WILLIAM C. ROVERANO AND JACQUELINE ROVERANO, H/W, Appellants v. JOHN CRANE, INC. AND BRAND INSULATIONS, INC., Appellees; WILLIAM ROVERANO, Appellant v. JOHN CRANE, INC., Appellee
No. 26 EAP 2018, No. 27 EAP 2018
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
DECIDED: February 19, 2020
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. ARGUED: March 6, 2019.
JUSTICE MUNDY
In this appeal by allowance, we consider whether the Fair Share Act,
I.
William Roverano was exposed to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and a carpenter with PECO Energy Company. Additionally, he smoked cigarettes for approximately thirty years until 1997. In November 2013, Mr. Roverano was diagnosed with lung cancer in both lungs.
On March 10, 2014, Mr. Roverano brought a strict liability lawsuit against thirty defendants, including John Crane, Inc. (Crane) and Brand Insulations, Inc. (Brand), asserting that exposure to their asbestos products caused his lung cancer. His wife, Jacqueline Roverano, also advanced a loss of consortium claim. Additionally, on January 7, 2016, Crane filed a joinder complaint against Johns-Manville/Manville Personal Injury Trust.
Before trial, several defendants, including Crane and Brand, filed a motion in limine seeking a ruling that the Fair Share Act,
On March 30, 2016, after discovery in the case had closed, Hajoca Corporation (Hajoca) filed a motion in limine seeking to, among other things, list on the verdict sheet the 14 asbestos bankruptcy trusts with which the Roveranos filed applications for compensation.2 In its motion, Hajoca stated the issue was “whether [pursuant to
The same day the trial court granted the Roveranos’ motion in limine, the seven-day jury trial in this matter commenced with Crane, Brand, and Hajoca remaining as defendants. The Roveranos and Hajoca reached a settlement during trial, leaving Crane and Brand as the only non-settling defendants. The evidence presented at trial focused on Mr. Roverano‘s exposure to Crane and Brand‘s asbestos products and the causal connection of that exposure to his lung cancer. Crane and Brand‘s theory was that Mr. Roverano‘s history of smoking caused his lung cancer, and any exposure to their asbestos products was too insignificant to be a cause. The Roveranos’ experts opined that both smoking and the exposure to asbestos products caused his lung cancer.
Specifically, the Roveranos presented Dr. Arthur Frank, who was qualified as an occupational medicine expert specializing in asbestos-related diseases. N.T., 4/7/16, at 19. Dr. Frank explained that when asbestos fibers enter the lungs, they remain in the body for life, and they can cause a number of nonmalignant or malignant diseases. Id. at 24, 32. He contrasted asbestos with cigarette smoking, where the risk of developing lung cancer from cigarette smoking decreases with time after a person stops smoking. Id. at 40. Dr. Frank stated asbestos diseases are dose responsive, meaning that as the dose of asbestos increases so does the likelihood of disease. Id. at 27. In this regard, he noted that “the only safe level is zero. And how much above zero has given rise to disease? Actually very little.” Id. Dr. Frank explained that to develop asbestosis, a nonmalignant scarring of the lungs, the dose of asbestos has to exceed a certain threshold; however, a person can develop cancer from asbestos exposures that do not cross the threshold necessary for asbestosis. Id. at 28.
Dr. Frank noted that asbestos is a carcinogen that can cause lung cancer. Id. at 31, 33. Further, when a cigarette smoker is also exposed to asbestos, there is a “multiplicative or synergistic response” that greatly increases the possibility of getting lung cancer. Id. at 36-39. Based on his review of Mr. Roverano‘s case, Dr. Frank opined that Mr. Roverano‘s lung cancer was caused by the combination of his exposure to asbestos from 1971-81 at PECO and his history of cigarette smoking. Id. at
[T]here is scientifically or medically no exposures you can leave out that make up the cumulative exposure. It is the totality of the exposure that comes from the variety of products that people are exposed to that give them their cancer and all of the exposures they have day after day end up increasing their risk and if they get the disease, you have to say it was in part causative of it.
Id. at 67. Additionally, Dr. Frank noted there is no scientific basis to determine which product caused the lung cancer:
[T]he body doesn‘t know that it was a Hajoca product or Brand product or John Crane company or company X, Y, or Z. They don‘t come with little flags on them that say [the asbestos] comes from this company or that company. The body responds to asbestos because it‘s asbestos and all of the exposures have the same potential for causing disease.
