Civil Liability Reforms Once Again Part of Governor’s Special Session

Building off the civil liability reforms enacted earlier this session, Governor Walker introduced four more bills for the special session. These include interest on judgments, immunity for manufactureres and sellers of FDA-approved drugs and devices, determining reasonable attorney fees, and trespasser liability. Below is a summary of each.

Interest on Judgments: This bill reduces Wisconsin’s high pre- and post-judgment interest rate from 12 percent to the Prime Rate set by the Federal Reserve Board, plus one percent. The legislation applies to civil actions in tort, actions brought under Wisconsin’s Consumer Act, and in consumer protection actions commenced by the Department of Agriculture, Trade, and Consumer Protection. Wisconsin currently has one of the highest pre- and post-judgment interest rates in the nation.

Immunity for Manufacturers and Sellers of FDA-Approved Drugs and Devices: This legislation provides civil liability immunity to a manufacturer or a seller of a drug or device for any claim based on strict liability for a defect if the drug or device was approved by the federal Food and Drug Administration (FDA) at the time it left control of the manufacturer or seller. The bill also provides immunity from liability for any claim based on the failure to warn of the risk of the drug or device if labeling was made available and it was in compliance with applicable standards established by the FDA at the time the drug or device left the control of the manufacturer or seller.

Determining Reasonable Attorney Fees: This legislation requires courts to consider 14 criteria when determining whether to award attorney fees and in determining whether the amount of the fees is reasonable. Considerations for setting fees include the time and labor required by the attorney, the complexity of the case, and the experience, reputation, and ability of the attorney performing the services.

In addition, the bill limits attorney fees to no greater than three times the amount of compensatory damages awarded. The bill provides an exception in cases where only nonmonetary relief is awarded or in cases involving compensatory damages and nonmonetary relief. In cases where both compensatory damages and nonmonetary relief are awarded, the bill sets forth a rebuttable presumption that an attorney fee is not reasonable if it is more than three times the amount of compensatory damages.

Trespasser Liability: In Wisconsin and most other states, land possessors generally owe no duty of care to trespassers, and are not liable for their injuries. [Hofflander v. St. Catherine’s Hosp., Inc., 262 Wis. 2d 539, 575, 664 N.W.2d 545, 601 (2003] These rules have existed for decades, usually as part of the common law. The American Law Institute’s Third Restatement of Torts potentially expands trespassers’ rights to sue landowners. The proposed legislation would codify existing Wisconsin case law pertaining to landowner liability to trespassers, preventing Wisconsin courts from adopting the expanded liability contained in the Third Restatement.

  • Error: Could not authenticate you.