Products Liability Law Daily Wrap Up, DAMAGES—ASBESTOS—Pa. Super.: Trial court erred with allocating damages among talcum powder producers, (Apr 12, 2024)

By Brian Craig, J.D.

The damages award of $400,000 must be allocated on a per capita basis among the three producers of talcum powder used by a hairdresser.

In a case involving asbestos exposure brought by the estate of a hairdresser that died from mesothelioma after using talcum powder, the Pennsylvania Superior Court has affirmed a jury verdict of $400,000 but reversed the decision of the trial court on apportioning damages among the talcum powder producer defendants. The appeals court concluded that the three producers of talcum powder must each pay one-third of the damages award on a per capita basis and that the trial court erred when allocating one-half of the responsibility to one producer by adding purported liability following an acquisition (Fisher v. American International Industries, April 10, 2024, Olson, J.).

A hairdresser owned a beauty salon and worked as a hairdresser from approximately 1960 through 1985. In her work, the hairdresser used four talcum powders. The hairdresser was diagnosed with malignant pleural mesothelioma and died in 2019. The hairdresser’s estate brought an action against various companies that produced the talcum powder used by the hairdresser. The hairdresser’s estate alleged that exposure to the asbestos-containing talcum powders caused the hairdresser to develop mesothelioma, which led to her subsequent death. A jury awarded the hairdresser’s estate damages of $400,000. The trial court added $38,710 in delay damages for a total damages award of $438,710. The trial court apportioned one-half of the damages to American International Industries (AII), one-fourth to Whittaker Clark and Daniels, Inc. (WCD), the supplier of the asbestos-containing talc products, and one-fourth to the Colgate-Palmolive Company (Colgate). The trial court denied AII’s post-trial motions. AII appealed arguing the lack of sufficient evidence and the apportionment of damages.

Sufficiency of evidence. The appeals court first concluded that there was sufficient evidence presented at trial to support the jury verdict. The hairdresser’s estate submitted expert testimony of a geologist showing that talc mined from the Val Chisone region in Italy used by the companies contained detectable levels of asbestos. The jury also heard testimony from a sales agent for an entity that purchased Italian talc from the Val Chisone region used in the talc, which was corroborated by sales records.

Apportionment of damages. The appeals court held, however, that the trial court erred in apportioning damages among the talcum powder producers. Under Pennsylvania law, in strict liability asbestos matters, the alleged injury is inherently a single, indivisible injury that is incapable of being apportioned in a rational manner. As such, it is impossible to determine which actor caused the harm, and it follows that it is impossible to apportion the amount of each defendant’s liability on a percentage basis.

In this case, the jury rendered a $400,000.00 verdict and assessed liability against four defendants: AII, WCD, Neslemur, and Colgate. AII acquired Neslemur in 1987. The trial court assigned AII, as successor to Neslemur, responsibility for Neslemur’s portion of the damages. Therefore, the trial court apportioned one-half of the damages to AII, one-fourth to WCD, and one-fourth to Colgate. But the appeals court held that the trial court decision to “add” Neslemur’s purported liability to AII was an error. Instead, the trial court should have simply removed Neslemur’s portion of liability and, in turn, apportioned liability on a per capita basis to the remaining three tortfeasors: AII, WCD and Colgate.

The case is No. 106 EDA 2023.

Attorneys: James Michael Kramer (Simmons Hanly Conroy) for Holly Fisher. Roy Francis Viola, Jr. (Gordon Rees Scully Mansukhani, LLP) for American International Industries.

Companies: American International Industries

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