The Wisconsin Legislature is considering two proposals that would change the way the Chief Justice of the Wisconsin Supreme Court is selected.

The process for designating the chief justice is currently contained in Art. VII, Sec. 4 of the Wisconsin Constitution, which provides, “The justice having been longest a continuous member of said court, or in case 2 or more such justices shall have served for the same length of time, the justice whose term first expires, shall be the chief justice.” Current Chief Justice Shirley Abrahamson has served in that capacity since 1996, as she is the longest serving justice, having been appointed to the court in 1976.

Assembly Joint Resolution 49 and Senate Joint Resolution 36 would allow justices on the state’s high court to elect their chief justice. These identical proposals would require the justices to hold an election each time a justice is elected or reelected to the court.

The proposals are joint resolutions instead of regular bills since a change would require an amendment to the state constitution. To be successful, joint resolutions must be passed in two consecutive sessions of the legislature and approved in a statewide referendum.

Public hearings have been held on each proposal, and video of each hearing is available on Wisconsin Eye: Feb. 1, 2012 hearing on 2011 SJR 36, Dec. 15, 2011 hearing on 2011 AJR 49.

Justice Michael Gableman on Friday denied motions by attorneys in three separate cases asking the Justice to recuse himself from pending cases. The parties sought his removal after it was determined that Justice Gableman received contingency fee representation from an attorney with a law firm that had cases pending before the Court. The three cases are Adams v. State, Ozanne v. Fitzgerald, and Clinard v. Brennan.

In denying the motions, Justice Gableman explained that under Wisconsin law a Justice must recuse him or herself if they cannot “act in a fair and impartial manner” and by participating in the case they would “give the appearance that they were not able to act in a fair and impartial manner.”

Wisconsin law also provides that only the Justice him or herself can determine whether to decide whether to participate in the case and that other Justices on the bench cannot remove another Justice from a case.

Justice Gableman also cited U.S. Supreme Court Chief Justice John Roberts from an end of the year report on the judiciary in which the Chief Justice addresses recusal matters:

A “Justice…cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”[i]

Chief Justice Roberts further noted in the report that a judge “should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism. Such concerns have no role to play in deciding a question of recusal.”

Justice Gableman determined that based on the law and the motions by the parties that “recusal is neither justified nor warranted.”

The Wisconsin Supreme Court heard oral arguments in an important case, Orlowski v. State Farm Mut. Ins. Co., 2009AP2848, which will determine whether the collateral source rule applies to underinsured motorist (UIM) policies.

The Wisconsin Supreme Court has explained that the “collateral source rule states that benefits an injured person receives from sources that have nothing to do with the tortfeasor may not be used to reduce the tortfeasor’s liability to the injured person.” Leitinger v. Dbart, Inc., 2007 WI 84, 736 N.W.2d 1 (2007). For example, in Leitinger, the Court held that the plaintiff was allowed to receive the full amount ($154,818.51) of his past medical expenses, even though the actual amount paid by the plaintiff’s health insurer was $111,394.73.

The plaintiff in Orlowski was injured in an automobile accident arising out of the negligence of an underinsured motorist. The plaintiff recovered the policy limit from the underinsured motorist’s liability carrier and then brought a claim under her UIM policy against State Farm Mutual Automobile Insurance Company.

The claim was submitted to arbitration under the terms of the UIM policy. The arbitration panel determined that the reasonable value of the medical services was $72,985.94. The arbitration panel also determined that the plaintiff’s health insurer only paid $11,498.55 in past medical expenses. The parties stipulated that the difference between the total amount billed ($72,985.94) by the medical providers and the amount actually paid ($11,498.55) by the plaintiff and her health insurer totaled $61,487.39. The $61,487.39 was due to insurance company write-offs or reductions, and therefore the plaintiff did not pay the full amount actually billed by the health care providers.

The arbitration panel ruled that the collateral source rule did not apply and therefore the plaintiff was not entitled to $61,487 that was not paid by the plaintiff or her health insurer due to write-offs or reductions.

The plaintiff then filed a petition with the circuit court seeking an order from the court allowing her to recover the $61,487.39 in written-off medical expenses. The circuit court reversed the arbitration panel’s decision and ruled that the plaintiff was legally entitled to collect the full reasonable value of medical expenses from the tortfeasor.

However, as noted by the Court of Appeals, that court in Heritage Mut. Ins. Co. v. Graser, 2002 WI App. 125, 254 Wis.2d 851, 647 N.W.2d 385 held that the collateral source rule does not apply in UIM cases and thus the written-off medical expenses are not recoverable under UIM coverage.

