2009-10 Legislative Review

WDC Journal Edition: Summer 2010
By: Andrew Cook, The Hamilton Consulting Group

On April 23, the Wisconsin Legislature adjourned the 2009-10 legislative session. A number of bills introduced had a direct impact on WDC members, including the businesses and individuals that WDC members represent. Ultimately, each of these bills was defeated thanks in great measure to the efforts of WDC leadership and members.

Included among these bills was legislation that would have negatively affected defendants’ ability to obtain plaintiffs’ pre- and post-accident medical records, and would have severely altered how independent medical exams are performed in personal injury lawsuits (AB 815/SB 628). In addition, a bill introduced near the end of session would have significantly changed the way interest claims under Wisconsin Statutes § 628.46 are determined by courts (AB 938). Last year, controversial measures inserted in the state budget were similarly defeated. These measures would have altered Wisconsin’s laws pertaining to joint and several liability, comparative fault, and jury instructions.

WDC President Catherine Rottier, along with WDC Board Members Arthur Simpson, Michael Gill, and Past-President Michael Crooks were instrumental in testifying against these bills at legislative hearings. Other WDC members testifying against the bills were Attorneys Stephen Murray, Past-President Wayne Maffei, Donald Schultz and Claude Covelli. In addition, WDC member Mark Larson testified against legislation (AB 291/SB 203) that would have expanded recovery for loss of society and companionship in medical malpractice cases. WDC’s involvement was invaluable in countering the arguments made by the proponents of the legislation.

The 2009-10 regular session is now officially completed. All bills that failed to pass this session are dead. These bills, however, can be reintroduced next January when the Legislature begins the 2011-2012 legislative session.

Given the odds stacked against WDC and other concerned groups when the session began, it was a very successful session. Including the joint and several liability and related comparative fault provisions in the budget, the most significant bills opposed by WDC this session did not became law. (Please note that SB 182 and SB 20 were not supported by WDC, but the final versions included improvements and the bills, as amended, were not actively opposed by WDC.)

Below are the most notable bills from the 2009-10 session.

  • SB 628/AB 815 (Medical Records and Medical Exams): Substantially limits a defendant’s attorney from determining whether a plaintiff’s injuries were the actual result of the accident caused by the defendant. Limits the amount of medical examinations a defendant could perform on the plaintiff. Also, severely limits the defendant’s ability to review plaintiff’s medical records when determining whether the accident caused by defendant led to the plaintiff’s injuries.

Status: DEAD

  • AB 938 (Bifurcation of Trials Involving Claims of Interest): Provides that if a trial court bifurcates a trial with respect to a claim for interest that is allegedly due on insurance proceeds that were not timely paid, all claims must be heard by the same jury.

Status: DEAD

  • SB 673/AB 951 (Nullifying certain arbitration agreements between a resident and a nursing home or similar care facility): Under this bill, contractual agreements that compel arbitration and that limit the rights of a resident to bring a civil lawsuit or limit the remedies available to a resident in a suit against a nursing home, adult family home, resident care apartment complex, or community−based residential care facility are void as against public policy.

Status: DEAD

  • SB 203/AB 291 (Medical Malpractice Liability): Expands medical liability by allowing adult children and their parents sue for loss of society and companionship damages.
    Status: DEAD
  • AB 894 (Workplace Bullying): Adds a private cause of action, along with punitive and compensatory damages, for alleged workplace bullying.

Status: DEAD

  • SB 275/AB 367 (Credit Histories): Allows job applicants and employees to sue employers and seek punitive and compensatory damages if an employer “discriminates” against them based on that person’s credit history.
    Status: DEAD
  • SB 563 (Medical Malpractice Statute of Limitations): Extends wrongful death statute of limitations in cases dealing with medical malpractice. Seeks to overturn a recent Wisconsin Supreme Court decision, Estate of Genrich v. OHIC Ins. Co., which held that the time limit for a wrongful death action caused by medical malpractice is counted from the date of the deceased person’s injury instead of the date of death.

Status: DEAD

  • SB 337/AB 480 (Gender-based Cause of Action): Creates a new civil cause of action for a person who suffers physical, emotional, or economic harm as a result of a gender−based act. Imposes a seven-year statute of limitations. A plaintiff who prevails in a civil action for a gender−based act may recover damages for emotional distress, punitive damages, and investigation or litigation costs, including attorney fees.
    Status: DEAD
  • AB 75 (Budget Bill – Joint and Several Liability): Would have altered Wisconsin’s joint and several liability law by forcing co-defendants as little as one percent at fault to potentially be responsible for 100 percent of the damages.
    Status: DEAD
  • AB 75 (Budget Bill –Combined Fault): Would have allowed a person or business that is less at fault than the plaintiff to be sued so long as the combined fault of all the persons sued was equal to or greater than that of the plaintiff.
    Status: DEAD
  • AB 75 (Budget Bill – Jury Instructions): Would have overturned well established law regarding jury instructions by requiring the court to explain to the jury the effect on awards and liabilities of the percentage of negligence found by the jury to be attributable to each party.
    Status: DEAD
  • SB 182 (Statute of Limitations for Intentional Torts): Increases the statute of limitations for intentional torts from two years to three years.

Status: PASSED (2009 WI Act 120) – This act first applies to injuries occurring on the effective date of this subsection, which was Feb. 25, 2010)

  • SB 20 (Wisconsin Fair Employment Law): Adds punitive and compensatory damages for employment discrimination under the Wisconsin Fair Employment Law.

Status: PASSED (2009 WI Act 20).

Andrew Cook is a lobbyist with the Hamilton Consulting Group, LLC in Madison, which represents the Wisconsin Defense Counsel before the Wisconsin Legislature. Prior to joining Hamilton Consulting, Mr. Cook practiced law in Seattle, WA as an in-house attorney for the Building Industry Association of Washington. Mr. Cook also practiced land use and environmental law at the Pacific Legal Foundation in Seattle.