IN THE COURT OF COMMON PLEAS OF

LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

DEBORAH SALLES-MAYER                     :

                             Plaintiff                         :

                                                                    :

                   v.                                             :  No. 2006-02071

                                                                    :

BECKI S. HILL, M.D. and PENN STATE:

MILTON S. HERSHEY MEDICAL              :

CENTER, a/k/a THE MILTON S.               :

HERSHEY MEDICAL CENTER                 :

                             Defendants                   :

 

 

APPEARANCES:

 

Richard Abraham, Esquire                      For Plaintiff

YOUNG RICCHIUTI CALDWELL

& HELLER, LLC

 

Francis E. Marshall, Jr., Esquire             For Defendant Becki Hill, M.D.

DICKIE, MCCAMEY &   CHILCOTE, PC.

 

Joseph G. Zack, Esquire                          For Defendant The Milton S.

POST & POST, LLC                                        Hershey Medical Center

 

OPINION BY CHARLES, J.,  January 25, 2013

 

This case involves comparative negligence and casual apportionment of harm.  While some might view these two concepts as synonymous, our research has led us to conclude that they are not.  Unfortunately, very little in the way of prior precedent exists to delineate when and/or how apportionment of harm and comparative fault can be applied.  In fact, a comment to the recently proposed Restatement (Third) of Torts describes this area of the law as “muddled” and “confusing.”

In this case, Deborah Salles-Mayer (hereafter “PLAINTIFF”) suffers from a condition known as bowel ischemia.  PLAINTIFF claims that Dr. Becki S. Hill at the Penn State Milton S. Hershey Medical Center (hereafter “DEFENDANTS”) caused her condition by negligently employing chemoradiation.  The DEFENDANTS claim that Plaintiff caused her own condition by her abuse of cocaine.  For reasons that we will articulate in more detail within the body of this Opinion, we hold that the parties’ arguments must be analyzed under an “apportionment of harm” paradigm.

 

I.        FACTUAL HISTORY

During 2004 and 2005, Plaintiff began experiencing severe problems with her gastrointestinal system, including nausea, bloody stools, weight loss, vomiting and abdominal pain.  During surgery that occurred on November 22, 2004, a surgical team discovered a perforation and inflammatory changes of Plaintiff’s small bowel.  Between December of 2004 and 2006, Plaintiff was admitted to various hospitals and underwent numerous surgical procedures.  Since 2006, Plaintiff has continued to experience significant abdominal pain, explosive diarrhea, and other eating-related symptomology.

Plaintiff’s doctors have diagnosed her with a condition called “bowel ischemia.”  Plaintiff and numerous experts identified by Plaintiff attribute the above-referenced bowel ischemia problems to improper chemoradiation performed by DEFENDANTS between August 15, 2002 and September 30, 2002.  In response, the DEFENDANTS have presented experts who attribute Plaintiff’s bowel ischemia to what they classify as her “prolonged cocaine abuse.”

Once the DEFENDANTS identified their theory of cocaine-induced bowel ischemia, Plaintiff employed a wide variety of legal tactics in an effort to prevent Plaintiff’s cocaine use from becoming a part of the upcoming trial.  The most significant challenge to the DEFENDANTS’ theory of cocaine induced bowel ischemia was a so-called Frye challenge to the scientific reliability of the defense theory.[1]  During the first half of 2011, we conducted two hearings regarding Plaintiff’s Frye challenge.  On April 8, 2011, we issued an Opinion to summarize our evaluation of the extent to which Plaintiff abused cocaine.  Among other things, we concluded that Plaintiff had intentionally attempted to understate her cocaine use.  We determined that between 2000 and 2002, Plaintiff abused cocaine on a regular basis.  However, we also concluded:

Plaintiff’s former life as a “party girl” ended abruptly when she was diagnosed with cancer in 2002.  With the Damocles sword of cancer poised over her head, Plaintiff was quickly transformed from party mode to survival mode.  We conclude that the extent of Plaintiff’s cocaine use decreased dramatically following her cancer diagnosis.

 

(Slip Opinion at pg. 4).

 

After receiving voluminous medical literature from the parties and hearing from expert witnesses, we issued a second Opinion regarding Plaintiff’s Frye motion on June 16, 2011.  We reached the following conclusion based upon the testimony and evidence presented:

Aside from the details of the Level III case studies documented by the articles submitted, almost every piece of literature submitted uses the generally accepted medical concepts outlined above and extrapolates the following theorem:

 

(a)     Cocaine use causes vasoconstriction;

 

(b)     Vasoconstriction reduces the blood flow to bodily organs;

 

(c)     The bowel is a bodily organ;

 

(d)     Reduced blood flow to a bodily organ such as the bowel can lead to ischemia;

(e)     Bowel ischemia can lead to bowel perforation.

 

Therefore, cocaine induced vasoconstriction can lead to the type of bowel ischemia that creates the potentiality for bowel perforation.

 

(Slip Opinion at pg. 20-21) (emphasis in original).

Based upon our analysis of the evidence as outlined above, we concluded:

We have faith that a properly selected Lebanon County jury will focus upon whether Plaintiff’s bowel ischemia was caused by chemoradiation or cocaine use or a combination of the two causative factors.

 

(Slip Opinion at pg. 24).  During the course of the parties’ Frye arguments, the question of comparative fault was raised but not seriously analyzed.  (Slip Opinion at pg. 25-26).

