2011-12 Legislative Highlights
In one of his first efforts at governing, Governor Scott Walker proposed and the Legislature adopted significant changes to Wisconsin's civil justice system. The legislation is enbodied in 2011 Wisconsin Act 2. It was published on January 31 and went into effect on February 1, 2011.
The Wisconsin Association for Justice opposed this repressive legislation along with a number of other groups listed below.
Groups Opposed to Parts or All of 2011 Wisconsin Act 2
- Wisconsin District Attorney’s Association
- Wisconsin Judicial Conference
- AARP of Wisconsin
- Coalition of Wisconsin Aging Groups
- Wisconsin Alliance for Retired Americans
- Alzheimer’s Association
- Disability Rights Wisconsin
- Brain Injury Association of Wisconsin
- Wisconsin Council on Children and Families
- Wisconsin State AFL-CIO
- Wisconsin Coalition Against Domestic Abuse
- Wisconsin Coalition Against Domestic Violence
- Wisconsin Farmers Union
- State Bar of Wisconsin
- Citizen Action of Wisconsin
- Wisconsin Association for Justice
Before the public hearing on January 11, a press conference was held with some of groups as well as citizens who would be negatively impacted by the new law. WisconsinEye carried both the press conference and public hearing.
Here are some of the major provisions of the law.
Nursing Home Residents At Risk of Abuse
2011 Wisconsin Act 2 puts nursing home residents at risk of abuse in the following ways:
- All nursing homes will be able to hide reports about neglect and abuse of patients and residents and can never be used in any civil or criminal case;
- Statements made by employees to state investigators are kept secret and can never be used in a civil or criminal case;
- A limit of $750,000 for pain, suffering, disability, grief, loss of dignity, shortened life, etc. and limit on a spouse’s claim for loss of society and companionship caused by a nursing home’s neglect and abuse.
Changes in Evidence Standards at Trial
2011 Wisconsin Act 2 adopts Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) for the admissibility of expert and lay witnesses.
- A lay witness’ testimony may not be based on scientific, technical or other specialized knowledge;
- Expert’s opinion must be limited to testimony that is based on sufficient facts or data, the product of reliable principles and methods, and application of reliable principles and methods to the case.
- Prohibits expert testimony compensation dependent on the outcome of a case;
- Underlying facts or data that are otherwise inadmissible may not be disclosed to the jury unless the court determines that their value in assisting the jury outweighs their prejudicial effect.
Punitive Damages Capped
2011 Wisconsin Act 2 caps punitive damages at 2 times compensatory damages or $200,000, whichever is greater. People under the influence of intoxicants are exempt from the cap.
Product Liability Changes to Protect Foreign Manufacturers
2011 Wisconsin Act 2 ends the consumer contemplation test for strict liability claims. It establishes new criteria to determine if a product manufacturer, distributor, or seller is liable to a person injured by the manufactured product based on a claim of strict liability, making it more difficult to hold a distributor or seller accountable for a dangerous or defective product. It includes several new defenses and a 15-year limit on holding the manufacturer of a defective product accountable. It also overrules Fuchsgruber v. Custom Accessories, 2001 WI 81, 244 Wis. 2d 758, 628 N.W.2d 833, replacing it with a rigorous formula where a product defendant percentage of negligence is multiplied with the causal responsibility of the product to equal a product defendant’s causal liability of damages to the plaintiff.
2011 Wisconsin Act 2 changes the rules for risk contribution as identified in Thomas v. Mallett, 2005 WI 129, which involved lead paint manufacturers.
Damages for Frivolous Claims
2011 Wisconsin Act 2 holds a party or his attorney liable for costs and fees for beginning, using, or continuing an action if it done solely for harassment or maliciously injuring another party and there is no reasonable basis in the law for the conduct, or no good faith argument for an extension, modification or reversal of the law. It removes a judge’s discretion in awarding attorney fees as a penalty.
Decriminalizes Criminal Conduct for Health Care Providers
2011 Wisconsin Act 2 decriminalizes conduct of health care providers for using a dangerous weapon if they are acting within the scope of their employment. Nursing home workers will also not be criminally liable if they commit an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.
The Fall 2011 Session featured both a Special Session on "Job Creation" as well as the regular session. Here are the list of bills that were acted upon.
Cutting Interest Rates on Civil Action Judgments: 2011 Wisconsin Act 69
The September Special Session of the Legislature enacted legislation that changes the interest rate on offers of settlements and all civil judgments from 12 percent to the prime rate plus one percent – 4.25 percent currently. The new interest rate is reviewed biannually, applying to judgments in effect on January 1 of the year in which the judgment is entered if the judgment is entered on or before June 30 of that year or in effect on July 1 of the year in which the judgment is entered if the judgment is entered after June 30 of that year. This interest rate also applies to an offer of settlement that is not accepted and the party recovers a judgment that is greater than or equal to the amount specified in the offer of settlement. The new law went into effect on December 2, 2011.
PR Watch: ALEC Politicians Spin Special "Interest" Bill to Protect Corporate Wrongdoers as "Job Creation"
Limiting Attorneys Fees: 2011 Wisconsin Act 92
A new law establishes factors judges must use when awarding attorney fees as well as creating a presumption that attorney fees should not exceed three times compensatory damages. This will primarily apply to cases where fee-shifting statutes allow the award of reasonable attorney's fees - i.e., landlord-tenant, lemon law and employment discrimination cases. The new law went into effect on December 21, 2011.
