From Scoop # 29 January 25, 2006

Governor Vetoes Bills Repairing
Supreme Court’s Damages
by Carl Soderberg

Adding to the ever-lengthening list of bills he has vetoed, Governor Jim Doyle, in the last two months, vetoed two bills passed by the Republican controlled State Legislature aimed at repairing the damage wrought by last summer's disastrous Wisconsin Supreme Court rulings.

On December 2nd, Doyle vetoed AB 766 (SB 393 in the Senate), "Caps on Medical Malpractice Non-Economic Damages."  The bill re-established limits on non-economic damages (basically pain and suffering excluding lost wages and medical bills) resulting from medical malpractice lawsuits, after the previous limits were ruled unconstitutional by the Wisconsin Supreme Court.  It was based on the recommendations of the Assembly Task Force on Medical Malpractice, which was set up to determine clear criterion and a rational basis for establishing a new cap, in response to the Supreme Court's criticism that the old cap appeared arbitrarily set.

Caps on non-economic damages were established ten years ago by the state legislature to arrest sky-rocketing doctors' and hospitals' malpractice insurance premiums, thereby lowering (or at least
stabilizing) the cost of health care.  They were also expected to maintain the high quality of Wisconsin's health care, by keeping doctors from leaving Wisconsin to practice in states with more affordable malpractice insurance, as well as discouraging frivolous lawsuits.

Already the effects of the Supreme Court's ruling are being felt.  The Wisconsin Hospital Association reports hospitals having trouble recruiting doctors, and a surge in the number of malpractice lawsuits being filed.  The Actuarial Committee of the Injured Patients and Families Compensation Fund has recommended a 25% increase in the premiums it charges.  (The fund collects premiums from all Wisconsin doctors, and pays out malpractice verdicts exceeding doctors' private insurance
level.)

Democrat State Senators attempted, and failed, to raise the cap level to $1 million.  Last fall, Doyle hinted, in private, that he could accept such a higher level, but never stated a specific amount.  Some state doctor and hospital associations could support such a level, in exchange for having a set, stable, predictable level upon which to base their financial calculations.  So a compromise could still be reached between the governor and both parties in the legislature.

The second bill addressing the Supreme Court's rulings which Doyle vetoed was the "Wisconsin Jobs Preservation Act," AB 778 (SB 402 in the Senate).  AB 778 / SB 402 was co-authored by Representative Steve Wieckert (R-Appleton) and Senator Ted Kanavas (R-Brookfield).  Vetoed on January 6th of this year, the bill requires plaintiffs (those claiming they were harmed) in liability lawsuits, to prove their injuries were caused by a specific product manufactured, sold, distributed or promoted by the defendant.  Plaintiffs who can not prove this can still sue, but only if they meet very strict standards established by the law.

The main goal of the bill was to overturn what has become known as the "guilty-until-proven-innocent" standard established by the Supreme Court July 2005 in its ruling in the Thomas vs. Mallet lead paint liability case.  This standard reverses centuries of tort law, by requiring defendants to prove their innocence, even if the plaintiffs can't prove the defendant's product caused their injuries.

Wisconsin's business community is horrified by the ruling itself, making it much easier to win liability cases against corporations.  Business is also horrified by the implications of the ruling:  the way
it is defined in the Court's ruling, the new standard could be applied to any company in any industry over almost any product.

Wisconsin Manufacturers and Commerce, business' largest lobbying group, reports 13 companies have already been sued under the new standard.  None of the 13 produced lead paint.

With the new standard making every manufacturer in Wisconsin vulnerable to frivolous liability lawsuits, no manufacturer with any sense would move to Wisconsin.  Manufacturing was a shrinking segment of Wisconsin's economy before the ruling, and who knows how many businesses will flee to other states as a result of the ruling.

And the word has spread to the rest of the country.  Every corporate chairman, CEO, and president has read the Wall Street Journal's editorial decrying the original decision renaming Wisconsin "Alabama
North."  (Alabama law makes liability lawsuits the easiest to win in the country.  And its economy reflects the resulting exodus of employers.)  And they have heard that the American Tort Reform
Association recently gave Wisconsin its dishonorable mention in its list of "Judicial Hellholes" of 2005.

In both cases, Doyle has chosen to advance the interests of the millionaire trial lawyers who fund his campaign, over the interest of creating jobs for Wisconsin's hard-working citizen-employees.