In This Issue: Florida Supreme Court Strikes Down Medical Malppractice Wrongfol Death - Implications for Wiisconsin

2015,Volume 38

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1 From the Cover I ^ Florida Supreme Court Strikes Down Medical Malpractice Wrongful Death Cap - Implications For Wisconsin .Page 7

From the President Page 3

Legislative Report Page 5

The Mission ofthe "Wisconsin Asso Practice Pointer Page i 5 ciation for Justice is to promote a fair and effective justice system - one that ensures justice for all, not just a privileged few. The New Lawyers Section Page 18 Association supports the work of attomeys to ensure any person harmed due to work place injury or injured by the misconduct Women's Caucus Page 21 or negligence of others can have a fair day in court, even when taking on the most Paralegal Resource Page 28 powerful interests. The Association strives to achieve and maintain the highest standards of Federal Legislative Update Page 41 professional ethics and competency while educating and training in the art ofadvo cacy. The Association and its members are Amicus Curiae Page 43 dedicated to benefiting communities actoss Wisconsin through local events and chari table giving. Verdicts & Settlements Page 46

Editor Contributing Editors' Kelly L. Centofanti Robin Thomas Anthony J. Skemp Krlsten E. Lonergan Christine D. Essser David J. McCormick Executive Director J. Michael Riley Bryan Roessler Edward E. Robinson

/WISCONSIN The Verdict,A Quarterly Publication ofthe Wisconsin Association for Justice, 'ASSOCIATION/or 44 East Mifflin Street, Suite 402, Madison, Wisconsin 53703. Telephone (608) 257-5741. All rights reserved. Statements or expressions of opinions are those of con tributors and are not necessarily those of the Wisconsin Association for Justice or of the Editorial Board of The Verdict. The Editorial Board of The Verdict reserves the right to edit and condense all materials. All advertising copy is the sole responsibility of the advertisers. The Verdict does not investigate qualifications of service providers or independently verify claims in ads. Acceptance of ads should not be construed as endorsement of advertisers by either The Verdict or the Wisconsin Association for Justice. 2015 my OFFICERS & BOARD OF DIRECTORS

President Timothy T. Sempf, Amery Committee Chairs Ann S. Jacobs, Milwaukee Howard S. Sicula, Milwaukee Amicus Curiae Brief Committee President-Elect Michael S. Siddall, Appleton Lynn R Laufenberg, Milwaukee Russell T. Golla, Stevens Point Anthony J. Skemp, Milwaukee Katherine C. Polich, Madison Vice President Keith R. Stachowiak, Milwaukee D.James Weis, Rhinelander Benjamin S. Wagner, Milwaukee Mark S. Sweet, Watertown Constitutional/By-Laws/Parliamentary Secretary Scott B. Taylor, Milwaukee Procedures Committee Heath P. Straka, Madison Ralph J. Tease, Jr., Green Bay Benjamin S. Wagner, Milwaukee Treasurer Jay A. Urban, Milwaukee Employment Law/Civil Rights Committee Edward E. Robinson, Brookfield Jason W. Whidey, Amery Walter F. Kelly, Milwaukee Past President Beverly Wickstrom, Eau Claire Paul A. Kinne, Madison Christopher D. Stombaugh, Platteville Gregory R Wright, Montello Jury Instruction Committee Peter M.Young, Rhinelander Michael L. Laufenberg, Milwaukee Board ofDirectors Mark S. Young, Milwaukee Jason E Abraham, Milwaukee Past Presidents Keyperson Contact Committee Michelle P. Achterberg, Eau Claire Timothy J. Aiken, Milwaukee Daniel D. Hannula, Superior Todd E. Basler, Sheboygan Bruce R Bachhuber, Green Bay LAW-PAC Board ofTrustees Jeanne Bell, Milwaukee Gerald J. Bloch, Milwaukee Ann S. Jacobs, Milwaukee Avram D. Berk, Appleton Christine Bremer Mu^li, Wausau Legislative Task Force Joel W. Brodd, Hudson Larry B. Brueggeman, Milwaukee Robert L. Jaskulski, Milwaukee Kristin M. CaiFerty, Racine Keith R. CliflFord, Madison Mark L. Thomsen, Brookfield Kelly L. CentoEuiti, Mequon George W Curtis, Oshkosh Litigation Committee Jacqueline Chada Nuckels, Brookfield M.Angela Dentice, Milwaukee Eric A. Farnsworth, Madison Craig A. Christensen, Appleton Merrick R Domnitz, Milwaukee Long Range Planning Committee Frank T. Crivello, II, Milwaukee James A. Drill, New Rchmond Jeffrey A. Pitman, Milwaukee David Deda, Phillips Patrick O. Dunphy, Brookfield Membership Committee Joseph C. Doherty, West Bend J. Michael End, Milwaukee Beth Schneider, Chilton Christopher W. Dyer, La Crosse Paul Cagliardi, Salem Anthony J. Skemp, Milwaukee Gregory J. Egan, III, La Crosse James Grant, Waupun Membership Services Review Committee Richard T. Elrod, Appleton Thomas K. Guelzow, Eau Claire Russell T. Golla, Stevens Point Eric A. Farnsworth, Madison Robert L. Habush, Milwaukee Paralegal/L^al Assistant Affiliated Unit Ryan T. Frank, Montello Robert L. Jaskulski, Milwaukee Chair Frank M. Cagliardi, Salem James A. Johnson, Rhinelander Sara Sweda, Milwaukee Dixon R Cahnz, Madison Kenan J. Kersten, Mequon New Lawyers Section Robert J. Cingras, Madison Gary R Kuphall, Waukesha Kristen Lonergan, Wausau, Chair Eric J. Haag, Middleton Lynn R Laufenberg, Milwaukee Christopher J. MacGillis, Milwaukee, Jay E. Heit, Eau Claire Kevin Lonergan, Appleton Chair Elect Harry R Hertel, Eau Claire John C. Peterson, Appleton People's Law School Committee Ryan J. Hetzel, West Bend JeflFrey A. Pitman, Milwaukee (Conununity Based Public Education Christopher R. Hinkfiiss, Green Bay Don C. Prachthauser, Milwaukee Courses) Paul R. Hoefle, Waukesha Randall E. Reinhardt, Milwaukee Heath P Straka, Madison Gary N.Jahn, Chilton Daniel A. Rottier, Madison Speakers Bureau Robert J. Janssen, De Pere David M. Skoglind, Milwaukee M.Angela Dentice, Milwaukee Steven C. Kluender, Milwaukee Christopher D. Stombaugh, Platteville Merrick R Domnitz, Milwaukee Chad A. Kreblin, Milwaukee Michael 1. TarnofF, Milwaukee Women's Caucus Mark L. Krueger, Baraboo Willard P. Techmeier, Milwaukee Amy F. Scarr, Madison, Chair Kevin J. Kukor, Milwaukee Mark L. Thomsen, Brookfield Christine D. Esser, Sheboygan, Vice-Chair Michael L. Laufenberg, Milwaukee Edward J. Vopal, Green Bay Worker's Compensation ^mmittee Theresa B. Laughlin, Wausau D.James Weis, Rhinelander Michael H. Gillick, Milwaukee Curtiss N. Lein, Hayward William R Wilde, Markesan David L. Weir, Madison Kristen E. Lonergan, Wausau AAJ Governors Steven M. Lucareli, Eagle River Executive Committee: Noah D. Domnitz, Milwaukee Christopher J. MacCillis, Wauwatosa Ann S. Jacobs, Milwaukee, Chair Robert L. Jaskulski, Milwaukee Kevin R. Martin, Oak Creek Russell T. Golla, Stevens Point Jay A. Urban, Milwaukee Daniel R. McCormick, Milwaukee Edward E. Robinson, Brookfield AAJ State Delegate Michael C. Meyer, Marion Heath P. Straka, Madison Thomas W Kyle, Watertown Beth Osowski, Oshkosh Christopher D. Stombaugh, Platteville Heath P. Straka, Madison Frank T. Pasternak, Brookfield Benjamin S. Wagner, Milwaukee Terrence M. Polich, Madison Amy M. Risseeuw, Appleton R^onal Officers: Full committee rosters are available at Christopher E. Rogers, Madison Jason F. Abraham, Milwaukee www.wi^usHce,orglCommittees Timothy J. Rymer, Milwaukee Gregory J. Egan, III, LaCrosse Wisconsin Association for Justice Amy F. Scarr, Madison Steven M. Lucareli, Eagle River John Schomisch, Jr., Appleton Michael S. Siddall, Appleton Scott L. Schroeder, Janesville Beverly Wickstrom, Eau Qaire Paul J. Scoptur, Milwaukee

