Opponents of Senate Bill 202 (2011 Wisconsin Act 219), which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act, continue to make false claims that the law has taken away women’s right to equal pay and thus is part of an overall “war on women.” Continue reading “The Phony “War on Women” Mantra Continues Despite Numerous News Outlets Calling Such Claims False”
Author: Hamilton
Wisconsin Supreme Court Decides Neither Employees nor Employers Have a Right to Cross Examine State Appointed Physician in Worker’s Compensation Cases
The Wisconsin Supreme Court last week issued a little noticed decision (Aurora Consolidated Health Care v. Labor & Industry Review Commission, 2012 WI 49) involving worker’s compensation that could negatively affect Wisconsin’s employers.
In a 5-1 decision – authored by Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson, and Justices Patrick Crooks, Annette Ziegler and Michael Gableman – the Court held that Wis. Stat. § 102.17(1)(d) did not allow Aurora Consolidated Health Care (Aurora) the right to cross-examine a physician appointed by LIRC who determined that the injured employee was permanently and totally disabled as a result of a work injury. Justice Patience Roggensack authored a lone dissenting opinion, and Justice David Prosser did not participate in the case.
Facts of the Case
The case involved a long set of facts describing the numerous physical ailments of the employee in this worker’s compensation case. The employee, Jeffrey Schaefer, had a preexisting back injury, and necrosis of both hip joints, for which he had hip replacement surgery. The back injury was directly attributed to a work-related slip and fall. However, it was not clear whether his other injuries were work related.
At a Department of Workforce Development (DWD) hearing Schaefer was the only witness. However, pursuant to Wis. Stat. § 102.17(1)(d), both Schaefer and Aurora submitted written reports from medical experts opining on the extent of Schaefer’s disability that was work related.
The case was subsequently reviewed by Labor & Industry Review Commission (LIRC), which remanded the case back to DWD and ordered that the agency appoint an “impartial” physician, pursuant to Wis. Stat. § 102.17(1)(g), to assess what portion of Schaefer’s disability was due to his hip condition and hip surgery.
The DWD-appointed physician issued a report opining that Schaefer could stand, sit, or drive for one half hour before changing positions. The state-appointed physician also said that Schaefer should not lift more than 10 pounds on a frequent basis, with 20 pounds being his maximum. The physician also attributed all of the restrictions on Schaefer’s work related injury.
Schaefer argued that the physician’s report was incomplete, and therefore LIRC remanded to DWD a second time and ordered the state appointed physician to answer a number of questions. The state-appointed physician determined that Schaefer could work eight hour days if he remained within the restrictions of the first report. The physician further noted that Schaefer should given approximately two brief 10-minute breaks per day. In addition, the physician stated that the chronic back pain could flare up from time to time and in those circumstances the pain would be so severe that no work would be possible. The physician estimated that this could happen about two times a month.
Based on the state-appointed physician’s report, Aurora requested a remand to DWD to allow it to rebut the physician’s opinion by questioning him. However, LIRC denied Aurora’s request. Both the circuit court and court of appeals affirmed LIRC’s decision and held that neither the statute nor the Wisconsin Constitution gives a party the right to cross-examine a state-appointed physician’s report in a worker’s compensation case.
Supreme Court Decision
The Supreme Court affirmed LIRC’s decision and the two lower court decisions. The case involved the proper statutory construction of the laws allowing administrative law judges to appoint independent physicians in worker’s compensation cases.
Specifically, at issue was whether Aurora had the authority to “rebut” the state appointed physician’s report by cross-examining the physician. The majority decided that “rebut” does not mean that parties involved in a worker’s compensation case can cross-examine the state appointed physician.
The majority also rejected Aurora’s argument that it has a constitutional right to cross-examine the state appointed physician under Art. I, § 1 of the Wisconsin Constitution. According to the majority:
We acknowledge the important role that cross-examination plays in the adversarial system, in which the goal is a search for the truth. Nevertheless, it does not rise to the level of a due process right in all instances.
The majority further determined that “given our determinations that Aurora had no statutory or constitutional right to cross-examine Dr. Ebert, LIRC’s decision to decline Aurora’s request was discretionary.”
Dissenting Opinion – Justice Roggensack
Justice Roggensack authored the lone dissenting opinion. In it, Justice Roggensack focused on the word “rebut” and determined that it “encompasses more, not less, than a provision providing only for cross-examination.” According to Justice Roggensack, the “statute affords the parties the opportunity to present additional evidence at a future hearing, which evidence may be presented by direct examination and by cross-examination.”
