Wisconsin Omnibus Tort Bill is Signed

On Thursday, January 27, 2011, Governor Walker signed into law Wisconsin’s Omnibus Tort Bill. The new laws will take effect no later than February 11, 2011 – 11 business days after January 27, 2011.

Strict Product Liability (Wis. Stat. § 895.047): 

• Sellers and distributors of defective products are not subject to liability unless: (a) they assume, through contract, a duty of the manufacturer; or (b) the manufacturer and its insurer are not subject to service of process in Wisconsin; or (c) a court concludes that a judgment against the product manufacturer or its insurer could not be enforced. Further, the principles of comparative negligence embodied in Wis. Stat. § 895.045 now apply to strict product liability claims.

Common-Law Risk Contribution Doctrine Limited (Wis. Stat. § 895.046): 

• With certain exceptions, when a claimant alleges claims of design defect or failure to warn, a product defendant may be held liable only if the claimant proves—in addition to other elements required—which specific product allegedly caused the injury. If the claimant cannot meet this proof requirement, a product defendant may be held liable only if: no other lawful process exists for the claimant to seek redress; the claimant’s injury could be caused only by a product that is chemically and physically identical to the allegedly offending product; the defendant manufactured, distributed, sold, or promoted a complete integrated product; and the claimant names as defendants the manufacturers that collectively manufactured 80% of the chemically and physically identical products sold in Wisconsin during the relevant production period.

Punitive Damage Caps (Wis. Stat. § 895.043(6)): 

• Punitive damages may not exceed twice the amount of compensatory damages recovered or $200,000, whichever is greater. However, the cap does not apply to drunk drivers. In addition, the cap does not apply to cases already pending at the time of the effective date.

Non-Economic Damage Caps for “Long-Term Care Providers” (Wis. Stat. § 893.555):

• Non-economic damages for bodily injury arising from the care or treatment (or any omission) by a “long-term care provider”—which includes nursing homes, hospice centers, and assisted living centers—are capped at $750,000.

Move Toward Daubert Standard of Expert Testimony (Wis. Stat. § 907.02(1)): 

• Expert testimony is now limited to testimony that is: (a) based on sufficient facts or data; (b) the product of reliable principles and methods; and (c) based on the witness’ applying those principles and methods to the facts.

Mandatory Monetary Sanctions for Frivolous Claims or Filings (Wis. Stat. § 895.044): 

• Courts now must award as sanction actual costs, including reasonable attorney fees, when they find that a party or its attorney knew that an action it filed or continued was frivolous and does not correct the improper conduct within 21 days.