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

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.

Illinois Appeals Court Reverses $3.2 MM Asbestos Verdict: Contact With Product Capable of Releasing Fibers Not Enough To Establish Causation

In Krumwiede v. Tremco, Inc., 2020 IL App (4th) 180434, an Illinois appeals court reversed a $3.2 million award against a defendant-manufacturer in an asbestos case finding plaintiffs failed to meet the minimum threshold of evidence required to bring the question of causation before a jury. The decision ruled that plaintiffs must present more than evidence of frequent, regular, and proximate contact with a product that is capable of releasing asbestos to bring the question of causation before the jury.

Plaintiffs presented testimony of two of decedent’s co-workers that Decedent was exposed to asbestos from two Tremco products – “440 tape” and “mono caulk” –that Decedent worked with “just about every day” as a window glazier from approximately the mid-1950s until the early 1990s. Those co-workers denied, however, seeing any visible dust created from that work. Plaintiffs further presented the expert testimony of Dr. Arthur Frank. Dr. Frank opined that there was no scientific way to determine which exposure caused plaintiff’s disease and that “it is the cumulative exposure, the totality of the exposure . . . that causes the disease.” He further opined that “all of the exposures that [decedent] had from any and all products [including Tremco’s] of any and all fiber type would have contributed to his developing his mesothelioma.” This has been termed as the “cumulative exposure theory.”

Dr. Frank also testified that Tremco’s products were capable of releasing asbestos fibers because he never encountered an asbestos-containing product that would not release asbestos fibers, and that in his 40 years of experience he had “looked at” cases involving similar products and affirmed that they could release asbestos.

Notably, the panel found Dr. Frank’s testimony “remarkably similar to his testimony in McKinney.” In McKinney, 2018 IL App (4th) 170333, (brought by the same plaintiffs’ law firm and decided by the same appellate court) a welder filed suit against a welding-rod manufacturer alleging exposure to asbestos from the welding rods caused his mesothelioma. Plaintiff alleged exposure from the rubbing together of the welding-rods near his workspace. Dr. Frank testified that he never encountered a product that could not release asbestos. In McKinney, however, Dr. Frank testified that he further relied on welding-rod studies for the basis that the welding-rods were capable of releasing asbestos. Applying the asbestos causation standard as set forth by the Illinois Supreme Court in Thacker and Nolan, the McKinney court found that while the welding rods were capable of releasing asbestos, plaintiff failed to present evidence of exposure to respirable asbestos from defendant’s product to bring the question of causation before the jury.

In Krumwiede, Tremco appealed and argued, as defendant did in McKinney, that it was entitled to a judgment n.o.v., because plaintiff failed to present evidence of exposure to respirable asbestos fibers from the caulk or tape to establish that it was a substantial factor in causing decedent’s disease. As in McKinney, the court again found there was insufficient evidence to establish that plaintiff was exposed to asbestos such that it was not de minimis but was a substantial factor in causing his disease:

“In this case, even accepting that Tremco’s 440 Tape and Mono caulk were capable of releasing respirable asbestos fibers, the evidence was otherwise lacking with respect to the element of substantial factor causation. In particular, there is no evidence in the record showing when, and under what circumstances, Tremco’s products released respirable asbestos fibers, whether circumstances causing the release of respirable asbestos fibers were the type that would have been regularly encountered by decedent when using Tremco’s products, or whether the release of fibers from Tremco’s products was anything more than minimal.”

In addition to its substantial factor causation analysis, the panel reached several other issues not previously addressed in McKinney. First, while it appears that some level of actual exposure, more than de minimis, is required to meet the Thacker test, the panel agreed with Plaintiffs that they were not required to quantify the number of asbestos fibers to which decedent was exposed. The Panel also rejected Plaintiffs’ arguments that Dr. Frank’s cumulative exposure theory is contrary to Illinois law and substantial factor causation. (See our other posts on the cumulative exposure theory, here, here, and here.)

Krumwiede offers Illinois defendants a favorable application of causation law, consistent with Illinois’ current trend in asbestos cases. Practically speaking, this trend could also add the burden and cost of additional plaintiff experts who can opine as to the specific exposures from the products at issue.

Bad Bill Becomes Law: Time Limits on Mesothelioma Plaintiff Depositions Enacted in California

California Governor Gavin Newsom has signed Senate Bill 645 into law. This law imposes stringent time limits on asbestos defendants’ deposition examination of a mesothelioma or silicosis plaintiff. (See prior post here.)

SB 645’s passage comes after a summer of highly emotional testimony in the legislature by the proponents of the bill. It was ordered to a third and final reading before the California Assembly in July, after passing quickly through the California Senate in June.