Id. at 73. Accordingly, Dr. Frank concluded that each product that increased Mr. Roverano‘s exposure to asbestos contributed to his risk of developing lung cancer. Id. at 74.
Similarly, the Roveranos also presented the expert testimony of Dr. Jonathan Gelfand, a physician specializing in pulmonary disease. N.T., 4/5/16, at 6, 16-17. His opinion was that Mr. Roverano‘s exposure to each asbestos-containing product was a substantial contributing factor to his lung cancer. Id. at 25. Dr. Gelfand expressed uncertainty about the contribution of cigarette smoking because Mr. Roverano stopped smoking seventeen years before his lung cancer diagnosis. Id. at 26. Nonetheless, Dr. Gelfand stated his smoking history “may be a contributing factor[.]” Id. Regarding asbestos, Dr. Gelfand held a similar opinion to Dr. Frank, which was that asbestos-related diseases are cumulative “in the sense that each exposure to asbestos contributes to the total burden of asbestos that an individual will retain or keep throughout his life. Once asbestos fibers are held in the body, they never go away.” Id. at 49-50. Further, Dr. Gelfand explained “you can‘t say which particular fiber from any particular day [caused lung cancer]. It is the total burden of exposure that is the cause and increases the risk of lung cancer.” Id. at 50. Accordingly, Dr. Gelfand opined that the exposure to Crane and Brand products were substantial contributing factors to Mr. Roverano‘s lung cancer. Id. at 53-55.
In contrast, Brand relied on Dr. Alan Pope, an expert in pulmonary medicine and, specifically, the diagnosis of asbestos-related conditions. N.T., 4/7/16, at 13. He opined that asbestosis is a necessary prerequisite to attributing lung cancer to asbestos exposure. Id. at 31. However, Dr. Pope noted that in his physical examination of Mr. Roverano, he did not discover pleural plaques or asbestosis in Mr. Roverano‘s lungs. Id. at 15, 28. Based on this, his opinion was that Mr. Roverano‘s lung cancer was caused by cigarette smoking, not asbestos exposure. Id. at 30-31. On cross-examination, Dr. Pope acknowledged that asbestos diseases are dose responsive. Id. at 36. Further, Dr. Pope admitted that there is no way to determine which asbestos-containing product caused an asbestos-disease; instead, all the products combine to cause the disease. Id. at 38-39.
Likewise, Crane‘s expert, Dr. James Crapo, opined that to attribute lung cancer to asbestos, there must be objective signs of asbestos exposure, such as asbestosis. N.T., 4/2/16, at 61. Because Mr. Roverano did not exhibit those objective signs, Dr.
Additionally, Brand and Crane each presented industrial hygienists.4 Patrick Rafferty testified on behalf of Brand and opined that Brand‘s contribution to Mr. Roverano‘s asbestos exposure was within the range of background concentrations in the normal outdoor environment. Id. at 48. However, he acknowledged that he was not offering a medical causation opinion. Id. at 33. Dr. Frederick Toca, a Ph.D. in industrial hygiene and toxicology, opined that Mr. Roverano‘s exposure from Crane packing products would have been below the no effect level and would not have increased his risk of disease. N.T., 4/11/16, at 76. Instead, Dr. Toca concluded the asbestos-containing thermal insulating products combined with cigarette smoking were responsible for the increased risk of lung cancer. Id. at 77.
On April 13, 2016, the jury returned a verdict in favor of the Roveranos and against Crane, Brand, and six of the eight other defendants who had settled their claims.5 The jury awarded a total of $5,189,265.14 to Mr. Roverano and $1,250,000.00 to Mrs. Roverano. Crane and Brand each filed post-trial motions. Relevant to this appeal, Crane and Brand argued that the Fair Share Act requires the jury to apportion liability on a percentage basis. Crane‘s Post-Trial Motion, 4/22/16, at 12-13; Brand‘s Post-Trial Motion, 4/25/16, at ¶ 19. Further, Crane and Brand maintained that the Manville Asbestos Trust should have been included on the verdict sheet because it was a joined defendant. Crane‘s Post-Trial Motion, 4/22/16, at 13-14; Brand‘s Post-Trial Motion, 4/25/16, at ¶ 20-21. Regarding the remaining bankruptcy trusts, Crane and Brand contended the trial
court should mold the verdict to reflect a set-off for compensation Mr. Roverano had or will receive from those trusts. Crane‘s Post-Trial Motion, 4/22/16, at 5-6; Brand‘s Post-Trial Motion, 4/25/16, at ¶ 16. The trial court denied Crane and Brand‘s post-trial motions.
