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    Wisconsin Lawyer
    June 01, 2006

    2005 Significant Court Decisions

    In his annual feature, the author highlights what he believes are significant Wisconsin Supreme Court and Court of Appeals decisions from 2005.

    Daniel W. Hildebrand

    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 3, June 2006

    2005 Significant Court Decisions

    In his annual feature, the author highlights what he believes are significant Wisconsin Supreme Court and Court of Appeals decisions from 2005.



    by Daniel W. Hildebrand

    In several cases in 2005, the Wisconsin Supreme Court construed the Wisconsin Constitution in a significant way to form public policy.


    In Ferdon v. Wisconsin Patients Compensation Fund,1 the supreme court held that the $350,000 cap on noneconomic damages applicable to health care tortfeasors2 violated the equal protection guarantees of the Wisconsin Constitution.3 The court determined that the legislature acted arbitrarily by shifting the economic burden of medical malpractice from insurance companies and negligent health care providers to a small group of vulnerable injured patients, and that there is no rational basis for treating the most seriously injured patients less favorably than those who are less seriously injured. The court also held that the cap was not rationally related to the legislative objective of lowering medical malpractice insurance premiums. Studies of the cap's impact on medical malpractice insurance premiums showed that it would be difficult to draw any conclusions based on enactment of the cap. The level of premiums is based on interest rates, investment returns, and competition among insurers. Further analysis of the operation of the Wisconsin Patients Compensation Fund showed that the fund has been fiscally sound both when there were no caps on noneconomic damages and, thereafter, when caps were ultimately instituted at $1 million and subsequently reduced to $350,000. The fund assessments have been decreasing over the years. As to the objective of lowering health care costs, medical malpractice insurance premiums are an exceedingly small portion of overall health care costs.

    Dan Hildebrand

    Daniel W. Hildebrand, U.W. 1964, is a shareholder of DeWitt Ross & Stevens S.C., Madison. He is a former president of the Dane County Bar Association and the State Bar of Wisconsin. He is a member of the ABA Standing Committee on Ethics and Professional Responsibility and the ABA Board of Governors. He also is a member of the American Academy of Appellate Lawyers and has a substantial appellate practice.

    Justices Prosser, Wilcox, and Roggensack dissented. They argued that other courts had upheld the constitutional validity of caps and disputed the irrationality of the cap when compared to legislative reasons for it. They argued that the legislature acted within its powers in enacting the caps.

    In Thomas v. Mallett,4 the supreme court extended the risk-contribution theory of Collins v. Eli Lilly Co.5 to lead pigment manufacturers. The Wisconsin Constitution confers on the supreme court the ability to create an adequate remedy when one does not exist.6 In reaching its decision, the court described the serious effects of childhood lead poisoning. The plaintiff will require lifetime medical monitoring for physical disorders and is at a high risk for developing future complications, including kidney disease, peripheral neuropathy, hypertension, and cardiovascular disease. However, the plaintiff was unable to demonstrate that he was injured by a particular white-lead carbonic pigment and was unable to identify the producer of the pigment he ingested at his residence, due to the generic nature of the pigment, the number of producers, the lack of pertinent records, and the passage of time. In reaching its decision, the court relied primarily on Collins v. Eli Lilly Co.,7 holding that the risk-contribution theory exists for situations in which a plaintiff is without any remedy and where negligent tortfeasors would not be responsible for their torts because they could not be identified. The court extended Collins to apply to the situation here, even though the plaintiff had a remedy against his former landlords. This remedy does not insulate manufacturers from liability under the risk-contribution theory.

    Justices Wilcox and Prosser dissented. First, they emphasized that this is not a case in which the plaintiff is without a remedy, because the plaintiff has recovered from his landlords. Application of normal tort rules of liability does not equate to asking the court to use a constitutional provision to shield parties from liability. Second, the dissent said that another problem is that the majority here, unlike the court in Collins, did not require the plaintiff to prove that the defendant reasonably could have contributed in some way to the actual injury. By extending the risk-contribution theory, the majority effectively created an irrebuttable presumption of causation resulting in absolute liability for manufacturers of raw materials.

