United States District Court, W.D. Virginia, Roanoke Division
CLARENCE EDWARD WHITAKER, on behalf of himself and as Administrator of the Estate of Shannon Marie Whitaker, deceased, Plaintiff,
HYUNDAI MOTOR COMPANY, et al., Defendants.
MICHAEL F. URBANSKI, CHIEF UNITED STATES DISTRICT JUDGE
Clarence Edward Whitaker ("Whitaker") filed his
Motion in Limine No. 2 to Prohibit the Defendants from Making
a Reference of Any Kind or Nature to Their Claim that they
Cannot be held Liable Because They are not the Manufacturer
or Distributor of the Subject Vehicle on January 25, 2019.
ECF No. 160. Defendants Hyundai Motor Company and Hyundai
Motor America, Inc. ("Defendants") responded on
February 1, 2019. ECF No. 194.
argues that this matter was previously decided by the
court's Order of October 10, 2018, in which the court
cited to Bilenky v. Ryobi Techs., Inc. F.Supp.3d
661, 671-72 (E.D. Va. 2015) and noted mat the Fourth Circuit
has applied "the apparent manufacturer doctrine where
entities put out products as their own." Defendants
respond mat Virginia has never adopted the apparent
manufacturer doctrine and that Bilenky v. Ryobi
Technologies. Inc.. 666 Fed.Appx. 271 (4th Cir.
2016) did not so hold. Instead, Bilenky
described the doctrine in passing without any relevant
holding. Besides which, Bilenky's description of
the doctrine "is flatly wrong" because it
"mis-cited and misconstrued actual precedent."
court disagrees with Defendants' account of
Bilenky. 666 Fed.Appx. 271 at 274. In its opinion,
the Fourth Circuit stated explicitly:
In Virginia, a plaintiff can impose liability on a
manufacturer or seller of a defective product if the product
is unreasonably dangerous for its ordinary or reasonably
foreseeable use and the unreasonably dangerous condition
existed when the product 'left the defendant's
hands.' [citations omitted] Pursuant to the apparent
manufacturer doctrine, an entity holding itself out as the
manufacturer may be subject to the same liability as the
court cited to Swift & Co. v. Blackwell. 84 F.2d
130, 132 (4th Or. 1936) for its explanation of the apparent
manufacturer doctrine. Defendants argue that Swift was
decided under facts and law different from these and never
once uses the term "apparent manufacturer," but
this does not alter the description of a doctrine that later
came to be referred to as the apparent manufacturer doctrine
and the end result that a seller who sold a product as his
own could be held liable for the harm it caused. See
Id. at 132. ("But in our opinion, the average
reader would certainly conclude from a perusal of the label
that the goods in the can were the product of Swift &
the court ruled in its Order of October 10, 2018 that
Whitaker had presented ample evidence for a jury to conclude
that Mrs. Whitaker's Hyundai Santa Fe ("the
vehicle") was sold under the Hyundai trade name, the
Order was addressing Defendants' motion for summary
judgment. The ruling meant only that Whitaker had presented
enough information to avoid dismissal under Rule 56. This
issue belongs to the jury and hasn't been decided.
Granting Whitaker's motion would essentially amount to
granting partial summary judgment to Whitaker on this issue.
The court therefore DENIES the motion.
Defendants may present evidence to the jury on this issue.
 In this opinion, the Fourth Circuit
affirms the lower court opinion cited by Whitaker in his
brief in support of the motion.
 In Swift, the court
One who puts out as his own product chattels made by
others is under a duty to exercise care, proportionate to the
danger involved in the use of die chattels if improperly
made, to secure die adoption of a proper formula or plan and
the use of safe materials and to inspect die chattel when
made. But he does not escape liability by so doing. By
putting a chattel out as his own product, he causes it to be
used in reliance upon his care in making it. Therefore, he is
liable if, because of some negligence in its fabrication or
through lack of proper inspection during the process of
manufacture, the article is in a dangerous defective
condition which the vendor could not discover after it was
delivered to him.
Id. at 132. That the case dealt with cans of
milk rather than cars or that the case was decided before the
privity requirement was abolished does not alter the above
language or its application to later cases in Virginia and
the Fourth Circuit. See Camey v. Sears. Roebuck &
Co.. 309 F.2d 300, 304 (4th Cir. 1962) ("Therefore,
the basic test is whether or not the vendee reasonably