Upcoming Developments in Asbestos Litigation — in Pennsylvania and Nationally

With 2019 now in its second month, there are a number of imminent developments on which members of the asbestos bar should keep an eye. While this post will primarily focus on litigation in Philadelphia and Pennsylvania, it touches on one national topic as well. The following is a summary of four important pending events:

First Talc Trial in Philadelphia

Trial of the first talc mesothelioma case in the Philadelphia Court of Common Pleas begins this week. The plaintiff alleges the decedent, Sally Brandt, developed mesothelioma from her use of Colgate-Palmolive’s Cashmere Bouquet product. There have been numerous pre-trial rulings, with several significant decisions issued in regard to expert testimony. In September 2017, the trial court struck two of the plaintiff’s experts from testifying at trial based on their deviation from standard testing procedures. On February 5, 2019, the trial judge granted Colgate-Palmolive’s Motion to Preclude Plaintiff’s expert from testifying about a report prepared by another expert. The case will primarily rest on causation, with a central focus on the Pennsylvania Supreme Court’s 2012 ruling in Betz v. Pneumo-Abex, that an expert cannot opine that each and every exposure to asbestos was a substantial causative factor of the disease.

Bare Metal Defense

In October 2018, the U.S. Supreme Court heard argument in Air & Liquid Systems Corp. v. Devries. That case addresses the Third Circuit’s ruling that the bare metal defense does not apply to negligence claims under maritime law. As summarized by this blog, the Justices posed wide-ranging questions that addressed bedrock principles of tort law. A decision from the Supreme Court will likely be issued in the immediate future. If the court affirms the Third Circuit, it could do so on narrow grounds that only address maritime claims, or it could broaden the holding and eradicate the bare metal defense nationwide.

Pennsylvania’s Application of the Fair Share Act

On March 6, 2019, the Pennsylvania Supreme Court will hear argument in the Roverano matter, in which it will address application of Pennsylvania’s Fair Share Act in asbestos litigation. As discussed here, the Supreme Court will address whether a defendant’s liability should be determined on a percentage basis, as opposed to a per capita basis. Perhaps more importantly, the Supreme Court will also address whether bankrupt entities who have entered into settlements can be placed on the verdict sheet. Both rulings will have a significant impact on asbestos litigation in Pennsylvania.

Personal Jurisdiction in Pennsylvania

While this issue pertains to civil litigation in Pennsylvania generally, and not just asbestos litigation, the Superior Court’s pending en banc review of its September 2018 decision in Murray v. American LaFrance, is a very important upcoming decision. In Murray, a three judge panel of the Superior Court ruled that registering as a foreign corporation in Pennsylvania equates to consent to general jurisdiction in the state, under Pennsylvania’s long-arm statute. In accepting en banc review, the court withdrew its prior decision. The case has not yet been scheduled for argument, but the Superior Court’s ruling will have a significant impact on asbestos litigation in Pennsylvania in those instances where exposure took place out of state.