The Supreme Court of Pennsylvania holds that liability shall be apportioned equally (i.e. per capita) among strictly liable tortfeasors in asbestos litigation under the Fair Share Act
The Fair Share Act permits the inclusion of bankrupt entities on the verdict sheet in asbestos litigation, assuming appropriate request and proofs are made during trial
The court’s decision has changed how asbestos litigation in Pennsylvania operates, and the effects will be significant for both plaintiffs and the defense
On February 19, 2020, the Supreme Court of Pennsylvania issued a long-awaited decision in the William C. Roverano matter, addressing the issues of a jury’s apportionment of liability on a percentage basis in strict liability asbestos cases and the inclusion of bankrupt entities on the verdict sheet. In its 39-page opinion, the court held that Pennsylvania’s Fair Share Act (42 Pa.C.S. § 7102) requires liability to be apportioned equally among strictly liable joint tortfeasors (i.e., on a per capita basis). The court further held that the act permits the inclusion of bankrupt entities on the verdict sheet―assuming appropriate requests and proofs are made―if the bankrupt entity was either joined as a defendant or has entered into a release with the plaintiff.
This matter involved the plaintiff-appellee William Roverano, who was employed as a helper and carpenter at PECO from 1971 to 2001. He alleged exposure to various asbestos-containing products throughout his employment and was diagnosed with lung cancer in November 2013.[i] The Roveranos proceeded to trial against John Crane and Brand Insulations only. John Crane and Brand Insulations each filed motions in limine seeking a ruling that the Fair Share Act applied to the case, requesting that the court allow the jury to allocate liability to each defendant appearing on the verdict sheet by percentage. The Philadelphia Court of Common Pleas denied the motion, holding that the Fair Share Act did not apply to the case, because asbestos exposure could not be quantified. The court instead ruled that liability would be apportioned on a per capita basis.
Prior to resolving the case, defendant Brand Insulations filed a motion in limine seeking a ruling that the 14 asbestos bankruptcy trusts with which the Roveranos filed be listed on the verdict sheet, pursuant to Section 7102(a.2) of the Fair Share Act. This section of the act deals with apportionment of liability to nonparties who have entered into a release with the plaintiff. Brand Insulations filed a similar motion, seeking a ruling that all settled parties, including bankrupt entities, be listed on the verdict sheet. The Roveranos filed an opposing motion in limine seeking to preclude the inclusion on the verdict sheet of bankrupt entities with which they had not settled and entered into a release. The Philadelphia Court of Common Pleas granted the Roveranos’ motion, holding that the inclusion of bankrupt entities on the verdict sheet would be unfair.
At the close of proofs, the jury found in favor of the Roveranos, awarding $5,189,265 to Roverano and $1,250,000 to his wife on her loss of consortium claim. In addition to John Crane and Brand Insulations, six of the eight other defendants were also found to be liable. The trial court apportioned judgment equally among all eight defendants, and entered separate judgments against John Crane and Brand Insulations in the amount of $648,858, the total award..
John Crane and Brand Insulations appealed to the Superior Court of Pennsylvania, arguing, inter alia, that the trial court had erred in failing to apply the Fair Share Act. Specifically, they argued that the trial court should have allowed the jury to apportion percentage liability among the alleged tortfeasors and allowed the inclusion of certain bankrupt defendants on the verdict sheet. In the alternative, they argued for a molding of the verdict to reflect the monies that the Roveranos had received from those bankruptcy trusts. In December 2017, the Superior Court agreed with appellants and reversed the trial court’s decisions on these two issues, holding that liability in strict liability cases should be apportioned the same way as other tort cases on a percentage basis, not on a per capita basis. The court also that the jury should have been permitted to consider evidence of any settlements that the Roveranos had received from bankrupt entities in connection with such apportionment.[ii]
Specifically, the Superior Court held that the trial court erred in holding that the Fair Share Act did not apply to the case, as the plain language of the Fair Share Act explicitly applies to tort cases where “recovery is allowed against more than one person, including actions for strict liability.”[iii][iv] The Superior Court commented that nothing in the statute made an exception for strict liability cases involving asbestos, though it did contain several other exceptions for specific types of tort actions. The Superior Court noted that “by explicitly making strictly liable joint tortfeasors subject to the same liability allocation section as that applicable to negligent joint tortfeasors, the Legislature made clear that it intended for liability to be allocated in the same way for each.” Prior to the enactment of the Fair Share Act, under Pennsylvania’s Comparative Negligence Act, only negligence claims received a percentage determination by the jury and liability among strictly liable joint tortfeasors was calculated on a per capita basis.[v] According to the Superior Court, the act changed this, and made percentage apportionment applicable to both negligence and strict liability claims.