We therefore solicited briefs regarding the question of comparative negligence and causation.  Within the briefs we solicited, Plaintiff cited the concept of apportionment of harm.  Citing the cases of Martin v. Owens-Corning Fiberglass, 528 A.2d 1947 (Pa. 1987), and Lee v. Pittsburgh Corning Corp., 616 A.2d 1045 (Pa.Super. 1992), Plaintiff argued that her harm must be considered “indivisible.”  As such, Plaintiff argued:

There is simply no basis in the evidence the parties will present at trial that would allow a jury to do anything other than speculate concerning apportionment of Plaintiff’s bowel injury between the two asserted causes.  As in both Martin and Lee, it would be an error of law for this Court to instruct the jury to apportion between cocaine and radiation.

 

(Plaintiff’s Brief at pg. 8).

 

In their brief, the DEFENDANTS did not address Plaintiff’s apportionment of harm argument.  Rather, the DEFENDANTS simply asserted that Plaintiff’s use of cocaine was negligence that should trigger applicability of the Pennsylvania comparative negligence statute.  As an alternative, the DEFENDANTS also suggested that Plaintiff’s cocaine use was criminal and should be considered as intentional misconduct so as to preclude Plaintiff from recovering anything.

We have had the benefit of briefs, supplemental briefs and even tertiary briefs from both parties.  We have also received oral argument on two occasions regarding this issue.  We author this Opinion in an effort to sort through the parties’ arguments and establish a paradigm that will govern the parties’ upcoming trial.

II.       DISCUSSION

A.      Introduction

Before we embark upon a discussion of the parties’ dispute, we wish to first emphasize one immutable principle that must serve as a foundation for any decision to be rendered about how the above-referenced case will be tried.  Chemoradiation and cocaine abuse will both be presented to the jury as alternative theories of causation.  We have already spent considerable time and effort addressing Plaintiff’s Frye motion.  We have decided that the DEFENDANTS’ theory of cocaine induced bowel ischemia is a viable one. We will not revisit our prior decision.  More important, we will not hide Plaintiff’s cocaine use from the jury or prevent the DEFENDANTS from presenting what we have already deemed to be a viable defense. 

With the above foundational principle in mind, our research into the parties’ arguments has triggered a multitude of more specific questions that will form the analytical template for today’s decision.  The questions we have identified are as follows:

(1)     What is the difference between the concepts of comparative negligence and apportionment of harm?

(2)     Under the facts of this case, can we apply the principle of comparative negligence?

• Can the Plaintiff’s cocaine use be considered negligence or must it be considered intentional misconduct?

(3)     Does the concept of apportionment of harm apply under the facts of this case?

• Is apportionment of harm governed by the Restatement (Second) of Torts, the Restatement (Third) of Torts or by some other paradigm?

(4)     What are our options in terms of how this case can be tried?

Each of the above questions will be separately addressed.  Thereafter, we will provide the parties with a roadmap for trial within the concluding section of this Opinion.

B.      Difference Between Comparative Negligence and

Apportionment of Harm

 

Comparative negligence is a statutory concept that apportions conduct-based responsibility among concurrently responsible Defendants and/or Plaintiffs.  42 Pa.C.S.A. § 7102.[2]  The concept of comparative negligence applies exclusively to negligence claims.  McMeekin v. Harry M. Stevens, Inc., 530 A.2d 462, 464 (Pa.Super. 1987).

Apportionment of harm is a common law concept that focuses upon the nature and existence of multiple causes for a Plaintiff’s harm.  Recent decisional precedent has relied upon the Restatement (Second) of Torts, § 433A (Apportionment of Harm to Causes), but the concept of apportionment of harm predates the Restatement (Second) of Torts.  For example, in McAllister v. Pennsylvania Railroad Company, 324 Pa. 65, 187 A. 415 (1936), our Supreme Court approved a jury instruction that required a jury to apportion injuries and pain and suffering between two separate accidents based upon “reasonableness and common sense.”  Id.

The distinction between comparative negligence and apportionment of harm was highlighted in the case of Corbett v. Weisband, 551 A.2d 1059 (Pa.Super. 1988).  There, the Court stated:

The primary focus and inquiry in deciding the question of apportionment should not be on the nature of the various tortfeasors’ conduct but rather on the injury and whether, when the injury is a single one, there is any rational basis in the evidence of the record to aid the fact-finder in deciding what portion of fault should be attributed to each of the contributing tortfeasors.

 

Id. at 1079 (emphasis supplied).  The case of Wade v. S.J. Groves and Sons Company, 424 A.2d 902 (Pa.Super. 1981), is also pertinent.  In Wade, the trial court employed the concept of comparative fault.  The Defendant objected on the basis that Pennsylvania’s newly-enacted comparative negligence statute had not yet become effective at the time the cause of action arose.  The Superior Court agreed that the comparative negligence statute did not apply to the case before it.  Still, the Superior Court recognized apportionment of harm as a separate and distinct principle under Restatement (Second) of Torts, § 433A and proceeded to analyze that concept.[3]

Without question, the concepts of comparative negligence and apportionment of harm are different.  Perhaps the key difference between the two concepts is this:  comparative negligence applies exclusively to negligence claims and imposes comparative fault for concurrently careless conduct; apportionment of harm undertakes a comparison of causation between two tortfeasors.  Simplified, comparative negligence deals with negligence elements of duty and breach; apportionment of harm focuses upon questions of causation and is not limited to negligence claims.

C.      Does Comparative Negligence Apply to This Case?

 

The purpose of the comparative negligence statute is to allocate liability among responsible tortfeasors in accordance with their percentages of comparative fault.  Baker v. A.C. and S., Inc., 729 A.2d 1140 (Pa.Super. 1999); Ball v. Johns-Manville Corp., 625 A.2d 650 (Pa.Super. 1993).  A comparison of fault under the comparative negligence statute applies only to those causes of action grounded in negligence and not to liability grounded on other theories.   McMeekin v. Harry M. Stevens, Inc., 530 A.2d 462 (Pa.Super. 1987).  Specifically, when willful or wanton misconduct is alleged, the comparative negligence statute cannot be applied.  Summit Fasteners, Inc. v. Harleysville National Bank and Trust Company, 599 A.2d 203 (Pa.Super. 1991); Krivijanski v. Union Railroad Company, 515 A.2d 933 (Pa.Super. 1986).