2 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG js;

. ;

From the President Ann S. Jacobs

In discussing our organization recently intellectual rigor, and advocacy on behalf forward with these new realities. with a non-member, the person of the unheard public. With these changes come tremendous remarked, a little skeptically, "you are I am humbled and honored to have opportunities. Over the past several years all in competition with each other every been asked to join the remarkable list of that I have been an officer, I have watched day for cases, how do you manage to get presidents of this organization. Although Mike, Ed,Jeff and Chris open the lines of along?" I confess that when Paul Gagliardi asked communication to people who previously I thought this was a fascinating me to do so, I think I might have been a we might have dismissed as unreachable or question. Here is an organization where little unaware of the full job description. not worth the effort. The ability to speak its members compete for literally every I am thankful to have the support of my with those who may oppose us on many tort case around the state. And yet, we husband, Brad, and children, Lily, Julia issues is essential and must continue. This voluntarily come together not only for an and Jacob, in this very time and energy- means continuing to open up lines of occasional CLE, not only for an annual consuming endeavor. I am also following communication with groups and people dinner. We come together daily through the example of my parents, Helen and that perhaps in the past we didn't see as list serves, weekly through voluntary Ronald Jacobs, who have always given receptive to our message. We know now committee work, monthly with our in volunteer work and public service. I that we cannot assume who will and will officers and executive committee, quarterly watched my mother rise to be the first not hear our advocacy on different issues. with our CLE s and meetings, and, during woman chair of the Wisconsin DNR,and Different issues resonate with different the political season, with what feels like am hopeful to live up to the example she politicians and the more we get to know

