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2011-12 Civil Justice Initiatives

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In a defining effort, the Wisconsin Legislature, with Gov. Walker’s leadership, enacted sweeping civil justice reforms during the contentious 2011-12 Legislative Session. Landmark reforms relating to product liability, expert opinion testimony, risk contribution, and caps on punitive damages, among others, turned Wisconsin’s souring litigation and business climate into one of the most competitive jurisdictions in the country from a litigation standpoint.

Hamilton Consulting's in-depth analysis of recent civil justice reforms, Wisconsin Civil Justice Reforms: A Summary of the Watershed Reforms Enacted During the 2011-12 Legislative Session, is now available.

Although 2011-12 was a remarkable legislative session, our work is by no means finished. The Hamilton team will continue to pursue additional civil justice reforms and protect this session’s positive changes on behalf of our clients in future legislative sessions.

Please contact Andrew Cook or Bob Fassbender with any questions.
 

Civil Justice Reforms in Wisconsin

Wisconsin Civil Justice Reforms: A Summary of the Watershed Reforms Enacted During the 2011-12 Legislative Session, The Hamilton Consulting Group, April 2012

January 2011 Special Session

The first initiative advanced as part of the Special Session was Special Session Senate/Assembly Bill 1 containing a suite of legal reforms. The following reforms were signed into law as 2011 Wisconsin Act 2:

  • Adoption of more reasonable product liability standards for manufacturers and sellers – Requires proof of a “reasonable alternative design” in an alleged defective design of a product, moving Wisconsin away from the broad “consumer expectation” test.
  • Elimination of the deeply flawed “risk contribution” theory in manufacturing lawsuits – Overturns the Wisconsin Supreme Court’s 2005 decision, Thomas v. Mallett, where the court adopted the deeply flawed “risk contribution” theory in cases involving lead-based paint. Wisconsin is the only state in the country to have adopted this theory. The court’s decision led the Wall Street Journal to pen an editorial describing Wisconsin’s litigation climate as “Alabama North.” (August 9, 2005)
  • Adoption of sound science principles (Daubert principles) – Limits testimony of experts and evidence to that which is based on sufficient facts or data and is the product of reliable principles and methods. 
  • Limits on punitive damages – The Senate and Assembly amended the bill to keep in place existing law for determining punitive damages but then set a cap on punitive damages at $200,000 or two times compensatory damages, whichever is greater.
  • Sanctions on frivolous lawsuits – A party may be liable for costs and fees for bringing a lawsuit or claim that is done solely for the purpose of harassing or maliciously injuring another party.

Additional Information:

September 2011 Special Session

Factors Determining Reasonable Attorney Fees

  • This bill sets forth a number of criteria courts are to consider when awarding attorneys’ fees in fee-shifting cases. The bill also sets a rebuttable presumption that attorneys’ fees are no more than three times compensatory damages.
  • Special Session AB 12

Trespasser Responsibility Act

  • This bill codifies current law is it relates to the duty of care owed to a trespasser by a possessor of land. The purpose of the bill is to prevent the courts from adopting the new Restatement (Third) of Torts, which expands the duty of care owed to trespassers and exposing possessors of land to greater liability.
  • Special Session AB 22/SB 22
  • WCJC Fact Sheet

Setting Reasonable Interest on Judgments

2011-2012 Regular Legislative Session

Fair Employment Act – Convicted Felons

Fair Employment Act – Compensatory and Punitive Damages