After the advent of hyperstrict products liability law in the 1960s, Pennsylvania law fell into the trap of treating liability as joint and several, based upon pro rata, or per capita contribution. The Pennsylvania regime worked a tremendous hardship and unfairness, especially in the context of asbestos personal injury cases. If there were 10 companies sued in a mesothelioma case, each would be responsible under a molded verdict for a 10 percent share. This per capita molding would take place even if an non-settling defendant contributed less than1 percent of the asbestos exposure, and another, settled (or bankrupt) defendant was causally responsible for 50 percent of the friable asbestos in the workplace. Similarly, the per capita shares would be imposed even in a mesothelioma case involving one defendant that manufactured a crocidolite product that was 99.9 % causally responsible for the plaintiff’s demise.
In 2011, Pennsylvania enacted the Fair Share Act, which was remedial legislation designed to mitigate the unfairness of joint and several liability in mass, and other, tort litigation by abrogating joint and several liability in favor of apportionment of shares among multiple defendants, including settled defendants.[1]
Although the statute stated the general rule in terms of negligence,[2] the Act was clearly intended to apply to actions for so-called strict liability:
“(1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection.”[3]
The obvious point of the Fair Share Act was to require courts to mold verdicts among so-called joint tortfeasors by their relative, comparative contribution to the plaintiffs’ harm.[4] Although the Act carved out exceptions for intentional torts and for cases in which a defendant receives 60% or greater share in the apportionment, the run-of-the mine asbestos case fell squarely under the scope of the Act’s remedial purpose.[5]
The 2011 Pennsylvania remedial legislation sought to reform the state’s wooden approach by reintroducing apportioned contribution to join and several liability.
In Roverano v. John Crane, the Pennsylvania trial judge fell under the ever-present spell of asbestos exceptionalism, when he refused to apply Fair Share Act, suggesting that “the jury was not presented with evidence that would permit an apportionment to be made by it.” The trial judge’s conclusory suggestion ignored the trial proofs, which would have given the jury ample basis for apportioning, given that the plaintiff had been exposed to different asbestos products in distinguishable amounts, and for distinguishable durations.[6] Furthermore, asbestos products have distinguishable, relative levels of friability, with different levels of respirable fiber exposure for the plaintiff. As noted, in mesothelioma cases, the products will inevitably contain different kinds of asbestos minerals – crocidolite, amostie, or chrysotile – which have distinguishable and relatively different levels of potency to cause the plaintiff’s specific disease. Asbestos cases, whether involving asbestosis, lung cancer, or mesothelioma claims, are more amenable to apportionment of shares among co-defendants than are “red car / blue car” cases.
Riding in on a ray of light, the Pennsylvania Superior Court reversed the trial court’s asbestos exceptionalism, and held that upon remand, the court must:
“[a]pply a non-per capita allocation to negligent joint tortfeasors and strict liability joint tortfeasors; and permit evidence of settlements reached between plaintiffs and bankrupt entities to be included in the calculation of allocation of liability.”[7]
The lawsuit industry was riled by the intermediate appellate court’s decision.[8] Plaintiffs counsel like per capita – equal – shares because it allows them to settle with strong adversaries, which funds their trials against weaker or recalcitrant defendants. If they lose, they lose; but if they win, they have minimized the offsets for the large contributors to their clients’ harms. The regime of equal pro capita contribution also allows to extort large settlements from minor defendants. The force behind this extortion is amplifed by the inability of all sued defendants to obtain offsets for the shares of settled or non-sued bankrupt defendants.
The Roverano plaintiff appealed from the Superior Court’s straightforward application of a remedial statute. At oral argument, Justice Baer invoked the specter of “junk science” appearing before juries in the form of evidencce for apportioned shares:[9]
“Respectfully, your theory is interjecting junk science. We’ve never held that duration of contact corresponds with culpability.”[10]
Six of the seven justices on the Pennsylvania Supreme Court, however, did not see the light on apportionment.[11] Although the majority allowed the bankrupts, whether sued or not, to be placed on the verrdict sheet for a potential offset to the liability of the judgment defendants, the Court held that the Fair Share Act did “not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.”[12]
The majority in Roverano demonstrated a singular lack of understanding of the record evidence, and the law of apportionment. Perhaps the Court’s best defense was that it was snuckered by the professional testifier, Dr. Arthur Frank, who described all asbestos diseases as “dose responsive, meaning that as the dose of asbestos increases so does the likelihood of disease.”[13] Frank proffered an obscurantist explanation:
“[T]here is scientifically or medically no exposures you can leave out that make up the cumulative exposure. It is the totality of the exposure that comes from the variety of products that people are exposed to that give them their cancer and all of the exposures they have day after day end up increasing their risk and if they get the disease, you have to say it was in part causative of it.”[14]
Frank thus concluded that each product that increased Mr. Roverano’s exposure to asbestos contributed to his risk of developing lung cancer. Frank’s opinions beg the question whether each product contributed to plaintiff’s risk of developing cancer in proportion to that product’s contribution to the total, cumulative fiber burden in the tissue that became malignant.
