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Where is all the promised promiscuity?

David Ziemer

David Ziemer

The Wisconsin director for some organization called the National Federation of Independent Business recently said that Wisconsin has one of the most “promiscuous” tort systems in the country.

Inasmuch as I’ve always been a really big fan of promiscuous behavior, I figured I should check this out.

Unfortunately, I found rather little evidence of promiscuity. Instead, I found what would more accurately be described as incompetence.

First, I looked at expert testimony. In the federal courts, you have to actually be an expert to testify as an expert. But if your case is pending in Wisconsin state court, you could probably dig up an expert by trolling skid row.

Take failure to warn claims. To prevail on a failure to warn claim in federal court, you need an expert who has, at some point in his life, you know, actually written a warning label. Cummins v. Lyle Industries, 93 F.3d 362 (1996).

But in state court, the law is that the mechanic from your corner repair shop is qualified to testify as to the adequacy of a warning on a car battery. Tanner v. Shoupe, 228 Wis. 2d 357, 596 N.W.2d 805 (Ct.App. 1999).

The predictable result is that claims that should be dismissed at the summary judgment stage are allowed to go to trial. Some defendants necessarily settle, lest the jury actually gives more credit to the “expert” testimony of Fonzie than an engineer trained in writing warning labels for car batteries.

But where is the promiscuity here? Like I said, I love promiscuity. This was so not what I went looking for.

So, I moved on to punitive damages. In 1995, the Legislature, believing that it was too easy to recover punitive damages in Wisconsin, rewrote sec. 895.85, intending to make it harder to recover them.

The legislature botched the job miserably, and in 2005, the Supreme Court issued an opinion that made it even easier to recover punitive damages than it was before the 1995 legislation. Strenke v. Hogner, 2005 WI 25, 279 Wis. 2d 52, 694 N.W.2d 296.

Let me make clear that I am not blaming our Supreme Court. The Legislature is so incompetent it drafted a statute which, on its face, allows punitive damages in every garden-variety negligence case, while intending to make it more difficult to recover them.

That is not the fault of the court system. The unfortunate reality is that, in Wisconsin, lawyers and judges are just janitors; it’s the legislators who urinate on the floor.

I do not request any particular threshold for punitive damages here. I request only that the Legislature get input from a wide spectrum of knowledgeable people, including both plaintiff and defense lawyers, with a view towards drafting thoughtful legislation that reflects the will of the people. As it stands now, the statute reflects nothing but the incompetence of our Legislature the last time tort reform was fashionable, circa 1995.

I could go on; indeed, I could fill the entire issue of this paper with a list of statutes I’d like to see repealed or amended, but I’m not going to do that. I’m just a very amoral man, relating how he went in search of rampant promiscuity in the Wisconsin statutes, and instead found only gross malfeasance.

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