EPA Draft Risk Assessment on Asbestos Flawed and could be Problematic for Automotive Friction Defendants

By on August 28, 2020

The United States Environmental Protection Agency (“EPA”) is currently conducting a chemical risk evaluation of asbestos. The EPA’s 310-page Draft Risk Evaluation for Asbestos (the “Draft”) identified risks for a variety of potential asbestos exposures. The Draft found that acceptable cancer risks were exceeded for much work with automotive brakes and clutches. If these findings are adopted in the final evaluation, defendants can expect asbestos plaintiffs’ counsel to trumpet the evaluation to juries, even though (as described below and detailed in the attached article) the analysis is flawed and inconsistent with both the scientific literature and legal standards regarding cancer causation.

The Draft looked at exposures to occupational mechanics, bystanders, and do-it-yourself mechanics. The only asbestos fiber type the EPA evaluated was commercial chrysotile, and the only potential causative diseases the EPA evaluated were mesothelioma and lung cancer. The EPA chose to evaluate acceptable cancer risks to individuals based on an Inhalation Unit Risk of 0.16 per fiber/cc.

The Draft found that acceptable cancer risks were exceeded for brake and clutch installation and removal for occupational mechanics at both high-end and central tendency exposure levels and for occupational non-users at all high-end levels. For brake repair and replacement performed indoors with compressed air, the Draft found that acceptable risk levels were exceeded for do-it-yourself mechanics and bystanders of do-it-yourself mechanics at high-end and central tendency levels. For brake work performed outdoors, the Draft found that acceptable risks levels were exceeded for do-it-yourself mechanics at high-end tendency levels when mechanic work was performed 30 minutes per day with 62 years of cumulative exposure starting at age 16. Contact the best Asbestos testing in Edmonton and get your issue fixed now.

While the final risk assessment has not been published, the conclusions found in the current Draft lead to concern that these findings will cause confusion or even improperly influence jurors in future asbestos trials. A finding by the EPA that working with and around asbestos-containing brakes and clutches leads to an unacceptable risk of mesothelioma and lung cancer would be used in the opening statements of every asbestos plaintiffs’ attorney in the country. Although the assessment is based on many assumptions that are not realistic, excludes large swaths of relevant scientific and medical studies, and makes conclusions regarding cancer causation that are entirely out of line with all current legal standards, it would be complicated and difficult to explain in necessary detail to a jury. It would simply be another factoid that will be used to persuade jurors that there is no safe level of chrysotile asbestos exposure and that all exposures cause disease. Surely, many hours of drafting and many tons of ink will be spilt in attempts to keep the findings of the EPA out of the courtroom through pre-trial motions to exclude and motions in limine. This is a future that will soon become all too real if there are not considerable changes made between the current Draft and the EPA’s final risk evaluation.

Filed under Asbestos, Brakes, Clutches, EPA

Proposed Changes to California Asbestos Jury Instructions on Causation

By on August 17, 2020

The Advisory Committee on California Civil Jury Instructions is considering changes to many instructions, including two on causation: CACI 435 (substantial factor in asbestos cases) and CACI 430 (substantial factor generally).

CACI 430, applicable in tort actions generally, defines “substantial factor” as “more than a remote or trivial factor” in contributing to the harm, which “does not have to be the only cause of the harm.”

CACI 435 is modeled on Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, and provides that the “substantial factor” is not to be determined by causing harm, but a substantial factor contributing to plaintiff’s “risk of developing cancer.”

Two issues are addressed by the proposed changes: (1) whether CACI 435 applies to defendants other than manufacturers or suppliers of asbestos-containing products, such as property owners or those doing work at a site, and (2) whether in some asbestos cases the more traditional, cause-of-harm CACI 430 may be used. In case you still have asbestos in your building and will like to avoid healthy and legal problems, hire the san jose mold inspection to asses the damage and work to be done.

