Lead Opinion
Appellants, John Crane, Inc., and Brand Insulations, Inc., appeal from the July 27, 2016 Order denying Posh-Trial Motions and entering Judgment in favor of Appel-lees William and Jacqueline Roverano. We affirm in part, reverse in part, and remand for a new trial to. apportion damages among the tortfeasors.
We briefly sunimarize the relevant facts, as gleaned from the certified record, as follows.'
Appellee William Roverano was employed at PECO from 1971 until his.retirement in ,2001. As part of his employment, Mr. Roverano was exposed to a variety of asbestos products over a ten-year period, from 1971 until 198Í.
In November of 2013, Mr. Roverano was diagnosed with lung cancer in both lungs.' Despite extensive treatment, his prognosis is poor.'
On March 10, 2Ó14, Mr. Roverano filed a Complaint against thirty named defendants, averring that exposure to asbestos products attributable to those defendants caused his lung cancer.
Prior to trial, the trial court ruled that the Fair Share Act, 42 Pa.C.S. § 7102, did not apply to asbestos cases.
After deliberating, the jury found in favor of Mr. and Mrs. Roverano and against the Appellants as well as1 six of the eight other defendants. The jury awarded $5,189,265 to Mr. Roverano and $1,250,000 to Mrs. Roverano.
Appellants filed separate Motions for Post-Trial Relief. On July 27, 2016, the trial court denied'Appellants’ Motions and entered judgment in favor of the Rovera-nos. The trial court apportioned the judgment equally among the eight defendants whom the jury determined to'be tortfea-sors. In particular, the trial court entered separate judgments against Appellant Crane and Appellant Brand each in the. amount of $648,858 plus $29,604 for delay damages for the verdict in favor of Mr. Roverano and $156,250 for the verdict in favor of Mrs. Roverano.
Appellants timely appealed. The trial court did not order, and Appellants did not file, a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
Although Appellants have filed separate briefs, the issues raised are largely overlapping. We, therefore, paraphrase and renumber the collective issues Appellants raised as follows:
-1. The trial court erred in defining “factual cause” in its instructions to the jury and in response to a written question from the jury.
2. The trial court erred by denying Appellant Crane’s proposed Verdict Form that addressed whether Rovera-no’s injuries were caused by exposure to asbestos, or, as Appellant Crane maintains, smoking.
3. The trial court erred by failing to provide the jury a Verdict Form that allowed them to determine whether Appellant Crane’s packing was defective in the absence of a warning.
4. The trial court erred by allowing Roveranos’ experts to offer “each and every”.or “whatever” asbestos exposure causation testimony in a case, where Ro-verano did not have mesothelioma, asbestosis, or any other medical marker of asbestos exposure.
5. ■ The trial'court erred when it refused to mold the verdict to account for named-defendants Georgia Pacific Cement and Hajoca Corporation.
6. The trial court erred in failing to apply the Fair Share'Act and erred specifically as follows: ''
A. The trial court shoúld have required the jury to apportion liability among the alleged tortfeasors; and
B. The trial court should have in-eluded certain alleged tortfeasors on the verdict sheet, notwithstanding the fact that those alleged tortfeasors had filed for bankruptcy protection, or to mold the verdict to reflect settlementpayments received from the bankruptcy estates of alleged tortfeasors
Appellant Crane’s Brief at p. 5-6; Appellant Brand’s Brief at p. 3.
Standard of Review
Our standard of review on appeal is a clear abuse of discretion or an error of law that controls the case:
Our standard of review regarding a trial court’s denial of a motion for a new trial is limited. The power to grant a new trial lies inherently with the trial court and we will not reverse its decision absent a clear abuse of discretion or an error of law which controls, the outcome of the case.
Maya v. Johnson and Johnson,
1. Factual Cause Jury Instructions
Appellants argue that the. trial court erred in defining “factual cause” in its instructions to the jury and in response to a written question from the jury. In particular, Appellants argue that the “law requires a ‘but for’ causation standard for the definition .of factual [causation], which was an error of law that controlled the outcome of the case.” Crane’s Brief at 30.
This Court reviews a challenge to jury instructions under the following well-settled principles of Pennsylvania law.
[O]ur standard of review when considering the adequacy of jury instructions in a civil case, is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. It is only when the charge as a whole is inadequate or not clear or has a tendency to mislead or .confuse rather than clarify a material issue that error in a charge will be found to be a.sufficient basis for the award of a new trial.
Further, a trial [court]- has wide latitude in [its] choice of language when charging a jury, .provided always that the court fully and adequately conveys the applicable law.
