Roverano v. John Crane, Inc.

• Decision Date: 19 February 2020
• Docket Number: No. 27 EAP 2018,No. 26 EAP 2018,26 EAP 2018,27 EAP 2018
• Citation: 226 A.3d 526
• Parties: 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
• Court: Pennsylvania Supreme Court

226 A.3d 526

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

Supreme Court of Pennsylvania.

Argued: March 6, 2019

Decided: February 19, 2020

OPINION

JUSTICE MUNDY

In this appeal by allowance, we consider whether the Fair Share Act, 42 Pa.C.S. § 7102, requires a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions. We conclude the Act's plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution. Accordingly, we reverse the Superior Court's order, which vacated the trial court's judgment and remanded this case for a new trial to apportion damages on a percentage basis. Additionally, we consider whether the Act requires a factfinder to apportion liability to bankrupt entities that entered into a release with the plaintiff. We conclude that upon appropriate requests and proofs, bankruptcy trusts that are either joined as third-party defendants or that have entered into a release with the plaintiff may be included on the verdict sheet for purposes of liability only. Accordingly, we remand this case to the trial court to consider whether Appellees submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

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, 42 Pa.C.S. § 7102, applied to asbestos cases. The defendants asserted the Fair Share Act required the jury to allocate liability to each defendant depending upon what percentage of the total harm to Mr. Roverano each asbestos product caused. The trial court denied the motion in limine, concluding that asbestos exposure cannot be quantified.¹ N.T., 4/5/16, at 10, 16. Instead, the trial court held it would apportion liability on a per capita basis, consistent with this Court's decision in Baker v. AC & S , 562 Pa. 290, 755 A.2d 664 (2000). In its Pa.R.A.P. 1925(a) opinion, the trial court explained there was no evidence upon which the jury could apportion liability. Trial Ct. Op., 7/27/16, at 10 ("The plaintiff's testimony was clear and unequivocal that asbestos exposure from individual products cannot be quantified. The defendants presented no evidence to the contrary.").

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 Section 7102(a.2) of the Fair Share Act] bankrupt companies who have not yet paid the plaintiff compensation can still be listed on the verdict sheet for the sole purpose of an assessment by the jury of whether the bankrupt companies were a responsible share in the cause of the disease." Hajoca's Motion In Limine Regarding Plaintiffs' Bankruptcy Trust Applications, 3/30/16, R.R. 1248. On April 4, 2016, the Roveranos filed a motion in limine to exclude from the verdict sheet third-party bankrupt entities with which the Roveranos had not settled and entered into a release. On April 5, 2016, Brand filed a motion in limine to identify all settled parties, including bankrupt entities that had paid the Roveranos' claims.³ At the April 5, 2016 hearing on pretrial motions, the Roveranos' attorney stated that the Roveranos filed bankruptcy trust claims, but maintained the bankruptcy trusts were not settled entities. N.T., 4/5/16, at 20. The trial court granted the Roveranos' motion in limine, explaining the entities had filed for bankruptcy before the Roveranos commenced this lawsuit and including them on the verdict sheet would be unfair. N.T., 4/5/16, at 19-20; Trial Ct. Op., 7/27/16, at 11 (relying on Ottavio v. Fibreboard , 421 Pa.Super. 284, 617 A.2d 1296 (1992) (en banc), and Ball v. Johns-Manville Corp. , 425 Pa.Super. 369, 625 A.2d 650 (1993) ).

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 58. Dr. Frank concluded Mr. Roverano's exposure to Crane and Brand products were substantial contributing causes to his lung cancer

because they were part of his "cumulative exposure." Id. at 63, 67. Dr. Frank explained the basis for his opinion:

[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...