Years after passage, Fair Share Act still a question mark in asbestos cases

By Nicholas Malfitano | Aug 29, 2016

PHILADELPHIA – Appellate court guidance on how to use 2011's Fair Share Act in asbestos trials has not yet occurred, leaving state trial court judges to decide on their own.

“One of the biggest [issues] is there is no appellate law on the application of the Fair Share Act in these cases. Typically, when it comes to applying law, we look at the appellate courts for guidance, whether that’s the Superior Court or Supreme Court,” said Gregory M. Stokes of Swartz Campbell, in Philadelphia.

Stokes is a litigator who specializes in defending product manufacturers, suppliers and premises owners in asbestos-related cases.

“Since the passing of the Fair Share Act, there has not been any appellate law to the best of my knowledge, specifically related to asbestos cases where it involves claims of strict liability and negligence, where an appellate court has taken the issue up. We don’t have the guidance from the appellate courts in this case, so it’s left to the interpretation of the trial judges.”

The FSA, signed into Pennsylvania law by then-Governor Tom Corbett in June 2011, amended the Commonwealth’s Comparative Negligence Statute (42 Pa C.S.A. Section 7102) and stipulated that if an individual defendant was found less than 60 percent liable in a given case, then dollar-amount damages for said defendant would be set at a level proportional to their percentage of liability in that case.

The FSA served to substantially curtail, if not remove, the concept of joint and several liability from such cases tried in the state.

Stokes elaborated the small number of cases that have proceeded to a jury verdict since the FSA’s passing could be a contributing factor to the lack of appellate court precedent, on the issue of the law’s application or non-application.

“There really haven’t been many cases that have gone to verdict in the Commonwealth applying the Fair Share Act. I think there’s been approximately seven or eight cases, around 10 cases that have gone to verdict since the passage of the Fair Share Act. For whatever reason, those cases have not been appealed,” Stokes said.

“If there’s no appeal from the trial verdict, then obviously there can be no determination by any appellate court whether the application or non-application of the Fair Share Act was proper or improper."

Stokes pointed to an overwhelming majority of cases, which he approximated as “90 to 95 percent,” being settled before proceeding to trial as another factor preventing an appellate court from examining the issue.

“Your pool of cases that actually go to verdict is pretty small. We’re talking about 10 cases over the course of four or five years, so you’re looking at one to two cases per year that actually go to verdict, which is not a very large number,” Stokes said. 

“I would expect that we’d see one of these cases in the next couple of years going up to the appellate courts, but we just haven’t seen it yet. There have been a couple of recent cases that may see appeals and may see this issue being considered by the Superior Court.”

Stokes also referred to a trend of plaintiffs asking to drop the negligence part of their cases, in order for the FSA not to be applied.

“There are a couple of situations: One is we’ve heard the arguments from plaintiffs that because the Fair Share Act is part of a comparative negligence statute that it is a negligence issue. And since most of these claims are mixed claims of negligence and strict liability, we’ve seen situations where counselors argued that the inclusion of the strict liability claim renders the Fair Share Act inapplicable in the claim,” Stokes stated.

Stokes added, “There is the possibility that they can go a step farther, which is to drop the negligence claim and proceed only in strict liability, which could conceivably strengthen their argument in relation to the non-applicability of the Fair Share Act. Once you eliminate the negligence issue, Plaintiffs may argue the case would fall outside of the comparative negligence statute.”

Stokes also praised the oversight of asbestos cases in the Philadelphia County Court of Common Pleas’ Complex Litigation Center, by Judge Arnold L. New.

“He’s done a phenomenal job over the past few years in streamlining these cases. He does have a team of judges who are assigned these asbestos cases, it’s a rotating team. Each year, he has a couple of judges that are added to that team, and a couple who go into different programs,” Stokes said.

Stokes explained New “rules on a majority of summary judgment motions, handles the pre-trial pleadings, motion practice and any issues relating to discovery or trial scheduling” in these cases.

“Judge New, the way he runs this program, I think it’s a fair program for all parties. He does try to push for resolution if the case can be resolved, but he also gives all parties the opportunity to try a case, if it’s a case that they think for whatever reason should be tried,” Stokes said.

In regards to the rotating team of judges in the CLC overseeing the asbestos cases and attorneys not learning who the presiding judge will be until shortly before court proceedings begin, Stokes indicated such a policy puts all parties involved on an even playing field.

“I would say everybody is in the same position. If defendants don’t know, plaintiffs don’t know, then I don’t know if there’s much advantage for anybody in that situation. It makes all parties think long and hard whether they want to take the case to trial,” Stokes said.

“Obviously, some judges may have leanings towards certain rulings and judges will decide motions, objections and legal issues as they see them. Without knowing which judge you’re going to be assigned to, I think all parties are on equal footing at that point."

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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