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January 2011 Special Session
2011 - 2012 LEGISLATURE
January 4, 2011 - Introduced by Committee on Assembly Organization, by request
of Governor Scott Walker, Representative J. Ott, and Senator Zipperer.
Referred to Committee on Judiciary and Ethics.
AB1,2,4 1An Act to repeal 146.38 (3) (d) and 146.38 (3) (e); to renumber and amend
2146.38 (1) (b), 895.043 (3), 907.01 and 907.02; to amend 146.38 (1m), 146.38
3(2), 146.38 (3) (intro.), 146.38 (3) (a), (b) and (c), 230.85 (3) (b), 802.10 (7),
4809.103 (2) (a), 814.04 (intro.), 814.29 (3) (a), 907.03, 940.08 (1), 940.24 (1) and
5940.295 (3) (a) 3.; and to create 146.38 (1) (b) 1., 146.38 (1) (b) 2., 146.38 (1) (b)
63., 146.38 (1) (b) 4., 146.38 (1) (bm), 146.38 (2m), 146.38 (3m), 146.38 (3t), 146.38
7(6), 153.05 (3m), 893.555, 895.043 (3) (a), 895.043 (3) (b), 895.043 (6), 895.044,
8895.045 (3), 895.046, 895.047, 904.16, 907.01 (3), 907.02 (1) (a), (b) and (c),
9907.02 (2), 940.08 (3), 940.24 (3) and 940.295 (3) (am) of the statutes; relating
10to:
limiting noneconomic damages awarded in actions against long-term care
11providers; actions against manufacturers, distributors, sellers, and promoters
12of certain products; confidentiality of health care services reviews; use as
13evidence of information regarding health care providers; reporting of quality
14indicators identifying individual hospitals; homicide or injury by negligent

1handling of a dangerous weapon, explosives, or fire; criminal abuse of
2individuals at risk; criminal abuse and neglect of patients and residents;
3evidence of lay and expert witnesses; damages for frivolous claims; and punitive
4damage awards.
Analysis by the Legislative Reference Bureau
This bill makes several changes to current law regarding civil actions for
negligence in long-term care facilities product liability, actions in strict liability,
punitive damage awards, and awards for defending a frivolous lawsuit. The bill also
makes changes regarding the confidentially and use of reviews and evaluations of
health care providers and regarding criminal liability for certain acts or omissions
by health care providers.
Actions against manufacturers, distributors, sellers,
and promoters of a product
In Thomas v. Mallett, 2005 WI 129, the Wisconsin Supreme Court held that a
manufacturer of white lead carbonate, which was used as a pigment in paint, could
be held liable for the injuries caused to a child who had ingested paint that contained
the white lead carbonate and who could prove certain elements, even if the child
could not prove that a particular manufacturer produced the white lead carbonate
that he ingested. The court applied the risk-contribution theory, established in
Collins v. Eli Lilly, 116 Wis. 2d 166 (1984), saying that all of the manufacturers' white
lead carbonate were basically the same, the manufacturers created the risk of injury,
and the manufacturers were in a better position than the child to absorb the cost of
the injury.
This bill provides that a manufacturer, distributor, seller, or promoter of a
product generally may be held liable for damages only if the injured party proves, in
addition to the causation, damages, and other elements of the claim, that the specific
product that caused the injury was manufactured, distributed, sold, or promoted by
the defendant. The bill also provides that if an injured party cannot prove that the
defendant manufactured, distributed, sold, or promoted the specific product that
caused the injury, the defendant may be held liable if, in addition to proving the other
elements of the claim, the injured party names as defendants in the action those
manufacturers of a product who, collectively, during the relevant production period,
manufactured at least 80 percent of all products sold in this state that are chemically
identical to the specific product that allegedly caused the claimant's injury or harm
and proves all of the following:
1. That no other lawful process exists for the injured party to seek redress for
the injury or harm.
2. That the injury could only be caused by a product that is chemically identical
to the specific product that allegedly caused the injury.