We find the case of Krivijanski v. Union Railroad Company, 515 A.2d 933 (Pa.Super. 1986) to be particularly pertinent.  Krivijanski involved an accident that occurred when motorcycle riders trespassed on property belonging to the Defendant.  With respect to a trespasser, a property owner only owes a duty to refrain from willful or wanton[4] misconduct.  Because of this, the jury was asked a special interrogatory to determine whether the conduct of the railroad constituted willful or wanton misconduct.  The jury answered this interrogatory in the affirmative.  As a result, the Court was charged with the responsibility to determine “whether this willful or wanton conduct is a form of negligence under the comparative negligence statute or whether it is a distinct form of conduct to which comparative negligence is inapplicable.”  Id. at 935.  After examining various cases from other states, the Superior Court held “that when willful or wanton misconduct is involved, comparative negligence should not be applied.”  Id. at 936.  The Court stated:

Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the Plaintiff, though realized, is so recklessly disregarded that, even though there is no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of a wrong.  Wanton misconduct…means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow.  It is usually accompanied by a conscious indifference to the consequences.

 

Id. at 937, (quoting in part Prosser on Torts, § 33 at 151 (Second Ed. 1955) and Kasanovich v. George, 34 A.2d 523, 525 (Pa. 1943)).  Ultimately, the Superior Court held that “comparative negligence attempts to balance two equal forms of conduct…[To] involve a comparison of unequal forms of conduct would not fit within [the comparative negligence] scheme.”  Id. at 938.

In this case, the conduct alleged against the Plaintiff and the DEFENDANTS cannot be equated by timing, form, or the required underlying mens rea.  The Plaintiff alleges that the Defendants were negligent because they breached a duty to provide competent and reasonable chemoradiation treatment.  No one has even suggested that Dr. Hill intentionally did something to harm the Plaintiff.  In the parlance of Krivijanski, the Plaintiff alleges “inattention or inadvertence.”

In stark contrast, the Defendants argue that Plaintiff intentionally ingested cocaine.  By definition, possession and consumption of cocaine is an intentional act.[5]   One who ingests cocaine does so at his/her own peril and with a “conscious indifference to the perpetration of the wrong.”  To us, it is intuitively obvious that the intentional act of consuming cocaine constitutes wanton misconduct as opposed to negligence.[6]

In practically every sense, the types of conduct alleged by the parties against one another are “unequal forms of conduct.”  Moreover, the mens rea requirement of carelessness required to support PLAINTIFF’s negligence cause of action is vastly different from the mens rea requirement of intentional conduct required to support the DEFENDANTS’ theory of cocaine usage.  Based upon Krivijanski and its progeny, we hold that the Pennsylvania Comparative Negligence Act cannot be applied to compare the responsibilities of PLAINTIFF and Defendants in this case.

D.      Does Apportionment of Harm Apply Under the Facts

of This Case?

 

With the advent of the Restatement (Second) of Torts, the doctrine of apportionment of harm morphed from one that had been liberally utilized to one that is now only seldom employed.  The newly-promulgated Restatement (Third) of Torts has modified apportionment of harm in a way that will likely liberalize its applicability.  Because the evolution of the apportionment of harm doctrine is important, we will begin our analysis by outlining the history of Pennsylvania jurisprudence regarding apportionment of harm.

1.       Early Common Law Principles

From the very beginning of Pennsylvania tort jurisprudence, causation was always recognized as a boundary to a Plaintiff’s right of redress.  In other words, a Plaintiff’s damages could not exceed compensation for the harm actually caused by the Defendant.  See, e.g., Pierce v. Lehigh Valley Coal Company, 40 Pa.Super. 566, 1909 WL4033 (Pa.Super. 1909).  A Plaintiff was therefore permitted to recover against one tortfeasor even though another may have borne partial responsibility for a Plaintiff’s loss.  North Pennsylvania Railroad v. Mahoney, 57 Pa. 187, 1868 WL7165 (Pa. 1868).  In Pierce, supra, the Superior Court recognized that differentiating causal responsibility for an indivisible harm was difficult, but that did not bar a Plaintiff from recovering against the Defendant to the extent the Defendant caused harm to the Plaintiff.  The Superior Court stated:

The difficulty of separating the damage if any done by the Defendant from that for which others may be responsible is not to be underestimated, but that is not sufficient in itself to justify the denial of the right of recovery in the case of wrongful injury…that the Defendant is not responsible for the wrongful acts of others cannot be questioned…it is the duty of the Plaintiff to introduce evidence to show to what extent the injury complained of was the consequence of the Defendant’s action, but it cannot be expected that this can be done with mathematical exactness…Our conclusion is that the case was for the jury on the question of compensatory damages.

 

Pierce, supra, at W.L. pg. 2.