The proposed changes would answer both in ways that help plaintiffs, and expand liability risk for some defendants. First, the proposed changes to CACI 435 will add “property” and “operations” to “product” as a possible source of asbestos exposure. The proposal cites Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688, which ruled that CACI 435 was proper for claims against an employer/premises owner for asbestos at the site, even though not a manufacturer or supplier but rather a user of the product. Lopez reasoned that the point of CACI 435 was to focus on the risk of developing cancer from asbestos, and that the same considerations applied whether or not the defendant was a product manufacturer. Further, Lopez ruled that CACI No. 430’s terms “remote and trivial” are misleading and may confuse jurors: “jury instructions therefore should not suggest that a long latency period … precludes an otherwise sufficient asbestos claim.” The concern seems misplaced: there is no reason to assume jurors are incapable of understanding the concept of latency.

The proposed changes build on Lopez and would not only extend CACI 435 to non-manufacturers, but would drop from the “directions for use” contrary authority, and a reference that the issue was “was not settled.” Potentially worse, they would assert that CACI 430 may never be given in an asbestos case, whether or not in conjunction with CACI 435.

Complicating the problem: even the existing CACI 435 does not faithfully reflect Rutherford, which addresses “a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested” (emphasis in original). The existing instruction refers to a substantial factor contributing to the risk of cancer, without grounding that medical opinion (as did Rutherford) in comparative dose. The difference is particularly significant for defendants with minimal or low-dose exposure in cases where there is abundant alternative exposure (e.g., one home remodel job but a lifetime career working near asbestos insulation). GRSM and other defense attorneys have attempted in vain to get this instruction to reflect its source authority.

The proposals and directions for public comment are at https://www.courts.ca.gov/documents/caci20-02.pdf. Comments are due September 2, 2020. Pending that comment period, the changes are due to become effective November 15, 2020.

Filed under Asbestos, California, Causation

California Increases Potential Liability Exposure in Multi-Defendant Cases

By on August 11, 2020

The risks of litigating in California just got larger.

California’s Proposition 51 makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. The California Supreme Court yesterday unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their share of noneconomic damages. Resolving a split among intermediate appellate courts, the court ruled that “section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

This decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only “add-ons” to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages. Noneconomic damages for such matters as pain, suffering, and loss of consortium are often a multiple of the economic award. Compounding the problem: whether such intentional tort claims will be precluded from insurance coverage as a “loss intentionally caused by the insured.” 

In B.B. v. County of Los Angeles, police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and non-economic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

In a typically thoughtful opinion from Justice Chin, the court ruled that the statute’s application to cases decided “under principles of comparative fault” included negligence (and strict product liability), but did not include intentional tortfeasors. The court rejected multiple arguments that this was unfair and inconsistent with other language in Proposition 51, including those made by defendants and in an amicus curiae brief supporting the defense to which yours truly contributed.

We previously reported on this case just after it was argued, see here.

Filed under Apportionment, California, non-economic damages, Prop 51

California Asbestos Trials in the Age of COVID-19

By on July 16, 2020

By: IAN WILLIAMSON, San Diego

We continue to monitor how various courts in California are handling asbestos trials. The situation is unsurprisingly fluid.  Some courts have started trials and we are closely following those.

San Francisco assigned one case to a trial judge on June 26, 2020. Discussions of how that matter would proceed to trial were ongoing when the case resolved. Generally, remote jury selection was discussed. There were discussions about how to have the jurors in court – socially distanced and having virtually all witnesses appear remotely.

In Alameda County (Oakland), jury selection is ongoing in two cases. These are both living mesothelioma cases with preference trial dates. Both cases had been initially set for trial in March. Jury selection is being conducted remotely – with hardships and questionnaires done electronically and voir dire via Zoom. Both cases appear headed to a situation where the jurors are participating 100% remotely unless they do not have the technical ability to do so. It appears that all witnesses will appear remotely. Defendants have raised significant due process concerns, and in one case petitioned the Court of Appeal for a writ. The Court of Appeal denied the petition as premature, even while acknowledging that serious fairness issues were being raised.

The COVID-19 pandemic continues to disrupt trials as court implement safety procedures.

