Groups don't want Pa. Supreme Court to create Fair Share Act exception for asbestos lawsuits

By Nicholas Malfitano | Dec 10, 2018

HARRISBURG – Business and legal reform groups are calling on the state Supreme Court to uphold a specific application of a law that governs how defendants split the check when a plaintiff verdict comes in - opposing a so-called "carve-out" that would keep the law from applying to asbestos cases.

The Nov. 16 brief - authored by Mark Behrens of Shook, Hardy & Bacon in Washington, D.C., and John J. Hare and Daniel Ryan, Jr. of Marshall Dennehey in Philadelphia - urges the Supreme Court to follow the letter of the law in the Fair Share Act and “apportion liability on a percentage basis as opposed to a per capita basis” in the strict liability asbestos case of Roverano v. Crane, Inc.

“We support the uniform application of tort law. Asbestos plaintiffs deserve empathy, but asbestos cases are subject to the same rules that apply to other types of toxic torts. The Fair Share Act includes no special asbestos 'carve-out,'" the argument in the brief says.

“A per capita allocation could leave a minor player paying a disproportionate share while potentially giving a windfall to a more culpable trial defendant. Each trial defendant would pay the same amount despite having different degrees of responsibility. That is not the policy of the Act.”

Among the organizations attached to the brief are the Pennsylvania Chamber of Business and Industry, Pennsylvania Manufacturers’ Association, Insurance Federation of Pennsylvania, Pennsylvania Association of Mutual Insurance Companies, Pennsylvania Defense Institute, Philadelphia Association of Defense Counsel, Pennsylvania Coalition for Civil Justice Reform, Coalition for Litigation Justice, Inc., Nantional Association of Manufacturers, American Tort Reform Association, U.S. Chamber of Commerce, American Insurance Association and NFIB Small Business Legal Center.

The Fair Share Act, signed into Pennsylvania law by then-Governor Tom Corbett in June 2011, amended the Commonwealth’s Comparative Negligence Statute 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 Fair Share Act served to substantially curtail, if not remove, the concept of joint and several liability from such cases tried in the state. Formerly, defendants found responsible for a middling amount of the verdict could be required to pay the entire thing if co-defendants could not pay their part.

For several years, though, appellate court guidance on the applicability of the law to asbestos litigation was absent.

Enter Roverano v. Crane, Inc.

Plaintiff William Roverano worked for the Philadelphia Electric Company (PECO) from 1971 to 2001 and claimed his exposure to more than 15 types of asbestos products from several different manufacturers during the time period of 1971-1981 led to his development and diagnosis of lung cancer in 2013.

In contrast, the defendants argued Roverano’s history of smoking led to his lung cancer, rather than any exposure to asbestos products.

The trial court, the Philadelphia County Court of Common Pleas, denied the defendants’ motion to apply the Fair Share Act to the case, explaining the legislation could not apply since “asbestos exposure is not quantifiable.”

A jury later found in favor of Roverano and his wife, awarding them in excess of $6.4 million, with the cost evenly split among eight defendants named in the lawsuit — all of which were solvent at the time.

On appeal, the defendants raised the issue of the Fair Share Act not expressly prohibiting its own application to asbestos cases, an argument which found favor in a December 2017 decision from the Superior Court of Pennsylvania and was cited as grounds for a new trial on remand.

“We hold that the trial court failed to apply the Fair Share Act in the manner intended by the Legislature and that we therefore need to remand this case for a new trial on the question of apportionment of liability,” the Superior Court’s decision read.

The Roveranos appealed the Superior Court’s December 2017 decision to the state Supreme Court, claiming the impossibility of accurately determining liability percentage from each defendant’s products, and that the appellate court erred in its particular interpretation of the Fair Share Act and its inclusion of bankrupt companies.

PCCJR Executive Director Curt Schroder issued a statement on the amicus brief.

“In light of the clear and unambiguous wording of the Fair Share Act, which specifically states that strict liability actions are included under the act, I do not see how the Supreme Court can rule that strict liability asbestos actions are not included under the provisions of the act. To hold otherwise would be to judicially write that line out of the act,” Schroder said.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Organizations in this Story

Marshall Dennehey Warner Coleman & Goggin Pennsylvania Coalition For Civil Justice Reform Philadelphia County Court of Common Pleas Shook, Hardy, & Bacon Llp Superior Court of Pennsylvania

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