Justice Roggensack further found that in this case Aurora’s due process rights were violated because the state-appointed doctor’s opinion “could not be explored and it was the basis for LIRC’s decision.”
Supreme Court Issues Split Decision Expanding Liability of Physicians
The Wisconsin Supreme Court on Tuesday, April 17, issued a split decision which greatly expands the liability of physicians in medical liability cases. The case involved the scope of a physician’s duty to inform a patient, often referred to as “informed consent.”
The three-Justice majority decision was authored by Chief Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley and Patrick Crooks. Justice David Prosser, Jr. authored a concurring opinion. Justice Patience Roggensack, joined by Justices Annette Ziegler and Michael Gableman, dissented.
As explained by the dissent, the majority decision greatly expands liability for physicians. According to the dissent, the three-Justice majority decision, along with Justice Prosser’s concurring opinion, imposes strict liability for a missed diagnosis through the informed consent law. The dissenting opinion argues that this is contrary to the controlling statute (Wis. Stat. § 448.30) and long-standing precedent.
See below for a discussion of the relevant facts and multiple holdings of the Supreme Court.
Facts
The plaintiff, Thomas Jandre, was hospitalized after coffee he was drinking began coming out of his nose, and after he began drooling and slurring his speech. The left side of Jandre’s face also drooped.
Jandre was evaluated in the emergency room by the defendant, Dr. Therese Bullis. Dr. Bullis diagnosed Jandre with having Bell’s palsy. Dr. Bullis’s full diagnosis also included the possibility of a stroke. After arriving at her diagnosis, Dr. Bullis ordered a CT scan, which could rule out a hemorrhagic stroke and brain tumors. The results of the scan were normal; however, the CT scan could not detect an ischemic stroke.
Dr. Bullis listened to Jandre’s carotid arteries with a stethoscope in an effort to detect whether Jandre suffered an ischemic stroke event. Dr. Bullis had the option of also ordering a carotid ultrasound to assess Jandre’s carotid arteries, but she chose not to. This is typically more reliable than listening with a stethoscope.
Based on Jandre’s symptoms and tests performed, Dr. Bullis ruled out an ischemic stroke event and came to a final diagnosis of a mild form of Bell’s palsy. Dr. Bullis informed Jandre of this diagnosis, prescribed medication, and sent him home with instructions to see a neurologist for follow-up care.
Eleven days later, Jandre suffered a full blown stroke. A carotid ultrasound performed at the hospital revealed that Jandre’s right internal carotid artery was 95 percent blocked.
Jandre sued Dr. Bullis alleging she negligently diagnosed Jandre as having Bell’s palsy, when he had initial symptoms of a stroke. Jandre also sued Dr. Bullis for negligently failing to inform him about the possibility of having a carotid ultrasound to diagnose whether he had a blocked carotid artery that had caused a stroke.
Trial Court and Court of Appeal Decision
The jury issued a verdict finding that Dr. Bullis was not negligent in her diagnosis of Jandre’s ailment. However, the jury then determined that Dr. Bullis was negligent in fulfilling her duty to obtain informed consent. Specifically, the jury found that Dr. Bullis was negligent in failing to inform Jandre of the availability of a non-invasive diagnostic tool (a carotid ultrasound) that had the potential to rule out a stroke.
The court of appeals affirmed the circuit court decision.
Supreme Court Decision
As noted above, Supreme Court was divided, evidenced by the three differing opinions. Below is an analysis of the three opinions.
First is a discussion of the three-Justice decision authored by Chief Justice Abrahamson, joined by Justices Bradley and Crooks. This is followed by a summary of Justice Prosser’s concurring opinion. Last is a discussion of Justice Roggensack’s dissent, joined by Justices Ziegler and Gableman, sharply criticizing the three-Justice majority decision.
Three-Justice Majority DecisionIn a lengthy 76-page decision, the Chief Justice Abrahamson ultimately concluded that:
Justice Prosser Concurring Opinion“applying the reasonable patient standard, we conclude that under the circumstances of the present case Dr. Bullis had a duty to inform Jandre…of the availability of an alternative, viable means of determining whether he had suffered an ischemic stroke event rather than an attack of Bell’s palsy.