The new law places a 7-hour limitation on defendants’ deposition examination of a mesothelioma plaintiff if a licensed physician provides a declaration attesting both that the plaintiff has mesothelioma, and that there is substantial medical doubt of survival beyond 6 months. Defendants may move the court for an additional 3 hours if more than 10 defendants appear at the deposition, and an additional 7 hours if more than 20 defendants appear at the deposition. However, the court may only grant even these minimal extensions of time upon a finding that the extension is in the interest of fairness, and that the health of the plaintiff is not endangered by the grant of additional time.

SB 645 is even worse than California’s prior law, which allowed for 7 hours of deposition testimony, plus an extension of up to 20 hours of total testimony in the trial court’s discretion. The law also seems to override case management orders in counties with heavy asbestos calendars, such as Alameda and Los Angeles counties, where the case management orders regularly provided up to 20 hours for defendants’ deposition testimony in asbestos cases.

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

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.

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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.

Ninth Circuit Takes Out Take-Home Asbestos Case, Requires Evidence of Substantial Exposure

Asbestos defendants—especially those in take-home exposure cases—should note the Ninth Circuit’s recent opinion in Stephens v. Union Pacific Railroad Company. There, the court affirmed that plaintiffs cannot prove substantial-factor causation without establishing “substantial exposure to the relevant asbestos for a substantial period of time.” While the decision’s reach might be limited—it is, after all, a federal-court interpretation of Idaho law—it provides a sound roadmap for raising evidentiary challenges in substantial-factor asbestos cases.

Stephens involved alleged take-home exposure from an Idaho Union Pacific roundhouse. William Stephens’s father had worked at the facility when Stephens was a child, and Stephens testified that his father’s work clothes had been dusty when returning home. He also testified that he had visited his father at work on a few occasions and had seen men removing and replacing insulation on steam engines. Union Pacific admitted that it probably used asbestos-containing insulation on steam engines at that time, but disputed that steam engines had ever been serviced at Stephens’s father’s workplace. The court recognized that whether Stephens had take-home exposure was “close question” on this evidence, but bypassed that issue.

Instead, the court focused on whether Stephens had sufficient evidence to establish that take-home exposure to Union Pacific asbestos was a substantial factor in causing his mesothelioma. The court wrote that the “liberal” substantial-factor standard “is not without limit.” Instead, the Clia Kits noted that substantial-factor causation require asbestos plaintiffs to demonstrate “substantial exposure to the relevant asbestos for a substantial period of time.” “Minimal exposure,” the court wrote, is “insufficient” to establish that a defendant’s asbestos was a substantial factor in an injury.

The Ninth Circuit ruled that Stephens’s evidence did not meet that standard. The court reasoned that Stephens had no evidence that his father frequently worked around asbestos, and therefore no evidence that the dust on his father’s clothes contained asbestos. The court observed that Stephens offered no evidence about his father’s duties at the Union Pacific facility, and none that his father worked with or around asbestos. Without evidence that his father worked around asbestos, Stephens could not establish that his father regularly brought asbestos dust home on his clothes. While Stephens’s experts testified that he would have had significant exposure from his father’s clothes, and that that level of exposure would have been a substantial factor in his mesothelioma, the court rejected both opinions because there was insufficient evidence that Stephens’s father had actually worked around asbestos.

The new findings are the first to link SV40 with a common human disease,
however tentatively. To avoid alarming every thirtysomething and fortysomething
person in the industrialised world, the researchers behind the study stress
three things. ‘We do not know where the virus came from, we don’t know if
it’s SV40 or a related one, or even whether it is responsible for the tumour,’
says Michele Carbone of the National Institutes of Health in Bethesda, Maryland,
who led the study.

Read more: https://www.newscientist.com/article/mg14219260-300-mystery-virus-linked-to-asbestos-cancer/#ixzz6HrQoFPaW

Scientists have discovered the ‘footprints’ of the
virus in tumour tissue from people with mesothelioma, an industrial disease
that has reached epidemic proportions among construction workers. The researchers
suggest that asbestos and the infectious agent may work together or independently
to turn cells cancerous.

Read more: https://www.newscientist.com/article/mg14219260-300-mystery-virus-linked-to-asbestos-cancer/#ixzz6HrQiactS

While Stephens may directly control only Idaho-law cases in the Ninth Circuit, it nevertheless provides a sound roadmap for defendants in any jurisdiction in cases with questionable or sporadic evidence of exposure.

Gordon & Rees Trial Teams Win Two Defense Verdicts in One Week

In the span of a single week, Gordon Rees Scully Mansukhani  trial teams won  defense verdicts on behalf of clients Hennessy Industries, LLC in California and Colgate-Palmolive in Kentucky. These results demonstrate not only the skill and dedication of the firm’s  trial lawyers, but the tremendous depth of the firm’s  trial teams, enabling them to defend multiple clients in diverse jurisdictions, check in our homepage for more info.