The defense causation expert witnesses, Dr. Alan Pope and Dr. James Crapo, both testified that Roverano had no increased risk for lung cancer, given that he did not have evidence of asbestosis, which is a prerequisite for being asbestos-caused lung cancer. Both of these defense expert witnesses attributed Roverano’s lung cancer to his tobacco use. Crapo, however, apparently conceded on cross-examination that “if a variety of asbestos products combined to cause a disease, the individual exposures cannot be separated, but nonetheless low-level exposures would not be a factor.”[15]
The disagreements between the parties’ physician expert witnesses were irrelevant to the apportionment issue. Although they disagreed whether there was a threshold for asbestos-related lung cancer, they all agreed that when asbestos caused lung cancer, it did so in a dose-dependent fashion, which would have been the useful predicate for the trier of fact to assess how much each defendant or non-party bankrupt was responsible for the cumulative dose.
The trial defendants each presented expert witnesses in the field of industrial hygiene. Counsel for Brand Insulation called Patrick Rafferty, who opined that Roverano’s asbestos exposure was within the range of normal, outdoor, ambient environmental levels. Apparently, Rafferty made no attempt to estimate the amount of the total exposure, such as it was, which came from Brand Insulation products. This estimation certainly would have been within an industrial hygienist’s competence in assessing historical workplace fiber counting data.
John Crane called Frederick Toca to testify, as both an industrial hygiene and a toxicologist. According to John Crane’s brief, Toca provided a quantification of asbestos fiber release from Crane’s packing material between .005 and .01 fiber/cubic centimeter, which is at or below the level of asbestos found in the ambient air. Toca further offered that Mr. Roverano’s asbestos exposure from the use of insulation materials had been as high as 30 to 100 f/cc. (R. 622a, Tr. 59.) The published opinion, and the parties’ briefs, are unclear as to whether the defense industrial hygienists provided an estimate of the trial defendants’ products to the “cumulative” exposure experience by plaintiff. The record appears to suggest that there was no dispute that the trial defendants’ products contributed a very small fraction of 1 percent of the total.
If the Pennsylvania Supreme Court’s decision is correct, Toca testified to a conclusion that “the asbestos-containing thermal insulating products combined with cigarette smoking were responsible for the increased risk of lung cancer.”[16] Without the full record, I cannot verify the accuracy of this statement, but curiously I could not find any reference to such testimony in the plaintiff’s or the defendants’ briefs. In addition, the reference to Toca in plaintiff’s brief emphasized Toca’s acknowledgement that he was not a physician, and that he was not giving a medical causation opinion. (RR 625a; N.T. p. 78).
If the majority opinion is correct, then John Crane’s calling a non-physician toxicologist to disagree with its well-qualified pulmonary physician expert, Dr. Crapo, was an astonishing and puzzling move. Some would even call it a stunningly stupid act of self-immolation. Worse yet, Toca is not credited with having any basis for his causation opinion, which is against the weight of epidemiologic evidence. Even with this curious defense-sponsored opinion from Dr. Toca, there was no dissent or disagreement that asbestos-related lung cancers were dose-related outcomes, which would be the basis for a risk-based causal apportionment.
No expert witness identified a “fingerprint” of causation that permitted the plaintiff’s lung cancer to be attributed to asbestos, smoking, or a combination of the two. The testimony at trial was about “risk,” with the glib assumption that the cumulative risk resulted in the lung cancer, and that all the cumulative risk was involved. The cumulative risk, however, was proportional to the amount and duration of asbestos exposures from their various sources.
The incoherence of the Roverano majority opinion is aggravated by the failure to recognize the lack of any meaningful, legal distinction between so-called strict liability failure to warn and negligence.[17] Furthermore, with respect to culpability, juries make difficult quantitative assessments of fault based upon non-quantitative evidence in myriad of circumstances. Apportionment based upon causal contribution in proportion to friable asbestos exposure would be simple and straightforward by comparison.
At the Pennsylvania Supreme Court, only dissenting Chief Justice Saylor “got it.” Although he agreed that the non-party bankrupt companies should have been on the verdict sheet, the Chief Justice pointedly dissented from the majority’s cribbed reading of a remedial statute, and the majority’s “inertia” in the face of a clear legislative mandate to implement a “fair share” comparative responsibility regime, which takes into account both “causal” responsibility and fault (when proven at trial). The dissent is worthy of extensive quotation, especially given the Chief Justice’s recognition of the majority’s failure to understand the risk-based reasoning that was used at trial to claim causation:
“I also respectfully disagree with the majority’s conclusion that comparative apportionment of liability is impossible in asbestos cases. *** I have previously observed that, in light of the immense uncertainties involved in assessing actual, product-specific causation in many asbestos cases, the courts have come to accept abstract assessments of increased risk as proxies for traditional substantial-factor causation. [citing to his dissent in Rost v. Ford Motor Co., 637 Pa. 625, 151 A.3d 559 1032, 1057 (2016); and to the majority opinion’s reliance upon plaintiff’s own risk-based analysis] Along these lines, because of all of the impediments to any sort of rational determination of dose in long-latency, toxic tort cases involving frequently undocumented, unquantified, and sometimes small exposures to many different sources of asbestos occurring long ago in the past, the platitude that ‘[r]ough approximation is no substitute for justice’, Majority Opinion, at 542 (citation omitted), becomes quite meaningless in the asbestos litigation landscape. In this respect, I submit that ‘rough approximation’ is at best a generous characterization for what occurs on a routine basis in asbestos-related trials in Pennsylvania and elsewhere.
