As a matter of first impression, the Pennsylvania Superior Court recently held that the Fair Share Act applies to strict liability cases involving asbestos exposure. In Roverano v. John Crane, Inc., 2017 PA Super. 415 (Dec. 28, 2017), a three-judge panel concluded that “the Fair Share Act explicitly applies to tort cases in which recovery is allowed against more than one person, including actions for strict liability.” Ultimately, the Superior Court vacated the trial court’s judgment and remanded the case for a new trial to apportion liability among the companies, including any settlements made with bankrupt companies.
The Fair Share Act
The Fair Share Act, 42 Pa.C.S. 7102(a.1)-(a.2), was enacted in 2011 as an amendment to Pennsylvania's laws on comparative negligence changing the state’s joint and several liability laws. The Act applies to claims that accrued after June 28, 2011, and provides that in multiple defendant cases, each defendant is liable only for its proportionate share of the total liability. There are a few exceptions to this rule. For instance, the Act does not apply to claims for intentional torts, intentional misrepresentation, hazardous substance release, or “dramshop” liability. Most importantly, however, the Act also does not apply in cases where a defendant has been held liable for 60 percent or more of the total liability. In that case, joint and several liability would still apply, leaving the defendant possibly responsible for the full amount of the judgment.
The Case: Roverano v. John Crane
After being diagnosed with lung cancer, Mr. Roverano and his wife filed a claim against 30 named defendants, contending that he had been exposed to a variety of asbestos products at his workplace over a ten-year period. He asserted strict liability personal injury claims against each Defendant, claiming that their asbestos-containing products caused his cancer. More than a dozen of the defendants had filed for bankruptcy.
Prior to trial, several defendants filed motions in limine seeking a ruling that their liability, if any, would be apportioned by the jury according to the extent to which each defendant caused harm to Mr. Roverano. Despite the requirements of the Fair Share Act, the trial court denied the defendants’ request, stating “all of the testimony I’ve ever heard in asbestos, no one quantifies [relative liability]. They say that you can’t quantify it. If you can’t quantify it, how can the Fair Share Act apply?” The case proceeded to trial, and the jury returned a verdict for the plaintiffs against eight defendants. The court then entered judgment against the defendants on a per capita basis.
John Crane, Inc. and Brand Insulations, Inc. appealed the verdict and argued, among other things, that the Fair Share Act applied because nothing in the plain language of the Act supported the trial court’s decision to exempt asbestos litigation from the Act’s requirements. The Superior Court agreed. “Nothing in the statute makes an exception for strict liability cases involving asbestos,” the Court reasoned. It held that, as required by the Fair Share Act, liability in a strict liability case such as this one involving asbestos products should not be allocated on a per capita basis, but rather proportionately, based on each tortfeasor’s liability. The Court also agreed that in connection with the apportionment of liability, the jury on remand must be permitted to consider evidence of any settlements by the plaintiffs with bankrupt entities. The Court further explained that the Act provides no exception for settling persons who are bankrupt: “These provisions require that settlements with bankrupt entities be included in the calculation of allocated liability under the statute.”
The Superior Court pronounced that in Pennsylvania strict liability cases, liability must be apportioned proportionately amongst multiple defendants, but it did not explain how that will happen. It noted suggestions from the defendants for apportionment according to the amount of potential exposure to each defendant’s product, and a similar argument that would factor in the potency of the type of asbestos exposure (i.e., chrysotile versus amphibole). The Court concluded that it was not required to opine on the factors that should be considered. “Their reasonableness is for the trial court to determine in the first instances, and the weight of their supporting evidence is a matter for the jury.” It will be interesting to watch how this plays out in Pennsylvania trial courts, and ultimately, what is decided when it reaches the appellate level.
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