Victims challenge tort reform

By Tony Galli

Jan. 11, 2011

MADISON (WKOW) -- Proposed reform in civil liability law is being labeled by critics as leaving the victims of negligent business practices, or even the victims of drunk drivers without options.

Governor Walker and other supporters of the proposal said changes would bring Wisconsin's civil legal standard into line with the majority of other states and remove fear of the crippling effect of the threat of lawsuits against businesses in the state.

"Just one baseless lawsuit can bankrupt a small business, putting people out of work," Bill Smith of the National Federation of Independent Business told lawmakers during a hearing on the proposal.

But Christine Larson of West Bend argued against a higher standard for businesses to be held liable for punitive damages. Larson said such a standard may have prevented compensation when nursing home staff failed to respond with insulin when her 26-year old daughter's blood sugar levels soared dangerously high.

"She died at the hospital.They did not follow simple guidelines."

Paul Jenkins of Oconomowoc said his stepdaughter's case highlighted the downside of the proposal's impact in drunken driving cases. Jennifer Bukosky, her unborn child and her ten year old daughter were all killed in Waukesha County in 2008 when rear ended at high speed by a repeat, intoxicated offender. As the result of a civil suit, punitive damages were awarded to survivors.

"This bill, as I read it, would serve to make it virtually impossible to obtain damages from those events."

"This bill was not intended to make it lighter on drunk drivers," said Governor Walker's chief legal counsel Brian Hagedorn.

Lawmakers acknowledged the bill specifies the fact of being intoxicated could not be used to avoid civil responsibility.

Hagedorn said drunk driving victims have other available remedies as well.

"Namely, restitution in the criminal justice system."

Robert Kraig of Citizen Action of Wisconsin said the proposal's call for a responsible party having had to have intent to harm in order for punitive damages to be awarded a standard that unreasonably protects business. Kraig also questioned the economic benefit of any change in the litigation culture and said proposed changes had been launched to cater to special interests under "the rubric of jobs."

A provision of the proposal would bar prosecutors from bringing criminal charges against a caretaker if the person was operating within the scope of one's job.  Backers said the element was included to address the 2006 conviction of former St. Mary's Hospital nurse Julie Thao after Thao's administration of the wrong drug caused the death of a teenager in labor.

Hagedorn said several of the evidence standards proposed in the tort reform had already been adopted federally.

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