Pennsylvania Supreme Court Clarifies Application of Fair Share Act to Strict Liability Asbestos Claims

Posted in Court Cases, Litigation, Pennsylvania

In 2011, The Fair Share Act, 42 Pa. C.S.A. § 7402, became law. The Fair Share Act changed the law of joint and several liability for actions sounding in negligence, eliminating joint and several liability except under certain exceptions. Under the Act, “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.” 42 Pa. C.S. § 7102(a.1). Each defendant is liable for its own proportion of the total dollar amount awarded as damages. Id. The Fair Share Act, which in some cases may prevent a defendant from obtaining a full recovery, was intended to prevent lawsuits targeting deep-pocket defendants. As Governor Corbett said at the time, “Tort reform legislation ensures that a party’s level of financial responsibility is assessed in a fair and equitable manner, rather than based on its financial assets.” 

This week, in Roverano v. John Crane, the Pennsylvania Supreme Court addressed whether the Fair Share Act required apportionment of liability in strict liability cases. In 2014, William Roverano brought a strict liability lawsuit against multiple defendants, claiming that exposure to their asbestos-containing products caused his lung cancer. The trial court ruled that, because asbestos exposure from individual products could not be quantified, it would apportion liability on a per capita basis. Following a jury award of over $5 million, the trial court apportioned the judgment equally among the defendants.

On appeal, the Superior Court held that the Fair Share Act applies to strict liability asbestos cases. As such, the court remanded the case for a new trial on damages, with instructions for the jury to apportion liability to each defendant on a percentage basis rather than on a per capita basis. Roverano filed a petition for allowance of appeal, which the Supreme Court granted, to consider whether the Fair Share Act requires the jury to apportion liability on a percentage basis in strict liability cases.

The Supreme Court reversed, holding that the Fair Share 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.” The Supreme Court explained that, because strict liability is “’liability without fault,’ and each defendant is ‘wholly liable’ for the harm, … ‘it is improper to introduce concepts of fault in the damage-apportionment process.” Because the Fair Share Act does not explicitly preempt that common law holding—and because the Superior Court’s interpretation would be “impossible of execution” in strict liability asbestos cases—the Supreme Court reversed the Superior Court.

You can read the Supreme Court’s opinion here.

Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit

Posted in Court Cases, Energy, Federal, FERC, Litigation, Pennsylvania, Regulatory

On Feb. 11, 2020, the United States Court of Appeals for the Fourth Circuit decided that the Federal Energy Regulatory Commission (FERC) did not overstep the statute of limitations in its effort to impose more than $29 million in civil penalties over alleged wholesale electricity market manipulation carried out by Dr. Houlian Chen and other associated financial entities, including Pennsylvania-based hedge fund Powhatan Energy Fund LLC.

Read the full GT Alert, “Fourth Circuit Rejects Statute of Limitations Challenge to FERC Electricity Market Manipulation Suit.”

* Special thanks to Pablo Ortiz Mena for his valuable assistance in preparing this GT Alert.

The Superfund Contribution Mind Pretzel…or One of Them

Posted in Articles, Pennsylvania, Superfund

From the first days of Superfund litigation, lawyers and courts have complained that Congress did not distinguish itself when drafting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601-75. As the law has developed, court decisions have created additional problems. The interplay among the private cost recovery provision of Section 107(a)(1-4)(B) and the contribution provisions of Section 113(f)— all informed by the statute of limitations of Section 113(g)—have created a very substantial, practical settlement problem. But the problem is a little obscure, a bit of a mind pretzel.

I discuss this complexity in my column for the Legal Intelligencer supplement, Pa. Law Weekly titled “The Superfund Contribution Mind Pretzel…or One of Them,” 43 Pa. L. Weekly 6 (Feb. 11, 2020). Read the full column.

New York’s ‘Toxic Toys’ Law: Governor Signs Legislation Regulating Chemicals in Children’s Products, But Changes to the Law Are Already Coming

Posted in Contamination, GT Alert, New York, State & Local, Toxic Tort

On Feb. 7, New York Governor Andrew M. Cuomo signed legislation regulating the presence of toxic chemicals in children’s products and apparel. The governor agreed to the legislation – the last of the bills from the 2019 legislative session to be signed – on the condition that the bills be amended in the current 2020 legislative session. Not uncommon in bills that have budgetary, substantive, or other technical flaws, the handshake agreement between the legislature and the governor to amend a bill later in the legislative session allows the executive branch to negotiate fixes to a bill without vetoing it, signaling an agreement on the general intent of legislation while recognizing the need for revisions. On Feb. 10, the legislature introduced the agreed-upon bill. Although the bill removes some flaws in the legislation, manufacturers, importers, and retailers of children’s products and apparel should closely monitor both the legislative developments as well as the regulatory and administrative proceedings that will play out over the next several years in light of this new law.

Click here to read the full GT Alert, “New York’s ‘Toxic Toys’ Law: Governor Signs Legislation Regulating Chemicals in Children’s Products, But Changes to the Law Are Already Coming.”

Coronavirus and the Occupational Safety and Health Act: What Employers Need to Know

Posted in OSHA

As the novel coronavirus (Coronavirus) continues to spread in China and around the world, employers may want to consider steps to take in addressing the Coronavirus in the workplace. The Occupational Safety and Health Administration (OSHA) recently published a webpage that provides workers and employers with interim guidance and resources for preventing exposure to the Coronavirus. See the OSHA 2019 Novel Coronavirus webpage.