The trial court molded the verdicts, apportioning the judgment equally, i.e., on a per capita basis, among the eight defendants the jury found liable. Accordingly, the trial court entered judgments against Crane and Brand for $648,858.00 each, plus $29,604.00 in delay damages, on Mr. Roverano‘s claim; and an additional $156,250.00 each for Mrs. Roverano‘s loss of consortium. The amount assigned to each defendant represented 1/8th of the jury‘s lump sum damages award.
Relevant to this appeal, the Superior Court held that the Fair Share Act,
§ 7102. Comparative negligence
(a) General rule.--In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
(a.1) Recovery against joint defendant; contribution.--
- 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 (a.2).
- Except as set forth in paragraph (3), a defendant‘s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant‘s liability.
- A defendant‘s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:
- Intentional misrepresentation.
- An intentional tort.
- Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.
- A release or threatened release of a hazardous substance under section 702 of the
- act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act.
A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code. - Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant‘s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.
(a.2) Apportionment of responsibility among certain nonparties and effect.--For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.
The Superior Court observed that the predecessor to the Fair Share Act, the Comparative Negligence Act, directed the fact-finder to make a percentage determination among joint tortfeasors, but did not cover strict liability.7 Roverano, 177 A.3d at 905. Because the Comparative Negligence Act did not apply to strict liability, case law developed holding that liability among strictly liable joint tortfeasors was calculated on a per capita basis, i.e., each defendant was assigned the same percentage of damages without any inquiry into the amount its conduct contributed to the injury. Id. (citing Baker, 755 A.2d 664; Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992)).
The Superior Court found the plain language of the Fair Share Act expressly applies to strict liability and replaces per capita apportionment with percentage allocation. Roverano, 177 A.3d at 906. The court concluded the trial court erred in denying Crane and Brand‘s motion in limine to have the jury apportion each defendant‘s share of liability. Id. Instead, the Superior Court reasoned that the Act reflected the legislature‘s intent to allocate liability among strictly liable joint tortfeasors in the same manner as negligent joint tortfeasors, i.e., on a percentage basis. Id.
Further, the Superior Court concluded that in the new trial on damages, the jury should consider evidence of any settlements the Roveranos obtained from bankrupt entities. Id. The Superior Court reasoned that
Id. at 911. Thus, the court concluded the Act “does not conflict with the Code and is not preempted by it.” Id.; see also id. at 911 n.14 (noting the presumption against preemption). The Superior Court remanded for a new trial on damages only for the jury to apportion the verdict among Crane, Brand, the other defendants on the verdict slip, and any bankrupt settling defendants.8 Id. at 911.
We granted the Roverano‘s petition for allowance of appeal to consider:
- Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act
42 Pa.C.S. Sec. 7102 in holding that the Act requires the jury to apportion liability on apercentage basis as opposed to a per capita basis in this strict liability asbestos case[.] - Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act in holding that the Act requires the jury to consider evidence of any settlements by the plaintiffs with bankrupt entities in connection with the apportionment of liability amongst joint tortfeasors[.]
Roverano v. John Crane, Inc., 190 A.3d 591 (Pa. 2018) (per curiam). Because these issues require statutory interpretation, our standard of review is de novo, and our scope of review is plenary. See MERSCORP, Inc. v. Del. County, 207 A.3d 855, 861 (Pa. 2019); Oliver v. City of Pittsburgh, 11 A.3d 960, 964 (Pa. 2011).
II.
When engaging in statutory construction, a court‘s duty is to give effect to the legislature‘s intent and to give effect to all of a statute‘s provisions.
III.
We first consider whether the Superior Court erred in construing the Fair Share Act to require the jury to apportion liability on a percentage basis in strict liability asbestos cases.
A.