3. That the defendant manufactured, distributed, sold, or promoted a product
that was chemically identical to the specific product that allegedly caused the injury
during the time period in which that specific product was manufactured, distributed,
sold, or promoted.
The bill limits liability to products that were manufactured, distributed, sold,
or promoted within 25 years before the date the injured party's cause of action
accrues.
Strict liability
This bill establishes the criteria to determine if a product manufacturer,
distributor, or seller is liable to a person injured by the manufactured product based
on a claim of strict liability. Currently, a person injured by a manufactured product
has three avenues to determine if the manufacturer, distributor, or seller is liable for
the person's injury. The claimant may sue under a breach-of-warranty theory,
under the common law negligence theory, and under the theory of strict liability. The
doctrine of strict liability, as adopted in this state, applies to manufacturers,
distributors, and sellers. That doctrine relieves the injured person from proving
specific acts of negligence and protects that person from contractual defenses.
However, the person must prove that the product was in a defective condition and
unreasonably dangerous, the defective condition existed when it left the seller, the
defect caused the injury, the seller was in the business of selling the product, and the
product was one that the seller expected to and did reach the consumer without
substantial change.
Under this bill, a manufacturer is liable for damages caused by the
manufacturer's product based on a claim of strict liability if the injured claimant
proves that the product was defective, the defective condition made the product
unreasonably dangerous, the defective condition existed at the time the product left
the control of the manufacturer, the product reached the user or consumer without
substantial change, and the defective condition caused the claimant's injuries. The
bill specifies when a manufactured product is defective.
Under the bill, a distributor or seller is not liable for the claimant's damages
based on a claim of strict liability unless the manufacturer would be liable for the
damages and any of the following applies:
1. The distributor or seller contractually assumed one of the manufacturer's
duties to manufacture, design, or provide warnings or instructions regarding the
product.
2. Neither the manufacturer nor its insurer is subject to service of process
within this state.
3. A court determines that the claimant would not be able to enforce a judgment
against the manufacturer or its insurer.
The bill requires the dismissal of the distributor or seller as a defendant in an
action if the manufacturer or its insurer submits itself to the jurisdiction of the court
in which the suit is pending.
Under the bill, if a defendant proves that the injured person, at the time of his
or her injury from a manufactured product, had a blood alcohol concentration of 0.08
or more or was under the influence of any controlled substance or controlled

substance analog to the extent that he or she could not operate a motor vehicle safely,
that proof creates a rebuttable presumption that the intoxication or drug use was the
cause of the person's injury. The bill also creates a rebuttable presumption that the
manufactured product is not defective if the product complied with relevant
standards, conditions, or specifications under federal or state law. In addition, the
bill reduces the manufacturer's, seller's, or distributor's liability by the percentage
of causal responsibility for the claimant's damages caused by the claimant's misuse,
alteration, or modification of the product.
The bill requires the court to dismiss a claimant's action if the damage was
caused by an inherent characteristic of the manufactured product that would be
recognized by an ordinary person who uses or consumes the product. The bill relieves
a distributor or seller of liability if the distributor or seller receives the product in a
sealed container and has no opportunity to test or inspect the product, unless the
distributor or seller is liable under another theory.
Under the bill, evidence of remedial measures taken after the sale of the
manufactured product is not admissible in an action for damages caused by the
product based on a claim of strict liability for the purpose of showing a manufacturing
defect, a design defect, or the need for a warning or instruction, but may be admitted
to show that a reasonable alternative design existed at the time of the sale of the
product. The bill limits a defendant's liability for damage caused by a manufactured
product to those products manufactured within 15 years before the claim accrues
unless the manufacturer specifies that the product will last longer or unless the
action is based on a claim for damages caused by a latent disease.
Under the bill, in product liability cases, to determine the causal responsibility
for the injury, the fact finder must determine what percentage of that causal
responsibility is the result of the contributory negligence of the injured party, the
defective condition of the product, and the contributory negligence of any third
person. The bill provides that, if the injured party's percentage of total causal
responsibility for the injury is greater than the percentage resulting from the
defective condition of the product, the injured party may not recover from the
manufacturer or any other person responsible for placing the product in the stream
of commerce. If the injured party does have the right to recover, the injured party's
damages are diminished by the injured party's percentage of causal responsibility for
the injury. Under the bill, after determining the percentage of causal responsibility
for the injury that is the result of the defective condition of the product, the fact finder
must determine the percentage of causal responsibility of each product defendant for
the defective condition of the product. The judge, under the bill, multiplies this
percentage by the percentage of causal responsibility for the injury that is the result
of the defective condition of the product to determine an individual product
defendant's percentage of responsibility for the damages to the injured party.
Under the bill, a product defendant whose responsibility for the damages to the
injured party is 51 percent or more is jointly and severally liable for all of those
damages. The liability of a product defendant whose responsibility for the damages
to the injured party is less than 51 percent is limited to that product defendant's
percentage of responsibility for the damages. The bill also allows the injured party

to recovery from the product defendants even when the injured party's causal
responsibility for the injury is greater than an individual product defendant's
responsibility for the damages to the injured party.
Limits on noneconomic damages
Under current law, a person, or certain people related to the person, who is
injured by the medical malpractice of a health care provider may sue for economic
damages and for noneconomic damages. Noneconomic damages are intended to
compensate for pain and suffering, loss of companionship, mental distress, and loss
of enjoyment of life.
Current law limits noneconomic damages to $750,000 per occurrence of medical
malpractice. Current law also limits damages for loss of society and companionship
to certain relatives recoverable in a wrongful death action against a health care
provider to $500,000 in the case of a deceased minor and $350,000 in the case of a
deceased adult.
Under current law, a person, or certain people related to the person, who is
injured by the medical malpractice of a health care provider may bring an action
against a health care provider no later than three years from the date the injury
occurred, or within one year that the injury was discovered or should have been
discovered, except that if a health care provider conceals an act or omission that
results in an injury, within one year from the date the concealment was discovered
or should have been discovered. If the injury or concealment is discovered after the
three-year limit has expired, the person may still bring suit for up to five years after
the health care provider's act or omission.
This bill applies the same limit to noneconomic damages that are awarded for
an injury or a wrongful death that is caused by the negligence of a long-term care
provider, such as a nursing home, hospice, or assisted living facility. The bill applies
the same statute of limitations to actions against a long-term care provider.
Punitive damages
Under current law, a person injured by a negligent person can recover the
damages resulting from the injury. Damages include economic damages, such as the
injured person's medical costs, and noneconomic damages, such as compensation or
pain and suffering. In addition, under current law, as interpreted by the Wisconsin
Supreme Court, in Wischer v. Mitsubishi, 2005 WI 26, 279 Wis. 2d 4 (2005), the
plaintiff may recover punitive damages if he or she can prove that the defendant
acted maliciously toward the plaintiff or in an intentional disregard of the rights of
the plaintiff.
This bill changes the proof that the plaintiff must provide to recover punitive
damages. Under the bill, the plaintiff must prove that the defendant either acted
with intent to cause injury to a particular person or persons or that the defendant
knew that the action of the defendant that resulted in injury to one or more persons
was practically certain to result in injury to one or more persons. The bill also
provides that a voluntarily produced intoxicated or drugged condition is not a
defense to liability for punitive damages if, but for the intoxicated or drugged state
of the actor, the actor would have known that his or her action was practically certain
to result in injury to one or more persons.

