Opinion
CASE NO. 14-5084 RJB
12-22-2014
SHARLEEN SPRAGUE, Personal Representative of the Estate of JAMES OLSON, Plaintiff, v. PFIZER, INC., Defendant.
ORDER ON PFIZER, INC.'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant Pfizer, Inc.'s Motion for Summary Judgment. Dkt. 49. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein.
This case arises from the death of James Olson as a result of malignant pleural mesothelioma that Plaintiff alleges was caused by exposure to asbestos containing products made by Quigley Co., Inc., a former subsidiary of Pfizer. Dkt. 1. Pfizer now moves for summary dismissal of the case, arguing that Plaintiff cannot prove it was an "apparent manufacturer," and so a bankruptcy injunction prohibits Plaintiff's suit. Dkt. 49. For the reasons stated below, the motion should be granted and the case dismissed.
I. RELEVANT FACTS
In 1936, Quigley created and trademarked Insulag. Dkt. 50-1, at 50. Pfizer acknowledges that, at that time, Insulag contained chrysotile asbestos. Dkt. 49.
In 1968, Pfizer acquired all of Quigley's capital shares and Quigley became a wholly-owned subsidiary of Pfizer. Dkt. 50-1, at 64-65. Meanwhile, Quigley continued to design, manufacture, sell, and distribute its products. In late 1972, Quigley developed an astestos-free product - "Insulag AF." Dkt. 50-1, at 52-59. By early 1974, Quigley stopped selling Insulag. Dkt. 50-1, at 61.
Decedent Mr. Olson's exposure to asbestos containing Quigley products, including Insulag, is alleged to have occurred in 1968 to 1974 on or near the Puget Sound Naval Shipyard ("PSNS"). Dkt. 1.
In 2004, Quigley reorganized pursuant to Chapter 11 of the United States Bankruptcy Code. In re Quigley Co, Inc., No. 04-15739 SMB (Bankr. S.D.N.Y.) Dkt. 2670-1; filed in this case as Dkt. 23-1, at 2. The reorganization plan channels all asbestos lawsuits against Quigley and Pfizer, as the parent company, to an asbestos trust under 11 U.S.C. § 524(g) of the Bankruptcy Code. Id. The only exception to the channeling injunction is for claims alleging that Pfizer was an "apparent manufacturer" of the product under Restatement (Second) of Torts § 400. Dkt. 23-1, at 10. The Restatement (Second) of Torts § 400 provides: "[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." Restatement (Second) of Torts § 400 (1965).
II. DISCUSSION
A. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9 Cir. 1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial -e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
B. APPLICATION OF STATE LAW
As a federal court sitting in diversity, this court is bound to apply state law. State Farm Fire and Casualty Co. v. Smith, 907 F.2d 900, 901 (9th Cir. 1990). In applying Washington law, the Court must apply the law as it believes the Washington Supreme Court would apply it. Gravquick A/S v. Trimble Navigation Intern. Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003). "'[W]here there is no convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state's intermediate appellate courts.'" Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001) (quoting Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir.1996) (internal quotation marks omitted)).
The Washington State Supreme Court has not addressed whether it would adopt Restatement (Second) of Torts § 400. One Washington Court of Appeal has cited § 400. Turner v. Lockheed Shipbuilding Co., 2013 WL 7144096 (W.D. Wash. Dec. 13, 2013) (citing Martin v. Schoonover, 13 Wash.App. 48 (1975)). Further, the Washington State Supreme Court has adopted several of the Restatements. See e.g. Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975) (adopting Restatement Second of Torts 46(1) and (2)). Another court in this district has concluded that the Washington State Supreme Court would adopt § 400. Turner v. Lockheed Shipbuilding Co., Case No. C13-1747 TSZ, 2013 WL 7144096 (W.D. Wash. Dec. 13, 2013). This Court likewise concludes the Washington State Supreme Court would adopt Restatement (Second) of Torts § 400.
C. PLAINTIFF'S CLAIM UNDER § 400
The Restatement (Second) of Torts § 400 provides: "[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." According to Comment a, "[t]he words 'one who puts out a chattel' include anyone who supplies 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) of Torts § 400 (1965), Comment a. The Court adopts the Turner Court's view (and the reasoning) on how the Washington Supreme Court would apply §400. It found:
The Court concludes that the Washington Supreme Court would apply § 400 only to defendants in the chain of distribution. By its plain language, § 400 is applicable only to one who "puts out a chattel," explained in the comments as one who supplies it to others. Although the comment says that an actor appears to be the manufacturer of the chattel when he puts it out under his name or affixes to it his trade name or trademark, this still requires the defendant "put out" the chattel. An actor who allows his name or trademark to be placed upon a product, but plays no role in the distribution or supply of that product, does not "put out" the product and therefore does not fall within the scope of § 400.Turner v. Lockheed Shipbuilding Co., No. C13-1747 TSZ, 2013 WL 7144096, at *2 (W.D. Wash. Dec. 13, 2013).
Defendant's motion (Dkt. 49) should be granted and Plaintiff's case should be dismissed. Plaintiff has failed to respond to this motion. Pursuant to Local Rule W.D. Wash. 7(b)(2), "[i]f a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit." The Court so construes Plaintiff's failure to file a response. Furthermore, the motion should be granted on the merits.
All but one of Plaintiff's claims (the "apparent manufacturer" claim) is barred by the bankruptcy order's channeling injunction. Plaintiff's "apparent manufacturer" claim under §400 should also be dismissed. Like in Turner, the evidence in this case is that Pfizer, the parent company, allowed its logo to appear on some of the product's written materials next to the Quigley logo. See e.g. Dkt. 50-2, at 141 (product label which reads: "Manufactured by Quigley Company Incorporated" and on the next line in smaller print "Subsidiary of Chas. Pfizer & Co. Inc."). There is no evidence that Pfizer "put out" the product[s] at issue, however. There is no evidence that Pfizer was in the "chain of distribution." Turner, at 2.
Further, as in Turner, even if the Washington Supreme Court took a more expansive view of § 400, and included parties which were not in the chain of distribution, Plaintiff's case should be dismissed. Aside from establishing that there was a relationship between Quigley and Pfizer, review of the record leads the undersigned to conclude that there is no evidence that Pfizer manufactured, sold, or distributed the product[s] at issue here. "A parent/subsidiary relationship alone would not give rise to a conclusion that Pfizer manufactured the product." Turner, at 3. Pfizer's motion (Dkt. 49) should be granted.
III. ORDER
Therefore, it is hereby ORDERED that:
• Pfizer, Inc.'s Motion for Summary Judgment (Dkt. 49) IS GRANTED; and
• This case IS DISMISSED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
Dated this 22 day of December, 2014.
/s/_________
ROBERT J. BRYAN
United States District Judge