Archive for the ‘Editorials’ Category

Court Upholds Statutory Damages Limit for UW Physicians

Thursday, October 9th, 2014

On September 24, the Court of Appeals, Dist. IV located in Madison held that the statutory limits of $250,000 on damage awards against state employees, including University of Wisconsin Hospital physicians, was constitutional. The case is Fiez v. Keevil, 2013AP2711 (Sept. 24, 2014).


Defendant Robert Keevil, a physician employed by the University of Wisconsin Medical School, provided care to the plaintiff, Robert Fiez. During trial, the jury found Keevil negligent and awarded damages to Fiez of more than $1 million. The circuit court then applied the statutory cap under Wis. Stat. § 893.82(6), which limits damages for state employees at $250,000.

The plaintiff appealed arguing that the $250,000 limit violated the Wisconsin Constitution’s equal protection clause, Wis. Const. art. I, § 1 .

Court of Appeals Upholds $250,000 Statutory Limit

In a unanimous decision, the Court of Appeals held that the statutory limit was constitutional. The Court rejected the plaintiff’s arguments noting that “it is within the power of the legislature to use a damages cap to preserve public funds by allowing for fiscal planning and avoidance of high judgments.”

Milwaukee Judge Ignores Wisconsin Legislature, Strikes Down Limits for Non-Economic Damages in Medical Malpractice Cases

Thursday, October 9th, 2014

On Friday, October 3, Milwaukee County Judge Jeffrey Conen issued an order and decision in which he struck down Wisconsin’s $750,000 limit for non-economic damages medical malpractice cases. The case is Mayo v. Wisconsin Injured Patients Compensation Fund, et al., 2012CV006272 (Oct. 3, 2014).


The plaintiff, Ascaris Mayo, went to the emergency room suffering from a fever and acute abdominal pain. The physicians (defendants) included a possible infection in their diagnosis, but ultimately treated Mrs. Mayo for uterine fibroids based on her medical history. She was discharged and instructed to visit her gynecologist.

Mrs. Mayo’s illness worsened, and she visited a different emergency room the next day. She was diagnosed with a septic infection caused by Strep A. As a result of the infection, Mrs. Mayo had all four limbs amputated.

Mrs. Mayo and her husband (Mr. Mayo) filed a lawsuit against the physicians and the Wisconsin Patients and Family Compensation Fund,[1] claiming the defendants were negligent in their diagnosis and treatment of Mrs. Mayo.

The jury found that defendants were not medically negligent in their diagnosis and treatment of Mrs. Mayo. However, the jury found that the defendants failed to properly inform Mrs. Mayo about the availability of antibiotics to treat her suspected infection. In addition, the jury found that the defendants’ failure to discuss the possibility of infection or the availability of antibiotics was a cause of Mrs. Mayo’s injuries.

The jury awarded Mrs. Mayo $9 million in economic damages and $15.5 million in noneconomic damages.  The jury also awarded Mr. Mayo $1.5 million in noneconomic damages for loss of society and companionship.

Judge Conen Strikes Down Statutory Limits on Noneconomic Damages

In a surprising decision, Judge Jeffrey Conen ignored the Wisconsin Legislature’s reasonable limit of $750,000 for noneconomic damages and held that the law was unconstitutional as applied to the Mayos.

In 2006, the Wisconsin Legislature enacted the new $750,000 limit for noneconomic damages in medical malpractice cases after the Wisconsin Supreme Court struck down the previous $350,000 limit on noneconomic damages in a highly controversial decision, Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125.

Judge Conen held that the statute violated the Mayos’ right to due process and equal protection and thus unconstitutional. Judge Conen limited his decision by holding the statute unconstitutional as it applies only to the plaintiff, as opposed to a facial challenge. Therefore, Judge Conen’s decision does not strike down the statute in all cases.

Case Likely to be Appealed and Overturned

Judge Conen’s decision is an outlier and likely will not be upheld by the court of appeals or the Supreme Court of Wisconsin. The decision likely will be overturned based on another recent court of appeals decision (Fiez v. Keevil, 2013AP2711) upholding the $250,000 limits for damages against state employees as constitutional. For more information about the Fiez decision, please click here.)


[1] The Injured Patients and Families Compensation Fund provides payments to injured patients for malpractice claims that exceed a health provider’s primary malpractice coverage.

Wisconsin Supreme Court Hears Case Dealing with Non-Compete Agreements

Wednesday, October 8th, 2014

On Wednesday, October 1, the Supreme Court of Wisconsin heard oral argument in a case that involves an important issue to Wisconsin employers who hire employees on an at-will basis and seek to protect themselves with non-competition, confidentiality, and non-solicitation agreements (hereinafter, “Non-Competes” or “Agreements”).