Phillips v. Lock,
In asbestos products liability cases, “Pennsylvania law requires that a plaintiff prove two elements: “that the product was defective, and that the defect was the substantial factor in causing the injury.” Rost v. Ford Motor Company,
When a jury focuses on the defendant’s product, the jury should consider the plaintiffs, exposure to each defendant’s product “was on the one hand, a substantial, factor or a substantial cause or, on the other hand, whether the defendant’s conduct was an insignificant cause or a negligible cause.” Id. at 1049 (quoting Ford v. Jeffries,
Finally, the Rost Court noted with approval the analysis in Tragarz v. Keene Corp.,
Suppose a plaintiff shows that the amount of exposure that it received from defendant’s A’s asbestos product was alone sufficient to cause .mesothelioma. If such a plaintiff was not exposed to any other products, the plaintiff would have sufficient evidence to support a finding that but for exposure -to the defendant A’s product, the plaintiff would not have gotten ill. On the other hand, under a [comparative approach], if the plaintiff was exposed to numerous other asbestos products, the plaintiff might not be able to prove cause in fact in a suit against defendant A because the same exposure to defendant A’s product might not be substantial in comparison to the exposure to the other products. Such a result does not promote the purposes'" of the substantial factor test, which is aimed at alleviating the inequities that result when applying the but for test in a multi-defendant case, not at creating such inequities.
Id., quoting Tragarz,
Based on our review of the foregoing precedential authority, we conclude that the trial court in the instant-' case properly rejected Appellant’s request for a “but for causation” juxy charge. The Pennsylvania Supreme Court has clearly rejected such a standard for causation and requires, when addressing a situation in which a . plaintiff is exposed to more than one asbestos containing products, that the jury determine whether .the plaintiffs exposure to each defendant’s product was “frequent, regular and proximate” to determine whether such exposure was a substantial factor in causing the plaintiffs injury.
Appellants further argue that the “trial court’s instruction did not provide a sufficient and correct legal basis to guide the jury.” Crane’s Brief at 33.
First, while explaining the Verdict Sheet; the court stated:
The first question I said deals with exposure to the particular- product of the defendant. Now, these are the elements the plaintiff has to prove that exposure. Number one, was the plaintiff exposed to the product of the defendant, did it contain asbestos, was the plaintiff exposed to the asbestos fibers of that particular defendant on a regular frequent and proximate basis.
Now, the second question deals with whether these products manufactured, distributed, or supplied by the individual defendants was a factual cause in bringing about the plaintiffs lung cancer. In other words, did this exposure, if you find it, was it a factual-cause in bringing about his lung cancer, did the plaintiff suffer from an asbestos-related disease,the lung cancer, that is, was it caused by the exposure.
N.T., 4/18/16, at 336-37; RR 687a.
After the attorneys made their closing arguments, the court explained to the jury the need for Mr. Roverano to establish that he was exposed to the asbestos fibers that Appellants had manufactured, distributed or supplied on a “regular, frequent and proximate basis,” N,T. at 122; RR. 709a. The court then instructed the jurors on the definition of factual cause as:
And here the question is, were the asbestos products manufactured, distributed or supplied by that particular defendant, John Crane, Brand Insulation, you discuss these separately, was it a factual cause in bringing about lung cancer.
In short, did the plaintiff suffer from an asbestos-related disease, that is, was the lung cancer an asbestos-related disease. Now, what do I mean by factual cause? Well, you imagine with lawyers and with judges there’s been a lot of discussion as to what do we mean by factual cause. I used to use the word substantial factor. I think they mean the same, but today we’re using factual cause;
Factual cause is a legal cause. In order for the plaintiff to recover in this case, the exposure to the defendant’s asbestos products must have been a factual cause in bringing about his lung cancer. This is what the law recognizes as a legal cause:
A factual cause is an actual real factor, although the result may be unusual - or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with Mr. Roverano’s lung cancer.
N.T. at 118-19; RR at 708a.
By instructing the jury' that Mr. Rovera-nb must establish that his exposure was regular, frequent, and proximate and such exposure was a substantial cause of plaintiffs lung cancer, the trial court “fully and adequately convey[ed] the applicable law.” Philips,
Appellants also argue that the trial court erred in responding to the jury’s question regarding the definition of “factual” cause. Crane’s Brief at 34; Brand’s Brief at 29. In response to the question, the trial court charged the jury corréctly by instructing the jury that factual cause is “legal cause, sometime referred to as substantial factor:”
Factual cause is a legal cause, sometimes referred to as substantial factor, but it’s the same — in my opinion they’re the same definition, so I’m going to give you the definition of factual cause as a legal cause.
In order for the plaintiff to recover in this case, the exposure to defendant’s products based on the elements that I gave you must have been a substantial— must have been a factual cause in bringing about Mr. Roverano, the plaintiffs lung cancer. This what the law recognizes as legal cause. .
A factual cause is a real actual-a factual cause is an actual real factor, although the result may be unusual or expected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the lung cancer.
Keep in mind you could have more than one cause which is a factual cause, but that’s for you to decide. If .you’ve got a couple of causes and you say one is not a factual cause and one is, the it can only be the one that you find the factual cause, but you can find' that both were factual cause. That’s up to you. You’re the factfinders.
N.T. at 136-37; RR 712a.
