Wisconsin Law Will Change for Many Accident/Injury Claims

January 17, 2011

Governor Walker called a special session of the Wisconsin Legislature to advance his proposals to substantially change Wisconsin laws relating to injuries from accidents and dangerous products. Last week, Committees from both houses held hearings on the Governor’s proposals. The substances of the proposed bills (with minor amendments) are expected to pass both the Senate and the Assembly, and be signed by the Governor in the near future.

Product Liability Changes
(The “Bills”) Senate Bill 1 and Assembly Bill 1 propose sweeping changes to Wisconsin law on “strict liability” claims involving dangerous and defective products. With some exceptions, these Bills would allow those injured to pursue strict liability claims against only the manufacturer of the product. Distributors and Sellers would generally not be liable on strict liability claims. The Bills also substantially change the definition of what constitutes a “dangerous and defective product,” and sets a 15 year limit on such claims.

Both Bills propose significant changes to claims for noneconomic damages and punitive damage awards.

Noneconomic Damages
Claims for “pain, suffering and disability” are “noneconomic” damage claims. Both bills would “cap” noneconomic damage by extending the existing medical malpractice cap on damages of $750,000 for noneconomic damages to nursing homes, hospice care facilities, assisted-living facilities and other long-term care providers. The existing caps of $500,000 in the event of the death of a minor child, and $350,000 in the case of the death of an adult, would be likewise extended to those entities for loss of society and companionship claims.

Punitive Damages
As to punitive damages, the legislation seeks to “repeal” the decision by the Wisconsin Supreme Court in Wischer vs. Mitsubishi 2005 WI 26, 279 Wis. 2nd 4, 694 N.W. 2d 320, which allows recovery of punitive damages against defendants who acted “maliciously” toward the plaintiff or with “intentional disregard of the rights” of others. The proposed legislation raises the bar on recovery of punitive damages by requiring plaintiff prove that the defendant knew the injury was “practically certain to result” in injury to others. In present form the Bills contain an additional provision that both proponents and opponents agree is unclear, but appears to reduce the chances of a jury award of punitive damages against a drunk driver causing injury or death.

Other Changes
The proposed legislation has additional provisions regarding the confidentiality of “peer review” records by health care providers, and changes to the statutes in regard to frivolous claims and the award of attorneys’ fees, as well as a proposed modification of Wisconsin rules of evidence on the admission of opinion testimony by lay and expert witnesses.