Because few cases have been reported in the United States, the first question employers should consider is whether they have a duty to take any measures to prevent or reduce the likelihood of employee exposure to the Coronavirus. That is, do their employees have any risk of exposure? Unfortunately for employers, the short answer is: It depends. (We recognize that non-lawyers despise this answer, but in this case, it’s true!) If an employer has no basis to believe that its employees are at risk of exposure to the Coronavirus, then the Occupational Safety and Health Act (the Act), does not impose any affirmative duties on an employer to engage in abatement or prevention efforts.

Read the full GT Alert.

OSHA Is Raising Its Maximum Penalty Amounts, Again!

Posted in Federal, GT Alert, OSHA

On Jan. 10, 2020, the U.S. Occupational Safety and Health Administration (OSHA) announced another increase in the maximum civil monetary penalties for violations of federal Occupational Safety and Health standards and regulations. The new monetary penalties will be nearly 2% higher than the current maximum penalty amounts.

Effective Jan. 15, 2020, the maximum penalty for “Willful” or “Repeated” violations is $134,937, a more than $2,000 increase from the 2019 maximum for the same kinds of violations. The maximum penalty for “Failure to Abate” violations is $13,494 per day after the abatement date. Finally, the maximum penalty allowed for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations is $13,494, an increase of over $200 from the 2019 maximum amounts. Importantly, states that operate their own Occupational Safety and Health plans are required to adopt maximum penalties levels that are at least as effective as federal OSHA’s.

Click here to read the full GT Alert.

Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of

Posted in Court Cases, Oil & Gas, Pennsylvania

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the court has left open whether a well owner whose hydraulic fracturing fluids or proppants migrate under a property line, and perhaps even a well owner whose fracture traces extend across that line, has committed a trespass. Those issues are remanded, and their resolution remains uncertain.

Oil and gas (or, for that matter, any fluids) migrate into a well bore from the surrounding rock. If the well drains a conventional reservoir, the hydrocarbons may have originated at the other end of the reservoir under a different property. A well on one property can drain hydrocarbons originally located under another. Recall the “I drink your milkshake” scene from There Will Be Blood (Paramount 2007). Continue Reading

New York Governor Andrew Cuomo Proposes Radical Reshaping of Siting Process for Renewable Projects

Posted in Energy, Natural Resources, New York, Renewables, State & Local

In his annual budget address on Jan. 21, 2020, New York Governor Andrew M. Cuomo proposed a complete overhaul to New York’s siting of renewable energy projects. Noting that siting a project under the current Article 10 process takes 5-10 years to begin construction, the governor found that the current process simply does not work. In a reference to the renewable energy generation goals set forth in the Climate Leadership and Community Protection Act (CLCPA), the governor called setting goals without the means to achieve them “baloney” and went on to propose “flip[ping] the whole model” of renewable siting by having the state acquire potential sites for renewable energy generation, permitting the projects, and delivering shovel-ready sites to developers.

Article 10, signed by Governor Cuomo in 2011, was intended to streamline the siting of large-scale renewable and other major energy generating facilities of 25 megawatts or more. The original generation siting law had a higher threshold that omitted most renewable projects from its scope. Article 10 was meant to be a one-stop shop for environmental, health, and public safety reviews and permitting, allowing for an override of local laws that would unnecessarily impede siting and providing a strong mechanism to counterbalance knee-jerk NIMBYism, thereby allowing siting of needed electrical generation to help ensure safe and reliable service to ratepayers. It established a Board on Electric Generation Siting and the Environment, commonly referred to as the “siting board,” to accomplish that goal, and provided for the appointment of ad hoc members of the municipality where a project is proposed to be sited, giving a voice to residents.

Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2019

Posted in Articles, Court Cases, Pennsylvania

By my count, the three Pennsylvania appellate courts decided 27 environmental cases in 2019. Categorization is somewhat subjective, so I apologize for any omissions. For brevity, citations are truncated, and omitted years are 2019. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use regulation issues; municipal fees; judicial review of regulations; standing; permits and appeals from them; enforcement appeals; other judicial issues, and; limitation period.

Read my contribution to this month’s Legal Intelligencer supplement, Pa. Law Weekly titled “Environmental Cases in the Pennsylvania Appellate Courts During 2019,” 43 Pa. L. Weekly 3 (Jan. 21, 2020) by clicking here.

Trump Administration Proposes Significant Streamlining of National Environmental Policy Act

Posted in Federal Regulation, GT Alert, NEPA

On Jan. 9, 2020, the Trump administration’s Council on Environmental Quality (CEQ) proposed rules that would update comprehensively the regulations promulgated under the National Environmental Policy Act (NEPA) for the first time in 40 years. After 40 years there is little question that the regulations could use updating and that environmental reviews can be streamlined. However, these proposed revisions go beyond seeking efficiencies and better coordination. Rather, they seek to narrow federal agencies’ NEPA obligations with a goal of expediting projects and reducing the number of actions subject to NEPA review. Whether one considers NEPA an important tool for factoring environmental considerations into decision-making, or an unnecessary and bureaucratic roadblock for critical projects, the proposed changes, if adopted in their present form, raise significant questions that will likely lead to litigation, and could add uncertainty and delay to the federal environmental review process, the opposite of the stated goal of the measures.

Read the full GT Alert.