The Roveranos argue that the language of the Act, which plainly applies to strict liability actions, states that in multi-defendant cases “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 . . . .” See Roveranos’ Brief at 19 (citing
In response to the Superior Court‘s treatment of
As a practical consideration, the Roveranos posit that a per capita apportionment scheme is particularly warranted in strict liability actions involving exposure to asbestos because an individual defendant‘s asbestos product is rarely used in isolation, and it is not possible to apportion fault in asbestos cases because the injury created is indivisible. See id. at 23-30. Accordingly, there is no reasonable basis for a jury to assess each defendant‘s percentage of fault. Id. at 24. They contend that their position has been well-recognized by case law involving strict liability and asbestos actions. See id. at 23-26 (relying on, inter alia, Martin v. Owens-Corning Fiberglass, 528 A.2d 947, 949 (Pa. 1985) (the trial court must determine whether, as a matter of law, the harm is capable of apportionment before submitting the issue to the jury); Gross v. Johns-Manville Corp., 600 A.2d 558, 566 (Pa. Super. 1991) (evidence of warnings on asbestos product may be a defense to liability but “does not provide a basis upon which to apportion liability[]“); Ball v. Johns-Manville, 625 A.2d 650, 658-59 (Pa. Super. 1991) (apportionment based on fault is not permissible among strict liability defendants and, independently, also barred where there is no evidence on which the jury could base apportionment)). The Roveranos argue that the Superior Court decision effectively overruled the line of cases holding that apportionment in strict liability asbestos cases is inappropriate. Roveranos’ Brief at 27. Moreover, they contend the medical expert testimony adduced at trial would not provide a reasonable basis on which to apportion liability. Id. at 27-30. Finally, they contend that the subsequent legislative history of the Act does not support the interpretation advanced by the Superior Court. See id. at 30-32. Specifically, the Roveranos point to two memoranda issued by Representative Mike Turzai and Representative Warren Kampf, respectively, to members of the House of Representatives that suggested proposed bills which would apply the principles of the Act to asbestos litigation. Id. at 31. They note that in 2017, Representative Kampf introduced House Bill 238, which addressed, in part, how to impose and apportion liability against asbestos-related bankruptcy
their view, enacting HB-238 would be superfluous if the Fair Share Act already applies to asbestos strict liability cases. Id. at 31-32.11
B.
Appellees argue that the plain language of the Act requires that liability be apportioned on a percentage basis in strict liability cases. Brand‘s Brief at 17; Crane‘s Brief at 20. They highlight that the General Assembly made clear that the Act‘s requirement on damages apportionment applies to actions “including actions for strict liability.” Brand‘s Brief at 17 (citing
While maintaining the plain language of the Act supports their interpretation, Appellees engage in an alternative statutory construction analysis. See
Appellees dispute that the subsequent memoranda and unenacted proposed legislation cited by the Roveranos supports a pro rata apportionment in asbestos strict liability cases. In their view, the fact that the General Assembly did not enact the legislation is consistent with the notion that the Fair Share Act already provided for that manner of assessing liability. Moreover, they note that subsequent legislative history is not a reliable or appropriate source from which to glean legislative intent. See Brand‘s Brief at 27-28; Crane‘s Brief at 38-39.
Appellees respond to the Roveranos’ position that case law on strict liability supports per capita apportionment by asserting that because the Act is part of a comprehensive scheme to allocate liability,
Brief in favor of Appellees at 5-7. Appellees contend that the Act‘s allocation requirement is mandatory, and any perceived conflict between the Act and the prior case law should be resolved with the language of the Act taking precedence. Id. at 39; see Crane‘s Brief at 32. Finally, Appellees argue that there was sufficient evidence in this case for the jury to make a determination on apportioning liability.13 Brand‘s Brief at 40-42; Crane‘s Brief at 32-34.
C.
We conclude that the Superior Court‘s interpretation of the Act as directing the jury to engage in percentage apportionment of liability in strict liability asbestos cases in the same manner it would in a negligence action is flawed.14 Under the Statutory Construction Act, “an implication alone cannot be interpreted as abrogating existing law. The legislature must affirmatively repeal existing law or specifically preempt accepted common law for prior law to be disregarded.” In re Rodriguez, 900 A.2d 341, 344 (Pa. 2003) (quoting Metro. Prop. & Liab. Ins. Co. v. Ins. Comm‘r of Commonwealth of Pa., 580 A.2d 300, 302 (Pa. 1990)). Our common law holds that “[i]n strict liability actions, liability
is indeed apportioned equally among joint tortfeasors.” Baker, 755 A.2d at 669. This Court has rejected percentage apportionment in strict liability cases because “this tort theory does not contain an element of fault. This is in contrast to negligence actions where liability is allocated among joint tortfeasors according to percentages of comparative fault.” Id. Because strict liability is “liability without fault,” and each defendant is “wholly liable” for the harm, we have concluded “it is improper to introduce concepts of fault in the damage-apportionment
The plain language of the Fair Share Act does not “specifically preempt” our common law holding that damages in strict liability actions must be apportioned equally among defendants.15 See Rodriguez, 900 A.2d at 344. Section 7102(a.1)(1) provides:
(a.1) Recovery against joint defendant; contribution.--
(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 (a.2).