Verdict # 1 – Hennessy Industries Wins Los Angeles Asbestos Trial

On July 29, Gordon & Rees attorneys Bob Rich and Rob Rodriguez won a complete defense verdict on behalf of Hennessy after a seven-week jury trial in Los Angeles Superior Court. Plaintiff Randolph Morton sought to hold Hennessy and Pneumo Abex liable for his stage IV lung cancer. There was no evidence of any smoking history. Mr. Morton alleged that his lung cancer was caused by his use of AMMCO’s brake grinder in the 1960s, primarily in high school auto shop class from 1962-65. During trial, Plaintiffs argued that in the 1960s most passenger vehicle brakes contained asbestos, and that the medical and scientific community was well aware of the hazards associated with grinding such brakes. They further argued that AMMCO was effectively put on notice of such hazards and at a minimum should have warned its customers of the dangers associated with asbestos. Plaintiffs, represented by Simona Farrise and Trey Jones, sought in excess of $5 million in economic and non-economic damages, plus punitive damages.

Hennessy’s trial team argued that AMMCO acted reasonably and prudently throughout the relevant time period. Hennessy also argued that Mr. Morton’s limited asbestos exposure from brakes was insufficient to increase his risk of developing lung cancer. The defense experts included Dr. Lucian Chirieac, Dr. Allan Feingold, Mary Finn, Ph.D (IH), and Dominik Alexander, Ph.D. (epidemiologist). Plaintiff’s experts included Dr. Brody, Charlie Ay, Dr. Barry Castleman, and pulmonologist Dr. Barry Horn.

The Santa Monica jury returned a defense verdict in favor of Hennessy and Pneumo Abex.

Verdict # 2 – Colgate Wins Kentucky’s First Cosmetic Talcum Powder Trial

On Friday, August 2, the Gordon & Rees trial team of Edward Slaughter, Quincy Jones, Mark Crapo, Andrea Holmgreen, and Maddie Wiarda received a complete defense verdict on behalf of client Colgate-Palmolive Company in the first cosmetic talcum powder trial in Kentucky. After a three-week trial in the Jefferson Circuit Court in Louisville, Kentucky, the jury returned a defense verdict for defendants Colgate-Palmolive Company and Johnson & Johnson after less than one hour of deliberation.

Plaintiff was represented by Joseph Satterley (Kazan, McClain, Satterley & Greenwood; Satterley & Kelley) and Paul Kelley (Satterley & Kelley—a local Kentucky firm). Plaintiff sued both Colgate-Palmolive Company and Johnson & Johnson claiming her mother’s death in 2016 was due to the inhalation of asbestos through her use of allegedly contaminated talcum powder. Plaintiff sought over $5 million in damages, not including punitive damages.

This is a significant victory, particularly considering the increase in talcum powder cases being filed against cosmetic talcum powder manufacturers and suppliers throughout the United States.

Time Limits on Plaintiff Depositions on Their Way to Becoming Law in California

A bill to unduly limit deposition time is working its way through the California legislature, and likely to pass soon in some form. Senate Bill 645 would limit the deposition of mesothelioma or silicosis plaintiffs to 7 hours. The 7-hour time limit does not include plaintiff’s direct examination or re-direct examination by their counsel. To trigger the 7-hour time limit, the plaintiff must have a doctor declaration showing that the plaintiff has mesothelioma or silicosis and has six months or less to live.

SB 645 has already passed the California Senate and is an active bill in the Assembly. It was amended in the Assembly on July 5, 2019. Amendments to the time limits of SB 645 have been made as follows: A party can seek an order to extend the deposition time limit to 10 hours if there are more than 10 defendants appearing at the deposition. If there are more than 20 defendants appearing at the deposition, a party can seek an order extending the deposition time to 14 hours. This extension of time depends on the number of defendants present at the plaintiff’s deposition, not the number of defendants named in the caption.

SB 645 allows more time for plaintiffs whose health will not be endangered by the grant of additional time. The defense bar has expressed concern that, to avoid the extension of deposition time, plaintiffs will provide doctor declarations saying the plaintiff’s health is at risk, and judge will not extend the time of the deposition.

Given the current climate in Sacramento, SB 645 will likely pass after it is read, with its amendments, for the final time in the Assembly (date not yet set). After SB 645 passes the Assembly, it will go back to the Senate for approval of the amendments before being approved by the Governor. It is likely that SB 645 will become effective by January 2020.