In certifying the case to the Wisconsin Supreme Court, the Court of Appeals concluded that it was unable reconcile its holding in Graser with State Farm’s insurance contract and with the collateral source rule.

The Court will issue a decision by the end of its term in July 2012.

This post was authored by Andrew Cook.

One of the most important pieces of legislation supported by the Wisconsin Civil Justice Council in 2011 was the adoption of the Daubert standards for the admission of expert opinion evidence, bringing Wisconsin in line with the entire federal system and a majority of states. A comprehensive understanding of decisions and trends from other jurisdictions will be critical for Wisconsin lawyers as the standards are implemented in Wisconsin. In an effort to educate the legal community on these important new standards, WCJC organized and hosted Daubert Comes to Wisconsin – A CLE Summit on Expert Opinion Evidence on January 11, 2012.

Attendees proclaimed the Summit a great success, applauding the high caliber speakers for their engaging presentations.

Ric Gass, of Gass Weber Mullins LLC, lead off with a discussion of how the Daubert standard improves the quality of scientific information presented to juries and why that is a good thing. Dan La Fave, of Whyte Hirschboeck Dudek, then gave attendees an introduction to the American Society for Testing and Materials (ASTM) standards, which included information on how to assess both your experts and those of the opposing party.

Daubert is not just for toxic tort or complex medical malpractice suits, it is relevant in all cases involving experts. Don Best and Ed Sarskas, of Michael Best & Friedrich LLP, provided an example of how Daubert is used in intellectual property cases.

After lunch, John Sear, of Bowman and Brooke, provided attendees with an overview of the case law since Daubert, and an overview of his recommended Daubert Checklist.

Judge Rudolph Randa of the U.S. District Court for the Eastern District of Wisconsin, who has written more Daubert decisions than any other judge in the Eastern District, then provided practical advice to attendees based on some of the cases he had dealt with. Judge Randa reminded attendees that it is their responsibility to educate the judges about their experts, but that judges must also educate themselves about expert evidence.

Crivello Carlson attorneys Sam Hall and Travis Rhoades provided an informative look at special issues related to medical evidence, and reviewed common fallacies to watch for.

The last presentation of the day was a joint effort by Michael Brennan and Brian Cahill of Gass Weber Mullins to provide attendees with resources they can use when dealing with experts in “soft science.”

All of the resource materials from the Summit are available on the WCJC website.

WCJC would like to thank the Wisconsin Defense Counsel (WDC), the Wisconsin Insurance Alliance (WIA), the Wisconsin Hospital Association (WHA), the Wisconsin Association of Manufacturers and Commerce (WMC), the Wisconsin Utilities Association (WUA), and the Wisconsin Electric Cooperative Association (WECA) for their support of Daubert Comes to Wisconsin.

In Business magazine just issued its latest print edition and its cover story is an excellent article explaining why Wisconsin’s current law protecting convicted felons as a protected class under the Wisconsin Fair Employment Act (WFEA) is overly burdensome for employers. The article further discusses Assembly Bill 286/Senate Bill 207, which would alleviate this burden on employers by eliminating conviction felony records as a protected class under the WFEA.

In the article Madison Attorney Lori Lubinsky explains why the bill is needed:

“Overall, this legislation will give employers a very black-and-white backdrop that was once gray, and that’s always good from an employers’ perspective because there is more clarity.”

Another attorney, Christopher Banaszak, further points out why the legislation will help employers:

“One of the struggles you have as an employer under the current statute, with this substantially related language, is that you may have someone who commits a fairly serious crime but then you still have to go back through this analysis.”  

AB 286/SB 207 is a top priority for the Wisconsin Civil Justice Council. The bill has passed out of both the Assembly and Senate Labor Committees, and is available to be scheduled in both the Assembly and the Senate. WCJC is working diligently to ensure this bill is scheduled and passed into law during the upcoming floor period.

One of the major civil justice reforms passed by the Wisconsin Legislature and signed by Governor Walker in 2011, was 2011 Wisconsin Act 61, which modified Wisconsin’s venue statutes in cases where the sole defendant is the state, a state board or commission, or certain state officers, employees, or agents. The new law was recently utilized in Friends of Scott Walker v. The Government Accountability Board, which was filed in Waukesha County Circuit Court on December 15, 2011.

