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Avoiding Apportionment in Favor of Joint & Several Liabilities

July 24th, 2021

Back in 2008, Professor Michael Green wrote an interesting paper on apportionment in asbestos litigation. The paper sets out an argument that apportionment is a 20th century reform of American tort law, from the common law’s “all or nothing” approach.[1] I respectfully disagree with Professor Green’s assessment. When we consider the procedural aversion to joinder of claims, and the limited range of “joint and several” liability at common law, there was often a much greater role for apportionment in the common law of tort.[2]

Although there have been statutory reforms in some states, which have facilitated apportionments of fault and causation, tort law in the 20th century saw a steady march away from causal apportionments. This process of transformation raises interesting historical and theoretical questions. The hostility to apportionment was reflected in several doctrinal shifts. First, the burden of proof shifted from the plaintiff, who originally had to show each defendant’s share, to the defendants, who had to show their individual shares in order to avoid joint and several liability. Second, the common law’s procedural hurdles of joinder were removed, which left courts free to indulge presumptions of joint and several liability simply because the plaintiff’s harm was one unified harm, whether divisible or not. Third, the common law’s requirement of a “reasonable basis” for an estimate of apportioned share mutated into a requirement of “reasonable certainty,” with no particular clarity for how apodictic the certainty had to be to escape joint and several liability. Fourth, injuries readily seen as divisible in practical ways became “indivisible” in the result-oriented jurisprudence of the later 20th century. And fifth, judicial concern over the unfairness of imposing catastrophic damages upon a single defendant (with other potential defendants unavailable due to bankruptcy, immunity, or plaintiff’s preference) gave way to concer over plaintiffs’ not recovering fulsome damages.

Defendants in the asbestos litigation played a role in this march toward joint and several recovery, with simplistic pro rata shares when contribution was available. The economics of cases with multiple defendants led to multiple representations. Apportionment raised the prospect of invidious distinctions between and among defendants, with some defendants having minuscule causal shares, with others having large shares. Such distinctions posed serious conflicts of interest, which were, and still are, virtually impossible to manage. In the context of mesothelioma cases, for instance, many defendants prefer pro rata contribution rather than causal apportionment because the former guarantees greater offsets in cases taken to verdict. Given the huge variability in asbestos fiber type potency for causing mesothelioma, defendants that had products with some amphibole asbestos had to worry that defendants with chrysotile-only products would avoid liability altogether, or have liability for fractional shares of a single percentage point.

Of course, plaintiffs have resisted apportionments of all kinds, whether between and among joint tortfeasors, or between their conduct and the tortfeasors’, at every turn. Historically, the doctrine of joint and several liability der ives from principles of mutual agency and imputed liability. We can see examples of such liability resulting from civ il conspiracies, torts of partnerships, and true concert of action among tortfeasors.[3]

Entire liability , on the other hand , results from liberal procedural rules of joinder and an ind iv isible injury. If concurrent or successive torts cause a single harm, and the trier of fact cannot reasonably determine what proportion each tortfeasor contributed , then each tortfeasor is liable for the whole harm , even though each tortfeasor’s act alone might have been insuffi cient to cause the entire harm.[4] Although situations giving rise to entire liability may be totally lacking any basis for mutual agency or imputed liability, these situations may lead to a joint and several judgments against multiple tortfeasors. Entire liability, and its procedural consequences that resemble historical joint and several liability, do not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Restatement Approach

The American Law Institute’s Restatement (Second) of Torts [Restatement] restated the rules for guiding the applicability for apportionment in a section entitled “Apportionment of Harm to Causes”

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Restatement § 433A. Comment b to Section 433A circuitously and vacuously defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment provides a hypothetical case and suggested resolution, which are, however, are more helpful:

“If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.”

The above hypothetical was very much analogous to the school district asbestos property damage class action, in which some plaintiffs’ counsel sought to hold all defendants jointly and severally liable. Although all the defendants may have contributed to the overall condition of a particular building, the cost of removing or containing each asbestos product can be attributed to the producer of that product. Each defendant’s product may be in a different part of a building, and represent a different percentage of the total amount of friable asbestos in the building. Some asbestos products might not be friable at all, and removal would be unnecessary, counterproductive, and even harmful. Each product posed unique problems for removal or containment, the cost of which could be determined independently of the costs for dealing with the other products in the building.

The case of single but divisible harm is relatively straightforward under the Restatement’s apportionment approach. Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.”[5]

The Restatement (Second) gave several examples of joint torts that can be apportioned by cause. Instructive for the asbestos property damage and similar environmental cases, the Restatement’s following suggestion was of particular interest:

“Apportionment is commonly made in cases of private nuisance, where the pollution of a stream, or flooding, or smoke or dust or noise, from different sources, has interfered with the plaintiff’s use or enjoyment of his land. Thus where two or more factories independently pollute a stream, the plaintiff’s use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of the respective quantities of pollution discharged into the stream.”[6]

Although any actual apportionment, upon which reasonable people can disagree, must be made by the trier of fact, whether the plaintiff’s harm is apportionable is a question for the court.[7]

Judicial Applications of Apportionment Principles

Some of the earliest cases apportioning property damages involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases focused on the propriety of the joinder of the dog owners and the resulting joint liability. Under the common law approach to joinder, courts found it “repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in doing mischief could make the owners jointly liable.”[8] Consequently, if two dogs, each belonging to different persons, run together and kill the plaintiff’s sheep, each owner is liable only for the sheep his dog killed.[9] The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage.[10] In Adams v. Hall,[11] the court specifically rejected the plaintiff’s argument that the damage done to his property, his herd of sheep, was “entire.” Because the damage done by each defendant’s dog was separate, and the defendants were misjoined under the procedural rules then in effect.[12]

Several of the common law courts addressed the appropriateness of apportionment, either pro rata, or otherwise. In an 1838 case, Buddington v. Shearer,[13] the court acknowledged that the plaintiff would have some difficulty in proving which dog caused what distinct harm, but that under the circumstances, the trier of fact could reasonably apportion damages equally on the assumption that the dogs were capable of equal mischief.

In the absence of a statute, the rule requiring apportionment in dog & sheep cases remains valid.[14] In one 1920 case, the appellate court, anticipating the scientific basis for different pathogenic potencies for different varieties of asbestos, noted that the relative size and ferocity of each owner’s dog was a sufficient basis to permit the jury to apportion damages.[15]

The vitality and continuing validity of the apportionments made for separate harms (in dog and sheep cases) is clearly reflected in the Restatement (Second) and its illustrations:

“Five dogs owned by A and B enter C’s farm and kill ten of C’s sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity.”[16]

Based upon these facts, the second Restatement would hold A liable for the value of six of the sheep, and B liable for four.[17] 

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In an early Kansas case, the plaintiff sued for the damage inflicted to his crops by cattle belonging to two unrelated parties. Noting that the plaintiff had suffered a single injury to his property, the court held that the damages for the single injury should be apportioned by the relative number of each defendant’s cattle.[18] Reasoning in a similar manner, the New York Court of Appeals, in 1907, addressed a case brought by a farmer who sued two defendants, each owner of cattle, which had trespassed upon his land.[19] The court noted that the cattle were all on the plaintiff’s land and that they all caused equal damage to the plaintiff, and, therefore, each cattle owner was liable for his proportionate share of the entire damages.[20] Other courts, in considering animal trespass cases, have not emphasized whether they viewed the plaintiff’s injury as single or several; rather, these courts, simply stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly.[21]

Cases involving the flooding of land have provided fertile soil for judicial consideration of apportionment. The 1952 California case of Griffith v. Kerrigan is typical.[22] In Griffith, the plaintiff sued for damage to his peach orchard, caused by excessive underground water seepage from one defendant’s irrigation of an adjacent rice paddy, and from another defendant’s nearby canal.  The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Plaintiff appealed, and claimed that each defendant was the proximate cause of the entire harm, and therefore, he was entitled to a judgment for the entire amount of damages proved at trial.[23]

Relying upon first Restatement of Torts, Section 881, the predecessor to section 433A of the Second Restatement, the Griffith court rejected the plaintiff’s contention that damage and liability were “entire.” The estimates of relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages.[24]

The defendants in Griffith cross-appealed, arguing that the expert witness testimony given at trial established that no exact apportionment was possible. Because of this lack of precision, the defendants contended that the plaintiff had failed to carry the burden of proving each defendant’s causal role. The California appellate count expressly rejected this contention. The expert witness’s estimate was a sufficient basis for the apportionment.[25]

The holdings in Griffith are based upon well-established precedents and intuitive principles of justice. In language that resonates for many mass-tort situations, such as multi-defendant asbestos litigation, joint and several liability in such a case would allow “a plaintiff to overwhelm a defendant with claims for damages out of all proportion to his wrongdoing… .”[26]

In an 1879 case, Sellick v. Hall, the court held that parties that independently damaged plaintiff’s property by flooding could not be found to be joint tortfeasors.[27] Each party can be liable only for that portion of the harm, which he caused. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to which he is not legally liable, simply  because the exact ascertainment of the proper amount is a matter of practical difficulty.”[28] Any hardship to the plaintiff in not being able to assert joint and several liability is mitigated by being relieved of the requirement to prove the precise damage inflicted by each defendant.[29] The common law’s foundational principle is clear: a reasonable basis for apportioning a single harm among multiple causes is sufficient to support an apportionment of damages, without fussing over “exactitude.”[30]

Air and Water Pollution Cases

When two or more independent tortfeasors separately pollute the air or water and the consequences combine to form a single injury, each tortfeasor will be liable only for the consequences of his independent tortious act and will not be liable for the entire injury. In Oakwood Homeowners Assoc. v. Maration Oil Co., the appellate court sustained the trial court’s jury instruction that the jury should separate the injuries caused to the plaintiff by the defendant from the injuries caused by other tortfeasors if they could do so:

“If two or more persons acting independently tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused.”[31]

In Sam Finley, Inc. v. Waddell, the Virginia Supreme Court of Appeals held that the trial court had failed to require the plaintiff , who had prevailed at trial, to produce evidence apportioning the damage between the two defendants.[32] In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants.