    Constitutional Law

    In its initial decision in State v. Knapp,8 the supreme court held that physical evidence obtained as a direct result of a Miranda9 violation is inadmissible when the violation was an intentional attempt to prevent the suspect from exercising Fifth Amendment rights. However, in United States v. Patane,10 a plurality of the U.S. Supreme Court concluded that, under the Fifth Amendment, the fruit of the poisonous tree doctrine does not extend to derivative evidence discovered as a result of a defendant's voluntary statements obtained without Miranda warnings. The U.S. Supreme Court then vacated and remanded Knapp for further consideration.11

    On remand, the Wisconsin Supreme Court concluded that the fruit of the poisonous tree doctrine applies under the due process clause of the Wisconsin Constitution.12 Although the court recognized that substantially similar language in the state and federal constitutions should receive similar construction, the similarity or identity of the constitutional clauses cannot be conclusive unless the Wisconsin Supreme Court would forfeit to the federal judiciary the supreme court's power to interpret the Wisconsin Constitution. Furthermore, an interpretation of "due process" to apply the fruit of the poisonous tree doctrine to such evidence is consistent with the fact that the Wisconsin Supreme Court recognized the exclusionary rule long before the rule was incorporated into the Fourteenth Amendment by the U.S. Supreme Court.13 Because the goals of the exclusionary rule and the fruit of the poisonous tree doctrine are to curb illegal governmental activity, it is appropriate to apply the exclusionary rule to bar evidence obtained as a result of a deliberate Miranda violation.

    Justices Wilcox, Prosser, and Roggensack dissented. They argued that the court previously established that the due process clause of the Wisconsin Constitution does not create rights broader than those provided by the Fifth Amendment. They argued that the court should not suddenly change its well-settled manner of interpreting the Wisconsin Constitution simply to avoid the impact of Patane, arguing that such a tactic seriously undermines the prestige, influence, and function of the judicial branch of state government.

    • In State v. Dubose,14 the supreme court held that under the due process clause of the Wisconsin Constitution,15 evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible unless, based on the totality of the circumstances, the procedure was necessary. Prior decisions have established a due process right of criminal suspects to be free from confrontations that, under the circumstances, are unnecessarily suggestive. The state argued that the court should maintain its holdings that an impermissibly suggestive identification can still be used at trial if, based on the totality of the circumstances, the identification was reliable. However, relying on extensive studies regarding identification evidence, the court recognized that its current approach to eyewitness identification has significant flaws.

    The court concluded that evidence obtained from an out-of-court showup is inherently suggestive and will not be admissible, unless, based on the totality of the circumstances, the procedure was necessary. A showup will not be necessary unless the police lack probable cause to make an arrest or, as a result of other exigent circumstances, could not have conducted a lineup or a photo array. Lineups and photo arrays generally are more reliable than a showup, because they distribute the probability of identification among the number of persons arrayed, thus reducing the risk of misidentification. The court did not adopt a per se exclusionary rule, because showups have been a useful instrument in investigating and prosecuting criminal cases, and there will be circumstances in which such a procedure is necessary.

    Justices Wilcox, Prosser, and Roggensack dissented. If the Wisconsin Constitution is to mean anything, its principles must not be subject to change based on the prevailing winds of the time. The court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation. The majority should not rely on social science studies presented by advocacy groups to justify departure from precedent. Not only is the data disputed, but, more importantly, it does not constitute a valid basis to determine the meaning of the Wisconsin Constitution.

    Juvenile Law

    In State v. Jerrell C.J.,16 the supreme court adopted a supervisory rule requiring the electronic recording of custodial interrogation of juveniles. The juvenile was a 14-year-old male, arrested at his home on suspicion of robbery of a McDonald's. He was taken to the police station, booked, and placed in an interrogation room, where he was handcuffed to a wall and left alone for approximately two hours. He was advised of his Miranda rights. The juvenile initially denied involvement in the crime, but after persistent questions lasting more than five and one-half hours after the interrogation began and eight hours after he was taken into custody, the juvenile signed a statement prepared by the detective admitting his involvement in the robbery. Several times during the questioning, the juvenile asked if he could make a phone call to his mother or father, but each request was denied.

    The court weighed the defendant's personal characteristics against the pressures and tactics used by the police, and concluded that the state did not meet its burden of proving that the written confession was the product of a free and uncontrolled will. The court refused to adopt a per se rule excluding in-custody admissions from any child under age 16 who has not been given the opportunity to consult with a parent or interested adult. However, under the Wisconsin Constitution,17 the court has superintending and administrative authority over all state courts. Although troubled by the tactic of ignoring a juvenile's repeated requests for parental contact, the court maintained that it would continue to consider the totality of the circumstances approach. However, the court adopted a rule requiring an electronic recording in order to provide courts with the best evidence from which they can determine, under the totality of the circumstances, whether a juvenile's confession is voluntary. Contrary to the state's argument, the court is not adopting a rule of police practice but rather adopting a rule regarding admissibility of the juvenile's confession. The court plainly has the authority to adopt rules regarding the admissibility of evidence. A recording requirement will provide the court with a more accurate and reliable record of an interrogation, reduce the number of disputes over Miranda warnings and the voluntariness of confessions, protect the individual interest of police officers wrongfully accused of improper tactics, enhance law enforcement interrogations of juveniles, and protect the rights of the accused.

