The story of law is about balancing competing interests. The balance between plaintiffs and defendants is about to be adjusted in Wisconsin as a result of changes in control of the Legislature and Governor’s Office. A Bill has been introduced for consideration in Special Session that will dramatically impact Wisconsin tort law.

If adopted, Wisconsin will have new laws for (1) punitive damages, (2) admitting expert testimony, (3) product liability and (4) other limits on lawsuits and damages.

Are these changes appropriate? Yes.

First, punitive damages are not intended to compensate the injured party, but rather to punish and thus deter reprehensible conduct. Thus, some states do not allow punitive damage awards to go to the plaintiff, but instead use them for a public benefit. Vague standards for awarding punitive damages permit random results driven more by anger than by the careful assessment that a system of due process should require in assessing potentially ruinous penalties. The reality of punitive damages in civil litigation is that they drive up the value of settlement for defendants who are unwilling to put their financial future in the hands of twelve strangers. The new standards correctly narrow the use of punitive damages to the rare cases in which harm is intended.

Second, experts who testify in Wisconsin state courts currently face few limits under the Rules of Evidence because, unlike most states, Wisconsin has not followed the federal lead in tightening standards for expert testimony. Federal courts adopted stricter screening as experts began advancing positions to juries that would not pass muster in their academic discipline. The Bill will give trial judges the tools to ensure that experts satisfy basic thresholds for valid and reliable opinions.

Third, product liability law changes will move Wisconsin toward the national mainstream for defining product defect, which is sensible given the national market for goods and the corresponding value of uniformity in rules governing product liability. Manufacturers will get the benefit of complying with product standards because jurors will be told that compliance with such standards creates a presumption that a product is not defective. Those in the chain of retail distribution will get protection against being sued, so long as the manufacturer is subject to suit. Under current law a Wisconsin retailer often is named simply to defeat federal jurisdiction and faces defense costs even though the manufacturer is the target. Further, with limited exceptions manufacturers will not be sued for products made 15 or more years prior to the accident. This relieves manufacturers from having to defend products that left their control long ago and they often have not seen for nearly a generation.

The Bill also undoes the Wisconsin Supreme Court’s controversial 2005 lead pigment decision (a matter in which our firm and I represent a defendant). The decision troubled many because it put companies at risk of paying for damages even though their product was not a cause of plaintiff’s harm. Subject to a narrowly defined exception, under the Bill plaintiffs must again prove a link between the defendant they have sued and the specific product alleged to have caused their injury.

In a democratic republic, our elected representatives can and should determine when our tort system needs updating. It is no answer that these changes are unnecessary because Wisconsin juries are conservative, that punitive damages are rarely awarded or that total case filings are down. These comments ignore the reality of litigation. Nearly all cases settle before trial (some, especially smaller cases, before filing), and these settlements are based upon each side’s assessment of risk based on the facts and the law. As the law changes to strike a fair balancing of the rights of plaintiffs and defendants, the consequence will be reflected in how and when cases resolve.

Moreover, our elected representatives give voice to our desires for change. For some time many have felt we too readily turn to litigation, that the constant spectre of “you can be sued” corrodes our joint enterprise. This Bill addresses those concerns as well by adjusting Wisconsin’s tort law balance.

This post originally appeared in the Milwaukee Journal Sentinel on January 10th, 2011.