 23 n.8. In fact, Brandimarti held
that Caterpillar was subject to liability as an apparent manufacturer because by placing its name
on a forklift, it "could expect others to purchase the product in reliance on the skill and
reputation associated with the Caterpillar name." 364 Pa. Super, at 36(emphasis added). The
ultimate consumer was the one who was injured, but the court's explicit focus was on the
perspective ofthe ordinary purchaser.
Rublee v. Carrier Corp. et. ah. No. 94732-5
Yu, J. (dissenting)

B. The majority's reliance on "ordinary consumer expectation" is misplaced

Courts that have applied the objective reliance test in situations where the

ordinary purchaser of a product is different from the ultimate consumer have

uniformly done so from the perspective of an ordinary purchaser. Heinrich, 131 F.

Supp. 3d at 1160; Hebel,92 111. 2d at 377; Stein, 228 Md. App. at 101;

Brandimarti, 364 Pa. Super, at 36. The majority contends that "Washington's

'ordinary consumer expectation' approach" to product liability law dictates a

different result. Majority at 24. I disagree. The ordinary consumer expectation

approach was adopted in a different context for a different purpose.

The ordinary consumer expectation approach is used to determine whether a

product is not reasonably safe, resulting in strict liability for the seller, distributor,

or manufacturer. RESTATEMENT(SECOND)OF Torts § 402A. "This means that it

must be unsafe to an extent beyond that which would be reasonably contemplated

by the ordinary consumer." Seattle-First Nat'I Bank v. Tabert, 86 Wn.2d 145, 154,

542 P.2d 774(1975). This approach "allows the trier ofthe fact to take into

account the intrinsic nature ofthe product," including factors not necessarily

known at the time of purchase, such as relative cost, gravity of potential harm, and

feasibility of eliminating the risk. Id. Thus, the focus in such a claim is "'not upon

the actions ofthe seller or manufacturer'" but on the nature ofthe product itself.
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

Falk V. Keene Corp., 113 Wn.2d 645,649, 782 P.2d 974(1989)(quoting Lenhardt

V. Ford Motor Co., 102 Wn.2d 208, 212,683 P.2d 1097(1984)).

In contrast, the apparent manufacturer doctrine does focus on the actions of

the seller. The doctrine does not deal with the question of whether liability exists

for injuries caused by a particular product but solely with the question of whether a

particular defendant can be treated as if they had manufactured the product. In this

context, we do not ask what an ordinary person would expect based on the nature

ofthe product, but whether an ordinary person would reasonably believe that the

seller is the manufacturer and would reasonably rely on the seller's reputation

when deciding whether to purchase the product.

C. Summary judgment was proper

Properly applied, the objective reliance test focuses on what a reasonable

purchaser in the position ofthe actual purchaser would rely on. To subject Pfizer

to apparent manufacturer liability, Rublee would need to prove that a reasonable

purchaser of refractory products in the same position as a purchasing agent for the

Puget Sound Naval Shipyard(PSNS)between 1966 and 1974^ would have

believed that Pfizer actually manufactured Insulag and Panelag and relied on that

belief in making its purchasing decisions.

^ Mr. Rublee began working at PSNS in 1966, Clerk's Papers(CP) at 864. Quigley
discontinued the sale of Insulag and Panelag in 1974. Id. at 97.
Rublee v. Carrier Corp. et. al, No. 94732-5
Yu, J. (dissenting)

The record contains numerous examples of product information,

promotional items, and correspondence available to the ordinary purchaser that

contain both Pfizer and Quigley names and logos. The record also includes

testimony from the late Mr. Rublee and a coworker stating that the Pfizer name

appeared on bags of Insulag and Panelag used at their workplace. Taken

individually and as a whole, the evidence does not create a genuine issue of

material fact as to whether an ordinary purchaser ofthe products would believe

that Pfizer was the manufacturer.

