Joint and several provision dropped

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Both houses of the Wisconsin Legislature have dropped a budget provision that would have permitted defendants to face full liability for damages even if they bear only 1 percent of the fault.

The Assembly removed Gov. Jim Doyle’s recommendation from its version of the budget on June 12, and the Senate followed suit less than a week later.

Since 1995, Wisconsin defendants have had to be at least 51 percent negligent to be liable for full damages.

Plaintiffs’ attorney J. Michael End said the change would have helped restore plaintiffs’ ability to make sure liable parties are held responsible for their actions.

He said the defense argument that a defendant only 1 percent at fault could be held liable for full damages is a red herring.

“It’s all hype about the 1 percent and makes for a great argument for the other side,” said End, who does medical malpractice work at End, Hierseman & Crain LLC, in Milwaukee. “But it’s not realistic and it doesn’t happen.”

“If it is that close of a case, the jury tends to let the party off,” he added.

But defense attorneys like Michael P. Crooks of Peterson, Johnson & Murray SC in Madison argued that the change would have allowed the “rigging” of lawsuits in favor of injured parties.

Crooks charged that plaintiffs’ attorneys would have targeted minimally liable parties for maximum damages.

He said the current system safeguards against trying to saddle businesses or doctors who bear little of the blame with the majority of the financial responsibility.

“What I fundamentally don’t understand is why we would want to allow a system to exist where someone only minimally responsible can get tagged for the entire amount of damages,” Crooks said.

According to attorney Robert J. Lauer, president of the Wisconsin Defense Counsel , it’s unclear whether the provision could be revived by the conference committee.

End said the fact that legislators were “skittish” about keeping the provision in the budget may mean it will not be included in the final version.

In Lauer’s view, the proposal needs to be discussed openly and not passed behind closed doors.

“If this is going to be introduced, it should be as a separate bill in the Legislature,” said Lauer, who practices at Kasdorf, Lewis & Swietlik SC, in Milwaukee.

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