Last night, the Wisconsin Assembly passed Special Session Senate Bill 1, 57-36, along party lines. The bill passed the Assembly just two days after passing the Senate, and will be sent to Governor Scott Walker soon for his signature. The law will go into effect within 10 days after the law is published. The tort reform bill is the first piece of legislation to pass in Governor Walker’s special session on job creation.  (See Milwaukee Journal Sentinel article discussing the legislation.)Below is a summary of the main provisions:

• Product Liability – Provisions of this bill will assist small and large businesses by requiring proof of a “reasonable alternative design” in an alleged defective design of a product, moving Wisconsin away from the broad “consumer expectation” test. By adopting this provision, Wisconsin will join 46 other states.

• Expert Opinion (Daubert) – Wisconsin will join more than 30 other states and the entire federal court system by adopting the Daubert standards for cases tried in Wisconsin courts. This common sense provision affects both parties in a case by limiting testimony of experts and evidence to that which is based on sufficient facts or data and is the product of reliable principles and methods.

• Risk Contribution (Thomas v. Mallet) – This provision overturns the Wisconsin Supreme Court’s 2005 decision, Thomas v. Mallet, where the court adopted the deeply flawed “risk contribution” theory in cases involving lead-based paint. Wisconsin is the only state in the country to have adopted this theory. The court’s decision led the Wall Street Journal to pen an editorial describing Wisconsin’s litigation climate as “Alabama North.” (August 9, 2005)

• Caps on Punitive Damages – The Senate and Assembly amended the bill to keep in place existing law for determining punitive damages but then set a cap on punitive damages at $200,000 or two times compensatory damages, whichever is greater. While WCJC supports the amendment, it had concerns with the language that exempts the caps from drunk driving cases.

• Quality Improvement Act – The QIA updates the outdated health care peer review statute, encouraging medical providers to work together to improve the quality and efficiency of care. The bill addresses specific court decisions that have discouraged this type of work. The bill also makes consistent the administrative and criminal codes for abuse and neglect.

• Frivolous Lawsuits – A party may be liable for costs and fees for bringing a lawsuit or claim that is done solely for the purpose of harassing or maliciously injuring another party.

• Caps on Noneconomic Damages for Long-term Health Care Providers – Places limits on noneconomic damages for long-term care providers ($750,000).

Thank you to all WCJC Board Members and Partners for your help in getting this significant piece of legislation passed.