The Assembly adjourned the 2023-24 session at the conclusion of its last scheduled floor day, February 22. The Senate held its final day of floor votes on March 12. The Wisconsin Legislature stands adjourned and is not expected to reconvene until January 2025. Throughout the 2023-24 session, the Wisconsin Civil Justice Council (WCJC) worked tirelessly to advance civil liability reforms and prevent new civil causes of action from becoming law.

This session, legislators introduced many bills proposing to create new civil causes of action. WCJC successfully defeated all of them, or else successfully had the legislation amended to remove the new cause of action before passage. A notable and concerning trend for the state’s business community and civil defense and insurance attorneys is an increasing willingness among legislators of both parties to propose new civil causes of action as a way of advancing policy goals that could otherwise be accomplished by regulatory or other means.

Protecting Motor Carriers, Consumers from Unreasonable Nuclear Verdicts

This session, WCJC successfully advanced through both houses of the legislature SB 613, legislation to create a $1 million per-victim cap on the recovery of noneconomic damages from trucking companies and commercial drivers. Authored by Sen. Cory Tomczyk (R-Mosinee) and Reps. John Spiros (R-Marshfield) and Rick Gundrum (R-Slinger), the aim of the bill is to protect employers from unreasonable “nuclear verdicts” and to help stabilize insurance costs for the trucking industry.

Despite broad support for SB 613 among Wisconsin’s business community, Gov. Tony Evers (D) vetoed SB 613, likely due to opposition from the plaintiff’s bar.

Deicer Registration and Liability Protection Bill

SB 52, authored by Sen. André Jacque (R-De Pere) and Rep. Elijah Behnke (R-Oconto), would have created a voluntary training and registration program for commercial applicators of products for snow and ice removal. The program, to be managed by the Department of Agriculture, Trade and Consumer Protection, was intended to encourage applicators to use ice and snow removal procedures that also protect water quality, in part by reducing salt use.

For registered applicators and the businesses and individual property owners that hire them, the bill provided protection from civil liability for a hazard related to snow and ice accumulation. This liability exemption would have applied provided that the registered applicator used approved treatment methods and did not commit a reckless, wanton, or intentional act or omission.

SB 52 passed both houses of the legislature and was supported by Wisconsin business and environmental groups, but opposed by the plaintiff’s bar. Gov. Evers vetoed SB 52.

Nonrecourse Litigation Advance Payments

An ongoing priority for WCJC is creating reasonable consumer protections related to “lawsuit lending,” a nonrecourse advance payment whereby plaintiffs get a cash advance on a claim with repayment of the advance contingent on the outcome of the case. Last session, we introduced similar legislation and a hearing was held in both houses but, unfortunately, we ran into headwinds on these bills as session drew to a close.

This session, despite good committee hearings in both houses and a positive Senate committee vote, the legislation failed to advance. We understand members of legislative leadership in both houses are opposed to creating a cap on total finance charges. We are reassessing our approach for the 2025-26 legislative session.

New Civil Causes of Action

Increasingly, both Republican and Democratic legislators are introducing legislation to create new civil causes of action. Consistently, WCJC opposed the creation of new civil causes of action against private businesses.

WCJC successfully halted Gov. Evers’ budget proposals to create the following new civil causes of action:

• Qui tam and Medicaid: Restoration of the ability of private attorneys to bring an action against a person for making a false Medicaid claim. The private party bringing the claim on behalf of the state could be awarded up to 30 percent of the amount recovered, along with attorney fees. WCJC successfully worked in the 2015 legislative session to remove a similar provision under prior law. (Currently, the Department of Justice may bring an action against a person for making a false Medicaid claim.)
  
  
• Actions Against Employers: Creation of a new civil cause of action allowing a person to bring an action alleging that an employer has violated employment discrimination, unfair honesty testing, or unfair genetic testing laws. Back pay, attorney fees, and compensatory and punitive damages could be awarded. (Currently, a person may file a complaint with the Department of Workforce Development.)
  
