Category: Editorials

Plaintiff Lawyer Explains How Asbestos Trust Funds Are Platforms for “Institutionalized Fraud”

Posted on by Hamilton

In a recent Forbes magazine article, Daniel Fisher discusses a publication by a former asbestos plaintiff lawyer who explains how some of the asbestos trust funds set up under the U.S. Bankruptcy Code facilitates “fraud.” According to the article, the plaintiff attorneys explains how the trust funds are designed to be accessed by claimants with little evidence of exposure.

Fisher quotes from the article:

Plaintiff asbestos lawyers then use the millions of fees obtained from the system they were instrumental building, to run countless advertisements designed to obtain more clients so that they can submit more claims and obtain more fees. Thus, institutionalized fraud, as built into the system, allows the system to perpetuate itself.

To read more, click here.

U.S. Chamber Institute for Legal Reform Recognizes Wisconsin’s “Common Sense” Legal Reforms

Posted on by Hamilton

Lisa Rickard, President of the U.S. Chamber of Institute for Legal Reform (ILR), recently wrote an article (“Wisconsin: Capital of Common Sense”), in which she commends Gov. Scott Walker and the Wisconsin Legislature for leading the nation over the past three years in enacting civil justice reforms.

As Rickard notes:

During the current decade, Governor Walker and lawmakers have mindfully enacted bold legal reforms in Wisconsin — a major reason Walker feels confident in his push to create more jobs and job security in his state…The last three years of landmark reforms have provided a template that other elected officials — governors, state legislators and even members of Congress — can and should utilize.

In the article, Rickard highlights the comprehensive legislation Wisconsin has enacted into law over the past three years, including:

  • 2011 Wisconsin Act 2, which contained comprehensive reforms, such as capping punitive damages, adopting standards (Daubert) of submitting expert evidence in lawsuits, product liability changes, and curbing frivolous lawsuits.
  • 2013 Wisconsin Act 105 (Transparency in Private Attorney Contracting), which promotes transparency and limiting contingency fees when the state hires outside private plaintiffs’ attorneys.
  • 2013 Wisconsin 154 (Asbestos Trust Fund Transparency), which helps prevent double-dipping by plaintiffs’ attorneys by creating greater transparency from attorneys when pursuing claims from asbestos personal injury settlement trusts set up to compensate asbestos victims and suing solvent Wisconsin businesses.

Not mentioned in the ILR article are the other civil justice reforms introduced by Gov. Walker and enacted by the Wisconsin Legislature during the 2011-12 session, including:

  • 2011 Wisconsin Act 69, which sets reasonable pre- and post-judgment interest rates at the Federal Reserve prime rate, plus one percent.
  • 2011 Wisconsin Act 93, which protects owners and possessors of land by codifying  Wisconsin’s case law as it relates to the duty of care owed to a trespasser by a possessor of land.
  • 2011 Wisconsin Act 92, which set forth criteria courts are to consider when awarding attorneys’ fees when plaintiff’s’ attorneys seek attorneys’ fees. The law also created a rebuttable presumption that attorneys’ fees are no more than three times compensatory damages.

WCJC and WMC last year were recipients of ILR’s prestigious “Outstanding Organization Award” for helping pass these sweeping reforms over the past three years.

 

 

Wisconsin Supreme Court Rules Excessive Punitive Damages Unconstitutional

Posted on by Hamilton

On April 22, the Wisconsin Supreme Court issued a positive decision (4-2) in Kimble v. Land Concepts, Inc., 2014 WI 21, holding that $1 million in punitive damages against a title insurance company violated due process and therefore was unconstitutional. Justice Annette Ziegler authored the decision, and was joined by Justices Patrick Crooks, Patience Roggensack, and Michael Gableman. Chief Justice Shirley Abrahamson authored a dissenting opinion and was joined by Justice Ann Walsh Bradley. Below is a discussion of the case and the court’s decision.

Wisconsin Insurance Alliance, Wisconsin Civil Justice Council, and Wisconsin Manufacturers & Commerce filed an amicus brief in the case arguing that the $1 million award of punitive damages was unconstitutional.

Issue: Whether the $1,000,000 punitive damages award against First American Title Insurance Company violates the Wisconsin Constitution or the common law of the state of Wisconsin.

Facts: The case involves a jury verdict awarding the plaintiff-property owners $1 million in punitive damages against First American Title Insurance Company for bad faith in denying the insureds’ requested defense of title and claim.

The plaintiffs purchased property in Door County that was land-locked on three sides and surrounded by water on the other side. The plaintiffs-buyers believed they had an easement over adjoining property allowing access to the nearest road. However, it was determined after the purchase of the property that the plaintiffs did not have an easement and therefore filed suit against First American Title Insurance Company when it denied that the policy coverage had been triggered.

