Asbestos chrysotile fibers that cause lung disease, COPD, lung cancer, mesothelioma. Photo: Shutterstock

The state Supreme Court has agreed to take up a case that may provide guidance to Pennsylvania courts struggling with how to apportion liability against defendants in strict liability cases.

The justices last week agreed to hear arguments in Roverano v. John Crane. Specifically, the justices agreed to consider whether the state Superior Court last year misinterpreted the Fair Share Act by holding that judges should not simply divide the damages equally among all the defendants. The justices also agreed to consider whether the act means that juries should consider evidence of settlements between the plaintiff and any bankrupt entities when determining how to apportion the damages.

Plaintiffs in the case, who are suing over asbestos-related claims, contended the act,  which made it so defendants are only responsible to pay for the percent they are found liable, does not apply to strict liability claims for the purposes of apportioning liability.

In December, a three-judge Superior Court panel vacated the trial court’s ruling that the Fair Share Act did not apply, and remanded the case for a new trial to apportion liability. The ruling left intact the $6.3 million award a Philadelphia jury delivered to plaintiff William Roverano in 2016. Superior Court Judges Alice Dubow, Kate Ford Elliott and Carl Solano comprised the panel.

Although the panel noted suggestions from defendants that the apportionment could be based on Roverano’s potential exposure to each defendant’s product, or the potency of each product, the panel left it up to the trial court to determine what criteria should come into play.

“These causation-based arguments clearly suggest bases for apportionment apart from fault,” the panel said in a footnote. “Their reasonableness is for the trial court to determine in the first instance, and the weight of their supporting evidence is a matter for the jury.”

Roverano, a former PECO Energy employee, and his wife sued numerous defendants over claims he was exposed to asbestos-containing products that eventually caused him to develop lung cancer. The verdict sheet listed eight defendants, but the jury did not determine how much each should contribute to the award.

Before the enactment of Act 17 of 2011, often referred to as the Fair Share Act, a defendant found liable for any percentage of an incident could be made to pay the entire award. The act changed the law so defendants are only responsible to pay for the percentage they’re found liable, and can only be made to pay the full award if they are found more than 60 percent responsible.

The plaintiffs noted the act did not discuss how liability among strictly liable joint tortfeasors is supposed to be apportioned, and argued that omission showed that apportionment was supposed to continue on a per capita basis, as it had before the Fair Share Act was enacted.

The Superior Court panel, however, noted the law explicitly applies to tort cases involving multiple defendants, including strict liability cases, and said the legislative history indicates the law was intended to do away with per capita apportionment.

“We, therefore, conclude that liability in strict liability cases must be allocated the same way as in other tort cases, and not on a per capita basis,” the opinion said. “We also agree with appellants that the jury on remand must be permitted to consider evidence of any settlements by the Roveranos with bankrupt entities in connection with the apportionment of liability.”

Edward Nass of Nass Cancelliere Brenner, who represented the plaintiffs, did not return a call for comment. Duane Morris attorney Robert Byer represented defendant Brand Insulations, and William Adams of Dickie, McCamey & Chilcote represented John Crane Inc. Byer declined to comment, and Adams declined to comment without speaking with the company’s appellate counsel first.