…
A jury could have determined under the facts and circumstances of the present case that Dr. Bullis should have known that information about another available non-invasive diagnostic tool was information a reasonable patient in Jandre’s position would have wanted in order to decide intelligently whether to follow Dr. Bullis’s recommendations.”
In a separate concurring opinion, Justice Prosser writes that although the “lead opinion provides a trenchant argument for affirmance… I am unable to join the opinion because of the reservations I have about the direction we are going.”
Ultimately, Justice Prosser recommends that it’s time for a “thorough review” of current administrative rules implementing Wis. Stat. § 448.30 by “a blue ribbon committee, including but not limited to medical professionals, so that physicians are given clear guidance as to their obligations under this statute.”
Dissenting OpinionJustice Roggensack, joined by Justices Ziegler and Gableman, penned a strongly-worded dissenting opinion attacking the majority’s decision.
According to the dissent, the lead decision “when combined with Justice Prosser’s concurrence that affirms the court of appeals decision, holds a physician strictly liable for a missed diagnosis, contrary to the legislative directive in Wis. Stat. § 448.30 and or long-standing precedent.”
Justice Roggensack further notes that the three-Justice majority decision failed to garner the necessary four votes to carry out its ultimate reasoning. According to the dissent, the three-Justice majority attempted to expand the statute by:
“requir[ing] that whenever there is a claim that the correct diagnosis of a patient’s ailment was not made, a physician would be liable for failing to tell a patient about all potential diagnoses and all potential tests that could have been employed to evaluate whether different ailment were the source of the patient’s symptoms.”
According to the dissent:
[the majority’s reasoning] “would be an entirely new concept that the legislature did not codify when it enacted § 448.30. Accordingly, I conclude that § 448.30 is not implicated in this malpractice action because there was no failure to inform the patient about the risks and benefits of the treatment and procedures that the physician employed.”
The dissent further explained the jury’s first finding, that Dr. Bullis was not negligent in her care and treatment of Jandre, was inconsistent with its second finding that Dr. Bullis was negligent in regard to her duty to obtain informed consent from Jandre. As a result of the jury’s inconsistent verdicts, the dissenting opinion would remand the case for a new trial on whether Dr. Bullis was negligent in her care and treatment of Jandre.
The case is Jandre v. Wisconsin Injured Patients and Families Compensation Fund, et al., 2012 WI 39.
Opponents of SB 202 Continue to Receive False Ratings for Misstatements of the Law
Opponents of Senate Bill 202 (2011 Wisconsin Act 219), which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act, continue to make claims that the law has taken away employees’ rights to sue for employment discrimination.
For the second time, PolitiFact (which is part of the Milwaukee Journal Sentinel) has determined that this argument is false. The latest PolitiFact false rating was given to Democratic gubernatorial candidate Kathleen Falk, who said that the Republican Legislature passed a bill that doesn’t allow women to “do something about” pay discrimination.
PolitiFact recently gave Rep. Cory Mason (D-Racine) a “mostly false” rating for saying that SB 202 “repeals a law that ensures men and women get equal pay.”
Apparently opponents of SB 202 believe that if you say something enough times it eventually will come true.
Legislation Repealing Punitive and Compensatory Damages under the Wisconsin Fair Employment Act Officially Becomes Law
In a victory for Wisconsin businesses, Gov. Scott Walker signed into law Senate Bill 202, which repeals punitive and compensatory damages under the Wisconsin Fair Employment Act.
In 2009, Gov. Jim Doyle signed into law 2009 Wisconsin Act 20, which for the first time imposed punitive and compensatory damages in discrimination cases under the Wisconsin Fair Employment Act. WCJC scored yet another major victory by helping pass Senate Bill 202, which repeals Act 20.
Contrary to claims being made by SB 202’s opponents, this legislation does NOT take away equal pay for women or any other protected class. Once the new law goes into effect, employees alleging workplace discrimination can still sue at the state level and seek the following remedies:
- Reinstatement;
- Back pay up to two years;
- Attorney fees and reasonable court costs.
- Moreover, employees can elect to sue in federal court, where they can still seek punitive and compensatory damages.
Senate Bill 202, now 2011 Wis. Act 219, protects Wisconsin businesses from meritless and costly lawsuits by returning the law as it was in 2009.