Los Angeles County does not have any jurors available yet, but has just started re-issuing jury summonses. It is anticipated that all of the first wave of jurors will go to criminal cases. There are several preference cases pending trial that are being continued on a rolling 15-day basis (per the preference statute) until a jury pool is available. The court has urged parties to waive a jury (neither side has agreed) or consider smaller jury panels. The court is setting new preference trial dates in the fall, but noting that those trial dates are “not realistic” and the cases will likely be continued until there are juries available.

Low priority cases – such as wrongful death cases and non-preference personal injury cases – are being continued into 2021 in all three venues. When and how the courts will catch up on those remains to be seen.

All three of California’s primary asbestos courts are utilizing the MSC process to try to facilitate resolution of cases. Los Angeles and Oakland are ordering remote MSCs. San Francisco required counsel to appear in person with their criminal lawyer Melbourne. None of these courts are requiring client or carrier representatives to travel to appear in person.

Courts with very few cases (Fresno, Sacramento, Solano, etc.) do not seem to be treating asbestos cases any different than any other cases–meaning we do not anticipate trials before 2021.

Federal courts generally remain in operation but jury trials seem to be limited to criminal cases only. We are not aware of any Federal asbestos cases being called to start jury trials since the pandemic shut court operations down.

Visit the Gordon & Rees COVID-19 Hub for ongoing updates.

Filed under 12-Person Jury, 6-Person Jury, Asbestos, California

PA Appellate Court Declines Opportunity to Re-Evaluate State Registration Statute Under Daimler

By and on July 6, 2020

The PA Superior Court of Pennsylvania – the Commonwealth’s intermediate appellate court – recently issued its long-awaited en banc opinion in Murray v. Am. Lafrance. A copy of the decision is attached HERE.

They key issue in Murray was whether an out-of-state company that registers to do business in Pennsylvania consents to general personal jurisdiction. The Pennsylvania corporate registration statute purports to confer consent to general jurisdiction over an out-of-state entity in exchange for the ability to conduct business within the Commonwealth. This issue has been hotly contested in recent years within Pennsylvania, with several courts finding that the registration statute is unconstitutional under U.S. Supreme Court precedent in Daimler, which provides that an out-of-state defendant is only subject to general jurisdiction where it is incorporated or maintains a principal place of business.

Despite the holding in Daimler, the Superior Court recently found in another matter that registration to conduct business in Pennsylvania establishes consent to general jurisdiction in the Commonwealth in a manner than comports with due process. Many defense-oriented commentators hoped that Murray would provide an opportunity for the Superior Court to reverse its prior rulings in accordance with Daimler.

In Murray, the trial court originally dismissed an out-of-state defendant for lack of general personal jurisdiction under Daimler, and on rehearing en banc the Superior Court upheld the order, but refused to resolve the mandatory consent to general jurisdiction issue, finding instead that Plaintiffs waived the argument by failing to raise it at the trial level. Although the Superior Court affirmed the order dismissing the out-of-state defendant for lack of personal jurisdiction, it did not address the merits of plaintiff’s argument that the defendant consented to jurisdiction by registering to conduct business in Pennsylvania.

Unfortunately for out-of-state product defendants that are registered to conduct business in Pennsylvania, the state of the law is such that consent by registration is still a sufficient basis for plaintiffs to assert general jurisdiction over out-of-state defendants in Pennsylvania, even after the Daimler decision appeared to reject this approach.

As this blog has previously reported, other states have rejected registration by an out-of-state defendant as consent to jurisdiction.

Filed under Jurisdiction, Pennsylvania

New Jersey Supreme Court Finds Liability Possible For Replacement Parts Supplied By Others If Original Product Contained Asbestos Components

By on June 12, 2020

Arthur Whelan was a plumber and infrequent auto mechanic. Decades before developing mesothelioma, Whelan alleges that he worked on numerous boilers that had asbestos components such as steam traps, fireboxes, steam valves and jacket liners. He also conducted a handful of brake jobs on Ford vehicles that involved asbestos parts. Whelan did not know whether the asbestos components in these products were original components, replacement components by the original manufacturer or replacement components by a different manufacturer. Nevertheless, Whelan sued the original manufacturers, alleging that they had a duty to warn product users of the dangers of the asbestos-containing product as initially manufactured and as asbestos-containing replacement parts were incorporated into the product.

