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

Trial courts struggling with how to apportion liability against defendants in strict liability cases were given guidance Thursday when the Pennsylvania Superior Court ruled judges should not simply divide liability equally among defendants.

A three-judge panel of the court determined in Roverano v. John Crane Inc. that the Fair Share Act, which made it so defendants are only responsible to pay for the percent they are found liable, applies to asbestos litigation. The ruling rejected arguments that the act did not apply to strict liability claims for the purposes of apportioning liability.

The decision, issued in a 36-page per curiam opinion, 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 last year.

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 verdict 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 apportion, 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 represented the plaintiffs. Duane Morris attorney Robert Byer represented defendant Brand Insulations, and Baker McKenzie attorney Michael Pollard represented John Crane. None of the attorneys returned a call for comment Thursday.