On March 6, 2019, the Pennsylvania Supreme Court heard argument in a case that should clarify whether a jury can determine that some asbestos defendants are more liable than other defendants or whether the verdict should be simply divided by the number of defendants. By way of background, on June 28, 2011, the Fair Share Act went into effect in Pennsylvania, which eliminated traditional joint and several liability for most tort cases. Under the Fair Share Act, if a defendant is found to be less than 60% responsible for plaintiff’s injury, then that defendant only pays its fair share of the verdict, i.e., its pro rata share. A defendant which is 60% or more responsible for plaintiff’s injury can be made to pay the entire verdict. By its terms, the Fair Share Act expressly applies to actions for strict liability.
In the case of Roverano v. John Crane, Inc., 177 A.3d 892 (Pa. Super. 2017), the Court of Common Pleas of Philadelphia County refused to apply the Fair Share Act in an asbestos case. William Roverano was employed at the Philadelphia Electric Company, where he claimed he was exposed to a variety of asbestos products. Twelve years after he retired from PECO, Mr. Roverano was diagnosed with lung cancer and filed a complaint against 30 defendants. Prior to trial, more than a dozen defendants filed for bankruptcy, and most of the other defendants settled, so the case proceeded to trial against John Crane, Inc. and Brand Insulations, Inc.
The jury returned a verdict against Crane and Brand as well as six of the other defendants and awarded 5.2 million dollars to Mr. Roverano and 1.25 million dollars to his wife for loss of consortium. Defendants then filed motions for post-trial relief. The trial court denied the defendants’ motions and entered judgment in favor of the Roveranos and apportioned the judgment equally among the eight defendants whom the jury determined to be tortfeasors. Thus, the judgment against Crane and Brand amounted to $650,000 on Mr. Roverano’s verdict and $156,000 on Mrs. Roverano’s verdict.
Defendants appealed to the Superior Court, which reversed and remanded in a per curiam opinion. Briefly stated, the Superior Court found that the trial court erred when it determined that the Fair Share Act did not apply to this case. The Superior Court noted that the Fair Share Act explicitly applies to tort cases including actions for strict liability, and there are no exceptions for asbestos cases. The Roveranos appealed to the Supreme Court, which heard arguments on March 6, 2019.
At argument, defendants argued that juries could hear expert testimony concerning the frequency and length of time that an employee was exposed to asbestos in order to determine the proportional fault of a given defendant. Some of the justices expressed skepticism of this argument; however, Justice Baer specifically stated that he thought allowing juries to determine proportional shares of liability based on how long a particular plaintiff was exposed to the product of a particular defendant would be inviting “junk science” into the courtroom. He further stated that the Supreme Court had never held that there was any correlation between duration of contact and culpability. There is no timeline for the Supreme Court to issue its opinion, but is likely there will be a decision by the end of the year.