WILLIAM C. ROVERANO AND JACQUELINE ROVERANO, H/W
JOHN CRANE, INC. AND BRAND INSULATIONS, INC. APPEAL OF: BRAND INSULATIONS, INC. WILLIAM C. ROVERANO
JOHN CRANE, INC., APPELLANT
from the Order July 27, 2016 In the Court of Common Pleas of
Philadelphia County Civil Division at No(s): March Term, 2014
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
John Crane, Inc., and Brand Insulations, Inc., appeal from
the July 27, 2016 Order denying Post-Trial Motions and
entering Judgment in favor of Appellees William and
Jacqueline Roverano. We affirm in part, reverse in part, and
remand for a new trial to apportion damages among the
briefly summarize the relevant facts, as gleaned from the
certified record, as follows.
William Roverano was employed at PECO from 1971 until his
retirement in 2001. As part of his employment, Mr. Roverano
was exposed to a variety of asbestos products over a ten-year
period from 1971 until 1981.
November of 2013, Mr. Roverano was diagnosed with lung cancer
in both lungs. Despite extensive treatment, his prognosis is
March 10, 2014, Mr. Roverano filed a Complaint against thirty
named defendants, averring that exposure to asbestos products
attributable to those defendants caused his lung
cancer. In addition, Mrs. Roverano made a claim
for loss of consortium.
to trial, the trial court ruled that the Fair Share Act, 42
Pa.C.S. § 7102, did not apply to asbestos cases.
trial, the parties presented evidence that focused primarily
on Roverano's exposure to Appellants' products that
contained asbestos and whether such exposure caused
Roverano's lung cancer. The thrust of Appellants'
defense was that it was Roverano's history of smoking
that caused his lung cancer and any exposure to
Appellants' products was insignificant and could not have
caused his lung cancer. In contrast, Appellees' experts
opined that it was both his smoking and the exposure to
Appellants' products that caused his lung cancer.
deliberating, the jury found in favor of Mr. and Mrs.
Roverano and against the Appellants as well as six of the
eight other defendants. The jury awarded $5, 189, 265 to Mr.
Roverano and $1, 250, 000 to Mrs. Roverano.
filed separate Motions for Post-Trial Relief. On July 27,
2016, the trial court denied Appellants' Motions and
entered judgment in favor of the Roveranos. The trial court
apportioned the judgment equally among the eight defendants
whom the jury determined to be tortfeasors. In particular,
the trial court entered separate judgments against Appellant
Crane and Appellant Brand each in the amount of $648, 858
plus $29, 604 for delay damages for the verdict in favor of
Mr. Roverano and $156, 250 for the verdict in favor of Mrs.
timely appealed. The trial court did not order, and
did not file, a Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b).
Appellants have filed separate briefs, the issues raised are
largely overlapping. We, therefore, paraphrase and re-number
the collective issues Appellants raised as
1. The trial court erred in defining "factual
cause" in its instructions to the jury and in response
to a written question from the jury.
2. The trial court erred by denying Appellant Crane's
proposed Verdict Form that addressed whether Roverano's
injuries were caused by exposure to asbestos, or, as
Appellant Crane maintains, smoking.
3. The trial court erred by failing to provide the jury a
Verdict Form that allowed them to determine whether Appellant
Crane's packing was defective in the absence of a
4. The trial court erred by allowing Roveranos' experts
to offer "each and every" or "whatever"
asbestos exposure causation testimony in a case where
Roverano did not have mesothelioma, asbestosis, or any other
medical marker of asbestos exposure.
5. The trial court erred when it refused to mold the verdict
to account for named-defendants Georgia Pacific Cement and
6. The trial court erred in failing to apply the Fair Share
Act and erred specifically as follows:
A. The trial court should have required the jury to apportion
liability among the alleged tortfeasors; and
B. The trial court should have included certain alleged
tortfeasors on the verdict sheet, notwithstanding the fact
that those alleged tortfeasors had filed for bankruptcy
protection, or to mold the verdict to reflect settlement
payments received from the bankruptcy estates of alleged
Appellant Crane's Brief at p. 5-6; Appellant Brand's
Brief at p. 3.
standard of review on appeal is a clear abuse of discretion
or an error of law that controls the case:
Our standard of review regarding a trial court's denial
of a motion for a new trial is limited. The power to grant a
new trial lies inherently with the trial court and we will
not reverse its decision absent a clear abuse of discretion
or an error of law which controls the outcome of the case.
