Roverano is the first time a Pennsylvania appellate court has considered whether the Fair Share Act applies to strict-liability claims arising from alleged asbestos exposure. On appeal, the Superior Court held that there is no exception to the Fair Share Act for asbestos or other strict-liability cases and remanded for a new trial on allocation of liability.

In Roverano v. John Crane, Inc., 2017 PA Super 415 (Dec. 28, 2017), the Pennsylvania Superior Court confirmed that Pennsylvania’s Fair Share Act, which prescribes how liability is allocated among multiple defendants, applies to strict-liability personal injury claims arising from asbestos exposure. [Note: Duane Morris was retained as appellate counsel and briefed and argued the appeal for one of the prevailing parties.] This is an important result for defendants in asbestos and products liability litigation throughout Pennsylvania.

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 rules on comparative negligence. It applies to claims that accrued after June 28, 2011. Among other things, it provides that:

  • In multiple defendant cases, each defendant is liable only for its share of the total liability;
  • Except for certain types of cases, or where a defendant has been held liable for at least 60 percent of the total liability, defendants are subject to several instead of joint liability; and
  • In apportioning liability, the finder of fact shall receive evidence of the liability of a defendant or nonparty who has settled with the plaintiff.

The Trial Court’s Refusal to Apply the Fair Share Act

The plaintiff in Roverano claimed to have been exposed to a variety of asbestos products at his workplace from 1971 to 1981. He was also a long-time smoker. In 2013, he was diagnosed with lung cancer. He asserted strict-liability personal injury claims against 30 defendants, claiming that their asbestos-containing products caused his cancer. The case proceeded to trial, and by the time the jury reached a verdict, only two defendants remained.

The jury was asked to determine whether those two defendants, as well as several other entities that had been identified as potential suppliers or manufacturers of asbestos to which the plaintiff was exposed, were factual causes of the plaintiff’s disease. The trial court refused to have the jury apportion liability among the parties. Despite the requirements of the Fair Share Act, the trial court denied defendants’ request because “all of the testimony I’ve ever heard in asbestos, no one quantifies [the defendants’ relative liability]. They say that you can’t quantify it. If you can’t quantify it, how can the Fair Share Act apply?” The trial court also refused to include on the verdict sheet several bankrupt entities that had settled with the plaintiff.

The jury returned a verdict for the plaintiff, and the trial court entered judgment against the two remaining defendants based on their per capita share of liability, i.e., because the jury found that six of the eight entities on the verdict sheet had caused plaintiff’s injury, the trial judge entered judgment against each remaining defendant for one-sixth of the total verdict.

The Superior Court Decision

Roverano is the first time a Pennsylvania appellate court has considered whether the Fair Share Act applies to strict-liability claims arising from alleged asbestos exposure. On appeal, the Superior Court held that there is no exception to the Fair Share Act for asbestos or other strict-liability cases and remanded for a new trial on allocation of liability.

The Superior Court observed that “[n]othing in the [Fair Share Act] makes an exception for strict liability cases involving asbestos.” It also rejected the plaintiff’s argument that the only effect of the Fair Share Act was to impose several, rather than joint, liability and not to change how liability is apportioned. Accordingly, the trial court erred in not having the jury apportion liability among the defendants.

The Superior Court also interpreted the Fair Share Act to require that “the jury on remand must be permitted to consider evidence of any settlements… with bankrupt entities in connection with the apportionment of liability,” noting that the Fair Share Act “contains no exception for settling persons who are bankrupt.”

Effect on Future Cases

Pennsylvania trial courts have been inconsistent in applying the Fair Share Act in asbestos and other strict-liability cases. Roverano makes clear that trial courts must apply the law as written, even in asbestos cases. Following the reasoning in Roverano, defendants in multiple-defendant asbestos and other products-liability cases are entitled to have the fact-finder determine each tortfeasor’s relative liability, and in so doing to have the fact-finder consider the liability of entities that the plaintiff settled with, regardless of their bankrupt status.