United States District Court, Western District of Washington, Tacoma
SHARLEEN SPRAGUE, Personal Representative of the Estate of JAMES OLSON, Plaintiff,
PFIZER, INC., Defendant.
ORDER ON PLAINTIFF’S MOTION TO CERTIFY QUESTIONS AND PFIZER, INC.’S MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Plaintiff’s Motion to Certify Questions to the Washington Supreme Court (Dkt. 60) and 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 motions 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 Defendant Pfizer, Inc. Dkt. 1. Quigley has undergone a reorganization pursuant to Chapter 11 of the United States Bankruptcy Code, and the reorganization plan channels almost all asbestos lawsuits against Quigley and Pfizer into an asbestos trust under 524(g) of the Bankruptcy Code. Dkt. 50-1, at 6-18. The channeling injunction does not cover “a claim against [Pfizer] alleging a theory of apparent manufacturer liability under Restatement (Second) of Torts § 400.” Dkt. 50-1, at 14. Plaintiff now moves for certification of questions to the Washington State Supreme Court regarding the scope of § 400 under Washington law and whether she has provided enough evidence to “justify a jury in finding liability.” Dkt. 60. Pfizer now moves for summary dismissal of the case, arguing that Plaintiff cannot prove it was an “apparent manufacturer” under § 400 and so the bankruptcy injunction prohibits Plaintiff’s suit. Dkt. 49. For the reasons stated below, Plaintiff’s motion to certify should be denied, Pfizer’s motion for summary judgment should be granted, and the case dismissed.
I. RELEVANT FACTS
In 1936, Quigley created and trademarked Insulag. Dkt. 50-1, at 50. At that time, Insulag contained chrysotile asbestos. Dkt. 49. It also produced a similar asbestos-containing product, Panelag. Dkt. 50-1.
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 asbestos products. Dkt. 50-1. 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. 59-18, at 2.
Decedent Mr. Olson’s exposure to Quigley’s asbestos containing products is alleged to have occurred in 1968 to 1974 at 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).
This opinion will first address Plaintiff’s Motion to Certify Legal Questions to the Washington Supreme Court (Dkt. 60) and then Defendant’s Motion for Summary Judgment (Dkt. 49).
A. MOTION TO CERTIFY QUESTIONS
Plaintiff moves to certify the following questions to the Washington State Supreme Court:
(1) Does Restatement (Second) of Torts § 400 (1965) impose liability only if the defendant falls within the “chain of distribution” of an injurious product or does it instead hold liable any entity that, though its actions, leads a reasonable purchaser to believe that the entity, and not some other party, was the actual manufacturer of the injurious product?
(2) Whether the evidence produced by the Plaintiff in their response to the motion for summary judgment could, under Washington law, justify a jury in finding liability under Restatement (Second) of Torts § 400 (1965) and, if so, ...