Supreme Court arguments: Companies in asbestos cases want to pay their 'fair share,' not split verdicts evenly

By Nicholas Malfitano | Mar 7, 2019


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PHILADELPHIA – Justices from the Supreme Court of Pennsylvania warned of the possibility of “junk science” interjecting its way into product liability lawsuits, if juries were tasked with the specific assignment of defendant damages through the Fair Share Act.

The full body of the court convened at Philadelphia City Hall on Wednesday to hear oral arguments in Roverano v. John Crane, Inc., an asbestos exposure lawsuit that has been scrutinized by legal observers in Pennsylvania for most of the last decade. 

The session’s hot topic boiled down to the apportioning of damages to asbestos defendants, and whether the cost should be shared equally among all of a case’s defendants or allocated as to the perceived level of responsibility of a given defendant.

Background on Roverano v. Crane

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.

Supreme Court Hears Arguments On The Case

Counsel for the Roveranos, Edward Nass of Nass Cancelliere in Philadelphia, said an application of the Fair Share Act didn’t necessarily have to extend across the board in product liability cases and could instead be applied exclusively to asbestos litigation.

Nass also argued that asking jurors to assign exact damages to individual defendants was very difficult, if not impossible, due to the variety and number of contributing factors involved: How many defendants’ products were tied to a plaintiff’s exposure, how long exposure and its subsequent effects are brought to bear on a plaintiff’s health and the lack of being able to determine exactly what product led to a plaintiff’s diagnosis, among others.

Nass’ remarks centered on how rather than a jury being asked to assign damages and liability, all defendants should share responsibility for damages in this case, since none of them issued any warnings on the asbestos-related health dangers of their products.

In representing the defense perspective on behalf of Brand Insulations, Robert Byer of Duane Morris in both Philadelphia and Pittsburgh, countered the legislative language and intent of the Fair Share Act was specific in that individual apportionment of damages was the correct way to approach the issue throughout all product liability litigation in Pennsylvania – and that the Court should let the statute dictate likewise.

According to Byer, juries could utilize scientific evidence to determine the specifics of a defendant’s responsibility for asbestos product exposure, such as exposure length and frequency, and therefore, their apportionment of a case’s damage amounts.

A number of the Supreme Court justices weren’t convinced.

Justice Max Baer stated, “Your theory is interjecting junk science. [The Court] has never held that duration of contact corresponds with culpability,” while Justice David Wecht further asked if the defense could “win without [relying] on legislative history.”

Byer believed it could, despite Wecht’s continual feeling that the Pennsylvania legislature’s insertion of liability issues into laws like the Fair Share Act was problematic.

Fellow defense counselor Michael Pollard of Baker & McKenzie in Chicago argued it was codified that bankruptcy trusts are responsible for dividing and distributing liability-related damages – adding courts could have excluded bankruptcy trusts from that duty and yet, chose not to.

“We have no control over bankruptcy trusts,” Baer said.

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

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