The Superior Court determined that because the statute is silent as to how to calculate the ratio for all tort cases, including strict liability, the statute is ambiguous on the issue of calculating allocations. Further, the Superior Court concluded that because Section 7102(a.1)(1) specifically incorporated strict liability joint tortfeasors in the same liability allocation section as negligent joint tortfeasors, the legislature intended for liability to be allocated in the same manner for both strict liability and negligence cases.
In Kimco Development Corp. v. Michael D‘s Carpet Outlets, 637 A.2d 603 (Pa. 1993), this Court declined to incorporate comparative negligence concepts into strict liability cases, noting:
Throughout the development of § 402A liability, we have been adamant that negligence concepts have no place in a strict liability action. See, e.g., . . . McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975) (initially to apply a theory of comparative negligence to an area of the law in which liability is not premised on negligence seems particularly inappropriate); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975) (the crucial difference between strict liability and negligence is that the existence of due
care, whether on the part of the seller or the consumer, is irrelevant).
Section 7102(a) sets forth the general rule applicable to “actions brought to recover damages for negligence” for apportionment of liability based on a jury‘s assessment of the relative “causal negligence” of a plaintiff and defendant.
[W]e explain: (1) that the strict liability cause of action sounds in tort; (2) that the notion of “defective condition unreasonably dangerous” is the normative principle of the strict liability cause of action, which reflects the standard of review or application of the tort, and its history; and (3) the appropriate interplay of principle and evidence.
It is important to remember that the action sounds in tort, i.e. the cause involves breach of duties “imposed by law as a matter of social policy,” rather than contract, i.e., the cause involves breach of duties “imposed by mutual consensus agreements between particular individuals.” Ash, 932 A.2d at 884; see
Restatement (2d) of Torts § 402A(2) . Nevertheless, the tortious conduct at issue is not the same as that found in traditional claims of negligence and commonly associated with the more colloquial notion of “fault.” In this sense, introducing a colloquial notion of “fault” into the conversation relating to strict product liability in tort detracts from the precision required to keep this legal proposition within rational bounds.
Tincher, 104 A.3d at 400. Absent a definitive directive by the legislature, we do not interpret the Act as altering the pre-existing per capita method of apportioning liability among defendants in strict liability cases.
We recently applied the “impossible of execution” presumption in Hudson v. Pennsylvania Board of Probation & Parole, 204 A.3d 392 (Pa. 2019). In Hudson, this Court rejected the appellant‘s argument that parole eligibility of no greater than one-half of the mandatory life sentence must attach to a sentence for second-degree murder, even though
Similarly, the Superior Court‘s interpretation of the Act as requiring a factfinder to allocate liability between joint tortfeasors in all cases, including strict liability cases, is impossible of execution in asbestos cases. Lung cancer resulting from asbestos inhalation is inherently a single, indivisible injury that is incapable of being apportioned in a rational manner because the individual contributions to the plaintiff‘s total dose of asbestos are impossible to determine. See Martin, 528 A.2d at 949. Consequently, when two or more actors combine to cause an indivisible injury, and each is a substantial contributing factor, each actor is the legal cause of the entirety of the harm. See id. Because it is impossible to determine which actor caused the harm, it follows that it is impossible to apportion the amount of each defendant‘s liability on a percentage basis.
