Vol. 78, No. 8, August
2005
Supreme court medical malpractice and lead
paint decisions stir business community
Two cases decided by the Wisconsin Supreme Court in July will set the
stage for the fall legislative agenda. On July 14, the supreme court
ruled 4-3 that the $350,000 cap on noneconomic medical malpractice
damages violates the equal protection guarantees of the Wisconsin
Constitution.
The case of Ferdon v. Wisconsin Patients Compensation Fund
challenged the constitutionality of statutory limits on noneconomic
damages in medical malpractice actions on several grounds, including
violation of the equal protection guarantees of the Wisconsin
Constitution, the ground on which the court based its decision.
The court discussed the levels of scrutiny to be applied to the
legislative actions in establishing classifications in the law and
concluded: "Whether the level of scrutiny is called rational basis,
rational basis with teeth, or meaningful rational basis, it is the
standard we now apply in this case."
As a result of the review, the majority concluded "a rational
relationship does not exist between the classifications of victims in
the $350,000 cap on noneconomic damages and the legislative objective of
compensating victims of medical malpractice fairly."
Lead paint ruling
On July 15, the court extended the Collins'
risk-contribution theory to white lead carbonate (lead paint) claims. In
its decision in Thomas v. Mullett the court held that Article
I, Section 9 of the Wisconsin Constitution does not insulate wrongdoers
from liability simply because recovery has been obtained from an
altogether different wrongdoer for an altogether different wrong.
In discussing the extension of Collins to white lead
carbonate claims, Justice Butler wrote, "As this court did in
Collins, we again conclude `that as between the plaintiff, who
probably is not at fault, and the defendants, who may have provided the
product which caused the injury, the interests of justice and
fundamental fairness demand that the latter should bear the cost of
injury.'"
Further, Butler said, when "compared to Thomas, the Pigment
Manufacturers are in a better position to absorb the cost of the injury.
They can insure themselves against liability, absorb the damage award,
or pass the cost along to the consuming public as a cost of doing
business. As we concluded in Collins, it is better to have the
Pigment Manufacturers or consumers share in the cost of the injury
rather than place the burden on the innocent plaintiff."
In his dissent, Justice Wilcox said the end result of the majority
decision was "lead pigment manufacturers can be held liable for a
product they may or may not have produced, which may or may not have
caused the plaintiff's injuries, based on conduct that may have occurred
over 100 years ago when some of the defendants were not even part of the
relevant market."
Business lobby ready for battle
Seeming to echo Justice Prosser's dissent warning Thomas,
that "Wisconsin will be the mecca for lead paint suits," numerous
business organizations and legislative leadership in both houses have
vowed to introduce legislation to overturn the court's decisions in both
cases. As one example, the Wisconsin Manufacturers and Commerce (WMC)
has established what it calls the "WMC Job Defense Fund," and has asked
all manufacturers and businesses to contribute monies for a public
education campaign and to fund legislative efforts to overturn the
decisions.
In a memo to all business members, WMC President Jim Haney said,
"These two rulings came shortly after another aberrant ruling by the
court overturning limits on punitive damages. The 4-3 activist court
majority has made Wisconsin a magnet for trial lawyers seeking massive
damage claims from manufacturers and other businesses. The court's
recent rulings will make it easier and easier for clever lawyers to
advance new theories to sue your business."
Wisconsin Lawyer
