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December 21, 2005

Wisconsin Legislature Considers Several Changes in Products Liability Law

The Wisconsin legislature has submitted a bill for the governor's signature that would limit the affect of the Wisconsin Supreme Court's ruling last summer in Thomas v. Mallett, 701 N.W.2d 523 (WIsc. 2005). |Lexis||Wisconsin Supreme Court| In that case, the court allowed a child to recover for injuries resulting from the ingestion of lead-based paint although the child could not prove that a particular manufacturer had produced the white lead carbonate that he had ingested.  The court adopted a risk-contribution theory, saying that all of the manufacturers of the lead component created risk of such injuries and all should contribute to paying the plaintiff's damages.  Assembly Bill 778 provides that a product manufacturer or seller may be held liable only if (1) the plaintiff proves, in addition to causation, damages, and other elements of the claim, that the specific product that caused the plaintiff's injury was manufactured or sold by the defendant, or (2) if the plaintiff cannot prove specific causation, that the defendants named in the action collectively, during the relevant production period, manufactured or sold within the state at least 80 percent of all chemically-identical products.  The bill would also limit liability to products that were manufactured or sold not more than 25 years before the date of the injury alleged and only if the product was manufactured for more than five years.

On December 2nd, Wisconsin Governor Jim Doyle vetoed a bill that would have re-created a cap on non-economic damages in medical malpractice cases.  The bill was a response to the Wisconsin Supreme Court's decision in Ferdon v. WIsconsin Patients Compensation Fund, 701 N.W.2d 440 (WIsc. 2005) |Lexis||Wisconsin Supreme Court| declaring unconstitutional the state's noneconomic damages cap as an equal protection violation.  Assembly Bill 766 would have limited noneconomic damages for each occurence of medical malpractice to $550,000 for persons under the age of 18, and $450,000 for persons age 18 and over.  The Ferdon court's essential reasoning was that the cap at issue in that case violated equal protection because it affected individual claimants differently, allowing some full recovery of noneconomic losses and sevely limiting the recoveries of others with noneconomic losses substantially greater than the cap.  It is hard to see how the vetoed proposal would have cured the equal protection problem.

Another bill introduced this year is Assembly Bill 101 which would establish several criteria to determine whether a product manufacturer is strictly liable for product defect.  Among this comprehensive bill's provisions is one that would adopt the Restatement 3d's risk-benefit (negligence) test for design and warning defect cases, implicitly doing away with the consumer expectation test in such cases.  Other provisions provide a liability shield for non-manufacturing defendants; limit the use of remedial measures evidence; limit a manufacturer's liabilty for damages caused by products more than 15 years old unless the manufacturer specified that the product would last longer; change some joint and several liability rules for products liability cases; and raise a rebuttable presumption that the intoxication of a person with a blood alcohol level of 0.08 or higher, and not the product defect, is the cause of such person's injury.

Assembly Bills 203 and 278 both contain requirements for the admissibility of expert testimony and preclude the testimony of any expert who is entitled to receive any compensation contingent on the outcome of the case.

JDP

December 21, 2005 | Permalink

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