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Legal Updates for Toxic Torts Litigation - June 2014

June 1, 2014

Edited by Timothy Rau, Esquire

Philly Judge Rules Jury Not Permitted to Allocate Liability in Fair Share Act Case

In a case that resulted in a defense verdict for the two defendants at trial, the proceedings were most notable for the ruling issued by Judge Webster Keogh on the applicability of the Fair Share Act to strict liability cases in allowing juries to apportion fault amongst defendants. In the case of Estate of Hogan v. John Crane, CCP August Term 2012, No. 2323, Plaintiff was seeking damages under a strict liability theory on behalf of Richard Hogan for injuries related to his lung and laryngeal cancers, which were alleged to both have been related to exposure to asbestos. Judge Keogh granted a motion filed by Plaintiff for apportionment of liability on a pro rata basis and to prohibit bankrupt entities on the verdict sheet in a case being tried in Philadelphia. The diseases were diagnosed after the enactment of Pennsylvania's Fair Share Act, 42 Pa. C.S.A.Sec. 7102, and there was no dispute between the parties that the Act was applicable.

During the course of the trial, Defendant John Crane argued that, under the Fair Share Act, the jury should be permitted to allocate percentages of fault amongst liable defendants and that the jury verdict sheet should include bankrupt companies that were identified by Mr. Hogan during his deposition. The apportionment of fault amongst defendants differs from traditional joint and several liability in Pennsylvania in which liability is allocated on a pro rata basis, in which each liable defendant is liable for an equal share of the verdict.

Plaintiff sought a ruling from the court that liability should be allocated by the jury on a pro rata basis rather than apportioning fault on a percentage basis. In the motion, Plaintiff argued that, in strict liability cases, the Fair Share Act applies only to the collectability of a verdict and does not alter the manner in which juries allocate fault amongst defendants. Under the Fair Share Act, Plaintiff submitted, liability was only amended to create several liability rather than joint and several. Under several liability, Plaintiff could not collect one defendant's unfunded share of liability from another defendant and that a Plaintiff's ability to collect judgment would be limited to the share found by the jury. Plaintiff also argued that, in asbestos cases where Plaintiff is arguing that he was exposed to multiple defendants' products and that each was a cause of the disease, apportionment of liability is impossible.

Plaintiff also sought to preclude Defendant from including bankrupt companies on the verdict sheet. Plaintiff has not received any payments from the bankruptcy trusts of the companies that Defendants sought to include.

John Crane argued that the Fair Share act clearly and unambiguously permits a jury to apportion fault amongst liable defendants. Citing to the Act and in legislative transcripts of debate on the issue, it was noted, that during debate, the intent of the Act was to insure that "a defendant only pays the share that they are causally responsible for as apportioned by the jury."

In a one-page Order, the judge granted Plaintiff's motion in whole and ruled that the jury would apportion liability on a pro rata basis , not a percentage allocation and that bankrupt entities would not be permitted on the verdict sheet.

There has been no ruling from the PA appellate court on whether the Fair Share Act allows a jury to apportion fault amongst defendants in a strict liability case.

Ultimately, the jury found that the defendants at trial, John Crane and Brand Insulation, had no liability in causing Mr. Hogan's diseases but found against settled defendant Owens Illinois. The jury awarded damages in the amount of $93,000, which was the amount of the medical bills which were submitted to the jury.

We will continue to monitor the case in the event that an appeal is filed and the apportionment issue is raised with the Superior court.

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