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CAPITOLISMS BLOG: Well, at least we’re not a judicial hellhole

Dan Shaw

Dan Shaw

It’s too bad for the Republicans who control the statehouse that tort reform seems to be far less of an issue of public concern than the economy.

Otherwise, they would have something to distract the public’s attention away from the latest evidence that Gov. Scott Walker is still quite a ways away from reaching his goal of overseeing the creation of 250,000 jobs in his first term. They could point to the latest Judicial Hellholes report, which praises Wisconsin in its “points of light” section for passing bills aimed at ensuring businesses receive fair treatment from the courts.

The reports are put out by the American Tort Reform Foundation, whose name pretty much says all that anyone need know. Every year, the group singles out judges who, it says, routinely apply the law in a way that is biased against defendants, chiefly in civil lawsuits.

Along with the warnings, the reports also dole out praise. In fact, Wisconsin is deemed a “point of light” not only in the current report, but in the previous two as well.

The first of those came out in 2011, the same year Republicans took over both chambers of the state Legislature and the governor’s office. This is obviously no coincidence.

Although Walker’s fight to strip public workers of the majority of their collective bargaining rights is what most observers will remember about his first term, it wasn’t his only priority. Practically the first step the new governor took upon entering office was to introduce legislation aimed at changing the state’s tort laws.

The push resulted in omnibus legislation that, among other things, capped the amount of punitive damages that can be awarded at $200,000, strengthened the standards governing the use of expert witnesses and put up obstacles to obtaining compensation from companies that made products that are similar to one that is alleged to have caused harm.

Although the Legislature has not passed anything quite so wide sweeping since, the campaign for tort reform has hardly slowed. Republican lawmakers have introduced a series of tort reform proposals as individual bills, many of them borrowing from “model legislation” circulated by groups such as the American Legislative Exchange Council or the U.S. Chamber of Commerce.

This time, though, the success hasn’t been quite as rapid. Walker signed two of the bills this month: one dealing with what doctors must tell patients about proposed treatments and the other placing a cap on the amount of money law firms can receive when they work for the state under contingency fee contracts.

But two others remain hung up in the Legislature. One of them — a complex bill that would let juries see not only what doctors charge for medical treatments, but what insurance companies pay after negotiating discounts — seems to have died after concerns arose that it would drive up the cost of medical insurance.

The other, a similarly complicated affair meant to prevent plaintiffs from double-dipping into trusts that have been set up mainly to compensate asbestos victims, has also had trouble winning support amid concerns that it would prove harmful to veterans.

Those headwinds, though, aren’t preventing Wisconsin from receiving attention from certain quarters. As I said, it’s too bad for Republicans that the attention isn’t coming from the general public.

Dan Shaw writes his Capitolisms blog for the Wisconsin Law Journal. Follow him at dailyreporter.com/capitolisms.

About Dan Shaw, dshaw@wislawjournal.com

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at dshaw@wislawjournal.com or at 414-225-1807.

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