  
• Actions Against Broadband Companies: Creation of a new civil cause of action allowing any person to bring an action against a broadband service provider alleging the provider has denied access to broadband service to any group of potential residential customers because of the race or income of the residents in the area in which the group resides. Costs and attorney fees could be awarded.

In addition, WCJC successfully worked to remove new civil causes of action from the following Republican-authored bills:

• Implements of Animal Husbandry: AB 14 creates requirements for the repair and replacement of an implement of animal husbandry that has a condition or defect that substantially impairs the use, value, or safety of the implement of animal husbandry and is covered by an express warranty. At WCJC’s request, the author introduced an amendment to remove creating a new civil cause of action for violations of AB 14’s requirements, along with language regarding damages, attorney fees, and other equitable relief determined appropriate by a court. As amended, AB 14 passed the Assembly. The Senate took no action on AB 14.
  
  
• Social Media Accounts: AB 373 creates verification and other requirements regarding social media platforms’ treatment of account holders based on age. Prior to introduction, WCJC successfully worked with the bill’s author to remove creation of a new civil cause of action for violations of AB 373’s requirements. No committee action occurred on AB 373.
  
  
• Consumer Data Privacy: AB 466 creates new consumer rights over their personal data and consumer-protection obligations on businesses in Wisconsin. Prior to this session, WCJC successfully worked with the bill’s author to remove creation of a new civil cause of action for violations of AB 466’s requirements and to include specific language that precludes any civil cause of action related to the new requirements. As amended, AB 466 passed the Assembly. AB 466 failed to pass the Senate.

Finally, WCJC flagged for legislators the following bills (none of which made it out of committee) which also would have created new civil causes of action:

• Financial Exploitation: SB 116 creates a new civil cause of action for financial exploitation of a vulnerable person.
  
  
• Nurse Staffing Ratios: AB 489 creates a new civil cause of action for nurses to file against an employer relating to nurse-payment ratios, refusing a work assignment, and overtime requirements.
  
  
• Gender Transition Treatments: SB 479 creates a new civil cause of action for a minor who underwent gender transition treatments whereby the minor could bring an action until his or her 33^rd birthday against a healthcare provider alleging a physical, psychological, emotional, or physiological injury.
  
  
• Social Media Companies: AB 893 and AB 895 create new civil causes of action if a social media website censors, deplatforms, or shadowbans a journalist enterprise or a user.
  
  
• Sexually Protective Devices: AB 732 creates a new civil cause of action for nonconsensual removal of or tampering with sexually protective devices, such as a condom or diaphragm.
  
  
• Acts of Violence & Discrimination: AB 735 creates a new civil cause of action for victims of sexual violence and discrimination.

Public Nuisance Reform

At WCJC’s request, Rep. Gundrum (R-Slinger) introduced comprehensive public nuisance reform legislation. AB 1157 was introduced March 22, 2024, and referred to the Assembly Committee on Criminal Justice and Public Safety. The bill did not advance this session.

Expansion of Medical Malpractice Claims: No Action Taken This Session

Late in the 2023-24 legislative session, several Democratic lawmakers introduced two bills to significantly increase potential damages from medical malpractice claims:

• AB 871 adds adult children to the list of relatives who are entitled to sue for injury or death resulting from medical malpractice and provides that both minor and certain adult children have the right to recover for loss of society and companionship if the parent is injured or dies as the result of medical malpractice.
  
  
• AB 872 raises the limit on noneconomic damages for medical malpractice claims from $750,000 to $3 million for each occurrence of medical malpractice.

WCJC is opposed to these bills, which would increase the cost of medical malpractice insurance in Wisconsin, thereby raising healthcare costs for employers and consumers. The bills did not receive a public hearing or further committee action prior to adjournment and will not advance this year.

Restoration of Qui Tam Claims: Introduced Post-Adjournment

After both houses held their final days of floor votes, a handful of Democratic legislators introduced legislation (SB 1092) to restore the ability of private parties to file a qui tam action alleging Medical Assistance fraud. This bill is very similar to a proposal included in Gov. Evers’ past state budget proposals. WCJC worked to eliminate this provision from state law as part of the 2015 state budget act.