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Fisher v. Am. Int’l Indus., 2024 Pa. Super. LEXIS 129 (April 10, 2024) (Olson, J.).

Appellant, American International Industries (“AII”), appeals from the judgment entered December 2, 2022, awarding damages to Appellee, Holly Fisher (“Fisher”), Executrix of the Estate of Sandra Reichart (“Decedent”), following a jury trial in this asbestos litigation. We affirm, in part, vacate, in part, and remand with instructions.

The facts and procedural history of this case are as follows. Decedent owned a beauty salon, known as “Sandy’s Beauty Shop,” and worked as a hairdresser from approximately 1960 through 1985. In her work, Decedent used the following talcum powders: Clubman Talc, Jeris Talc, Jean Nate Talc and Cashmere Bouquet Talc. In January 2019, Decedent was diagnosed with malignant pleural mesothelioma. On February 8, 2019, Decedent died.

“To establish causation in an asbestos case[,] the plaintiff must prove the exposure to asbestos caused the injury and that it was the defendant’s asbestos-containing product that caused the injury. To satisfy this burden a plaintiff must meet the ‘regularity, frequency and proximity’ test as articulated by our Supreme Court in Gregg v. V-J Auto Parts Co., 596 Pa. 274, 943 A.2d 216 ([Pa.] 2007).” Moore, 7 A.3d at 824 (parallel citation omitted). Thus, a plaintiff “must adduce evidence that exposure to [the] defendant’s asbestos-containing product was sufficiently ‘frequent, regular and proximate’ to support a jury’s finding that [the] defendant’s product was substantially causative of the disease.” Rost v. Ford Motor Co., 637 Pa. 625, 151 A.3d 1032, 1044 (Pa. 2014) (citation omitted). Importantly, however, if a plaintiff fails to establish that the defendant’s product actually contains asbestos, “the ‘frequency, regularity, and proximity’ analysis is not triggered” and causation is not established. Krauss v. Trane U.S. Inc., 2014 PA Super 241, 104 A.3d 556, 576 (Pa. Super. 2014) (upholding the trial court’s decision to enter summary judgment because the plaintiff “failed to establish that [General Electric (GE)] products containing asbestos were present at the worksite” and, as such, the appellant “failed to create an issue of material fact establishing that [the d]ecedent was exposed to asbestos-containing GE products”); see also Sterling v. P & H Mining Equipment, Inc., 2015 PA Super 82, 113 A.3d 1277, 1283 (Pa. Super. 2015) (holding that the plaintiff “failed to adduce evidence sufficient to support an inference that [the plaintiff] inhaled asbestos from component parts of P & H cranes” rendering summary judgment appropriate).

Our Supreme Court recently explained how liability is to be apportioned in a strict liability asbestos case. See Roverano v. John Crane, 657 Pa. 484, 226 A.3d 526 (Pa. 2020). The Roverano Court stated that, in accordance with the plain language of the Fair Share Act, 42 Pa.C.S.A. § 7102, liability is to be apportioned on a per capita basis. Id. at 527-528. The Court reasoned that, in strict liability asbestos matters, the alleged injury is “inherently a single, indivisible injury that is incapable of being apportioned in a rational manner” and, as such, “it is impossible to determine which actor caused the harm, [and] it follows that it is impossible to apportion the amount of each defendant’s liability on a percentage basis.” Id. at 510.

Upon review, we hold that, while the trial court correctly determined that judgment should not be entered against Neslemur, it erroneously assigned AII one-half of the total verdict. As discussed above, Neslemur originally sold and produced Clubman Talc. In 1987, however, AII purchased the Clubman brand from Neslemur, which was after Decedent’s relevant exposure period (1960-1985). Thus, the sole basis for AII’s liability was Fisher’s claim that it constituted a product-line successor to Neslemur for Clubman Talc, which the jury ultimately found. This finding, therefore, also implicitly recognized that AII’s acquisition of the Clubman Talc virtually destroyed Fisher’s remedies against Neslemur. See Keselyak v. Reach All Inc., 443 Pa. Super. 71, 660 A.2d 1350, 1354 (Pa. Super. 1995) (holding that, because the plaintiff’s claim against the original manufacturer was not destroyed by the successor corporation’s acquisition of the product, the product-line exception did not apply to impose liability on the successor corporation). Upon recognition of this fact, the trial court decided to “add” Neslemur’s purported liability to AII. This was error. Instead, pursuant to Roverano, supra, the trial court should have simply removed Neslemur’s portion of liability and, in turn, apportioned liability on a per capita basis to the remaining three tortfeasors, AII, WCD and Colgate. Thus, we are constrained to vacate the trial court’s December 2, 2022 judgment order.

We therefore affirm the trial court’s order denying AII’s motion for non-suit, directed verdict and JNOV. We vacate the trial court’s December 2, 2022 order entering judgment against AII, WCD and Colgate and assigning AII a one-half share, WCD a one-fourth share and Colgate a one-fourth share of the verdict. We order the trial court to enter judgment on a per capita basis against AII, WCD and Colgate consistent with this opinion.

Affirmed in part. Vacated in part. Remanded with instructions. Jurisdiction relinquished.

Judgment Entered.