A divided New Jersey Supreme Court held in Whelan v. Armstrong Inc. that manufacturers may be found liable for asbestos-containing replacement components that they did not build or distribute, because “it is fair for them to bear such responsibility when they profit from the parts extending the life of their original products.”

The opinion provides a four-part test for holding manufacturers and distributors strictly liable for the failure to warn about the dangers of their products’ asbestos-containing components:

  • First, a plaintiff must prove that asbestos-containing components were included in the original products;
  • Second, those components were integral to the product and necessary for it to function;
  • Third, routine maintenance required replacing those parts with similar asbestos-containing components; and
  • Fourth, exposure to the initial components or replacement parts was a substantial factor in causing or exacerbating the plaintiff’s disease.

In reaching this decision, the court speculated that requiring the original manufacturer to provide warnings for the anticipated replacement parts of the product would not place a burden on the manufacturer. Justice Albin noted that imposing a duty to warn about asbestos-containing replacement parts, no matter who built them, “adds hardly any further burden or cost to the product manufacturers, who already have a duty to warn of the dangers of the original asbestos-containing components.”

The court ruled that the manufacturer must provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components. “Warnings on defendants’ products would have provided a reliable form of protection for the ultimate user,” so “[t]he lack of warnings rendered the products defective.”

The decision is consistent with the recent maritime common law failure to warn case decided by the Supreme Court. In Air & Liquid Systems Corp. v. DeVries, 873 F. 3d 232 (2019), the Supreme Court found that in the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. On the other hand, California and Washington, among other jurisdictions, generally restrict liability to those in the chain of commerce of the injury-producing product.

Filed under Asbestos, Bare Metal, New Jersey

Will California Eliminate Several Liability for Non-Economic Damages for Some Defendants?

By on June 4, 2020

In California, while all defendants are liable to plaintiff for 100% of plaintiff’s economic damages, under “Proposition 51” defendants are liable for non-economic damages only in proportion to fault. The California Supreme Court heard argument this week on whether that includes a defendant liable for an intentional tort.

B.B. v. County of Los Angeles involves suits brought by the widow and surviving children of a man who died after a “prolonged and violent struggle with several deputies” including a chokehold. Several deputies were found negligent, and one found liable for intentional use of excessive force – battery. The case involved whether the intentional tort deputy should be liable for 100% of the non-economic damages or only his 20% share of responsibility.

Plaintiffs argued that the statute applies to an “action … based on principles of comparative fault,” and that while negligence is based on such principles, intentional tort liability is not. Intentional tortfeasors should not be allowed to shift the risk of noncollectibility of any portion of the non-economic damages to plaintiff. The defense argued that the purpose of Proposition 51 is to share responsibility for non-economic damages among all tortfeasors. I co-authored an amicus curiae brief for the defense.

The court posed remarkably few questions to either side, perhaps in part due to the novelty of arguing via remote video connection. That makes it harder to assess which way the court may be leaning.

The court’s decision, due within 90 days, will potentially affect many tort cases, and in particular many toxic tort cases. Plaintiffs routinely sue many defendants in the same case for committing independent acts of wrongdoing that collectively contributed to cause an injury. In product liability and asbestos exposure cases, plaintiffs typically assert claims for negligent and strict liability failure to warn, which they use as the springboard to also assert intentional tort claims for fraud and concealment based on the same evidence concerning a defendant’s failure (decades or even generations ago) to provide information about a product. If the California Supreme Court decides that intentional tort defendants are categorically exempt from the several liability protections of Proposition 51, then we can expect to see even more emphasis by the plaintiffs’ bar to advance intentional tort theories like fraud or battery.

