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Winning streak: Tort-change proponents savor victories, look to make up defeats

In compromising on, and even killing, some proposed changes to the state’s tort laws, supporters say they have furnished proof they are not mindless puppets controlled by outside interest groups. But plans already are afoot to resurrect some of the tort proposals that did not make it through the Legislature this session. 

State Rep. Jim Ott, R-Mequon stands along Michigan Street on April 8 in Milwaukee. Ott drafted some recent proposed changes to the state’s tort laws. (Staff photos by Kevin Harnack)

State Rep. Jim Ott, R-Mequon stands along Michigan Street on April 8 in Milwaukee. Ott drafted some recent proposed changes to the state’s tort laws. (Staff photos by Kevin Harnack)

State Rep. Jim Ott, R-Mequon, who wrote some of the legislation, said lawmakers’ decision to not pursue certain bills should not be taken as a sign of flagging commitment to reducing tort litigation or damages.

Rather, he said, several proposals ended up being stalled simply because their supporters, almost always Republicans, ran out of time to make what they considered necessary improvements. Such was the case with one of Ott’s own bills, Assembly Bill 706, which would have prevented parents from having to pay more than $300,000 in damages if their children under the age of 18 caused a car wreck.

A companion bill received the state Senate’s approval March 12, but Ott used his power as chairman of the Assembly Committee on Judiciary to block the proposal in his chamber. Ott said he remains convinced the legislation’s fundamental idea is sound but was reluctant to move quickly on something that had been introduced only a few months before the end of the regular legislative session in early April.

“But that doesn’t mean,” he said, “that you aren’t going to take a look at it next session.”

For opponents of what supporters call tort reform, the compromises brokered during the recent legislative session present a small source of hope. But it remains to be seen whether they can truly reduce the flow of tort changes that has been moving through the state Legislature ever since Republicans took control of the Legislature and governor’s office in 2011. So far, efforts to stop the proposals have largely been futile.

This session alone, the Wisconsin Justice Association, a group that argues tort bills offer protection to businesses at the expense of individual rights, identified 22 separate “tort reform” bills. Of those, more than half made their way through the Legislature.

State Rep. Dana Wachs, D-Eau Claire, who is on the judiciary committee, said one of the biggest lessons he has learned in his first term in the Assembly is that if members of the minority party are to have any hope of altering a bill proposed by the majority, they have to make their suggestions in committee.

“By the time it gets to the floor,” he said, “it’s toast. There’s no hope.”

Wachs, a lawyer, said Republicans’ willingness from time to time to alter a proposal or back away from a particularly bad bill does not absolve his colleagues on the other side of the aisle from the charge that they are carrying out corporations’ bidding. He has been among a host of Democrats who have pointed out similarities between tort changes proposed by Republicans in recent legislative sessions and so-called model legislation purveyed by conservative-leaning groups such as the American Legislative Exchange Council and the U.S. Chamber of Commerce.

Andy Cook, a lobbyist for the Wisconsin Civil Justice Council, stands near the State Capitol building in Madison.

Andy Cook, a lobbyist for the Wisconsin Civil Justice Council, stands near the state Capitol building in Madison.

“These folks,” Wachs said, “seem hellbent on substantially impairing the rights of victims.”

In trying to establish a strong connection between recent tort changes and groups such as ALEC, critics have often noted that some of the legislation proposed seems out of place in Wisconsin. A bill signed by Gov. Scott Walker on March 27 is aimed at protecting trusts from asbestos claims filed by victims who have already recovered money from solvent companies. Yet, only seven asbestos-related lawsuits were filed in Wisconsin in 2013, according to court records.

Criticism along similar lines came from an unusual source on the Senate floor April 1, the last day that chamber was scheduled to conduct regular business this year. State Sen. Glenn Grothman, the chairman of the Senate Committee on Judiciary and Labor and a Republican author of many tort changes, questioned the need for a bill that would make  doctors’ expressions of condolence or fault in cases involving medical mishaps inadmissible as evidence.

Most of the objections to the so-called “I’m Sorry” bill have been about a provision that would extend protections not only to those who express regret over a particular outcome, but also to practitioners who admit responsibility. Grothman, who could not be reached for this story, went further in his comments on April 1, noting that medical malpractice cases are becoming rarer in Wisconsin. In 2013, 161 requests for mediation were made to the Wisconsin Medical Mediation Panels, a preliminary step in filing a malpractice complaint, down from 247 a decade ago.

“I hope that next session,” Grothman said on the Senate floor, “we will not be afraid to kill what we think are questionable bills.”