Appellants contend that the court’s response to the jury’s inquiry was improper
2. Causation Question on Verdict Sheet
Appellant Crane argues that a principal theory of Appellants’ defense “was that Mr. Roverano’s lung cancer was riot caused by his exposure to asbestos at all; rather [the cancer,] along with his emphysema and COPD, was caused by his extensive smoking history.” Crane’s Brief at 29. Appellant contends that by denying a specific question on the Verdict Sheet reflecting this theory, the trial court precluded Appellant Crane from presenting this theory to the jury. Id.
This is a challenge to the trial court’s discretion in fashioning questions on the Verdict Sheet and we review such challenges for an abuse of discretion. “An abuse of discretion is more than just an error of judgment and, on appeal, a trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Commonwealth v. Lane,
Appellant Crane argues that the trial court should , have specifically included a question on the Verdict Sheet about whether smoking caused Mr. Roverano’s lung cancer.
The questions on the Verdict Sheet were as follows:
1. . “Was the Plaintiff, Mr. ■. Roverano, exposed to asbestos products manufactured, distributed or supplied by Defendant, John Crane, Inc.
2. Were the asbestos products manufactured, distributed, or supplied by John Crane, Inc, a factual cause in bring about the Plaintiffs lung cancer.”
RR 1058a-1059a (emphasis added.).
In explaining the second question, the trial court instructed’ the jury, inter alia: “In other words, did this exposure if you find it, did the plaintiff suffer fi’om an asbestos-related disease, the lung cancer, that is was it caused by the exposure.” N.T., 4/13/16, at 37; RR 687a.
The purpose of the Verdict Sheet is to provide a general guidepost to the jury of the general issues the jury must decide. It is not to reflect either party’s specific theories.
In this case, the second question about factual cause on the Verdict Sheet required the jury to consider whether it was smoking that caused Mr. Roverano’s lung cancer. If the jury had found that it was smoking that had caused Mr. Roverano’s lung cancer, the jury would have answered “no” to the second question.
Therefore, we conclude .that the trial court did not abuse its discretion by denying Appellant’s request to include a question on the Verdict Sheet that reflected its theory of the case.
3. “Unreasonably Dangerous” Question on Verdict Sheet
Appellant Crane also argues that the trial court erred by failing to provide the jury a question on the Verdict Sheet asking the jury whether Crane’s asbestos products were “unreasonably dangerous” and thus, defective.
We agree with the trial court’s .conclusions that .the trial was primarily focused on exposure and causation. Appellant did not dispute that its product contained asbestos. As discussed above, the questions on the Verdict Sheet are to provide generalized guideposts to the jurors. To add a question about defect when the parties did not present evidence on the issue or argue about it in their opening or closing statements would have confused the jury.’
Moreover, the trial court properly relied upon the analysis in Moore v. Ericsson, Inc., 7 A.8d 820 (Pa. Super. 2010), in which this Court noted with approval the trial court’s determination as a matter of laui that wire and cable containing asbestos was defective. See id. at 826.
As the trial judge stated, the issue was not whether a product was defective because it contained asbestos; “instead, the trial issues, and therefore the factual issues remaining for the jury were limited to whether the Defendant’s particular product contained asbestos, whéther the Plaintiff was exposed to it, and whether such exposure caused Plaintiffs meso-thelioma.” We find no error or abuse of discretion.
Id. (citing Trial Court Opinion).
As the trial court in the instant case noted, “neither defendant disputed that .their products contained asbestos without proper warnings.” Trial Ct. Op. at 6. Therefore, the trial court properly rejected Appellant Crane’s request that the Verdict Sheet contain a question about whether the asbestos was unreasonably dangerous and limited the questions on the Verdict Sheet to whether Appellee was exposed to the defendant’s asbestos and whether that exposure caused his lung cancer,
4. “Each and Every” Exposure Testimony
Appellant Crané argues that the trial court erred by allowing Roveranos’ experts to offer evidence that “each and every” or “whatever” ■ asbestos exposure caused' Mr. Roverano’s injury where Mr. Roverano did not have mesothelioma, asbestosis, or any other marker’ of asbestos exposure.
We disagree with Appellant Crane’s characterization of the expert, testimony of the Roveranos. A review of the entire testimony of the Roverano experts demonstrates that Roveranos’ experts did not testify that it was a single exposure to the Appellants’ products that caused Mr. Ro-verano’s lung cancer; rather, that it was multiple exposures that were a substantial factor in causing Roverano’s lung cancer.
For instance, Dr. Frank testified at length that both smoking and regular, proximate, and frequent exposure to asbestos in Appellant Crane’s products caused Mr. Roverano’s lung cancer. Dr. Frank first testified about general causation:
Cigarette smoking causes lung cancer. Asbestos exposure causes lung cancer. When you put the two together, is there some interaction between the two that increases the possibility of getting lung cancer, and the answer is yes. And there are numbers on this and it varies dependingon which' study you look at which time... So there is what we call a multiplicative or synergistic response. And again other studies vary by-what that number. Some are higher, some are lower, but it more than simply an additive effect when you put the two together.
N.T., 4/7/16, at 36-38; RR. 533a-34a.