In that case, the plaintiffs had sued the operator of a quarry and the operator of a bituminous concrete plant alleging each had contributed to the clouds of filth which had rendered the plaintiffs’ land unfit for grazing. The court held that plaintiffs were barred from a recovery without proof of the apportionment of the damage caused by the two defendants, absent proof of privity or concert of action:

“[W]here there are several concurrent negligent causes, the effects of which are separable, due to independent authors, neither being sufficient to produce the entire loss, then each of the several parties concerned is liable only for the injuries due to his negligence.”[33]

In Maas v. Perkins, the Supreme Court of Washington held that, while two alleged tortfeasors, accused of having contributed to the damage caused by oil sludge draining onto plaintiffs’ property, could be joined in one action, their liability was several and not joint.[34] Plaintiffs would not be relieved of their burden of showing that a particular defendant caused damage of a specified amount. Although the court admitted of the difficulty of such proof, the court required some basis for the allocation of the total damage.[35] Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness, and have thus been unwilling to impose liability on one tortfeasor for the acts of another over which the first had no control and where the only logical connection was some similarity of consequences.

In Farley v. Crystal Coal & Coke Co.,[36] the West Virginia Supreme Court held that six separate mine operators, alleged to have polluted with slag, cinder and sewage the stream on which plaintiff’s farm was situated, could not be jointly liable for damage caused by the pollution:

“In the actual infliction of the injury, there was nothing more than a combination, effected by natural causes of the consequences or results or the wrongful acts, in which the parties did not act. This of course does not absolve them from liability, but it does away with the ground or basis of joint liability and liability for entire damages. Each is liable only for the consequences of his own wrong and must be sued alone for the damages.”[37]

In City of Mansfield v. Brister, the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run.[38] Ritter’s Run was found to have been fouled by five sewers, only one of which had been constructed by the city. The trial court instructed that jury that it was unnecessary to find that the city had caused the entire injury in order to find it liable for the damage. The Ohio Supreme Court reversed, in a thoughtful and lengthy opinion, in which it considered and discussed the then contemporary authority. The court found the difficulty of apportionment presented no compelling reason to relieve the plaintiff from the obligation of proving that the damages sought from a defendant sprung from the act of that defendant:

“Each is liable only to the extent of the wrong committed by him. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tort-feasor should be liable for act of others with whom he is not acting in concert.”[39]

As noted above, the Restatement (Second) of Torts contains a discussion of apportionment consistent with this discussion. One illustration contained in the comments is drawn from the pollution cases and well illustrates the point:

“Oil is negligently discharged from two factories, owned by A and B, onto the surface of a stream. As a result C, a lower riparian owner, is deprived of the use of the water for his own industrial purposes. There is evidence that 70 per cent of the oil has come from A’s factory, and 30 per cent from B’s. On the basis of this evidence, A may be held liable for 70 per cent of C’s damages, and B liable for 30 per cent.”[40]

Shifting the Burden of Proof

Some jurisdictions have shifted the burden of going forward on the issue of apportionment. In a 1952 case, Landers v. East Texas Salt water Disposal Co.,[41] the independent operators of two separate pipelines were alleged to have discharged large quantities of salt water into plaintiff’s lake when the two pipelines broke on or about the same day. The court held that plaintiff could recover despite his inability to allocate specific damage to one or the other tortfeasor:

“Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages.”[42]

The actual language of Landers is somewhat difficult to reconcile with the manner in which the Landers rule has been applied. Landers was decided in an era without liberal rules of joinder, and so the court apparently conceived it necessary to deem the defendants joint tortfeasors in order to join the defendants in a single action.

In what seems rather result-oriented jurisprudence, courts which have had occasion to apply Landers under the modern rules of joinder have largely cited the Landers rule as shifting the burden of going forward on the question of apportionment. And then, to add insult to injury to the common law, courts after Landers have conflated the burden of going forward with the burden of proof:

“Where several defendants are shown to have each caused some harm, the burden of proof (or burden of going forward) shifts to each defendant to show what portion of the harm he caused. If the defendants are unable to show any reasonable basis for division, they are jointly and severally liable for the total damages.”[43]

This trend toward shifting the burden of proof of apportionment can be seen in an air pollution case,[44] Michie v. Great Lakes Steel, where the court considered whether a plaintiff, alleging damages of $11,000 caused by the air pollution of three corporate defendants, would be deemed to have alleged damages of $11,000 against each for purposes of determining whether the jurisdictional amount in controversy for diversity jurisdiction had been met. Citing Landers, the court stated the rule of apportionment as follows:

“Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors.

* * * *

The net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers.”[45]

Some courts, following Landers, have found reasonable bases for apportioning entire damages.[46] The judicial embrace of joint and several liability, with burden shifting, and increasing the burden, for apportionment has led to great creativity in avoiding apportionments. For pollution cases, what might be a rough-and-ready practical basis for apportionment, courts have found confounding factors of unknown rates of discharge, for unknown times, with unknown composition, and in unknown concentrations. There can be a huge gap between the sorts of “reasonable estimates” that were found adequate at common law and the “reasonable certainties” that courts increasingly demanded.

[1] Michael D. Green, “Second Thoughts about Apportionment in Asbestos Litigation,” 37 Southwestern Univ. L. Rev. 531 (2008) (“The idea that liability is not all or nothing—a basic tenet of the common law—but could be apportioned in a fine-grained manner—that is using a scale of 100, whether you call it comparative negligence, fault, responsibility, or causation—is a reform of the twentieth century and one of the most influential in tort law of that century.”).

[2] “Common Law Causal Apportionment – Each Dog Had His Day” (Sept. 27, 2014).

[3] See William Lloyd Keeton, ed.,  Prosser and Keeton on the Law of Torts § 46 (1984).

[4] Stuart Speiser, Charles Krause and Alfred Gans, The American Law of Torts § 3.7, at 394 (1983 & Supp. 1984); Prosser, supra, at § 47, at 328.

[5] Restatement § 433A(1)(b), at comment d.

[6] Id.; see also S. Speiser, supra at § 3.12 & note 88 (collecting cases on joint flooding and polluting).

[7] Restatement § 434(1)(2).

[8] Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817).

[9] Id. (“[N]o man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it.”); Van Steinburgh v. Tobias, 17 Wend. 562 (N.Y. 1837) (affirming nonsuit based upon misjoinder because joinder was error unless defendants jointly liable). The court in van Steenburgh noted that the imposition of joint liability on the owner of one dog, which happened to unite with other dogs in destroying a herd, would be unjust. Id. at 564.

[10] Van Steinburgh v. Tobias, 17 Wend. 562, 563 (N.Y. 1837).

[11] Adams v. Hall, 2 Vt. 9 (1829),

[12] Id. at 10, 11.

[13] 37 Mass. (20 Pick.) 477, 479-80 (1838).

[14] See Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages); Stine v. McShane, 55 N.D. 745, 746, 214 N.W. 906 (1927) (in absence of a joint tort or a statute modifying the common law, plaintiff can recover only those damages occasioned by that defendant’s conduct); Nohre v. Wright, 98 Minn. 477, 478-79, 108 N.W. 865 (1906) (each dog owner is liable separately for the damages done by his animal); Anderson v. Halverson, 126 Iowa 125, 127, 101 N.W. 781 (1904) (reversing judgment for defendant dog owner because although plaintiff could not show which sheep the defendant’s dog killed, the jury should have been allowed to consider defendant’s liability with proper instructions on apportionment); Denny v. Correll, 9 Ind. 72, 73 (1857) (per curiam) (reversing joint judgment against defendant dog owners); Dyer v. Hutchins, 87 Tenn. 198, 199, 10 S.W. 194 (1889)(each defendant dog owner is responsible only for the depradations of his own animal).

[15] Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages).

[16] Restatement (Second) of Torts § 433A, illustration 3.

[17] Id.

[18] Powers v. Kindt, 13 Kan. 74, 83 (1874).

[19] Wood v. Snider, 187 N.Y. 28, 36, 79 N.E. 858 (1907).

[20] Id. Accord Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079 (1904)(the proper measure of plaintiff’s damages was the value of pasturage consumed by defendant’s sheep, not the mischief done by animals belonging to other persons); Hill v. Chappel Brothers of Montana, 93 Mont. 92, 103, 18 P. 2d 1106, (1933) (jury allowed to make the best possible estimate of the portion of damages attributable to the defendant’s horses).

[21] See, e.g., Westgate v. Carr, 43 Ill. 450, 454-44 (1867) (each defendant cattle owner is liable only for the damage done by his cattle); State v. Wood, 59 N.J.L. 112, 113-14, 35 A. 654(1896)(each dog’s trampling of the plaintiff’s cabbage patch is a separate harm; each owner is liable only for the harm his dog caused; King v. Ruth, 136 Miss. 377, 381, 101 So. 500 (1924) (each dog owner is liable only for the damages done by his animals “separate and distinct” trespass); see also Cogswell v. Murphy, 46 Iowa 44 (1877) (reversing judgment against defendant cattle owners because of misjoinder of parties).

[22] Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296, Cal. Rptr. (1952).

[23] Id. at 638.

[24] Id. at 639.

[25] Id. at 640.

[26] William Tackaberry Co. v. Sioux City Service Co., 154 Iowa 358, 377-78, 132 N.W. 945 (1911) (extensively reviewing authorities and rejecting joint and several liability for property damage caused by flooding from multiple causes). See also Boulger v. Northern Pacific RR, 41 N.D. 316, 324, 171 N.W. 632 (1918) (imposing entire liability on a party responsible for only a portion of the harm caused by a flood would be contrary to law and justice).