 

The key pre-Second Restatement case regarding apportionment of harm is the Pennsylvania Supreme Court’s decision in McAllister v. Pennsylvania Railroad, 187 A. 415 (Pa. 1936).  In McAllister, the Plaintiff sued for personal injuries alleged to have been caused by the Defendant Pennsylvania Railroad Company during late 1929.  Six months after Plaintiff’s initial injury, she was involved in a trolley car accident and she initiated suit against Pennsylvania Rapid Tracks and Company as a result of this second accident.  The interplay between the harm caused by Plaintiff’s first accident and the harm caused by her second became the focus of an appeal that proceeded to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court began its analysis by lamenting the fact that Plaintiff’s doctor could not “say with certainty what disabilities of Plaintiff were due to the first accident, and to differentiate them from those ascribable alone to the second accident.”  Id. at 417.  The Supreme Court noted that the Trial Judge instructed the jury “to do the best they could under the circumstances to apportion the injuries and the pain and suffering arising therefrom between the two accidents.”  Id. at 417.  The Trial Judge emphasized to the jury that Plaintiff could recover only for harm actually caused by her first accident and stated:  “Now, in such an apportionment you should use reasonableness and common sense, and we accord you with that, and your best judgment.”  Id. at 417.  The Defendant objected to the Trial Court’s approach as soliciting a “mere guess by the jury.”  Id. at 417.  The Pennsylvania Supreme Court disagreed and stated:

It seems to us that, however desirable it may be wherever possible to segregate with certainty the effects of such similar accidents, it would be unreasonable and impossible to require in every case that it be done with exactitude.  Not always can a conscientious physician state with positiveness what portion of a claimant’s present injuries was the result of a prior accident, and what portion thereof was caused by a subsequent injury aggravating the effects of the first one.  For us to require that this be done would place a premium on false testimony and penalize honest claimants.  While the jury should not be permitted to hazard a guess upon vital issues of a case, nevertheless the difficulty of separating the damages resulting from independent causes will not relieve a defendant from liability if there is evidence upon which…”an approximate separation of such damages from those otherwise sustained” can be made.  The jury must, under such circumstances, determine where the “dividing line” is to be drawn, under careful instruction from the court…

 

“The difficulty of separating the damage from each independent cause may be great, but it does not change the nature of the tortious act of the defendant or relieve him from liability.”

 

Id. at 417-18 (quoting in part Gould v. McKenna, 86 Pa. 297, 303 (1878).

2.       The Second Restatement

          The Restatement (Second) of Torts was promulgated in 1965.  A section of the Second Restatement directly addressed the concept of apportionment of harm.  Restatement (Second) of Torts, § 433A states:

(1)     Damages for harm are to be apportioned among two or more causes where

(a)     there are distinct harms, or

(b)     there is a reasonable basis for determining the contribution of each cause to a single harm.

 

(2)     Damages for any other harm cannot be apportioned among two or more causes.

 

Restatement (Second) of Torts, § 433A.  This section was amplified by § 434 of the Second Restatement, which described the role of the Court in addressing apportionment of harm issues.  Specifically, Restatement (Second) of Torts, § 434 requires a Court to determine whether the Plaintiff’s harm is “capable of apportionment among two or more causes.”  Restatement (Second) of Torts § 434.  With respect to burden of proof, the Restatement (Second) of Torts, § 433B imposes a burden of proof upon the party who seeks to limit his/her liability by alleging that another party is responsible for causing the Plaintiff’s harm.

The official comment to the Second Restatement sections regarding apportionment of harm underscores how difficult the doctrine is to apply.  In particular, when an indivisible harm is created by multiple distinct causes:

[This creates] difficulty in the apportionment of some of the elements of damages, such as the pain and suffering resulting from the two wounds, or the medical expenses…but this does not mean that one defendant must be liable for the distinct harm inflicted by the other…It is possible to make a rough estimate which will fairly apportion such subsidiary elements of damages.

 

Restatement (Second) of Torts, § 433(a) at Comment b (emphasis supplied).  On the other hand, the comment to the Second Restatement also states:

Where two or more causes combine to produce a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, the courts have refused to make an arbitrary apportionment for its own sake, and each of the causes is charged with responsibility for the entire harm.

 

Restatement (Second) of Torts § 433A at Comment i (emphasis supplied).  These two seemingly incompatible statements found within the comment to the same provision of the Second Restatement accentuates the confusion that is generated whenever apportionment of harm is sought.

Since 1965, almost every Pennsylvania appellate decision that has addressed apportionment of harm cites the Second Restatement sections outlined above.  Courts in Pennsylvania have clearly declared that it is the responsibility of the Court to determine whether a harm is “capable of apportionment.”  See Voyles v. Corwin, 441 A.2d 381 (Pa.Super. 1982); Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995).  If and only if a harm is deemed “capable of apportionment” will the jury be permitted to render a decision as to how the apportionment is to be accomplished. Restatement (Second) of Torts § 433A at Comment d; See Lee v. Pittsburgh Corning Group, 616 A.2d 1045 (Pa.Super. 1992).            There is no single test of the ability to apportion harm. 2 Sum. Pa. Jur. 2d Torts, § 20:108 (2d ed.).  However, a series of factors were identified by the Pennsylvania Superior Court in Voyles v. Corwin, supra.  Those factors, commonly referred to as the Voyles factors, include, but are not limited to, the following:

(1)   The nature of the causes of action against each of the parties who are alleged to have caused harm;

 

(2)   Whether the same evidence would support an action against each of the potential causes of harm;

 

(3)   Whether the injury to the Plaintiffs is indivisible in its nature;

 

(4)   Whether the injury is direct and immediate rather than consequential;

 

(5)   Whether the harm was caused at the same time or at different times.

 

Voyles, supra (citing Prosser, Law of Torts, § 46 at n.2 (4^th ed. 1971).  Our appellate courts have specifically rejected the notion that a “bright-line test” exists to determine whether a harm is capable of apportionment.  Glomb, supra at 1366.  A “determination of whether to allow apportionment is entirely a practical inquiry into the circumstances of each case.”  Glomb by Salopek v. Glomb, 530 A.2d 1362, 1366 (Pa.Super. 1987).

In stark contrast to the original approach of Pennsylvania cases as articulated in McAllister v. Pennsylvania Railroad, supra, decisions since the advent of the Second Restatement have been very reluctant to declare a harm to be capable of apportionment:

If two or more causes combine to produce a single harm which is incapable of being divided on a logical, reasonable, or practical basis, and each case is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made.

