Author: Hamilton

Wisconsin Supreme Court to Determine Whether the Discovery Rule Applies to Third Parties

Posted on by Hamilton

On Wednesday, February 4, 2015, the Wisconsin Supreme Court heard oral arguments on the case Christ v. Exxon Mobile Corp. (2012AP1493). The Court will decide whether the discovery rule will apply to third parties in wrongful death and survival actions.

Background
This case contains wrongful death and survival actions involving nine former employees of Uniroyal manufacturing in Eau Claire, Wisconsin. The lawsuit was filed against Exxon Mobile Corporation because it allegedly distributed benzene-containing petroleum products to Uniroyal, which contributed to the decedents’ deaths.

The plaintiffs are the survivors (family members) of the decedents who died from the effects of alleged benzene exposure. The survivors are represented by the named plaintiff Christ. The plaintiffs filed suit between four and thirteen years after the deaths of the decedents. Wisconsin Statute §893.54(1)-(2) states that actions to recover damages for injury to a person or to recover damages for wrongful death must be commenced within three years after the injury. The discovery rule pauses this statute of limitations until the person injured knows or should reasonably know they are injured.

The Court of Appeals, Dist. III held that the discovery rule should be applied to Christ of the decedents, the plaintiffs and Exxon Mobile appealed.

Exxon Mobile argued before the Wisconsin Supreme Court that the discovery rule was applied by the trial court to the decedents and because their injuries were discovered when they died, that the statute of limitations had run out and barred the plaintiff’s case.

Christ argues that while the injured person is still alive, only their knowledge of if they have been injured or if they reasonably should know that they are injured is relevant. However, they argue, that changes when the injured person dies. Once the injured person dies, whether the family members (survivors) know or reasonably should know that the deceased was injured becomes relevant to determining when the statute of limitations expires. Therefore, in this case the clock measuring whether the statute of limitations has run did not begin its countdown until the plaintiffs knew the decedents died from injuries related to their alleged benzene exposure.

A decision in this case is expected by the end of July 2015.

Final Disposition of 2013-2014 Legislation

Posted on by Hamilton

Assembly Bills

Links Summary/Status

AB 19

Jacque

History

Torts and Personal Injury Trusts

Summary: Provides transparency and prevents fraud in lawsuits involving personal injury trusts by creating certain discovery requirements during litigation.

Status: Introduced Feb. 15, 2013; Referred to the committee on Judiciary; Public hearing held Apr. 4; Passage as amended recommended (6-2) May 1; Passed the Assembly (58-39) May 8; Referred to Senate committee on Judiciary and Labor; Concurrence recommended (3-2) Oct. 10; Senate concurrence Mar. 12, 2014. Senate Substitute Amendment 1 concurred in, Ayes 55, Noes 38, Paired 2 Mar. 20. Enrolled, Mar. 26; Signed by the Governor as 2013 Wis. Act 154 on March 27, 2014.

AB 27

Kuglitsch

History

Contingent Fees

Summary: Prohibits a state agency from contracting to provide legal services for the state on a contingent fee basis unless the governor makes a written determination that entering into such a contract is cost-effective and in the public interest.

Status: Introduced Feb. 18, 2013; Referred to the committee on Judiciary. Passage as amended recommended (5-3) April 15; Passed the Assembly (60-36) May 8; Referred to Senate committee on Judiciary and Labor; Concurrence recommended (4-1) Oct. 2; Passed the Senate (23-10) Oct. 8; Signed by the Governor as 2013 Wis. Act 105 on Dec. 13, 2013.

AB 29

Jacque

History

Collateral Source

Summary: Allows juries in personal injury cases to see all the evidence when determining the amount owed to compensate the plaintiff for his or her medical expenses..

Status: Introduced Feb. 18, 2013; Referred to the committee on Judiciary. Public hearing held Apr. 11; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 120

Severson

History

Inadmissibility of Statement of Apology by Healthcare Provider

Summary: Provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or patient’s relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Status: Introduced Apr. 4, 2013. Referred to committee on Judiciary; Withdrawn and referred to committee on Health May 13; Public hearing May 29; Passage as amended recommended (7-4) June 20. Passed the Assembly Feb. 18, 2014. Referred to Senate committee on Health and Human Services Feb. 19. Public hearing Mar. 6. Concurrence recommended (3-2);Public hearing held Mar. 6; Concurrence recommended (3-2); Concurred in by Senate (19-14), April 1; Enrolled on April 4;

AB 139

Ott

History

Medical Liability – Informed Consent

Summary: Overturns a negative Wisconsin Supreme Court decision (Jandre v. Wisconsin Injured Patients and Families Compensation Fund) dealing with informed consent in medical liability cases.