endless exhortations to action and giving. set. them, the better we can work to educate How do we do this? How do WAJ has incredible strength as a them and hopefully obtain their support we manage to create such a cohesive voluntary, state-wide organization — (or perhaps simply not their opposition) organization from what an outsider would incredible strength in our unity and on various issues. see as directly competing interests? shared goals. And yet, despite this, we find This year, there is a surprisingly Many reasons drive our strength as an ourselves in a time of great changes. large group of new legislators. We need organization. First is our uniform desire We have a new political reality. to introduce ourselves, and offer the to help our clients. We need the lawyers Wisconsin politics have changed direction opportunity to educate them on issues who represent the injured to do a good and are unlikely to swing back any time they may never have thought or learned job — indeed a great job. The help we give soon. We have had surprising changes in about. What is important to them? each other - a brief, a motion, advice — how we can give money politically. If we How can we help them recognize the isn't helping a competitor. It's helping have learned anything from the recent importance of our efforts? We must that injured person achieve justice. It is decisions coming out of the federal courts maintain our credibility as a reliable source the desire to do right by the citizens of on election law issues and giving, it is that of information on laws and their effects. Wisconsin that allows us to put aside our our previous models may have changed We must continue our relationship business competition, and focus on doing forever. building with other stakeholders on what is right. We have had a sea change in judicial aligned topics. We cannot advocate alone. Second, it is our recognition that elections. Even local judicial elections — Many laws affect not only us and our united we are strong advocates for our formerly the bastion of local giving and clients, but others within the judicial clients and the law. We are able to propose bad cheese plates — are now drawing large- system and beyond. Sometimes those (or oppose) legislation that affects our scale money. As trial lawyers, we spend affected do not even realize how proposals clients and the law with the authority that a great deal of time with our judges. It is will affect them. We need to continue to comes from representing the best tort essential to the well-being of our clients recognize when we can work with allies. lawyers across the state. The intellectual that we continue to be aware of the Our efforts at outreach to the public prowess represented by this organization importance of a smart, impartial judiciary. must continue and indeed grow to combat — whether in trial or appellate work, And we have seen great changes in our the continuing beat of "tort reform" legislation or advocacy — is astonishing. organization. Jane has departed after over activities that do nothing to reform, and Finally, it is our history. For 57 years 30 years as our executive director. We have only serve to further harm the people who we have been the organization advocating moved our membership directory into new were victimized. Our efforts for the Family for the injured. Even when people disagree software on the cloud. We will have a new Justice Network, Erin's law — efforts that with us, we have a reputation of honesty, Executive Director who will help us move seek to right the wrongs that parents like

Wisconsin Association for Justice Ihe^^RDiCT 3 Eric Rice has suffered — must continue and We must grow our membership. The strengthen this coming year. issues that we recognize as important are We must continue to be strong not limited to personal injury lawyers. supporters of candidates that believe in We need to show Workers Compensation our values. Our Justice Fund is one of lawyers, labor lawyers, criminal defense the largest political conduits in the state. lawyers, OA's, consumer lawyers, that our As a WAJ We have the upcoming Supreme Court organization can provide support, CLEs, election where Justice Bradley - a firm and advocacy fot issues they believe in. believer in the rights citizens, the right to We need to reach out to lawyers who Member a trial, and access to the justice system — is may not traditionally see themselves as facing a well-fiinded challenger. We will trial lawyers. We need to work more You Never all be called upon to help her in this very closely with other voluntary associations important race. — create relationships and perhaps find Stand Alone However, in addition to that opportunities to share the burdens and important race, we need to evaluate expenses of our activities with groups who our political giving. How do we give? have similar aims. To whom? Past models may not be I am tremendously fortunate to When you utilize the the best models as we move forward have the opportunity to be a part of this in this new reality. We need to think great time of change for WAJ. This will resources of WVJ and your about the influence of money on local be a busy time - we need to review every fellow members,it's as if judicial elections - an area that we have aspect of our organization to maximize our not traditionally been involved. When strengths. We may have to make difficult you were a member of a Club for Growth drops $167,000 into a decisions, change long-standing traditions, local circuit court race, we need to start alter ingrained procedures. However, I am 900-person law firm. thinking about how we look at those races. confident that in the end WAJ will emerge Finally, we must continue to a stronger, more vibrant organization modernize our organization. This is more whose advocacy on behalf of the injured than our technological innovations, will continue as our guiding principles. although this surely is a large part of it.

