Superior Court Affirms Five Post-Trial Rulings, Remands to Trial Court for Apportionment Under Pennsylvania Fair Share Act Superior Court of Pennsylvania, December 28, 2017

PENNSYLVANIA — Appellee William Roverano initially filed suit in 2014 against multiple defendants, alleging that his lung cancer was caused by exposure to asbestos while employed by PECO between 1971-81. Appellee Jacqueline Roverano also made a claim for loss of consortium. More than a dozen of the named defendants had filed for bankruptcy, and only John Crane, Inc. and Brand Insulations, Inc. had not settled before the jury’s verdict. Prior to the trial, the court held that the Fair Share Act, 42 Pa.C.S. Section 7102, did not apply to asbestos cases.

At trial, the appellants focused on Roverano’s history of smoking and further argued that any exposure to their products was de minimus and could not have caused his lung cancer. Conversely, the appellees’ experts opined that it was both smoking and exposure to the appellants’ products that caused his lung cancer. The jury returned a verdict in favor of Mr. and Mrs. Roverano and against six of the eight other defendants. The jury awarded $5,189,265 to Mr. Roverano and $1,250,000 to Mrs. Roverano.

The appellants filed separate motions for Post-Trial Relief, which were categorically denied. The trial court apportioned the judgment equally among the eight defendants whom the jury determined to be tortfeasors. In particular, the court entered separate judgments against Crane and Brand in the amount of $648,858 plus $29,604 for delay damages to Mr. Roverano and $156,250 for Mrs. Roverano.

The appellants filed timely appeals with largely overlapping issues. First, “the trial erred in defining ‘factual cause’ in its instruction to the jury and in response to a written question from the jury.” Second, “the trial court erred by denying Appellant Crane’s proposed Verdict Form that addressed whether Roverano’s injuries were caused by exposure to asbestos, or, as Appellant Crane maintains, smoking.” Third, “the trial court erred by failing to provide the jury a Verdict Form that allowed them to determine whether Appellant Crane’s packing was defective in the absence of a warning.” Fourth, “the trial court erred by allowing Roveranos’ experts to offer ‘each and every’ or ‘whatever’ asbestos exposure causation testimony in a case where Roverano did not have mesothelioma, asbestosis, or any other medical marker of asbestos exposure. Fifth, “the trial court erred when it refused to mold the verdict to account for named-defendants Georgia Pacific Cement and Hajoca Corporation.” Sixth, the trial court erred in failing to apply the Fair Share Act.

The standard of review on appeal in Pennsylvania is a “clear abuse of discretion or an error of law that controls the case.” The review is de novo and the scope of the review is plenary. The appellants first argue that the “law requires a ‘but for’ causation standard for the definition of factual [causation], which was an error of law that controlled the outcome of the case.” The trial court has “wide latitude in its choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law.” The court held that the trial court in the instant case properly rejected the appellant’s request for a “but for causation” jury charge. The Pennsylvania Supreme Court has clearly rejected such a standard for causation and requires, when addressing a situation in which a plaintiff is exposed to more than one asbestos-containing product, that the jury determine whether the plaintiff’s exposure to each defendant’s product was “frequent, regular, and proximate” to determine whether such exposure was a substantial factor in causing the plaintiff’s injury. The court instructed the jury that Mr. Roverano must establish that his exposure was frequent, regular, and proximate and such exposure was a substantial cause of plaintiff’s lung case; by doing so, the trial court “fully and adequately convey[ed] the applicable law.”

Next, appellant Crane argued that a principal theory of their defense “was that Mr. Roverano’s lung cancer was not caused by his exposure to asbestos at all; rather [the cancer], along with his emphysema and COPD, was caused by his extensive smoking history.” By denying a specific question on the Verdict Sheet reflecting this theory, Crane stated, the trial court precluded Crane from presenting this theory to the jury. The court held that “the purpose of the Verdict Sheet is to provide a general guidepost to the jury of the general issues the jury must decide. It is not to reflect either party’s specific theories.” The second question about factual cause, “[W]ere the asbestos products manufactured, distributed, or supplied by John Crane, Inc. a factual cause in bring(sic) about the plaintiff’s lung cancer,” required the jury to consider whether it was smoking that caused Mr. Roverano’s lung cancer and therefore the trial court did not abuse its discretion in excluding the appellant’s request.