The opinion of a Milwaukee County Circuit Court that is under review invalidated a Wisconsin employer’s Non-Competes with its at-will employees in Wisconsin. The Milwaukee Circuit Court held if an employer seeks to update its Non-Competes with existing at-will employees, it cannot simply make the signing of such agreements a condition of the at-will employees’ continued employment.

In 2008, Runzheimer Int’l, Ltd. (“Runzheimer”) updated its current Non-Competes to better protect its proprietary information and business model. Each employee presented with the updated Non-Compete was an at-will employee, and was informed that he or she could not continue to work at Runzheimer (and be exposed to Runzheimer’s proprietary information) unless he or she executed the updated Non-Compete. Any employee that executed the updated Non-Compete would receive continued employment and would be allowed to participate in the following years’ employee bonus incentive plan.

David Friedlen, an existing at-will employee at Runzheimer, elected to keep his job and execute the updated Non-Compete. Friedlen not only kept his job for over two years thereafter, but was allowed into the bonus incentive program and earned over $20,000 under it the year after he executed the Agreement. After his employment was terminated, he went to work for a Runzheimer competitor in Massachusetts in violation of the Agreement, and asserted it was unenforceable because he did not receive sufficient consideration for it.

Friedlen argued that because he was an at-will employee, he could have been terminated at any time after he signed the Agreement and, if he had been terminated shortly thereafter, he would not receive “continued” employment or the benefits of the incentive plan paid out the next year.

Trial Court Decision
The Milwaukee County Circuit Court agreed with Friedlen and invalidated Runzheimer’s Non-Competes. It held that because at-will employees could be terminated at any time, offering them continued employment as consideration is illusory. It also held the incentive plan was illusory, because any consideration that was tied to the continued employment would also disappear if the employee was terminated. Thus, although the Wisconsin Supreme Court has held since 1933 that at-will employment is sufficient consideration to support Non-Competes, even though it can be terminated at any time, this circuit court created an exception for existing at-will employees.
After reviewing the case, the Court of Appeals certified the issue to the Supreme Court for resolution.

Supreme Court Oral Argument
While it is almost impossible to discern how the Supreme Court will decide a case based solely on oral argument, it can provide clues as to how the individual Justices view the case.

Based on the line of questioning, it appears that the decision may come down to the typical judicial conservative and liberal blocs on the Court. For example, two the conservative Justices, Michael Gableman and Annette Zielger, did not appear to accept the arguments for counsel representing the employee based on their questions and direct statements.

Meanwhile, Chief Justice Shirley Abrahamson’s line of questioning suggested that she was sympathetic to the employee’s situation and would require some form of consideration beyond promised continued employment when requiring an existing employee to sign a restrictive covenant, or non-compete.

WCJC and WMC File Amicus Curiae Brief
The Wisconsin Civil Justice Council and Wisconsin Manufacturers & Commerce filed an amicus curiae brief in the case arguing that if the Milwaukee County Circuit Court’s ruling is not overturned, it will have a broad and detrimental impact on Wisconsin employers’ ability to protect their proprietary processes and information. WCJC and WMC also assert that Wisconsin courts frequently alter the law of Non-Competes, rendering previously-enforceable agreements unenforceable and necessitating that employers update them. Employers generally do so by requiring existing, at-will employees to sign them as a condition of further employment. Under the existing Milwaukee County Circuit Court ruling, employers will be required to offer consideration such as upfront cash payments to their entire at-will workforce if they want to do nothing more than alter their Non-Competes to account for changes in their business or comply with existing law.

The case is Runzheimer Int’l, Ltd. v. Friedlen, 2013AP1392. A decision by the Supreme Court is expected before the end of its term in July 2015.

Wisconsin Supreme Court Issues Split Decision Resulting in Loss for Manufacturer

Wednesday, October 8th, 2014

The Supreme Court of Wisconsin on Tuesday, October 7 issued a split decision which resulted in a loss for Sohn Manufacturing in a worker’s compensation case. The issue before the Court was whether the federal Occupational Safety and Health Act (OSHA) preempts the State of Wisconsin from imposing penalties for safety violations under Wisconsin laws.

In a 3-3 decision, Chief Justice Abrahamson, Justice Bradley, and Justice Crooks voted to affirm the Court of Appeals’ decision in favor of the employee. Justices Roggensack, Ziegler and Gableman voted to reverse the Court of Appeals’ decision. Justice Prosser did not participate, leading to the split decision.