In this regard, we find Martin instructive. In Martin, this Court held the trial court erred in instructing the jury to apportion damages between defendant‘s asbestos products and plaintiff‘s cigarette smoking because there was no evidence upon which the jury could apportion causation. Id. at 948. Relying on
In this case, the medical causation experts likewise agreed there is no scientific basis to determine which asbestos-containing product caused Mr. Roverano‘s lung cancer. See N.T., 4/7/16, at 73 (Dr. Frank); N.T., 4/5/16, at 50 (Dr. Gelfand); N.T., 4/7/16, at 38-39 (Dr. Pope); N.T., 4/2/16, at 132 (Dr. Crapo). Instead, all the exposures to asbestos combined to cause Mr. Roverano‘s lung cancer, and each product that increased Mr. Roverano‘s cumulative asbestos exposure was a cause. See N.T., 4/7/16, at 74; N.T., 4/5/16, at 53-55; N.T., 4/7/16, at 38-39; N.T., 4/2/16, at 130. Thus, in asbestos cases where expert testimony is necessary to establish causation, and those experts agree there is no scientific or medical basis to apportion liability, it is impossible to instruct a jury to apportion liability for an indivisible injury on a percentage basis. See Martin, 528 A.2d at 950; see also
Our reading of the plain language of Section 7102(a.1)(1) is supported by the plain language of Section 7102(c.2), which provides:
(c.2) Savings provisions.--Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party‘s right to join another potentially responsible party.
Section 7102(c.2) plainly confirms that the legislature did not intend Section 7102(a.1)(1) to modify the strict liability cause of action by introducing an element of fault or responsibility into the allocation of liability. See Baker, 755 A.2d at 669. The Superior Court‘s construction of Section 7102(a.1)(1) as requiring the jury to apportion damages on a percentage basis in strict liability is contrary to the legislature‘s express, comprehensive directive that “[n]othing in this section shall be construed in any way to . . modify a cause of action[.]”
Accordingly, the plain language of the Fair Share Act indicates that liability is apportioned equally among strictly liable joint tortfeasors, and we reverse the Superior Court.
IV.
We next consider whether the Fair Share Act requires that the jury consider evidence of settlements with bankrupt entities when apportioning liability under Section 7102(a.2), which provides:
(a.2) Apportionment of responsibility among certain nonparties and effect.-- For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.
A.
The Roveranos highlight that statutes are not to be “presumed to make any innovation in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions.” Roveranos’ Brief at 32 (citing Birth Ctr. v. St. Paul Cos., 787 A.2d 376, 387 (Pa. 2001)). They continue that
The Roveranos look to subsequent proposed legislation to aid in interpreting the Act with respect to bankrupt entities. They note that the legislature had proposed House Bill No. 1150 and House Bill No. 238, respectively, neither of which were enacted. Each proposal was intended to specifically address apportioning liability to bankruptcy trusts. The Roveranos contend that there would have been no need to propose legislation regarding bankruptcy trusts if the Act already applied to them. Roveranos’ Brief at 33-34.
The Roveranos further argue that the Superior Court‘s decision conflicts with the Uniform Contribution Among Tortfeasors Act (UCATA)20 and this Court‘s decision in Baker. See Roveranos’ Brief at 34. In that case, the Bakers filed a strict liability action against a number of manufacturers and sellers of asbestos products. Mr. Baker was awarded $2,000,000.00 for his contraction of malignant mesothelioma, and Mrs. Baker was awarded $200,000.00 for her loss of consortium claim. Prior to the liability stage of proceedings, the Bakers settled with four defendants. Baker, 755 A.2d at 665. The joint tortfeasor agreements with three of the defendants were pro rata releases, while their agreement with the Manville Personal Injury Settlement Trust (Manville Trust) was a pro tanto release. Id. at 666; see id. at n. 1 (explaining when a plaintiff signs a pro rata release with a settling defendant, “the plaintiff‘s ultimate recovery against the nonsettling tortfeasors is the total award of damages reduced by the settling party‘s allocated share
of the liability[;]” however, if the plaintiff signs a pro tanto release “then the plaintiff‘s ultimate recovery against the nonsettling joint tortfeasors is the total award of damages reduced by the amount of consideration paid for the release.“). This Court considered to what extent the nonsettling defendant was entitled to have the damages set-off based on the out-of-court settlements and concluded that, applying
The Roveranos contend that because, in their case, the releases with the bankrupt entities were pro tanto settlements, it would not be appropriate for the jury to consider evidence of these settlements when it apportions liability. Roveranos’ Brief at 35-36. Any reduction of the amount awarded to them, they contend, should be reduced only by the amount they actually received from the bankruptcy trusts. Id.
In their amici brief, The Pennsylvania Association for Justice and the American Association for Justice agree that public policy disfavors allowing bankruptcy trusts to be included on a verdict sheet. See Amici Brief at 10-12. They further agree with the Roveranos’ position that because the Act does not explicitly identify bankrupt entities in its text, they remain excluded from verdict sheets. See id. at 7-9. Amici provide an additional argument, not advanced by the Roveranos, that the automatic stay and discharge provisions at
B.
