Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - December 2017

Edited by Timothy D. Rau, Esquire

PA Juries Required to Allocate Fault Amongst Liable Defendants and Bankrupt Entities Under Fair Share Act  

by Timothy Rau

In a precedential opinion, the PA Superior Court has ruled that juries in asbestos cases can allocate fault amongst defendants and settled non-parties, including bankrupt entities. Roverano v. John  Crane, 2017 PA Super. 415, was an appeal from a verdict by a Philadelphia jury before Judge Victor DiNubile where the jury found that Plaintiff's lung cancer was caused by asbestos and awarded the Plaintiffs $6.4 million. 

In Roverano, the jury allocated fault amongst 8 defendants but was not permitted to consider the liability of bankrupt entities from which plaintiff recovered money through trusts nor was the jury permitted to allocate percentages of fault against defendants it found liable. On these issues, the Superior Court reversed the trial court's decision and remanded the case for a jury to allocate fault against defendants and against bankrupt entities from which Plaintiff has recovered settlement money.

After the verdict was rendered, the remaining defendants appealed the verdict alleging that the jury should have been permitted to allocate percentages of fault against defendants and certain bankrupt entities. The appellants argued that the Pennsylvania "Fair Share Act," 42 Pa. C.S. Sec. 7102 (a.1)- (a.2), allowed the jury to apportion fault amongst parties and settling non-parties while the Plaintiffs argued that the Act did not apply to strict liability asbestos cases. 

Prior to the Fair Share Act, under joint and several liability, liability in strict liability cases was rendered equally against liable defendants such that each defendant was responsible for its equal share.  Also prior to the Fair Share Act, a liable defendant could also be responsible for paying the share of another defendant if that defendant could not satisfy its share of liability to the Plaintiff.  The Fair Share Act allows the jury to  apportion fault amongst defendants and further provides that a defendant is only liable for its share regardless of whether another defendant can satisfy its share provided that the defendant is less than 60% liable.    

The trial court ruled that asbestos cases were exempted from the application of the Fair Share Act in spite of the plain language of the Act.  The Superior Court examined the statutory language as well as the legislative intent of the Act and held that there was no exemption afforded to asbestos cases.

In abolishing joint and several liability in 2011, the Fair Share Act states that defendants are only liable for their "fair share" of liability as long as they are held less than 60% liable for causing a Plaintiff's harm.  The Act explicitly states that it applies to "actions for strict liability."  In spite of the statute's clear language, Judge DiNubile refused to apply the Act at trial and instead held that each liable defendant was responsible for an equal amount of liability.

The Superior Court held that the trial court erred in its finding that the Fair Share Act did not apply to the case.  The Court concluded that "liability in strict liability cases must be allocated in the same was as in other tort cases…and that the trial court erred in holding that the jury could not apportion liability pursuant to the Fair Share Act."

The Court was also asked to consider the trial court's decision to preclude a jury finding of liability against bankrupt entities from whom the plaintiff recovered settlements through trust funds.  The Court concluded that Judge DiNubile erred in this regard and held that the jury "must be permitted to consider evidence of any settlements by the Roveranos with bankrupt entities in connection with the apportionment of liability." In support of its decision, the Court cited to the Act's language allowing apportionment of liability against "any defendant or other person who has entered into a release with the plaintiff with respect to the action…upon appropriate requests and proofs by any party."

The Court also considered several other issues but found that Judge DiNubile did not abuse his discretion in his rulings as to those issues.  Specifically, the Court found that the court's definition of "factual cause" was not inconsistent with existing case law.  The Court further held that the trial court did not err by failing to provide a verdict form that allowed the jury to determine whether the defendant's product was defective in the absence of a warning.  Also, the Court held that the trial court's decision to allow Plaintiff's expert to offer "each and every" causation testimony was not an error of law.

As a result of the Court's findings that the trial court failed to apply the Fair Share Act and allow the jury to allocate fault against defendants and settled non-parties, the case is being remanded to the trial court for a jury to consider evidence and allocate liability. 

The parties have 30 days from the date of the opinion to appeal the decision to PA's Supreme Court.  We will continue to monitor the case and provide updates in the future.          

For more information on the opinion, contact Timothy Rau in our Philadelphia office.


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