The complaint in the case sought a declaratory judgment from the court that the procedures of the Government Accountability Board, whereby the GAB accepts duplicative signatures on recall petitions, violates the Equal Protection clauses of the United States and Wisconsin constitutions, Article XIII, Section 12(7) of the Wisconsin Constitution, and Wisconsin law.

The case, which under previous law would have been venued in Dane County, was able to be filed in Waukesha County because of the statutory change passed in 2011 Wisconsin Act 61. The only defendants in the case were the GAB, and GAB officials in their official capacities, so the new law applied, allowing the plaintiffs to select appropriate venue.

On January 5th, Waukesha County Judge J. Mac Davis, agreeing with the plaintiffs, ruled that the GAB must take reasonable, affirmative steps to identify and strike duplicate, fictitious or unverifiable signatures from recall petitions.

This post was authored by Emily Kelchen of the Hamilton Consulting Group.

While 2011 was a historic and productive year when it comes to passing substantive civil justice reforms, WCJC still has a number of priorities it would like to see pass in 2012. Among them are two bills pending in the Legislature:

• Repealing 2009 Act 20, which for the first time adopted punitive and compensatory damages in discrimination cases under the Wisconsin Fair Employment Act (SB 202/AB 289); and
• Eliminating felony conviction records as a protective class under the Wisconsin Fair Employment Act (SB 207/AB 286).

SB 202 (repealing punitive and compensatory damages under WFEA) passed the Senate 17-16 on November 3rd. The Assembly Republicans attempted to bring the bill up for a vote on the last day of the floor period for 2011, but it was blocked by Democrats on a procedural move. WCJC is working to make sure the bill is brought to a vote when the Assembly reconvenes in January 2012.

Both SB 207 and AB 286 (eliminating convicted felons as protected class under WFEA) passed out the Assembly and Senate Labor Committees and await a vote on the floor in each chamber.

WCJC is also considering a number of other pieces of legislation for 2012. WCJC’s legislative tracking report can be reviewed by clicking here.

2011 truly has been an historic year for civil justice reforms in Wisconsin. The strong support of Wisconsin Civil Justice Council’s (WCJC) Board, Partners, and Friends is one of the reasons our legal reform campaign has been so successful.

With that in mind, WCJC invites you to celebrate our successes by making a donation to WCJC and sharing news of our accomplishments, detailed in the end of the year report below, with your members and friends. We encourage you to reprint any of the following information in your organization’s publications, because without your support, all this would not have been possible.

Legal Reforms I

As you likely recall, soon after being sworn into office Gov. Scott Walker signed into law landmark legal reforms (Act 2). WCJC was the driving force behind this legislation. Act 2 included overdue policies that have been introduced and supported by the business community for many years. The important policies passed by the Legislature, and signed into law by Gov. Walker, include the following:

• Product Liability – Provisions of this bill will assist small and large businesses by requiring proof of a “reasonable alternative design” in an alleged defective design of a product, moving Wisconsin away from the broad “consumer expectation” test. By adopting this provision, Wisconsin will join 46 other states.
• Expert Opinion (Daubert) – Wisconsin joins more than 30 other states, and the entire federal court system, by adopting the Daubert standards. This common sense provision affects both parties in a case by limiting testimony of experts and evidence to that which is based on sufficient facts or data and is the product of reliable principles and methods.
• Risk Contribution – This provision overturns the Wisconsin Supreme Court’s 2005 decision, Thomas v. Mallet, 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.”
• Caps on Punitive Damages – Sets a cap on punitive damages at $200,000 or two times compensatory damages, whichever is greater.
• Frivolous Lawsuits – Reduces frivolous lawsuits by holding a party 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.

WCJC recognizes the importance of educating the legal community about these reforms, we are therefore looking forward to hosting Daubert Comes to Wisconsin, a CLE summit on expert opinion evidence on January 11, 2012.

Legal Reforms II

WCJC did not stop with these major victories. This fall, Gov. Walker called a second special session focusing on jobs, and once again WCJC was instrumental in crafting and advancing the following reforms:

• Interest on Judgments (2011 Wisconsin Act 69): Amends Wisconsin’s unjustifiably high interest rate on pre- and post-judgments from 12 percent to the federal prime rate, plus one percent.
• Trespasser Liability Act (2011 Wisconsin Act 93): Prevents courts from adopting the new Restatement Third of Torts which expands liability for injuries to trespassers. The legislation simply codifies Wisconsin’s existing law, which adequately protects landowners and renters from unwanted trespassers.
• Reasonable Attorney Fees (2011 Wisconsin Act 92): Codifies 14 criteria which courts must consider when awarding attorney fees for the plaintiff. Also includes a rebuttable presumption that reasonable attorney fees are three times compensatory damages.

