Liability

Joint and Several

Economic Damages

Limited*

Joint liability has been abolished for defendants found to be less than 51% at fault. 

Wis. Stat. Ann. §§ 895.045(1).

Non-Economic Damages

Limited*

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Connar v. West Shore Equip. of Milwaukee, Inc., 227 N.W.2d 660 (Wis. 1975).

Market Share Liability

Unclear

In a DES case, the Wisconsin Supreme Court ruled that market share may be considered as one relevant factor in apportioning damages.

Collins v. Eli Lilly Co., 342 N.W.2d 37, 53-54 (Wis.), cert. denied, 469 U.S. 826 (1984); Thomas v. Mallett, 701 N.W. 2d 523 (Wis. 2005) (extending Collins' risk-contribution theory to lead carbonate claims).

Defenses

Comparative Negligence

Yes, modified comparative negligence

Contributory negligence does not bar recovery if that negligence was not greater than the negligence of the person against whom recovery is sought. 

Wis. Stat. Ann. § 895.045(1); see also Jankee v. Clark County, 612 N.W.2d 297 (Wis. 2000).

Assumption of Risk

Abolished

Implied assumption of risk has been subsumed into comparative negligence.  Express assumption of risk, where one expressly consents to exposure to a danger, remains a viable defense.

Polsky v. Levine, 243 N.W.2d 503 (Wis. 1976).

Product Misuse

No

Product misuse is considered in determining comparative negligence.

Morden v. Continental AG, 611 N.W.2d 659, 678 (Wis. 2000).

Compliance With Government Standards

No

Compliance with government standards is admissible as evidence of due care, but not conclusive of it.

Fischer v. Cleveland Punch & Shear Works Co., 280 N.W.2d 280, 286 (Wis. 1979).

Statute of Repose

Yes

A statute of repose exists for fraudulent misrepresentation claims.  The action must be brought within 3 years of the false representation regardless of when the injury is discovered. 

Wis. Stat. Ann. § 100.18 (11)(b)(3); Kain v. Bluemound East. Indus. Park, Inc. 635 N.W.2d 640 (Wis. Ct. App. 2001).  

5-year statute of repose for medical malpractice actions. 

Wis. Stat. Ann. § 893.55; see also Aicher ex rel. LaBarge v. Wisconsin Patients Comp. Fund, 613 N.W.2d 849 (Wis. 2000) (statute is constitutional) (overruling Makos v. Wisconsin Masons Health Care Fund, 564 N.W.2d 662 (Wis. 1997)).

6-year statute of repose for actions against surveyors.

Wis. Stat. Ann. § 893.37; see also Tomczak v. Bailey, 578 N.W.2d 166 (Wis. 1998) (declaring statute constitutional).

10-year statute of repose for improvements to real property

Wis. Stat. Ann. § 893.89; see also Kohn v. Darlington Community Schools, EMC, 698 N.W.2d 794 (Wis. 2005) (upholding statute).

Government Contractor Defense

Yes

Oliver v. Oshkosh Truck Corp., 911 F. Supp. 1161 (E.D. Wis.), aff'd, 96 F.3d 992 (7th Cir. 1996) (military equipment); Johnson v. Grumman Corp., 806 F. Supp. 212 (W.D. Wis. 1992) (civilian products supplied to civilian government agencies).

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Any person who manufactures, markets, packs, distributes, advertises, or sells food is immune from civil liability for a person's weight gain or obesity caused by the consumption of the food, or for a health condition related to weight gain or obesity.

This immunity does not apply to the following: a claim that a defendant knowingly violated a federal or state law concerning the manufacturing, marketing, distribution, advertisement, labeling, or sale of the food, and the violation was the proximate cause of the weight gain, obesity, or related health condition; a claim for breach of contract or express warranty in connection with the purchase of the food; or a claim regarding the sale of food that is adulterated.

A defendant that prevails may also recover costs of the investigation and litigation and reasonable attorney's fees

Wis. Stat. § 895.506.

Compensatory Damages

Is there a statutory limit on economic damages?

Yes, in wrongful death cases only.

Total damages in a wrongful death case are limited to $500,000 for a minor and $350,000 for an adult.

Wis. Stat. Ann. § 893.55(4)(f); 895.04(4).

Is there a statutory limit on non-economic damages?

Yes, in medical malpractice cases only

Total noneconomic damages recoverable in health case liability actions for each occurence on or after April 6, 2006 is $750,000.

Wis. Stat. Ann. § 893.55.

The Wisconsin Supreme Court has upheld caps on noneconomic damages for postdeath loss of society and companionship in wrongful death cases, see Maurin v. Hall, 682 N.W.2d 866 (Wis. 2004); Czapinski v. St. Francis Hosp., Inc., 613 N.W.2d 120 (Wis. 2000), but has struck down limits applied to predeath noneconomic damages, see Bartholomew v. Wisconsin Patients Comp. Fund, and Compcare Health Serv. Ins. Corp., 717 N.W.2d 216 (Wis. 2006), and an earlier $350,000 cap on noneconomic damages in medical malpractice cases, see Ferdon v. Wisconsin Patients Comp. Fund, 701 N.W.2d 440 (Wis. 2005).

