The Wisconsin Supreme Court today issued a couple of notable decisions. The first was a highly anticipated case deciding the constitutionality of the Wisconsin Legislature’s transfer of $200 million from the Injured Patients and Families Compensation Fund. The second case involved an important negligence case deciding whether a principal employer is liable in tort for the injuries sustained by an independent contractor’s employee while he or she is performing the contracted work. Below is a summary of both cases. Continue reading “Wisconsin Supreme Court Issues Two Positive Decisions” →

A new study prepared by the Pacific Research Institute (PRI) ranks Wisconsin 9^th in its latest “Tort Liability Index: 2010 Report.” On its face, the report appears to provide a positive snapshot of Wisconsin’s civil justice system. However, when using “input” variables, i.e., tort laws and procedures on the books, Wisconsin drops all the way down to No. 35.

Moreover, the study groups all 50 states into four areas: saints, sinners, salvageables, and suckers. Wisconsin is placed in the “suckers” group with eight other states. The study describes the “suckers” group the following way:

[These states] have weak tort rules on the books because they currently have relatively low monetary tort losses and/or low tort litigation risks and, therefore, believe that reform is not needed. These states are a personal-injury lawyer’s next green pasture. In the game of lawsuit “Whack-a-Mole,” the suckers are the states where plaintiffs and their lawyers will pop up to pursue abusive lawsuits because these states have not preemptively closed off opportunities for excessive litigation.

A similar study prepared by the U.S. Chamber Institute for Legal Reform released in March ranked Wisconsin 22^nd in the nation. That study’s final results were based on interviews of 1,482 in-house general counsels, senior litigators or attorneys, and other senior executives knowledgeable about litigation matters at public and private companies with annual revenues of at least $100 million.

The takeaway from both studies is that although Wisconsin is not one of the worst states in the country in terms of civil justice, there is still room for improvement when it comes to its tort laws.

One thing is for certain – Wisconsin would have ranked much lower had the numerous harmful bills seeking to weaken the state’s tort laws passed last legislative session.

The Wisconsin Legislature this morning (4:30 a.m.) finished its last day of session. It was a very successful session for the Wisconsin Civil Justice Council and its partners. None of the bills actively opposed by WCJC were passed into law.

Below is a wrap-up of the bills WCJC opposed, supported, or monitored:

Oppose

• SB 628/AB 815 (Medical Records and Medical Exams): Substantially limits a defendant’s attorney from determining whether a plaintiff’s injuries were the actual result of the accident caused by the defendant. Limits the amount of medical examinations a defendant could perform on the plaintiff. Also, severely limits the defendant’s ability to review plaintiff’s medical records when determining whether the accident caused by defendant led to the plaintiff’s injuries.

Status: DEAD

• SB 203/AB 291 (Medical Malpractice Liability):  Expands medical liability by allowing adult children and their parents sue for loss of society and companionship damages.

Status: DEAD

• SB 447/AB 792 (False Claims): Allows private parties to file lawsuits on behalf of the state alleging that a person knowingly presented a false claim and deceived the state for the purpose of getting a false claim paid. The private party bringing the lawsuit is eligible to receive 15 to 25 percent of the amount recovered, thus providing plaintiffs’ attorneys an incentive to bring more lawsuits.

Status: DEAD

• SB 275/AB 367 (Credit Histories): Allows job applicants and employees to sue employers and seek punitive and compensatory damages if an employer “discriminates” against them based on that person’s credit history.

Status: DEAD

• AB 938 (Bifurcation of Trials for Claims of Interest): Provides that if a trial court bifurcates a trial with respect to a claim for interest that is allegedly due on insurance proceeds that were not timely paid, all claims must be heard by the same jury.

Status: DEAD

• SB 319/AB 453 (Statute of Limitations): Provides a three-year window for plaintiffs to file childhood sexual abuse claims, regardless of the previous expiration of the statute of limitations. Similar legislation in other states has been struck down as unconstitutional.

Status: DEAD

• SB 563 (Medical Malpractice Statute of Limitations): Extends wrongful death statute of limitations in cases dealing with medical malpractice. Seeks to overturn a recent Wisconsin Supreme Court decision, Estate of Genrich v. OHIC Ins. Co., which held that the time limit for a wrongful death action caused by medical malpractice is counted from the date of the deceased person’s injury instead of the date of death.

Status: DEAD

• AB 894 (Workplace Bullying): Adds a private cause of action, along with punitive and compensatory damages, for alleged workplace bullying.

Status: DEAD

• AB 831/SB 585 (Employment Discrimination): Allows employees to sue for discrimination under the Wisconsin Fair Employment Law for being disciplined for declining to attend a meeting or to participate in any communication about religious or political matters.

Status: Senate passed SB 585. Assembly passed SB 585. Sent to Governor for signature.

Support

• AB 710 (Apology of Health Care Provider): Provides that a statement, gesture, or conduct of a health care provider that expresses apology, condolence, compassion, benevolence, or sympathy to a patient, patient’s relative, or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Status: DEAD

Monitor

• SB 337/AB 480 (Gender-based Cause of Action): Creates a new civil cause of action for a person who suffers physical, emotional, or economic harm as a result of a gender−based act. Imposes a seven-year statute of limitations (most other intentional tort claims must be brought within three years). A plaintiff who prevails in a civil action for a gender−based act may recover damages for emotional distress, punitive damages, and investigation or litigation costs, including attorney fees.

Status: DEAD

In the waning days of session, plaintiffs’ attorneys are attempting to ram through sweeping legislation that would severely undermine a defendant’s ability to perform discovery in civil actions. If enacted, AB 815/SB 628 would tip the scales of justice overwhelmingly in favor of plaintiffs by limiting a defendant’s ability to access a plaintiff’s medical records during discovery. The legislation would also severely limit medical examinations when the plaintiff is claiming damages for injuries related to the accident. As a result of these far reaching proposals, AB 815/SB 628 will negatively impact that courts’ ability to search for the truth.

In turn, this will negatively affect the business community. Without proper discovery of prior medical conditions, plaintiffs’ attorneys will seek and obtain higher jackpots for injuries that could have occurred years prior to the accident and which have no relationship with alleged injuries in the civil action.

The Assembly Committee on Judiciary and Ethics has scheduled a public hearing on Tuesday, April 6 at 10:00 a.m., Room 225 NW, State Capitol. Continue reading “Legislature Considers Prior Injury Cover-up Act” →

The Assembly Committee on Labor on Wednesday, March 10 (10:00 a.m.) will hold a public hearing on AB 792, relating to false claims submitted to state and local governments.

WCJC opposes AB 792 because it encourages abusive litigation by providing incentives for plaintiffs’ attorneys to bring lawsuits on behalf of the state. WCJC further opposes AB 792 because it is unnecessary – existing laws provide meaningful avenues for the state to prosecute those who file false claims. Continue reading “Assembly Labor Committee to Hold Public Hearing “False Claims” Bill” →