The American Tort Reform Association (ATRA) has released its annual Judicial Hellholes report, and instead of receiving negative scrutiny, Wisconsin received acclaims for the significant lawsuit reforms recently signed into law by Gov. Scott Walker and the Legislature. In its “Points of Light” section, the Judicial Hellholes report highlights Wisconsin as a leader when it comes to lawsuit reforms.

Without your financial support, these successes would not have happened. Our 2011-12 legislative session is not over, and we anticipate more reforms will pass. For example, WCJC supports two bills now working their way through the Legislature (see directly below). Therefore, we hope you renew your commitment to a fairer, more equitable civil justice system in Wisconsin.

• Repealing Punitive and Compensatory Damages under Wisconsin Fair Employment Act (SB 202 /AB 289): Repeals 2009 Wisconsin Act 20, which for the first time imposed punitive and compensatory damages in lawsuits filed under the Wisconsin Fair Employment Act (WFEA). SB 202 has already passed the Senate (17-16) and is awaiting a vote in the Assembly, where we are hopeful it will pass when the Legislature reconvenes in January 2012.
• Eliminating Felony Conviction Records from WFEA (SB 207 /AB 286): Protects employers by allowing consideration of an individual’s felony conviction record when deciding whether to hire or terminate the person. The bill has passed out of both Assembly and Senate Labor Committees. This will be a top priority for WCJC in January 2012.

WCJC Appellate Program

The addition of Justices Ziegler and Gableman to the Wisconsin Supreme Court over the past few years has resulted in a more balanced bench on civil liability issues. To help capitalize on the new makeup of the bench, WCJC has created an Appellate Program to submit amicus curiae (friend of the court) briefs to the Wisconsin Supreme Court on behalf of the WCJC in cases involving important civil liability issues.

The Appellate Program will file amicus curiae briefs for two vital reasons: 1) to ask the Court to accept civil justice cases of import to the business community, and 2) if accepted by the Court, to draft and file briefs in advancing WCJC’s positions.

This proactive program provides advantages of time and focus over prior practices of waiting for parties in cases to request our participation, which sometimes leaves important cases un-briefed from the broader business perspective.

To date, WCJC has filed amicus briefs in three Wisconsin Supreme Court cases:

• MercyCare Ins. Co. et al. v. Wis. Commissioner of Ins. – WCJC argued this case was an opportunity to clarify the appropriate deference courts should give to statutory interpretations by state agencies. In reaching its decision, the court applied due weight deference to the Wisconsin Commissioner of Insurance’s decision, reestablishing the varying standards of review the lower court had ignored.
• Casper, et al. v. American Int. South Ins. Co., et al. – A significant decision dealing with the liability of corporate officers for non-intentional torts and default judgments. The Great Lakes Legal Foundation lawyers, on behalf of WCJC, supervised the filing of WCJC’s brief by outside counsel in support of the employer and insurance company sued in the case.
• Rasmussen, et al. v. General Motors Corp., et al. – The issue before the Wisconsin Supreme Court was whether Wisconsin’s personal jurisdiction statute, Wis. Stat. § 801.05, allows for general or specific jurisdiction over a foreign parent corporation based on an agency theory. WCJC’s brief attempted to persuade the court to maintain the distinction between parent and subsidiary corporations which limits personal jurisdiction.

Judicial Evaluation Program

2011 was an important year for the Wisconsin Supreme Court. In April 2011, Justice David Prosser was narrowly reelected, thereby ensuring that the current makeup of the Court remains intact.

To help educate the business community and the general public about the Supreme Court, the WCJC supported the preparation of the 2011 Guide to the Wisconsin Supreme Court highlighting the most important cases decided over the past two terms (from 2008 through 2010). The 2011 Guide describes the Supreme Court’s decisions in each selected case, WCJC’s position, and how each justice decided the case.

In addition to advancing vital legislative reforms, your contribution will help us expand both the Appellate and Judicial Evaluation Programs.

There are many ways to support the Wisconsin Civil Justice Council:

Donate by mail: Download a printer-friendly PDF to mail to us at:

Wisconsin Civil Justice Council, Inc.

c/o Andrew Cook

10 East Doty Street, Suite 500

Madison, WI 53703

Donate by phone: Call Jennifer Bodensteiner at 608.661.9166.