Status: Introduced April 5, 2013; Referred to the committee on Judiciary. Public hearing held Apr. 11; Passage as amended recommended (6-2) May 1; Passed the Assembly (65-31) May 8; Referred to Senate committee on Judiciary and Labor May 10; Concurrence as amended recommended (3-2) Oct. 10; Public hearing waived; Am.1 adopted. Passed the Assembly Oct. 15; Signed by the Governor as 2013 Wis. Act 111 on Dec. 14, 2013.

AB 200

Kramer

History

Motor Vehicle Warranties – Lemon Law Reform

Summary: The bill would repeal the double damage provision that encourages attorneys to seek jackpot justice, but keep the obligation that a manufacturer provide a comparable vehicle or refund, whichever remedy the consumer chooses. If the manufacturer fails to provide the vehicle or refund within the specified deadline, a consumer may bring an action to recover for any damages. If he or she prevails, the court may award any pecuniary loss (including the cost of the vehicle), along with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate. The bill makes other changes that also bring Wisconsin law more in line with other states.

Status: Introduced May 13, 2013; Referred to the committee on Judiciary. Passage as amended recommended (8-0) June 6; Passed the Assembly (88-8, paired 2) June 12; Referred to Senate committee on Transportation, Public Safety, and Veterans and Military Affairs; Public hearing held July 18; Concurrence recommended (5-0) Aug. 22; Passed the Senate (32-1) Sept. 17; Signed by the Governor as 2013 Wis. Act 101 on Dec. 13, 2013.

AB 225

Stone

History

Campaign Finance Law

Summary: Makes several changes to the campaign finance laws.

Status: Introduced May 31, 2013; Referred to the committee on Campaigns and Elections. Public hearing held June 4; Passage as amended recommended (8-1) June 10; Passed the Assembly June 12; Referred to Senate committee on Elections and Urban Affairs; Public hearing held Dec. 18, 2013; Failed to concur in pursuant to Senate Joint Resolution 1.

AB 265

Pasch

History

Statute of Limitations for Sexual Contact with a Child

Summary: Removes the time limit for bringing actions for sexual contact with a child and applies this unlimited time period to a broader range of actions. No limit on the time a person has to bring an action for injury resulting from being subject, as a child, to any sexual contact by an adult or by an adult member of the clergy. The bill also revives any cause of action that was barred by the present statute of limitations and allows an injured party to bring that action for his or her injury within two years after the effective date of the billt.

Status: Introduced July 17, 2013; Referred to the committee on Criminal Justice; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 269

Sinicki

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment, unfair honesty testing, or unfair genetic testing to pay compensatory and punitive damages.

Status: Introduced July 30, 2013; Referred to the committee on Judiciary;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 342

Taylor

History

Employment Discrimination

Summary: Provides that employment discrimination because of conviction record includes requesting an applicant to supply information regarding his or her conviction record, or otherwise inquiring into or considering the conviction record of an applicant for employment, before the applicant has been selected for an interview.

Status: Introduced Aug. 27, 2013; Referred to the committee on Labor;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 543

Hebl

History

Campaigns for Supreme Court Justice

Summary: creates a democracy trust fund under which eligible candidates for the office of justice of the supreme court may receive public grants derived from general purpose revenues to finance their campaigns.

Status: Introduced Dec. 9, 2013; Referred to the committee on Campaigns and Elections; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 553

Richards

History

Civil Actions Involving Health Care Providers

Summary: This bill makes several changes to current law regarding contractual agreements between long-term care facilities and their clients, civil actions for negligence in long-term care facilities, punitive damages in civil actions, certain criminal actions against health care providers, and the confidentiality and use of reviews, incident reports, and evaluations of health care providers.

Status: Introduced Dec. 9, 2013; Referred to the committee on Judiciary;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 604

Smith

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment on the basis of military service to pay compensatory and punitive damages.

Status: Introduced Jan. 7, 2014; Referred to the committee on Labor;Refused to withdraw from committee on Labor (36-57), March 20; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 656

Neylon

History

Patent Trolls

Summary:Regulates written communications attempting to enforce or assert rights in connection with a patent or pending patent.

Status:Introduced Jan. 24, 2014; Referred to committee on Jobs, Economy and Mining; Public hearing held Feb. 17; Passage as amended [AA1, AA2] (16-0), Feb. 18; Passed by Assembly with amendments [AA1, AA2], Feb. 20; Referred to Senate committee on Senate Organization; Failed to concur in pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Senate Bill 498.

AB 706

Ott

History

Liability of Parents/Sponsors of Minor Drivers

Summary: Places a cap of $300,000 for parents of minor drivers. Wisconsin is currently one of only 12 states that impose unlimited liability for parents whose minor children are involved in an automobile accident..

