Pennsylvania Supreme Court Rules that Liability in Asbestos Cases to be Apportioned Among Multiple Defendants on Per Capita Basis

Although the Pennsylvania Fair Share Act (the “Act”), 42 Pa.C.S. § 7102, has been the law since 2011, a number of questions remain about its application.  After the recent decision from the Pennsylvania Supreme Court in Roverano v. John Crane, Inc., 190 A.3d 591 (2018) we now have an answer to the question of whether the Act requires a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions. 

In Roverano, the Court held the Act requires a jury to apportion liability on a per capita basis in strict liability asbestos cases.  The Court also remanded for a new trial finding that the lower trial court incorrectly excluded bankruptcy trusts joined as a third-party defendant or that previously entered a release with plaintiffs who may have been liable to Plaintiffs. 

Mr. Roverano, was exposed  to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and carpenter with an energy company.  In November 2013, he was diagnosed with lung cancer in both lungs. He filed a strict liability lawsuit against thirty defendants asserting that exposure to their asbestos products during his employment caused his lung cancer.  His wife also advanced a loss of consortium claim.  Prior to trial, Defendants filed a motion in limine, seeking a ruling that the Act applied to asbestos cases and required allocation of liability depending upon percentage of total harm.  The trial court denied the motion and held that it would apportion liability on a per capita basis, because asbestos exposure from individual products could not be quantified.  Defendants also filed a motion in limine seeking to list several bankruptcy trusts with which the Roveranos filed applications for compensation, arguing that pursuant to §7102(a.2) of the Act, bankrupt companies who have not yet paid a plaintiff compensation may still be listed on the verdict sheet for the sole purpose of an assessment by the jury of whether the bankrupt companies bore responsibility in the cause of the disease.  The trial court denied the defendants’ motion explaining that the entities had filed for bankruptcy before they commenced the lawsuit and including them would be prejudicial.

At trial, defendants argued Mr. Roverano’s  history of smoking caused his lung cancer and any exposure to their asbestos products was too insignificant to be a cause.  The Roveranos countered by presenting expert testimony to establish that both smoking and exposure to asbestos products caused his lung cancer.  The jury returned a verdict in favor of the Roveranos,  molding the verdicts and apportioning judgment equally, on a per capita basis, among the eight defendants found liable.  Defendants appealed the decision and argued that application of the Act requires the jury to apportion liability on a percentage basis.  Defendants also argued the trial court should have molded the verdict to reflect a set-off for compensation Roverano had or would receive from the remaining bankruptcy trusts.   

On appeal, the Superior Court entered an order which vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis.  However, this decision was subsequently reviewed by the Pennsylvania Supreme Court.

The Supreme Court concluded the Act’s plain language was consistent with per capita apportionment in asbestos cases.  In support of this finding, the Court noted  the Act does not specifically preempt Pennsylvania common law, which favors per capita apportionment. Further the Court found per capita apportionment was appropriate, because it was impossible for a jury to properly apportion liability to individual defendants on a percentage basis in asbestos cases.

The Supreme Court also determined that the trial court incorrectly excluded liable bankruptcy trusts and  remanded for a new trial on apportionment.  The Court held the Act further permits a factfinder to apportion liability to those asbestos bankruptcy trusts that have entered into releases, but were not named defendants. 

Finally, the Supreme Court remanded the matter with instructions to the trial court to consider whether the parties submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

Katie E. Pakler is an associate in our Western PA Office.  Katie  has experience in various areas of the law, with a concentration on litigation, health care and professional liability.  Katie has a wealth of experience in dealing with the Centers for Medicare and Medicaid services.  She also has experience handling issues under the Emergency Medical Treatment and Active Labor Act, the Joint Commission Standards, and state law, including the state peer review privilege.  Katie has counseled physician clients regarding claims of negligent credentialing and medical malpractice.  Katie has also collaborated with hospitals and medical groups to draft medical staff documents, peer review manuals and other policies and procedures. Katie may be contacted at kpakler@defensecounsel.com.