The case went to trial and the court awarded the plaintiffs $29,738 in compensatory damages against First American. The jury also awarded the plaintiffs $1 million in punitive damages against First American for its bad faith in denying the claim. The court of appeals upheld the punitive damages.

The sole issue before the Wisconsin Supreme Court is whether the $1 million is unconstitutional. (The new caps under 2011 Wisconsin Act 2 are not implicated because this case was commenced prior to enactment of Act 2.)

Wisconsin Supreme Court’s Decision: The court held that the award of $1 million did “not bear a ‘reasonable relationship’ to either the compensatory damages award or the potential harm faced by the plaintiff.” According to the court, the punitive damages award was excessive and deprived the First American its right to due process under the constitution. Therefore, the court reversed the lower court and held that appropriate amount of punitive damages was $210,000, plus compensatory damages.

PolitiFact Gives Mary Burke “False” Rating for Claiming that Gov. Walker Repealed Wisconsin’s Equal Pay Act for Women

Posted on by Hamilton

In 2009, the Wisconsin Legislature enacted legislation (2009 WI Act 20), which for the first time imposed punitive and compensatory damages under the Wisconsin Fair Employment Law (WFEL), the law prohibiting discrimination in the workplace. Before 2009 WI Act 20, the WFEL allowed individuals to sue for back pay, reinstatement of the job, plus compensation for costs of bringing the suit and attorney fees.

WCJC and the entire business community actively opposed Act 20 because it added punitive and compensatory damages that went beyond what was allowed under federal law. Plus, WCJC felt that the current remedies were more than adequate.

During the 2011-12 legislative session, WCJC and the business community supported legislation (2011 WI 219) that repealed the punitive and compensatory damages that were included in 2009 WI Act 20. (Click here to read WCJC’s memo, “Myths vs. Facts” – SB 202: Eliminating Punitive and Compensatory Damages.”)

In the 2012 elections and recall of Gov. Walker, the Democrats used the repeal of the punitive and compensatory damages under the WFEL for the basis of its “War on Women” theme by arguing that Gov. Walker removed “equal pay for women.” Fortunately, PolitiFact (which is a unit of the Milwaukee Journal Sentinel), saw through this falsehood and labeled such statements as “False.” (Click here and here to view the “False” ratings by PolitiFact.)

Some politicians are once again picking up on the “War on Women” theme and continuing to argue that Gov. Walker repealed the “Equal Pay Act” when he signed into law 2011 WI 219.

Most recently, Democratic gubernatorial candidate Mary Burke alleged in a press release that Wisconsin is “one of five states without an equal pay law protecting women from gender discrimination in their paycheck.” Ms. Burke based this comment on the repeal of the 2009 punitive and compensatory damages law.

PolitiFact analyzed this statement, and not surprisingly, gave Ms. Burke a “False” rating. In its article, PolitiFact explained how the repeal of the punitive and compensatory damages law did not remove the ability of women to sue for workplace discrimination.

According to PolitiFact:

So the 2009 bill allowed persons to sue in court – and get compensatory and punitive damages – after they had exhausted their administrative cases in the state Department of Workforce Development.

But that 2009 law – the one repealed in 2012 by Walker and the Republicans – was a fairly narrow one focused on tougher enforcement of existing protections for women and other groups.

It did not establish a new set of equal-pay protections – those already were in the Fair Employment law, where they have ben since 1982 and where they remained even after the 2012 repeal.

…

But while Walker reversed an attempt to toughen up Wisconsin law, its protections against gender discrimination in workplace pay date back decades. The governor’s 2012 action left those in place, albeit without tougher penalties for employers.

We rate Burke’s claim False.

Walker Signs Trust Fund Transparency Bill

Posted on by Hamilton

Gov. Walker earlier today signed AB 19, asbestos trust fund transparency, into law as Act 154. The new law allows greater transparency by:

  • Requiring asbestos plaintiffs to disclose any and all claims that they have filed or will file with asbestos trust funds, along with all of the documents and information that support the trust claims.
  • Requiring judges to admit trust claims and supporting materials into evidence at trial; prohibiting plaintiffs from spuriously alleging that trust claims and their supporting documents are privileged.
  • Providing defendants with a powerful tool to ensure that plaintiffs file and disclose all possible claims with asbestos trusts. AB 19 authorizes defendants to identify trust claims that the plaintiff could and should file. If a judge agrees, the case is stayed until that claim is filed and disclosed.

Wisconsin now joins Ohio and Oklahoma by having a law in place that protects businesses from unscrupulous plaintiff attorneys double-dipping against trust funds and suing those solvent businesses that have little, if any, fault.