Donate online: Donate online with Paypal

The Wisconsin Civil Justice Council (WCJC) at its annual luncheon honored Sen. Rich Zipperer (R-Pewaukee) and Rep. Jim Ott (R-Mequon) for their outstanding leadership in the area of civil justice reform.

“2011 has been a historic year for lawsuit reforms in Wisconsin, and Sen. Zipperer and Rep. Jim Ott have been instrumental in helping pass these important measures,” said Bill G. Smith, Wisconsin Director of the National Federation of Independent Business and President of WCJC.

Earlier this year, the Wisconsin Legislature passed into law 2011 Wisconsin Act 2, which contained some of the most comprehensive changes to Wisconsin’s civil justice system in years.

Sen. Zipperer and Rep. Jim Ott co-authored the legislation at the request of Gov. Scott Walker, and passed the omnibus bill through their respective committees. Sen. Zipperer and Rep. Jim Ott chair the Senate and Assembly Judiciary Committees.

In Gov. Walker’s recently concluded second special session, the Legislature passed three more lawsuit reform bills focusing on interest paid by defendants to plaintiffs (2011 Wisconsin Act 69), trespasser liability (2011 Wisconsin Act 93), and court-awarded attorney fees (2011 Wisconsin Act 92).

“Once again, Sen. Zipperer and Rep. Jim Ott played a key role in passing these lawsuit reforms,” said Jerry Deschane, Executive Director of the Wisconsin Builders Association and Secretary of WCJC.

“Due to the leadership shown by Sen. Zipperer and Rep. Jim Ott, Wisconsin has become known as a national leader in the area of lawsuit reform, which has enhanced the state’s business climate,” added Deschane.

The American Tort Reform Association (ATRA) today came out with its annual Judicial Hellholes report, and instead of receiving negative scrutiny, Wisconsin received acclaims for the significant lawsuit reforms recently signed into law by Gov. Scott Walker and the Legislature.

Although ATRA’s Judicial Hellholes report is renowned for documenting abuses of the civil justice system in jurisdictions that are among the most unfair and out of balance in the nation, the report also highlights those jurisdictions and states where positive reforms are taking place.

“As anemic economic growth and high unemployment continue to plague much of the country, many governors and state legislators were determined to make their states more competitive and attractive to employers with a variety of tort reform measures,” said ATRA President Tiger Joyce.

“None were more successful than Gov. Scott Walker and lawmakers in Wisconsin. They pushed a comprehensive civil justice reform package to enactment early in the year, before coming back for three more significant measures in a special session this fall,” added Joyce.

In its “Points of Light” section (p. 38), the Judicial Hellholes report highlights Wisconsin as a leader when it comes to lawsuit reforms.

ATRA’s report summarizes the major provisions contained in Special Session Senate Bill 1, which was enacted into law as 2011 Wisconsin Act 2:

• Adoption of more reasonable product liability standards for manufacturers and sellers.
• Elimination of the deeply flawed “risk contribution” theory in manufacturing lawsuits.
• Adoption of sound science principles (Daubert principles).
• Limits on punitive damages at $200,000 or twice compensatory damages, whichever is greater.
• Sanctions on frivolous lawsuits.

The Points of Light section in the report further notes that Gov. Walker and the Legislature didn’t stop there. In the fall of 2011, the Legislature passed into law three more bills introduced by Gov. Walker in his second special session focusing on job creation. The three new lawsuit reform bills include:

• Interest on Judgments – Reduces interest on pre- and post-judgments awarded to plaintiffs (2011 Wisconsin Act 69).
• Trespasser Liability – Protects landowners and land possessors from greater liability by prohibiting courts from expanding the duty of care owed to trespassers (2011 Wisconsin Act 93).
• Limiting Attorney Fees – Creates certain criteria courts must consider when awarding attorney fees, and creates a rebuttable presumption that attorney fees can be no more than three times compensatory damages (2011 Wisconsin Act 92).

The Wisconsin Civil Justice Council, which supported these measures, commended ATRA for recognizing Wisconsin in its report.

“Once again, Gov. Walker and the Wisconsin Legislature are being recognized as a national leader when it comes to lawsuit reforms,” said Bill G. Smith, Wisconsin Director of the National Federation of Independent Business and President of the Wisconsin Civil Justice Council.

“These positive reforms will enhance Wisconsin’s business climate by protecting employers from costly and meritless lawsuits,” added Smith.

To learn more, read ATRA’s Judicial Hellholes report.