Wisconsin: No More Buck Passing?

Mike Ivey reports for the Madison Capital Times that the state of Wisconsin is taking a second look at “tort reform.” In 1995, a Republican governor and state legislature enacted limits on awards in personal injury cases. Now, a Democratic majority in the statehouse is crafting new legislation that would undo much of the 1995 law.

In particular, a line item in Gov. Jim Doyle’s 2009-2011 budget would change the state’s provision for "joint and several liability." Under current law, the defendant must be at least 51 percent at fault to be found 100 percent liable in a lawsuit. If the line item is signed into law, a defendant only partly at fault could be liable, as was the case before 1995.

Supporters of the provision say that since 1995, all too often the costs of devastating injuries are borne by individuals and doctors and not the parties causing the injury.

Mark Thomsen, president of the Wisconsin Association for Justice, said that when liability insurers don’t pay for an injury, the burden is shifted to the injured person’s health insurance provider. And if there is inadequate health insurance, the burden is shifted again, often to the government, or is absorbed by medical care providers. One way or another, these costs are passed on to individuals and businesses.

On the other side of the issue is an organization called Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby. WMC calls for making more “tort reform” a top priority. Excessive litigation is costing Wisconsin businesses and individuals billions of dollars every year, WMC says.

However, this month two University of Wisconsin Law School professors, Marc Galanter and Susan Steingass, published a report called “Civil Justice in Wisconsin: A Fact Book, Commentary.” This report debunks the claim that Wisconsin courts are clogged with frivolous lawsuits. The professors found that recent increases in civil litigation are either in the area of small claims or businesses suing one another over contract disputes. There is no evidence excessive litigation is harming Wisconsin business, they said.

I want to say a little more about cost shifting. It needs to be made clear that protecting businesses from liability doesn’t make the costs of injury go away. It just gets paid by everyone else. This is similar to the issues I discussed in Let’s Stop Passing the Buck on Asbestos Costs. The state of Georgia recently cut its budget by eliminating an asbestos inspection program. And I argue that sometime down the road the cost of caring for even one mesothelioma patient is going to be far, far greater than the amount slashed from the Georgia budget.

April 14, 2009
Barbara O’Brien

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