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4 Winter 2015, Volume 38;1 WWW.WISJUSTICE.ORG Joe Strohl The 2015-2016 Session of the State to see Senator Taylor return to the Judi insurance coverage. Modest changes might Legislature began with the swear ciary Committee. get worked out on dog bite legislation. ing in of members on Monday, The State Assembly has had the addi We are on the same side as they are on January 5, 2015. A near record of 25 new tion of three experienced attorneys to the need to make sure ride-share services state representatives took office as did the Republican caucus. They are Adam (Uber/Lyft) are adequately covered with 7 new state senators. Of the seven state Jarchow (R-St. Croix Falls), Cody Hor- auto insurance. senators all but one (Sen. Devon LaMa- lacher (R-Mukwanago) and Dave Heaton This past summer the Milwaukee hieu- R-Oostburg) have served in the (R-Wausau). We welcome that addition Journal Sentinel did a series of stories on Wisconsin Legislature previously. since there will now be more attorneys medical malpractice that were sympathetic Of the 25 new state representatives all to serve on the Assembly Judiciary Com toward victims and problems with the cur but 3 were elected from open seats. The mittee. Rep. Jim Ott (R-Mequon), an rent law. Some of our members provided other three defeated incumbent Demo attorney, will return as chair but he will valuable information for the series or crats. The new State Assembly is now now have several experienced Republican have won significant malpractice victories made up of 63 Republicans and 36 Demo attorneys to serve with him. In past it was in court. These would suggest that there crats. The State Senate has 19 Republicans difficult to work with his committee since might be momentum for getting changes and 14 Democrats. Half of the 14 Demo no other Republican attorney was there for in state statutes. cratic State Senators are women. Chairman Ott to consult with. All three However with the current makeup The new State Legislature is likely to Democrats on the Judiciary committee of the State Legislature this may not be be more conservative than the previous were highly experienced so it was difficult the time to raise these issues further. WAJ one. A number of moderate Republican for a good debate to develop. The same will be supportive of efforts being made members have been replaced by much was true on the floor of the Assembly. by others. For example, the Family Justice more conservative members. The impact of At this point we do not expect the Network has worked to change the law the larger conservative majority is already three new Republican attorneys to agree and give parents of adult children and the being felt with the Right to Work issue with WAJ on all our issues but we think adult children of widowed or divorced moving to the head of the table despite there will now be an opportunity for a parents the right to bring a wrongful death some Republican leaders and the Governor healthy debate. claim when death is caused by medical saying this is not a priority. It is safe to say that WAJ will prob malpractice. It is hard to predia what this might ably play defense most of the upcoming Another issue that is likely to return mean for the Civil Justice System. There session. So far we have not heard a lot of is Parental Sponsorship. Legislation failed is mixed news about the number of attor what legislation might be introduced that last session but we believe it will be back. neys in the State Legislature. There are no would be of major concern to us. Fortu Last session's bill was poorly written and longer any Republican state senators that nately civil justice issues were not the focus proponents suggested the bill did some are attorneys. Newly elected State Senator at all in the Governor's race nor in most thing that we don't think it did. WAJ is Van Wanggaard (R-Racine) is chairman of state legislative races. willing to work with the proponents like the Senate Judiciary Committee. Senator We know the property and casualty the Wisconsin Civil Justice Council if they Wanggaard is a Racine police officer by insurance industry will again be pushing are willing to do so with us. profession. He is replacing newly elected Collateral Source legislation and it is one It is obviously early in the session so it Congressman Clenn Crothman (R-West of WMC's top issues. However with the is hard to know what all might be coming Bend). broad coalition of health care providers, our way. Whatever it is, WAJ will be ready Sen. Wanggaard had previously served health insurers, and WAJ opposing it is to challenge it if we think it will further in the State Senate and WAJ had a good not likely the bill will move but we are erode the rights of injured Wisconsin citi- working relationship with him. Former ready to act if necessary. Senator Crothman did not always agree There are several issues that we think with us but was willing to work with us to we can work with the insurance industry improve on legislation. We think that will on to flnd some middle ground. If so we again be the same with Sen. Wanggaard. will approach legislators jointly to resolve The Democrats on the Judiciary are both some long standing issues. These include attorneys; Sen. Lena Taylor (Milwaukee) several auto insurance issues like reducing and Sen. Fred Risser (Madison). It is good clauses and required minimal amounts of

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6 Winter 2015, Volume 38;1 WWW.WISJUSTICE.ORG Florida Supreme Court Strikes Down Medical Malpractice Wrongful Death Cap t ^4 i - Implications for Wisconsin J. Michael End

On March 13, 2014, the Florida The plaintifFsplaintiffs appealed the reduction differently and far less favorably than Supreme Court struck down, on of the damages to the 11'*'11"*" Circuit Court of circumstances ini which there is a single a 5 to 2 vote, Florida's $500,000 Appeals, which decided the federal quesques- claimant/survivor,claimant/surviv and also exacted an per claimant and $1 million aggregate cap tions, but certified four state constitutional "irrational and unreasonable" cost and for noneconomic losses in medical mal questions to the Florida Supreme Court.' impact when the victim of medical neg practice wrongful death cases. In Estate of The Florida Supreme Court rephrased the ligence has a large family, all of whom McCall V. U.S.,' the court determined that first certified question and determined have been adversely impacted and affected the cap violated Florida's constitutional that the only question that needed to be by the death. Thus, if only Ms. McCall's guarantee of equal protection of the law. answered to resolve the issue of the consti son had had a claim for the loss of his This paper will discuss the implica tutionality of the cap was: mother, he would have received the entire tions of the Florida decision in light $500,000 the trial court determined to DOES THE STATUTORY CAP ON of a potential challenge to Wisconsin's be his reasonable compensation. How WRONGFUL DEATH ever, because Ms. McCall's parents also $750,000 cap on noneconomic damages NONECONOMIC DAMAGES, in medical malpractice cases, which was had claims, each claimant suffered a fifiy FLA. STAT. §766.118, VIOLATE enacted in 2006.^ THE RIGHT TO EQUAL PRO percenr loss of the compensation deter The McCall case involved the death mined by the court. Each survivor received TECTION UNDER ARTICLE 1, of Michelle McCall, who died from exces limited damages because others also suf SECTION 2 OF THE FLORIDA fered losses. Under the statute, the greater sive blood loss following the birth of her CONSTITUTION?® son. The attending doctors and hospital the number of survivors and the more staff failed to monitor and timely act upon devastating their losses are, the less likely Article I, § 2 of the Florida Con Ms. McCall's blood loss and resulting low stitution provides: "All natural persons, they are to be fully compensated for those blood pressures until she eventually suf female and male alike, are equal before the losses." fered a cardiac arrest shortly after her son's The McCall court cited a 1997 Illinois law."^ The court's rationale in McCall was birth. reminiscent of the Wisconsin Supreme Supreme Court case" holding that the The case was filed by Ms. McCall's Illinois damage cap operated to discrimi Court's rationale in Ferdon v. Wisconsin parents and by the father of Ms. McCall's Patients Compensation Fund,^ holding that nate against claimants who suffered the son on behalf of his son. Because Ms. Wisconsin's 1995 medical malpractice most grievous injuries, while benefitting McCall was at a military hospital for noneconomic damage cap of $350,000, the tortfeasor and/or the insurance com the labor and delivery, the case was filed adjusted annually for inflation, was uncon pany, and a New Hampshire case" that pursuant to the Federal Tort Claims Act stitutional because it violated the equal condemned on equal protection grounds (FTCA).' The federal district court deter protection guarantees of the Wisconsin a $250,000 cap on noneconomic damages mined that Ms. McCall had died as a in medical malpractice cases, concluding Constitution. result of medical negligence and that the that it was "simply unfair and unreason The McCall court held that the noneconomic damages totaled $2 million, Florida cap imposed "unfair and illogical" able to impose the burden of supporting including $500,000 for Ms. McCall's son burdens on injured parties when an act of the medical care industry solely upon and $750,000 for each of her parents. medical negligence gives rise to multiple those persons who are most severely However, because the FTCA provides that injured and therefore most in need of claimants. In such circumstances, medical compensation."" damages are determined by the law of the malpractice claimants did not receive the state where the tortious act was commit same rights to full compensation because The McCall court held that the Flor ida cap had the effect of saving a modest ted, the trial judge reduced the damages of arbitrarily diminished compensation for amount for many by imposing devastat to $1 million upon application of sec legally cognizable claims. Further, the cap tion 766.118(2) Florida Statutes (2005), did not bear a rational relationship to the ing costs on a few — "those who are most Florida's statutory cap on wrongful death purpose the cap was to address, the alleged grievously injured, those who sustain the noneconomic damages based on medical medical malpractice insurance crisis in greatest damage and loss, and multiple malpractice claims."* As a result, each of the claimants for whom judicially determined Florida.' noneconomic damages are subject to divi three plaintiffs received one-half of his or The court held that the statute sion and reduction simply based upon the her court-determined noneconomic dam- "irrationally" impacted circumstances existence of the cap. .. We hold that to which have multiple claimants/survivors