The Superior Court further held that with regard to the inclusion of bankrupt entities on the verdict sheet, the plan language of Section 7102(a.2) of the Fair Share Act contains no language excepting settled entities who are bankrupt, and rather refers to “any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party.”[vi] Thus, they jury should have been permitted to consider evidence of the Roveranos settlements with various bankrupt entities when they apportioned liability on the verdict sheet.[vii]
The Roveranos appealed the Superior Court’s decision, which was granted by the Pennsylvania Supreme Court in July 2018 on these two issues.
With regard to the jury’s apportionment of liability on a percentage basis, the Supreme Court disagreed with the Superior Court, holding that Pennsylvania common law requires equal apportionment among joint tortfeasors in strict liability actions, reasoning that strict liability actions do not contain any element of fault, unlike negligence actions where liability can be apportioned based on the notion of comparative fault.[viii] The court opined that it would be improper to introduce concepts of fault in the damage-apportionment process of a strict liability case, because according to the theory of strict liability, each defendant is entirely legally responsible for the plaintiff’s injury. The court concluded that the plain language of the Fair Share Act did not preempt this common law holding. However, even if it did, the concept of percentage apportionment in asbestos cases would be impossible of execution because “lung cancer resulting from asbestos inhalation is a single, indivisible injury that is incapable of being apportioned in a rational manner because the individual contributions to the plaintiff’s total dose of asbestos are impossible to determine.”[ix]
The court noted that the plaintiffs and defense experts in the Roverano matter agreed that there was no scientific basis to determine which asbestos-containing product caused Roverano’s lung cancer, but that all of the exposures combined to cause the lung cancer, and Roverano’s exposure to each product increased his cumulative dose. As such, interpreting the Fair Share Act as requiring the jury to engage in percentage apportionment in Roverano would have been unreasonable and impossible of execution—a result that the legislature did not intend.
With regard to the inclusion of settled and bankrupt entities on the verdict sheet, the court affirmed the Superior Court’s decision, holding that “bankruptcy trusts that are joined as third-party defendants, or that have entered into a release with the plaintiff may be included on the verdict sheet upon submission of ‘appropriate requests and proofs.’” Prior to trial, John Crane had joined the Manville Personal Injury Settlement Trust (Manville) as an additional defendant for the sole purpose of allocating liability to Manville. The Roveranos had also obtained payments from six different bankruptcy trusts and entered into releases with same. The Supreme Court held that under the plain language of Section 7102(a.2), which contemplates apportioning liability to defendants and any “non-party ‘who has entered into a release with the plaintiff with respect to the action,’” the question of liability of those bankrupt entities should have been submitted to the jury.
Concurring and Dissenting Opinions
In a concurring opinion, Justice Wecht expounded upon the majority’s position that the Legislature did not intend to abrogate the common law rule with regard to apportionment in strict liability cases: “But in providing that strict liability would apply to defendants severally rather than jointly, the General Assembly neither said not clearly implied that it intended to displace per capita apportionment in strict liability cases.”[x] As with the majority, Justice Wecht agreed that apportionment in strict liability should not take fault into account. He also agreed that there is no way to apportion relative liability in asbestos cases.
Chief Justice Saylor also wrote a separate opinion to join in the majority’s position on the bankruptcy trust issue. However, he dissented with regard to the apportionment issue. He disagreed that the Legislature did not intend to only abrogate joint and several liability with regard to strict liability claims, as it included the phrase “including actions for strict liability” in the subsection (a.1)(1) of the Fair Share Act, which deals with apportionment of liability. He also disagreed that comparative apportionment of liability is impossible in asbestos cases, as “courts have come to accept abstract assessments of increased risk as proxies for traditional substantial-factor causation.”[xi] Justice Saylor added that “the majority’s analysis appears to overlook that apportionment assessments are generally imprecise ones in many contexts, but they are nevertheless routinely entrusted to jurors,” citing the fact that courts around the country engage in percentage apportionment of liability in asbestos cases.[xii]
Analysis and Commentary
The court’s decision will have an impact on both trial and pre-trial practice in asbestos litigation in Pennsylvania.
