Wis. civil litigation provision angers attorney

Wis. provision tightening litigation rules angers Milwaukee lawyer suing over lead paint

Associated Press

MADISON, Wis. (AP) -- A Milwaukee attorney is angry over a provision recently adopted by the Legislature's budget committee that would further tighten Wisconsin's civil litigation rules.

Peter Earle represents 171 children who sued six white lead pigment manufacturers whose products allegedly made them sick. The lawsuits — filed between 2006 and 2011 and still pending in federal and state courts — could be nullified under the provision.

Gov. Scott Walker signed a law in February 2011 that made it harder to bring product liability lawsuits against businesses by setting stricter standards for expert testimony and burdens of proof. It also put a cap on punitive damages. The rules apply to cases filed on or after the day the law became effective.

But the new provision would extend them to all cases currently pending. Earle said that means it's almost impossible for his clients to prove their sickness were directly caused by one specific company's product or negligence.

The provision was one of several items the Republican-controlled Joint Finance Committee approved early Wednesday. It now heads to the Assembly for debate, then to the Senate and finally to Walker for signature.

In a memo, Sen. Alberta Darling and Rep. John Nygren, who co-chair the powerful committee, wrote the provision would still protect Wisconsinites' rights to pursue claims of injury resulting from defective products, but also "assures that businesses may conduct activities in this state without fear of being sued for indefinite claims of harm from products which businesses may never have manufactured, distributed, sold, or promoted, or which were made and sold decades ago."

Phone messages left by The Associated Press at Darling and Nygren's offices seeking comment were not immediately returned Friday afternoon.

"The proposal is specifically targeted at my clients." Earle said in phone interview. "It's a sneaky, backdoor tactic to deprive them of their rights,"

Republicans and businesses have been pushing for reform since 2005, when the state Supreme Court ruled that lead paint manufacturers could be held liable for injuries a Milwaukee boy suffered, even though the boy couldn't prove which companies may have sickened him.

The court found companies were aware of the dangers of lead pigment as far back as 1904 but continued marketing their products through the 1970s. In other words, the entire industry contributed to the risk. The ruling sent a shock wave through business interests, which claimed companies could now be sued when their products weren't at fault for a person's injuries.

The 2011 law eventually overturned that decision.

At issue is the provision's constitutionality. In a memo analyzing a same Republican-sponsored proposal introduced but failed last year, the nonpartisan state Legislative Council wrote the proposal was retroactive because it would apply rules underlined in Walker's 2011 law to cases even filed before the law was enacted.

The memo suggested "the retroactive elements of the bill raise significant constitutional concerns," Earle said he has full confidence to prevail even if the new provision was enacted this time, noting it would eventually violate the substantive due process protections of both the U.S. and state constitutions.

"But the lawsuit will have to cost taxpayers lots of money," He warned.

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