Status: Introduced Jan. 31, 2014; Referred to the committee on Judiciary. Public hearing Feb. 6; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 746

Nerison

History

Agricultural Tourism Activities Liability

Summary:Provides immunity from civil liability to an agricultural tourism provider for the death of or injury to a participant in an agricultural tourism activity under certain circumstances.  The bill extends liability protection to the agricultural tourism provider if the participant’s death or injury occurs as a result of a risk inherent in the agricultural tourism activity and the agricultural tourism provider posts and maintains, in a clearly visible location at the entrance to the property or at the location of each agricultural tourism activity, a sign that contains a notice concerning the risk inherent in the agricultural tourism activity.

Status: Introduced Feb. 10, 2014; Referred to the committee on Agriculture. Public hearing Feb. 12; Passed the Assembly Committee on Agriculture (10-6) Feb. 13. Passed the Assembly (85-9) Feb. 20. Referred to Senate committee on Agriculture, Small Business, and Tourism Feb. 24, 2014. Public hearing Mar. 6. Concurrence recommended (9-0);Concurred in by Senate, April 1; Enrolled, April 7;

Senate Bills

Links Summary/Status

SB 13

Grothman

History

Torts and Personal Injury Trusts

Summary: Provides transparency and prevents fraud in lawsuits involving personal injury trusts by creating certain discovery requirements during litigation.

Status: Introduced Feb. 12, 2013; Referred to committee on Judiciary and Labor. Public hearing held Apr. 11; Passage as amended recommended (3-2) Oct. 10; Failed to pass pursuant to Senate Joint Resolution 1. See companion, Assembly Bill 19

SB 19

Grothman

History

Contingent Fees

Summary: Prohibits a state agency from contracting to provide legal services for the state on a contingent fee basis unless the governor makes a written determination that entering into such a contract is cost-effective and in the public interest..

Status: Introduced Feb. 13, 2013; Referred to the committee on Judiciary and Labor. Public hearing held Apr. 11; Public hearing held Apr. 11; Passage as amended recommended (4-1) Oct. 2;Failed to pass pursuant to Senate Joint Resolution, April 8, 2014. See companion, Assembly Bill 27.

SB 22

Farrow

History

Collateral Source

Summary: Allows juries in personal injury cases to see all the evidence when determining the amount owed to compensate the plaintiff for his or her medical expenses.

Status: Introduced Feb. 13, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 137

Grothman

History

Medical Liability – Informed Consent

Summary: Overturns a negative Wisconsin Supreme Court decision (Jandre v. Wisconsin Injured Patients and Families Compensation Fund) dealing with informed consent in medical liability cases.

Status: Introduced April 10, 2013; Referred to the committee on Judiciary and Labor. Public hearing held Apr. 11; Passage as amended recommended (3-2) Oct. 10;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Assembly Bill 139.

SB 143

Hansen

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment, unfair honesty testing, or unfair genetic testing to pay compensatory and punitive damages.

Status: Introduced April 17, 2013; Referred to the committee on Judiciary and Labor. Refused to withdraw from committee; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 182

Petrowski

History

Motor Vehicle Warranties – Lemon Law Reform

Summary: The bill would repeal the double damage provision that encourages attorneys to seek jackpot justice, but keep the obligation that a manufacturer provide a comparable vehicle or refund, whichever remedy the consumer chooses. If the manufacturer fails to provide the vehicle or refund within the specified deadline, a consumer may bring an action to recover for any damages. If he or she prevails, the court may award any pecuniary loss (including the cost of the vehicle), along with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate. The bill makes other changes that also bring Wisconsin law more in line with other states.

Status: Introduced May 16, 2013; Referred to the committee on Transportation, Pubic Safety, and Veterans and Military Affairs; Public hearing held July 18; Passage as amended recommended (5-0) Aug. 22; Available for scheduling;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Assembly Bill 200.

SB 225

Lassa

History

Statute of Limitations for Sexual Contact with a Child

Summary: Removes the time limit for bringing actions for sexual contact with a child and applies this unlimited time period to a broader range of actions. No limit on the time a person has to bring an action for injury resulting from being subject, as a child, to any sexual contact by an adult or by an adult member of the clergy. The bill also revives any cause of action that was barred by the present statute of limitations and allows an injured party to bring that action for his or her injury within two years after the effective date of the billt.

Status: Introduced July 9, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 233

Taylor

History

Abusive Work Environments – Civil Actions

Summary: Provides an exception to the exclusive remedy of worker’s compensation that permitting an employee who alleges being subjected to an abusive work environment or other unlawful employment practices to bring an action in circuit court.

