On January 27, 2011, Wisconsin Governor Scott Walker signed into law a significant tort reform statute. The bill, introduced at Governor Walker’s request, passed both houses of the state legislature during special session.
The legislation covers a wide range of issues. Among the most far-reaching could be its alteration of Wisconsin’s standard for admission of expert testimony. The state has had one of the most liberal standards in the nation, focusing almost exclusively on the qualification of the witness. Wisconsin courts had rejected the Frye and Daubert tests. The new law adopts an approximation of Daubert. Expert testimony must now be based upon sufficient facts or data, be the product of reliable principles and methods, and result from the expert’s reliable application of the principles and methods to the facts of the case. Experts also may not testify if they have any fees contingent on the outcome of the case.
The bill also legislatively overturns the Wisconsin Supreme Court’s controversial Thomas v. Mallett decision that extended “risk contribution” theory to a product liability case alleging exposure to lead pigment. The risk contribution doctrine relieved a plaintiff of the burden of proving that a product defendant actually manufactured or sold the specific product alleged to have caused injury. Under the new statutory scheme, plaintiffs are generally required to prove product identification. Limited exceptions to product identification are permitted, but only if the plaintiff has joined manufacturers who collectively produced at least 80% of chemically identical products sold in Wisconsin. In addition to that requirement, the plaintiff must also show that no other lawful process exists to seek redress for the injury, that only the product at issue or a chemically identical product could have caused the injury, and that the defendant sold the product or a chemically identical one during the required time period. Potential liability under these provisions applies only for products sold within 25 years before the plaintiff’s cause of action accrued.
One of the other significant changes is the comparative fault scheme for strict liability products actions. The jury must apportion fault between the plaintiff, the allegedly defective product and the contributory negligence of any other person. If the plaintiff’s percentage of fault is greater than that of the product, the plaintiff cannot recover from any party responsible for placing the product into the stream of commerce. If the plaintiff’s percentage is not greater than the product’s, the jury must apportion responsibility for the defect among all defendants alleged to have caused the defect. The court then multiplies each defendant’s percentage of responsibility for the defect by the percentage of fault attributable to the product, and the result is the defendant’s percentage of liability for damages. Joint and several liability applies only to defendants for which this final percentage is 51% or more.
This legislation also adopts statutory criteria for determining whether a product is defective. A design defect is defined to exist when “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design” and failure to adopt that alternative design makes the product not reasonably safe. There is a separate requirement that the defect make the product unreasonably dangerous.
Other highlights of the bill include:
• A rebuttable presumption that drug or alcohol intoxication by the injured party was the cause of injury;
• Exclusion of subsequent remedial measures evidence from products cases;
• A 15-year statute of repose for products actions, except in cases of latent disease or when the manufacturer specifies a longer lifetime;
• Application of the medical malpractice statute of limitations and noneconomic damages cap to actions against long-term care providers;
• Adoption of a stricter standard for awarding punitive damages, which are now permitted only if the defendant acted with intent to injure particular persons or with knowledge that the injury was practically certain to result.