Damages for frivolous claims
Under current law, every document submitted to a court in a civil case must be
signed by a party or, if the party has an attorney, by the attorney. Current law
provides that the person, by signing the document, is certifying that the document
is not presented for any improper purpose, such as to harass or cause unnecessary
delay, that the claims made in the document are warranted by existing law or a
nonfrivolous argument for the extension, modification, or reversal of the law, that the
allegations presented in the document are likely to have evidentiary support, and
that any factual denials in the document are warranted by evidence or, if so
identified, are reasonably based on a lack of information or belief. Currently, if the
court determines that any of these certifications are not true, the court may impose
an appropriate sanction on the responsible attorney or party. Under current law, the
sanction must be limited to what is sufficient to deter repetition of the conduct, and
may include payment of the reasonable attorney fees or other expenses resulting
from the improper conduct. A court may not impose monetary sanctions upon a
represented party for making a claim that is not based on existing law or a
nonfrivolous argument for the extension, modification, or reversal of the law, and
before the court imposes any monetary sanctions, the court must issue an order to
show cause regarding the dismissal or settlement of the claim.
Under this bill, in civil actions, a party or his or her attorney may be liable for
costs and fees for beginning, using, or continuing an action if that is done solely for
the purpose of harassing or maliciously injuring another and the party or attorney
knew that there was no reasonable basis in law for the conduct or no good faith
argument for an extension, modification, or reversal of the law. The bill allows a
party to an action to ask the court by motion to determine if another party has
violated these provisions, and if, by clear and convincing evidence, the court so finds,
the court must do one of the following:
1. If the offending party withdraws or corrects the improper conduct within 21
days or a time set by the court, decide whether to award the moving party the actual
costs incurred as a result of the conduct, including reasonable attorney fees, taking
into consideration the offending party's mitigating conduct.
2. If the offending party does not timely withdraw or correct the improper
conduct, award the moving party the actual costs incurred as a result of the conduct,
including reasonable attorney fees.
Under the bill, if an award of costs for violating these provisions is affirmed on
appeal, the appellate court is required to send the action to the lower court to award
the damages necessary to compensate the successful party for the actual reasonable
attorney fees incurred in the appeal. In addition, if the appellate court finds that a
party has committed a violation of one of these provisions in an appeal, the appellate
court must, after completion of the appeal, send the action back to the lower court
to award the damages necessary to compensate the offended party for the actual
reasonable attorney fees incurred in the appeal.
Confidentiality of health care services reviews
Current law provides that a person who participates in a review or evaluation
of services provided by a health care provider or facility, or of charges for such

services (a review), generally may not disclose information acquired in connection
with the review. Further, the records that a reviewer or evaluator creates of
investigations, inquiries, proceedings, and conclusions conducted for the review
(review records) generally may not be released. Under current law, review records
may not be used in a civil action for personal injuries against the health care provider
or health care facility.
Current law contains several exceptions to confidentiality of review records and
information acquired in connection with a review, which require disclosure of such
records and information under the following circumstances: to a health care provider
or facility whose services are reviewed, or to any person with the consent of that
provider or facility; to the person who requested the review, for use only for the
purpose of improving the quality of health care, avoiding improper utilization of
health care services, and determining reasonable charges for services; to a court
upon issuance of a subpoena in a criminal action; to an examining or licensing board
or agency, when the organization or evaluator conducting the review determines that
such action is advisable; and in a report in statistical format.
This bill makes the following changes to confidentiality provisions for health
care service reviews:
1. The bill repeals the exception to confidentiality that requires release of
review records and information acquired in connection with a review upon issuance
of a subpoena in a criminal action.
2. The bill provides that review records may not be used in any civil or criminal
action against any health care provider.
3. The bill provides that a person who participates in a review may not disclose
any incident or occurrence report that is made to notify a reviewer of an incident,
practice, or other situation that becomes the subject of a review. Further the bill
prohibits using such an incident or occurrence report in any civil or criminal action
against a health care provider.
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