Wisconsin Association for Justice The\^ reduce damages in this fashion is not only remove or negate the justification for a law, 1,503,323 Americans died or were injured arbitrary, but irrational, and we conclude transforming what may have once been in 2008 as a result of medical errors.^® that it offends the fundamental notion reasonable into arbitrary and irrational In 2013, The National Practitioner Data of equal justice under the law."' (Internal legislation."^^ The court cited Wisconsin's Bank (NPDB),a federal repository of all citation omitted). Ferdon case in support ofthat proposi payments made to patients by professional The McCall court considered "the tion.^^ liability insurers for doctors, reported that alleged medical malpractice crisis" and The McCall court then held: "Having 9,205 people received compensation for held that the damage cap failed the ratio studied current data, we conclude that no injuries or death caused by doctor negli nal basis test because it bore "no rational rational basis exists to justify continued gence.^^ That represents just six-tenths of relationship to a legitimate state objec application ofthe noneconomic damages one percent of the people who actually tive."^^ Although the Florida legislature in cap of section 766.118."^"^ The court noted died or were injured in 2008. 2005 had determined that Florida was "in that there were significantly fewer medical If we extrapolate the medical journal the midst of a medical malpractice insur malpractice cases filed in Florida in 2012 number to Wisconsin, on a population ance crisis of unprecedented magnitude," than in 2004, and the aggregate payments basis, there are 26,952 people who die or the McCall court determined that the made for noneconomic damages in 2012 are injured each year because of medical findings of the legislature were subject to were significandy less than in 2004.^^ errors. The NPDB shows that there were judicial inquiry.^^ Ihe court found that The McCall court cited information only forty-one people in Wisconsin who the conclusions reached by the Florida from the annual reports of the Florida received compensation because of doaor Legislature as to the existence of a medical medical professional liability insurers negligence in 2013. Thus, in Wisconsin, malpractice crisis were not fully sup to show that the insurers were profiting less than one-sixth of one percent of the ported by available data. The Task Force handsomely and were "financially strong" people who were injured or died because whose report had been relied upon by in 2012. "Indeed, between the years of of medical errors received compensation. the Florida Legislature when the law was 2003 and 2010, four insurance companies On a population basis, Wisconsin in enacted included in its report a statement that offered medical malpractice insur 2013 had the fewest number of payments by Joanne Doroshow, Executive Director ance in Florida cumulatively reported an to people who died or were injured by of the Center for Justice and Democracy: increase in their net income of more than doctor negligence of the fifiy states and "This so-called crisis' is nothing more than 4300 percent."^^ Importantly, the court Washington, D.C., one payment for every the underwriting cycle of the insurance held: "With such impressive net income 140,066 people in the state. Minnesota, industry, and driven by the same factors estimates, the insurance industry should which has no cap on damages, had the that caused the crises' in the 1970s and pass savings onto Florida physicians in the second fewest payments on a population 1980s."^^ After reviewing the evidence, the form of reduced malpraaice insurance pre basis, one payment for every 129,057 peo McCall court determined that the find miums, and itshould no longer he necessary ple. The national ratio was one payment ing by the Legislature and the Task Force to continue punishing those most seriously for every 34,798 people.^^ that Florida was in the midst of a bona injured by medical negligence by limiting fide medical malpractice crisis, threaten their noneconomic recovery to afi xed, arbi Fewer Cases Filed; Fewer Payments; Less ing the access of Floridians to health care, trary amount. (Emphasis added). Money Paid was "dubious and questionable at the very In 2005, there were 240 medical best."^® Wisconsin Facts malpractice lawsuits filed in Wisconsin. In The McCall court also studied the Let us employ the rationale and 2013, there were 140 cases filed, a reduc impact of damage caps on the "alleged cri methodology of the McCall case to a tion of42%.^^ Similarly, according to the sis" and found that the available evidence potential challenge to Wisconsin's medical NPDB,there were eighty-six payments failed to establish a rational relationship malpractice noneconomic damage cap of to people harmed by doctor negligence in between a cap on noneconomic damages $750,000, which became effective on April 2005. In 2013, there were forty-one such and alleviation of the "purported" crisis. 6, 2006.28 payments, a 52% reduction. "Reports have failed to establish a direct Just as the McCallcourt considered In 2005, the Wisconsin medi correlation between damage caps and current facts in determining the validity cal professional liability insurers paid reduced malpractice premiums."^® The of the Florida cap on damages, the Ferdon $42,758,529 to injured people. In 2013, court found that from 1991 until 2002 court also endorsed doing so.^^ A review the insurers paid $4,077,592, a reduaion median medical malpractice premiums of the pertinent factors in determining of more than 90%.^ increased at a slower rate in states without whether Wisconsin's noneconomic cap is To put the claim of a medical mal caps than in states with caps.^^ constitutional supports a conclusion that practice "crisis" in perspective, data firom In deciding the constitutionality of Wisconsin is the antithesis of a state need the NPDB show that Wisconsin is not the cap issue, the McCallcourt noted that ing so-called tort "reform." alone in having fewer payments to people even if a "crisis" had existed when the injured by doctor negligence and less noneconomic damage cap was enaaed,"a Few Payments money being paid in compensation. The crisis is not a permanent condition." The The authors of a medical journal nationwide number of payments made on court held: "Conditions can change, which article published in 2011 determined that behalf of doctors has gone down twelve

