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  • Governor signs controversial tort reform bill into law

    Adam Korbitz

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    Jan. 27, 2011 – Gov. Scott Walker has signed a controversial omnibus tort reform bill into law, one week after the Republican-controlled Legislature completed work on the most extensive changes to Wisconsin’s civil litigation system in at least 16 years.

    Gov. Walker signed the bill into law as 2011 Wisconsin Act 2 on Thursday, Jan. 27, 2011, only 23 days after legislators first introduced the legislation.

    As passed by the Legislature, the bill will generally apply to actions filed on or after the act’s effective date, which is Feb. 1, 2011. Under Wis. Stat. section 991.11, an act’s effective date is the day after the act’s publication date as determined by the secretary of state, unless otherwise specified. The secretary of state published the act on Jan. 31, 2011.

    Heated debate and rapid passage

    The Legislature debated, passed and sent the bill to Gov. Walker in an unusually short time. Walker and the Republican leadership in the Legislature placed the bill on a fast-track for passage during the ongoing special session related to job creation and the governor’s declaration of an economic emergency.

    The controversial bill generated heated debate from the moment it was introduced. The Wisconsin Defense Counsel, a statewide association of litigation defense attorneys, immediately praised the bill upon its release. Likewise, the Wisconsin Association for Justice, a statewide association of litigation plaintiffs’ attorneys, immediately condemned the bill. The State Bar of Wisconsin’s Board of Governors also opposed major provisions in the bill.

    Republican leaders first introduced the Assembly version of the bill on Tuesday, Jan. 4, the day after Walker and the new legislature were sworn into office.  One week later, on Jan. 11, both the Senate and Assembly judiciary committees gave the tort reform bill a 10-hour public hearing that lasted until 11:00 p.m.  The Senate committee approved the bill three days later on Jan. 14, and the Assembly Committee followed on Jan. 18.

    The full Senate debated and passed an amended version of the bill by a 19-14 party-line vote on Jan. 18. The Assembly followed on Jan. 20, voting 57-36 (likewise along party lines) to approve the Senate’s version of the bill and sending it to Gov. Walker for his signature.

    Partisan floor debate on the bill also became very heated at several times in both the Senate and the Assembly. At one point, Assembly Speaker Jeff Fitzgerald chastised members of the Democratic minority for painting Republicans as soft on crime over provisions in the bill that cap punitive damages.

    Republicans firmly in control

    The rapid passage of the bill illustrates the strength and degree of Republican control over the Legislature. Following last fall’s general election, Republicans control the Assembly by a 57-38-1 margin. (Three more seats in the Assembly had been held by Republicans after the fall election but are currently vacant due to gubernatorial appointments.) Republicans likewise gained control the Senate by a 19-14 margin in the fall general election.

    This degree of control allowed Republicans steer the bill through the Legislature quickly and with few changes that they didn’t want. During Senate debate on the bill, the Senate rejected, on a series of 19-14 party-line votes, 13 Democratic amendments. Similarly, during Assembly debate on the bill, the Republican majority soundly defeated a series of 20 Democratic amendments to the bill.

    Bill caps punitive damages, imposes Daubert

    The new act maintains current law regarding the legal standard necessary to impose punitive damages, but imposes a cap of two times compensatory damages or $200,000, whichever is greater. As originally introduced, the bill would have substituted a new and more stringent standard for punitive damages, which many critics said would make it more difficult to obtain punitive damages in lawsuits against drunk drivers who kill or injure others. As amended by the Legislature, the bill will maintain the current standard requiring a plaintiff to show that a defendant acted maliciously or with intentional disregard of the plaintiff’s rights in order to obtain punitive damages.

    The Legislature also amended the bill to make the new punitive damages cap inapplicable to lawsuits related to operating a motor vehicle while intoxicated.

    In a measure opposed by the State Bar’s Board of Governors, the new law also conforms Wisconsin law regarding the opinions of lay and expert witnesses to Federal Rule of Evidence 702 and the so-called Daubert standard.

    State Bar opposed three provisions

    The new tort reform law has several provisions that are opposed by the State Bar’s Board of Governors.  The three provisions opposed by the State Bar’s Board of Governors extensively rewrite state product liability law; impose caps on non-economic damages in lawsuits against various providers of long-term care such as nursing homes, hospice centers and assisted living facilities; and, as mentioned previously, conform Wisconsin law regarding the opinions of lay and expert witnesses to Federal Rules of Evidence 702 and the Daubert standard.

    Other provisions

    Other provisions of the new tort reform bill include measures to reverse the Wisconsin Supreme Court’s lead paint liability decision in Thomas v. Mallett, 2005 WI 129; rewrite state rules relating to damages for frivolous claims; provide for the confidentiality of health care quality improvement reviews; and apply a three-year statute of limitations to lawsuits against long-term care providers.

    The bill also includes other provisions that will effectively immunize a health care provider from criminal prosecution for death or bodily harm to a patient resulting from essentially negligent conduct.

    Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on these issues.

    By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

    Related articles:

    Assembly sends omnibus tort reform bill to governor - Jan. 26, 2011
    State Senate passes omnibus tort reform bill, makes new law effective immediately - Jan. 19, 2011
    Senate Judiciary Committee approves omnibus tort reform bill, recommends changes - Jan. 14, 2011
    State Bar informs special session committees of its opposition to tort reform provisions - Jan. 11, 2011
    Legislature holds hearing on special session bills - Jan. 11, 2011
    Republicans introduce omnibus tort reform bill, public hearing scheduled for Tuesday – Jan. 6, 2011.

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    Rotunda Report is the State Bar of Wisconsin’s Government Relations e-newsletter that highlights legislative, judicial, and administrative developments that impact the legal profession and the justice system. It is published twice a month and is distributed free to attorneys, public officials and others who help shape public policy in Wisconsin. We invite your org pubaffairs wisbar suggestions to make the Rotunda Report more informative and useful and we encourage you to visit our Web site for the most current information about justice-related issues.

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