The case is Sohn v. Manufacturing v. Labor and Industry Review Commission, 2014 WI 112.

An employee (Tonya Wetor) was injured on the job while working at Sohn Manufacturing. Wetor was cleaning a machine when her hand was pulled into the machine, causing severe injuries. Sohn Manufacturing’s practice at the time was to clean the machines while they were running. The state investigated the accident and determined that Sohn Manufacturing had not complied with OSHA standards and Wisconsin’s Safe Place Statute (Wis. Stat. § 101.11).

During the worker’s compensation hearing, the issue was whether Sohn Manufacturing was liable for a penalty payment under Wis. Stat. § 102.57, which provides an extra 15 percent of the damages award, capped at $15,000, when employees’ workplace injuries are caused by their employer’s safety violations.

The administrative law judge determined that the injury was caused by Sohn Manufacturing’s violations of the OSHA standard and Wisconsin Safe Place Statute and therefore ordered the company to pay the 15 percent payment penalty.

The case was appealed to the Court of Appeals, which affirmed the administrative law judge’s decision.

Arguments before the Supreme Court
The Court heard oral arguments on September 23, 2014. The main issue was whether the State of Wisconsin may use OSHA standards or the Wisconsin Safe Place Statute (Wis. Stat. § 101.11) to inspect private workplaces and impose penalties under Wis. Stat. § 102.57. Specifically, Sohn Manufacturing argued that the federal law (OSHA) preempted both § 102.57 and the Wisconsin Safe Place Statute and therefore the State of Wisconsin did not have authority to issue the 15 percent payment penalty under § 102.57.

According to Sohn Manufacturing, OSHA preempts Wis. Stat. § 102.57 because the alleged violation of the state statute is predicated on the violation of an OSHA standard. The company argued that states may regulate occupational health and safety only by submitting state plans to OSHA for approval, or by limiting the state regulation to areas in which no OSHA standard exists.

Wisconsin has not submitted any such plan to OSHA. In addition, the lower courts determined that Sohn Manufacturing violated an OSHA standard relating to the control of hazardous electrical energy. Therefore, Sohn Manufacturing argued that state enforcement of Wisconsin Stat. § 102.57 has crossed into the federal government’s regulatory space and therefore is preempted.

Wisconsin Supreme Court Evenly Splits, Court of Appeals’ Decision is Upheld and Adopted
Because the Supreme Court split 3-3, the Court of Appeals’ decision is affirmed in favor of the employee. The Supreme Court provided no analysis of the decision, but instead adopted the Court of Appeals’ decision, Sohn Manufacturing v. Labor and Industry Review Commission, 2013 WI App 112.

This an unfortunate decision for businesses in Wisconsin and is even more troubling that the case was not decided by all seven members of the Court, with Justice Prosser not participating.

Groups Continue to Make False “Equal Pay” Claims

Tuesday, September 30th, 2014

A number of groups, including current and former Democratic officials, gathered today at the State Capitol to continue their misleading “war on women” theme. Specifically, the group cited a 2012 law – 2011 Wis. Act 219 – which they claim removes “equal pay for women.”

These claims are simply false, as demonstrated by numerous news outlets:

As shown by these news articles, Act 219 did not remove equal pay. Instead, Act 219 repealed a misguided law signed in 2009 by then Gov. Jim Doyle, which was a payback to his top campaign supporters – plaintiff attorneys.

The 2009 (2009 Wis. Act 20) law for the first time imposed punitive damages on Wisconsin businesses for alleged workplace discrimination. As a result, businesses could be hit with punitive damages up to $300,000. Moreover, the law indexed the punitive damage awards to inflation, meaning that the plaintiff attorney jackpot would increase each year.

The current law allows women, along with any other person alleging workplace discrimination, to sue their employer. For example, the new law still allows an employee to seek reinstatement of their job, back pay up to two years, as well as with attorney fees and court costs.

Moreover, those who wish to seek punitive damages can still do so in federal court. Act 219 simply removes the duplicative and unnecessary punitive and compensatory damage awards from Wisconsin statutes.

“It is unfortunate there are still those who claim 2011 Act 219 takes away equal pay for women even though the facts clearly show these claims to be false,” said Bill G. Smith, State Director, National Federation of Independent Business and President of the Wisconsin Civil Justice Council.

“Small business owners are focused on creating jobs that will help grow the state’s economy, not needlessly spending money on the legal fees,” said Smith.

Thanks to this and many other pro-business reforms over the past few years, Wisconsin’s economy is on the right track.

See the WCJC Press Release.