Given that risk-based assessments are being accepted to support jury determinations of substantial-factor causation, I see no reason why the same litmus cannot be employed to support comparative responsibility assessments by jurors, as the Fair Share Act plainly contemplates. [citing statute] By way of example, as I read the statute, it was intended to permit a factfinder to apportion liability differently between a manufacturer of loose insulation containing friable, amphibole asbestos to which a plaintiff may have been exposed on a daily basis in an industrial workplace for decades, and a local auto parts store which may have carried brake shoes (among its inventory of thousands of other products) containing asbestos encapsulated in resin, which the same plaintiff may have occasionally installed on his personal vehicles.
Furthermore, the majority’s analysis appears to overlook that apportionment assessments are generally imprecise ones in many contexts, but they are nevertheless routinely entrusted to jurors. [citing briefs].”[18]
Chief Saylor’s dissent embarrasses the shaky scholarship of the majority’s opinion. The Pennsylvania Supreme Court had previously affirmed the proposition that “liability attaches to a negligent act only to the degree that the negligent act caused the employee’s injury.”[19] Asbestos litigation has been around for a long time in Pennsylvania, and elsewhere. The Roverano decision will help it stay around longer still.[20] On the reviewed evidence, the trial defendants should have been liable either for nothing or for a very small fraction of one percent of the total damages.
[2] 42 Pa.C.S.A. § 7102(a).
[3] 42 Pa.C.S.A. § 7102(a)(1) (emphasis added).
[4] 42 Pa.C.S.A. § 7102(a)(2).
[5] 42 Pa.C.S.A. § 7102 (a)(3)(ii), (iii).
[6] “Apportionment and Pennsylvania’s Fair Share Act” (Mar. 14, 2019).
[7] Roverano v. John Crane, 2017 Pa. Super. 415, 177 A.3d 892 (2017).
[8] See Max Mitchell, “Pa. Justices Express Wariness of ‘Junk Science’ in Applying Fair Share Act,” (Mar. 6, 2019).
[9] Id.
[10] Id.
[11] Roverano v. John Crane Inc. , 226 A.3d 526 (Pa. 2020).
[12] Id. at 527. The Court cited a two-decade old decision in Baker v. AC & S, 562 Pa. 290, 755 A.2d 664 (2000), in which it relied upon a trial court’s explanation that the jury had no evidence upon which the it could apportion liability. “The plaintiff’s testimony was clear and unequivocal that asbestos exposure from individual products cannot be quantified. The defendants presented no evidence to the contrary.”
[13] Id. at 529 (internal citations omitted).
[14] Id. at 530.
[15] Id. at 530-31 (“If they are all part of something he used substantially and contributed to the dose in a major way, then, no, I couldn’t separate them out.”).
[16] Id. at 531.
[17] Justice Wecht concurred in part to emphasize that “[t]he only coherent way to assign unequal shares of liability among multiple defendants is to assess relative blameworthiness, and that leads inevitably to considerations indistinguishable from fault.” Id. at 549-50. Because the Pennsylvania courts have persisted in ignoring the equivalence between strict liability failure to warn and negligence, Justice Wecht felt he had to concur.
[18] Id. at 558-59.
[19] Dale v. Baltimore & Ohio RR., 520 Pa. 96, 106, 552 A.2d 1037, 1041 (1989). See also McAllister v. Pennsylvania RR., 324 Pa. 65, 69-70, 187 A. 415, 418 (1936) (holding that plaintiff’s impairment, and pain and suffering, can be apportioned between two tortious causes; plaintiff need not separate damages with exactitude); Shamey v. State Farm Mutual Auto. Ins. Co., 229 Pa. Super. 215, 223, 331 A.2d 498, 502 (1974) (citing, and relying upon, Restatement (Second) of Torts Section 433A; difficulties in proof do not constitute sufficient reason to hold a defendant liable for the damage inflicted by another person). Pennsylvania law is in accord with the law of other states as well, on apportionment. See Waterson v. General Motors Corp., 111 N.J. 238, 544 A.2d 357 (1988) (holding that a strict liability claim against General Motors for an unreasonably dangerous product defect was subject to apportionment for contribution from failing to wear a seat belt) (the jury’s right to apportion furthered the public policy of properly allocating the costs of accidents and injuries).
[20] James Insco and Matthew Deluzio, “Pennsylvania Asbestos Ruling Helps Extend Claims To Bankrupt Entities,” Law360 (March 10, 2020).
