Will Governor Doyle Help Restore Balance to the Litigation Business Climate in Wisconsin?

WDC Journal Edition: Fall 2005
By: Michael P. Crooks - CTCW President

Governor Doyle may have a tremendous opportunity to help make Wisconsin a business friendly climate again, during the next legislative floor session (10/25/05 - 11/11/05). Wisconsin was ranked tenth (10th) in the country in 2004 by the U.S. Chamber of Commerce as a business haven. That ranking slipped to seventeenth (17th) in 2005. Conventional wisdom is that, as a result of several recent Supreme Court decisions, the next ranking will be significantly lower.

Three recent cases illustrate the current anti-business trend of the Supreme Court. The first is Wischer v. Mitsubishi Heavy Industries, decided in March of 2005. The Legislature had enacted a statute that was intended to establish a higher threshold for the recovery of punitive damages than had been in existence at common law. The Supreme Court’s decision negated the statute and the legislative desire to make the recovery of punitive damages more difficult for plaintiffs.

Next, in Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, the Supreme Court struck down the non-economic damages cap in medical malpractice cases, a cap the Legislature had passed in 1995, prior to Governor Doyle’s election. While a majority of the Court held that a cap could be constitutional, the Court held that the current cap was not and was instead irrational.

Another Supreme Court decision released the day after Ferdon, Thomas v. Mallett, continued this anti-business trend. The Court allowed a teenager suffering from mild cognitive problems to sue a group of companies that produced a pigment used in lead paint, despite a lack of proof as to: (1) whether the teenager had ingested the pigment at all, (2) when the pigment he supposedly ingested was manufactured, and (3) what company manufactured the pigment he supposedly ingested. The case is viewed by many in the business community as an expansion of the old (1984) DES market share theory of liability.

These three decisions of the Supreme Court have garnered a great deal of attention within the state. Additionally, they have received national attention. An August 9 editorial in the Wall Street Journal went so far as to call Wisconsin “Alabama North.” As the paper noted, “Texas, Georgia and even Mississippi have all passed tort reform to improve their economies and stop the exodus of doctors. But now bidding to take their place as a favorite trial lawyer destination is the previously sensible state of Wisconsin, led by its Supreme Court.”

Since taking office in 2002, Govenor Doyle has vetoed several significant litigation-related bills. Many of those bills have involved measures which would aid businesses and their counsel in the litigation context. Shortly, however, Governor Doyle will be presented with a unique opportunity to put some balance back in the system and make civil litigation more equitable for businesses in Wisconsin. Whether he will seize that opportunity is not yet known. What is known is that the Governor has already vetoed several business-friendly litigation related bills that have come across his desk. Some examples include:

Assembly Bill 423 - This bill would have limited the circumstances in which a person could recover double damages for a dog bite injury against insurers and their insureds.

Assembly Bill 595 - This bill would have created a civil liability exemption for lawsuits resulting from weight gain and obesity.

Senate Bill 49 - The Daubert Bill - This bill would require a heightened standard for the admission of expert testimony, consistent with 33 other states and the entire federal system.

Assembly Bill 255 - This bill would have eliminated the specific immunity exceptions under which municipalities can be held liable for an insufficiency or want of repairs on a highway.

The legislative leadership has indicated that civil justice reform to promote a more pro-business climate will be a key priority in the upcoming legislative session. Bills that the Legislature expects to take up during the next session include: medical malpractice damage caps, a products liability bill to limit exposure of entities merely in the stream of commerce for products, a bill addressing the standard for punitive damages, a bill addressing the standards necessary for expert testimony, and a bill addressing whether a product manufacturer can be held liable for injury caused by a product not specifically identified as its own.

If the Legislature delivers the pro-business bills which are expected to be taken up during the next legislative session, all of which will have some impact on litigation in the State of Wisconsin, Governor Doyle will have a unique opportunity to restore Wisconsin’s reputation as a business-friendly litigation climate. For the good of Wisconsin citizens as a whole, I urge Governor Doyle to take a serious look at each of these bills, signing those which will help make Wisconsin economically strong for the future.

2005 WI 26, 279 Wis. 2d 4, 694 N.W.2d 320

2005 WI 125

2005 WI 129