Is recovery for medical monitoring permitted without physical injury?

Undecided

Punitive Damages

Is there a statutory limit?

No

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No restriction

Does the state receive a portion of the punitive damage award?

No

What standard is used?

Clear and convincing evidence

Wangen v. Ford Motor Co., 294 N.W.2d 437 (Wis. 1980).

Procedures

Venue

Conducive to Abuse - 
Does the statute permit forum shopping?

Not reported

Generally, a civil claim may be brought:
(a) In the county where the claim arose;
(b) In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;
(c) In the county where a defendant resides or does substantial business; or 
(d) If the provisions under (a) to (c) do not apply, then in any county designated by the plaintiff.

Wis. Stat. § 801.50(2).

Discretionary change of venue. The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.

Wis. Stat. § 801.52.

Class Actions

Is there a right to an immediate appeal of class certification?

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No

The amount of the appeal bond required to stay the judgment is limited to $100 million.

Wis. Stat. Ann. § 808.07(2m).

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

No

Wisconsin judges serve a "limited and indirect gatekeeping role" and do not directly determine whether scientific evidence is reliable.  Instead, it opts for a three-part relevancy test to determine admissibility of expert testimony: 1) is the evidence relevant; 2) is the witness qualified; and 3) will the evidence assist the trier of fact.

State v. Peters, 534 N.W.2d 867 (Ct. App.), review denied, 537 N.W.2d 572 (Wis. 1995); see also Ricco v. Riva, 669 N.W.2d 193 (Wis. Ct. App. 2003).

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Yes

Actual consumer reliance is required to award pecuniary damages; loss must result from violation of the Act.

Wis. Stat. Ann. § 100.18(11)(b)(2); Tim Torres Enters., Inc. v. Linscott, 416 N.W.2d 670 (Ct. App. 1987), review denied, 419 NW.2d 6562 (Wis. 1988).

What is the level of scienter (intent) required of a defendant?

Intent to sell, distribute, increase the consumption of or in any wise dispose of a covered product

Wis. Stat. Ann. § 100.18(1). 

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

Actual damages.

§ 100.18(11)(b)(2).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

If a defendant's conduct violates an injunction, the plaintiff may recover two times pecuniary damages.  

Wis. Stat. Ann. § 100.18(11)(b)(2).

Does every prevailing plaintiff receive attorneys' fees and costs?

Yes

Wis. Stat. Ann. § 100.18(11)(b)(2).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

No

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

No

A person may be excused from jury service if the court determines that the person cannot fulfill the responsibilities of a juror.

Wis. Stat. Ann. § 756.03(1).

May jurors automatically postpone and reschedule service?

No

A juror may only receive a deferral of jury service to a later date set by the court if the court determines that service as a juror would entail undue hardship, extreme inconvenience or serious obstruction or delay in the fair and impartial administration of justice.

Wis. Stat. Ann. § 756.03(2).

Is a juror's employment and leave time adequately protected during service?

Yes

An employer is required to grant an employee a leave of absence without loss of time in service for the period of jury service.  For the purpose of determining seniority or pay advancement, the status of the employee shall be considered uninterrupted by the jury service. No employer may use absence due to jury service as a basis for discharging an employee or for any disciplinary action against the employee.

Wis. Stat. Ann. § 756.255.

Is there a limit on the frequency of jury service?

Yes

See below.   In a county that has not adopted the one-day/one-trial system above, a person may be required to be available for service as a juror only once in any 4-year period. The period for which any person may be required to be available for service may not exceed 31 consecutive days.  No person may be required to serve, or attend court for prospective service, as a juror for a total of more than 5 days unless more days are necessary to complete service in a particular case.

Wis. Stat. Ann. § 756.28.

Is the length of service limited to no more than one day or one trial?

Varies by court

The judges in any circuit may establish a system in which a person may not be required to serve or attend court for prospective service as a trial juror for more than one day in a specified period, unless more days are necessary to complete service in a particular case. The specified period may not be less than 2 nor more than 4 years. In circuits where judges have established such a system, a trial juror whose deliberation ends with a verdict may not be required to participate in a 2nd trial even though the juror may not have completed the first day of juror service at the time of commencement of the 2nd trial.

Wis. Stat. Ann. § 756.28.

Juror per diem

Not less than $16 as fixed by the county board, plus mileage

Wis. Stat. Ann. § 756.25(1).

Is additional compensation available on lengthy trials?

No

Is the potential penalty for nonappearance sufficient to encourage participation?

No

A person who fails to respond to a juror summons without any sufficient excuse shall pay a fine of up to $40.  A person who willfully misrepresents any material fact on a juror qualification form or fails to return the completed qualification form within 10 days after receipt of the form may be required to forfeit up to $500.

Wis. Stat. Ann. § 756.30.

Problem Jurisdictions

Wisconsin Supreme Court

Given a "dishonorable mention" by the American Tort Reform Association in its 2005 Judicial Hellholes report.