The defense bar has considered potential Constitutional due process arguments against SB 645. It is likely that, at the deposition of a mesothelioma or silicosis plaintiff, some defendant will have no time to ask questions about alternative exposure or claims against their client because the clock ran out. It will take the “perfect test case” to challenge SB 645. Defendants at depositions will need to collaborate and get organized before depos commence, and work together to create a record of due process issues. Defendants will have to push the plaintiff to provide meaningful responses to interrogatories, and point out the lack of information given to each defendant before the deposition.

WARNING: Illinois 25-Year Statute of Repose No Longer Prohibits Claims Against Employers

No longer will employers be entitled to rely on the Illinois workers’ compensation exclusive remedy protections to prohibit civil actions filed 25 years or more after a worker’s alleged exposure. On May 17, 2019, Illinois Governor J.B. Pritzker signed into law Senate Bill 1596, which allows tort claims to be filed after the state’s occupational-disease 25-year time bar expires. Effective immediately, the Illinois Workers’ Compensation Act and Illinois Occupational Disease Act no longer prohibit workers diagnosed with latent diseases from pursuing their claims after the 25-year statute of repose.

According to a statement from his office, Gov. Pritzker signed this bill into law because the 25-year statute of repose was shorter than the medically recognized time period in which some diseases, including asbestos-related illnesses, are known to manifest.

SB 1596 was enacted in response to the Illinois Supreme Court’s 2015 ruling in Folta v. Ferro Engineering. 2015 IL 118070, 43 N.E.3d 108 (2015). In Folta, the court held that the state’s workers’ compensation and occupational disease law imposed a 25-year statute of repose on both workers’ compensation and tort law claims brought by people diagnosed with latent diseases after exposure to toxic substances such as asbestos, radiation, and beryllium in the workplace. Id. Further, the court held that these Acts were the exclusive remedy to Illinois employees who suffered from latent injuries. Id. at ¶ 12, 6-7.

Illinois law clearly states that the purpose of a repose period is to terminate the possibility of liability after a defined period of time. Id. at ¶ 33, 116. However, this new law removes the statute of repose language from the Acts and affirmatively excludes latent injuries from the exclusive remedy provisions.

While the bill contains no mention of retroactivity, the question of whether its enactment revives certain tort law claims remains unanswered. Illinois courts generally frown upon retroactive applicability and enforcement when a piece of legislation is silent on the issue. But some speculate that the absence of any retroactive language means that this law will not affect certain claims until 2044. While the impact of this legislation remains to be seen, what can be expected is litigation surrounding this issue in the near future.

Click here for a full text of the legislation.

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


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.

Plaintiffs Push to Initiate Asbestos Reporting Rules

Last week, various public health and environmental organizations sued to compel the Environmental Protection Agency to initiate an asbestos reporting rule under the Toxic Substances and Control Act (“TSCA”). Plaintiffs seek to compel importers, manufacturers, and possessors of asbestos and asbestos-containing materials to submit reports on the amounts of asbestos imported and used, the sites where use occurs, the nature of the use, and the resulting potential for exposure of workers and the public.

The complaint for declaratory and injunctive relief was filed in District Court for the Northern District of California by the Asbestos Disease Awareness Organization, American Public Health Association, Center for Environmental Health, Environmental Working Group, and Environmental Health Strategy Center. Plaintiffs’ firms Motley Rice, Simmons Hanley Conroy, and Early, Lucarelli, Sweeney & Meisenkothen are sponsors of the Asbestos Disease Awareness Organization’s annual conference.

The EPA “shall promulgate rules” for asbestos reporting as the “Administrator may reasonably require.” Using its TSCA authority, the EPA promulgated the Chemical Data Reporting rule, which requires reporting of all chemicals imported and manufactured in amounts of 25,000 pounds or greater at a site. However, the EPA advised an asbestos manufacturer and importer in a letter that asbestos was not subject to the Chemical Data Reporting rule because it is a naturally occurring chemical substance.

The EPA denied plaintiffs’ December 2018 petition to expand the Chemical Data Reporting requirements, designate asbestos as a reportable substance, and eliminate exemptions. The EPA reasoned that the Chemical Data Reporting rule did not apply to all asbestos manufacturers or importers, and reporting would not provide information that is not already known by the EPA. Following this denial, plaintiffs have a right to de novo review in a judicial proceeding within 60 days. This lawsuit says asbestos should be subject to the Chemical Data Reporting rule.

This complaint is not alone. Last month, the Attorneys General of 14 states and Washington, D.C. petitioned the EPA to initiate similar rulemaking on asbestos reporting. If a judge rules in favor of the asbestos reporting rule, defendants that manufacture, import, or possess asbesto may be subject to the requirements of the Chemical Data Reporting rule. If an asbestos reporting rule is not initiated, plaintiffs and plaintiffs’ firms will surely continue to challenge the EPA.