[27] Sellick v. Hall, 47 Conn. 260, 273 (1879).

[28] Id. at 274.

[29] See William  Tackaberry Co., supra,154 Iowa at 377; Griffith v. Kerrigan, 109 Cal. App. 2d at 640.

[30] Sloggy v.  Dilworth, 38 Minn. 179, 185, 36 N.W. 451 (1888) (rejecting entire liability; apportionment for damage to plaintiff’s crops caused by  flooding from multiple causes may be based on the relative contribution of each party); Blaisdell v. Stephens, 14 Nev. 17, 19 (1879) (reversing      joint judgment in a flooding case); Verheyen v. Dewey, 27 Idaho 1, 11-12, 146 P. 1116 (1915) (reversing joint judgment; holding each party responsible only for that portion of the flood, which damages plaintiff’s property); Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059, 1061 (1925) (rejecting joint liability for independent flooders of plaintiff’s land); Miller v. Highland Ditch Co., 87 Cal. 430, 431, 23 P. 550 (1891) (reversing joint judgment against defendants, whose irrigation ditches independently overflowed and deluged plaintiff’s land).

[31] Oakwood Homeowners Ass’n v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567, 569 (1981),    

[32] Sam Finley, Inc. v. Waddell, 207 Va. 602, 151 S.E. 347 (1966).

[33] Sam Finley, Inc., 151 S.E.2d at 352. The decision in Sam Finley, Inc. was a reaffirmation of the rule of Panther Coal Co. v. Looney, 185 Va. 758, 48 S.E.2d 298 (1946), and Pulaski Anthracite Coal Co. v. Gibboney Sand Bar Co., 110 Va. 444, 66 S.E. 73 (1909). These cases exemplify the line of cases which developed and applied the rule of apportionment and several liability in cases involving air and water pollution from the latter part of the last century to the 1960s, when statutory remedies for air and water pollution were enacted. These common law decisions are still binding authority in most jurisdictions and are binding on federal courts sitting in diversity.

[34] Maas v. Perkins, 42 Wash. 2d 38, 253 P.2d 427 (1953).

[35] 253 P.2d at 430. The court in Maas followed the rule previously set forth in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941). In this action, a downstream farmer alleged that a municipality and a slaughterhouse discharged refuse into the Little Klickitat River. The court affirmed the rule that tortfeasors independently contributing to the pollution of a stream cannot be held jointly liable for the common injury. The basis of the Court’s decision was fairness. “[I]t might work great injustice to hold one responsible for the entire injurious effect of the pollution of a stream brought about by himself and others in varying degrees.” Snavely, 117 P.2d at 224.

[36] Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920).

[37] Farley, 102 S.E. at 268. Similarly, the court in Watson v. Pyramid Oil Co., 198 Ky. 135, 248 S.W. 227 (1923), was moved by considerations of fairness to adopt the rule of apportionment and several liability. It held that several refining companies could not be liable for the damage caused by each other’s operations. Otherwise, it reasoned “a defendant who had contributed to the injury in the slightest degree would be liable for all the damage caused by the wrongful acts of all the others.” 248 S.W. at 228. Similarly, the Florida Supreme Court has held that joint liability would not be imposed on upriver phosphate producers despite the intermingling of the consequences of their tortious acts as regards downriver riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (1913), and Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (1913). Noise pollution has been handled in a similar fashion. See, e.g., City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951) (holding that a city operating an airport and the airlines using it were not jointly liable for damage caused to the plaintiff by a low flying aircraft).

[38] City of Mansfield v. Brister, 76 Ohio St. 270, 81 N.E. 631 (1907).

[39] City of Mansfield, 81 N.E. at 633.

[40] Restatement (Second) of Torts § 433A, comment d, illustration 5 (1965).

[41] Landers v. East Texas Salt water Disposal Co., 151 Tx. 251, 248 S.W.2d 731 (1952).

[42] Landers, 248 S.W.2d at 734.

[43] Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir. 1973), cert. denied, 419 U.S. 869, (1974). The federal bench has, at times, been mindful of the unfairness of joint and several liability to defendants. Although largely ineffectual, some courts have opined that some method was needed to achieve “[an] apportionment which bears some relationship to causative fault.”

[44] Michie v. Great Lakes Steel, 495 F.2d 213 (6th Cir. 1974), cert. denied 419 U.S. 997 (1979).

[45] Michie, 495 F.2d at 217, 218.

[46] See, e.g. Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980) (upholding apportionment of damages, made with “reasonable certainty” between defendant police officers who had been found to have committed an unlawful arrest and imprisonment).

Posted in Apportionment, Asbestos | 9 Comments »

Apportionment and Pennsylvania’s Fair Share Act

March 14th, 2019

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:3

“(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.”

The intended result of the legislation was for courts to enter separate and several judgments against defendants held liable in the amount apportioned to each defendant’s liability.4 The Act created exceptions for for intentional torts and for cases in which a defendant receives 60% or greater share in the apportionment.5

In Pennsylvania, as in other states, judges sometimes fall prey to the superstition that the law, procedural and substantive, does not apply to asbestos cases. Roverano v. John Crane, Inc., is an asbestos case in which the plaintiff claimed his lung cancer was caused by exposure to multiple defendants’ products. The trial judge, falling under the sway of asbestos exceptionalism, 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 Roverano trial judge’s suggestion is remarkable, given that any plaintiff is exposed to different asbestos products in distinguishable amounts, and for distinguishable durations. Furthermore, asbestos products have distinguishable, relative levels of friability, with different levels of respirable fiber exposure for the plaintiff. In some cases, the products contain different kinds of asbestos minerals, which have distinguishable and relative 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.

Pennsylvania’s intermediate appellate 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.”

Roverano v. John Crane, 2017 Pa. Super. 415, 177 A.3d 892 (2017).

The Superior Court’s decision did not sit well with the litigation industry, which likes joint and several liability, with equal shares. Joint and several liability permits plaintiffs’ counsel to extort large settlements from minor defendants who face the prospect of out-sized pro rata shares after trial, without the benefit of reductions for the shares of settled bankrupt defendants. The Roverano plaintiff appealed from the Superior Court’s straightforward application of a remedial statute.

What should be a per curiam affirmance of the Superior Court, however, could result in another act of asbestos exceptionalism by Pennsylvania Supreme Court. Media reports of the oral argument in Roverano suggest that several of the justices invoked the specter of “junk science” in apportioning shares among asbestos co-defendants.6 Disrespectfully, Justice Max Baer commented:

“Respectfully, your theory is interjecting junk science. We’ve never held that duration of contact corresponds with culpability.”7

The Pennsylvania Justices’ muddle can be easily avoided. First, the legislature clearly expressed its intention that apportionment be permitted in strict liability cases.

Second, failure-to-warn strict liability cases are, as virtually all scholars and most courts recognize, essentially negligence cases, in any event.8

Third, apportionment is a well-recognized procedure in the law of Torts, including the Pennsylvania law of torts. Apportionment of damages among various causes was recognized in the Restatement of Torts (Second) Section 433A (Apportionment of Harm to Causes), which specifies that:

(1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

Restatement (Second) of Torts § 433A(1) (1965) [hereinafter cited as Section 433A].

The comments to Section 433A suggest a liberal application for apportionment. The rules set out in Section 433A apply “whenever two or more causes have combined to bring about harm to the plaintiff, and each has been a substantial factor in producing the harm … .”

Id., comment a. The independent causes may be tortious or innocent, “and it is immaterial whether all or any of such persons are joined as defendants in the particular action.” Id. Indeed, apportionment also applies when the defendant’s conduct combines “with the operation of a force of nature, or with a pre-existing condition which the defendant has not caused, to bring about the harm to the plaintiff.” Just as the law of grits applies in everyone’s kitchen, the law of apportionment applies in Pennsylvania courts.

Apportionment of damages is an accepted legal principle in Pennsylvania law. Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 528 A.2d 947 (1987). Courts, applying Pennsylvania law, have permitted juries to apportion damages between asbestos and cigarette smoking as causal factors in plaintiffs’ lung cancers, based upon a reasonable basis for determining the contribution of each source of harm to a single harm.9

In Parker, none of the experts assigned exact mathematical percentages to the probability that asbestos rather than smoking caused the lung cancer. The Court of Appeals noted that on the record before it:

“we cannot say that no reasonable basis existed for determining the contribution of cigarette smoking to the cancer suffered by the decedent.”10

The Pennsylvania Supreme Court has itself affirmed the proposition that “liability attaches to a negligent act only to the degree that the negligent act caused the employee’s injury.”11 Thus, even in straight-up negligence cases, causal apportionment must play in a role, even when the relative causal contributions are much harder to determine than in the quasi-quantitative setting of an asbestos exposure claim.

Let’s hope that Justice Baer and his colleagues read the statute and the case law before delivering judgment. The first word in the name of the legislation is Fair.

1 42 Pa.C.S.A. § 7102.

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).

7 Id. (quoting Baer, J.).

8 See, e.g, Restatement (Third) of Torts: Products Liability § 2, and comment I (1998); Fane v. Zimmer, Inc., 927 F.2d 124, 130 (2d Cir. 1991) (“Failure to warn claims purporting to sound in strict liability and those sounding in negligence are essentially the same.”).

9 Parker v. Bell Asbestos Mines, No. 86-1197, unpublished slip op. at 5 (3d Cir., Dec. 30, 1987) (per curiam) (citing Section 433A as Pennsylvania law, and Martin v. Owens-Corning Fiberglas Corp. , 515 Pa. 377, 528 A.2d 947, 949 (1987))

10 Id. at 7.

11 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, 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).

