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From Products Liability Law Daily, January 3, 2018

Fair Share Act mandates apportionment of liability in asbestos exposure litigation

By Harold S. Berman J.D.

Under Pennsylvania’s Fair Share Act, the liability of several companies found strictly liable for an employee’s exposure to asbestos and subsequent lung cancer must not be allocated on a per capita basis but, rather, proportionately based on each company’s liability, the Superior Court of Pennsylvania ruled. The state appellate court affirmed the trial court’s decisions regarding several jury instructions and admission of expert testimony, but reversed the trial court’s determination that the Fair Share Act did not apply to litigation involving products containing asbestos. Thus, the Superior Court vacated the trial court’s judgment and remanded the case for a new trial to apportion liability among the companies, including any settlements made with bankrupt companies (Roverano v. John Crane, Inc., December 28, 2017, per curiam).

An employee who worked for an electric and natural gas company for thirty years until he retired in 2001, was exposed to asbestos-containing products during the first decade of his tenure. In 2013, the employee was diagnosed with lung cancer in both lungs. In 2014, he and his wife sued thirty entities, alleging that his exposure to asbestos products was attributable to them and caused his lung cancer. At trial, the jury found in favor of the employee and his wife, and against eight of the entities they had sued. The jury awarded the employee over $5 million, and his wife over $1 million for loss of consortium. The trial court apportioned the judgment equally among the eight companies, two of which appealed, asserting that the trial court made numerous errors.

Jury instructions—"factual cause" definition. The Superior Court dismissed the companies’ assertion that the trial court erred in defining "factual cause" in its jury instructions, holding instead that the trial court properly rejected the companies’ request for a "but for causation" jury charge, and that the lower court had properly instructed the jurors. Pennsylvania law requires a showing in products liability cases that a defect in a product was a substantial factor in causing the injury, not that it was the "but for" cause.

Causation question on verdict sheet. The trial court did not abuse its discretion by denying the request by one of the companies to include a question on the verdict sheet that addressed whether the employee’s injuries were caused by exposure to asbestos or by smoking. The company argued that a principal theory of its defense was that the employee’s lung cancer was caused by his extensive smoking, rather than asbestos, and that the trial court’s denial of the company’s question on the verdict sheet prevented the company from presenting its theory to the jury. However, the purpose of a verdict sheet is to guide the jury on the general issues about which they must decide, not to reflect a party’s legal theories, the appellate court said.

"Unreasonably dangerous" question on verdict sheet. In addition, the trial court properly rejected one of the companies’ requests that the verdict sheet include a question concerning whether the asbestos was unreasonably dangerous, and properly limited the questions on the verdict sheet to whether the employee was exposed to the company’s asbestos and whether that exposure caused his lung cancer. The primary issues at trial focused on exposure and causation, not the defect of the product. The company did not dispute that its product contained asbestos.

"Each and every" exposure testimony. The Superior Court further found that the trial court properly allowed the employee’s expert testimony. The appellate court disagreed with one of the companies’ characterization of the employee’s expert witness testimony as offering "each and every" or "whatever" asbestos exposure causation testimony when the employee did not have any medical markers of asbestos exposure. The totality of the employee’s expert testimony showed that his experts did not testify that only a single exposure to the asbestos-containing products caused the employee’s cancer; rather, it showed that multiple exposures to the companies’ products were a substantial factor in causing the employee’s lung cancer. One expert testified that both the smoking and the frequent asbestos exposure caused the employee’s lung cancer, not basing his conclusions on the premise that the employee had a single exposure to asbestos. Nor was it shown that any expert at trial based his opinion on the premise of a single exposure. The objecting company’s arguments against the admissibility of the experts’ testimony all pertained to the testimony’s weight, rather than admissibility, and it was within the jury’s discretion to determine the weight to give the evidence.

Fair Share Act. Finally, the Superior Court concluded that the trial court erred in holding that Pennsylvania’s Fair Share Act did not apply to the case, and that the jury could not apportion liability as provided under the Act. The statute’s language and legislative intent did not exclude asbestos litigation from the Act’s requirements. The Superior Court held that, as required by the Fair Share Act, liability in a strict liability case such as this one involving products containing asbestos, should not be allocated on a per capita basis, but rather proportionately, based on each tortfeasor’s liability.

The appellate court also agreed with the companies’ contention that the jury on remand must be permitted to consider evidence of any settlements by the employee and his wife with bankrupt entities in connection with apportionment of liability. The Fair Share Act requires that settlements with bankrupt entities be included in calculating liability.

Concurrence and dissent. Justice Carl Solano issued a concurring and dissenting opinion. He joined in full the portion of the opinion relating to the Fair Share Act. However, because he found that the jury charge failed to explain clearly what proof of causation was needed to establish liability, he would have remanded for a new trial on liability, and not just on apportionment of damages. According to the Justice, while the trial court’s charge did not materially depart from governing legal principles, it did not clearly explain them either. Rather, the instructions substituted terms such as "factual cause" and "legal cause" for "more sophisticated concepts that required explanation," and, thus, failed to provide clear definitions of the terms used.

The cases are Nos. 2837 EDA 2016 and 2847 EDA 2016.

Attorneys: Nass, Edward M. (Nass Cancelliere Brenner) for William C. Roverano. Adams, William Rudolph (Dickie, McCamey & Chilcote, PC) for John Crane, Inc. Langschultz, Theresa A. (Duane Morris LLP) for Brand Insulations, Inc.

Companies: John Crane, Inc.; Brand Insulations, Inc.

MainStory: TopStory DamagesNews CausationNews DefensesLiabilityNews AsbestosNews PennsylvaniaNews

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