Status: Introduced July 31, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 460

Harris

History

Loss of Society and Companionship – Medical Malpractice Claims

Summary: Provides that a parent does have the right to recover for loss of society and companionship if the parent’s adult child is injured as the result of medical malpractice (Makes changes to current law, as stated in Estate of Wells v. Mt. Sinai Medical Center). Also provides that an adult child does have the right to recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice (Makes changes to current law, as stated in Czapinski v. St. Francis Hospital, Inc.).

Status: Introduced Dec. 20, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 498

Farrow

History

Patent Trolls

Summary:Regulates written communications attempting to enforce or assert rights in connection with a patent or pending patent.

Status: Introduced Jan. 15, 2014; Referred to the committee on Government Operations, Public Works, and Telecommunications. Public hearing Feb. 6. Passage as amended recommended (7-0) Mar. 6. Passed the Senate Mar. 11. Passed the Assembly Mar. 20; Enrolled March 26;

SB 592

Grothman

History

Liability of Parents/Sponsors of Minor Drivers

Summary: Places a cap of $300,000 for parents of minor drivers. Wisconsin is currently one of only 12 states that impose unlimited liability for parents whose minor children are involved in an automobile accident..

Status: Introduced Feb. 13, 2014; Referred to the committee on Judiciary and Labor. Public hearing Feb. 20. Passage recommended (3-2) Feb. 27. Passed the Senate (17-16) Mar. 12. Referred to Assembly committee on Rules; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

2014 Election Results

Posted on by Hamilton

National Poll Results

U.S. Senate: 52 Republicans, 43 Democrats, 2 Independents, 3 Open

U.S. House of Representatives: 243 Republicans, 175 Democrats, 17 Open

Wisconsin Governor and Constitutional Offices General Election Results

Note: In a previous version of our results reporting, David Leeper was incorrectly listed as the Democratic candidate for State Treasurer. This has since been corrected.
 

 Wisconsin Congressional General Election Results

Wisconsin Senate General Election Results

Results: 19 Republicans, 14 Democrats

Wisconsin Senate Races to Watch

*Winners in bold

9th Senate District: Martha Laning (D) versus Dan LeMahieu (R)

17th Senate District: Pat Bomhack (D) versus Rep. Howard Marklein (R)

19th Senate District: Roger Roth (R) versus Rep. Penny Bernard Schaber (D)

Wisconsin Assembly General Election Results

Results: 63 Republicans, 36 Democrats

Wisconsin Assembly Races to Watch

*Winners in Bold

Competitive Open Seats

1st Assembly District: Joel Kitchens (R) versus Joe Majeski (D)

51st Assembly District: Dick Cates (D) versus Todd Novak (R)

88th Assembly District: John Macco (R) versus Dan Robinson (D)

Democratic Incumbents with Competitive Races

54th Assembly District: Rep. Gordon Hintz (D) versus Mark Elliott (R)

70th Assembly District: Rep. Amy Sue Vruwink (D) versus Nancy VanderMeer (R)

75th Assembly District: Rep. Stephen Smith (D) versus Romaine Quinn (R)

85th Assembly District: Rep. Mandy Wright (D) versus Dave Heaton (R)

Republican Incumbents with Competitive Races

68th Assembly District: Rep. Kathy Bernier (R) versus Jeff Peck (D)

72nd Assembly District: Rep. Scott Krug (R) versus Dana Duncan (D)

Court Upholds Statutory Damages Limit for UW Physicians

Posted on by Hamilton

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).

Background

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

Posted on by Hamilton

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).

Background

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

Posted on by Hamilton

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.

Facts
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

Posted on by Hamilton

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.

Background
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

Posted on by Hamilton

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

Posted on by Hamilton

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.

Supreme Court to Determine Whether OSHA Regulations Preempt Wisconsin’s Worker’s Compensation and Safe Place Statutes

Posted on by Hamilton

The Wisconsin Supreme Court will hear oral arguments on Tuesday, September 23 in a case that will decide whether the federal Occupational Safety and Health Act (OSHA) preempts the State of Wisconsin from imposing penalties for safety violations under Wisconsin laws.

Background
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 main issues before the Supreme Court is 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 argues that the federal law (OSHA) preempts both § 102.57 and the Wisconsin Safe Place Statute and therefore the State of Wisconsin has no 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 argues that states may regulate occupational health and safety only by submitting state plans to OHSA 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 argues that state enforcement of Wisconsin Stat. § 102.57 has crossed into the federal’s regulatory space and therefore is preempted.

A decision by the Wisconsin Supreme Court is expected by the end of July 2015.