WCJC Submits Comments Opposing New Private Cause of Action for Hazardous Substance Spills

Friday, September 19th, 2014

The Wisconsin Civil Justice Council, Wisconsin Manufacturers & Commerce, and Wisconsin Insurance Alliance filed public comments to the Wisconsin Department of Natural Resources Brownfields Study Group, which is proposing that the Wisconsin Legislature amend Wisconsin’s “hazardous substance spills” law (Wis. Stat. § 292.11).

Specifically, a subcommittee of the Brownfields Study Group recommended amending Wisconsin’s law to “provide a private cause of action against any person responsible under Wis. Stat. § 292.11(3) for the recovery of costs incurred to restore the environment to the extent practicable and minimize the harmful effects of a discharge.”

WCJC notes that individuals can already bring lawsuits under the federal Comprehensive Environmental Response, Compensation, and Liability Act. In addition, plaintiffs can, and do, bring state claims using legal theories of trespass, nuisance, and negligence, to name a few. Therefore, the proposed new private cause of action is unnecessary.

WCJC also explains that enacting a private cause of action would do nothing for the environment, but instead would enrich trial attorneys and slow down the cleanup process. In short, WCJC argues that the proposal benefits trial attorneys at the expense of Wisconsin businesses and the environment.

Wisconsin Supreme Court to Determine Extent of Liability in Dog Bite Case

Thursday, September 18th, 2014

The Wisconsin Supreme Court earlier this month heard oral arguments in a case deciding whether the defendant is an “owner” and thus liable for damages caused by a dog at the home he owned, but in which he did not live. The case is Augsburger v. Homestead Mut. Ins., 2012AP641.

The defendant owned a home in which he allowed his daughter and son-in-law live rent free. The defendant’s daughter and son-in-law owned two dogs when they moved in. They later acquired more dogs, which the defendant also allowed on the property.

The plaintiff, who was friends with the defendant’s daughter, visited the defendant’s home where the dogs were residing. When the plaintiff entered the property, a number of dogs attacked her leading to her injury.

The plaintiff filed a lawsuit against both the defendant as the owner of the property and his daughter, who owned the dogs and who lived on the property. The issue in the case was whether the defendant-owner of the property was liable for the injuries even though he neither owned the dogs nor lived on the property where the injuries occurred.

Court of Appeals Decision
The Court of Appeals held that the defendant was considered an “owner” of the dogs even though the dogs were not his and he did not live on the property. The court pointed to the definition of a dog “owner” under Wisconsin’s statute (Wis. Stat. § 174.001(5)). Under the statute, an “owner” is “any person who owns, harbors, or keeps a dog.”

The court determined that the defendant did not “own” or “keep” the dogs because the dogs were not his and he did not reside at the home. Instead, the court determined that the defendant “harbored” the dogs by affording his daughter’s dogs shelter and lodging at the home he owned.

The court noted that while “one may question the legislative policy behind defining ‘owner’ to include a person who merely harbors a dog or the manner in which case law has defined ‘harbor,’ we are bound by both.”

The Wisconsin Supreme Court is expected to issue a decision by the end of its term in July 2015.

Democrat Lawmakers Seek to Repeal Portions of Asbestos Transparency Law

Monday, August 4th, 2014

Democratic lawmakers held a press conference last week to announce legislation they plan to propose in the 2014-15 legislative session that would repeal portions of Wisconsin’s recently enacted asbestos transparency law (2013 Wisconsin Act 154). Joining the Democrats at the press conference was asbestos plaintiff attorney lobbyist, Jason Johns. The law was one of WCJC’s top priorities and major wins for 2013-14 and was opposed heavily by out-of-state asbestos plaintiffs’ attorneys.

The Democratic lawmakers continue to claim that veterans oppose the bill, when the much of the opposite is true. The AMVETs Department of Wisconsin supported the transparency law. Also, a recent op-ed published in the Milwaukee Journal Sentinel by former VFW State Commander Larry Kutschma and American Legion member Steven Stefonik explains how the law benefits veterans and all victims, while also protecting businesses from unscrupulous trial attorneys.

Earlier this summer, Democratic gubernatorial candidate Mary Burke announced that she would repeal the law if she were elected governor.

Click here to learn more about Wisconsin’s asbestos transparency law.

NPR Story Cites Wisconsin’s Asbestos Transparency Law

Monday, August 4th, 2014

National Public Radio recently ran a story discussing a court ruling (In re Garlock Sealing Technologies) issued earlier this year in which the judge found a “startling pattern of misrepresentation” and extensive abuse by plaintiffs’ attorneys in asbestos cases. Specifically, the judge uncovered plaintiffs’ attorneys withholding evidence in asbestos lawsuits which resulted in “unfairly inflating recoveries.”