The Cap Times: Attorneys Warn that Bill to Limit their Fees will Stick it to Consumers
WPR: Senate Republicans Approve Plan to Cap Attorney Fees in Civil Lawsuits
Milwaukee Journal Sentinel: Wisconsin Assembly bill would limit attorney fee judgments
Inside Track: Attorney Fees: Proposed bill seeks to cap reasonable attorney fees where available
The Castle Doctrine Bill – 2011 Wisconsin Act 94
The new law grants immunity to a person who uses force that is intended or likely to cause death or great bodily harm to protect his or her home, motor vehicle or place of business if the person "reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person." If the person shot disputes the homeowners version of events and seeks to hold the homeowner accountable for being shot, a provision in the new law says if the homeowner is found immune, the injured person has to pay the legal expenses of the homeowner as well as lost wages and other expense.
Drug and Medical Device Immunity: SS-SB/AB 13
This bill would have given pharmaceutical companies and medical device companies immunity from lawsuits if the Food and Drug Administration (FDA) has approved them in certain cases. The bill included an exception for devices approved in the streamlined (510k) process, however, all manufacturers and sellers are immune if the warning labels of their products have been approved by the FDA.
Center for Justice and Democracy White Paper: Repeating a Tragic Blunder
The Cap Times: Consumer Rights Group Takes Aim at Proposal to Shield Drug Makers
Op-Ed by Hank Greenspan from Michigan: Bill Weakens Protections for Public
PR Watch: Wisconsin GOP Pushes ALEC Anti-Consumer Bill to Protect Drug Makers
The Cap Times: More 'tort reform' bills coming from the GOP
Hazardous Highway and Bridges legislation
Governor Walker signed the Hazardous Highway bill on March 21, 2012 as 2011 Wisconsin Act 132. The new law went into effect on April 5. Under the new law, municipalities will be able to assert an immunity defense for "discretionary" highway maintenance decisions under Wis. Stat. § 893.80.
Inside Track: Pothole Liability: Proposed Bill Could Create "Discretionary" Immunity for Highway Defects
Eliminating causes of action for compensatory and punitive damages in employment cases
Governor Walker signed SB-202 on April 5. The new law was published as 2011 Wisconsin Act 219 on April 19 and went into effect on April 20. The bill eliminates the cause of action for compensatory and punitive damages in a state employment discrimination case.
The Huffington Post: Scott Walker Quietly Repeals Wisconsin Equal Pay Law
Milwaukee Journel-Sentinel: Walker Signs Bevy of Bills Into Law
PR Watch: Wisconsin GOP Goes After Equal Pay for Equal Work
Immunity for School Districts Opening Facilities for Recreational Use
AB-497 was passed by the Assembly and Senate at the end of the March floor period and was signed by Governor Walker as 2011 Wisconsin Act 162. It was published on April 11 and went into effect on April 12. The School Immunity Bill provides immunity to school districts if they open up their facilities to non-school groups pursuant to a recreational agreement. There are several exceptions to the grant of immunity. It does not cover the use of the swimming pool or gymnastic and weight-lifting equipment and spectators are also not covered by the provisions of the new law. The new law also places volunteers under Wis. Stat. § 893.80, similar to school or municipal employees.
Ski Area Immunity Bill
SB-388 passed the Legislature and was signed by Governor Walker on April 2 as 2011 Wisconsin Act 199. The new law was published on April 16 and went into effect on April 17, 2012. The new law puts the burden on the skier to evaluate and assume potentially unknown risks, such as forest growth, boulders, drop-offs, hazards and collisions with ski area infrastructure, while skiing It also provides a list of duties skiers must follow when participating in a snow sport. Ski Area Operators also have to comply with a number of duties, like posting warning signs, providing maps, marking of ski area infrastructure and a lift inspection. There is no requirement of padding, only that the ski area operator must develop a written policy on padding for the ski area infrastructure. Ski areas must post warnings that ski area vehicles are in the area, equipping ski area vehicles with a flag and flashing light. Ski area vehicles, when possible, must yield the right of way to skiers. The vehicles must travel at a "reasonable" speed. They must have a written policy on training for operators of ski area vehicles and well as other requirements for operators of ski area vehicles. (Over age 18 with a valid driver's license.) If a ski area operator fulfills all the duties listed in the law, ski area operators are granted immunity for anything not listed as a duty.
Wisconsin Public News Service: Proposed WI Ski Area Law Bad for Skiers and Tourism
"I’m Sorry” legislation
The bill, AB-147, would have made statements of doctors and other health care providers expressing apology, condolence as well as fault, liability and responsibility to a patient or his or her family from being admissible in a medical malpractice lawsuit. WAJ has said it will support the legislation if three words -- fault, liability and responsibility -- are dropped from the bill. Fact Sheet. Legislative Council did two memos on the potential reach of the bill, memo 1 and memo 2. The bill passed the Assembly in November, but the Senate failed to act on the legislation.
Retroactive Application of Risk Contribution Legislation
Senate Bill 373 would have retroactively applied parts of 2011 Wisconsin Act 2 to pending cases. The authors and their supporters indicated the only effect of this bill is to make retroactive those changes to risk contribution theory previously enacted in 2011 Wisconsin Act 2. It appears that lead paint companies were behind the legislation. The bill had a public hearing on January 19. A companion bill was also introduced in the Assembly, AB-538. However, neither bill was voted on in the Senate or Assembly.
The Cap Times: Further Fast-Tracked "Tort Reform" Would Work Retroactively
Wisconsin Public Radio: Republican bill to undo Wisconsin Supreme Court's controversial lead paint decision