Bill Providing Immunity to School Boards for Recreational Activities and Immunity for Volunteers Signed into Law
The same day he signed the Ski Hill Liability Protection legislation, Gov. Scott Walker also signed into law 2011 Wis. Act 162, which provides immunity from liability to schools for a death or injury that occurs on school grounds when the death or injury results from a recreational activity held on the school grounds pursuant to a recreational agreement between the school board and an individual.
Specifically, the immunity under AB 497 is provided to school boards, school districts, and governing bodies of charter schools, as well as their officers, employees, and agents.
The term “recreational activity” includes “any indoor or outdoor physical activity, sport, team sport, or game, whether organized or unorganized, undertaken for exercise, relaxation, diversion, or pleasure.” The term “recreational agreement” refers to a “written authorization granted by the school to a person permitting public access to the school grounds for a recreational activity.”
The bill does provide an exception for “malicious acts” or “malicious failure to warn” against an unsafe condition.
The original bill was amended to include language providing immunity for volunteers under Wis. Stat. § 893.80. Under current law, § 893.80 imposes certain requirements and certain limitations on claims and damages in a lawsuit brought against a volunteer fire company, political corporation, governmental subdivision, or any officer, official, agent or employee.
As amended, Act 162 provides that an “agent” under § 893.80 also includes a “volunteer,” which is defined under the bill as a person who:
- Provides services or performs duties for, and with the express or implied consent of, a volunteer fire company, political corporation, or governmental subdivision or agency thereof;
- Is subject to the right of control of the volunteer fire company, political corporation, or governmental subdivision or agency thereof; and
- Is not paid a fee, salary, or other compensation by any person for the services or duties described above, other than reimbursement of expenses.
In addition, the bill provides that the procurement or maintenance of insurance or self-insurance by a volunteer fire company, political corporation, or governmental subdivision or agency, irrespective of the extent or type of coverage or the persons insured, shall not do any of the following:
- Constitute a waiver of the provisions of § 893.80; or
- Be relied upon to deny a person status as an officer, official, agent, or employee of the volunteer fire company political corporation, or governmental subdivision or agency that is procuring or maintaining the insurance or self-insurance.
Governor Signs Ski Hill Liability Protection Bill
On Monday, April 2, Gov. Scott Walker signed into law 2011 Wis. Act 199, which expands the “assumption of risk” doctrine to protect ski operators who follow certain safety protocols from lawsuits.
The assumption of risk doctrine provides that when an individual engages in a potentially dangerous activity, that person does so with the knowledge that the activity contains the possibility of injury.
Current law provides that one who has assumed a risk and sustained injury or death from the activity may still recover damages from the responsible party even if the injured party failed to follow prescribed protocols.
Under Act 199, if a ski area operator follows certain safety precautions, the operator will not be responsible for any injuries an individual may suffer while skiing on the operator’s ski hill.
Below are just a few of the duties a ski operator must comply with to obtain liability protection:
- Provide a notice on the ticket or hill pass that the ski hill operator is not liable for any injuries.
- Post signs containing warnings reminding participants of the dangers of skiing. Signs must be at least 10 feet inside the area where tickets are sold, and on slopes, tubing areas, trails, and terrains.
- Provide copies of trail and ski area maps in the ticketing area.
If the ski operator follows these and other requirements, then he or she is not responsible for any injuries sustained by an individual who has assumed the risk of skiing. WCJC supported Act 199.
Wisconsin Supreme Court Rules that Default Judgment Was Void Due to Plaintiff’s Failure to Name Proper Corporate Defendant
The Wisconsin Supreme Court today issued its decision in Johnson v. Cintas Corp. No. 2, et al., 2012 WI 31, which is the latest in a number of recent cases accepted by the Court dealing with default judgments. (Oral arguments can be viewed on WisconsinEye.)
The issue is in the case was whether a default judgment is void because the summons and complaint names the wrong corporate defendant and thus personal jurisdiction is not obtained over the correct corporate entity.
The Wisconsin Supreme Court ruled that default judgment was void because the complaint was “fundamentally defective” because it failed to name the proper defendant in the summons and complaint. As a result, the Supreme Court ruled that the circuit court lacked personal jurisdiction over the incorrectly named defendant.
Facts
Robert Johnson, an employee for Cintas Corporation No. 2 (“Cintas No. 2”), was injured in a car accident resulting in permanent injury. Johnson was a passenger in the vehicle, which was being driven by a friend. Johnson was required to use his vehicle during the course of his employment and held auto liability insurance through Cintas No. 2. Johnson sought treatment coverage from Cintas No. 2 through its health insurance provider. When Cintas No. 2 refused to pay benefits, Johnson filed suit.
