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Implementation of Pennsylvania’s Fair Share Act Continues to Snag Courts and Defendants Alike

Posted on: April 27th, 2017

By: Erin E. Lamb

From the common law period through 2011, the Commonwealth operated under a system of joint and several liability. Joint and several liability meant that any and all defendants were “in for a penny, in for a pound.” Any defendant found liable – even 1% liable – was on the hook for the full amount of the judgment, resulting in countless verdicts where insured Defendants who were Co-Defendants with judgement-proof individuals paid out full judgments. Pennsylvania struggled for the better part of a decade to craft a law that would end joint and several liability and finally passed the Fair Share Act. As the name implies, individual defendants are now responsible solely for their proportionate share of the judgment. There are some exceptions; for example, a defendant found more than 60% liable remains liable to pay the full amount of the judgment. At the time of its passage in 2011, Pennsylvania’s Fair Share Act was hailed by defense counsel as rectification of inequity. However, with the litany of exceptions and without guidance as to the application of the Act to Pennsylvania’s Suggested (read: Compulsory) Jury Instructions, practitioners and the courts have struggled to apply the Act at trial.

The Fair Share Act is particularly thorny when applied to Pennsylvania’s notoriously plaintiffs-friendly products liability and mass torts jurisprudence. (Products Liability, in particular, has already been in a state of flux since the seminal 2014 decision of the Pennsylvania Supreme Court in Tincher v. Omega Flex, `04 A.3d 328 (Pa. 2014), which struck down the Commonwealth’s bright-line separation between negligence concepts and strict liability principles, but declined to adopt the Third Restatement. Everyone agrees it is seminal. No one agrees as to exactly what. The Pennsylvania Supreme Court is seemingly content to allow that state of affairs to continue indefinitely.)

Pennsylvania’s appellate-level Court, the Superior Court, is currently hearing arguments in Roverano v. John Crane Inc., to determine whether the Fair Share Act requires juries in strict liability cases to determine the portion of liability to be imposed against each defendant, or whether a judge simply apportions liability equally. Trial Courts across Pennsylvania – there are 60 total[1] — have struggled with the question and reached different conclusions. At trial in the matter on appeal, the Judge equally apportioned liability among the 8 Defendants.

At oral argument, Plaintiff’s counsel argued that the Fair Share Act should not apply to strict liability cases as it does to negligence cases (shades of a pre-Tincher Commonwealth rearing its head). However, the Court noted asbestos cases are not one of the Fair Share Act exceptions. In a bit of a role-reversal, it is Plaintiff’s counsel arguing that it is the judge, not the jury, that ought to make the decisions about percentages of fault against defendants in strict liability cases. All counsel, and the judiciary, had little to work with, as a footnote in a separate matter, Rost v. Ford Motor, makes up almost the entirety of precedent about the application of the Fair Share Act to strict liability cases. That, and the ever-changing makeup of the Pennsylvania Supreme Court, which has a full complement of justices for the first time since 2014, makes it extremely difficult to predict how these cases will shake out, and to what extent.

We expect these cases to continue to wind their way through the appellate levels for years, if not decades, to come.

[1] Philadelphia, it goes without saying, is the First Judicial District – No.1

For more information, please contact Erin Lamb at [email protected].

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