Maya v. Johnson and Johnson, 97 A.3d 1203, 1224 (Pa.
Super. 2014) (citation omitted). When determining whether the
trial court committed an error of law controlling the outcome
of the case, "our standard of review is de
novo, and our scope of review is plenary."
Fizzano Bros. Concrete Prods., Inc. v. XLN, Inc., 42
A.3d 951, 960 (Pa. 2012).
Factual Cause Jury Instructions
argue that the trial court erred in defining "factual
cause" in its instructions to the jury and in response
to a written question from the jury. In particular,
Appellants argue that the "law requires a 'but
for' causation standard for the definition of factual
[causation], which was an error of law that controlled the
outcome of the case." Crane's Brief at 30.
Court reviews a challenge to jury instructions under the
following well-settled principles of Pennsylvania law.
[O]ur standard of review when considering the adequacy of
jury instructions in a civil case is to determine whether the
trial court committed a clear abuse of discretion or error of
law controlling the outcome of the case. It is only when the
charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a material
issue that error in a charge will be found to be a sufficient
basis for the award of a new trial.
Further, a trial [court] has wide latitude in [its] choice of
language when charging a jury, provided always that the court
fully and adequately conveys the applicable law.
Phillips v. Lock, 86 A.3d 906, 916-917 (Pa. Super.
2014) (citation omitted).
asbestos products liability cases, "Pennsylvania law
requires that a plaintiff prove two elements: "that the
product was defective, and that the defect was the
substantial factor in causing the injury."
Rost v. Ford Motor Company, 151 A.3d 1032, 1037 n.2
(Pa. 2016) (citations omitted; emphasis added.). When a
plaintiff was exposed to more than one product that contained
asbestos, the jury, when applying the "substantial
factor" test, should consider the "frequency,
regularity and proximity" of the plaintiff's
exposure to each asbestos product. Gregg v. V-J Auto
Parts Co., 943 A.2d 216 (Pa. 2007). This assessment
requires a "focus on the precise nature of
plaintiff's exposure to the defendant's
product, not on other asbestos containing
product." Rost, 151 A.3d at 1048 (emphasis in
jury focuses on the defendant's product, the jury should
consider the plaintiff's exposure to each defendant's
product "was on the one hand, a substantial factor or a
substantial cause or, on the other hand, whether the
defendant's conduct was an insignificant cause or a
negligible cause." Id. at 1049 (quoting
Ford v. Jeffries, 379 A.2d 111, 114 (Pa. 1977)).
Supreme Court concluded that it has never "insisted that
a plaintiff exclude every other possible cause for his or her
injury and in fact, we have consistently held that multiple
substantial causes may combine and cooperate to produce the
resulting harm to the plaintiff." Rost, supra
the Rost Court noted with approval the analysis in
Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.
1992), adopted by Gregg, supra at 226, that rejected
any notion that the test of "frequency, regularity and
proximity" requires a comparative analysis of different
exposures to asbestos and instead made clear that the focus
must be on the level of exposure to the defendant's
product. Rost, supra at 1050 n.13. Using this
analysis, our Supreme Court rejected a "but for"
Suppose a plaintiff shows that the amount of exposure that it
received from defendant's A's asbestos product was
alone sufficient to cause mesothelioma. If such a plaintiff
was not exposed to any other products, the plaintiff would
have sufficient evidence to support a finding that but for
exposure to the defendant A's product, the plaintiff
would not have gotten ill. On the other hand, under a
[comparative approach], if the plaintiff was exposed to
numerous other asbestos products, the plaintiff might not be
able to prove cause in fact in a suit against defendant A
because the same exposure to defendant A's product might
not be substantial in comparison to the exposure to the other
products. Such a result does not promote the purposes of the
substantial factor test, which is aimed at alleviating the
inequities that result when applying the but for test in a
multi-defendant case, not at creating such inequities.
Id., quoting Tragarz, 980 F.2d at 425
on our review of the foregoing precedential authority, we
conclude that the trial court in the instant case properly
rejected Appellant's request for a "but for
causation" jury charge. The Pennsylvania Supreme Court
has clearly rejected such a standard for causation and
requires, when addressing a situation in which a plaintiff is
exposed to more than one asbestos containing products, that
the jury determine whether the plaintiff's exposure to
each defendant's product was "frequent, regular and
proximate" to determine whether such exposure was a
substantial factor in causing the plaintiff's injury.
further argue that the "trial court's instruction
did not provide a sufficient and correct legal basis to guide
the jury." Crane's Brief at 33.
while explaining the Verdict Sheet, the court stated:
The first question I said deals with exposure to the
particular product of the defendant. Now, these are the
elements the plaintiff has to prove that exposure. Number
one, was the plaintiff exposed to the product of the
defendant, did it contain asbestos, was the plaintiff exposed
to the asbestos fibers of that particular defendant on a
regular frequent and proximate basis.
