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Roverano v. John Crane, Inc.

Superior Court of Pennsylvania

December 28, 2017

WILLIAM C. ROVERANO AND JACQUELINE ROVERANO, H/W
v.
JOHN CRANE, INC. AND BRAND INSULATIONS, INC. APPEAL OF: BRAND INSULATIONS, INC. WILLIAM C. ROVERANO
v.
JOHN CRANE, INC., APPELLANT

         Appeal from the Order July 27, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term, 2014 No. 1123

          BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

          OPINION

          PER CURIAM:

         Appellants, 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 tortfeasors.

         We briefly summarize the relevant facts, as gleaned from the certified record, as follows.

         Appellee 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.

         In November of 2013, Mr. Roverano was diagnosed with lung cancer in both lungs. Despite extensive treatment, his prognosis is poor.

         On 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.[1] In addition, Mrs. Roverano made a claim for loss of consortium.

         Prior to trial, the trial court ruled that the Fair Share Act, 42 Pa.C.S. § 7102, did not apply to asbestos cases.

         At 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.

         After 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.

         Appellants 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. Roverano.

         Appellants timely appealed. The trial court did not order, and

         Appellants did not file, a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

         Although Appellants have filed separate briefs, the issues raised are largely overlapping. We, therefore, paraphrase and re-number the collective issues Appellants raised as follows:[2]

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 warning.
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 Hajoca Corporation.
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 tortfeasors

Appellant Crane's Brief at p. 5-6; Appellant Brand's Brief at p. 3.

         Standard of Review

         Our 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).

         1. Factual Cause Jury Instructions

         Appellants 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.

         This 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).

         In 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 original).

         When a 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)).

         The 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 at 1051.

         Finally, 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" causation analysis.

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 (emphasis omitted).

         Based 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.

         Appellants 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.

         First, 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.

         After 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 cancer.
In short, did the plaintiff suffer from an asbestos-related disease, that is, was the lung cancer an asbestos-related disease.
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 legal cause.
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.

         By 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.

         Appellants 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 legal cause.
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 factfinders.

N.T. at 136-37; RR 712a.

         Appellants 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.

         2. Causation Question on Verdict Sheet

         Appellant 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 ...


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