Dr. Frank later provided testimony regarding specific causation by testifying that based upon Mr.Roverano’s testimony of his regular, proximate, and .frequent exposure to Appellant Crane’s asbestos products, that, to a degree of medical certainty,
whatever exposure Mr. Roverano had to John Crane packing products as described in the hypothetical would have been a substantial contributing cause or would have been a factual cause of his lung cancer and would have added to his total exposures, were part of his cumulative exposure and therefore are part of what caused his lung cancer.”
N.T., at 63; RR R540a.
Dr. Frank did not base his conclusions on the premise that Mr. Roverano had a single exposure to asbestos. In fact, Appellant Crane failed to point to testimony of any expert who based his opinion on the premise of a single exposure.
Appellant Crane argues that the trial court should have precluded the Rovera-no’s experts’ opinions because they failed to provide “any serious assessment of the causal attribution by assessing' the frequency, regularity and proximity of Mr. Roverano’s exposure to JCI’s products.” Appellant Crane’s Brief, at 40, citing Rost, supra. By characterizing the experts’ testimony as lacking “any serious assessment,” Crane’s averment challenges the weight, not the admissibility, of the evidence.
It is within the province of the jury to determine the weight to give the evidence and this Court will not disturb the fact-finder’s weight determination. See Commonwealth v. Champney,
Appellant also avers that “the Plaintiff’s experts’ testimony should additionally have been barred because this is not a mesothe-lioma case.” Crane’s Brief at 43. Again, Crane’s argument pertains to the weight, not the admissibility, of the evidence.
Appellants presented evidence that asbestos exposure can only cause mesotheli-oma,
5. Molding the Verdict to Include Non-Liable Defendants
Georgia Pacific Cement and Hajo-ca Corporation were both included on the Verdict Sheet, and the jury was specifically instructed to determine whether either named defendant “manufactured, distributed, or supplied” products which “were factual causes in bringing about Plaintiffs lung cancer.” Jury Verdict — Questions to be Answered by the Jury, filed 4/15/16, at 3. After hearing the evidence presented at trial, the jury found that Georgia Pacific Cement and Hajoca Corporation were not liable for the harm to Appellees. Id.
In light of the fact that the jury did not find that Georgia Pacific Cement and Ha-joca Corporation to be tortfeasors,
6. Fair Share Act
Appellants contend that the trial court erred as a matter of law by refusing to apply the Fair Share Act, 42 Pa.C.S. § 7102(a.l)-(a,2), to this case because the litigation involves exposure to asbestos. They argue that the Roveranos’ claim falls within the ambit of the Act and that nothing in the plain language of the Act supports the trial court’s decision to exempt asbestos litigation from the Act’s requirements. We agree.
Statutory interpretation is a question of law. Therefore, our standard of review is de novo, and our scope of review is plenary. Commonwealth v. Hall,
Generally, a statute’s plain language provides the best indication of legislative intent. In re Trust of Taylor, — Pa. -,
The Pair Share Act was enacted in 2011 as- an amendment to the section of the Judicial Code, 42 Pa. C.S. § 7102, that had provided for comparative negligence. See Act No. 2011-17, P;L. 778 (June 28, 2011). It replaced subsection (b) of that statute with two new subsections:
(a.l) Recovery against joint defendant; contribution.—
(1) Where recovery is allowed against more than one person, including actions for strict liability, arid 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).
(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.
(3) 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:
(i) Intentional misrepresentation.
(ii) An intentional tort.
(iii) Where the deféndant has been held liable for not less than 60% of the total liability apportioned to all parties.
(iv) 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.
(v) 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.
(4)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 nonpairties 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 asset 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.
42 Pa. C.S. § 7102(a.1)-(a.2). The Act applies to claims that accrued after June 28, 2011,* and the parties agree that the Rover-anas’ claims did not accrue before that time.
One of the main purposes of the Fair Share Act was to make joint.and several liability inapplicable to most tort cases. The statute accomplished that objective in subsection (a.1)(2), which states that, apart from a limited class of excepted cases, “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.” The Act’s lengthy other provisions make clear, however, that the statute is not limited only to restricting joint and several liability. Rather, insofar as. is relevant here, the Act also made several adjustments to the .rules for allocating liability among joint tortfeasors:
Before enactment of the Fair Share Act, the Comparative Negligence Act provided for proportionate recovery against negligent joint tortfeasors according to a percentage determination that was made by the fact-finder:
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....
42 Pa. C.S. § 7102(b) (deleted 2011); see Embrey v. Borough of West Mifflin,
One of the new Fair Share Act provisions enacted to replace Section 7102(b) was Section 7102(a.1)(1),’ which employed language similar to that in Section. 7102(b), but applied it to both negligent and strictly liable joint tortfeasors:
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).
42 Pa. C.S. § 7102(a.1)(1). A principal question in this case is whether, and to what extent, this provision changed the way to allocaté liability.among strictly liable joint tortfeasors.
