Pennsylvania Supreme Court to Determine Whether Fair Share Act Applies to Asbestos Cases
On July 31, 2018, the Pennsylvania Supreme Court granted William Roverano’s petition for allowance of appeal from the Superior Court’s December 2017 ruling that the Pennsylvania Fair Share Act applied to asbestos strict liability claims. Specifically, the court accepted review of two issues:
- Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act 42 Pa.C.S. 7102 in holding that the act requires the jury to apportion liability on a percentage 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.
The Philadelphia Court of Common Pleas initially ruled that the Fair Share Act, implemented in 2011, does not apply to strict liability asbestos claims. On appeal, the Superior Court explained that the “Fair Share Act explicitly applies to tort cases in which ‘recovery is allowed against more than one person, including actions for strict liability.'”
Defendants have long contended that a plain reading of the Fair Share Act necessitates apportionment on an individual basis, thereby eliminating the prior practice of per capita apportionment among defendants found strictly liable. Plaintiffs contend the statute is silent as to how strict liability claims are to be apportioned. The Pennsylvania Supreme Court will now settle the matter, giving permanent guidance to both sides in Pennsylvania asbestos litigation.
Perhaps more important is the second issue to be decided: whether bankrupt entities that have settled with the plaintiff can be placed on the verdict sheet for the purposes of apportionment. The defense bar also holds that a plain reading of the statute mandates an affirmative response to the issue, but plaintiffs have long opposed such attempts to include non-parties on the verdict sheet. If the court decides that the Fair Share Act requires the inclusion of bankrupt entities, asbestos litigation in Pennsylvania will be drastically altered as viable defendants will seek to prove that exposure.
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