Johnson’s attorney filed the original summons and complaint naming “Cintas Corporation” as the defendant, instead of Cintas Corporation No. 2. Cintas Corporation No. 2 is a wholly-owned subsidiary of Cintas Corporation. Cintas Corporation No. 2 is a foreign corporation registered with the State of Wisconsin, whereas Cintas Corporation is a foreign corporation not registered in Wisconsin and does not do business within the State of Wisconsin.
Neither Cintas Corporation No. 2 nor Cintas Corporation responded to the complaint, and Johnson moved for default judgment. Cintas Corporation filed an Emergency Motion to Strike and Dismiss for Lack of Personal Jurisdiction. At the default judgment hearing Johnson was allowed to amend the summons and complaint. The trial court then granted default judgment against Cintas Corporation No. 2.
Cintas No. 2 then contacted the trial court and filed its answer to the original and amended complaints, but the court refused to hear Cintas No. 2’s motions because it had already granted default judgment against Cintas No. 2.
Cintas No. 2 filed a motion for relief from judgment, which the court granted and then vacated the default judgment. Johnson filed a motion for reconsideration and argued that newly obtained information proved that Cintas No. 2 effectively held itself out as Cintas Corporation. The trial court granted Johnson’s motion and reinstated the default judgment.
Court of Appeals Decision
The court of appeals reversed the trial court. The court held that because Johnson’s summons failed to accurately name the proper defendant (Cintas Corporation No. 2), the service of process failed to confer personal jurisdiction over that defendant.
The court further explained that regardless of how Cintas Corp. No. 2 held itself out to the public, the amendment of the summons and complaint had the effect of bringing a new party into the action. According to the court, added parties must be served with the summons or voluntarily appear. The court further noted that strict compliance with the rules of statutory service upon amendment naming a new corporate entity is consistent with Wisconsin’s policy viewing default judgments with disfavor.
Wisconsin Supreme Court Affirmed Court of Appeals
In a 4-2 decision, the Wisconsin Supreme Court on Tuesday, March 27, 2012 affirmed the court of appeals’ decision. According to the Supreme Court:
We conclude that service in this case was fundamentally defective because Johnson failed to name Cintas No. 2 as a defendant in his summons and complaint, contrary to Wis. Stat. §§ 801.02(1) and 801.09(1). Therefore, the circuit court lacked personal jurisdiction over Cintas No. 2, regardless of whether or not the defect prejudiced Cintas No. 2 and regardless of the manner in which Cintas No. 2 held itself out to the public or to Johnson specifically.
The opinion was authored by Justice Annette Ziegler, and joined by Justices Patrick Crooks, Patience Roggensack, and Michael Gableman. Justice David Prosser did not participate in the case.
Dissent
Justice Ann Walsh Bradley, joined by Chief Justice Shirley Abrahamson, dissented. In their dissenting opinion, Justice Bradley argues that the “summons and complaint contained a mere misnomer – a technical defect that does not deprive the circuit court of jurisdiction.” Specifically, the dissent argues that the omission of “No. 2” was a misnomer, and as a result, did not deprive the circuit court of personal jurisdiction.
According to the dissenting opinion, the majority reached “the wrong result by dodging the applicable standards for mere misnomers” and “craft[ed] an unreasonable and unnecessary rule.”
Andrew Cook is an attorney and Director of Legal Services for the Great Lakes Legal Foundation.
Current and Former Justices Discuss Judicial Turmoil
The Wisconsin Supreme Court has been in the news lately, not for its opinions, but for its inner workings and interpersonal conflicts. Former Wisconsin Supreme Court Justices Janine Geske and Jon Wilcox were recent guests on Wisconsin Eye’s Legally Speaking, where they offered their opinions on many issues facing the courts. Current Justice Michael Gableman published an article in the latest issue of Wisconsin Policy Research Institute’s Wisconsin Interest providing his opinions on many of the same issues.
The first subject broached by the former justices was the Judicial Commission’s decision-making process generally and as it relates to the recent charges filed against current Justice David Prosser. Both former justices expressed their concerns about how the existing Commission processes will play out when a sitting justice is the subject of investigation.