Appellees rely principally on the plain language of the Act to support the position that the Act requires the jury to consider the liability of non-party tortfeasors, regardless of whether or not the entities are bankrupt. See Brand‘s Brief at 47; Crane‘s Brief at 40-42. They acknowledge the Roveranos’ position that Section 7102(a.2) does not include the word “bankruptcy;” however, they highlight that it applies to “any defendant or other person who has entered into a release with the plaintiff ....” Brand‘s Brief at 44-45; Crane‘s Brief at 41-43. Further, the Act includes a single exception to be excluded from the verdict sheet for employers based on workers’ compensation immunity.
Moreover, Appellees contend that the reasoning underlying the exclusion of bankrupt entities on the verdict sheet is no longer sound in light of the Fair Share Act. Specifically, under the Comparative Negligence Act that preceded the Fair Share Act, if bankrupt entities were permitted on the verdict sheet, they would be considered joint tortfeasors against whom other defendants could seek contribution. Brand‘s Brief at 46; Crane‘s Brief at 44. However, the automatic stay provision of the federal Bankruptcy Code would prohibit the parties from seeking contribution of the bankrupt entities. Brand‘s Brief at 46; Crane‘s Brief at 44. Under the Fair Share Act, conversely, joint and several liability is abolished in most cases, and Section 7102(a.2) expressly provides that the inclusion of nonparties on the verdict sheet is “[f]or purposes of apportioning liability only,” and “is not admissible or relied upon in any other action or proceeding for any purpose.” See Brand‘s Brief at 46-47; Crane‘s Brief at 44. Accordingly, they argue the bankrupt entities will not be subject to liability nor will their presence on the verdict sheet violate the Bankruptcy Code.21 Likewise, because the Act largely abolishes joint and several liability except in certain enumerated circumstances, the UCATA does not apply and is not inconsistent with application of the Fair Share Act.22 See Brand‘s Brief at 49-56; Crane‘s Brief at 48-49.
For their part, amici argue that the Fair Share Act must be read to include consideration of settlements by bankruptcy trusts to have “any semblance of embodying the ‘Fair Share’ concept.” Amici Curiae Brief in favor of Appellees at 16. Specifically, they highlight that receiving compensation from a bankruptcy trust is a non-adversarial process in which claimants are compensated more quickly than through traditional litigation, and often, from a number of trust entities. See id. at 12-15. Without allowing juries to consider these other sources of asbestos exposure, defendants are disproportionately held liable for the harm they caused. Id. at 17-19. Amici also advocate for this Court to “require asbestos plaintiffs to file and disclose all available trust claims before trial, and preferably before the end of discovery.” Id. 25. This is to prevent claimant/plaintiffs from “strategically delaying the filing of trust claims until after trial” in order to keep this information from the jury when it apportions liability. See id. at 19. The Roveranos dispute that such manipulation is widespread and contend that victims of asbestos exposure often go uncompensated and “always end up undercompensated with respect to payments made by bankruptcy trusts.” Reply Brief at 6 (emphasis in original).
C.
Upon review, we conclude that bankruptcy trusts that are joined as third-party defendants or that have entered into a release with the plaintiff may be included on the verdict sheet upon submission of “appropriate requests and proofs.”
For context, a number of asbestos manufacturers and distributors, beginning with The Johns-Manville Corporation, have exited the tort system by reorganizing under Chapter 11 of the Bankruptcy Code. See In re Garlock Sealing Techs., LLC, 504 B.R. 71, 83 (Bankr. W.D.N.C. 2014); Elihu Inselbuch et al., The Effrontery of the Asbestos Trust Transparency Legislation Efforts, MEALEY‘S LITIGATION REPORT: ASBESTOS, vol. 28, #2, Feb. 20, 2013, at 4. The purpose of Manville‘s bankruptcy filing was to confront the threat of asbestos-related litigation and the refusal of Manville‘s insurance carriers to pay out asbestos claims. See In re Johns-Manville Corp., 36 B.R. 743, 750 (Bankr. S.D.N.Y. 1984). The Manville bankruptcy case confronted how to deal with future claims of asbestos victims who had yet to manifest an asbestos-related disease. Id. at 745-46. Instead of discharging those future claims, “the Manville plan of reorganization pioneered the use of a trust dedicated to the
The United States Congress enacted
Because the bankruptcy trusts involved in this case are the result of Chapter 11 debtors obtaining a discharge in bankruptcy, Ottavio and Ball do not control this case. The Ottavio Court held that the automatic stay precludes an apportionment of liability. Ottavio, 617 A.2d at 293. Further, Ottavio noted “[n]othing precludes the solvent manufacturers in this case from obtaining contribution from the bankrupts when (and if) they emerge from reorganization proceedings.” Id. The Ball Court based its decision entirely on the reasoning of Ottavio. Ball, 625 A.2d at 660. In this case, the bankruptcy trusts are not protected by the automatic stay.