 

Capone v. Donovan, 480 A.2d 1249, 1251 (Pa.Super. 1984).  From a general sense, our appellate courts have recognized that personal injuries are usually “incapable of division.”  Glomb, supra; Capone, supra.

The PLAINTIFF in this case relies heavily upon two so-called “asbestos cases” in which the Plaintiff’s lung condition was alleged to have been caused by both smoking and asbestosis.  In Martin v. Owens-Corning Fiberglass, 528 A.2d 947 (Pa. 1987), a plurality[7] of the Pennsylvania Supreme Court determined that when a jury was provided no guidance in determining the relative contributions of asbestos exposure and cigarette smoking, and when in fact two experts explicitly testified that such a determination was not possible, the Trial Court erred by presenting the issue of apportionment to the jury because any such apportionment would necessarily have been the product of speculation.  Id. at 950-51.  Similarly, in Lee v. Pittsburgh Corning Group, 616 A.2d 1045 (Pa.Super. 1992), a two to one majority of a three Judge Superior Court panel held that it was error to allow a jury to apportion harm when the Plaintiff’s expert testified that Plaintiff’s lung cancer was caused entirely by asbestos exposure and the Defendant’s expert testified it was caused entirely by cigarette smoking.  Without any evidentiary basis upon which to apportion harm, the Superior Court held that it was reversible error for the Trial Court to ask a jury to apportion the Plaintiff’s injury between the two potential causes.

It is clear that the above-referenced Pennsylvania decisional precedent has made it more difficult to employ apportionment of harm as a tool to measure causation.  Prior to the Second Restatement, Pennsylvania appellate courts permitted apportionment “not with absolute exactitude, but at least with reasonable approximation.”  McGuire v. Hamler Coal Mining, 49 A.2d 396, 397 (Pa. 1946); McAllister, supra.  Since the adoption of the Second Restatement, cases have rejected apportionment of harm unless there is expert testimony to guide a jury in how the harm can or should be apportioned.   See, Lee, supra; Martin, supra.  In 1936, the Pennsylvania Supreme Court apportioned harm even though it recognized that “a conscientious physician” would not be able to “state with positiveness what portion of [a] claimant’s present injuries was the result of a prior accident and what portion thereof was caused by a subsequent injury…”  McAllister, supra, at 417.  Now, expert testimony to a reasonable degree of medical certainty seems to have become a predicate to apportionment of harm.  Lee, supra; Martin, supra.  Stated simply, since the Second Restatement was promulgated, it has become more difficult to apportion harm by causation.

3.       The Third Restatement

          In 2000, the Third Restatement was promulgated to supersede the Second Restatement.  The authors of the Third Restatement explicitly recognized the difficulty that Courts experienced when attempting to apply the doctrine of apportionment of harm.  See comment to Restatement (Third) of Torts (Apportionment of Harm) § 26.  Possibly as a result, the Third Restatement is far more detailed regarding apportionment of responsibility than was the Restatement (Second) of Torts.

The Third Restatement includes an entire chapter on apportionment of liability.  Section 26 of this chapter sets forth the pertinent general rule regarding apportionment of harm by causation. That section reads:

§ 26.  Apportionment of Liability When Damages Can Be Divided by Causation.

(a)     When damages for an injury can be divided by causation, the factfinder first divides them into their indivisible component parts and separately apportions liability for each individual component under topics 1 through 4.

 

(b)     Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:

 

(1)     that any legally culpable conduct of a party or another relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and

 

(2)     the amount of damages separately caused by that conduct.

 

Otherwise, the damages are indivisible and thus the injury is indivisible.  Liability for an indivisible is apportioned under topics 1 through 4.

 

Restatement (Third) of Torts § 26 (2000).  The Official Comment to this section reveals the intent of the section to create a two step test to be employed by the finder of fact.  The first step of the test requires a factfinder to divide damages into component parts.  The second step requires the factfinder to apportion liability for each component.  Moreover, Comment f to Section 26 states:

Whether damages can be divided by causation is a question of fact.  The fact that the magnitude of each indivisible component part cannot be determined with precision does not mean that the damages are indivisible.  All that is required is a reasonable basis for dividing the damages.

 

Restatement (Third) of Torts § 26 Comment f (emphasis supplied).

With respect to indivisible harm caused by two factors – which is a likely scenario created by this case – the Apportionment of Harm section of the Third Restatement refers us to “Topics 1 through 4.”  We have reviewed all of those topics.  Topic 2 is entitled “Liability Of Multiple Tortfeasors For Indivisible Harm.”  Track E of Topic 2 addresses Hybrid Liability based on Types of Damages and Section E19 specifically states:

(a)     When plaintiff may recover only economic damages for an indivisible injury and at least one defendant and one other party or settling tortfeasor may be found by the factfinder to have engaged in tortious conduct that was a legal cause of the plaintiff’s injury, each such party and settling tortfeasor is submitted to the factfinder for assignment of a percentage of comparative responsibility.

 

(b)     When plaintiff may recover noneconomic damages and at least one defendant and one other party, settling tortfeasor, or identified person may be found by the factfinder to have engaged in tortious conduct that was a legal cause of the plaintiff’s injury, each such party, settling tortfeasor, and identified person is submitted to the factfinder for assignment of a percentage of comparative responsibility.

 

Restatement (Third) of Torts, Apportionment of Liability § E19 (2000).  Unlike other sections of Topic 2 that apply exclusively to multiple Defendants, the comment to Section E19 clearly articulates that “the term ‘party’…includes plaintiffs.”  Id. at Comment b.

