State Senate passes omnibus tort reform bill, makes new law
effective immediately
By Adam Korbitz, Government
Relations Coordinator, State Bar of Wisconsin
Jan. 19, 2011 – The Republican-controlled state Senate passed
an omnibus tort reform bill today but amended the bill before
passage so it will take effect immediately upon enactment.
The Senate passed the bill on a
19-14 party-line vote, sending the bill to the Assembly for action later
this week. Gov. Scott Walker and the Republican leadership in the
Legislature have placed the bill on a fast-track for passage during the
ongoing special session related to job creation. Legislators first
introduced the tort reform bill on Jan. 5.
The full Assembly, which Republicans control by a 60-38-1 margin,
will vote on the bill on Thursday, Jan. 20. The Assembly Judiciary
Committee also approved the bill on Tuesday, Jan. 18, after recommending
several changes. The Assembly could further change the bill’s
effective date provisions – possibly by restoring a delayed
effective date – but the Assembly Judiciary Committee did not
recommend any such changes.
If passed by the full Assembly on Thursday, Jan. 20, legislators
could send the final bill to Gov. Walker for his signature as soon as
Friday, Jan. 21.
Senate Action
Under an amendment
the Senate approved 19-14, the bill will take effect under Wis
Stat. section
991.11 on the day after the act’s publication date as
determined by the secretary of
state. Under section 991.11, publication can occur any time
from the day the governor signs a bill to not more than 10 working days
later. The bill generally applies to actions filed on or after the
bill’s effective date and is not linked to when an injury
occurs.
The Senate’s amendment made changes to language recommended
on Friday, Jan. 14, by the Senate Judiciary Committee. Those recommended
changes eliminated the bill’s original language that would have
made many of the bill’s provisions applicable to lawsuits that
were filed even before the bill’s effective date.
Under the Senate Judiciary Committee’s version, most of the
bill’s relevant provisions would have applied to actions commenced
on or after the first day of the second month following its publication.
The full Senate struck these provisions, leaving the bill to take effect
the day after the final act is published.
Other changes approved by the full Senate would maintain current law
regarding the legal standard necessary to impose punitive damages, but
would impose a cap of two times compensatory damages or $200,000,
whichever is greater. The bill as originally introduced would have
substituted a new and more stringent standard for punitive damages,
which many critics said would make it more difficult to obtain punitive
damages in lawsuits against drunk drivers who kill or injure others. As
amended by the full Senate, the bill would maintain the current standard
requiring a plaintiff to show that a defendant acted maliciously or with
intentional disregard of the plaintiff’s rights in order to obtain
punitive damages.
On Tuesday, the full Senate also approved by voice vote an amendment
to make the new punitive damages cap inapplicable to lawsuits related to
operating a motor vehicle while intoxicated.
During debate on the bill, the full Senate rejected, on a series of
19-14 party-line votes, 13 Democratic amendments that would have made
various changes to the bill.
The Senate version of the legislation also makes changes
to the bill’s original provisions that conform Wisconsin law
regarding the opinions of lay and expert witnesses to Federal Rule of Evidence 702 and the so-called Daubert standard. The amendment eliminates
language – which many critics found troublesome –
requiring parties to prove that such proffered evidence is
“true,” but the amended bill would still impose the
Daubert standard.
Both the Senate and Assembly judiciary committees gave the tort
reform bill a 10-hour public hearing on Jan. 11.
State Bar opposes three provisions
The tort reform bill has several provisions that are opposed by the
State Bar of Wisconsin’s Board of Governors. Other major
components on which the Board currently has no position are currently
being studied by various State Bar practice sections. However, the bill
is likely to become law before any practice sections have an opportunity
to finish studying the bill and provide feedback on those provisions to
the Legislature.
The three provisions opposed
by the State Bar’s Board would extensively rewrite state product
liability law; impose caps on non-economic damages in lawsuits against
various providers of long-term care such as nursing homes, hospice
centers and assisted living facilities; and conform Wisconsin law
regarding the opinions of lay and expert witnesses to Federal Rules of
Evidence 702 and the Daubert standard.
Other provisions
Other provisions of the bill include measures to legislatively
reverse the Wisconsin Supreme Court’s lead paint liability
decision in Thomas v. Mallett, 2005 WI 129; rewrite state rules relating to damages
for frivolous claims; provide for the confidentiality of health care
quality improvement reviews; and apply a three-year statute of
limitations to lawsuits against long-term care providers.
The bill also includes other provisions that would effectively
immunize a health care provider from criminal prosecution for death or
bodily harm to a patient resulting from essentially negligent
conduct.
Continue to monitor WisBar.org and visit the State Bar’s Government
Relations page for updated information on these issues.
Related articles:
Senate
Judiciary Committee approves omnibus tort reform bill, recommends
changes - Jan. 14, 2011
State
Bar informs special session committees of its opposition to tort reform
provisions - Jan. 11, 2011
Legislature
holds hearing on special session bills - Jan. 11, 2011
Republicans
introduce omnibus tort reform bill, public hearing scheduled for
Tuesday – Jan. 6, 2011.
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