Prior, to trial, several defendants, including- Brand and Crane, filed a motion in limine seeking a ruling that their liability,
[W]hat you’re saying is that you want an apportionment — rather than per capita, you want an apportionment instruction to'the jury and you want the jury to actually apportion the share of liability if they reach that issue.
Tr., 4/5/16, at 9. The court then explained why it would deny the motion:
Here is my difficultly] with this and why I’ve denied it in the past and I will here and you all have an exception, .is that all of the testimony I’ve ever heard in asbestos, no one quantifies it. They say that you can’t quantify it. If you can’t quantify it, how can the Fair Share Act apply?
Id. at 9-10. After a discussion during which defense counsel proposed possible ways of proving an allocation, the trial court reiterated that the motion in limine was denied. Id. at 10-16. In its post-trial opinion, the trial court stated that it “properly denied [Appellants’] motion to apply the Fair Share Act to this case” because the jury- was not presented with evidence that would permit an apportionment to be made by it. Trial Ct. Op., 7/27/15, at 9-10.
In holding that the Fair Share Act did not “apply” to this case, the trial court erred. This was an action to hold Appellants strictly liable in tort for injuries allegedly caused by asbestos-containing products that they made or distributed, and the Fair Share Act explicitly applies to tort cases in which “recovery is allowed against more than one person, including actions for strict liability.” 42 Pa. C.S. § 7102(a.l)(l) (emphasis added). Nothing in the statute makes an exception for strict liability cases involving asbestos. Rather, Section 7102(a.l)(3) excepts only four specific kinds of tort actions — intentional misrepresentation, other intentional torts, certain environmental cases, and dram shop actions — and cases involving asbestos are not among them.
The Roveranos contend that Section 7102(a.l)(l)’s reference to strict liability actions was intended only to make clear that the Act’s abrogation of joint and several liability applies to such cases. They contend that the Act is silent on how liability among strictly liable joint tortfeasors is to be apportioned, and that this silence means that apportionment may continue to be done in the same way as it was done before the statute’s enactment — on a per capita basis. In support of this argument, they point out that Section 7102(a.l)(l) says only that each joint tortfeasor’s liability shall equal “that proportion of the total dollar amount awarded as damages” that is calculated by determining “the ratio of the amount of that defendant’s liability” to the total liability of all defendants. The Act does not specify how that ratio is to be determined, and therefore, they contend, the rule of per capita apportionment applicable before the Fair Share Act’s enactment remains unchanged. We disagree. Rather, by explicitly making strictly liable joint tortfeasors subject to the same liability allocation section as that applicable to negligent joint tortfeasors, the Legislature made clear that it intended for liability to be allocated in the same way for each.
The fact that the Fair Share Act does not explicitly say how to allocate liability among strictly liable joint tortfeasors just means that the statute is ambiguous on that issue, not that the statute does not address it. See In re Trust of Taylor,
The Legislature’s placement of the “including actions for strict liability” clause is revealing. If, as Appellees suggest, the Legislature intended only to make clear that the abrogation of joint and several liability applied to strict liability actions, .it would have added that clause to Section 7102(a.1)(2), which abrogates joint and several liability. Instead, the Legislature added that clause to Section 7102(a.1)(1), which deals with allocation of liability among joint tortfeasors. By doing so, the Legislature clearly intended to make a change in the allocation rules that applied before the Fair Share Act’s enactment, which called for a fact-based allocation in negligence cases and a per capita allocation in strict liability cases. If the Legislature did not intend to change those rules, there would be no reason to add the “including actions for strict liability clause” to Section 7102(a.1)(1).
A comparison of Section 7102(a.l)(!) to the language of Section 7102(b) that it replaced shows that the Legislature accomplished .its objective by changing the allocation components from—
the amount of [the tortfeasor’s] causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed
to—
the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons. to whom liability is apportioned.
The inclusion of strict liability cases obviously accounts for the Legislature’s replacement of “causal negligence” with “liability.” Because this Was-the only'change relevant to this issue that the Legislature made to its allocation formula,
The Act was a reenactment of substantially identical legislation enacted in 2002 that was later declared invalid because it was part of a bill addressing multiple subjects in violation of Article 3, Section '3 of the Pennsylvania Constitution. See Fair Share Act of 2002, Act No. 2002-57, P.L. 394 (June 19, 2002), held invalid in DeWeese v. Weaver,
Mr. GANNON,... Mr. Speaker, where you have a Pennsylvania manufacturer selling, a product in Pennsylvania .-through a seller, a seller sells the product, it has got a manufacturing defect, how would that liability be apportioned under this law — proposed law; excuse me.
Mr. TURZAI. Yes. If both of those defendants are present, as you have suggested, and 'you have strict liability claims, ... you would not take into account the plaintiffs actions or the plaintiffs behavior in terms of reducing the ultimate award as you do in negligent situations. However, ... you would apportion the damages between strict liability defendant number one and strict liability defendant number two. Let us assume they are 70-30 and you would go after strict liability one for the 70 and you would go after strict liability two for the 30 to the degree that the jury or the judge found them causally responsible.
