The plaintiff, Harriette Stein, personal representative of the Estate of Carl Stein, filed an amended complaint with claims against defendant Pfizer under the theory that the decedent’s exposure to an asbestos-containing refractory cement, called “Insulag,” which was supplied to the decedent’s employer, Bethlehem Steel, by Pfizer’s subsidiary, Quigley Company, Inc., was a substantial factor in the decedent’s illness and eventual death from mesothelioma. The plaintiff alleged that Pfizer was the “apparent manufacturer” of this product because Quigley’s invoices and marketing materials bore Pfizer’s trademarks, as well as its own; the words “Manufacturers of Refractory Products” appeared beneath the exhibition of those corporate designations; and Pfizer had, in effect, held itself out as a “manufacturer” of Insulag.
The Baltimore City Circuit Court granted Pfizer’s motion for summary judgment and determined that Pfizer did not qualify an “apparent manufacturer” under Maryland Law. The plaintiff filed a motion for reconsideration on the issue while also requesting the Court of Special Appeals of Maryland take judicial notice of additional documentary evidence, which it claims, contradicts Pfizer’s contention that, both before and after its 1968 acquisition of Quigley, the marketing and promotional materials of Quigley included the plural designation “Manufacturers of Refractory Products.” The court declined to do so, as the plaintiff did not claim they did not have the opportunity to present this evidence previously.
Upon review of the history of “apparent manufacturer” doctrine, the court noted three tests emerged from case law for determining whether an entity may be found to be an “apparent manufacturer”: objective reliance test; actual reliance test; and the enterprise liability test, as set forth in Restatement (Third) of Torts: Products Liability, Sec. 14. cmt. a (1998). The objective reliance test is followed by a majority of state and federal appellate courts in determining reliance, that is, whether a reasonable consumer would have relied upon a label or advertising materials of a product in purchasing it. For the actual reliance test, the plaintiff must prove 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. The standard of the enterprise liability test is whether the defendant participated substantially in the design, manufacture, or distribution of the defective product at issue and that the defendant’s trademark appeared on the product. It’s important to note that the enterprise liability test only applies to trademark licensors.
The Court of Special Appeals of Maryland affirmed the circuit court’s grant of summary judgment and concluded that the plaintiff failed to make its case that, under any of three tests, Pfizer should be deemed an “apparent manufacturer” of Insulag. Most notably, the court found all of the evidence indicated, both before and after its acquisition by Pfizer, Quigley manufactured and designed Insulag and sold it to Bethlehem Steel, without any significant participation by Pfizer. It was also noted that evidence established that Quigley shipped the product directly to Bethlehem Steel and Pfizer did not design, manufacture, or distribute Insulag, and that Insulag was manufactured by Quigley long before its acquisition by Pfizer.