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2013 - 2014 LEGISLATURE
February 15, 2013 - Introduced by Representatives Jacque, Honadel, Kuglitsch,
Murphy, Schraa, Spiros, Stone, Strachota, Thiesfeldt and Weininger,
cosponsored by Senators Grothman and Lasee. Referred to Committee on
Judiciary.
AB19,1,2 1An Act to create 802.025 of the statutes; relating to: torts and personal injury
2trusts.
Analysis by the Legislative Reference Bureau
This bill creates discovery and scheduling requirements for certain types of tort
actions and limits a defendant's liability for a plaintiff's injury under certain
circumstances. Under the bill, a plaintiff who files a tort action must disclose, within
30 days after he or she files the action, whether he or she has filed or anticipates filing
a claim against a personal injury trust. A personal injury trust is a trust or
compensation fund that is established pursuant to a bankruptcy or other legal action
in order to compensate persons who file claims as a result of harm potentially
compensable in the plaintiff's tort action, for which the entity that established the
personal injury trust is alleged to be responsible.
Under the bill, if the plaintiff indicates that he or she has filed or anticipates
filing a claim against a personal injury trust, the bill requires the court to stay the
immediate proceedings until the plaintiff produces a final executed proof of claim
against the personal injury trust. The bill also allows a defendant to identify a
personal injury trust not named by the plaintiff, but against whom the defendant
believes the plaintiff has a legitimate claim. If the court agrees that there is a good
faith basis for the plaintiff to file a claim against the personal injury trust, the bill
requires the court to order the plaintiff to file a claim against the trust and stay the
proceedings until the plaintiff produces a final executed proof of claim against the
personal injury trust.
Under the bill, the plaintiff must provide all parties to his or her immediate suit
with all documents, records, trial or discovery materials, and other information

relevant to any claim against a personal injury trust. The bill allows any party to use
these materials in the immediate action to prove alternate causation of, or to allocate
liability for, the plaintiff's injury. The bill allows a defendant in the immediate action
to seek discovery from a personal injury trust against which the plaintiff has filed
or anticipates filing an action.
The bill requires the court to enter into the record a list that identifies each
personal injury the claim the plaintiff has made against a personal injury trust.
Under the bill, if a defendant in the immediate action is found liable for the
plaintiff's injury, the defendant is entitled to a setoff in the amount of any money the
plaintiff received from a personal injury trust for a substantially similar injury. If
the immediate action proceeds to trial before the plaintiff's claim against a personal
injury trust is resolved, the bill requires the court to establish an attributed value
to the plaintiff's claim against the personal injury trust and to afford the defendant
a setoff in that amount.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB19, s. 1 1Section 1. 802.025 of the statutes is created to read:
AB19,2,12 2802.025 Pleading certain personal injury actions; stay of proceedings.
3(1) Definitions. In this section: (a) "Personal injury claim" means any claim for
4damages, loss, indemnification, contribution, restitution or other relief, including
5punitive damages, that is related to bodily injury or another harm, including loss of
6consortium, society, or companionship, loss of support, personal injury or death,
7mental or emotional injury, risk or fear of disease or other injury, or costs of medical
8monitoring or surveillance. "Personal injury claim" includes a claim made by or on
9behalf of the person who claims the injury or harm or by or on behalf of the person's
10representative, spouse, parent, minor child, or other relative. "Personal injury
11claim" does not include a claim for compensatory benefits pursuant to worker's
12compensation or veterans benefits.
AB19,3,6
1(b) "Personal injury trust" means a trust, compensation fund or claims facility
2created as a result of an administrative or legal action, bankruptcy, agreement, or
3other settlement or pursuant to 11 USC 524 (g) or 49 USC 40101, that is intended
4to provide compensation to claimants alleging personal injury claims as a result of
5harm, also potentially compensable in the immediate action, for which the entity
6creating the trust, compensation fund, or claims facility is alleged to be responsible.
AB19,3,107 (c) "Trust claims materials" means all documents and information relevant or
8related to a pending or potential claim against a personal injury trust. "Trust claims
9materials" include claims forms and supplementary materials, affidavits,
10depositions and trial testimony, work history, and medical and health records.
AB19,3,1311 (d) "Trust governance document" means any document that determines
12eligibility and payment levels, including claims payment matrices, trust distribution
13procedures, or plans for reorganization, for a personal injury trust.
AB19,3,23 14(2) Required disclosures by plaintiff. (a) Within 30 days after the effective
15date of this paragraph .... [LRB inserts date] or within 30 days after an action for a
16personal injury or other tort is filed in circuit court, the court shall order the plaintiff
17to provide to the court and to all parties a statement identifying all personal injury
18claims the plaintiff has or anticipates filing against a personal injury trust, and for
19each claim, whether there has been a request to defer, delay, suspend, or toll the claim
20against the personal injury trust. The statement shall include an attestation that
21the plaintiff swears or affirms, under penalties of perjury, that the statement is
22complete and is based on the plaintiff's good faith investigation of all potential claims
23against personal injury trusts.
AB19,4,224 (b) The court shall order the plaintiff to produce to the court and to all parties,
25for each personal injury claim he or she filed against a personal injury trust

1identified in par. (a), a final executed proof of claim and all other trust claims
2materials relevant to each claim.