Now, the second question deals with whether these products
manufactured, distributed, or supplied by the individual
defendants was a factual cause in bringing about the
plaintiff's lung cancer. In other words, did this
exposure, if you find it, was it a factual cause in bringing
about his lung cancer, did the plaintiff suffer from an
asbestos-related disease, the lung cancer, that is, was it
caused by the exposure.
N.T., 4/13/16, at 336-37; RR 687a.
the attorneys made their closing arguments, the court
explained to the jury the need for Mr. Roverano to establish
that he was exposed to the asbestos fibers that Appellants
had manufactured, distributed or supplied on a "regular,
frequent and proximate basis." N.T. at 122; RR. 709a.
The court then instructed the jurors on the definition of
factual cause as:
And here the question is, were the asbestos products
manufactured, distributed or supplied by that particular
defendant, John Crane, Brand Insulation, you discuss these
separately, was it a factual cause in bringing about lung
In short, did the plaintiff suffer from an asbestos-related
disease, that is, was the lung cancer an asbestos-related
Now, what do I mean by factual cause? Well, you imagine with
lawyers and with judges there's been a lot of discussion
as to what do we mean by factual cause. I used to use the
word substantial factor. I think they mean the same, but
today we're using factual cause.
Factual cause is a legal cause. In order for the plaintiff to
recover in this case, the exposure to the defendant's
asbestos products must have been a factual cause in bringing
about his lung cancer. This is what the law recognizes as a
A factual cause is an actual real factor, although the result
may be unusual or unexpected, but it is not an imaginary or
fanciful factor or a factor having no connection or only an
insignificant connection with Mr. Roverano's lung cancer.
N.T. at 118-19; RR at 708a.
instructing the jury that Mr. Roverano must establish that
his exposure was regular, frequent, and proximate and such
exposure was a substantial cause of plaintiff's lung
cancer, the trial court "fully and adequately convey[ed]
the applicable law." Philips, 86 A.3d at
916-17. We, thus, conclude the trial court did not abuse its
discretion or commit an error of law.
also argue that the trial court erred in responding to the
jury's question regarding the definition of
"factual" cause. Crane's Brief at 34;
Brand's Brief at 29. In response to the question, the
trial court charged the jury correctly by instructing the
jury that factual cause is "legal cause, sometime
referred to as substantial factor:"
Factual cause is a legal cause, sometimes referred to as
substantial factor, but it's the same-in my opinion
they're the same definition, so I'm going to give you
the definition of factual cause as a legal cause.
In order for the plaintiff to recover in this case, the
exposure to defendant's products based on the elements
that I gave you must have been a substantial-must have been a
factual cause in bringing about Mr. Roverano, the
plaintiff's lung cancer. This what the law recognizes as
A factual cause is a real actual-a factual cause is an actual
real factor, although the result may be unusual or expected,
but it is not an imaginary or fanciful factor or a factor
having no connection or only an insignificant connection with
the lung cancer.
Keep in mind you could have more than one cause which is a
factual cause, but that's for you to decide. If
you've got a couple of causes and you say one is not a
factual cause and one is, the it can only be the one that you
find the factual cause, but you can find that both were
factual cause. That's up to you. You're the
N.T. at 136-37; RR 712a.
contend that the court's response to the jury's
inquiry was improper because it "changed [the
jury's] mind." Crane's Brief at 37; see
also Brand's Brief at 32-33. The trial court
properly instructed the jurors on the law. It is for the
jurors to apply the law and determine liability. We can only
focus on the trial court's instruction to the jury and
not speculation about the timing of the jury's verdict.
Causation Question on Verdict Sheet
Crane argues that a principal theory of Appellants'
defense "was that Mr. Roverano's lung cancer was
not caused by his exposure to asbestos at
all; rather [the cancer, ] along with his emphysema and COPD,
was caused by his extensive smoking history."
Crane's Brief at 29. Appellant contends that by denying a
specific question on the Verdict Sheet reflecting ...