    Justices Wilcox, Prosser, and Roggensack concurred in part and dissented in part. They agreed that the juvenile's confession was involuntary and that his delinquency adjudication must be reversed. Once having made that holding, the majority should stop. The court should have recommended legislation instead of legislating from the bench. Attempting to dictate the practices of law enforcement agencies under the guise of "superintending" state courts is not an appropriate role for the judiciary.

    Punitive Damages

    Wischer v. Mitsubishi Heavy Industries of America Inc.18 and Strenke v. Hogner19 provided an interpretation of Wis. Stat. section 895.85(3), effective May 17, 1995. The statute provides that a plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or "in an intentional disregard of the rights of the plaintiff." In Wischer, the court of appeals concluded that in order to intentionally disregard the rights of a plaintiff, a defendant was required to have 1) a general intent to perform an act; and 2) either a) a specific intent to cause injury by that act; or b) knowledge that the act is practically certain to result in injury.20

    The supreme court disagreed with the court of appeals' construction of the statute. The legislature did not intend an "intentional disregard of the rights of the plaintiff" to require "intent to cause injury to the plaintiff." Rather, the legislature reaffirmed the common law principle that punitive damages may be premised on conduct that is in "disregard of rights." The legislature chose "intentional" to describe the heightened state of mind required of a defendant who disregards rights, replacing the common law definition of "wanton, willful and reckless."21 The phrase "disregard of rights" describes a type of conduct that involves indifference on the defendant's part to the consequences of his or her action. Thus, the result or consequence is intentional if the person acts with the purpose to cause the result or consequence or is aware that the result or consequence is substantially certain to occur from the person's conduct. An act or conduct that is substantially certain to result in the plaintiff's rights being disregarded requires that the act or course of conduct be deliberate. Additionally, the act or conduct must actually disregard the rights of the plaintiff, whether it be a right to safety, health, or life, a property right, or some other right. Finally, the act or conduct must be sufficiently aggravated to warrant punishment. Punitive damages cannot be imposed for negligence.

    In Strenke, the supreme court held that there was sufficient evidence to impose punitive damages in the case of a drunk driver who caused an accident. While the defendant may not have targeted the plaintiff personally, his intentional disregard of the rights of all motorists on the road necessarily implicated the plaintiff's rights. In Wischer, the evidence was sufficient to impose punitive damages when the defendant used a 45-story-high crane to lift a billboard-size load of nearly one million pounds on a windy afternoon without calculating wind speeds, and the crane's load chart limitations were exceeded.

    Justice Wilcox concurred with the result in Strenke but not with the court's interpretation of the statute. In Wischer, several justices concurred. Justice Wilcox dissented in Wischer and said that the court had written out of existence a duly enacted law of this state. He opined that the tragic facts of Wischer constituted reckless behavior that cannot be punished under the statute.


    12005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440.

    2Wis. Stat. §§ 655.017, 893.55(4)(d).

    3Wis. Const. art. I, § 1.

    42005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523.

    5116 Wis. 2d 166, 342 N.W.2d 37 (1984) (applying risk-contribution theory to manufacturers of a drug ingested during pregnancy).

    6Wis. Const. art. I, § 9; Collins v. Eli Lilly Co., 116 Wis. 2d 166, 342 N.W.2d 37 (1984).

    7See n.5, supra.

    82003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881.

    9Miranda v. Arizona, 384 U.S. 436 (1966).

    10542 U.S. 630 (2004).

    11Wisconsin v. Knapp, 542 U.S. 952 (2004).

    12State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899; Wis. Const. art. I, § 8.

    13See Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923); Mapp v. Ohio, 367 U.S. 643 (1961).

    142005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582.

    15Wis. Const. art. I, § 8.

    162005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110.

    17Wis. Const. art. VII, § 3.

    182005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320.

    192005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296.

    20Wischer v. Mitsubishi Heavy Indus. of Am. Inc., 2003 WI App 202, ¶ 40, 267 Wis. 2d 638, 673 N.W.2d 303.

    21Sharp v. Case Corp., 227 Wis. 2d 1, 595 N.W.2d 380 (1999).

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