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The Ups and Downs of Torts

By: Erika Strebel, [email protected]//June 6, 2019//

The Ups and Downs of Torts

By: Erika Strebel, [email protected]//June 6, 2019//

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Pat Dunphy (left) - Travis Rhoades (right)
Pat Dunphy (left) – Travis Rhoades (right)

Although tort filings in Wisconsin continue to become less and less common, 2018 saw a slight increase over the number filed in 2017.

Plaintiffs filed 5,996 tort lawsuits in Wisconsin in 2018, according to statistics assembled by the Wisconsin State Court System. That’s up by 39 filings from 2017, when the state saw 5,938 lawsuits filed. The last time there was such an increase was in 2016, when 6,126 tort lawsuits were filed.

The majority of tort lawsuits stemmed from car crashes, which accounted for 3,757 of the cases filed in 2018 and made up more than 60 % of all tort filings. That same year, of the 201 tort lawsuits that went to a jury trial, 140 involved car crashes — a number that was the most seen since 2009 and up by 33 cases from last year. In 2018, 1,303 car-crash cases were settled, down from 1,548 cases in 2017.

Pat Dunphy, a personal-injury attorney at Brookfield-based Cannon & Dunphy, said he didn’t expect to learn there had been a decrease in car-crash filings.

“I’m surprised only because insurance companies are becoming increasingly tough to deal with,” he said. “The offers we’re seeing are, in our experience, woefully in adequate.”

Dunphy said the decrease means one of two things – either fewer cases are being opened or the people who are opening them are settling for “pennies on the dollar.”

In general, however, he said the last three years of statistics for car-crash cases are consistent with what he has seen in his own practice.

tort-chart“They’re still resolved at trial, but a lot of them we’re filing in order to get them into the system and get them out of the hands of the insurance company adjusters,” Dunphy said.

Meanwhile medical-malpractice cases continued to become less and less common, a trend that began when lawmakers started capping noneconomic damages in the mid-1990s. The current cap is $750,000 – and there are no cost-of-living adjustments.

In 2018, plaintiffs filed 93 medical-malpractice lawsuits. That same year, eight of those cases went to trial and 26 were settled.

Dunphy said he was surprised to learn a steady number of medical-malpractice lawsuits had been opened in the past three years.

“People don’t do them anymore,” he said.

Meanwhile, the state’s courts are seeing more property-damage lawsuits. In 2018, 785 property-damage lawsuits were filed, nearly 200 more than in 2017 and the most since 2014.

Travis Rhoades, a defense attorney at Crivello Carlson, said that property-damage cases typically become common after natural disasters. But there was no big calamity last year, leading him to speculate that the boom in filings was a result of the improving economy.

“More institutional litigants are more inclined to take a risk by filing a lawsuit to recoup expenditures,” he said. “My experience has been as the economy tightens, insurance companies are less likely to get some of that back, but now as we get a better economy, I suspect that’s what’s driving a bit of a jump year over year.”

Rhoades said the statistics have generally shown little variance in the past three years.

But 2019 could prove to be worth paying extra attention to. Rhoades noted that over the past year or so, there have been some significant U.S. Supreme Court and federal appeals-court decisions handed down in what the American Tort Reform Association calls “judicial hellholes.” This pejorative label refers to jurisdictions where officials are viewed by many as being more willing than their counterparts elsewhere to let plaintiffs’ lawsuits go forward. Lawmakers in these places also are often perceived as being open to adding to the circumstances in which people or business can be found liable for causing injury.

“A lot of parties that litigate in those jurisdictions are filing suits in places where they ought to have been in the first place,” Rhoades said.

Of the few differences that Dunphy has noticed in his practice, the biggest is the low offers his clients are now being presented with.

“I haven’t seen any change in volume of new cases we’re opening,” he said. “The value, the types – it’s all pretty steady. It’s just a matter of being resolved.”

Dunphy also predicted that having a Democratic governor in office will make little difference.

“There’s going to be no effect,” he said. “The Republicans still control the Legislature.”

Rhoades, on the other hand, said the Democratic administration will mean lawmakers will have at least to consider policy proposals that could add to the circumstances in which a person or business could be found liable for causing injury.

“Typically, they’re going to institute procedures and try to push through legislation that might make it easier to file a lawsuit — at least that’s what I’ve seen in my career,” he said.

Tort filings continue downward trend

Although tort filings in Wisconsin continued trending downward from 2017 to 2018, as they had done in previous decades, there was a slight increase in the total number of tort lawsuits filed. The last time such an increase occurred was in 2016. Car-crash lawsuits continue to make up more than 60 percent of tort lawsuits filed. Filings in property-damages cases have also been on the rise since 2015. (Source: Statewide civil disposition reports, Wisconsin Court System website)
Although tort filings in Wisconsin continued trending downward from 2017 to 2018, as they had done in previous decades, there was a slight increase in the total number of tort lawsuits filed. The last time such an increase occurred was in 2016. Car-crash lawsuits continue to make up more than 60 percent of tort lawsuits filed. Filings in property-damages cases have also been on the rise since 2015.
(Source: Statewide civil disposition reports, Wisconsin Court System website)

Jury trials continue downward trend

There was a slight increase in personal-injury lawsuits that went to a jury trial from 2017 to 2018. Of the 201 personal-injury lawsuits that went to trial, 140 involved car-crash lawsuits. (Source: Statewide civil disposition reports, Wisconsin Court System website)
There was a slight increase in personal-injury lawsuits that went to a jury trial from 2017 to 2018. Of the 201 personal-injury lawsuits that went to trial, 140 involved car-crash lawsuits.
(Source: Statewide civil disposition reports, Wisconsin Court System website)

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