Posted in Apportionment, Asbestos, Causation, Trial Procedure | Comments Off on Apportionment and Pennsylvania’s Fair Share Act

Common Law Causal Apportionment – Each Dog Had His Day

September 27th, 2014

Some legal scholars have suggested that apportionment of damages by causation is a 20th century reform to the common law[1]. This strikes view strikes me as ignoring the late 20th century American courts’ penchant for favoring joint and several liability, without apportionment, and its hostility or refusal to permit causal apportionments. See, e.g., Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014). See also “Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter” (Sept. 19, 2014); “Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience” (Sept. 20, 2014).

The common law, as it developed in the United States from the early 19th century, was hospitable to apportionments that avoided “entire” or “joint and several” liability. Apportionments of single harms were often permitted and encouraged by the use of reasonable estimates of relative causal contributions. The common law generally provided that entire liability, and its procedural consequences similar to joint and several liability, did not apply to concurrent or successive tortfeasors whose acts (or products) cause distinct injuries or cause an injury that can be reasonably apportioned.

Asbestos (and other similar) cases raise interesting questions about the divisibility and apportionment of physical injuries and resulting impairment or death. Asbestosis represented the cumulative fibrotic result from multiple exposures to asbestos, over the course of an entire occupational exposure. For workers who were exposed to asbestos that came from different manufacturers’ products, the workers’ asbestosis represents the cumulative, single result of all the exposures that resulted in pulmonary deposition of fibers. A very slight, passing exposure may not have contributed at all to pulmonary deposition and retention. Heavier, more sustained exposures might contribute to the overall fiber burden, but certainly not equally. Exposures, deposition, and retention would be expected to vary in proportion to the use and dustiness (asbestos) of each product, weighted by the duration of exposure from each product. If all products were used equally, and were equally dusty, then perhaps they all could be taken to contribute equally. This last hypothetical, however, ignores the reality of market dominance of a few manufacturers, such as Johns-Manville up through the end of asbestos use in insulation.

The situation with mesothelioma is more complicated because not all commercial asbestos fiber types have the same potency with respect to causing mesothelioma. Crocidolite fiber has a potency an order of magnitude greater than amosite fiber. Chrysotile, even with some tremolite contamination, is orders of magnitude below crocidolite in its ability to cause mesothelioma, if it does so at all. These complexities of varying potency can be modeled by dustiness, duration of exposure, intensity of exposure, and potency factors. A further consideration is that mesothelioma arises from one or a few cells deranged by an asbestos fiber in close proximity. Increasing exposure would appear to increase the risk of malignant change, but the change is likely a local phenomenon, not the result of total fiber burden. (Increasing total fiber burden, however, represents an increasing risk of mesothelioma induction.) The assessment of causal responsibility is essential an attribution based upon ex ante risk, not actual causation. Given this reality, there is no reason that the causation cannot and should not be apportioned by the magnitude of the risk, modeled as suggested above.

The scholar’s suggestion that apportionment is a new-fangled development in tort law, and a reform of the common law, does not appear to hold up on close scrutiny. The common law dealt with combined causes in a variety of situations, and liberally permitted apportionment even for single harms, when there was a rational basis.  As Restatement (Second) of Torts makes clear, even so-called distinct harms may require some “rough” estimation in attributing damages to the tortfeasors responsible for the different harms. Restatement (Second) of Torts § 433A (1965). Comment b to this section rather circularly defines “distinct harms” as those “results which, by their nature, are more capable of apportionment.” The comment states a hypothetical case and suggested resolution, which are, however, more helpful:

“If two defendants independently shoot the plaintiff at the same time, and one wounds him in the arm and the other in the leg, the ultimate result may be a badly damaged plaintiff in the hospital, but it is still possible, as a logical, reasonable, and practical matter, to regard the two wounds as separate injuries, and as distinct wrongs. The mere coincidence in time does not make the two wounds a single harm, or the conduct of the two defendants one tort. There may be difficulty in the apportionment of some elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses, but this does not mean that one defendant must be liable for the distinct harm inflicted by the other. It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.”

The above hypothetical is very much analogous to cases that occur in asbestos personal injury and property damage litigation. The Restatement also provides for apportionment of damages in cases in which the plaintiff suffers a single but divisible harm. Restatement § 433A(1)(b). Apportionment is permitted for such a harm when “there is a reasonable basis for determining the contribution of each cause.” Id. at comment d, the Restatement gives several examples of joint torts that can be apportioned by cause. Of particular interest is the suggestion that:

“Apportionment is commonly made in cases of private nuisance, where the pollution of a stream, or flooding, or smoke or dust or noise, from different sources, has interfered with the plaintiff’s use or enjoyment of his land. Thus where two or more factories independently pollute a stream, the plaintiff’s use of the water may be treated as divisible in terms of degree, and may be apportioned among the owners of the factories, on the basis of the respective quantities of pollution discharged into the stream.”

Id. See also 1 S. Speiser, C. Krause & A. Gans, The American Law of Torts at § 3.12 & note 88 (1983 & Supp. 1984) (collecting cases on joint flooding and polluting). Like a stream wasted by pollution, a person’s lungs impaired by fibrosis should be divisible “in terms of degrees” of contribution to the outcome.

Some of the earliest cases giving rise to an apportionment of property damages have involved the worrying and killing of sheep by dogs belonging to two or more persons. Many of these early cases involved the propriety of joinder of the dog owners and the resultant joint liability. Under the common-law approach to joinder, courts found it “repugnant to the plainest principles of justice to say that the dogs of different persons, by joining in doing mischief could make the owners jointly liable.” Russell v. Tomlinson & Hawkins, 2 Conn. 206 (1817). Consequently, if two dogs, each belonging to different persons, run together and kill the plaintiff’s sheep, each owner is liable only for the sheep his dog killed. Id. (“no man can be liable for the mischief done by the dog of another, unless he had some agency in causing the dog to do it.”) Van Steenburgh v. Tobias, 17 Wend. 562 (N.Y. 1837) (affirming nonsuit based upon misjoinder because joinder was error unless defendants jointly liable). The court in Van Steenburgh noted that the imposition of joint liability on the owner of one dog, which happened to unite with other dogs in destroying a herd, would be unjust. Id. at 564. The difficulty in estimating the separate injury done by each dog does not permit imposing liability for the entire damage. Id. at 563.

In Adams v. Hall, 2 Vt. 9 (1829), the court rejected the plaintiff’s argument that the damage done to his property, a herd of sheep, was entire. Id. at 10, 11. Because the damage done by each defendant’s dog was separate, the defendants were misjoinded under the then current procedural rules. Id. at 11.

In Buddington v. Shearer, 37 Mass. (20 Pick.) 477 (1838), the court acknowledged that the plaintiff would have some difficulty in proving which dog caused what distinct harm, but that under the circumstances, the trier of fact could reasonably apportion damages equally on the assumption that the dogs were capable of equal mischief. Id. at 479-80.

In the absence of a statute, the rule requiring apportionment in dog and sheep cases remains valid. See Miller v. Prough, 203 Mo. App. 413, 425, 221 S.W. 159 (1920) (each owner of a dog may not be liable for the entire damage; evidence of relative size and ferocity sufficient to permit the jury to apportion damages); Stine v. McShane, 55 N.D. 745, 746 214 N.W. 906 (1927) (in absence of a joint tort or a statute modifying the common law, plaintiff can recover only those damages occasioned by that defendant’s conduct); Nohre v. Wright, 98 Minn. 477, 478-79, 108 N.W. 865 (1906) (each dog owner is liable separately for the damages done by his animal); Anderson v. Halverson, 126 Iowa 125, 127, 101 N.W. 781 (1904) (reversing judgment for defendant dog owner because although plaintiff could not show which defendant’s dog killed which sheep, the jury should have been allowed to consider defendant’s liability with proper instructions on apportionment), Denny v. Correll, 9 Ind. 72, 73 (1857) (per curiam) (reversing joint judgment against defendant dog owners); Dyer v. Hutchins, 87 Tenn. 198, 199, 10 S.W. 194 (1889)(each defendant dog owner is responsible only for the depradations of his own animal).

The validity of the apportionments made for separate harms in dog and sheep cases continued into the second half of the 20th century, as evidenced by the following illustration in the Second Restatement:

“Five dogs owned by A and B enter C’s farm and kill ten of C’s sheep. There is evidence that three of the dogs are owned by A and two by B, and that all of the dogs are of the same general size and ferocity.”

Second Restatement § 433A, illustration 3. Based upon these facts, the Second Restatement would hold A liable for the value of six of the sheep, and B liable for four. Id.

The destruction of a field or its crops presents a case of harm, which courts have often treated as single but divisible. In Powers v. Kindt, 13 Kan. 74 (1874), the plaintiff sued for the damage inflicted to his crops by cattle belonging to two unrelated parties. Noting that the plaintiff had suffered a single injury to his property, the court held that the damages for the single injury should be apportioned by the relative number of each defendant’s cattle. Id. at 83. In Wood v. Snider, 187 N.Y. 28, 79 N.E. 858 (1907), the plaintiff sued an owner of cattle, which had trespassed along with the cattle belonging to other persons, on the plaintiff’s land. Id. at 36, 79 N.E. 858. The court noted that the cattle were all on the plaintiff’s land and that they all caused equal damage to the plaintiff, and, therefore, each cattle owner was liable for his proportionate share of the entire damages. Id. Accord Pacific Live Stock Co. v. Murray, 45 Or. 103, 76 P. 1079 (1904) (the proper measure of plaintiff’s damages was the value of pasturage consumed by defendant’s sheep, not the mischief done by animals belonging to other persons); Hill v. Chappel Brothers of Montana, 93 Mont. 92, 103, 18 P. 2d 1106 (1933) (jury allowed to make the best possible estimate of the portion of damages attributable to the defendant’s horses).