Crane contended that the trial court erred by failing to provide the jury with a question on the Verdict Sheet asking the jury whether Crane’s asbestos products were “unreasonably dangerous” and thus, defective. The trial court rejected Crane’s request because “the issue in this case was one of exposure and causation, not an issue of the defect of a product.” Neither appellant disputed that their products contained asbestos without proper warnings, and therefore the question about defect was irrelevant.

Fourth, Crane argued that the trial court erred by allowing Roveranos’ experts to offer evidence that “each and every” or “whatever” asbestos exposure caused Mr. Roverano’s injury where Mr. Roverano did not have mesothelioma, asbestosis, or any other market of asbestos exposure. The court disagreed with Crane’s assessment, stating that the Roveranos’ experts did not testify that it was a single exposure to the appellants’ products that caused Mr. Roverano’s lung cancer, but rather it was multiple exposures that were a substantial factor in causing Roverano’s lung cancer.

Fifth, Georgia Pacific Cement and Hajoca were both included on the Verdict Sheet, and the jury was specifically instructed to determine whether either named defendant “manufactured, distributed, or supplied” products which “were factual causes in bringing about Plaintiff’s lung cancer.” The jury found that both parties were not liable for the harm to the plaintiff, and therefore the trial court did not error in refusing to mold the verdict to include them.

Lastly, the appellants contend that the trial court erred as a matter of law by refusing to apply the Fair Share Act simply because the cases involves exposure to asbestos. Generally, a statute’s plain language provides the best indication of legislative intent. The court will look beyond the plain language of a statute only when the words are unclear or ambiguous, or the plain meaning would lead to “a result that is absurd, impossible of execution or unreasonable.” Therefore, when ascertaining the meaning of a statute, if the language is clear, the court gives the words their plain and ordinary meaning.

The Fair Share Act applies to claims that accrued after June 28, 2011, and the parties agreed that the Roveranos’ claims did not accrue before that time. The Act states that, apart from a limited class of excepted cases, “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” The Act also makes several adjustments to the rules for allocating liability among joint tortfeasors. The principal question, which is an issue of first impression for this court, is whether, and to what extent, the Act changed the way to allocate liability among strictly liable joint tortfeasors. The trial court held that it properly denied Appellants’ motion to apply the Fair Share Act because “the jury was not presented with evidence that would permit an apportionment to be made.”

The appellate court held that the trial court erred in not applying the Fair Share Act. This case “was an action to hold Appellants strictly liable in tort for injuries allegedly caused by asbestos-containing products that they made or distributed, and the Fair Share Act explicitly applies to tort cases in which ‘recovery is allowed against more than one person, including actions for strict liability.’” The court additionally stated that “[N]nothing in the statute makes an exception for strict liability cases involving asbestos.” The Act only excepts four specific kinds of tort actions — intentional misrepresentation, other intentional torts, certain environmental cases, and dram shop actions — and cases involving asbestos are not among the exceptions. The legislative history of the statute, along with the plain language, indicate the Legislature’s intention to have a fact-finder allocate liability among joint tortfeasors in all types of cases, including strict liability cases.

The court also determined that the jury, on remand, must be permitted to consider evidence of any settlements by the Roveranos with bankrupt entities in connection with the apportionment of liability. Under Section 7102(a.1)(1) of the Act, the “settling party’s liability is included in the ‘amount of liability attributed to all defendants and other person to whom liability is apportioned under subsection (a.2)’ for purposes of allocating liability among the joint tortfeasors. Importantly, the provisions require that settlements with bankrupt entities be included in the calculation of allocated liability under the statute; no exception exists for bankrupt entities in the plain language.

Ultimately, the court affirmed Post-Trial Motions in all respects other than the portion dealing with the Fair Share Act; such portion of the Order was reversed. The case was remanded for a new trial to apportion the jury verdicts among the Appellants, the non-bankrupt settling defendants (excluding Georgia Pacific Cement and Hajoca because the jury determined that they were not tortfeasors) and bankrupt settling defendants.

Read the full decision here.

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