Full Opinion (html_with_citations)

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.
J-A10014-17


      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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J-A10014-17


     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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J-A10014-17



           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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J-A10014-17


             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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J-A10014-17


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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J-A10014-17


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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J-A10014-17


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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