An attorney told the Pennsylvania Supreme Court on Wednesday that applying the full weight of the Fair Share Act required juries to apportion damages in all products liability cases, but several justices said they were worried doing so would open the door to “speculation” and “junk science” in the courtroom.
A full complement of the court heard arguments Wednesday in the asbestos case Roverano v. John Crane, a closely watched case that is expected to provide guidance to courts and litigators on how to apply the Fair Share Act in strict liability cases. Much of the argument session focused on whether damages should be apportioned equally to all defendants or whether juries should determine damages based on each defendant’s conduct.
Duane Morris attorney Robert Byer, who represented the defendant Brand Insulations, told the justices that the language and intent of Act 17 of 2011, often referred to as the Fair Share Act, makes it clear that juries must assess damages against each defendant in all products liability cases.
“The bottom line is, this is what the General Assembly directed the courts to do,” Byer said.
Byer contended that juries could use evidence that typically comes in during the liability phase to establish that the asbestos exposure was regular, frequent and proximate when they assess what amount of damages each defendant should be saddled with.
Justices Max Baer and David Wecht said they did not think science could provide the level of detail that would be needed to properly determine how much each defendant contributed to the harm.
“Respectfully, your theory is interjecting junk science,” Baer said. “We’ve never held that duration of contact corresponds with culpability.”
Justice Christine Donohue offered similar sentiments.
“The jury could just speculate,” Donohue said. “You’re just asking the jury to make it up.”
Justice Sallie Mundy also said she felt that using the evidence to allocate damages essentially altered the framework of the products liability cause of action, and Wecht, repeatedly referring to what he called “indivisible harm” that occurs in asbestos cases, said the problem may have arisen when the General Assembly ”cramm[ed]” strict liability issues into legislation pertaining to negligence principals.
“ There needs to be a fault determination,” Wecht said.
Byer, however, countered that the jury would not be tasked with apportioning liability percentages, but instead would just be assessing damages. Any arguments about the fairness or concerns about any one particular class of parties should be brought to the legislature, he said. He also noted other jurisdictions, such as Ohio, handle products liability cases in a similar manner, and said he was only asking courts to “apply the statute.”
The case stems from the lawsuit William Roverano, a former PECO Energy employee, and his wife brought against numerous defendants over claims he was exposed to asbestos-containing products that eventually caused him to develop lung cancer. In 2016, a Philadelphia jury awarded Roverano $6.3 million.
The verdict sheet listed eight defendants, but the jury did not determine how much each should contribute to the award. Instead the judge distributed the damages evenly between the defendants on a per capita basis. 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.
Before the enactment of 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.
Edward Nass of Nass Cancelliere, who argued for Roverano, contended that the Supreme Court did not have to apply its ruling to all products liability causes of action, and could instead limit it to asbestos cases.
Nass further told the justices that the number of products a plaintiff can be exposed to, which could be as many as 40, the length of time between when the exposures happen and the diseases manifest, and the fact that science is unable to pinpoint which product caused the disease all make it extremely difficult for jurors to apportion damages. And, he argued, since none of the defendants warned about the damages of asbestos, the defendants all should be equally responsible for the damages.
“A percentage apportionment of liability in an asbestos action is nearly impossible, if not impossible,” he said. “If the medical community can’t allocate who’s responsible, how is a jury supposed to?”