Rublee first points to examples of the logos that appeared on promotional

materials after Pfizer's acquisition of Quigley. The Pfizer and Quigley logos

appear side by side and are the same height. Underneath the combined logos are

the words "Manufacturers of Refractories - Insulation," with no other indication of

the relationship between the two companies. Clerk's Papers(CP)at 952, 1028.^^
These examples are taken out of context. They are part of a multipage product

'^ Rublee also points out that a pre-acquisition logo contains the tagline "Manufacturer
[singular] of Refractory Specialties and Paint" under the Quigley Company name while the
combined post-acquisition logo says "Manufacturers [plural] of Refractories -Insulations" under
the combined Pfizer and Quigley Company logos. Compare CP at 923 with CP at 952. The
record, however, also contains several examples of the pre-acquisition logo using the plural
"Manufacturers." E.g., id. at 2455, 2461,2463. Regardless, the change in wording does not
have the significance Rublee assigns to it because an ordinary purchaser at the time in question
would not necessarily have known how Quigley advertised in the past. Rublee v. Carrier Corp.,
199 Wn. App. 364, 374 n.41, 398 P.3d 1247(2017).

8
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

bulletin promoting Insulag. The cover of that bulletin clearly states that Insulag is

QUIGLEYPRODUCr and contains no reference to Pfizer. Id. at 2402-11.

Next, Rublee points to company letterhead "emblazoned with Pfizer's

familiar oval logo." Pet. for Review at 3; see CP at 963. Petitioner overstates the

prominence ofthe Pfizer logo. The Quigley Company logo appears centered at the

top of the letterhead with the company's address underneath. At the bottom center

of the letterhead are the words"A Subsidiary ofPFIZER,INC." CP at 963. The

oval Pfizer logo appears separately at the top left ofthe page. Additionally, the

example provided is an announcement that Quigley was discontinuing the

manufacture of Insulag and Panelag and contains the Quigley Company name

above the signature.

The record also includes a pocket calendar that was distributed to potential

purchasers by Quigley salespeople. Id. at 175-83. The Quigley logo appears

prominently on the top ofthe cover with Quigley identified as a subsidiary of

Pfizer at the bottom. M at 175. The inside cover is titled "Quigley Diary for

1974" and contains both the Pfizer and Quigley logos and indicates that Quigley is

a subsidiary of Pfizer. Id. at 176. The third page is the most relevant. It lists

Insulag and Panelag under the heading "Products Manufactured By QUIGLEY

COMPANY,INC. A Subsidiary of Pfizer, Inc." Id. at 178.
Ruhlee v. Carrier Corp. et. al, No. 94732-5
Yu, J. (dissenting)

Technical data sheets for both Insulag and Panelag also refer to both Quigley

and Pfizer. Id. at 975, 1686. The predominant feature ofthese sheets is the

stylized Quigley "Q" at the top. The Pfizer logo appears much smaller at the

bottom right and clearly states underneath that Quigley is a subsidiary of Pfizer. A

fine-print legal disclaimer appears on the lower left ofthe sheet that instructs

readers not to copy or distribute the information without written permission from

Pfizer.^

What the record does not contain is evidence of what appeared on the bags

of Insulag and Panelag that were actually used at the shipyard and that actually

caused Mr. Rublee's injuries.^ There is, however,testimony from both Mr. Rublee

and a coworker that Pfizer's name appeared on the products. Id. at 870, 878. For

purposes of summary judgement, we assume this to be true. Even so, the record

does not indicate how an ordinary purchaser ofthe product would have interpreted

the packaging, or that they would have relied on it at all.

Any inquiry into the perspective ofthe reasonable purchaser must account

for what is known by ordinary purchasers ofthe product.^ The documents

^ The sheets do not contain a telephone number. Contra majority at 26.
^ The record contains three examples of what the product packaging might have looked
like, but there is not enough information to support an inference that they represent the actual
product packaging at issue. CP at 567, 1821, 1824.
^ The majority concedes that information known only to purchasers is relevant and rejects
Rublee's argument that courts should look only at information available to the ultimate
consumer. Majority at 23-24. However, it makes no sense to consider information that is not

10
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

consistently refer to Insulag and Panelag as Quigley products and identify Quigley

as a subsidiary ofPfizer. It would be clear to an ordinary purchaser that there was

a relationship between the two companies, but "[a] parent/subsidiary relationship

alone would not give rise to a conclusion that Pfizer manufactured the product."^
Sprague v. Pfizer, Inc., No. 14-5084 RJB,2015 WL 144330, at *5(W.D. Wash.

Jan. 12, 2015)(court order)(quoting Turner v. Lockheed Shipbuilding Co., No.

C13-1747 TSZ, 2013 WL 7144096, at *3(W.D. Wash. Dec. 13, 2013)(court

order)). This precludes application of the apparent manufacturer doctrine, and the

trial court properly granted summary judgment to Pfizer.