Other courts, in considering animal trespass cases, have not emphasized whether they viewed the plaintiff’s injury as single or several. Rather, these courts, simply have stressed the reasonable divisibility of damages and the appropriateness of apportioning damages accordingly. Westgate v. Carr, 43 Ill. 450, 454-44 (1867) (each defendant cattle owner is liable only for the damage done by his cattle); State v. Wood, 59 N.J.L. 112, 113-14, 35 A. 654 (1896) (each dog’s trampling of the plaintiff’s cabbage patch is a separate harm; each owner is liable only for the harm his dog caused); King v. Ruth, 136 Miss. 377, 381,101 So. 500 (1924) (each dog owner is liable only for the damages done by his animals’ separate and distinct trespass). See also Cogswell v. Murphy, 46 Iowa 44 (1877) (reversing judgment against defendant cattle owners because of misjoinder of parties).

Apportionments of damages for indivisible harms are routinely made in cases involving the flooding of land from multiple sources. In Griffith v. Kerrigan, 109 Cal. App. 2d 637, 241 P.2d 296 (1952), a typical joint-flooding case, the plaintiff sued for damage to his peach orchard, caused by excessive underground water seepage from one defendant’s irrigation of an adjacent rice paddy, and from another defendant’s nearby canal. Id. at 638, 241 P.2d 296. The trial court entered judgment for the plaintiff against the remaining defendant for only the harm caused by that defendant. Id. Both parties appealed. On appeal, the plaintiff claimed that each defendant was the proximate cause of the entire harm, and therefore, she was entitled to a judgment for the entire amount of damages proved at trial. Relying on Restatement of Torts Section 881, the predecessor to Section 433A of the Second Restatement, the Griffith court rejected the plaintiff’s contention that damage and liability were entire. Id. at 639, 241 P.2d 296. The appellate court was satisfied that the estimates of the relative percentages of water from all possible sources were a sufficient evidentiary basis for making a reasonable apportionment of the damages. Id.

The defendants[2] in Griffith also appealed on grounds that the expert witness testimony given at trial established that no exact apportionment was possible. Because of this lack of precision, the defendants contended that the plaintiff had failed to carry his burden of proving each defendant’s causal role. Id. at 640, 241 P.2d 296. The appellate count expressly rejected the defendants’ contention and held that the expert witness’s estimate was a sufficient basis for the apportionment. Id.

The holdings in Griffith are based upon well-established precedents and principle of justice. Joint and several liability in such a case would allow “a plaintiff to overwhelm a defendant with claims for damages out of all proportion to his wrongdoing …” William Tackaberry Co. v. Sioux City Service Co.,154 Iowa 358, 377-78, 132 N.W. 945 (1911) (extensively reviewing authorities and rejecting joint and several liability for property damage caused by flooding from multiple causes; Boulger v. Northern Pacific Railroad Co., 41 N.D. 316, 324, 171 N.W. 632, (1918) (imposing entire liability on a party responsible for only a portion of the harm caused by a flood would be contrary to law and justice).

In Sellick v. Hall, 47 Conn. 260 (1879), the court held that regarding parties that independently damaged plaintiff’s property by flooding as joint tortfeasors was error. Id. at 273. Each party can be liable only for that portion of the harm, which he caused. Id. at 274. Although apportionment might be difficult in some cases, the court noted that juries are often entrusted with difficult factual judgments. Id. The plaintiff should not, therefore, be denied any recovery; nor should one defendant be “loaded with damages to not legally liable, simply because the exact ascertainment of the proper amount is a matter of practical difficulty.” Id.

The common law saw that any hardship to the plaintiff in not being able to assert joint and several liability was fairly mitigated by plaintiff’s being relieved of the requirement to prove the precise damage inflicted by each defendant. William Tackaberry Co. v. Sioux City Service, Co. 154 Iowa at 377, 132 N.W. 945; Griffith v. Kerrigan, 109 Cal. App. 2d. at 640, 241 P.2d 296. A reasonable basis for apportioning the single harm among multiple causes is sufficient to support an apportionment of damages. Sloggy v. Dilworth, 38 Minn. 179, 185, 36 N.W. 451 (1888) (rejecting entire liability; apportionment for damage to plaintiff’s crops caused by flooding from multiple causes may be based on the relative contribution of each party): Blaisdell v.Stephens, 14 Nev. 17, 19 (1879)(reversing joint judgment in a flooding case); Verheyen v. Dewey, 27 Idaho 1, 11-12, 146 P. 1116 (1915)(reversing joint judgment; each party should be responsible only for that portion of the flood that damaged plaintiff’s property): Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60, 234 P. 1059, 1061 (1925) (rejecting joint liability for independent flooders of plaintiff’s land); Miller v. Highland Ditch Co., 87 Cal. 430, 431, 23 P. 550 (1891)(reversing joint judgment against defendants, whose irrigation ditches independently overflowed and deluged plaintiff’s land).

When two or more independent tortfeasors separately pollute the air or water and the consequences combine to form a single injury, each tortfeasor will be liable only for the consequences of his independent tortious act and will not be liable for the entire injury. Oakwood Homeowners Assoc. v. Maration Oil Co., 104 Mich. App. 689, 305 N.W.2d 567 (Mich. App. 1981). In Oakwood, the appellate court sustained the trial court’s jury instruction that the jury should separate the injuries caused to the plaintiff by the defendant from the injuries caused by other tortfeasors if they could do so.

“If two or more persons acting independently tortiously cause distinct harms or a single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he himself caused.”

Oakwood Homeowners, 305 N.W.2d at 569.

In Maas v. Perkins, 42 W.2d 38, 253 P.2d 427 (Wash. 1953), the Supreme Court of Washington held that, while two alleged tortfeasors, accused of having contributed to the damage caused by oil sludge draining onto plaintiffs’ property, could be joined in one action, their liability was several and not joint. Plaintiffs would not be relieved of their burden that a particular defendant caused damage of a specified amount. Although the court admitted of the difficulty of such proof, the court required some basis for the allocation of the total damage. 42 W.2d 38, 253 P.2d at 430. The Maas decision followed the rule previously set out in Snavely v. City of Goldendale, 10 Wash. 2d 453, 117 P.2d 221 (1941, where a downstream farmer alleged that a municipality and a slaughterhouse discharged refuse into the Little Klickitat River. The court affirmed the rule that tortfeasors independently contributing to the pollution of a stream cannot be held jointly liable for the common injury. The basis of the court’s decision was fairness.

“[I]t might work great injustice to hold one responsible for the entire injurious effect of the pollution of a stream brought about by himself and others in varying degrees.”

Snavely, 117 P.2d at 224.

Courts have consistently viewed the rule of apportionment and several liability as a rule of fairness. Courts have been unwilling to impose liability on one tortfeasor for the acts of another over which the first had no control and where the only logical connection was some similarity of consequences.

In Farley v. Crystal Coal & Coke Co., 85 W.Va. 595, 102 S.E. 265 (1920), the Supreme Court of Appeals of West Virginia held that six separate mine operators, alleged to have polluted with slag, cinder and sewage the stream on which plaintiff’s farm was situated, could not be jointly liable for damage caused by the pollution:

“In the actual infliction of the injury there was nothing more than a combination, effected by natural causes of the consequences or results or the wrongful acts, in which the parties did not act. This of course does not absolve them from liability, but it does away with the ground or basis of joint liability and liability for entire damages. Each is liable only for the consequences of his own wrong and must be sued alone for the damages.”

Farley, 102 S.E. at 268.

Similarly, the court in Watson v. Pyramid Oil Co., 198 Ky. 135, 248 S.W. 227 (1923), was moved by considerations of fairness to adopt the rule of apportionment and several liability. Watson held that several refining companies could not be liable for the damage caused by each other’s operations. Otherwise, it reasoned “a defendant who had contributed to the injury in the slightest degree would be liable for all the damage caused by the wrongful acts of all the others.” 198 Ky. 135, 248 S.W. at 228.

In a case concerning noise pollution, the Georgia Court of Appeals held that a city operating an airport and the airlines using it were not jointly liable for damage caused to the plaintiff by a low flying aircraft. City of Atlanta v. Cherry, 84 Ga. App. 728, 67 S.E.2d 317 (Ga. App. 1951).

The Florida Supreme Court has held that joint liability would not be imposed on up-river phosphate producers despite the intermingling of the consequences of their tortious acts for the downstream riparian owners. Synnes v. Prarie Pebble Phosphate Co., 66 Fla. 27, 63 So. 1 (Fla. 1913); Standard Phosphate Co. v. Lunn, 66 Fla. 220, 63 So. 429 (Fla. 1913).

Apportionment, with burden on the plaintiff, was applied in personal injuries as well, at common law. In City of Mansfield v. Brister, 76 Ohio 270, 81 N.E. 631 (1907), the plaintiff, a riparian proprietor, sued the city for damage to his health caused by the pollution of Ritter’s Run. Ritter’s Run was found to have been fouled by five sewers, only one of which had been constructed by the city. The trial court instructed that jury that it was unnecessary to find that the city had caused the entire injury in order to find it liable for the damage. The Ohio Supreme Court deemed this error, and reversed. In a thoughtful opinion, the court discussed the contemporary authority. The court found the difficulty of apportionment presented no compelling reason to relieve the plaintiff from the obligation of proving that the damages sought from a defendant sprung from the act of that defendant:

“Each is liable only to the extent of the wrong committed by him. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tortfeasor should be liable for act of others with whom he is not acting in concert.”

City of Mansfield, 76 Ohio 270, 81 N.E. at 633.

The suggestion of legal scholars that causal apportionment was a 20th century reform seems misguided. The mantra of “joint and several” has often clouded consideration of the fairness and practicality of causal apportionment in many kinds of personal injury cases.

