J-A10014-17
2017 PA Super 415
WILLIAM C. ROVERANO AND : IN THE SUPERIOR COURT OF
JACQUELINE ROVERANO, H/W : PENNSYLVANIA
:
:
v. :
:
:
JOHN CRANE, INC. AND BRAND :
INSULATIONS, INC. : No. 2837 EDA 2016
:
:
APPEAL OF: BRAND INSULATIONS, :
INC. :
Appeal from the Judgment Entered July 27, 2016
In the Court of Common Pleas of Philadelphia County, Civil Division at
No(s): March Term, 2014, No. 1123
WILLIAM ROVERANO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN CRANE, INC. :
:
Appellant : No. 2847 EDA 2016
Appeal from the Judgment Entered 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.
CONCURRING AND DISSENTING OPINION BY SOLANO, J.:
FILED DECEMBER 28, 2017
I join in full the portion of the Majority Per Curiam Opinion under the
heading “6. Fair Share Act.” Because I believe the jury charge failed clearly
to explain what proof of causation was needed to establish liability, I would
remand for a new trial on liability, and not just on apportionment of damages.
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A trial court has wide latitude in framing its charge to a jury, and we will
order a new trial “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.”
Phillips v. Lock, 86 A.3d 906, 916-17 (Pa. Super. 2014); see Tincher v.
Omega Flex, Inc., 104 A.3d 328, 351, 407 (Pa. 2014) (jury charge is
inadequate if “the issues are not made clear” or “the jury was misled by the
instructions”).
Here, the relevant portion of the trial court’s instructions to the jury
came in four parts. First, while explaining the Verdict Sheet, prior to closing
arguments, 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. And they’re the
elements that must be proven by this fair preponderance or fair
weight of the evidence that I’ll get to later in order for you to
answer yes.
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 36-37. Second, following closing arguments, the court
instructed:
You must determine whether or not the asbestos product
either manufactured, distributed, or supplied by the individual
defendant contained asbestos and was the – did it emit, did it give
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off fibers, these asbestos fibers, on a regular – to the defendant –
I mean to the plaintiff, was the plaintiff exposed to these fibers on
a regular, frequent, and proximate basis.
Now what do I mean by regular? Usual, recurring, habitual
in action.
Frequent: Occurring often, happening repeatedly.
Proximate: Close, near in space.
So the elements are dealing with, and you deal with each
one individually, did the product contain asbestos, was the plaintiff
exposed to the asbestos fibers coming out of that product on a
regular, frequent, and proximate basis. That’s your initial
exposure question and that would deal with John Crane on
question one and Brand Insulation on question three.
The second question deals with causation. Now, obviously –
and I give you road instructions, I’ve gone over this. If you answer
no on the exposure question, you don’t get to causation. You get
to causation if you answer yes to the exposure question. 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 can
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.
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And again, as I said, and I think this makes sense, you
would treat each defendant separately, but your inquiry is the
same as far as the liability is concerned.
Id. at 116-19. Third, following the charge, counsel for the Roveranos pointed
out that the court had not given a charge on concurring causes. The court
then told the jury:
In my defining the causation question, that is the factual cause,
I’m not sure if I said this, but I should. You can have more than
one factual cause in bringing about a given end.
Id. at 130. Finally, after the jury began deliberations, it sent a question to
the court that asked, “Can you please give us the definition of factual?” Id.
at 134. In response, the court instructed:
Now, you want me to define this causation question, a legal
causation question, which, as you know, would apply to both
defendants. So the definition of factual cause in question two and
in question four are the same. It’s the same area of inquiry. Was
the plaintiff Mr. Roverano exposed to asbestos products
manufactured, distributed, and supplied by the particular
defendant? Now – I’m sorry, strike that.
Were the asbestos products manufactured, distributed,
supplied by the particular defendant a factual cause in bringing
about plaintiff’s lung cancer?
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 the defendant’s products based on the elements that I gave you
about that must have been a substantial – must have been a
factual cause in bringing about Mr. Roverano[,] the plaintiff’s[,]
lung cancer. This is what the law recognizes as a legal cause.
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A factual cause is a real actual – 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 a significant 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, then
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 fact
finders.
Id. at 135-37.
The instruction regarding the Verdict Sheet properly told the jury that it
had to determine “whether [each Appellant’s] products . . . w[ere] a factual
cause in bringing about the plaintiff’s lung cancer,” or, more simply, was Mr.