2002 Pa. Leg. J. (House). 1199 (June 4, 2002).
At no time during the, debates, on the 2002 legislation or the 2011 legislation was there ever any-suggestion that Representative Turzai’s view of liability allocation under the statute was incorrect or that
In fact, the general understanding that strictly liable joint tortfeasors would have liability allocated in the same way as other tortfeasors led to the enactment of one of the exceptions in Section 7102(a.l)(3) of the Act. During the 2002 debates, there was concern about how the bill would affect recoveries in toxic tort actions, in which strict liability claims often are brought against multiple defendants. See 2002 Pa. Leg. J. (House) at 1204-05,12Í3-14. As a result of those debates, the bill was amended to include Section 7012(a.l)(3)(iv), which preserves joint and several liability for certain strict liability environmental claims. See 2002 Pa. Leg. J. (Sen.) 1908-09 (June 12, 2Ó02); 2002 Pa. Leg. J. (House) 1349-5Q (June 17, 2002). The amendment shows that the Legislature believed allocation on a non-per capita basis in strict liability cases would be the rule, and that it had to enact an exception if it wanted a different rule. ■
Finally, the' Legislature has instructed that we are to interpret a statute “to give-effect to all its provisions.” 1 Pa. C.S. § 1921(a); see Commonwealth v. Anderson,
We, therefore, conclude that liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis, and that the trial court erred in holding that the jury could not apportion liability pursuant to the Fair Share Act. Of 'course, apportionment by the jury will require submission of appropriate evidence from which the jurors may make an allocation. Questions regarding the nature of that evidence should be resolved by the trial court in the first instance on remand.
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. Section 7102(a.2) of the 'Fair Share Act states: “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
Section 7102(a.2) contains no exception for settling persons who are bankrupt. Rather, the section refers to “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.” 42 Pa. C.S. § 7102(a.2) (emphasis added). The Roveranos claim, however, that our decisions in Ottavio v. Fibreboard Corp.,
In Ottavio, the defendant, one of several manufacturers of products containing asbestos, objected to an apportionment of liability among such manufacturers on the ground that bankrupt manufacturers were not included in the calculation. Ottavio,
The Fair Share Act does not ■permit a similar result here. Not only does it do away with joint and several liability in most cases, but it contains the following mandate in Section 7102(a.2): “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.” The Act thus prohibits use of an allocation against a bankrupt company as a basis for seeking contribution or any other recovery against that company; indeed, the Act makes the allocation finding inadmissible in any other case. The finding, therefore,
This is the same conclusion as that reached by our colleague Judge Strassbur-ger when he confronted this issue as a trial judge under the 2002 statute. Finding cases like Ball and Ottavio “inapposite,” he observed:
Under the Act, it is a new ball game[.] The defendant in Ball was ’ seeking a judgment against' bankrupt entities. Clearly that would have violated the automatic stay. The new Act provides:
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.
Thus, no judgment violative of the automatic stay can eventuate.
Slayton v. Gold Pumps, Inc., No. GD 03-010873, 2004 Pa. Dist. & Cnty. Dec. LEXIS 335, *5 (C.P. Alleg., Oct. 25, 2004). Courts in other jurisdictions have reached similar conclusions when confronted with legislation similar to the Fair Share Act. See, e.g., Bondex v. Ott,
For these reasons, we hold that the trial court failed to apply the Fair Share Act in the manner intended by the Legislature and that we therefore need to remand this case for a new trial on the question of apportionment of liability.-
Judgment vacated, Order denying Post Trial Motions affirmed in all respects other than that portion dealing with the Fair Share Act; such portion of the Order is reversed. Case remanded for a new trial to apportion the jury verdicts among the Appellants, the non-bankrupt settling defendants (excluding Georgia Pacific Cement and Hajoca because the jury determined that they were not tortfeasors) and bankrupt Settling defendants. Jurisdiction relinquished.
President Judge Emeritus Ford-Elliott joins this Opinion Per Curiam.
Judge Solano flies a Concurring and Dissenting Opinion.
Notes
. More than a dozen of those named defendants had filed for bankruptcy. Of the remaining named defendants, all but Appellants Crane and Brand settled with the Roveranos prior to the jury’s verdict.
. Appellant Crane also argues in one paragraph that we should reverse the trial court because its errors are cumulative. Since Appellant does not develop this argument or cite any law or references to the record to support this argument, we find this argument wáived. See J.J. DeLuca Co., Inc. v. Toll Naval Associates,
. Dr. Frank also opined that "the Brand Insulation materials to which Mr. Roverano was exposed to were a factual cause and contributed to his developing his lung cancer. The basis of that is the same, that it’s part of his cumulative exposure, it added to his risk, and when he got the disease, you have to say it wás one of the factors that contributed to the totality of his dose which ended up giving his lung cancer." N.T., 4/7/16, at 67; RR. 541a.
