In 2011, Pennsylvania enacted a law called the Fair Share Act to modernize the Commonwealth’s approach to awarding damages in personal injury lawsuits and make the law more equitable for defendants with low culpability. Previously, a plaintiff could obtain a full recovery from any blameworthy defendant—even a defendant that was only 1% at fault.
The old approach left defendants with little culpability on the hook for judgments that were grossly disproportionate to their share of the harm. By enacting the Fair Share Act, Pennsylvania joined the vast majority of states that require damages in personal injury cases to be apportioned according to each defendant’s share of responsibility for an injury.
Today, however, the Fair Share Act’s name is a misnomer. Court decisions have eroded the Act significantly. In addition, tactics by the plaintiffs’ bar have reduced the Act’s effectiveness. The Act needs to be amended so that those who are sued for personal injuries pay based on their responsibility, not their wealth.
Behrens
The Pennsylvania Supreme Court’s decision in Roverano v. John Crane, Inc., 226 A.3d 526 (Pa. 2020), is one example of how the Fair Share Act has been eroded. In Roverano, the court held that damages in strict liability asbestos cases must be allocated on a per capita basis instead of based on each defendant’s percentage of fault. Thus, each liable defendant must pay an equal share, regardless of how little a particular defendant may have contributed to the total harm—e.g., if four defendants are found liable, each pays twenty-five percent of the award, even if several of them only played a minor role. This is clearly not “fair share.”
The court in Roverano asserted that it would be “impossible” to utilize a percentage basis for apportionment in strict liability asbestos cases, characterizing the injuries as “indivisible.” But juries in other states routinely apportion damages to various asbestos defendants and responsible third parties by assigning percentages of fault to each, and so do Pennsylvania juries in cases brought only on a negligence theory of recovery. The court also ignored language in the Act that specifically states the statute applies to “actions for strict liability.”
Another example of how the Fair Share Act has been eroded is the Pennsylvania Superior Court’s decision in Spencer v. Johnson, 249 A.3d 529, 559 (Pa. Super. Ct. 2021). In Spencer, the appellate court went out of its way to suggest that the Act does not apply in cases involving innocent plaintiffs. The court reached this conclusion through a highly technical reading of the statute. As a result, a minor defendant may have to pay 100% of a tort award in any case in which the plaintiff is blameless. Meanwhile, the legislative record is replete with statements confirming that the Fair Share Act replaces joint and several liability in its totality.
Plaintiffs’ lawyers have also figured out that they can easily circumvent the Act through gamesmanship in some types of cases. The Act provides that juries may assign shares of liability to any “person who has entered into a release with the plaintiff.” The intent is to prevent plaintiffs from obtaining double recoveries. This could happen if a plaintiff were able to settle with some defendants before trial, then recover 100% from any others that are left standing at trial.
Yet, this is exactly what happens in asbestos and other cases that involve injuries which are compensable in the tort system and through trusts established by bankrupt entities. By simply delaying the filing—and therefore the release—of any bankruptcy trust claims, a plaintiff can prevent a jury from allocating any responsibility to bankrupt entities that were the primary cause of the plaintiff’s harm. The impact is that minor defendants pay disproportionately and a plaintiff can obtain more money than a jury determines is needed to make that person whole.
The Fair Share Act needs to be updated to fix these issues, because they threaten to return Pennsylvania to the outlier it was before the Act abolished joint and several liability in 2011. The Act could be simplified too. The General Assembly should ensure that the Act applies in all cases, including asbestos strict liability actions and cases involving plaintiffs who are not contributorily negligent. In addition, juries should be allowed to assign shares of responsibility to anyone that contributes to a plaintiff’s injury, including defendants that remain in the case through verdict, defendants that settle or are dismissed, immune nonparties, and the plaintiff.
Mark Behrens co-chairs the Public Policy Group in Shook, Hardy & Bacon L.L.P., an international law firm that represents defendants in complex civil cases.