May 26, 2020

Wisconsin Court of Appeals Issues Important Decision under “Borrowing” Statute

If your work involves civil litigation in Wisconsin, you’ve likely run across Wis. Stat. § 893.07, the state’s borrowing statute, which governs the application of foreign statutes of limitations to cases filed in Wisconsin. And, if you’ve had the occasion to consider § 893.07, you should make a note to remember Paynter v. ProAssurance Ins. Co., No. 2017AP739 (Mar. 27, 2018), a recent decision from District III of the Court of Appeals written by Judge Lisa Stark. The decision reached a number of important holdings related to the statute and, if we had to make a prediction, is likely to be reviewed by the Wisconsin Supreme Court.

The claim in Paynter was that the defendant doctor failed to diagnose the plaintiff’s cancer. The defendants (the doctor and his malpractice insurers) successfully argued that the plaintiff’s medical-malpractice claim was barred by Michigan’s statute of limitations. The court of appeals affirmed the trial court’s decision, though it disagreed with the lower court’s rationale.

Paynter contains three important lessons.

  • First, there is no conflict-of-laws issue raised when the borrowing statute is invoked. Guertin v. Harbor Assurance Co. of Bermuda, 141 Wis. 2d 622, 630, 415 N.W.2d 831 (1987), held that the only question is whether the cause of action is “foreign”—which is to say whether the cause of action arose in another state. The trial court reached the right conclusion (that Michigan’s law applied), but it did so by applying an incorrect legal standard (using a conflict-of-laws analysis).

  • Second, to determine whether Paynter’s cause of action for misdiagnosis arose in Michigan, the court of appeals applied the rule from Paul v. Skemp, 2001 WI 42, ¶ 25, that the cause of action in a misdiagnosis case accrues when the misdiagnosis occurs, to establish where it occurred. Specifically, “in cases involving an injury or injuries that allegedly occurred in multiple states,” the court held, a “plaintiff’s cause of action is not foreign, for purposes of the borrowing statute, when the first instance of injury occurred in Wisconsin.” ¶ 29. In this case, the “first instance of injury” (the misdiagnosis) occurred in Michigan, so Paynter’s cause of action was foreign.

  • Third, and lastly, the court distinguished the Seventh Circuit’s approach to Wisconsin’s borrowing statute in a 1996 multi-state defamation case, Faigin v. Doubleday Dell Publishing Group, Inc., 98 F.3d 268 (7th Cir. 1996)Faigin had suggested that a tort claim could accrue in more than one state. Paynter argued that, although his misdiagnosis occurred in Michigan, he suffered injury when he was in Wisconsin (where he was with some frequency, though he did not live there) by virtue of his having undiagnosed cancer. The court of appeals treated Faigin with considerable skepticism—distinguishing it on the ground that it applied only to multistate defamation cases—and pointed out the obvious fact that a federal court’s interpretation of this state-law question has only whatever persuasive value it can muster.

The court of appeals affirmed the trial court’s grant of summary judgment in favor of the defendants. A petition for review is pending.

© 2020 Foley & Lardner LLP


About this Author

Eric G Pearson, Business Litigation Attorney, Appellate, malpractice, Foley
Senior Counsel

Eric G. Pearson is a business litigation lawyer with Foley & Lardner LLP, where his practice involves counseling and litigating in a variety of areas, including appellate litigation, professional-malpractice cases, and financial- and accounting-related controversies. In addition, he has represented clients in internal investigations and enforcement-defense actions in the financial, health care, and sports industries. Mr. Pearson is a member of the firm’s Appellate, Business Litigation & Dispute Resolution, and Government Enforcement, Compliance & White Collar...