Having reviewed the entirety of the Restatement (Third) of Torts regarding apportionment of harm, we reach two conclusions:

(1)     There is a clear preference in the Restatement (Third) of Torts that causal responsibility be apportioned in accordance with each party’s percentage of causal responsibility; and

(2)     The Restatement (Third) of Torts imposes more responsibility to determine apportionment of harm upon a jury than does the current state of Pennsylvania law.

By virtue of the above, we conclude that an application of the Restatement (Third) of Torts to the facts of this case would permit us to ask a jury to apportion a percentage of causation to both the DEFENDANTS and the PLAINTIFF.

As of this point in time, no provision of the Restatement (Third) of Torts – including provisions relating to apportionment of harm – has been adopted by Pennsylvania’s Supreme Court.  However, the Third Circuit Court of Appeals has predicted that Pennsylvania will eventually adopt the Restatement (Third) of Torts.  See, e.g., Berrier v. Simplicity Manufacturing, 563 F.3d 88, 57 (3^rd Cir. 2009).  It remains to be seen whether Pennsylvania will eventually adopt the Restatement (Third) of Torts chapter dealing with apportionment of harm.

4.       Application of Apportionment of Harm

Unfortunately, very little decisional precedent exists to guide us with respect to how or when the principle of apportionment of harm should be employed.  The Official Comment to Section 26 of the newly-promulgated Restatement (Third) of Torts (Apportionment Of Liability) highlights this paucity of case law and states:

Some courts “muddle” through these cases by using comparative-responsibility percentages to make what appears to be an apportionment based on causation.  Other courts seem to divide the damages by causation, without any reference to apportioning responsibility among multiple causes of the component parts.  Some courts appear to be oblivious to the difference between apportioning liability based on causation and based on responsibility.  Still other courts seem to suggest that division by causation and apportionment by responsibility are two separate steps.  However, few if any cases provide much analysis.

 

Restatement (Third) of Torts (2000), § 26 Reporter’s Note Comment a (citations omitted).

Notwithstanding the confusion exhibited by some Courts regarding apportionment of harm, we view apportionment of harm by causality as an established concept that provides the appropriate analytical template to compare the responsibility of PLAINTIFF and the Defendants in this case.  Put in the parlance of the legal principles outlined above, Defendants’ alleged negligence and Plaintiff’s alleged intentional use of cocaine create two separate potential causes of the harm from which Plaintiff now suffers.  As such, the analytical paradigm of apportionment of harm applies even though the concept of comparative negligence does not.

E.      Options For Conducting Trial

If a jury finds liability and causation on the part of both Plaintiff and the DEFENDANTS, the following questions are triggered:

(1)     Is Plaintiff’s bowel ischemia condition an indivisible or divisible harm?

(2)     Can a percentage of causality be assigned to both Plaintiff and the DEFENDANTS?

(3)     If a causality percentage cannot be determined, how are Plaintiff’s damages to be assigned between the parties?

Were we to decide these questions based upon the Restatement (Third) of Torts or even the early legal principles articulated in McAllister and its progeny, we would not hesitate to ask a jury to determine a percentage of causal responsibility.  Unfortunately, the case law that has evolved since the creation of the Restatement (Second) of Torts causes us to question whether it is legally possible for us to ask a jury to apportion causality on a percentage basis.  In particular, Martin and Lee give us great pause.

So now what do we do?  As we weigh our options, our first step will be to list several key fundamental conclusions we have identified based upon our research:

(1)     The Comparative Negligence Act does not apply under the facts of this case.

(2)     An analytical template for evaluating the respective responsibilities of Plaintiff and DEFENDANTS exists through a comparison of causation conducted under the umbrella of the apportionment of harm doctrine.

(3)     We have already determined that Plaintiff’s theory of chemoradiation negligence and the Defendants’ theory of cocaine-induced bowel ischemia will both be presented to the jury.

These fundamental conclusions will practically preordain how trial will have to commence.  Specifically, we will have to bifurcate the above-referenced trial.  The first portion of the trial will focus upon the Plaintiff’s theory of negligence against the Defendants and the Defendants’ theory of cocaine-induced bowel ischemia proffered against the Plaintiff.  The jury will then be asked via interrogatories whether the Plaintiff has proven its allegations of negligence and whether the Defendants’ negligence was a factual cause of the Plaintiff’s harm.  Simultaneously, the jury will be asked whether the Defendants established a cause of action for wanton misconduct and whether such misconduct was a factual cause of Plaintiff’s own harm.

Our second step will be to identify options in the event that a jury finds liability on the part of both the Plaintiff and the Defendants and if a jury determines that both proffered theories of liability were causes of Plaintiff’s harm.  The options we perceive are as follows:

(1)     We can require the Defendants to pay the entire amount of Plaintiff’s harm notwithstanding the fact that some of that harm was caused by cocaine.

(2)     We can prevent the Plaintiff from recovering anything at all based upon her own misconduct even though the Defendants’ negligence was deemed to be a factual cause of her harm.

(3)     We can order that PLAINTIFF’s harm be divided on an equal basis between the PLAINTIFF and the Defendants.

(4)     We can require a jury to apportion a percentage of harm between the PLAINTIFF and the Defendants in accordance with their percentage of causal responsibility.

We will briefly discuss each option below:

1.       Full Recovery by PLAINTIFF

Under the theory of joint and several responsibility, any responsible Defendant can be required to pay one hundred percent of a Plaintiff’s harm notwithstanding the existence of other responsible Defendants.  PLAINTIFF asks us to employ this theory in order to require the Defendants to pay the entirety of her harm notwithstanding the existence of any other causes.

From a visceral sense, this approach strikes us as unjust.  If in fact a jury determines that PLAINTIFF’s intentional conduct contributed to her own harm, any ultimate verdict should reflect that fact.  To hold otherwise would be unfair.  In addition, joint and several liability traditionally applies to multiple defendants and not to a comparison of responsibilities between a plaintiff and a defendant.

