Roverano v. John Crane, 2017 Pa. Super. LEXIS 1110 (December 28, 2017) (per curiam). This was an asbestos case in which the Superior Court affirmed in part, reversed in part and remanded for new trial to apportion damages among tortfeasors. William Roverano was employed at PECO from 1971 until his retirement in 2001. He developed lung cancer. Many of the defendants filed for bankruptcy. All of the defendants except the two that went to trial settled prior to the jury verdict. The plaintiffs’ experts said that it was both the smoking and exposure to products that caused lung cancer. The jury returned a verdict for Mr. Roverano and his wife. The court apportioned the judgment equally among the 8 defendants whom the jury determined to be tortfeasors. This resulted in a separate entry of judgment against the two remaining defendants for a reduced amount.
- 1. The court properly charged on factual cause. The Court did not specifically refer to the Standard Jury Instruction, but that is what was approved. The court rejected defendant’s request for a “but for causation” jury charge. The Pennsylvania Supreme Court has clearly rejected such a standard. In an asbestos case, the question is plaintiff’s exposure to each product and whether it was “frequent, regular and proximate” to determine whether such exposure was a substantial factor. In finding factual cause, the court was correct to charge that a factual cause is a “actual real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or factor having no connection or only an insignificant connection….” That was appropriate.
- 2. It was proper for the Court not to put a specific question on smoking. If they found “no” factual cause, that was probably the smoking issue.
- 3. Unreasonably dangerous question on the verdict slip. The verdict slip did not need to use that language.
- 4. Fair Share Act. The case was reversed and remanded because the Court refused to charge on the Fair Share Act. Those who are not liable should not be included in a jury determination apportioning damages among tortfeasors. Application of the Fair Share Act in strict liability cases involving asbestos exposure is a matter of first impression. The court says the Act does apply. Damages are to be allocated in proportion to the degree of fault, including in strict liability actions. That is a change in the law. Joint and several only applies where one party is found to be 60% or more responsible. This essentially eliminates joint and several liability. Each defendant is liable for that proportion of the total dollar amount awarded in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned. Plaintiffs argued that liability among strict liable joint tortfeasors is to be apportioned on a per capita basis. The court disagreed. The fact that the Fair Share Act does not explicitly say how to allocate liability among strictly liable joint tortfeasors just means that the statute is ambiguous. The statute is silent on the manner of calculating the ratio for all kinds of tort cases, not just strict liability cases. The legislature intended that the allocation method applicable to negligence cases was merely expanded to apply to strict liability cases also. In addition, the amount of causal negligence is attributed to all defendants and other persons to whom liability is apportioned. If a defendant is held liable for more than 60% of the liability in the case, joint and several liability applies to that defendant, except where there are exceptions. This particular exception assures that those defendants who are substantially responsible for a plaintiff’s injury will have to account for the full amount of plaintiff’s harm. But if liability in a strict liability case is per capita, it is mathematically impossible for any of those defendants to reach the 60% threshold: with just two defendants, a defendant’s liability can only be 50%, and the liability percentage will decrease as the number of defendants increases. That is not the result the legislature intended. We therefore conclude that in strict liability cases allocation must be the same way as in any other tort case and not on a per capita basis. The trial court erred in holding that the jury could not apportion liability pursuant to the Fair Share Act. Of course, apportionment by the jury will require submission of appropriate evidence from which the jurors may make an allocation. Questions regarding the nature of that evidence should be resolved by the trial court in the first instance on remand.
The court also agreed with appellants/defendants that the jury on remand must be permitted to consider evidence of any settlements by plaintiffs with bankrupt entities in connection with the apportionment of liability. Settlement with bankrupt entities should be included in the calculation of allocated liability under the statute.