Filed under Apportionment, California

Unique Business Logo Creates Evidentiary Path to Product Identification

By on May 22, 2020

A logo can be a first impression akin to the front door of a business. In Hart v. Keenan Properties, Inc., the logo “was the letter “K” drawn to resemble a straight pipe and an angled pipe, enclosed in a circle.” The California Supreme Court decision ruled that this unique business logo can create an evidentiary path for product identification in product liability cases, as logos are used for marketing purposes, of course for this you need to understand your market, and doing research is important, you can use tools from sites like https://www.qualtrics.com/experience-management/research/determine-sample-size/ that help in this area.

The court granted review “to determine whether a company’s name and logo appearing on an invoice can constitute hearsay.” The answer: not in this case. “Under the facts presented, a witness’s observation of the name and logo was circumstantial evidence of identity, not proof of the truth of the matters asserted in the document.”

Plaintiff Frank Hart cut, beveled, and installed pipes for Christeve Corporation on the McKinleyville project from 1976-1977. After Plaintiff developed mesothelioma, he and his wife sued a number of entities who allegedly distributed asbestos-containing pipes to the project. Plaintiffs alleged that Keenan was one such supplier.

Plaintiff’s supervising foreman testified that it was his responsibility to check goods to the items listed on the invoice to ensure they matched upon delivery. He recalled that Keenan pipe was used at the project, because he remembered seeing the name “Keenan” on the invoices. When asked why Keenan sticks out in his mind, he replied, “Just the way the – their K and stuff is all – I don’t know.”

Keenan objected to the foreman’s testimony regarding the invoice arguing it was hearsay and further objecting that Plaintiffs failed to authenticate the document. The trial court overruled Keenan’s objections, primarily on the ground that the evidence was not hearsay but instead circumstantial evidence of identity. The jury awarded judgment against Keenan.

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Keenan appealed. The Court of Appeal reversed, concluding the foreman’s descriptions of the invoices at issue were hearsay. The California Supreme Court reversed the judgment of the Court of Appeal.

The court ruled that the foreman’s testimony about the invoices was being offered not for the truth of its contents, but instead to establish the link between Keenan and the foreman’s testimony that Keenan delivered pipes to the McKinleyville project. “[I]t is the combination of some characteristic that makes the document identifiable and the independent evidence connecting Keenan to the identifiable document that established the link.”

Other witnesses supported that link. Christeve’s bookkeeper testified that she recalled Keenan’s logo, “the K with a circle around it.” When asked why she remembered the logo she stated, “Because I know that we dealt with them, and [the logo] was unique, and I like it.” This evidence demonstrated that Keenan and Christeve did conduct business together during the relevant time. Keenan’s corporate representative acknowledged that Keenan sent customers invoices that bore Keenan’s name and logo. Thus, the court found that “[i]t was not unreasonable to infer [the foreman] was referring to the K logo acknowledged by Keenan’s representative.” “Taken together, the evidence was relevant to prove the disputed link between Keenan and the pipes, regardless of the content on the invoice.”

Does this mean that testimony about an invoice or other document that was itself lost long ago will always be admitted? Not necessarily. In California, though, defendants will not likely be able to exclude that testimony based on the hearsay rule.

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Filed under Asbestos, California, Hearsay, Product Identification

Responding to “No Safe Dose” Revisited: That Is Not What Regulators Thought at the Time

By on May 4, 2020

Some time ago we posted on the topic of responding to the inevitable contention from plaintiff counsel that there is “no known safe dose of asbestos” or its frequent companion “every major health agency says there is no known safe dose.” These arguments are repeated as if they support the conclusion that since there was no known safe dose, every health agency always agreed that any dose was UNsafe. One of the thrusts of the earlier post was to point out that while the current scientific thinking might be that a safe dose has not been demonstrated, that was not the thinking of scientists and regulators in past years when exposures were actually occurring. As discussed before, throughout the 1950’s and 1960’s the State of California was stating that it had established a safe dose and it was at a level of 5 million particles per cubic foot as an 8 hour time weighted average over an entire career. We now cite to additional publications that there never was a consensus that any and all doses are unsafe.