[1] Michael D. Green, “Second Thoughts about Apportionment in Asbestos Litigation,” 37 Southwestern Univ. L. Rev. 531 (2008) (“The idea that liability is not all or nothing—a basic tenet of the common law—but could be apportioned in a fine-grained manner—that is using a scale of 100, whether you call it comparative negligence, fault, responsibility, or causation—is a reform of the twentieth century and one of the most influential in tort law of that century.”).

[2] Interesting how the procedure at that time put the defendants into the position that plaintiffs today take with respect to apportionment.

Posted in Apportionment, Causation | Comments Off on Common Law Causal Apportionment – Each Dog Had His Day

Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience

September 20th, 2014

Carter is hard to square with commentators and precedent and the logic of the law. Juries, in their fact-finding roles, apportion in various contexts. In actions for negligence, juries consider the relative faults of the parties, and apportion responsibility in the absence of any definite quantitative basis. In considering crossclaims among defendants, juries in many states must assess each defendants relative causal contribution to the plaintiff’s overall injury and apportion liability. See, e.g., Moore v. Johns-Mansville Sales Corp., 781 F.2d 1061, 1062-65 (5th Cir. 1986) (rejecting pro-rata liability in favor of apportioned liability based upon relative causation of dose-related diseases)

Mathematical certainty is not a prerequisite to apportionment; evidence that tends to show relative proportions of damages caused by each tortfeasor, or other source, is sufficient for a jury to apportion properly. See, e.g., Scafidi v Seiler, 119 N.J. 93, 113, 574 A.2d 398 (1990) (apportionment is a traditional jury function). See also Restatement (Third) of Torts: Physical and Emotional Harm § 28, comment d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”).

As we saw in Carter, the Maryland Court of Appeals insisted upon characterizing apportionment of damages as based upon fault, when it clearly can be accomplished without reference to fault. As seen in New Jersey law and in the Restatement (Second) of Torts, apportionment on causal principles is encouraged. See Section 433A, comment a (apportionment is proper when one of the causes is the conduct of the plaintiff, regardless of whether the plaintiff’s conduct is negligent or innocent). Workman compensation cases provide many examples of fault-free, causal apportionment. See, e.g., Jenkins v. Halstead Indus., 17 Ark. App. 197, 706 S.W.2d 191 (1986) (apportionment in non-fault based workers’ compensation case). Even when apportionment is based upon fault principles, claims of synergy or mathematical inexactitude do not create a bar to reasonable divisions of damages[1].

Judges in Pennsylvania, who have heard both sides of the evidence in asbestos/smoking lung cancer cases, have upheld juries’ causal apportionments of damages. In Parker v. Bell Asbestos Mines, Ltd., plaintiff sued for her deceased husband’s death from lung cancer. Her decedent had been a heavy smoker for many years, and he had been exposed minimally to asbestos in his office job on the property of an asbestos product manufacturing plant. Plaintiffs expert witnesses (Dr. Rubin) testified that the cancer and death were the result of synergistic risk of smoking and asbestos exposure, and that they did not know how to distinguish between the risks. The defense expert witnesses (Dr. Cooper and Epstein) opined that the cancer was due solely to smoking. Judge Huyett instructed the jury that it could choose to apportion damages between asbestos and tobacco, and the jury did so. A strong panel of the Third Circuit affirmed the apportionment instruction to the jury and the jury finding. Parker v. Bell Asbestos Mines, Ltd., No. 86-1197, Slip Op. (Dec. 30, 1987) (per curiam) (Weis, Higginbotham, and Hansmann, JJ.) (affirming judgment entered on verdict that apportioned causation of lung cancer and consequent death, but remanding on a liability issue), reported only for disposition at 838 F.2d 462 (3d Cir. 1987). For about five years after Parker, the federal district courts in the Third Circuit generally followed the practice of Judge Huyett, who was affirmed by the Circuit, in giving apportionment charges[2].

The defense’s uniform success in obtaining apportionment charges in Pennsylvania law diversity cases ended with Borman v. Raymark Indus., Inc., 960 F.2d 327 (3d Cir. 1992). In Borman, neither the defendants’ (Dr. William Weiss) nor the plaintiffs’ expert witnesses (Dr. Daniel Dupont) apportioned damages in a case involving an asbestos insulator, who smoked heavily, and died of lung cancer. Borman, 960 F.2d at 331. Dr. Dupont recited the dubious 5-10-50 Mt. Sinai catechism, and gave the requisite concession that he was ignorant of any method to apportion the lung cancer outcome to asbestos and tobacco. Dr. Weiss testified that asbestos was the sole cause of Mr. Borman’s lung cancer. On this record, the trial judge, Hon. Edmund Ludwig, refused to charge the jury on apportionment. The Third Circuit affirmed on its prediction that the Pennsylvania Supreme Court would disallow apportionment because the defense expert had never been asked to apportion causation, and thus the defendants could not carry their burden of proving a reasonable basis for apportionment. Id. at 334-35.

The Borman decision raised a difficult problem, which the panel of Judges Sloviter, Scirica, and Alito, never addressed: why had the defense not carried its burden of showing a basis for apportionment when:

(1) all expert witnesses agreed that tobacco was a cause of the plaintiff’s cancer;

(2) jury heard the quantified risks of tobacco and asbestos, which showed that tobacco had been a larger risk in the plaintiff’s case; and

(3) the plaintiff’s expert witness’s admitted ignorance with respect to how the outcome might be attributed to the individual risks.

The last point would have supported a directed verdict for the defense, but given that the case was permitted to go forward, the Borman decision represents the unfair allocation of tobacco-caused (or tobacco risked) damages to defendants sued for asbestos products.[3]

Borman also poses a serious constitutional due process problem. The defendant on appeal cited to the unpublished Third Circuit opinion Court, Parker v. Bell Asbestos Mines, Ltd., No. 86-1197, slip op. at 2-7 (3d Cir. Dec. 30, 1987) (per curiam). The Circuit essentially ignored this precedent because it was unpublished and thus had no “precedential value.” 960 F.2d at 333 n.9 (3d Cir. 1992) (citing Third Circuit Internal Operating Procedure 5.6 (July 1990)). The characterization of the earlier Parker decision as having no precedential value, when it resolved the same legal issues between other parties, and provided notice to other litigants how the Third Circuit resolved the issue, was quite arbitrary.[4] The Third Circuit’s current IOP continues the distinction between precedential and non-precedential opinions. See also United States Court of Appeals for the Third Circuit Local Appellate Rule 28.3(b) (Citation Form; Certification) (Aug. 1, 2011) (“For each legal proposition supported by citations in the argument, counsel must cite to any opposing authority if such authority is binding on this court, e.g., U.S. Supreme Court decisions, published decisions of this court, or, in diversity cases, decisions of the highest state court.) (emphasis added). The upshot of the practice of marking decisions non-precedential is that judges are permitted to decide like cases differently solely because the earlier judges decided to keep their decisions “private.”

Between the Third Circuit’s Parker decision in 1987, and its Borman decision in 1992, many state court judges in Pennsylvania gave apportionment charges. Judge Della Porta’s charge in Dixon v. Celotex Corp., was typical and it resulted in the jury’s apportioning damages in a smoking lung cancer case, involving some asbestos exposure, to both tobacco and asbestos. Dixon v. Celotex Corp., Phila. Cty. Ct. C.P. No. 4576, Oct. Term 1982, Opinion Sur Post-Trial Motions at p.3 (Mar. 3, 1991) (affirming judgment entered upon jury verdict, which apportioned the causes of plaintiff’s lung cancer 65% to cigarette smoking and 35% to asbestos exposure). Judge Della Porta was especially unimpressed by the complaint that the apportionment lacked a mathematical basis with apodictic certainty:

“It is worth noting here that we engage in sophistry if it is required that some mathematical formula be presented to the jury before it can allocate percentages when there are two or more causes for one injury. Let’s not forget that this is the same jury which is asked to determine the monetary value of ‛pain and suffering’ without any guidance whatsoever on how to arrive at a fair and adequate figure.”

Id. See also Mohan v. Carey Canadian Ltd., Phila. Cty. Ct. C.P., No. 8007-3931 (Charge to Jury on April 9, 1986) (Hon. Berel Caesar) (jury instruction that pre-dated Parker: “if you find that you can reasonably split out the effects of asbestos and the injuries caused by asbestos from the injuries caused by smoking, then you should do so and assign a percentage to them.”)

In one lung cancer case, tried in 1992 in Philadelphia state court, the defense presented a defense expert witness (Dr. Theodore Rodman) that tobacco and asbestos contributed equally to plaintiff’s lung cancer. The plaintiff’s expert witness (Dr. Irwin Stoloff) hedged, but acknowledged that both asbestos and tobacco contributed, with asbestos perhaps more so. Dorothy Rothermel, Executrix of the Estate of Leland Rothermel, Deceased v. Owens-Illinois, Inc., et al., No. 8704-1464 (Philadelphia Cty. July 17, 1992) (Judge Richard B. Klein). On these facts, distinguishable from the Borman case, the trial judge gave an apportionment instruction:

The trial judge, waxing professorial, charged the jury as follows regarding the apportionment of causation:

“The next question, the first part of it is, ‛Is there a reasonable basis to apportion responsibility for Mr. Rothermel’s lung cancer between cigarette smoking and asbestos exposure’. Why did we ask that question? Because pretty much the formal statement of the law, which is put forth by a number of professors and adopted by the courts, is called the Restatement of the law. This is in torts, and says damages are to be apportioned among two or more causes when A, there are distinct harms, or B, there is a reasonable basis for determining the contribution of each cause to a single harm.

