California highlights burden on defendants seeking to apportion liability to co-defendants and non-parties

By and on June 2, 2021

A California Court of Appeal has rejected a defense challenge that the defendant was assigned too high a percentage of liability (60%), because the defendant did not introduce enough evidence about other parties’ liability. The court also rejected a defense claim that the $25 million noneconomic damage award was excessive, even though it was “well beyond the normal range of awards in similar cases for similar injuries” per a survey of similar verdicts.

Phipps v. Copeland Corporation LLC was an asbestos personal injury case in which plaintiff alleged that his mesothelioma resulted from asbestos exposure during his three years in the U.S. Navy and during his subsequent career as an HVAC technician. Copeland Corporation was one of four compressor manufacturers plaintiff sued by plaintiff, along with many other defendants. Plaintiff proceeded to verdict against Copeland only.

Although plaintiff’s medical and causation experts acknowledged during trial at all of plaintiff’s asbestos exposures contributed to his overall dose, they specifically (and expectedly) amplified the exposures to the asbestos-containing gaskets contained within Copeland’s compressors in an effort to maximize Copeland’s share.

The jury found for plaintiff, and ultimately apportioned 60% liability to Copeland, of 15 parties and nonparties on the verdict form. Copeland argued that the evidence could not support “assigning twenty times more fault to Copeland than to any of the other compressor manufacturers, and more fault than all other entities combined.”

The court, however, disagreed. “[A]s the party with the burden to establish the percentage of comparative fault attributable to others [citations omitted], Copeland, to obtain a reversal, must show the evidence compelled a verdict in its favor on apportionment as a matter of law.” Copeland argued that the apportionment was “illogical” because it found Copeland more responsible than any other compressor companies. However, the court pointed out there was no evidence “to compel a finding that William replaced fewer Copeland gaskets than he did Carrier, Trane, or York gaskets.” In reaching this conclusion, the court found that there were sufficient, uncontroverted facts to establish that plaintiff would have worked with far fewer asbestos-containing components from the other equipment manufacturers than from Copeland. In the court’s view, Copeland failed to proffer sufficient evidence of the frequency, intensity and duration of plaintiff’s exposure to the products of other defendants, including the HVAC defendants, and so could not show that the jury’s 60% liability finding was improper.

“The second reason Copeland has failed to demonstrate the evidence compelled a verdict in its favor on apportionment as a matter of law is that ‘the jury was permitted to consider the relative culpability of the parties in assessing comparative fault.’” That culpability need not rise to the level of that required for punitive damages, as here the defense had won summary adjudication nixing punitive damages from the case.

Copeland also argued that the noneconomic damages award was excessive. In support, Copeland submitted to the trial court “a spreadsheet labeled “Plaintiff Verdict Amounts in Asbestos/Mesothelioma Cases.” An accompanying declaration explained that the spreadsheet was the result of “a process for obtaining comparative verdicts in cases that, similar to this one, involved allegations of asbestos exposure leading to mesothelioma,” based on “Lexis Advance® Verdict Analyzer.” Neither the trial court nor the Court of Appeal was moved by this use of technology.

“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, sections 657 and 658 prohibited the court from considering such material:” the statutes require motions to be made on “the minutes of the court.” Accordingly, and because the award was supported by substantial evidence, the judgment and denial of new trial was affirmed.

This case serves as a critical cautionary tale to defendants at trial of the importance of introducing evidence of the liability of others. While California’s Proposition 51 imposes several liability only for non-economic damages, the burden of proving these “alternate shares” lies exclusively with the defendant. The Phipps court made clear that, in its discretion, Copeland simply did not do enough to make a showing that the jury’s apportionment of responsibility was improper. In light of Phipps, a defendant should consider introducing evidence such as:

  • Quantitative assessments of the likely doses of asbestos from the products of others and any possible exposures from one’s own products, including dose reconstructions from experts when possible;
  • Medical causation evidence regarding the relative carcinogeneity of fiber type; and
  • Documentary, “hard” evidence of a co-defendant’s liabilities.

When there are multiple defendants at trial, the plaintiff will make some of this case. Where, as here, there is only a single defendant, this will be more onerous and time-consuming.

Filed under Apportionment, Asbestos, California, Prop 51, Substantial Factor

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

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

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

Last Defendant at Trial, You Are Not Alone: Apportionment Under New Jersey Law

By on September 19, 2019

Last week in the Rowe v. Bell & Gossett decision, a unanimous New Jersey Supreme Court found that an asbestos defendant at trial may demonstrate settling co-defendants’ liability and their share of fault by using the co-defendants’ answers to interrogatories and corporate representative depositions from the pending or prior asbestos litigations. This evidence, along with plaintiff’s testimony on product usage and plaintiff’s own expert’s testimony on cross-examination, was sufficient to show that each settling defendant’s product was a substantial factor in causing injury and allow a jury to allocate fault. Thus, the court has provided guidance on how and not just that a remaining defendant may reduce its fault at trial. Under New Jersey’s joint tortfeasor law, as in many other jurisdictions, when two or more persons are jointly and severally liable for the same tort and injury, the jury must allocate fault between and among the tortfeasors, regardless of whether they all remain parties to the litigation.

