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.”

Victor Schwartz, general counsel for the American Tort Reform Association (who has also represented the NAM on occasion), issued a statement in reaction to the Supreme Court’s ruling in Wyeth v. Levine. From ATRA:

Personal injury lawyers will applaud today’s Supreme Court decision, but we caution against any over-reading of the Court’s ruling. As the Court’s decision makes clear, implied preemption cases are fact-intensive, turning on what information the agency considered in a specific instance.

The Supreme Court’s decision focuses more attention on the flipside of the federal preemption coin. Several states have already determined, through courts or legislatures, that due deference should be given to the FDA in assessing the validity of a medicine’s warnings, particularly when there has been no wrongdoing by the defendant. The unfortunate truth is that all medicines come with risks. States should pick up the baton left for them today and join these other states in yielding to FDA scientists when, after years of earnest study, the FDA stamps a drug as safe and effective when accompanied by warnings explaining a medicine’s known risks.

U.S. Secretary of Agriculture Ed Schafer headlines this week’s “America’s Business with Mike Hambrick,” highlighting the benefits of trade to the U.S. economy even during the tough times of recession. Secretary Schafer looks at prospects for the pending U.S. free trade agreements, and sees hope for congressional action next year on Colombia and Panama, if not Korea. (For more from this interview, see this post on Shopfloor.org.)

Also on the program this week is Peter Buffett, musician, composer and son of mega-investor Warren Buffett. Peter will be attending the Future Capitals Summit in Abu Dhabi on January 13-15. This conference is taking place to discuss which countries will emerge as centers of commerce in the coming years, a topic of the younger Buffet’s expertise.

The American Tort Reform Association has released its latest “Judicial Hellholes” detailing the states and venues where frivolous and abusive lawsuits drive up costs and destroy justice. ATRA’s general counsel, Victor Schwartz, joins Mike to tell us which jurisdictions are improving and which are becoming even more hell-like. We’ll follow that up with our “Legally Insane” case of the week with Renee Giachino of the American Justice Partnership.

Wind power promises to be an important part of America’s energy portfolio in the coming year. Here to give the lowdown on wind’s potential is Greg Wetston, Senior Director for Government Affairs at the American Wind Energy Association. And for another perspective on wind power, on the program is Steve Lockard, President and CEO of TPI Composites. TPI Composites manufactures the blades you see on those large wind towers.

In our regular segments, NAM commentator Hank Cox recalls “The Way It Was.” And the National Association of Manufacturers President Gov. John Engler will close the program with “The Last Word.”

For more about “America’s Business” and to listen to the program online, please visit www.americasbusiness.org.

The American Tort Reform Association today released its “Judicial Hellholes” report, highlighting the jurisdictions where arbitrarily practiced caprice distorts the rule of law and raises costs to business, consumers and taxpayers.

From the news release:

Washington, DC, December 16, 2008 — The American Tort Reform Foundation today released its annual Judicial Hellholes® report, naming some of the nation’s “most unfair civil court jurisdictions,” including perennial “Hellholes” West Virginia, South Florida and Cook County, Illinois; relative newcomers Clark County, Nevada, and Atlantic County, New Jersey; as well as Los Angeles County, California, and Alabama’s Macon and Montgomery counties, which are returning to the unwanted spotlight after respective absences.

The report also cites several “Watch List” jurisdictions that are on the cusp - “they may fall into the Hellholes abyss or rise to the promise of Equal Justice Under Law” - in the Rio Grande Valley and Gulf Coast of Texas; the once notorious Madison County, Illinois; Baltimore, Maryland; St. Louis (the City of), and St. Louis and Jackson counties, Missouri. Also noted less severely as “other areas to watch” were Orange County, California; St. Clair County, Illinois; Madison, Wisconsin; Seattle, Washington; New Orleans, Louisiana; Santa Fe, New Mexico; and the states of Minnesota and Oklahoma.

“Lawsuit abuse continues to have a negative impact on the nation’s economy, as well as particular state economies,” began ATRF president Tiger Joyce. “Every dollar spent defending against a speculative lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation. Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the threat of costly litigation.”

Lots of very good, very interesting observations and analysis. To read the entire report in .pdf (3 MB), go here.

From the American Tort Reform Association, a news release. ATRA joined the NAM and other business and insurance groups in filing an amicus brief on behalf of the defendants. Excerpt:

“Though it’s troubling that the original lawsuit ever got as far as it did,” observed ATRA president Tiger Joyce, “those of us who advocate for preserving the rule of law and reasonable predictability within our civil courts are very pleased with the high court’s reversal of the trial judge.

“Rhode Island’s former attorney general and the outside counsel he contracted with had shamelessly tried to stretch public nuisance law beyond recognition,” Joyce continued. “Though the trial judge was willing to go along with this perversion of the law, the state’s supreme court would have none of it, and its unambiguous rejection of the state’s case restores some logic to this area of tort law.”

From the private lawfirm hired by the Rhode Island Attorney General on a contingency-fee basis, Motley Rice LLC, a statement, remarkably strident in tone. The calmest excerpt:

“The Rhode Island Supreme Court today issued a ruling that we believe radically departs from long-standing public nuisance law by finding that the companies that originally manufactured and sold the poisonous paint have no responsibility for this public health crisis,” stated Motley Rice Member Jack McConnell who has worked on the litigation since its inception. “Unfortunately the Rhode Island Supreme Court today ended the abatement process that was very close to finally solving the major public health problem and would have protected our children once and for all.”

So they’re sticking with “radically departs from long-standing public nuisance law,” evidence to the contrary. If you go back to the oral arguments before the Rhode Island Supreme Court you’ll see that the state’s lawyers were reducing to arguing the facts, not the law — problematic at the appellate phase. Their contention, “lead paint is bad,” elicited reaction from the court along the lines of, “Yes, agreed, but what about the law?” The attorneys had no good response.

Probably because ….

From Lisa Rickard, President of the U.S. Chamber Institute for Legal Reform, and Robin Conrad, Executive Vice President of the National Chamber Litigation Center, a statement:

Public nuisance is an 800- year old legal theory twisted by the plaintiffs’ bar and overreaching state attorneys general.  We commend the Rhode Island Supreme Court’s ruling today for rightly repudiating this flawed legal scheme designed to put more money into the pockets of trial lawyers while doing little to correct any perceived wrongs.  The Court rightly recognized it’s the job of the legislature, not the judiciary, to create new causes of action. Today’s ruling should be a sign to courts across the country that public nuisance cases should not be used as a tool for plaintiffs’ lawyers to extort millions of dollars from companies