Well, there aren’t distinct harms here that we’re talking about. That would be, for example, if someone has in this kind of a context both asbestos is and emphysema from cigarette smoking. So part of your shortness of breath is caused by emphysema, and part of it is caused by asbestos if it’s symptomatic, and the doctors will tell you how much of each they think it is, but then you come to a figure. But this is one disease, lung cancer, and it’s up to you to figure out whether it’s appropriate to apportion.

* * *

The first question is do you think this is something where it’s appropriate to divide it between the two or not. If you do, then make that division[.] …[Y]ou’ve heard what the different doctors said, one says 50/50, the other says somewhat less than 50 percent due to smoking, asbestos is a little more than that, based on his reasoning.

So it’s up to you first to decide if it’s appropriate, and if it’s reasonable, there’s a reasonable way to separate the two of them out as [causative] factors and to make the allocation, and then if so, then you go to B and divide them up, just making sure that the two equal 100 percent. If you don’t think it’s appropriate to allocate between the two of them, then skip to No. 3.

* * *

. . . [W]hen you come to a damage figure, even if you have allocated between asbestos and cigarette smoking, don’t discount for that in the damage phase. We’ll do that later.”

Trial Transcript, July 2, 1990, at 117-25 (Instructions of Hon. Richard B. Klein).

The jury apportioned damages equally between asbestos and tobacco, consistent with the defense expert witness’s testimony. By post-trial motion, the defendant, Owens-Illinois, requested the trial court to mold the injury’s verdict to reflect this apportionment. The court denied this motion, 24 Phila. 332 (1992), and the Superior Court affirmed in an unpublished per curiam decision. 433 Pa. Super. 643, 638 A.2d 276 (1993). After a full briefing and oral argument in the Pennsylvania Supreme Court, that Court dismissed the appeal as having been improvidently granted. Rothermel v. Owens-Illinois Glass Co., 542 Pa. 358; 667 A.2d 2 (1995) (per curiam). In other words, the Pennsylvania justices did not want to call whether Borman had accurately predicted their decision, because they would not decide.

Pennsylvania law on apportionment, as is the case with so much of Pennsylvania products liability law, remains unclear and up in the air.

[1] See, e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 556, 418 N.W.2d 650, 657 (1988)(upholding jury apportionment, under comparative negligence principles, of the roles of plaintiff’s cigarette smoking and the defendant’s asbestos product in causing plaintiff’s lung cancer); Hao v. Owens-Illinois, Inc., 69 Haw. 231, 738 P.2d 416 (1987) (fault-based apportionment ratio of 51% smoking to 49% asbestos affirmed); Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138-40 (5th Cir. 1985) (under Texas law, determination of apportionment is for the jury; it is capable of weighing the evidence as to each potential cause); Fulgium v. Armstrong World Indus., Inc., 645 F. Supp. 761, 763 (W.D. La. 1986) (apportionment allowed under Louisiana law); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (commenting on the jury verdict apportioning damages: “It is the province of the jury to determine the credibility and weight to be given the evidence”)

[2] DeSilvio v. Raymark Indus., Inc., No. 86-2340, U.S.D.C., E.D. Pa., Court’s Charge and Interrogatories to the Jury, N.T. at 3.82-83 (Oct. 21, 1988) (Hon. Norma L. Shapiro) (applying New Jersey law of causal apportionment to instruct the jury that it could apportion plaintiff’s claimed fear of cancer between smoking and asbestos causes); Jordan v. Fibreboard Corp., No. 85-5655, Jury Instruction on Apportionment of lung cancer in asbestos case, June 16, 1989 (McGlynn, J.); Backman v. Celotex Corp., Civil Action No. 87-4081 (E.D. Pa. Aug. 8, 1990) (Jury Charge and Interrogatory); Henderson v. Keene Corp., Charge to the Jury and Verdict Sheet in Civ. Action No. 87-7973 (E.D. Pa. 1991) (Pollak, J.).

[3] See Richard A. Shuter, “Apportionment of Damages–Third Circuit Predicts Pennsylvania Courts Would Not Allow Jury to Apportion Liability In A Cigarette Smoking, Exposure Case–Borman v. Raymark Ind., Inc.,” 66 Temp. L. Rev. 223, 229 (1993) (“All other jurisdictions that have addressed the apportionment of damages issue in an asbestos exposure, cigarette smoking case, have permitted the jury to apportion damages.”).

[4] No citation and no precedent rules are deeply problematic, and have attracted a great deal of scholarly attention.  See Erica Weisgerber, “Unpublished Opinions: A Convenient Means to an Unconstitutional End,” 97 Georgetown L.J. 621 (2009);  Rafi Moghadam, “Judge Nullification: A Perception of Unpublished Opinions,” 62 Hastings L.J. 1397 (2011);  Norman R. Williams, “The failings of Originalism:  The Federal Courts and the Power of Precedent,” 37 U.C.. Davis L. Rev. 761 (2004);  Dione C. Greene, “The Federal Courts of Appeals, Unpublished Decisions, and the ‘No-Citation Rule,” 81 Indiana L.J. 1503 (2006);  Vincent M. Cox, “Freeing Unpublished Opinions from Exile: Going Beyond the Citation Permitted by Proposed Federal Rule of Appellate Procedure 32.1,” 44 Washburn L.J. 105 (2004);  Sarah E. Ricks, “The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of The Substantive Due Process State-Created Danger Doctrine in One Circuit,” 81 Wash. L.Rev. 217 (2006);  Michael J. Woodruff, “State Supreme Court Opinion Publication in the Context of Ideology and Electoral Incentives.” New York University Department of Politics (March 2011);   Michael B. W. Sinclair, “Anastasoff versus Hart: The Constitutionality and Wisdom of Denying Precedential Authority to Circuit Court Decisions.”  See generally The Committee for the Rule of Law (website) (collecting scholarship and news on the issue of unpublished and supposedly non-precedential opinions).

Posted in Apportionment | Comments Off on Further Thoughts on the Carter Apportionment Case – The Pennsylvania Experience

Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter

September 19th, 2014

In Carter v. The Wallace & Gale Asbestos Settlement Trust, 439 Md. 333, 96 A.3d 147 (2014), the Maryland Court of Appeals missed an opportunity to place causal apportionment of damages in asbestos cases on a sound legal and factual basis. Instead, the Court misinterpreted the law to be about fault instead of causation, and it failed to come to terms with the facts that supported apportionment.

Carter was a consolidation of four lung cancer cases for trial before a single jury. All plaintiffs had substantial smoking histories, with varying degrees of asbestos exposure. None of the plaintiffs had been an insulator or worked in an asbestos factory. In one of the cases, involving Roger C. Hewitt, Sr., defendant Wallace & Gale Asbestos Settlement Trust[1] proffered a report of its expert witness, Dr. Gerald R. Kerby, who opined that the Mr. Hewitt’s lung cancer and death was apportionable, 3:1, between two causes, smoking and asbestos. 96 A.3d at 151-52.

The plaintiffs’ expert witness, Dr. Steven Zimmet provides the catechistic testimony, based upon the Mt. Sinai scriptures. Zimmet testified that “he could not differentiate between the two causes because the two exposures [asbestos and tobacco] are ‛not just additive, they are synergistic which means they multiple exposures’.” Id. at 151. Of course, Zimmet’s profession of ignorance was hardly probative of whether an apportionment could be made. The distinction, however, between knowledge that something cannot be done, and ignorance as to how it might be done, was lost upon the trial judge, who was wildly dismissive of the proffered opinion from Dr. Kerby:

“No, I understand there is a statistical basis for likelihood of risk. But in a given—with a given plaintiff, I don’t know how you can apportion it. But, you know, I guess, the witness can say what he says if he is qualified to say it. But I’m not going to give an instruction on this because it is not — I don’t perceive it at this point to be the law in these types of cases.

* * *

You can apportion risk. I don’t know how, in an individual plaintiff[‘s] case, you can apportion damages. I don’t know. It is a mystery to me. We’ll find out. The doctor will show up and we will hear about it.”

Id. at 151.

The trial judge excluded Dr. Kerby’s apportionment opinion, based upon a filed offer of proof, and refused to charge the jury on apportionment of damages. As for the jury instruction on apportionment, the trial judge ventured that the defendant was asking to the jury to make “a very unscientific wild guess.” Id. at 151. Of course, allowing the jury to decide any causation claim upon evidence of increased risk sanctions wild guesses and unscientific speculation. Risk is not causation. See, e.g., Guinn v. AstraZeneca Pharms., 602 F.3d 1245, 1255 (11th Cir. 2010) (“An expert, however, cannot merely conclude that all risk factors for a disease are substantial contributing factors in its development. ‘The fact that exposure to [a substance] may be a risk factor for [a disease] does not make it an actual cause simply because [the disease] developed.’”) (internal citation omitted). See also Richard Doll, “Proof of Causality: Deduction from Epidemiological Observation,” 45 Perspectives in Biology & Medicine 499, 500 (2002) (“That asbestos is a cause of lung cancer in this practical sense is incontrovertible, but we can never say that asbestos was responsible for the production of the disease in a particular patient, as there are many other etiologically significant agents to which the individual may have been exposed, and we can speak only of the extent to which the risk of the disease was increased by the extent of his or her exposure.”). Given that courts have put juries into the business of making wild guesses, the trial court failed to explain why it could not make a guess based upon the same sort of increased risk evidence that would support a finding of causation against the asbestos defendant alone.

The jury returned verdicts for all four plaintiffs, and the defendant appealed. The Maryland Special Court of Appeals reversed and remanded the Hewitt case for a new trial.[2] Wallace & Gale Trust v. Carter, 65 A.3d 749, 752 (Md. App. 2013). The Maryland Court of Appeals, however, took the plaintiff’s appeal, and reinstated the verdict in favor of the Hewitt family[3].