D. Section 400 applies only within the chain of distribution

The majority holds that there is no chain of distribution requirement in

Washington for apparent manufacturer liability. Majority at 28. In doing so, the

majority cites only to the Restatement and ignores persuasive holdings from other

courts. I disagree with the majority's holding on this issue.

The plain text of section 400 makes it clear that a defendant must sell or

distribute a product to be subject to liability under section 400. Section 400 is

available to the ultimate consumer if our inquiry is focused on the consumer's perspective. No
reasonable person can detrimentally rely on information he or she does not have.
® Pfizer concedes that Rublee could have brought claims against Pfizer based on Pfizer's
corporate relationship with Quigley under theories such as successor liability and piercing the
eorporate veil. Resp't Pfizer Inc.'s Suppl. Br. at 1. However,these claims would be channeled
to the federal bankruptcy trust.

11
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

titled ''Selling as Own Product Chattel Made by Another." Restatement

(Second)of Torts § 400(emphasis added). The rule 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." Id. Thus, for a party to be subject to

the "same liability as though he were its manufacturer," it must both (1) put out the

product and (2) do so as if the product were its own. Id. The comments explain

that "[t]he words 'one who puts out a chattel' include anyone who supplies it to

others for their own use or for the use ofthird persons, either by sale or lease or by

gift or loan." Id. cmt. a.

Most courts that have adopted section 400 have applied it "only where a

retailer or distributor has held itself out to the public as the manufacturer ofthe

product." Torres v. Goodyear Tire & Rubber Co., 867 F.2d 1234, 1236 (9th Cir.

1989)(collecting cases). And "[mjany courts have declined to extend [section]

400 beyond sellers and retailers of defective products." Yoder v. Honeywell Inc.,

104 F.3d 1215, 1223 (10th Cir. 1997)(collecting cases). The only relevant

exception appears to be Brandimarti, where Caterpillar faced apparent

manufacturer liability because even though it "did not manufacture the product at

issue and was not a supplier ofthe product participating in the chain of

distribution, it did permit its name to appear on the equipment." 364 Pa. Super, at

36.

12
Rublee v. Carrier Corp. et. al. No. 94732-5
Yu, J. (dissenting)

Consistent with the clear weight of authority, I would hold that section 400

is limited to those in the chain of distribution of a product.

The record contains excerpts from Pfizer annual reports, purchase orders for

asbestos, budget documents, and other evidence that Rublee says create an issue of

fact as to whether Pfizer has inserted itself into the chain of distribution. Whether

the evidence supports that assertion or whether it merely indicates a corporate

parent-subsidiary relationship is an issue that should be addressed by the trial court

in the first instance. However, it is not necessary to remand for further

consideration ofthat issue in this case because the trial court correctly concluded

that no reasonable, ordinary purchaser would believe Pfizer was the manufacturer

of Insulag and Panelag.

CONCLUSION

The objective reliance test asks whether a seller's representations would lead

a reasonable person to believe that the seller, and not some other party, was the

actual manufacturer, and to rely on that belief in deciding whether to purchase and

use the product. This question can be answered only by considering the

perspective ofthe purchaser because the purchaser is the one who makes the

decision. Based on the record in this case, no reasonable ordinary purchaser would

believe Pfizer was the manufacturer. I therefore respectfully dissent.

13
Rublee v. Carrier Corp. et. a/., No. 94732-5
Yu, J. (dissenting)

14
Rublee v. Carrier Corp., et al.

No. 94732-5

GonzAlez,J.(concurring in dissent)—I concur with my colleagues that the

common law apparent manufacturer doctrine governs pre-Product Liability Act

claims. I also concur with my colleagues that the objective reliance test is the

correct test. I concur with the dissent that when the ordinary purchaser of the

product is not the ordinary consumer, we view objective reliance from the ordinary

purchaser's perspective and that under that perspective, summary judgment was

properly granted. As the dissent amply demonstrates, on the evidence presented,

the ordinary purchaser of refractory products at the time would not have believed

Pfizer Inc. was the manufacturer. Dissent at 7-11.

On these facts, we need not reach whether an apparent manufacturer is

within the direct chain of distribution of the product. I would not.

With these observations, I respectfully concur in dissent.
Rublee v. Carrier Corp., et al. No. 94732-5 (Gonzalez, J., concurring in dissent)

7^ ^^7^
7