Perhaps it should not be surprising, but the source is the United States Public Health Service. In January 1963 the USPHS announced its intent to conduct a large survey of asbestos exposures and hazards in workplaces. While the USPHS acknowledged that hazards associated with asbestos exposures had been known for years, it also noted that “many questions remain unanswered—.” In addition to seeking to answer the question “Are malignancies occupational risks of the worker in the asbestos product industry?,” the USPHS asked: “What are the safe levels of exposures to the various materials that constitute health risks in this industry?” (emphasis added.)

This same study is discussed again in a publication from the USPHS that was presented at an International Congress on Asbestosis in Caen, France in May 1964. The authors are identified as L. Cralley, H. Ayer, P. Enterline, A. Henschel and W. Lainhart (all identified as Chiefs or Assistant Chiefs at the Department of Health, Education, and Welfare at the Public Health Service, Division of Occupational Health). They outline their plans to conduct a broad study at numerous sites to collect and analyze data. “There is a great need for further definitive information on the health effects from exposure to asbestos dusts and fibers and on safe levels of exposure.” (emphasis added.)

This same thinking prevailed in the USPHS for at least several more years. In April 1967, Dr. Cralley circulated a draft of a paper reviewing what had been discussed at a USPHS sponsored meeting in Cincinnati in 1966. The draft paper comments that “Even though asbestos has been in industrial use for well over 50 yrs, much is unknown regarding its health effects and safe levels of exposure.” (emphasis added.) At this time, the prevailing standard was the Threshold Limit Values published by the American Conference of Governmental Industrial Hygienists at 5 million particles per cubic foot as an 8 hour time weighted average over a career. One of the threshold issues for which the attendees at the conference are reported to have sought an answer was “What levels of exposure to the etiologic agents associated with asbestos-related diseases can be regarded as safe.” The paper goes on to state: “This is the prime objective of the research. When information on safe levels becomes available, environmental and other controls case be devised to keep exposures within the recommended limits.”

In 1969 Dr. Cralley, Dr. W. Clark Cooper, Dr. William Lainhart and Dr. Murray Brown published a paper in the Journal of Occupational Medicine. The authors again outline the many issues yet to be understood in regards to the health risks associated with asbestos exposure. Contrary to what plaintiff counsel repeatedly try to persuade jurors, at that time knowledge about asbestos hazards was far from complete and many conclusions argued to be established today were still very unsettled then. This paper recognized that one of the issues to be resolved was “[w]hat levels of exposure to the etiologic agents associated with asbestos-related diseases can be regarded as safe.” (emphasis added.)

Plaintiff counsel want the jurors to believe that since their experts will say that no one has yet proven that there is a “safe” level of exposure to asbestos (as if that could ever be done), that means that every exposure to asbestos is known to be unsafe. And to imply that such has been the accepted thinking for decades. That is manifestly untrue. As the citations above and other evidence demonstrates, during the pertinent time in the 50’s and 60’s when many of the claimed exposures were occurring, representatives of the USPHS and other researchers and scientists felt that they did not have adequate information to answer many questions about hazards from asbestos. They felt that collecting more data would allow them to identify a safe level. They did not claim at that time, nor do competent researchers and scientist today claim, that every exposure is hazardous. The corollary is that companies using asbestos and manufacturing asbestos products were not on notice that every use of asbestos was unsafe. To the contrary, they were being told by the State of California, the USPHS and others that controlling exposures to the existing regulatory limits would be safe.

Filed under Asbestos, California, Safe Dose, USPHS

Not Fair in Pennsylvania (Update) – The Pennsylvania Supreme Court Rules That Fair Share Act Does Not Allow Fault-Based Apportionment in Strict Liability Cases

By on March 27, 2020

In a decision that will reshape Pennsylvania products liability cases, the Pennsylvania Supreme Court has ruled that the Fair Share Act does not require pro rata percentage apportionment of damages among codefendants in proportion to fault. Instead, in asbestos and perhaps other strict liability cases, damages are to be split per capita, equally among defendants and a limited set of other responsible parties.

