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2011 - 2012 LEGISLATURE
January 10, 2012 - Introduced by Senators Grothman and S. Fitzgerald,
cosponsored by Representatives Kooyenga and Vos. Referred to Committee
on Judiciary, Utilities, Commerce, and Government Operations.
SB373,1,4 1An Act to repeal 895.047 (6); to renumber 895.046 (1); to amend 895.046 (2);
2and to create 895.046 (1g) and 895.046 (8) of the statutes; relating to: changes
3to product liability law and the law governing remedies against manufacturers,
4distributors, sellers, and promoters of a product.
Analysis by the Legislative Reference Bureau
2011 Wisconsin Act 2 (Act 2) made a number of changes to the law governing
civil actions involving product liability claims brought under a theory of strict
liability and to civil actions against manufacturers, distributors, sellers, and
promoters of products. This bill makes several changes to certain provisions enacted
under Act 2.
Product liability
Requirements for bringing a product liability action based on a defective
product; defenses and exceptions to liability
Act 2 created specific requirements for bringing a product liability action
seeking damages under the theory of strict liability against manufacturers of the
product and against sellers and distributors of the product. Act 2 included defenses
and exceptions to strict liability for these types of parties. Finally, Act 2 included an
inapplicability provision making the requirements for bringing a product liability
action seeking damages under a theory of strict liability, the exceptions to strict
liability, and the defenses to strict liability inapplicable to actions based on a claim
of negligence or breach of warranty. This bill eliminates the inapplicability
provision.

RISK CONTRIBUTION THEORY: Remedies against
manufacturers, distributors, sellers, and promoters of
a product
Under Act 2, a manufacturer, distributor, seller, or promoter of a product who
is a defendant in a civil action generally may be held liable for damages only if an
injured party proves, in addition to 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. Also under Act 2, in cases in which
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 under risk contribution theory if: 1) the injured party names as defendants in
the action those manufacturers 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 and 2) the injured party proves certain other elements related to the cause of
the injury and the right of the injured party to a recovery. These provisions of Act
2 were made applicable to actions or special proceedings commenced on or after the
effective date of the Act.
This bill provides that the provisions of Act 2 governing remedies against
manufacturers, distributors, sellers, and promoters of a product apply to all actions
in law or equity, whenever filed or accrued. The bill includes a statement of
legislative findings and intent which states, in part, that the portions of Act 2
governing remedies against manufacturers, distributors, sellers, and promoters of
a product under risk contribution theory were enacted in response to the Wisconsin
Supreme Court's decision in Thomas v. Mallett, 2005 WI 129. The bill also explicitly
abrogates common law doctrines governing product liability claims that conflict with
the elements, requirements, and defenses established under Act 2.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB373, s. 1 1Section 1. 895.046 (1) of the statutes, as created by 2011 Wisconsin Act 2, is
2renumbered 895.046 (1r).
SB373, s. 2 3Section 2. 895.046 (1g) of the statutes is created to read:
SB373,3,144 895.046 (1g) Legislative findings and intent. The legislature finds that it is
5in the public interest to clarify product liability law, generally, and the application
6of the risk contribution theory of liability first announced by the Wisconsin Supreme
7Court in Collins v. Eli Lilly Company, 116 Wis. 2d 166 (1984), specifically, in order

1to return tort law to its historical, common law roots. This return both protects the
2rights of citizens to pursue legitimate and timely claims of injury resulting from
3defective products, and assures that businesses may conduct activities in this state
4without fear of being sued for indefinite claims of harm from products which
5businesses may never have manufactured, distributed, sold, or promoted, or which
6were made and sold decades ago. The legislature finds that the application of risk
7contribution to former white lead carbonate manufacturers in Thomas v. Mallet, 285
8Wis. 2d 236 (2005), was an improperly expansive application of the risk contribution
9theory of liability announced in Collins, and that application raised substantial
10questions of deprivation of due process, equal protection, and right to jury trial under
11the federal and Wisconsin constitutions. The legislature finds that this section
12protects the right to a remedy found in article I, section 9, of the Wisconsin
13Constitution, by preserving the narrow and limited application of the risk
14contribution theory of liability announced in Collins.
SB373, s. 3 15Section 3. 895.046 (2) of the statutes, as created by 2011 Wisconsin Act 2, is
16amended to read:
SB373,3,2417 895.046 (2) Applicability. This section applies to all actions in law or equity,
18whenever filed or accrued,
in which a claimant alleges that the manufacturer,
19distributor, seller, or promoter of a product is liable for an injury or harm to a person
20or property, including actions based on allegations that the design, manufacture,
21distribution, sale, or promotion of, or instructions or warnings about, a product
22caused or contributed to a personal injury or harm to a person or property, a private
23nuisance, or a public nuisance, and to all related or independent claims, including
24unjust enrichment, restitution, or indemnification.
SB373, s. 4 25Section 4. 895.046 (8) of the statutes is created to read:
SB373,4,7
1895.046 (8) Abrogation of common law. This section establishes the elements
2of and requirements for causation and product identification in and defenses for
3product liability claims in this state, and supersedes common law doctrines that
4conflict with the elements, requirements, and defenses established in this section.
5Except as provided in this subsection, this section does not alter the other elements
6required to establish a product liability claim or a claim for misrepresentation or
7breach of warranty under common law.
SB373, s. 5 8Section 5. 895.047 (6) of the statutes, as created by 2011 Wisconsin Act 2, is
9repealed.
SB373, s. 6 10Section 6. Initial applicability.
SB373,4,1311 (1) The treatment of sections 895.046 (1), (1g), (2), and (8) and 895.047 (6) of
12the statutes first applies to actions or special proceedings pending or commenced on
13the effective date of this subsection.
SB373,4,1414 (End)
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