Unfair Sharing: Pennsylvania Supreme Court Rules Damages Should Be Apportioned on a Per Capita Basis in Strict Liability Asbestos Cases

On February 19, 2020, the Pennsylvania Supreme Court issued an opinion in Roverano v. John Crane, Inc., 226 A.3d 526 (Pa. 2020), where it was faced with the question of whether the Fair Share Act, 42 Pa.C.S. § 7102, applies to strict liability asbestos cases. In short, the Fair Share Act requires a jury to allocate liability to each defendant depending upon their respective percentage of liability. Historically, Pennsylvania courts have apportioned damages in strict product liability cases on a per capita—or equal—basis amongst liable tortfeasors.

Mr. Roverano worked for PECO Energy Company and was exposed to numerous asbestos products from 1971 to 1981 in the course of his employment. In November 2013, Mr. Roverano learned that he had lung cancer. On March 10, 2014, he and his wife filed a complaint against 30 defendants, alleging their products exposed him to asbestos and the exposure caused his lung cancer. Prior to trial, several defendants filed a motion in limine, seeking a ruling that the Fair Share Act applies to strict liability asbestos cases. The trial court denied this motion, concluding that asbestos exposure could not be quantified, and ruled that liability would be apportioned on a per capita basis.

Hajoca Corporation also filed motion in limine, seeking to list on the verdict sheet the 14 asbestos bankruptcy trusts with which the Roveranos filed applications for compensation. Similarly, the Roveranos filed a motion in limine to exclude from the verdict sheet the third-party bankrupt entities with which they had not settled and entered into a release. The trial court granted the Roveranos’ motion in limine, explaining that the entities had filed for bankruptcy prior to the lawsuit and to include them on the verdict sheet would be unfair. Following a jury award of over $6 million, the trial court apportioned judgment equally among the defendants.

Two defendants, John Crane, Inc. and Brand Insulation, Inc., filed post-trial motions, arguing the Fair Share Act requires the jury to apportion liability on a percentage basis and that the bankrupt entities should have been included on the verdict sheet.

On appeal, the Pennsylvania Superior Court held that the Fair Share Act applies to strict liability asbestos cases and the jury should have apportioned liability to each defendant based upon the percentage of harm each defendant caused Mr. Roverano. Additionally, the Superior Court concluded that the jury should consider evidence of any settlements the Roveranos made with bankrupt entities in crafting a jury award.

On appeal to the Pennsylvania Supreme Court, the Supreme Court reversed the Superior Court decision and held that liability should be apportioned on a per capita basis in strict liability asbestos cases. The Supreme Court found that the Fair Share Act does not preempt Pennsylvania common law favoring per capita apportionment. The court reasoned that, unlike negligence lawsuits, strict product liability cases do not contain an element of “fault.” Thus, it would be improper to engage in damage-apportionment in strict liability cases because each defendant is legally responsible for the plaintiff’s injury.

The Supreme Court also determined that the trial court improperly excluded liable bankruptcy trusts. Thus, the bankrupt entities that entered into a release with the plaintiffs should have been included on the verdict sheet. The court reasoned that the defendants would be disproportionately held liable if the jury was not allowed to consider bankrupt entities on the verdict sheet. The court remanded the case for a new trial on apportionment, along with instructions to consider whether the parties submitted sufficient requests and proofs to apportion liability to settled bankruptcy trusts.

The Supreme Court’s holding in Roverano makes clear that defendants found liable in strict product liability cases will pay an equal share of a damage award, even if they have minimal liability. A minimally liable defendant will be apportioned damages equal to the defendants causing the most harm to the plaintiff. Defendants will need to be advised of this issue. This will make case development and planning much more difficult. Furthermore, identifying and joining every conceivable defendant to a strict product liability lawsuit is vitally important to increase the number of defendants on a potential verdict sheet. The more defendants on a verdict sheet will increase the number of potentially liable parties and could have the effect of decreasing the per capita share apportioned to each liable party.

Litigants will have to wait and see how courts apply Roverano and the impact it will have on non-asbestos strict liability cases.

*Garrett is an associate in our Philadelphia, Pennsylvania office. He can be reached at 215.575.4551 or gagittler@mdwcg.com.

_{Defense Digest, Vol. 26, No. 2, June 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}