The Fair Share Act

The proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) was unclear for some time in the Commonwealth of Pennsylvania. The Fair Share Act, passed in 2011, apparently clarified the issue by eliminating joint and several liability apportionment in most tort cases.

[E]ach defendant shall be liable for that proportion of the total dollar amount awarded as damages 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.

42 Pa. C.S. §7102(a.1). This provision appears to make “pro rata” or “apportioned” allocation of fault the default mechanism for allocating liability in Pennsylvania.

The statute further provides that “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” This provision makes all tortfeasors severally liable to the injured party except in a few defined circumstances, such as where a defendant is found more than 60% liable.

The Fair Share Act specifically applies to “actions for strict liability,” but trial courts have inconsistently applied pro rata allocation in asbestos strict liability cases, often relying upon the language from a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis, such that each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable) without regard to degrees of fault.

Roverano Lower Court Decisions

A Philadelphia jury awarded $6.4 million to a former utility worker and his wife following an asbestos (lung cancer) trial. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally (per capita) among the eight tortfeasors. The two remaining defendants at trial appealed, arguing that pro rata allocation was required under the Fair Share Act. The Superior Court, Pennsylvania’s intermediate appellate court, sided with the defendants and reversed.

Roverano Supreme Court Decision

On February 19, 2020, a majority of the Supreme Court of Pennsylvania held that the Fair Share Act requires trial courts to apportion liability equally (per capita) among strictly liable joint tortfeasors in asbestos litigation. [The majority opinion can be found here.] The court also ruled that the Fair Share Act allows defendants to include bankrupt entities on the verdict sheet and apportion liability against them, subject to (1) appropriate proof against the bankrupt entity and (2) provided that the bankrupt entity was joined as a defendant. Per capita allocation against a bankrupt entity is also permitted if that entity entered into a release with the plaintiff. Under the Supreme Court’s logic, the same rule should apply to settling codefendants, provided non-settling parties make the appropriate proofs against each settling entity.

Justice Wecht’s concurring opinion [found here] explained that the Fair Share Act was never intended to repeal a common law strict liability rule that compelled trial courts to apportion strict liability verdicts on a per capita basis. The use of the term “strict liability” was only “intended to eliminate joint and several liability for strict liability cases as well as for negligence actions.” Justice Wecht reasoned that “in providing that strict liability would apply to defendants severally rather than jointly, the General Assembly neither said nor clearly implied that it intended to displace per capita apportionment in strict liability cases.” Like the majority, Justice Wecht believes that it is too scientifically difficult to apportion fault in asbestos cases on a pro rata basis – that juries and trial courts cannot fairly apportion relative fault in asbestos and other toxic tort cases.

Impact on Products Liability Litigation in Pennsylvania

The Supreme Court did not explicitly state whether its holding is limited to asbestos and toxic tort cases, where scientific and exposure issues arguably make it difficult to fairly assign fault-based liability (though juries seem perfectly capable of the task in most other jurisdictions), or whether per capita allocation applies across the board to all strict liability defendants in Pennsylvania.

Three major effects of Roverano are likely: (1) to increase settlement pressure on nominal defendants facing per capita liability allocation at trial; (2) to incentivize defendants to join additional parties to spread liability amongst as many defendants as possible; (3) to change the way cases are tried, for example “pointing the finger” at more culpable parties.

Many commentators believe that the Supreme Court intended Roverano as a special rule in cases where damages and liability cannot reasonably be divided between multiple defendants. If true, the Fair Share Act would still apply to other types of strict liability cases, such as those involving industrial equipment, hard consumer goods, etc. On the other hand, if Roverano has broad applicability to all forms of strict liability cases, it will lead to a drastic change in the way that product defendants negotiate settlements. This interpretation of Roverano could lead to an explosion of third-party litigation, especially in complex products cases implicating numerous product distributors, component part manufacturers, etc.

Filed under Apportionment, Asbestos, Pennsylvania, Per Capita, Pro Rata, Strict Liability

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