2.       PLAINTIFF Recovers Nothing

The Defendants argue that it would be inappropriate to compare the PLAINTIFF’s wanton misconduct with negligence on the part of the Defendants.  As the Defendants see things, intentional misconduct by the PLAINTIFF that caused even a portion of her own harm will preclude any recovery whatsoever.  Defendants rely upon case law that distinguishes wanton misconduct from negligence.  Most of these cases hold that a plaintiff’s contributory negligence will not bar recovery from a defendant who was guilty of wanton misconduct.  See, e.g., Fugagli v. Camasi, 229 A.2d 735 (Pa. 1967); Stubbs v. Frazer, 32 Pa. D. & C. 3d 495 (1981) aff’d at 454 A.2d 119 (Pa.Super. 1982).  We were not able to find any decisions that prevent an apportionment of harm between a negligent defendant and a wanton plaintiff.

We view the Defendants’ argument in favor of no recovery to be unfair to a degree equal to the PLAINTIFF’s argument in favor of full recovery.  If a jury finds that almost all of the PLAINTIFF’s condition was created by the Defendants’ negligence, it would be unfair to totally preclude recovery simply because PLAINTIFF’s cocaine use contributed in some small way to her present condition.

3.       Equal Responsibility

There is at least some logic to the notion that if two parties are found to be responsible for a single harm, each should be equally responsible for damages flowing from that harm.  This approach of “equity equals equality” was referenced in the Restatement (Second) of Torts § 886A, Contribution Among Tortfeasors.  Id. at Cmt h.  At least in Virginia, where there is a single indivisible harm and two wrongdoers are responsible for the entire harm, each is deemed to be equally responsible for any resulting damages.  In Sullivan v. Robertson Drug Company, 639 S.E.2d 250 (Va. 2007), the Virginia Supreme Court held that when injuries are indivisible and “not susceptible to apportionment,” it would be error to ask a jury to assign a percentage of responsibility to each. The Court determined that in such a circumstance, both responsible tortfeasors should be responsible for fifty percent of the Plaintiff’s damages.  While Sullivan involved apportionment of harm between two Defendants and not between a Plaintiff and a Defendant, it nevertheless stands for the principle that when a single indivisible harm occurs, two parties responsible for said harm should divide responsibility equally and not in accord with some difficult to discern percentage.

4.       Determine Percentage of Causal Responsibility

As noted above, apportionment by a percentage of causality is preferred under the Restatement (Third) of Torts.  Under this approach, a jury is required to evaluate all of the evidence presented in order to determine a percentage of causality applicable to all causally responsible parties.

To be sure, it may be difficult for a jury to apportion a percentage of causality for PLAINTIFF’s bowel ischemia condition.  However, the entire American judicial system is premised upon the belief that juries are able to make difficult decisions.  Every day in courts across America, juries render arduous decisions without specific factual guidance.  For example, juries in Pennsylvania are required to award monetary damages for pain, suffering, inconvenience, etc., without being given any guidance by the parties or the Court as to amounts.   Similarly, juries are often required to assign percentages of negligence under a comparative negligence statute without specific expert testimony to guide them with respect to said percentages.  In a criminal context, juries make the incredibly consequential decision of whether aggravating factors outweigh mitigating factors for purposes of determining whether a Defendant should be put to death.  To us, it is incongruous to assume that juries cannot make an appropriate decision regarding a percentage of causality in a case such as the one at hand.

As is probably apparent from our description of options, we view Option Number 4 (Determine Percentage of Causal Responsibility) to be the most just.  Apportioning harm by causal responsibility empowers a jury to decide whether cocaine abuse and/or chemoradiation was primarily or peripherally responsible for PLAINTIFF’s condition.  Moreover, such apportionment would hold the Defendants accountable for only harm they actually created, thus upholding a fundamental precept of Pennsylvania personal injury jurisprudence – i.e., that a defendant should only be responsible for the harm that he/she actually caused.

The innate advantage of assigning percentages of causal responsibility was recognized in McMeekin v. Harry M. Steven, Inc., 530 A.2d 462 (Pa.Super. 1987).   McMeekin involved a suit for injuries stemming from a collapsing chair.  The Plaintiff successfully sued the owner of the chair in negligence and the manufacturer of the chair using a theory of strict product liability.  At trial, the Court asked the jury to apportion causal responsibility between the two Defendants and the jury assigned seventy percent to the chair’s owner and thirty percent to the manufacturer.

The Superior Court began its analysis by acknowledging that the jury’s apportionment of causal responsibility could not be supported by the Comparative Negligence Act because the chair manufacturer’s liability was not predicated upon negligence.  Relying upon the Uniform Contribution Among Joint Tort-feasors Act, the Superior Court recognized that one tortfeasor has a right of contribution against another.  The Court stated:  “[I]t would be unfair to impose the financial burden of the plaintiff’s loss on one tortfeasor to the exclusion of another.”  Id. at pg. 465.

Even though the Uniform Contribution Among Joint Tort-feasors Act did not specifically mention an assessment of percentage causality, the Superior Court upheld the Trial Court’s decision to solicit such percentages from the jury:

We are left with the final determination which has previously not been decided by an appellate court in this state; that is, whether in assessing contribution between a negligent and a strict liability tortfeasor, apportionment should made on a pro rata ^FN or comparative percentage basis.

 

FN.  Pro rata has generally been interpreted to mean division proportionately in accordance with the number of tortfeasors.  The theory is explained in comment h to the Restatement, Torts 2d 886A.  See pages 467-468, infra.

