Asbestos chrysotile fibers. Photo: Shutterstock

In a closely watched case that is likely to provide needed guidance to courts and litigators on how to apply the Fair Share Act in a strict liability setting, the Pennsylvania Supreme Court has ruled that the FSA does not require percentage apportionment of liability in strict liability cases.

The high court also ruled that bankruptcy trusts that are either joined as third-party defendants or that have entered into a release with the plaintiff can be included on the verdict sheet for purposes of apportioning liability only.

The case, Roverano v. John Crane, stems from a lawsuit filed by William Roverano, a former PECO Energy employee, and his wife against numerous defendants over claims he was exposed to asbestos-containing products that eventually caused him to develop lung cancer. In 2016, a Philadelphia jury awarded Roverano $6.3 million.

The verdict sheet listed eight defendants, but the jury did not determine how much each should contribute to the award. Instead the judge distributed the damages evenly between the defendants on a per capita basis. 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. The Superior Court also reversed the trial court's grant of the plaintiffs' motion in limine that sought to exclude from the verdict sheet entities that went bankrupt before they filed their lawsuit.

The justices ruled 6-1 to reverse the Superior Court's ruling that the FSA barred per capita apportionment of liability, but affirmed its decision with regard to inclusion of the bankrupt entities.

On the issue of per capita apportionment versus percentage apportionment, the Supreme Court said it would be "unreasonable and impossible of execution" to require a calculation of each individual defendant's percentage of liability in asbestos litigation because of the nature of the injury.

"Lung cancer resulting from asbestos inhalation is inherently a single, indivisible injury that 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," Justice Sallie Updyke Mundy wrote for the majority in a Feb. 19 opinion. "Consequently, when two or more actors combine to cause an indivisible injury, and each is a substantial contributing factor, each actor is the legal cause of the entirety of the harm. Because it is impossible to determine which actor caused the harm, it follows that it is impossible to apportion the amount of each defendant's liability on a percentage basis."

Mundy, joined by Judges David Wecht, Max Baer, Debra Todd, Christine Donohue and Kevin Dougherty, also found that the plain language of the FSA called for liability to be apportioned equally among defendants in strict liability cases.

"There is nothing in the act that suggests that the method of determining the ratio of liability for strict liability cases must be the same as specifically described for negligence cases alone in the prior version of Section 7102," Mundy said.

Chief Justice Thomas Saylor dissented on the issue of apportionment, arguing that "the majority … attributes insufficient weight to the clear indicia of the legislature's intent to proceed in a new direction by implementing a fair share or comparative responsibility regime."

But the court was unanimous in affirming the portion of the Superior Court's decision that remanded the case back to the trial court to determine whether bankrupt entities that had entered into releases with the Roveranos should be included on the verdict sheet, finding that the FSA specifically provides for such entities to be taken into consideration when apportioning liability.

Mundy said Section 7102(a.2) of the FSA "permits a factfinder to apportion liability to those asbestos bankruptcy trusts that have entered into releases with the Roveranos, but were not named defendants."

However, in order for those entities to be added to the verdict sheet, the defendants in the case must submit sufficient requests and proofs to apportion liability to the settled bankruptcy trusts, Mundy said. The justices remanded the case to the trial court for a determination as to whether the defendants in the Roveranos' case met that requirement.

Counsel for the plaintiffs, Edward Nass of Nass Cancelliere in Philadelphia, could not be reached for comment. Counsel for defendant Brand Insulations, Robert Byer of Duane Morris in Pittsburgh, declined to comment.