Harold Kim, Executive Vice President of the U.S. Chamber Institute for Legal Reform, who is interviewed in the story,  explained that the court decision played a key role in helping pass the asbestos transparency law (2013 Wisconsin Act 154) in Wisconsin.

According to Kim, “After the Garlock decision came out, it really helped build momentum for the Wisconsin law that was passed and signed in the spring of this year.”

The NPR story noted that Wisconsin’s “law requires asbestos plaintiffs to disclose if they’ve filed claims with bankrupt companies,” and that a similar law has been introduced in Congress.

Former Delaware judge, Peggy Ableman, was also interviewed. Judge Ableman testified on AB 19/SB 13 before the Wisconsin Senate Judiciary Committee to provide her first-hand experience with shenanigans she witnessed in asbestos lawsuits in her court. According to Judge Ableman, the court order should be “required reading for judges overseeing asbestos cases.”

Wisconsin became the third state in the nation to pass such a law, following Ohio and Oklahoma. Click here to learn more about Wisconsin’s asbestos transparency law.

WCJC Files Amicus Curiae Brief in Employment Discrimination Case

Monday, August 4th, 2014

The Wisconsin Civil Justice Council recently filed an amicus curiae brief with the Wisconsin Court of Appeals, Dist. II in an important case involving the Wisconsin Fair Employment Act (WFEA). The issue is whether the employer (Chrysler) violated the WFEA by placing an employee on paid leave who admitted to drinking excessively prior to coming to work. The case is Chrysler Group LLC v. Labor and Industry Review Commission (Case No. 2014AP0083).


Chrysler Group LLC (Chrysler) placed an employee on “layoff/no work available status” due to the employee’s excessive drinking.

Chrysler’s physicians examined the employee and determined it was not prudent to approve the employee’s return to work based on her admissions of excessively drinking prior to coming to work.

By placing the employee on layoff/no work available status, the employee was still eligible for Supplemental Unemployment Benefit pay, which meant she could collect 95 percent of her net pay (or about 65 percent of her gross pay).

Despite this, the employee filed an employment discrimination complaint under the WFEA against Chrysler, claiming discrimination on the basis of disability. The employee sought the difference between the Supplemental Unemployment Benefit pay and the amount she would have earned had she been returned to active duty.

Labor and Industry Review Commission and Circuit Court Decision

The Labor and Industry Review Commission ruled in favor of the employee. The Commission ruled that Chrysler had discriminated against the employee and had failed to show that the employee’s pre-work drinking posed a safety risk.  The circuit court affirmed.

WCJC Amicus Curiae Brief

WCJC argues in its brief that if the decisions by LIRC and the circuit court are upheld, it would have broad and sweeping implications for employers throughout the state. The brief also explains that it would prevent employers from being able to protect the safety of their employees.

Legal Arguments by Chrysler

Chrysler’s legal briefs contained the following arguments:

  • Chrysler argues that the Wisconsin Fair Employment Act (WFEA) states that it is “not employment discrimination because of disability…if the [employee’s] disability is reasonably related to the individual’s ability to adequately undertake the job-related responsibilities of that individual’s employment.” Wis. Stat. § 111.34(2)(a).
  • Chrysler explains that the legislature has expressly provided that employers may take into account the “present and future safety of the individual, of the individual’s co-workers and, if applicable, of the general public” when determining whether the employee is capable of adequately performing a job. Wis. Stat. § 111.34(2)(b).
  • The Wisconsin Supreme Court has held that the WFEA must be construed to permit employers to address safety risks in the workplace. Chi. & N.W. R.R. v. Labor & Indus. Review Comm’n, 98 Wis. 2d 592, 297, N.W. 819 (Wis. 1980).
  • To be entitled to the workplace safety defense, the employer doesn’t need to show an absolute certainty that an employee poses a safety threat; rather, the employer need only to show a reasonable probability of such a risk. Dairy Equip. Co. v. Dep’t of Indus., Labor & Human Relations, 95 Wis. 2d 319, 290 N.W. 2d 330 (Wis. 1980).
  • Its decision to continue the employee on leave was justified on safety grounds given her history of drinking before work.
  • It was justified on the alternative basis that the employee was incapable of performing the physically demanding job of a picker/packer.
  • Chrysler accommodated her disability by placing her on paid leave and ensuring she obtained generous Supplemental Unemployment Benefit payments while she sought medical help and treatment.