8 Winter 2015, Volume 38:1 www.WISJUSTICE. ORG years in a row, from 15,898 in 2001 to defense attorneys, expert witnesses, etc. by $422,697,256 and the Fund surplus 9,205 in 2013, a reduction of42%. Data The national average for those 23 years was had grown by $549,207,270 since the cap compiled by the National Association of 77%. According to the Wisconsin Com legislation was enacted in 2006. The actu Insurance Commissioners(NAIC) show missioner of Insurance Report, the direct aries have estimated the Fund surplus as of a remarkable drop in aggregate nation loss ratios, the portion of the premiums June 30, 2015, will be $755.4 million, an wide direct losses paid by the insurers. used to pay injured people, for the Wis increase of $174.5 million in one year.^^ In 2005, the nationwide payments were consin medical malpractice insurers for On June 30, 2014, the Fund had $6,177,562,888. In 2013, they were 2011 through 2013 have been remarkably $349,993,633 more in assets than it had $3,965,980,623, a 36% reduction.^^ low, 14% in 2011,-29% in 2012, and 6% paid to people injured by medical negli in 2013. gence during its 39 years of existence.^® Wisconsin Doctors Pay Low Premiums The 2012 Wisconsin Insurance During the past four fiscal years, the One of the stated goals of the 2006 Report shows that the Wisconsin medical Fund has paid only 17 claims, just over bill establishing the $750,000 cap on malpractice insurers had direct premiums four per year, with annual total payments noneconomic damages in Wisconsin was earned of$75,226,437 and direct losses averaging $17,356,574."^^ In the three to help contain health care costs, allowing incurred of-$21,801,125, for a loss ratio fiscal years prior to the enactment of the insurers to set insurance premiums that of-29%. The 2012 Wisconsin Insurance $750,000 cap, there had been an average better reflect such insurers' financial risk.^^ Report states that negative losses incurred of ten payments per year, with an annual In 2005, the year before the cap legis result from a company, in this case, all of average of $20,629,345.^^^ In the Fund lation, Wisconsin doctors in the specialties the medical malpractice insurers, overesti Actuarial Analysis reports of December of internal medicine, general surgery, and mating the cost to settle open claims as of 3, 2014, and November 25, 2013, the obstetrics and gynecology were paying the end of the prior year. actuaries stated the obvious, namely, that the 5^ lowest premiums in the country, the Fund has been experiencing "fewer as documented in the Oaober 2005 Premiums Nationwide Have losses.""^^ Annual Rate Survey of Medical Liability Been Reduced Monitor. Internists paid $5,147; general Reduction in insurance premiums Caps Do Not Bring More Doctors surgeons paid $18,015, and obstetricians has actually occurred nationwide, with Since the Wisconsin legislature paid $23,677. By comparison, Minnesota, and without state caps on damages. Data enacted the $750,000 cap on non- which does not have any caps on medi from NAIC show that the nationwide economic damages, there have been a cal malpractice damages, had the lowest aggregate insurance premiums for medical number of scientific papers that provide premiums in the country for internists professional liability insurers have declined useful information about whether caps and general surgeons, while obstetricians every year for the past seven years. In accomplish their stated goals. These there paid the third lowest premiums in 2006, the aggregate premiums were recent studies should help the Wisconsin the country.^^ In 2014, Wisconsin inter $12,333,436,958. In 2013, the premi Supreme Court determine whether the nists paid the second lowest premiums in ums were $9,792,290,581, a reduction of 2006 cap is constitutional. the country ($3,623), general surgeons 21%.38 One of the stated reasons for enacting paid the lowest premiums ($10,868), The Legislature was concerned about the $750,000 cap in 2006 was to provide and obstetricians paid the third lowest the viability of the medical malpractice incentives for doctors to practice in Wis premiums ($16,605). In Minnesota, still insurers when it passed the 2006 law. As consin."^ The authors of a study published without any caps on damages, internists discussed above, the current situation is far in July 2014"^^ found that there was no paid the lowest premiums in the country, different from what it was in 2006. evidence that cap adoption predicts an while general surgeons and obstetricians increase in total patient care physicians, paid the second lowest premiums. The Fund Assets Are More physicians in high-risk specialties, or rural With such low premiums in Wiscon Than $1 Billion physicians. "The states that adopt dam sin, can the medical malpractice liability The legislature was also concerned age caps were not losing physicians before insurers still make money? The NAIC has about the viability of Injured Patients and reform, and do not gain physicians after tracked each states medical malpractice Families Compensation Fund (the Fund) reform, relative to the baseline of steady combined loss ratio from 1991 through when the $750,000 cap was established national growth in the number of physi 2013. The combined loss ratio is the per in 2006. See Wis. Stat. §893.55 (Id) cians per capita.""^^ The authors also found centage of earned premiums used to pay (a)4 (2011-12). According to the 2005 no association between physician supply claims and defend claims. For the 23 years Wisconsin Insurance Report, the Fund and the premiums for medical malpractice tracked by NAIC,Wisconsin has the low at that time had assets of$758,681,054 insurance."^^ est combined loss ratio of the 50 states and and a net equity of$31,706,181. The Another study, published in June the District of Columbia, 44.7%. In other most recent Fund actuarial report shows 2012, looking at the same issue, but words, for each dollar of premium received Fund assets as ofJune 30, 2014, of related only to the state ofTexas, which by the Wisconsin medical malpractice $1,181,378,310. The Fund surplus on that enaaed a $250,000 cap on noneconomic insurance companies, less than 45 cents date was $580,913,451. Thus, by June damages in 2003, found that the Texas has been used to pay injured people and 30, 2014, the Fund assets had increased legislation substantially reduced total

