We’ ve paid little attention to the political goings on in Wisconsin since 2007, when Gov. Jim Doyle tried to pass a tax on oil company revenues, prohibiting them from passing the tax onto consumers. The tax grab eventually died for many reasons, including its obvious violation of the Commerce Clause.
The governor is once again sending business a message: Stay away! Attempting to undo the civil justice reform measures of the 1990s, Gov. Doyle included a major expansion of business and individual liability in his budget (Assembly Bill 75). According to Wisconsin Manufacturers and Commerce’s fact sheet:
It eliminates current joint and several liability rules that compare a plaintiff’s liability to each person who negligently caused the plaintiff’s injury. Under the budget bill provisions a plaintiff could collect damages even when he or she is more at fault for the injury than any individual defendants, as long as the plaintiff’s liability is not greater than the combined negligence of all the persons against whom recovery is sought.
Further, it repeals current law where the liability of a person who is less than 51 percent negligent for an injury is limited to that person’s percentage of the total negligence. Finally, it repeals current law that limits joint and several liability to a person whose negligence for the injury is 51 percent or more of the total liability. Assembly Bill 75 provides that any person whose negligence is equal to or greater than the negligence of the person seeking recovery is jointly and severally liable for all the damages award to the person seeking recovery.
Inclusion of policy provisions in fiscal bills is generally frowned upon, but it’s not clear whether the Legislature will remove the language as in years past. Democrats took control of the Assembly in the 2008 elections and expanded their control of the Senate, so trial lawyers are seeing an opportunity for major policy gains. See also:
- Wisconsin Civil Justice Council Fact Sheet
- Wisconsin Civil Justice Council Memo to Legislature
- Wisconsin Law Journal, “Lawyers divided over proposal”
- Legislative Analysis, via Hamilton Consulting Group.
Unfortunately, Wisconsin is just one state of many where the trial lawyers are trying to expand the opportunities to cash in on the litigation lottery. Sherman “Tiger” Joyce of the American Tort Reform Association summarizes the activity in the state legislature in the April issue of Metropolitan Corporate Counsel, “Rampant “Litigation Legislation” (Except Southeast) Threatens Recovery.”
UPDATE (1:05 p.m.): The Capital Times of Madison reports today, “Legislature set to change limits in personal injury cases.” Cutting to the chase…
“This is simply about the trial lawyers seeking out those who have the deepest pockets,” said Bob Fassbender of the Wisconsin Civil Justice Council Inc., a coalition representing Wisconsin employers that was formed earlier this year to fight such legislation. “But it’s going to have a chilling effect on the state’s business climate at exactly the wrong time.”
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