. Mesothelioma is a cancer of the lining of the lungs. Gregg v. V-J Auto Parts Co.,
. In light of our holding in the next section that finds that it is a jury who must apportion liability among tortfeasors, we note that since the jury did not find Georgia Pacific Cement and Hajoca Corporation to be tortfeasors, they should not be included in a jury determination apportioning damages among tortfea-sors. See note 11, infra.
. Application of the Fair Share Act to strict liability cases involving asbestos exposure is a question of first impression in this Court. Appellants argue that dicta in Rost,
. Consistent with some of the case law, Appel-lees call this a "pro rata” allocation. Appellants use “per capita,” and that-term provides a clearer description of the result. The different- terminology does not imply any substantive difference in the way liability was determined.
. The Legislature also added the phrase, “and other persons to whom liability is apportioned,” which we discuss below.
. This case does not require us to opine on the factors that should be considered in allocating liability ■ among strictly liable tortfea-sors under Section 7102(a.l)(l). Prior law prohibited a fault-based allocation because of a desire in product liability actions at that time to "fortif[y] the theoretical dam between the notions of negligence and strict 'no fault’ liability,” Walton,
. Representative Turzai later clarified that if one of the two defendants was 70% liable, the case would fall within the exception in Section 7102(a.l)(3)(iii) that permits that defen- ' dant to be held jointly and severally liable. 2002 Pa. Leg. J, (House) at 1199. That clarification does not change the relevance of his answer for purposes of the issue in this case.
. Appellants concede that this requirement is subject to the qualification that they “submit evidence to establish that the non-parties were joint tortfeasors.” See Amato v. Bell & Gossett,
. The case apparently included a negligence claim.
.Section 362 of the Bankruptcy Code provides that the filing of. a bankruptcy petition "operates as a stay, applicable to all entities, of ... [an] action or proceeding against the debtor ... to recover a claim against the debtor that arose before the commencement of the case under this title” and "any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1), (6);
. In this respect, we note that "there is a presumption against preemption.” Dooner v. DiDonato,
Concurrence Opinion
CONCURRING AND DISSENTING OPINION BY
I join in full the portion of the Majority Per Curiam Opinion under the heading “6. Fair Share Act.” Because I believe the jury charge failed clearly to explain.what proof of causation was needed to establish liability, I would remand for a new trial on liability, and not just on apportionment of damages.
A trial court has wide latitude in framing its charge to a jury, and we will order a new trial “only when the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than
Here, the relevant portion of the .trial court’s instructions to the .jury came in four parts. First, while explaining the Verdict Sheet, prior to closing arguments, the court stated:
The first question I said deals with exposure to the particular’ product of the defendant. Now, these are the elements the plaintiff has to prove that exposure. Number one, was the plaintiff exposed to the product of the defendant, did it contain asbestos, was the plaintiff exposed to the asbestos fibers of. that particular defendant on a regular, frequent, and proximate basis. And they’re the elements that must be proven by this fair preponderance or fair weight of the evidence that I’ll get to later in order for you to answer yes.
Now, the second question deals with whether these products manufactured, distributed, or supplied by the individual defendants was a factual cause in bringing about the plaintiffs lung cancer. In other words, did this exposure[,] if you find it, was it a factual cause in bringing about his lung cancer, did. the plaintiff suffer from an asbestos-related disease, the lung cancer, that is, was it caused by the exposure.
N.T., 4/13/16, at 36-37. Second, following closing arguments,, the court instructed:
You must détermine whether or not the asbestos product either manufactured, distributed, or supplied by the individual defendant contained asbestos and was the — did it emit, did it' give off .fibers, these asbestos fibers, on a regular — to the defendant — I mean to the plaintiff, was the plaintiff exposed to these fibers on a regular, frequent, and proximate basis.
Now what do I mean by regular? Usual, recurring, habitual in action.
Frequent: Occurring often, happening repeatedly.
Proximate: Close, near in space.
So the elements are dealing with, and' you deal with each one individually, did the product contain asbestos, was the plaintiff exposed to the asbestos fibers coming out of that product oh a regular, frequent, and proximate basis. That’s your initial exposure question and that would deal with John Crane on question one and Brand Insulation on question three,
The second question deals with causation. Now,. obviously — and I give you road instructions, I’ve gone over this. If you answer no on the exposure question, you don’t get to causation. You get to causation if you answer yes to the exposure question. And here the question is, were the asbestos products manufactured, distributed, or supplied by that particular defendant, John Crane, Brand Insulation, you discuss these separately, was it a factual cause in bringing about lung cancer.
In short, did the plaintiff suffer from an asbestos-related disease, that is, was the lung cancer an asbestos-related disease.
Now, what do I mean by factual cause? Well, you can imagine with lawyers and with judges there’s been a lot of discussion as to what do we mean by factual cause. I used to use the Word substantial factor. I think they mean the same, but today we’re using factual cause.
Factual cause is a legal cause. In order for the plaintiff to .recover in thiscase, the exposure to the defendant’s asbestos products must have been a factual cause in bringing about his lung cancer. This is what the law recognizes as a legal cause.
A factual cause is an actual real factor, although the result may be unusual or-unexpected, but it is,not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with Mr. Roverano’s lung cancer.