Earlier in the session, lawmakers showed they would let serious misgivings undermine a tort-change bill that was favored by Republican-aligned groups. Senate Bill 22 would have eliminated a prohibition that prevents juries, when deciding what should be awarded in personal-injury cases, from learning how much of a discount insurers were able to negotiate for a victim’s medical bills.

The so-called collateral-source bill ran aground on concerns that, by possibly reducing the amount of money victims could win in personal-injury cases, health insurers could lose some of their ability to recoup money following those court awards. Ott said he kept waiting for supporters of the legislation to respond with an amendment. There never was one, he said, and he decided against bringing the bill up for vote before the Assembly Judiciary Committee.

“That,” said Andy Cook, a lobbyist for the right-leaning Wisconsin Civil Justice Council, “was the biggest disappointment we had this session.”

Cook said the collateral-source bill remains a priority and he thinks the way out of the impasse might lie in better information rather than an amendment. He said he is convinced that some of the reservations about the proposal arose from a misunderstanding.

Aside from that small source of discontent, though, proponents of tort change can look back on the past two legislative sessions as times of triumph, Cook said. He listed many of what he said he considers steps in the right direction in a recent report, “2013 Civil Justice Update: Recently Enacted State Reforms and Judicial Challenges,” that he wrote for the Federalist Society, a libertarian group.

The report lists several tort changes approved by the Legislature and governor this year. Among them are laws limiting what law firms can recoup when they win cases for the state, changing what doctors are obliged to tell patients about medical procedures and eliminating automatic double damages in suits filed over lemon vehicles.

The future of the tort movement in Wisconsin will depend on whether Walker and his fellow Republicans retain control of the governor’s office and Legislature after the elections in November, Cook said. But regardless of the outcome, he said, the sweeping changes passed in the two legislative sessions since Walker became governor probably mean there will be less to do next year.

“I don’t think it’s likely we would replicate anything of the size and breadth of the past couple of sessions,” he said. “But there are a few outstanding policies out there that can be addressed.”

For now, the first order of business for tort-change proponents is probably the unfinished business from this session.

Ott said he sees no reason to deviate from the goals behind tort-change proposals that died this year. A few details might merely need tweaking, he said.

“Eventually, you get it done,” Ott said. “But there are some issues there that sometimes need fixing.”

THE TORT REPORT

circleThe state Legislature passed 12 tort-related bills during the 2013-14 legislative session. They are:

  • Assembly Bill 19, which is meant to prevent victims of asbestos and other workplace hazards from double dipping into bankruptcy trusts set up to provide compensation for injuries. The bill allows judges to determine when victims have not been forthcoming about additional trust claims and to stay cases until those claims are filed.
  • Assembly Bill 27, which places a $30 million cap on compensation a law firm can obtain when working for the state under a contingency-fee contract and takes various other steps to make those arrangements more transparent.
  • Assembly Bill 120, which prevents juries from considering as evidence any statement of condolence or fault that a doctor might have made to a patient about a medical mishap.
  • Assembly Bill 139, which makes several changes to a doctor’s obligation to tell patients of alternative medical treatments before performing a particular procedure. The bill makes the obligation consist of providing the sort of information that doctors would expect to be provided, rather than what a reasonable patient would expect to hear.
  • Senate Bill 518, which applies the same changes in AB 139 to podiatrists, chiropractors, dentists and optometrists.
  • Assembly Bill 161, which allows appeals as a matter of right of judges’ decisions to enjoin or otherwise restrain the enforcement of state statutes.
  • Assembly Bill 200, which makes a number of changes to Wisconsin’s “Lemon Law.” Among them is eliminating the automatic awarding of double damages that had been imposed when vehicle manufacturers failed to fulfill various requirements.
  • Senate Bill 321, which provides legal immunity to property owners whose land is used for recreational aviation.
  • Senate Bill 375, which provides legal immunity to various school officials when they use an epinephrine injector on a student who is experiencing a severe allergic reaction.
  • Assembly Bill 446, which provides legal immunity to those who administer the drug naloxone, or Narcan, to prevent an overdose from heroin or another opioid.
  • Senate Bill 527, which provides legal immunity to owners and operators of shooting ranges. The bill also prevents local governments and the state from subjecting shooting ranges to laws and ordinances that were not in effect when the ranges were established.
  • Assembly Bill 746, which provides legal immunity to those who provide tours of farms and other agricultural settings, as long as they post signs warning guests of dangers and do not show a wanton and willful disregard for others’ safety.

About Dan Shaw, [email protected]

Dan Shaw is the managing editor at the Wisconsin Law Journal. He can be reached at [email protected] or at 414-225-1807.

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