Roverano’s lung cancer “caused by the exposure” to those products. N.T.,
4/13/16, at 36-37. But then the court sought to define “factual cause.” The
court told the jury that it used to use the words “substantial factor” to explain
the requirement, but it then did not explain what that phrase meant. Instead,
it said that a “[f]actual cause is a legal cause,” that exposure to Appellants’
products “must have been a factual cause in bringing about [Mr. Roverano’s]
lung cancer,” and that “[t]his is what the law recognizes as legal cause.” Id.
at 118-19. The court said a “factual cause is an actual real factor,” rather
than an imaginary or insignificant one, and that more than one factual cause
can bring about a “given end.” Id. at 119, 130.
The jury apparently perceived that the court’s tautological definitions of
“factual cause” as “a legal cause” and of “legal cause” as being what the law
recognizes when there is a “factual cause” provided little guidance regarding
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what it was to determine, and it therefore asked the court to define “factual.”
N.T., 4/13/16, at 134. In response, the court said, “Factual cause is a legal
cause, sometimes referred to as substantial factor, but it’s the same . . ., so
I’m going to give you the definition of factual cause as a legal cause.” Id. at
136. The court said that exposure to Appellants’ products “must have been a
substantial — must have been a factual cause in bringing about Mr.
Roverano[’s] lung cancer.” Id. The court then repeated that a factual cause
had to be “an actual real factor,” and not an imaginary or insignificant one,
and that there could be concurrent factual causes. Id. at 137.
The clearest portions of the court’s charge are those that incorporate
material from Section 13.20 of Pennsylvania’s proposed standard jury
instructions for civil cases. That material includes instructions that a factual
cause must be an actual, real causative factor that is not imaginary or
insignificant and that there can be concurrent causes of an injury. But despite
those are subsidiary, I am left with the conviction that the charge as a whole
tended to sow confusion, rather than clarity, on one of the key contested
issues in this case.
My concern is that the charge was confusing; what was said was not
necessarily erroneous. The main purpose of the “but for” aspect of a causation
instruction is to inform the jury that it may not hold liable a defendant whose
conduct did not in some way cause the plaintiff’s harm. See Pa. Standard
Jury Inst. (Civ.) § 13.20 (2016) (charge that defendant’s misconduct “must
have been a factual cause in bringing about harm”). But the trial court’s
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charge conveyed that message. Under general tort law, “but for” causation is
subsumed within the more stringent requirement that a cause must be
sufficiently “proximate” or “substantial” to permit recovery, see, e.g., Alumni
Ass’n, Delta Zeta Zeta v. Sullivan, 535 A.2d 1095, 1098 (Pa. Super. 1987),
aff’d, 572 A.2d 1209 (Pa. 1990), and this remains true in asbestos cases.
See Rost v. Ford Motor Co., 151 A.3d 1032, 1050 (Pa. 2016) (“our law
regarding proof of substantial causation is the same for exposure to asbestos
as it is in other tort contexts”), 1049 (“[t]o establish proximate causation, a
plaintiff must adduce evidence to show that the defendant’s act was a
substantial factor in bringing about the plaintiff's harm”). The two causation
concepts therefore may be conflated in describing the elements of proof. See
id. at 1037 n.2 (stating, with respect to causation, only that plaintiff must
prove “that the defect was the substantial factor causing the injury”).
Because physical harm may result from exposure to relatively small
amounts of asbestos, the Supreme Court has required “evidence that
exposure to defendant's asbestos-containing product was sufficiently
‘frequent, regular, and proximate’ to support a jury’s finding that defendant’s
product was substantially causative of the disease.” Rost, 151 A.3d at 1044;
see id. at 1043, 1047; Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa.
2007). The trial court instructed the jury on this requirement, but it did not
clearly identify the requirement as an element of causation. The court also
charged about concurrent causes of indivisible injuries, which was important
for resolution of the conflicting claims about which, if any, of the defendant’s
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products was a cause of Mr. Roverano’s cancer and whether the cancer was
caused by a factor unrelated to the defendants, such as his smoking. See
Rost, 151 A.3d at 1051 (explaining that “multiple substantial causes may
combine and cooperate to produce the resulting harm to the plaintiff”);
Summers v. Certainteed Corp., 997 A.2d 1152, 1164-65 (Pa. 2010) (same).
The trial court’s charge thus did not materially depart from the
governing legal principles, but it did not clearly explain them either. Instead,
it substituted terms such as “factual cause” and “legal cause” for more
sophisticated concepts that required explanation, and it failed to provide clear
definitions of the terms it used. The resulting charge, as I read it, generates
more confusion than clarity. I understand my colleagues’ reluctance to
overturn a jury verdict where the trial court made a good-faith effort to
simplify such a complex area of the law. But because the purpose of a charge
is “to clarify the issues so that the jury may comprehend the questions it must
decide,” Lee v. Pittsburgh Corning Corp., 616 A.2d 1045, 1049 (Pa. Super.
1992), and because the court’s charge failed to clarify the issues here, I
believe a new trial on liability is warranted.
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