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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.
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About this Author

Christopher Riordan, Von Briesen Roper Law Firm, Milwaukee, Insurance, Coprorate and Litigation Law Attorney

Christopher Riordan is a member of the firm’s Litigation and Risk Management Practice Group. Chris’ practice focuses on medical negligence, hospital malpractice, personal injury, insurance coverage issues and product liability claims. He has tried more than fifty jury trials throughout his career.

Chris is a member of the American Bar Association, State Bar of Wisconsin (Board Member, Litigation Section), Milwaukee Bar Association, Defense Research Institute and the Wisconsin Academy of Trial Lawyers.

Heidi Vogt, von Briesen Roper Law Firm, Milwaukee, Insurance and Litigation Law Attorney

Heidi Vogt is a Shareholder and Co-Chair of the Litigation and Risk Management Practice Group as well as the Chair of the Insurance Coverage and Risk Management Section. Her practice focuses on insurance coverage litigation, commercial disputes, constitutional law, and complex litigation. She has represented insurance companies in Wisconsin and across the country in both state and federal courts in complex insurance coverage matters for more than 20 years.

She represents and counsels insurance clients on a wide variety of topics including general liability, environmental, asbestos, toxic tort, products, construction defect, mold, bad faith, mass tort, intellectual property, firearms litigation, employer liability, first party property, and professional liability. She is frequently retained to negotiate and draft allocation agreements among insurers and develop creative solutions to various insurance coverage issues.

Heidi lectures on a wide variety of topics including environmental insurance coverage, environmental issues, bad faith litigation, motor carrier issues, and advertising injury liability/personal injury liability coverage.

Douglas Raines, Von Briesen Roper Law Firm, Milwaukee, Real Estate, Insurance And Litigation Law Attorney

Doug Raines is a Shareholder in the firm’s Litigation and Risk Management Practice Group. His practice focuses primarily on commercial litigation, insurance defense, and appellate work.

Doug has helped clients achieve positive outcomes through settlement of numerous cases ranging from slip-and-fall, breach of contract, landlord-tenant, and insurance coverage issues.

Before joining von Briesen, Doug served as the law clerk to the Hon. Patience D. Roggensack of the Wisconsin Supreme Court (2007 – 2008 term).