To begin, the court’s conclusion that apportionment of liability in asbestos cases would be “impossible of execution” is troublesome, as it essentially endorses the “each and every exposure” theory which has previously been rejected in Pennsylvania.[xiii] That is, the court has previously held that a plaintiff who was exposed to asbestos from more than one product must establish that his or her exposure to each defendant’s product was frequent, regular, and proximate.[xiv] The frequency, regularity, and proximity test by definition requires the jury or fact finder to specifically focus on the “precise nature of the plaintiff’s exposure to the defendant’s product,” separating out any others, which suggests that it is not impossible to determine individual contributions to the plaintiff’s total dose of asbestos exposure.[xv] Reconciling the court’s decision in Roverano against the backdrop of the court’s causation jurisprudence is sure to be problematic for both sides of the bar.
Similarly, the court’s decision significantly diminishes the importance (or necessity) of asserting the common fiber-type defense in asbestos cases. The frequently employed pre-trial discovery strategy used by chrysotile defendants which involves searching for a plaintiff’s alternate exposure to amphibole fibers or seeking to target those manufacturers of amphibole-containing products will have a diminished effect at trial since all strict liability defendants appearing on the verdict sheet will be apportioned the same share of liability. Conversely, a defendant who has been previously targeted as a manufacturer of amphibole-containing products may endorse the court’s decision, as it effectively eliminates a “target” defendant or product, and can be interpreted as holding that all asbestos exposures are equal with regard to apportionment of liability―regardless of the type or amount of exposure.
Interpretation of the court’s decision in practice will prove further challenging. In reality, a great number of Pennsylvania asbestos cases involve claims in both strict liability and negligence. As Pennsylvania law allows a plaintiff to bring an asbestos personal injury action against his or her employer based on claims of negligence, and premises owners are frequently sued in asbestos cases on negligence theories, the court’s decision provides no guidance as to how a jury or fact finder would apportion liability in a case involving both types of claims. The court holds that liability must be apportioned equally among strictly liable joint tortfeasors, but acknowledges that in negligence actions “liability is allocated among joint tortfeasors according to percentages of comparative fault.” This begs the question of how a verdict sheet is to be tailored to allow the jury or fact finder to assess percentages of comparative fault to certain defendants (e.g., employers and premises owners), while guaranteeing per capita apportionment to others (e.g., product manufacturers and suppliers).
Finally, with regard to pre-trial strategy, the court’s decision dictates that the greater number of entities appearing on the verdict sheet, the lower each individual defendant’s percentage allocation of liability. We should expect to see a shift in pre-trial strategy from both sides of the litigation. We may see plaintiffs attempting to limit the number of entities from which they seek to recover, in an attempt to ensure that their limited “new target” defendants receive apportionment of a significant percentage of liability at trial, the threat of which could also provide considerable leverage during settlement negotiations. For instance, a plaintiff pursuing just four defendants will argue that each defendant faces a trial risk of 25 percent of the total verdict, all else aside. We may also see a decrease in the number of bankruptcy trust filings from plaintiffs, as there is no question that those entities will appear as equal shares on the verdict sheet, assuming the appropriate requests and proofs.
We should also see defense counsel making every attempt to increase the number of potential joint tortfeasors and entities on the verdict sheet. This will be done through the use of depositions and other discovery devices, and the use of joinder or third-party practice. Defendants may have a clearer prediction of their estimated liability. For example, if a defendant is confident that it can get at least 20 entities, whether viable or bankrupt on the verdict sheet through admissible evidence, it can also be confident that its liability will be assessed at 5 percent.
The Roverano decision has greatly disturbed how asbestos litigation in Pennsylvania operates, and the effects will be significant for both plaintiffs and the defense. Since the passage of the Fair Share Act―with its clear language as to “including actions for strict liability”―all defendants in asbestos litigation in the Commonwealth of Pennsylvania have focused on their apportioned liability. As noted above, this decision now protects a defendant who should bear most of the liability at the expense of the minimally identified defendant, whose mention barely satisfies the prima facie proof requirements. In dicta, the decision also appears to point to an abrogation of the rule against “each and every fiber” as a theory of causation. In claiming that asbestos diseases are incapable of apportionment, the majority ignores the science of dose; the body’s defense mechanisms; fiber-type; a myriad of medical and scientific studies; and most importantly, the role of juries in these and other cases. For defendants, this decision is unfortunate, unsettling, and an undoing of a fairer, common sense approach.