Litigators have closely followed a recent decision that has provided needed guidance and has reshaped how asbestos liabilities are apportioned in strict liability cases. On February 19, 2020, the Pennsylvania Supreme Court issued its long-awaited opinion in Roverano, et al., v. John Crane, Inc., et al., 6 EAP 2018 (Pa. Feb. 19, 2020), which held that in strict liability asbestos cases, damages are to be split per capita among remaining defendants, and that the Fair Share Act under 42 Pa.C.S. § 7102 does not require percentage apportionment of liability in strict liability cases. The decision further held that bankruptcy trusts may be included on the verdict sheet to bring more parties to the table for the purpose of apportioning liability only.
William Roverano (“Plaintiff”) was allegedly exposed to asbestos as a carpenter with PECO Energy Company from 1971 to 1981 and developed lung cancer in 2013. Plaintiff smoked cigarettes for 30 years until 1997. Plaintiff brought a strict liability lawsuit against thirty defendants asserting that exposure to their asbestos products caused his lung cancer. Plaintiff’s wife, Jacqueline Roverano, also filed a loss of consortium claim. Before trial, the remaining defendants sought to have Pennsylvania’s Fair Share Act applied to allocate each defendant’s liability based on the defendant’s percentage of total harm to the plaintiffs. They also sought to include multiple bankruptcy trusts on the verdict sheet. After an eight-day trial, the jury found in favor of the plaintiffs against the only two defendants left, Brand Insulation, Inc. and John Crane, Inc. The verdict in favor of the plaintiffs was for $6,439,265.00. The trial court distributed damages evenly between the eight defendants on the verdict sheet on a per capita basis, so each defendant remaining was responsible for $646,658.00 of plaintiffs’ total damages.
There were two issues appealed to the Superior Court and ultimately to the Supreme Court of Pennsylvania: (1) whether the Fair Share Act requires the jury to apportion liability on a percentage basis as opposed to a per capita basis in strict liability asbestos cases; and (2) whether the Fair Share Act requires the jury to consider the evidence of any settlements with bankrupt entities in connection with the apportionment of liability amongst joint tortfeasors.
On appeal, a three-judge Superior Court panel vacated the trial court’s ruling that the Fair Share Act did not apply and remanded the case for a new trial to apportion liability. This matter was then appealed to the Supreme Court of Pennsylvania and oral argument was heard on March 6, 2019. The Supreme Court ultimately held that the Fair Share Act applied to strict liability cases and, because the statute did not specifically delineate how a jury was to apportion liability among multiple defendants, the court held the statute failed to override or alter the common law requiring per capita apportionment. The Supreme Court’s ruling specifically addressed asbestos litigation by agreeing with and adopting the plaintiffs’ experts’ opinion that disease resulting from asbestos inhalation is “incapable of being apportioned in a rational manner because the individual contributions to the plaintiff’s total dose of asbestos are impossible to determine.” Additionally, the Supreme Court ruled that bankruptcy trusts that are non-parties could be included on the verdict sheet provided there are appropriate requests and proofs.
The Supreme Court’s ruling in Roverano will have a substantial impact on future asbestos litigation. First, small share defendants may have to pay more to settle because a defendant whose asbestos product is only implicated in minimal asbestos exposure to a plaintiff at trial may be lumped in with all other defendants equally, even if there is evidence that plaintiff was exposed to other defendants’ products to a greater degree. Evidence of a small number of exposures to asbestos will be treated as having the same value as significant exposures due to the per capita apportionment. Second, it seems likely that plaintiffs will be less likely to settle filed claims with bankruptcy trusts until after a case settles or trial concludes. There is no statute of limitations to file claims with most bankruptcy trusts, so plaintiffs are less likely to settle filed claims while litigation is pending, since that will ensure the inclusion of those bankrupt entities on the verdict sheet and reduce the per capita share recovered from the viable defendants. Finally, defendants in Pennsylvania cases should join bankruptcy trusts as additional defendants where permitted to ensure inclusion on the verdict sheet.