Tort reform bill sparks filings
By Steve Schultze and Jason Stein
Milwaukee Journal Sentinel
Jan. 25, 2011
With Gov. Scott Walker poised to sign into law broad new protections from lawsuits for businesses, plaintiffs' attorneys are hustling to file personal injury cases before the measure takes effect.
The bill approved by the Legislature on Thursday would limit punitive damages in personal injury lawsuits and damages for pain and suffering in medical malpractice cases involving nursing homes. That's left lawyers looking to make sure their clients aren't limited in collecting those.
"You have to protect your clients' rights based on whatever investigation you've done to date," said Rob Jaskulski, an attorney who filed a case for a client on Thursday - one of a number of cases that he said are being filed by his prominent firm Habush, Habush & Rottier.
Adding to the rush is the fact that provisions in the bill apply to all plaintiffs who file lawsuits after the legislation takes effect, even in cases where the plaintiffs were injured before the approval of the bill. Walker called for the bill to help spur the state's economy, and aides said the Republican governor is expected to sign it sometime next week, with the measure taking effect within 10 days of being signed.
In one prominent case, lawyers for the families of the victims of the June 24 collapse of a 13-ton panel from Milwaukee County's O'Donnell Park garage filed suit last week against four contractors.
Had they waited until Walker signed the measure into law, it could have hurt their cases and ability to get punitive damages for the families of 15-year-old Jared Kellner, who died in the panel collapse, and Amy Wosinski, who lost part of her leg.
The bill would limit noneconomic damages for medical malpractice in nursing homes to $750,000; limit punitive damages to $200,000 or double the amount of compensatory damages, whichever is greater; prevent reports by state regulators from being used in civil and criminal cases; and raise the standards for qualifying those who give court testimony as experts.
Bill Smith, state director of the National Federation of Independent Business, said the bill put Wisconsin in line with most states in "restoring a litigation climate that is predictable."
Smith, who is also the president of the Wisconsin Civil Justice Council, said the hustling attorneys appear to be trying to do what they feel is appropriate in their cases. "Obviously, it's an attempt to beat the clock," he said.
Mike End, president of the similarly named Wisconsin Association of Justice, which represents plaintiffs' attorneys, also expected more cases in the next few days - End himself was planning to file a case Friday for a client.
In Milwaukee County at least, filings of tort cases are up modestly this month over January 2010, Circuit Court Clerk John Barrett said. A total of 36 personal injury and other tort lawsuits were filed this month, compared with 28 for the same part of January a year ago, Barrett said.
Court challenge likely
End said he expected a constitutional challenge to the provision in the bill that would have it apply to cases of plaintiffs who have been already injured but who won't file their cases until after the measure takes effect. He cited several past cases including a 2001 state Supreme Court decision in which the court found that injured plaintiff David Matthies could sue for full damages available under the law at the time he was injured, despite the fact that the Legislature had changed the law to limit those damages by the time he filed his lawsuit.
Walker spokesman Cullen Werwie said Walker's advisers are "confident that the tort reform bill would survive a legal challenge to its application in new lawsuits."
In the O'Donnell Park cases, attorneys William Cannon and Timothy Andringa filed their nearly identical lawsuits in Milwaukee County Circuit Court accusing contractors of knowing that 70 precast panels couldn't be attached properly to the structure and that they hid or misrepresented the panel defects.
Defendants in the case are Advance Cast Stone of Random Lake, J. H. Findorff & Son Inc. of Madison, C.D. Smith Construction of Fond du Lac, and Dietz Drafting and Design of Burlington.
Gary Smith, president and CEO of C.D. Smith, said in an e-mail that his firm poured a concrete wall according to a design provided by the county. The other firms have denied wrongdoing or have declined to comment.
Cannon questioned why Walker would advocate for the lawsuit restrictions when as Milwaukee County executive he said he hoped to join with the Kellner family in a possible lawsuit aimed at the companies at fault.
Dawn Kellner, Jared's mother, told a legislative committee this month that the O'Donnell Park panel collapse "is what happens when profits are put over safety, and my son paid the ultimate price." She argued that the absence of a cap on punitive damages helps ensure companies don't cut corners.
Werwie said that Walker sympathizes with the families of the O'Donnell victims and abused patients and that the legislation wouldn't limit other types of damages that might be ordered.
However, Werwie said: "We are not going to further politicize these events or the victims who have suffered as a result of these incidents."
The effect of the accident on the Wosinski family of East Troy has been extreme, Andringa said. "Words just cannot describe the emotional trauma this family has endured," he said.
Amy Wosinski has undergone several surgeries and will be fitted with a prosthetic limb, he said. She lost her job in a bank after the accident.
Her son, Eric, broke his leg when the panel fell, Andringa said. Steven Wosinski Sr. wasn't physically injured but witnessed the terrible results of the panel dropping from the side of the parking structure as the Wosinskis and Kellner were walking to Summerfest.
The Wosinski family has also been in therapy to deal with the emotional harm, Andringa said.
The lawsuit reform law likely won't affect a potential case by the parents of Cindy Anczak, a 33-year-old woman who died from complications of starvation after a stay at the county's Mental Health Complex in 2006, said Robert Pledl, an attorney for the Anczak family.
Pledl has filed a notice of claim - a precursor to a lawsuit - with the county on behalf of Cindy Anczak's parents, Myron and Jean Anczak of Greenfield. Pledl said a federal lawsuit was still possible, which would not be subject to any restrictions in state law.
Patrick Marley of the Journal Sentinel staff contributed to this report.