AB19,4,73 (c) The court shall order the plaintiff to produce to the court and to all parties,
4for each personal injury claim he or she anticipates filing against a personal injury
5trust identified in par. (a), all trust claims materials relevant to each claim. The court
6shall order the plaintiff to produce to the court and to all parties a final executed proof
7of claim for each claim when the plaintiff files the claim.
AB19,4,118 (d) The court shall order the plaintiff to supplement the information and
9materials he or she provided pursuant to each order entered under par. (a), (b), or (c)
10within 30 days after the plaintiff files an additional claim or receives additional
11information or materials.
AB19,4,17 12(3) Discovery; use of materials. (a) The court shall presume trust claims
13materials and trust governance documents to be relevant and authentic and shall
14allow any party to present the trust claims materials to prove, without limitation,
15alternative causation for a plaintiff's injuries or to allocate liability for the plaintiff's
16injury. No claims of privilege may apply to trust claims materials or trust governance
17documents.
AB19,4,2218 (b) A defendant in a personal injury claim may seek discovery against a
19personal injury trust identified under sub. (2). The plaintiff may not claim privilege
20or confidentiality to bar discovery under this paragraph and shall provide consent
21or other expression of permission that may be required by the personal injury trust
22to release information and materials sought by the defendant.
AB19,4,25 23(4) Scheduling trial; stay of action. (a) The court may not schedule a trial
24in a personal injury action until at least 180 days after the plaintiff makes the
25disclosures required under sub. (2).
AB19,5,7
1(b) If a party states under sub. (2) that he or she anticipates a claim against a
2personal injury trust, the court shall stay all proceedings until the party files his or
3her claim against the personal injury trust and provides to the court and to all parties
4a final executed proof of claim and all other trust claims materials relevant to each
5claim the party has against a personal injury trust. The party shall also state
6whether there has been a request to defer, delay, suspend, or toll the claim against
7the personal injury trust.
AB19,5,14 8(5) Defendant's identification of additional or alternative personal injury
9trusts.
(a) Any defendant may move the court for an order under par. (d) by
10identifying a personal injury trust against which the defendant in good faith believes
11the plaintiff can file a successful claim. For each personal injury trust a defendant
12identifies, the defendant shall produce or describe the evidence sufficient to meet the
13personal injury trust distribution procedure requirements to file a valid claim and
14the amount of money the trust should pay for the claim.
AB19,5,1615 (b) Within 10 days of receiving a motion under par. (a), the plaintiff shall, for
16each personal injury trust identified by the defendant, do one of the following:
AB19,5,1717 1. File a claim with the personal injury trust.
AB19,5,2018 2. File a written response with the court that sets forth reasons why there is
19insufficient evidence to permit the plaintiff to file a claim in good faith under the
20personal injury trust distribution procedure identified by the defendant.
AB19,5,2521 (c) The court shall determine, for each personal injury trust identified under
22par. (a), whether there is a good faith basis for the plaintiff to file a claim with the
23personal injury trust. The plaintiff shall have the burden of proving that he or she
24does not meet criteria set forth in the personal injury trust's trust governance
25documents.
AB19,6,7
1(d) If the court determines that there is a good faith basis for the plaintiff to file
2a claim against a personal injury trust identified by a defendant, the court shall order
3the plaintiff to file a claim with the personal injury trust and shall stay the
4immediate action until the plaintiff swears or affirms that he or she has filed the
5claim against the personal injury trust and the plaintiff provides to the court and to
6all parties a final executed proof of claim and all other trust claims materials relevant
7to each claim the plaintiff has against a personal injury trust.
AB19,6,98 (e) Not less than 60 days after the plaintiff provides the documentation
9required under par. (d), the court may schedule the plaintiff's action for trial.
AB19,6,1210 (f) Not less than 30 days prior to trial, the court shall enter into the record a
11trust claims document that identifies each personal injury claim the plaintiff has
12made against a personal injury trust.
AB19,6,19 13(6) Valuation of personal injury trust claims; judicial notice. If a plaintiff
14proceeds to trial under this section before one of more of his or her personal injury
15trust claims is resolved, there is a rebuttable presumption that the plaintiff is
16entitled to, and will receive, the compensation specified in the trust governance
17document applicable to his or her claim. The court shall take judicial notice that the
18trust governance document specifies compensation amounts and shall establish an
19attributed value to the plaintiff's personal injury trust claim.
AB19,6,25 20(7) Setoffs; credit. In any personal injury claim for which damages are
21awarded, a defendant is entitled to a setoff or credit in the amount of the valuation
22established under sub. (6) and any amount the plaintiff has been awarded from a
23personal injury trust claim identified in sub. (5) (f). If multiple defendants are found
24liable for damages, the court shall distribute the amount of setoff or credit
25proportionally, according to the liability of each defendant.
AB19,7,3
1(8) Failure to provide information; sanctions. A plaintiff who fails to provide
2all of the information required under subs. (2), (4) (b), or (5) (d) is subject to ss. 802.05,
3804.12, 805.03, and 895.044.
AB19, s. 2 4Section 2. Initial applicability.
AB19,7,75 (1) This act first applies to actions filed on the effective date of this subsection
6and to actions pending on the effective date of this subsection if trial has not
7commenced in the action.
AB19,7,88 (End)
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