Next, the former justices discussed the allegations that Justice Gableman has a conflict of interest when the firm that represented him in the past appears before the court. Geske said she assumed there would be a complaint filed with the Judicial Commission in the future. Wilcox agreed, lamenting that the justices are operating in a “gotcha world.”
The interview also included a discussion of the court’s recent decision to limit open judicial conferences. Wilcox indicated he respected the court’s judgment in closing the conferences, while Geske disagreed expressing her disappointment in the court’s decision.
The former justices touched on the topics of court management, the legislative effort to amend the Chief Justice selection process, and the funding and propriety of judicial elections.
Throughout the interview, both former justices expressed concern about the public perception of the court, and expressed their desires that the court move forward and work to improve its reputation in the eye of the public.
Sitting Justice Michael Gableman addressed many of the same issues as were discussed in the Legally Speaking interview in a recent piece he authored for the latest issue of Wisconsin Policy Research Institute’s Wisconsin Interest.
The Legally Speaking video is available from Wisconsin Eye. The article by Justice Gableman is available on the Wisconsin Policy Research Institute’s website.
High Court Rules that Owners of Property Destroyed by a Forest Fire Are Entitled to Double Damages
In a 6-1 decision authored by Justice Annette Ziegler, the Wisconsin Supreme Court held that if an owner’s property is destroyed by a forest fire that is caused by negligence of another person, then the property owner automatically is entitled to double damages. Chief Justice Abrahamson, along with Justices Crooks, Prosser, Roggensack, and Gableman joined the majority. Justice Bradley dissented from the majority decision. The case is Heritage Farms v. Markel Ins. Co., 2012 WI 26.
Facts
The case involved a forest fire that extensively damaged nearby property owned by Heritage Farms, Inc. The fire started by the defendant was extinguished, but weeks later flared up and escaped the defendant’s property and entered onto Heritage Farms’ property.
Heritage Farms’ owners were awarded $568,422 in compensatory damages in a previous decision after it was determined that the defendant’s negligence led to the forest fire. Heritage Farms then brought a separate motion against the defendant seeking double damages, along with costs for legal representation.
Decisions by the Trial Court and Court of Appeals
The issue before the trial court was whether Heritage Farms was automatically entitled to double damages, or whether the statute grants the court discretion when deciding whether to award double damages.
The statute states that an owner “whose property is injured or destroyed by forest fires, may recover, in a civil action, double the amount of damages suffered, if the fires occurred through willfulness, malice or negligence.” (Wis. Stat. § 26.21(1)).
The trial court held that the statute allowed the court to exercise discretion in deciding whether to award double damages. The trial court decided that the defendant’s conduct did not warrant punishment, and therefore did not grant Heritage Farms double damages.
The court of appeals upheld the lower court, ruling that the decision to award double damages under the statute is subject to the circuit court’s discretion. The court noted that the legislature used the permissive word “may” in the statute in describing the property owner’s right to recover double damages in the event that a forest fire result from willfulness, malice, or negligence.
Wisconsin Supreme Court Decision – Statute Mandates Double Damages
The Wisconsin Supreme Court reversed, holding that property owners are entitled to double damages. The court reasoned that, “once it is determined that the forest fire occurred through willfulness, malice, or negligence, the property owner is entitled to double damages as a matter of course.”
The court further held that their ruling should apply retroactively, not prospectively, thereby ensuring that Heritage Farms received the full double damages.
Interest on Judgments
The court further held that the plaintiff was entitled to interest on the double damages from the date of the jury’s verdict (October 13, 2006). At the time the lawsuit was brought, the interest on judgments was 12 percent.
The defendant argued that the 12 percent interest was unconstitutional because the high interest rate is so severe and so far removed from the national prime lending rate that it tends to “chill” defendants from properly defending their claims on appeal.
The court rejected this claim and said that the legislature was the proper branch of government to determine the proper interest rate. The court noted that the legislature this session in fact changed the interest on judgments from 12 percent to the federal reserve prime rate, plus one percent. This law, 2011 Wisconsin Act 69, was championed by the Wisconsin Civil Justice Council and was introduced by Gov. Walker as part of his numerous civil justice reforms.
Dissent
Justice Bradley dissented, arguing that the legislature did not intend that the award of double damages in these types of cases be mandatory. Instead, the legislature’s use of the word “may” signaled its intent that the courts are to exercise discretion when deciding whether to award double damages.