And again, as I said, and I think this makes sense, you would treat each defendant separately, but your inquiry is the same as far as the liability is concerned.
Id. at 116-19. Third, following the charge, counsel for the Roveranos pointed out that the court had not given a charge on concurring causes. The court then told the jury:
In my defining the causation question, that is the factual cause, I’m not sure if I said this, büt I should. You can have more than one factual cause in bringing about a given end.
Id. at 130. Finally, after the jury began deliberations, it sent a question to the court that asked, “Can you please give us the definition of factual?” Id. at 134. In response, the court instructed:
Now,- you want me to define this causation question, .a legal causation question, which,, as you know, would apply to both defendants. So the definition of factual cause in question two and in question four are the same. It’s the same area of inquiry. Was the plaintiff Mr. Roverano exposed to asbestos products manufactured, distributed, and supplied by the particular defendant? Now — I’m sorry, strike that.
Were the asbestos products .manufactured, distributed, supplied by the particular defendant a factual cause in bringing about plaintiffs lung cancer?
Factual cause is a legal cause, sometimes referred to as substantial factor, but-it’s the same — in my opinion they’re the same definition, so I’m going to give you the definition of factual cause as a legal cause.
In order for the plaintiff to recover in •this case, the exposure to the defendant’s products based on the elements that I gave you about that must have been a substantial — must have been a factual cause in bringing about Mr. Ro-verano[,] the plaintiffs[,] lung cancer. This is what the law recognizes as a legal cause.
A factual cause is a real actual — a factual cause is'an actual real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only a significant connection with the lung- cancer.
Keep-in mind you could have more than one cause which is ¾ factual cause, but that’s for you to decide. If you’ve got a couple of causes arid you say one is riot a factual cause and one is, then it' can only be the one that you find the factual cause, but you can find that both were factual cause. That’s up to you. You’re the fact finders.
Id. at 135-37.
The instruction regarding the Verdict Sheet properly told the jury that it had to determine “whether [each Appellant’s] products ... w[ere] a . factual cause .in bringing about the plaintiffs, lung cancer,” or, more simply, was Mr. Roverano’s lung cancer “caused by the exposure” to those products. N.T., 4/13/16, .at 36-37. But then the court sought .to define “factual cause.” The court-told the jury that it used to use the words “substantial factor” to explain the requirement, but it then did not explain
The jury apparently perceived that the court’s tautological definitions of “factual cause” as “a legal cause” and of “legal cause” as being what the law recognizes when there is a “factual cause” provided little guidance regarding what it was to determine, and it therefore asked the court to define “factual.” N.T., 4/13/16, at 134. In response, the court said, “Factual cause is a legal cause, sometimes referred to as substantial factor, but it’s the same ..., so I’m going to give you the definition of factual cause as a legal cause.” Id. at 136. The court said that exposure to Appellants’ products “must have been a substantial— must have been a factual cause in bringing about Mr. Roveranofs] lung cancer.” Id. The court then repeated that a factual cause had to be “an actual real factor,” and not an imaginary or insignificant one, and that there could be concurrent factual causes. Id. at 137.
The clearest portions of the court’s charge are those that incorporate material from Section 13.20 of Pennsylvania’s proposed standard jury instructions for civil cases. That material includes instructions that a factual cause must be an actual, real causative factor that is not imaginary or insignificant and that there can be concurrent causes of an injury. But despite those are subsidiary, I am left with the conviction that the charge as a whole tended to sow confusion, rather than clarity, on one of the key contested issues in this case.
My concern is that the charge was confusing; what was said was not necessarily erroneous. The main purpose of the “but for” aspect of a causation instruction is to inform the jury that it may not hold liable a defendant whose conduct did not in some way cause the plaintiffs harm. See Pa. Standard Jury Inst. (Civ.) § 13.20 (2016) (charge that defendant’s misconduct “must have been a factual cause in bringing about harm”). But the trial court’s charge conveyed that message. Under general tort law, “but for” causation is subsumed within the more stringent requirement that a cause must be sufficiently “proximate” or “substantial” to permit recovery, see, e.g., Alumni Ass’n, Delta Zeta Zeta v. Sullivan,
Because physical harm may result from exposure to relatively small amounts of asbestos, the Supreme Court has required “evidence that exposure to defendant’s asbestos-containing product was sufficiently ‘frequent, regular, and proximate’ to support a jury’s finding that defendant’s product was substantially causative of the disease.”
The trial court’s charge thus did not materially depart from the governing legal principles, but it did not clearly explain them either. Instead, it substituted terms such as “factual cause” and “legal cause” for more sophisticated concepts that required explanation, and it failed to provide clear definitions of the terms it used. The resulting charge, as I read it, generates more confusion than clarity. I understand my colleagues’ reluctance to overturn a jury verdict where the trial court made a good-faith effort to simplify such a complex area of the law. But . because the purpose of a charge is “to clarify the issues so that the jury may comprehend the questions it must decide,” Lee v. Pittsburgh Corning Corp.,