J-A10014-17 

2017 PA Super 415

WILLIAM C. ROVERANO AND 

JACQUELINE ROVERANO, H/W

v.

JOHN CRANE, INC. AND BRAND 

INSULATIONS, INC.

APPEAL OF: BRAND INSULATIONS, 

INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2837 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

WILLIAM ROVERANO

v.

JOHN CRANE, INC. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.