Wisconsin Association for Justice The\^RDiCT payouts on medical malpractice claims. liability insurers. Carson v. Maurer,424 A.2d 825(N.H. 1980), Despite that fact, "there is no evidence /. MichaelEnd is a partner in the overruled on other grounds, Cmty. Res.forJus that the number of active Texas physicians tice, Inc. V. City of Milwaukee lawfi rm ofEnd, Hierseman per capita is larger than it would have been Manchester, 917 A.2d707, 721 (N.H. 2007). & Crain, LLC. He is an attorney with 41 McCall 2x901, 903. without tort reform.""^® years ofexperience representingplaintiff in Ihe best evidence that damage caps Id at 903. tort actions, with an emphasis in medical do not increase the supply of doctors in a '5 Id at 905. malpractice andpersonal injury law. at 906. state is shown by the numbers themselves. Mr. End received his B.A. degreefr om According to the 2014 edition of the AMA at 907. Marquette University and hisJ.D. degree Id. at 909. publication Physician Characteristics and from Marquette University Law School, Id at 909. Distribution in the US, 11 of the top 14 where he was a Thomas More Scholar. He is 20/^. at 910. states in the ranking of the number of a pastpresident ofthe Wisconsin Association 2' Id at 910. patient-care doctors per 100,000 residents forJustice and ofthe Wisconsin chapter of at 913. were states that do not have caps on dam the American Board ofTrial Advocates. He 23/^ at 913. ages.'*^ There are only 19 states without is afellow ofthe American College ofTrial 2^/^. at 913. 25 Id. at 913. caps.^° Lawyers. Mr. End was selected as the 2000 26/^. at 914. Caps Do Not Affect Defensive Medicine Robert L. Habush Trial Lawyer ofthe Year 22 at 914. Another stated goal of the 2006 Wis by the Wisconsin Academy ofTrial Lawyers. consin cap was to limit the incentive to 2® 2005 Wisconsin Act 183. He is included in Best Lawyers in America Ferdon, at § 114. practice "defensive medicine."^^ In fact, in thefi elds ofmedical malpractice law and the 1975 legislative findings at the time of Jill Van Den Bos et al.. The $17.1 Billion personal injury litigation, and was named by Problem: The Annual Cost of Measurable the legislative enactment of Chapter 655 that organization as the 2014-15 Plaintiffs Medical Errors. Health Affairs. April 2011, included a finding that "the rising number PersonalInjury Milwaukee Trial Lawyer 30:4, p. 599. of suits and claims is forcing both individ ofthe Year. He was selected as one of 5^ National Practitioner Data Bank, available ual and institutional health care providers Wisconsins Top Ten Super Lawyen in 2012 at SMvrw.npdb.hrsa. gov/resources/npdbsrars/ to practice defensively, to the detriment of through 2014, and also selected as a Leader npdbStatistics.jsp. Select Physicians - United the health care provider and the patient."^^ in the Law by The Wisconsin Law Journal States - Wisconsin. Defensive medicine has been defined as ^^Id in 2012. "tests and other procedures ordered by 55 Wisconsin Director of State Courts, Annual providers that do not benefit patients."^^ Reports for 2005 and 2013. Two studies, both published in (Endnotes) ^Id October 2014, studied the effect of tort ^Estate ofMcCall v. U.S. (Fl. 2014) 134 So. 55 National Association of Insurance Com 3d 894. The decision relates only to Floridas missioners, Nationwide Summary ofMedical "reform" on defensive medicine. The noneconomic cap for medical malpractice conclusions were remarkably similar. The Professional Liability Insurance, 2000-2013 wrongful death cases, not the cap relating to (2014), available at www.naic.org/docu- authors of the first paper found "no evi personal injury cases. Id. at 900. ments/research stats medical malpractice, dence that adoption of damage caps or ^Wis. Stat. §§ 655.017 and 893.55(4) pdf. other changes in med mal risk will reduce (d)1(2011-12). Injured Patients and Fami 56 See Wis. Stat. § 893.55(1 d)(a)3 (2011-12). healthcare spending."^^ The authors of lies Compensation Fund has appealed an 52 The Annual Rate Survey compares premi the second paper studied the impact of order by Milwaukee Circuit Court judge Jef ums paid by internists, general surgeons, and three states' legislation that changed the frey A. Conen affirming a jury verdict of$15 obstetricians for medical professional liability malpractice standard for emergency care to million to Ascaris Mayo and $1.5 million to insurance policies with limits of$1 million/$3 gross negligence. The authors' conclusion: her husband, Antonio Mayo, for noneco million in each state. The few states that do "Legislation that substantially changed the nomic damages for Mrs. Mayo s losing all not sell policies in those amounts, because of malpractice standard for emergency phy four limbs. Milwaukee Circuit Court case different liability systems, are not included in sicians in three states had little effect on number 2012CV006272; Appeal number the survey the intensity of practice, as measured by 2014AP002812. 5® National Association of Insurance Commis imaging rates, average charges, or hospital ^ 28 U.S.C. §§ 1346(B), 2681-80. sioners, supra, note xxxiii. ^ Id. 2x900. 5® Pinnacle Actuarial Resources, Inc., Wisconsin admission rates."^^ "^ Estate ofMcCall v. U.S., 642 F.3d 944 (IP*" Injured Patients and Families Compensation Cir.2011). Fund, Actuarial Analysis as ofSeptember 30, Conclusion ^Id at 897. 2014, p.2. In summary, the rationale of the ^ Id. at 900. Id. p. 19 and Exhibit Cl. McCall court is similar to that of the Per- ® Ferdon v. Wisconsin Patients Compensation Id don court, and suggests that the Wisconsin Fund, 2005 WI 125, 284 Wis. 2d 573, 701 "^2IPFCF, 2006Functional and Progress Report, legislation of2006 has resulted in injus N.W.2d 440. Table 1, p. 6. tice to the most severely-injured people at 901. ^^5 Id. at p. 8; Wisconsin Injured Patients and without providing a significant benefit to at 901, 902. Families Compensation Fund, Actuarial Analy anyone other than medical professional Bestv. Taylor Mach. Works, 689 N.E.2d 1057, sis as ofSeptember30, 2013, p. 8. 1078 (111. 1997). ^ See Wis. Stat. § 893.55(ld)(a)l (2011-12).

