Under the Fair Share Act: Pennsylvania Asbestos Liability Share will be Allocated Per Capita

Supreme Court, Eastern District of Pennsylvania, February 19, 2020

The Trial Court

PENNSYLVANIA – The plaintiffs, William Roverano and Jacqueline Roverano, filed an asbestos-related lawsuit on March 10, 2014 in the Court of Common Pleas of Philadelphia County. The plaintiffs alleged that William Roverano contracted lung cancer as a result of his exposure to asbestos-containing products during his employment as a helper and a carpenter at PECO Energy Company from 1971 to 1981. On Jan. 7, 2016, the defendant, John Crane, Inc. filed a third-party complaint joining the Johns-Manville/Manville Personal Injury Trust as a defendant.

Prior to the start of trial, the defendants filed motions in limine: (1) seeking to apply the Fair Share Act, 42 Pa.C.S. Section 7102, which the defendants argued required the jury to allocate a percentage of liability to each defendant depending on their share of harm to Roverano, and (2) seeking to list the asbestos bankruptcy trusts which the plaintiffs sought compensation from on the verdict sheet. The plaintiffs opposed both motions and filed a motion in limine to exclude from the verdict sheet bankrupt entities with which the plaintiffs had not settled and entered into a release. The trial court denied the defendants’ motions and granted the plaintiffs’ motion.

At the time of trial on April 5, 2016, two defendants, Crane and Brand Insulations Inc., remained. The plaintiffs’ experts at trial argued that each defendants’ products were substantial contributing factors to Roverano’s lung cancer. They further stated, and the defendants’ experts conceded on cross-examination, that individual exposures cannot be separated and there is no way to determine which asbestos-containing product caused an asbestos-disease, but that all the products combine to cause the disease.

On April 13, 2016, the jury returned a verdict in favor of the plaintiffs, awarding a total of $5,189,265.14 to William Roverano and $1.25M to Jacqueline Roverano, to be apportioned equally among the two remaining defendants, Crane and Brand, in addition to six settled defendants. Crane and Brand filed post-trial motions: (1) seeking to apply the Fair Share Act requiring liability to be apportioned on a percentage basis among the eight defendants and (2) seeking to have Johns-Manville/ Manville Personal Injury Trust included on the verdict sheet as a third-party defendant, and also, seeking to have the compensation the plaintiffs received from the bankruptcy trusts included as a set-off of the awarded verdict. The trial court denied the defendants’ motions and the judgment was divided equally (i.e. per capita) among the eight defendants.

The Superior Court Appeal

The defendants appealed the trial court’s ruling to the Pennsylvania Superior Court on several factors. Relevant to the current appeal, the Superior Court held that the Fair Share Act does apply to strict liability cases such as the one filed by the plaintiffs, and in doing so, replaces per capita apportionment with percentage allocation, as the defendants argued. Additionally, the Superior Court found that any settlements that the plaintiffs received from bankrupt entities should be considered for apportionment purposes on the verdict sheet.

The Supreme Court Appeal

The Supreme Court granted the plaintiffs’ petition for allowance of appeal to consider two questions: (1) Whether the Superior Court misinterpreted the Fair Share Act in holding that the Act requires the jury to apportion liability on a percentage basis as opposed to a per capita basis in this strict liability asbestos case and (2) Whether the Superior Court misinterpreted the Fair Share Act in holding that the Act requires the jury to consider evidence of any settlements by the plaintiffs with bankrupt entities in connection with the apportionment of liability amongst joint tortfeasors.  The court’s standard of review is de novo and the scope of review is plenary.

The Supreme Court initially explained that legislature intent is key in interpreting statutes. Often, the best indication of intent is the plain language of the statute. The court further explained that one must consider statutory language in context and give words and phrases their common and approved usage. Only if the statute is ambiguous does the court resort to other means of discerning legislative intent.

With that in mind, the plaintiffs argued that the language of the act, while clearly applicable in strict liability multi-defendant cases, does not explicitly provide how damages are to be apportioned in such cases. The plaintiffs, therefore, maintained that Pennsylvania case law, which has unequivocally established that apportionment by fault (i.e. percentage) is prohibited in strict liability cases, applies. They further argued that any percentage apportionment of fault would be impractical since it is not possible to parse out each individual exposure to asbestos.

The defendants contended that both the plain language of the act and the legislative history require liability to be apportioned on a percentage basis in strict liability cases. The defendants claimed that by including actions for strict liability in the language of the act, the act’s apportionment of damages applies to those actions and the use of the term ‘ratio’ in the Act’s description of damages requires quantifying the amount of each defendant’s liability in strict liability cases referenced. They further argued that the plaintiffs are incorrect in applying Pennsylvania case law instead of the act, stating that any prior case law should be resolved by the language of the act taking precedence.

The Supreme Court agreed with the plaintiffs, first finding that the act does not take precedence over or preempt case law, citing In Re Rodriguez, the legislature must affirmatively repeal existing law or specifically preempt accepted common law for prior law to be disregarded.[i] The court states in strict liability cases, each defendant is ‘wholly liable’ for the harm. Walton, 610 A.2d at 462. As such, any one defendant is 100 percent liable. Accordingly, in Pennsylvania strict liability cases, the liability must be equally apportioned among all joint tortfeasors. The court found that the act does not change this.

Additionally, the court explained that any percentage apportionment is futile, since the injury suffered in asbestos-related actions 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. On the first question for appeal, the court reversed the Superior Court.

As for the second question on appeal, the plaintiffs argued that current Pennsylvania case law prohibits the apportionment of liability to bankrupt entities and, since the act does not explicitly identify bankrupt entities, it must mean the legislature did not intend to include them now. They also contend that such apportionment conflicts with the Uniform Contribution Among Tortfeasors Act (UCATA) and public policy.

While the defendants acknowledge that the act does not specifically state the word bankruptcy, they contend that the plain language of the act does support the position that the act requires the jury to consider the liability of non-party tortfeasors, regardless of whether or not the entities are bankrupt. Further, any argument that including bankrupt entities for apportionment purposes conflicts with UCATA is flawed. The defendants argue that “under the Fair Share Act…Section 7102(a.2) expressly provides that the inclusion of non-parties on the verdict sheet is ‘for purposes of apportioning labiality only’ and ‘is not admissible or relied upon in any other action or proceeding for any purpose.’” Therefore, the bankrupt entities are not be subject to liability.

On this issue, the court found that “bankruptcy trusts joined as Third-Party Defendants or that have entered into a release with Plaintiff may be included on the verdict sheet upon submission of ‘appropriate requests and proofs.’” The court found that Section 7102(a.2) of the act contemplates apportioning liability to two entities: the defendants or any non-party who has entered into a release with plaintiff with respect to the action. Here, the court stated that the trial court erred in not listing Johns Manville/Manville Personal Injury Trust, as a third-party defendant, on the verdict sheet. The court also found error in the trial court’s denial of the defendants’ motion in limine to include settled bankruptcy trusts on the verdict sheet. On the second question for appeal, the court affirmed the Superior Court.

Read the case decision here.

[i] 900 A.2d 341, 344 (Pa. 2003).