The Court of Appeals did not fuss over the general statement of Maryland law of apportionment of damages, which has adopted the American Law Institute’s Restatement (Second) of Torts § 433A (1965), which provides:

“(1) Damages for harm are to be apportioned among two or more causes where

          (a) there are distinct harms, or

(b) there is a reasonable basis for determining the contribution of each  cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.”

Id. at 157-58, quoting the Restatement. The Court did not explain why it was relying upon a portion of the Restatement, which has been superseded by the Restatement Third of Torts: Apportionment of Liability § 26 (2000).

In any event, the Court of Appeals did recognize that the crucial issue was whether there was a reasonable basis for determining the contribution of each cause to a single harm. On this issue, the Carter court took its lead from antiquated dicta from a treatise, 30 years out of date. W. Page Keeton, et al., Prosser and Keeton on Torts § 52, at 345 (5th ed. 1984). See Georgetown Law Library, “Torts Law Treatises” (“This classic hornbook on torts is no longer up-to-date… .”). The Court quoted:

“The distinction is one between injuries which are reasonably capable of being separated and injuries which are not. If two defendants, struggling for a single gun, succeed in shooting the plaintiff, there is no reasonable basis for dividing the injury between them, and each will be liable for all of it. If they shoot the plaintiff independently, with separate guns, and the plaintiff dies from the effect of both wounds, there can still be no division, for death cannot be divided or apportioned except by an arbitrary rule devised for that purpose. If they merely inflict separate wounds, and the plaintiff survives, a basis for division exists, because it is possible to regard the two wounds as separate injuries; and the same of course is true for wounds negligently inflicted…. Upon the same basis, if two defendants each pollute a stream with oil, in some instances it may be possible to say that each has interfered to a separate extent with the plaintiff’s rights in the water, and to make some division of the damages. It is not possible if the oil is ignited, and burns the plaintiff’s barn.”

96 A.3d at 158, quoting Prosser and Keeton on Torts § 52, at 345-47 (5th ed. 1984) (internal citations omitted). As can be seen from the language quoted by Court, the venerable, but out-dated text never even considered an apportionment of an injury where the only information about causation was the existence of ex ante risks. Conspicuously absent from the hornbook are any examples of cases in which causation itself is predicated upon quantitative risk estimates, which in turn could readily supply the basis for apportionment.

As for the science, the Court of Appeals cited a textbook written by plaintiffs’ lawyers:

“asbestos and tobacco smoke are complex carcinogens that can affect multiple steps in the multistage process of cancer evolution, and that the combined effects will depend on the relative magnitude of each carcinogen at each stage. As reported in different studies, the interactive effect ranges from less than additive to supramultiplicative [sic] but the model for insulation workers approximates a multiplicative effect. If the multistage model of carcinogenesis holds, and asbestos and smoking act at different stages, then a multiplicative relationship follows.”

96 A.3d at 160-61, quoting from George A. Peters & Barbara J. Peters, Asbestos Pathogenesis and Litigation, 13 The Sourcebook on Asbestos Diseases: Medical, Legal, and Technical Aspects 149 (1996). Peters and Peters is a consulting and law firm in Santa Monica. Barbara J. Peters is a lawyer and a member of the Consumer Attorneys Association of Los Angeles, the Consumer Attorneys Association of California, and the Association of Trial Lawyers of America.

If the Court of Appeals had even bothered to read the plaintiffs’ lawyer tract, it would have seen that even the Peters had qualified their opinion, in their 1996 book, by suggesting that the “model for insulation workers approximates a multiplicative effect.” Id. (emphasis added). Mr. Hewitt had been a crane operator, which hardly involves the same level of exposure as an asbestos insulator, and the evidence for multiplicative synergy is sorely lacking outside a few, heavily exposed cohorts such as insulation workers. In any event, the Court of Appeals failed to explain or justify why a multiplicative model, even if it were appropriate, is decisive of the issue whether or not there was a reasonable basis for apportionment.

While we might excuse the Court of Appeals’ missteps in interpreting scientific evidence, even if filtered through funnels created by the plaintiffs’ expert witness Zimmet and the law firm of Peters & Peters, harder to forgive is the Court’s bobbling the interpretation of apportionment in New Jersey courts. The Special Court of Appeals had relied upon the New Jersey Dafler case, which affirmed a jury’s apportionment of damages in an asbestos and smoking lung cancer case. Dafler v. Raymark Industries, Inc., 259 N.J.Super. 17, 611 A.2d 136 (App. Div.1992), aff’d 132 N.J. 96, 622 A.2d 1305 (1993) (per curiam). In Dafler, the plaintiff’s expert witness made the usual protestations that the outcome, lung cancer, was indivisible, and the defense expert witness opined that smoking was the sole cause. The New Jersey appellate courts held that it would be manifestly unjust to attribute 100% of the lung cancer to smoking when no expert witness testified to such an allocation.

The Court of Appeals correctly pointed out that New Jersey cases are not binding upon it and that it would choose not to do so, which was its wont. The Court then proceeded to ignore that the Dafler holding was explicitly adopted by the New Jersey Supreme Court, and that the holding was based upon a causal, not a fault-based, apportionment. Indeed, the Court of Appeals went as far as to declare that the Dafler case was based upon fault principles because the Appellate Division there had stated that “apportionment is also consistent with the principles of the Comparative Negligence Act.” 96 A.3d at 155, quoting from Dafler, 259 N.J.Super. at 35, 611 A.2d at 145 (emphasis added). What the Maryland Court of Appeals failed to realize, however, was that the Dafler case was tried in New Jersey’s regime of hyper-strict asbestos liability, in which evidence of fault is excluded. Of necessity, the evidence and the verdict in Dafler were based exclusively upon causal determinants, not fault principles. Indeed, the Appellate Division’s “also” emphasized here in the quote from Dafler makes clear that the Appellate Division was merely noting that New Jersey juries are asked to make similar assessments of comparative contributions in fault, and that making such an assessment is not beyond the jury’s function or competence.

Two judges, in Carter, dissented in a polite, factual opinion that tore away at the majority opinion. The dissent noted that in Maryland, as in most states, workman’s compensation judges apportion causal shares to single injuries all the time. 96 A.3d at 173. And the dissent dug deeper into New Jersey law, as well as other foreign states, to expose the majority’s poor scholarship:

“Death may be indivisible as to result, but it is not per se incapable of apportionment. Many courts around the country have permitted apportionment in death cases. See e.g., Brisboy v. Fibreboard Corp., 429 Mich. 540, 418 N.W.2d 650, 655 (1988) (permitting apportionment of damages in a wrongful death action based on smoking history and asbestos exposure); Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 562 A.2d 1100, 1118 (1989) (same); see also Poliseno v. General Motors Corp., 328 N.J.Super. 41, 744 A.2d 679, 687 (2000) (concluding that while death is indivisible as to result, it is capable of apportionment in terms of causation). … In my view, a categorical rule that death is an indivisible injury incapable of apportionment speeds past an accepted principle of law: death can be capable of apportionment as to damages, but not as to fault. See Restatement (Third) of Torts: Physical and Emotional Harm § 28, cmt. d (2010) (“Death as an injury may not be divisible, but damages for death are divisible.”); see also Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envtl. L. 549, 568–69 (1995) (stating that although “comment i [to the Restatement (Second) of Torts § 443A] states that death is the quintessential indivisible harm … deaths attributable to toxic causes, as when a plaintiff dies from lung cancer brought about by the combined effects of smoking and asbestos exposure, each of the contributing causes can be compared and the harm apportioned on that basis.”).

Id. at 173.

The dissent saw clearly that the characterization of apportionment in New Jersey law, relied upon by the intermediate appellate court, was not a mere matter of opinion. The majority of the Court of Appeals was wrong, as a matter of fact, in claiming that apportionment of damages in New Jersey was based upon fault. Id. at 174, citing Poliseno v. General Motors Corp., 328 N.J.Super. 41 55-56, 744 A.2d 679, 687-88 (2000), for clear distinguishing between apportionment based upon causation as opposed to fault.

The dissent also called out the majority for the disturbing partisanship in adopting plaintiffs’ lawyers’ and plaintiffs’expert witness’s opinions on apportionment, without any consideration of the excluded expert witness’s contrary opinions. See Gerald W. Boston, Toxic Apportionment: A Causation and Risk Contribution Model, 25 Envt’l L. 549, 555 (1995) (cited by dissenters for his conclusion that “[i]f the plaintiff’s asbestos exposure and his smoking are both shown to be causal factors in the plaintiff’s lung cancer, then the loss is necessarily capable of apportionment on the basis of the relative risks demonstrated for each kind of toxic exposure.”).

The Carter case comes about a year after the Court of Appeals reversed a careful opinion of the Special Court of Appeals, and held that plaintiffs’ expert witnesses may testify that each exposure, however small, represents a substantial contributing factor to a plaintiff’s asbestos-related disease. Dixon v. Ford Motor Co., 433 Md. 137 (2013). Science seems not to play well in asbestos cases before the high court of Maryland.

[1] Apparently, the Trust was inappropriately named a Settlement Trust, probably by plaintiffs’ counsel creditors who had apparently hoped it would simply be a cash delivery device.

[2] Colleen K. O’Brien, “Trial Court Erred by Excluding Defense Expert Testimony on Cigarette Smoking As Contributing to Plaintiff’s Lung Cancer” (May 2013); Arlow M. Linton, “Maryland: Failure to Allow Apportionment of Causes of Lung Cancer is Reversible Error” (Oct. 28, 2013).

[3] Colleen K. O’Brien, “Trial Court Properly Excluded Defense Expert Testimony on Cigarette Smoking as Contributing to Plaintiff’s Lung Cancer in Asbestos Case” (Aug. 19, 2014).


				


				
 Posted in Apportionment, Causation, Expert Witnesses |   Comments Off on Maryland Refuses Apportionment in Asbestos Lung Cancer Cases – Carter