Timothy Barber
Timothy Barber

What the New Tort Reform Law Means for You

February 3, 2011

On January 27, 2011, Governor Scott Walker signed 2011 Special Session Senate Bill 1 — enacted as 2011 Wis. Act 2. This legislation contains the most significant changes to tort law in Wisconsin in over 10 years. How might these changes affect you?

People Injured by Products
If you are injured as a result of a defective product, the tort reform legislation makes it more difficult to recover damages for your injuries. Before the new law was signed, people injured by a product could sue the product manufacturer, distributor, and/or retailer — all of which were strictly liable for the defective product. Now, with certain limited exceptions, only product manufacturers can be held strictly responsible for product defects. The new law also gives product manufacturers new defenses and allows liability for damages to be reduced in certain circumstances. In short, the new law makes it more difficult for a person to recover damages for injuries due to a defective product.

People Injured by Medical or Nursing Home Negligence
The new tort reform law makes it more difficult for someone injured by nursing home negligence to recover damages for his or her injuries. The new law imposes strict time limits for bringing a lawsuit and limits the liability of nursing homes for damages for pain and suffering and wrongful death. People injured by medical negligence can no longer use reports generated during internal investigations or investigations by a government agency to prove that a medical provider was negligent or had a history of mistreating patients.

Product Manufacturers
The new tort reform legislation makes several dramatic changes to the laws relating to product liability in Wisconsin. Among other changes, the new law changes the definition of what a “defective” product is and provides manufacturers with several new defenses to product liability claims. Also, injured parties are now responsible for the percentage of their damage attributable to their own misuse of a product. Unless a manufacturer is more than 51 percent at fault for a person’s injuries, it is no longer responsible for all of the injured person’s damages; rather, it is liable only for those damages attributable to its own conduct.

Manufacturers are also protected by a new 15-year statute of limitations. Finally, except in rare cases, injured parties can no longer sue an entire industry under a “risk contribution” theory; instead they must prove what specific product and what specific manufacturer caused their injuries.

Product Retailers and Sellers
Product distributors and retailers receive significant protections under the new tort reform legislation. Before the new legislation was passed, product retailers were strictly liable for all damages caused by a defective product they sold — even if they did nothing to modify the product and made no representations or guarantees about how the product would perform. Retailers were also responsible for all of an injured person’s damages, even if the product manufacturer or another person was more at fault for the person injuries.

Under the new law, product distributors and retailers are generally not liable for injuries caused by defective products they sell. They are only exposed to liability if the product manufacturer is not subject to suit in Wisconsin or if they assumed liability for damages due to defective products in their contract with a product manufacturer. Product distributors and retailers also benefit from the new 15-year statute of limitations and new limits on “risk contribution liability.”

Nursing Homes and Long-Term Care Providers
The new tort reform legislation enacted significant protections for nursing homes and long-term care providers. Nursing homes are now protected from lawsuits alleging negligent treatment or care of a resident by a three year statute of limitation that can be extended only if a person’s injuries remain hidden. However, nursing homes are immune from liability after five years in all cases. Additionally, the new law significantly limits the amount of damages that are recoverable against nursing homes. Nursing homes are now protected by the same limits on damages for pain and suffering and for wrongful death as are health care providers. Finally, nursing homes are not responsible for paying any portion of a person’s damages that has been paid by an insurance company, Medicaid, or another source.

Health Care Providers
The new tort reform legislation protects health care providers from use of peer review reports or administrative investigations in both civil and criminal actions. The new law provides that peer review reports, the results of administrative investigation and any documents generated during a review or investigation are not discoverable and cannot be introduced into evidence. All parties to a lawsuit will be affected by several procedural changes made in the new tort reform legislation. The new law changes the standard for admitting expert testimony and makes it harder to qualify an expert. This may result in increased litigation costs for all parties and increase the time it takes to bring a case to trial because now the judge will need to determine if an expert witness’ opinions are reliable and based on sound science. The new law also makes it easier for courts to impose sanctions on both parties ad/or their attorneys for making frivolous claims or defenses in a lawsuit. Trial courts are now authorized to force a party that makes a frivolous claim or defense to pay the costs and attorney fees incurred by the other party.

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