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.

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Photo of Caleb Holmes Caleb Holmes

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive

Caleb’s practice focuses on complex environmental litigation and environmental compliance. Caleb has represented clients in state and federal courts and in administrative proceedings. In his environmental litigation practice, Caleb often represents corporate clients in cost recovery, contribution and government enforcement actions under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Caleb has litigated such matters through trial and has also helped clients negotiate and settle matters. He has worked with clients on cases involving a wide variety of contaminants, including but not limited to PCBs, PFAS, and dioxins. Caleb also has broad experience litigating complex commercial litigation, including products liability and mass tort/toxic tort matters. He has a depth of experience with all aspects of discovery, including work with experts, taking and defending depositions, motion practice, trial preparation and settlement negotiation.

Caleb provides practical advice to clients in the acquisition and disposition of businesses and assets and the re-development of brownfield sites. He works with clients to achieve compliance with state-specific voluntary cleanup programs, including Pennsylvania’s Land Recycling Program (Act 2).

Caleb counsels clients on compliance with a broad range of federal and state environmental laws, including RCRA, the Clean Air Act, the Clean Water Act, and a host of other federal and state environmental laws.

In addition to his legal work, Caleb is active in various professional and civic organizations. He is currently serving as the Council’s Secretary for the Pennsylvania Bar Association’s Environmental and Energy Law Section.