Against this background, Crane and Brand contend that Section 7102(a.2) of the Fair Share Act permits a court to direct the jury to apportion liability to asbestos bankruptcy trusts. The pertinent language of Section 7102(a.2) provides:
For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. . . . An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose.
Under Section 7102(a.2), the trial court should have included Manville on the verdict sheet for the limited purpose of determining liability because Crane joined Manville as an additional defendant for the sole purpose of allocating liability pursuant to the Manville Personal Injury Settlement Trust (Manville Trust) TDP. Crane‘s Joinder Compl., 1/7/16, at ¶ 9. The TDP of the Manville Trust, from which the Roveranos acknowledge receiving payment, provides that the trust consents to inclusion on a verdict sheet. See id. at Ex. D, January 2012 Revision to 2002 Trust Distribution Process, at p. 22, § I(1)(c). Specifically, it states “[t]hird-party claims may be asserted against the Trust for the sole purpose of listing the Trust on a verdict form or otherwise as necessary to ensure that any verdict reduction in respect of the Manville (or Trust) liability share is made pursuant to applicable law.” Id. The TDP further provides that the Manville Trust cannot be required to enter an appearance, submit to discovery, or be subject to execution on any judgment. Id. It also states that the Manville Trust “shall be treated in litigation between Beneficiaries of the Trust as a legally responsible tortfeasor under applicable law, without the introduction of further proof.” Id. at p.22, § I(1)(d). Accordingly, the trial court erred in refusing to include the Manville Trust on the verdict sheet for the limited purpose of determining liability because Manville was joined as a defendant. See
Additionally, Section 7102(a.2) permits a factfinder to apportion liability to those asbestos bankruptcy trusts that have entered into releases with the Roveranos, but were not named defendants.25 The Roveranos obtained payment from the asbestos bankruptcy trusts of Armstrong World Industries, B&W, Celotex, Fibreboard, Owens-Corning, and U.S. Gypsum. See Roveranos’ Br. in Opp‘n to Brand‘s Mot. for Post-Trial Relief at 35, Ex. K (listing bankruptcy settlements). Under Section 7102(a.2), the question of their liability “shall be transmitted to the trier of fact upon appropriate requests and proofs by any party.”
Brand, and Hajoca were sufficient to present the question of the bankrupt entities’ liability to the jury under Section 7102(a.2).26 Instead, the trial court granted the Roveranos’ motion in limine based on Ottavio and Ball and basic fairness considerations. See N.T., 4/5/16, at 19-20; Trial Ct. Op., 7/27/16, at 11. In doing so, the trial court erred in refusing to apply the Fair Share Act to the motions in limine to include the settled bankruptcy trusts on the verdict sheet.27 Accordingly, we remand to the trial court for a new trial on apportionment. The trial court may determine, on remand, whether or to what extent it may be appropriate for additional requests and proofs to be submitted, as well as determine the sufficiency of the submissions.
V.
For these reasons, the decision of the Superior Court is reversed in part and affirmed in part. We conclude liability must be apportioned on a per capita basis in strict liability asbestos cases. Further, we conclude the Fair Share Act permits a trial court to transmit to the factfinder, upon appropriate requests and proofs, the question of the liability of both a bankruptcy trust that was joined as an additional defendant and a nonparty bankruptcy trust that has entered into a release with the plaintiff. Accordingly, we remand to the trial court for further proceedings consistent with this opinion.
Justices Baer, Todd, Donohue, Dougherty and Wecht join the opinion, and Chief Justice Saylor joins Part IV of the opinion.
Justice Wecht files a
Chief Justice Saylor files a concurring and dissenting opinion.
Notes
Where recovery is allowed against 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 his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed[.]