 

As we stated earlier, contribution is based on equitable principles. It would appear to be less than equitable to require a fifty-fifty apportionment when the facts, as determined by a jury, clearly established that one of the joint tortfeasors had greater responsibility for causing the harm than the other.  Appellee refers to the dissent by Wieand, J., in Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), and a statement in Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986) to bolster its argument that by enacting the Comparative Act in 1976, Pennsylvania adopted a system of comparative fault apportionment.  Pachesky is not relevant as it deals purely with negligence and contributory negligence between a plaintiff and defendant; in Dambacher, the majority never reaches the issue.

 

In light of our discussion, it appears most appropriate to view this matter as one of comparative contribution once joint liability has been ascertained…

 

From the enactment of the Comparative Act, we can assume the legislature intended both a move away from the common law restrictions imposed by the doctrine of contributory negligence as it applied to plaintiff and tortfeasor, as well as contribution between joint tortfeasors.  While we see limitations in applying the Comparative Act under the facts of this case as discussed above, we do not believe the same strictures apply to the Uniform Act.  As between joint tortfesors, no damage is done to the expressed doctrine of comparative negligence and the distinct doctrine of strict liability in applying a concept of comparative contribution as founded on a factual determination of percentage liability.  It is difficult to express a concept which has so many similarities to comparative negligence that it appears to be a play on words with differences only in semantics.  However, we cannot ignore the clear legislative mandate as expressed in the language of the Comparative Act, and the equally clear distinctions between “negligence” and “strict liability” expressed by our Supreme Court.  See Lewis, Azzarello and Berkebille, supra. Since Svetz permits the finding of contribution between negligent and strict liability tortfeasors, there appears to be no impediment to percentage contribution if permitted by the Uniform Act.  This does not conflict with Lewis, Azzarello and Berkebille, as they govern the relationship between a plaintiff and a tortfeasor, and not that between joint tortfeasors.  The problem as to when and how the percentage apportionment shall be determined is rather one of procedure and practice…

 

There are two recognized methods for assessing the equitable shares of the joint tortfeasors.  The first method, still followed by a majority of the courts, derives from contribution among sureties and the maxim that “equality is equity,” and provides that the tortfeasors who are liable will end by paying equal shares…

 

The second method, followed by a growing number of states, provides that contribution is based according to the comparative fault of the tortfeasors…This method seems fairer and more equitable but administration is somewhat more difficult, since percentages of fault must be ascertained.  It fits particularly in a state that has adopted the rule of comparative negligence and is, indeed, almost required for the effective administration of that rule, so that the negligence of the plaintiff can also be apportioned into the total amount of negligence of all the parties.  It is sometimes called comparative contribution.

 

The second method suggested in Comment h appears particularly appropriate here in light of the facts of the case.  As Judge Rodgers stated in his Opinion:

 

The question remains as to whether such contribution shall be on an equal or a comparative basis.  It seems clear that comparative apportionment achieves a fairer and more equitable result.

 

McMeekin v. Harry M. Stevens, Inc., supra at 466-68.

 

We agree with the reasoning of the Superior Court in McMeekin.  In almost every way, comparative apportionment “achieves a fairer and more equitable result” than the other options available to us.  Accordingly, if it is at all possible, we will ask a jury to apportion a percentage of causal responsibility between Defendants’ negligence and PLAINTIFF’s wanton misconduct.

Fortunately, we do not have to make a final decision today about whether a jury will be asked to apportion causation by percentage.  Regardless of which template we choose to effectuate an apportionment of PLAINTIFF’s harm, a decision regarding causal apportionment must wait until after the jury has rendered a decision regarding liability and causation.  Under Voyles, and even under Martin and Lee, the decision of whether or not to apportion harm by percentage based upon causation can only be made after the jury and the Court have been able to evaluate all of the evidence relevant to causation that the parties will present.  Therefore, the questions of whether PLAINTIFF’s bowel ischemia condition constitutes a divisible or indivisible harm, and the question of whether such harm is capable of apportionment between the two potential causative factors will be deferred until after the jury has rendered a verdict regarding liability and causation with respect to both parties.

III.      CONCLUSION

Based upon the above, the procedure governing trial in the above-referenced case will be as follows:

(1)     The first phase of trial will focus upon four questions:

(a)     Were the Defendants negligent in providing chemoradiation treatment to the PLAINTIFF?

(b)     If the Defendants were negligent, was their negligence a factual cause of PLAINTIFF’s harm?

(c)     Was the PLAINTIFF guilty of wanton misconduct for utilizing cocaine?

(d)     If the PLAINTIFF committed wanton misconduct, was such conduct a factual cause of her own harm?

(2)     Following the verdict of the jury regarding the four questions outlined above, we will meet with counsel.  If the jury has answered each of the above four questions in the affirmative, we will entertain argument from counsel relative to the apportionment of harm principles and options outlined previously in this Opinion.  Following argument, we will render a final decision as to how trial will proceed.

(3)     The second phase of trial will focus upon the issue of PLAINTIFF’s damages.  If we determine that apportionment of harm by causality should be decided by the jury, we will include an instruction to this effect within the second phase of trial.

Because it appears to us as though the parties have not heretofore focused upon the issue of apportionment of harm by causality, we will reopen discovery for a period of ninety days for the sole and limited purpose of permitting both parties to produce additional or supplemental expert reports relating to the issue of causation.[8]  Specifically, we encourage both parties to engage in an inquiry with appropriate expert witnesses with respect to the question of whether or to what extent PLAINTIFF’s medical condition can be ascribed to both potential causative factors that have heretofore been identified by the parties.  So that we are clear, it is not our intent to reopen discovery for purposes of depositions, interrogatories, etc.  Rather, we reopen discovery only so that the parties can produce supplemental expert opinions that may be required as a result of the contents of this Opinion.

An Order consistent with all of the above will be entered this date.