Civil Justice

While Wisconsin generally ranks well among the states regarding our litigation climate, Wisconsin businesses had been potentially vulnerable to a litigation onslaught in both products liability and negligence cases.

Wisconsin generally ranks well among the states regarding our litigation climate.  During the 2011 legislative session, WMC worked to ensure passage of broad-based civil justice reform protecting businesses from a potential litigation onslaught in both products liability and negligence cases.  Adopted as 2011 Act 2, these reforms include:

• Placing a cap on punitive damages of $200,000 or two times compensatory damages, whichever is greater.
• Requiring proof of a “reasonable alternative design” to prove a defective design rather than the “consumer expectation” test imposed by an activist court in 2005.
• Limits liability for manufacturers, distributers, sellers, or promoters only if the injured party proves the specific product that caused the injury was manufactured, distributed, sold, or promoted by the defendant.
• Adopting the Daubert standard for expert testimony in state courts, requiring such testimony is the product of reliable methodology and is based on sufficient data.  This standard is used by the federal courts and most states.
• Limiting frivolous lawsuits by holding a party potentially liable for costs and fees for bringing a claim that is done solely to harass or maliciously injure another party.

Other reforms adopted in the 2011-12 legislative session included:

• Removing punitive and compensatory damages provided under the WFEA.  Other remedies to an employee remain in place, including reinstatement, up to two years of back pay, and court costs.
• Protecting property owners from trespasser liability by stating in statute that a duty of care is not owed by a property owner to a trespasser.

2013 Goals

• Provide transparency of personal injury trust claims made against certain bankruptcy trusts and in the tort system.  Solvent defendants have been unfairly saddled with a larger share of the liability, draining trust funds away from deserving clients.
• Provide transparency in government contingency contracts.  Require the state to make a written determination that outside representation is cost-effective and in the public good and ensure that government attorneys maintain control of the litigation.   Post online the contingency fee contract, payments made under the contract, and the state’s determination on the need for outside counsel.
• Adopt the collateral source rule, which eliminates the presumption that the amount billed for medical expenses states the reasonable value of health care services and that the services provided are reasonable and necessary.  Instead, allow the admission of collateral source payments and the admission of evidence of the injured person’s resulting obligations or reimbursement.
• Protect statements of apology by health care providers to patients and families from being used in a lawsuit.
• Remove felony convictions as a protected class under the Wisconsin Fair Employment Act (WFEA).  Other protected classes include race, gender, creed, and veteran status.
• Reverse the Jandre decision to avoid the increased use of defensive medicine.  The state Supreme Court ruled in 2012 that a physician’s duty of informed consent is determined on a case-by-case basis using a “reasonable patient” standard by asking what a reasonable person in the patient’s position would want to know to make a decision about the choices of treatment.

Staff Contact: Jason Culotta   Follow Jason @JGCulotta