A decision by the Pennsylvania Supreme Court in the closely watched case Roverano v. John Crane is certain to provide trial court guidance on how to apply the Fair Share Act in strict liability cases. It's also likely to bring sweeping changes to how litigators handle those cases across the Keystone State, attorneys say.

In late July, the Supreme Court took up an appeal to consider whether the Fair Share Act means that courts can no longer evenly divide damage awards between the defendants in strict liability cases, and whether juries must consider evidence of settlements between the plaintiff and any bankrupt entities when determining how to apportion the damages.

Although Roverano is an asbestos case, attorneys agree it will impact strict liability cases broadly, and said the question regarding whether juries should consider settlements with bankrupt entities could have wider implications.

“The defense bar will be watching it closely. The whole asbestos bar is watching it,” defense attorney Jason Rubin of Goldberg, Miller & Rubin said. “This will be the final word on this.”

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 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.

According to attorneys, trial courts have not been uniform in how they have apportioned damages in strict liability cases. Attorneys said that while many judges in Philadelphia divvied damages on a per capita basis, judges in Pittsburgh generally apportioned the damages based on the liability findings. In other venues, the considerations varied even more depending on the judge and the county.

Doing away with per capita damages apportionment would essentially add a host of new considerations for juries and new arguments that litigators will have to present regarding exactly how much each contributed, attorneys said.

According to Shein Law Center attorney John Kopesky, one of the reasons the Supreme Court previously allowed per capita damages allocations in strict liability cases was because of how complicated these issues can be.

“In a multi-defendant case, it's hard to determine an exact percentage that each product contributed,” Kopesky said. “How do you say that this gasket was this percentage, and that gasket was that percentage?”

Cozen O'Connor attorney James Heller also said eliminating the possibility of a per capita apportionment will have a large impact at the settlement phase.

“You're going to have to do a more detailed analysis as a plaintiffs attorney before settling, to make sure you're getting more of a fact-based apportionment with the settlement,” Heller said.

Attorneys also noted that, in some cases, the burden of proof to obtain a settlement with a bankrupt agency is much lower than what it would be at trial, so allowing juries to consider settlements with bankrupt entities will require more litigation regarding that entity's role, attorneys said.

Heller said that could also further complicate settlement discussions.

“Once again there's a dilemma. You have to figure out what you want to do with the bankrupt entity because it's subject to the same apportionment analysis,” Heller said. ”Here, if you settle out for a smaller sum and that bankrupt defendant, or that party, based on the fact-based apportionment, had a greater role, the remaining defendants would have a lesser amount of liability.”

Members of the defense bar are largely rooting to have the Supreme Court do away with the per capita apportionment.

“For the most part, in the past, plaintiffs have attempted to use per capital, since it's much easier for them,” Heller said. ”As a defense attorney, I do believe [individualized damages allocations are] the fairest way, because you're identifying the conduct based on how much of a factor each defendant was, individually, in causing the injuries.”

On the other hand, plaintiffs have contended the Fair Share Act did not discuss how liability among strictly liable joint tortfeasors is supposed to be apportioned, and that omission showed that apportionment was supposed to continue on a per capita basis.

According to Kopesky, along with a plain reading of the law, there are also fairness considerations the Supreme Court will have to weigh in considering the case. He said that since awards from bankrupt entities are often a small percentage of the damages a jury might allocate, including settlements from bankrupt entities as part of a jury's consideration could make it so plaintiffs are unable to recover all of the awarded damages.

“Defendants have an opportunity to collectively point the finger at the bankrupt defendant in an effort to get a large portion of damages assigned to them,” Kopesky said. “That creates, really, a policy issue at that point, because the cost of care for that sick plaintiff is not being born by the responsible defendants. It's being born by the public at large.”