The Supreme Court’s decision will require plaintiffs to fully understand the relative responsibilities among defendants before risking a settlement with some but not all of them. This will undoubtedly delay or completely prevent settlement opportunities, especially for parties of products that plaintiff most regularly used during his lifetime.

From a defense perspective, this decision endorses a streamlined approach for proving cross-claims at trial. non-settling defendant must simply be careful to timely and fully disclose its intent to demonstrate such non-parties’ liability at trial. With proper notice, the non-settling defendant may use the settling defendants’ written interrogatory answers, corporate representative depositions, responses to admissions, prior trial testimony, if any, or call them as a live witness if the content of these statements were made “against the party’s interest.”

In Rowe, plaintiff argued that interrogatory responses and corporate representative depositions were impermissible hearsay that could only be used, if at all, against the declarant co-defendants, not against plaintiff. The Supreme Court rejected that argument, finding that these statements were admissible under New Jersey Rule of Evidence 803(c)(25) because they were made by the corporate defendant and were “so far contrary to the [corporation’s] pecuniary, proprietary, or social interest, or so far tended to subject [that defendant] to civil or criminal liability . . . that a reasonable person in [that defendant’s] position would not have made the statement unless the person believed it to be true.” In Rowe, “when the relevant statements were made, each declarant was a defendant in this case or in other asbestos product liability cases.” Moreover, such statements admitted corporate relationships including potential successor liability, the manufacture or sale of goods containing asbestos, or the manufacture or sale of goods without warnings related to asbestos.

The Appellate Division had ruled that these statements were not “against interest” because “the existence of asbestos-containing products and the absence of warnings are objective, well-known historical facts that the settling defendants could not avoid acknowledging in the face of incontrovertible proof.” The Supreme Court rejected this argument, noting that statements against interest need not be on novel or controversial issues, or the only proof of a given claim. Thus, these statements were properly admitted by the trial judge and considered by the jury to apportion fault.

Filed under Apportionment, Asbestos, New Jersey

Not Fair in Pennsylvania: Application of The Pennsylvania Fair Share Act to Strict Liability Cases Reviewed by State Supreme Court

By and on March 11, 2019


In Pennsylvania, the proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) has been unclear for some time. The Supreme Court of Pennsylvania heard argument on March 6, 2019 in a case that should clarify matters and provide some certainty regarding the Pennsylvania Fair Share Act.

Background

The Pennsylvania legislature passed the Fair Share Act in 2011, eliminating joint and several liability from most tort cases. See 42 Pa. C.S. §7102. Under the Fair Share Act, each defendant is only liable for its apportioned amount of lability:

Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each 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 under subsection (a.2).

42 Pa. C.S. §7102(a.1). From a practical standpoint, this provision of the Fair Share Act makes “pro rata” or “apportioned” allocation the default mechanism for allocating liability amongst tortfeasors in Pennsylvania.

Subsection (a.2) 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.” 42 Pa. C.S. §7102(a.2). This provision eliminates joint and several liability and makes all tortfeasors severally liable to the injured party except in a few defined circumstances. For instance, where a defendant is found more than 60% liable to plaintiff, that defendant is jointly and severally liable. See 42 Pa. C.S. §7102(a.1)(3).

Although the Fair Share Act specifically applies to “actions for strict liability,” trial courts have inconsistently applied pro rata allocation in asbestos strict liability litigation. Many courts have relied upon a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis whereby each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable).

Roverano

The Superior Court held in December 2017 that the Fair Share Act applies to both negligence and strict liability actions. See Roverano v. John Crane, Inc., 177 A.3d 892 (Pa. Super. 2017). In Roverano, a Philadelphia jury awarded $6.4 million to a former utility worker and his wife in an asbestos (lung cancer) lawsuit. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally among the eight defendants determined to be tortfeasors. The two defendants left at trial appealed, arguing (1) that the Fair Share Act applies to strict liability matters and (2) that the jury may consider evidence of settlements with bankrupt entities in connection with apportionment of liability.

The Superior Court agreed, finding that “liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis” and that “settlements with bankrupt entities [may be] included in the calculation of allocated liability” under the Fair Share Act provided that defendants at trial “submit evidence to establish that the non-parties were joint tortfeasors.” Roverano, 177 A.3d at 909.