 

Assembly Passes Asbestos Trust Fund Transparency Legislation

Posted on by Hamilton

The Wisconsin Assembly on Thursday, March 20, passed important legislation that will bring transparency and end double dipping by plaintiff attorneys in lawsuits involving asbestos related claims.

“As a state with a strong manufacturing sector, Wisconsin businesses stand to lose if plaintiff attorneys are not required to disclose key evidence in asbestos lawsuits,” said Scott Manley, Vice President of the Wisconsin Civil Justice Council and Vice President, Government Relations, Wisconsin Manufacturers and Commerce (WMC). “The court deserves to know all the information when awarding damages,” added Manley.

AB 19 will allow greater transparency by:

  • Requiring asbestos plaintiffs to disclose any and all claims that they have filed or will file with asbestos trust funds, along with all of the documents and information that support the trust claims.
  • Requiring judges to admit trust claims and supporting materials into evidence at trial; prohibiting plaintiffs from spuriously alleging that trust claims and their supporting documents are privileged.
  • Providing defendants with a powerful tool to ensure that plaintiffs file and disclose all possible claims with asbestos trusts. AB 19 authorizes defendants to identify trust claims that the plaintiff could and should file. If a judge agrees, the case is stayed until that claim is filed and disclosed.

“We thank the Assembly for passing this landmark legislation,” said Bill G. Smith, WCJC President and NFIB State Director. “Wisconsin joins Ohio and Oklahoma by enacting laws that protect large and small businesses from unscrupulous plaintiff attorneys who double-dip against asbestos trust funds and Wisconsin businesses.”

 

U.S. Chamber Institute for Legal Reform IDs Critical Lawsuit Reforms

Posted on by Hamilton

A new report from the U.S. Chamber Institute for Legal Reform has identified several issues the Wisconsin Civil Justice Council is working to fix in Wisconsin as critical to improving the nation’s business climate.

The New Lawsuit Ecosystem: Trends, Targets and Players, “examines the developing lawsuit “ecosystem” and areas of litigation of most concern to the business community. The report examines the trends and players in six key litigation areas, offers insights into new emerging liability threats, and explores the growing alliance between state attorneys general and the plaintiffs’ bar.”

U.S. Chamber Applauds Signing of Nation’s Strongest Outside Counsel Sunshine Law

Posted on by Hamilton

Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform (ILR), issued the following statement applauding Governor Scott Walker for signing into law the Transparency in Private Attorney Contracting Act (AB 27). The law promotes transparency and limits contingency fees when the State of Wisconsin hire outside private plaintiffs’ lawyers. Continue reading “U.S. Chamber Applauds Signing of Nation’s Strongest Outside Counsel Sunshine Law” →

Governor Walker Signs Civil Justice Reforms into Law

Posted on by Hamilton

Building off of the historic reforms signed into law in 2011-12, Gov. Scott Walker on Friday, December 13 signed three more important civil justice reforms into law. Below is a summary of each bill signed into law by Gov. Walker:

  • Transparency in Private Attorney Contracting (AB 27): Authored by Rep. Mike Kuglitsch (R-New Berlin) and Sen. Glenn Grothman (R-West Bend), AB 27 reins in excessive attorneys’ fees by setting tiers for contingency fees as a percent of recovered amounts ranging from 25% to 5%. Transparency is achieved through the requirement that a copy of the executed fee contract be posted online. In addition, the private attorney must maintain time records and keep detailed records of expenses, disbursements, etc. for four years after the contract terminates.
  • Physician’s Duty of Informed Consent: Overturning Jandre v. Wisconsin Injured Patients and Families Compensation Fund (AB 139): Authored by Rep. Jim Ott (R-Mequon) and Sen. Glenn Grothman (R-West Bend), AB 139 protects Wisconsin physicians and hospitals from unnecessary and costly lawsuits. Passed on a bipartisan vote, AB 139 overturns a Wisconsin Supreme Court decision and clarifies the proper standard for physicians when informing patients of alternate medical modes of treatment and about the benefits and risks of those treatments.
  • Lemon Law Reforms (AB 200): Authored by Rep. Bill Kramer (R-Waukesha) and Sen. Jerry Petrowski (R-Marathon), AB 200 removes Wisconsin’s previously dubious reputation of having the worse lemon law in the nation. The new law makes a number of changes, including: 1) eliminating mandatory double damages, 2) adding time for manufacturers to deliver a comparable vehicle, 3) reducing the statute of limitations, 4) adding a good faith requirement, and 5) clarifying what it means for a vehicle to be out of service.

“The Wisconsin Civil Justice Council thanks Gov. Walker for his continued commitment to enhancing the state’s litigation climate and making Wisconsin a more attractive place to start and grow a business,” said Bill G. Smith, WCJC President and State Director of the National Federation of Independent Business.