March 27, 2006
Contact: Bill G. Smith (608)
James E. Hough (608) 258-9506
Bill G. Smith, President & James E. Hough, Legislative
There has been a concerted effort in Wisconsin for over 20 years to
establish a civil justice system which is based on common sense and
fairness. (This effort has been led by the Wisconsin Coalition for
Civil Justice (WCCJ), which was formed in 1985, and includes a
membership of numerous statewide business and professional
associations.) Increasingly, states’ civil justice systems constitute a
critical component in creating jobs and promoting economic growth.
During the 1995 Legislative Session, Wisconsin made significant strides
in advancing those goals by enacting landmark reforms to our joint and
several liability laws, limiting punitive damages and capping
noneconomic damages in medical malpractice claims. As a result, our
national ranking for litigation atmosphere rose to among the 10 best in
In March, 2005, our national ranking slipped from among the top 10 in
the country to number 17 as we failed to adopt reforms to our products
liability law, and enact reasonable standards regarding the
admissibility of expert opinion evidence consistent with the laws in
the vast majority of states.
Last year, the Wisconsin Supreme Court overturned the caps on
noneconomic damages in medical malpractice cases; weakened the
standards for the assessment of punitive damages; and advanced the
“risk contribution theory”. As a result, Wisconsin is now the
only state in the nation to completely eliminate the traditional legal
requirement that actual fault must be proven before damages are awarded
in a products liability lawsuit.
These developments opened the door to a flood of litigation,
reversed recent public policy successes, and seriously damaged
Wisconsin’s reputation as a business friendly state. The Court also
upset the delicate balance between the two branches of government by
acting as a “super legislature.” Wisconsin’s civil justice system is,
indeed, in a state of crisis.
The Wisconsin Legislature responded expeditiously by passing
legislation which not only reversed the Supreme Court decisions, but
also attempted to move Wisconsin into the mainstream in the areas of
product liability law and the admission of expert opinion evidence.
Although Governor Doyle recently signed the second effort at
establishing a cap on noneconomic damages in medical malpractice cases,
he has vetoed all liability reform legislation that has reached his
Against this backdrop, the drop in Wisconsin’s national ranking for
legal fairness and a positive litigation atmosphere was predictable and
Although we regret the recognition, we applaud the U.S. Chamber, the
Institute for Legal Reform and the Harris Poll for choosing Wisconsin
to release its 2006 rankings. It is not pretty, but putting the
highlight on Wisconsin may help to spur action to have meaningful legal
reform, not only enacted, but signed into law by Governor Doyle.