The Pennsylvania Supreme Court granted a petition for appeal in Roverano to settle these issues of “first impression” to determine the proper method of allocation in strict liability cases. The Roverano case was argued before the Supreme Court on March 6, 2018.

The justices were generally skeptical of proportional allocation of fault in asbestos litigation, finding that such an approach would lend itself to “junk science” over how fault should be apportioned between defendants. Further, the justices questioned how it would be possible for a jury to determine proportional fault in a “non-arbitrary way” in asbestos cases. Counsel for the defense argued that the Fair Share Act is specifically focused on apportionment of damages, not liability, such that the cause of action is not altered. Plaintiffs’ counsel asserted that it would be impossible for the jury to apportion fault in this manner where the medical community has not been able to do so in the asbestos context. Plaintiffs also argued that bankrupt entities should not be allowed on the verdict sheet because it would violate federal law that bars bankrupt entities from defending lawsuits.

Roverano presents an opportunity for the Supreme Court to set the record straight once and for all as to whether the Fair Share Act applies to strict liability litigation. It appears based on oral argument, however, that the Supreme Court is focused more narrowly on whether the Fair Share Act should apply in asbestos cases, entertaining argument as to whether it is medically and scientifically possible to do so at all. Some commentators were anticipating that the Supreme Court might – in the interest of predictability in products litigation – take a broader approach and establish a framework as to how liability should be apportioned generally in strict liability cases. A decision is expected in a few months.

Filed under Apportionment, Asbestos, Damages, Pennsylvania

Reichhold, Inc. Prevails In New Jersey CERCLA Case

By on June 26, 2009

On June 22, 2009, after an six-week bench trial in the U.S. District Court for the District of New Jersey, we achieved a resounding victory for our client, Reichhold Inc., in an environmental cost recovery litigation. Reichhold v. USMRC et al, 2009 U.S. Dist. LEXIS 52471. The case addressed claims relating to the cleanup of a contaminated chemical plant site formerly owned by Reichhold in Carteret, New Jersey along the Arthur Kill. The case was brought pursuant to the federal CERCLA and New Jersey Spill Act statutes, as well as a 1994 settlement agreement between the parties.

Defendant United States Metals Refining Co. ("USMRC"), which owned the site prior to Reichhold, had argued that the settlement agreement prohibited Reichhold from bringing the claims in the instant lawsuit. The Court rejected USMRC’s argument and held that, because virtually all of Reichhold’s claims constituted "New Environmental Obligations" under the settlement agreement, they were actionable. The Court also dismissed every defense to liability raised by the defendant, including the defense that Reichhold’s claims were time-barred.

In its Final Judgment, the Court awarded Reichhold $1,209,719 for investigation and cleanup costs that Reichhold had incurred while addressing metals contamination caused by USMRC’s industrial operations. The Court also entered a declaratory judgment requiring USMRC to pay certain of Reichhold’s future cleanup costs.

Our success at trial was attributable, in part, to our being able to discredit the expert testimony of USMRC’s experts. In conjunction with an aerial photogrammetrist, USMRC’s environmental engineering expert used historical aerial photographs of the site taken over a 60-year period to develop computer-generated surface contour maps that purported to depict Reichhold’s excavation and fill activities at the site over time. Because of these topographical maps, USMRC’s experts argued that Reichhold had caused extensive metals contamination at the site in the 1960’s and 1970’s by using contaminated fill in low lying areas of the property. On the basis of the cross-examination of defendants’ experts by me and my partner, Sheila A. Woolson, the Court rejected the experts’ testimony and held that the conclusions based on the photogrammetry performed were unconvincing. Consequently, the Court placed no reliance on the cut and fill evidence presented. In contrast, the Court accepted the testimony of Reichhold’s witnesses that Reichhold had not disposed of any metals containing contamination at the site.

Over the last several months, federal and state environmental regulatory agencies have devoted substantial regulatory attention to New Jersey waterways and rivers in the northwestern portion of the state that have been contaminated with metals, declaring some of them to be federal Superfund sites. In light of these events, the judicial determination that the metals contamination on the southern edge of the property was solely due to our adversaries’ prior disposal activity was timely. The Opinion is perhaps the first trial court decision to apply the apportionment principles articulated in the Supreme Court’s May 2009 decision in Burlington Northern.   

Filed under Aerial Photogrammetry, Apportionment, CERCLA, CERCLA and Cost Recovery, Epstein Becker & Green, New Jersey Spill Act, Reichhold, Sheila Woolson, United States Metals Refining Co, USMR, Victoria Sloan, William A. Ruskin Tagged with