10 Winter 2015, Volume 38:1 www.WISJUSTICE. ORG Myungho Paik, et al., Does Medical Mal 2015 Program Committee practice Reform Increase Physician Supply^ Certified Evidencefrom the Third Reform Wave, avail Amy M. Risseeuw, Appleton able at http://ssrn.com/abstract=246065. Kristin M. Cafferty, Racine Life Care ^^Idp.l Spring/Winter Seminar Planner 'Udp. 1. Kristen S. Knutson, Appleton David A. Hyman, et al., Does Tort Reform Howard S. Sicula, Milwaukee • Spinal Cord Injuries Affect Physician Supply^ Evidencefrom Texas, Summer/Winter Seminar June 2012, available at http://ssrn.com/ • Workers Compensation abstract=2047433. Terrence M. Polich, Madison • Injured Children Id, p. 258: District of Columbia (1); New Tort/Winter Seminar York (3); Rhode Island (5); Connecticut (6); Michelle Dontje, Sheboygan • Head Injuries Vermont (7); New Jersey (8); Minnesota (9); Choua Lee, Milwaukee New Hampshire (10); Pennsylvania (11); Andrea R. Thunhorst, Milwaukee • Other Personal Injuries Oregon (13); Illinois (14). Paralegal Programs AMA: Medical Liability Reform NOW!2014 • 26 Years of Experience ed., pp. 14,15. Ann S. Jacobs, Milwaukee 5^ Wis. Stat. §893.55(ld)(a)2 (2011-12) Executive Committee Liaison • Over 1000 life care plans prepared Chapter 37, Laws of 1975, Section 1(e). If you have suggestions for topics/speakers Myungho Paik, et al.,., Do Doctors Practice • Testified in over 500 cases you would like to see offered Defensive Medicine, Revisited, available at at WAJ seminars, please send your ideas to: http://ssrn.com/abstracr-2110656. p. 1. Linda K. Graham, R.N., M.A., C.L.C.P. 5^/^. p. 26. Program Committee c/o WAJ 2263 Laurie Rd. West Daniel A. Waxman,, et al.. The Effect ofMal 44. E MifHin St., Suite 402 Roseville, Minnesota 55113-5619 practice Reform on Emergency Department Madison, WI 53705 (651)636-2327 Care, N Engl J Med 2014; 371:1518-25. [email protected] Email: [email protected]

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Wisconsin Association for Justice HieVRDiCT 11 WAJ Justice Fund

The following WAJ membets contributed to the conduit, the Justice Fund from December 2013, tbrougb December 2014. The Justice Fund allows WAJ to amplify its electoral power to elect pro-Civil Justice candi dates. We highly commend those who have contributed. To contribute, call the WAJ office at(608) 257-5741 or visit us online at wisiustice.org/JoinJu8ticeFund

Jason F. Abraham Robert S. Duxstad Curtiss N. Lein Ardell W.Skow Timothy J. Algiers Gregory J. Egan,III Brenda L. Lewison Breanne L. Snapp Robert Asti Jeffrey J. Ek David J. Lisko Stuart J. Spaude Lee R. Atterbury Richard T. Elrod Thadd J. Llaurado Michael S. Sperling Charles W.Averbeck David M.Erspamer Emily I. Lonergan Keith R. Stachowiak Bruce R. Bachhuber Howard J. Eslien Kevin Lonergan Phillip M.Steans Todd E. Basler Matthew R. Falk Kristen E. Lonergan Christopher D.Stombaugh Matthew J. Bauer Eric A Farnsworth David P. Lowe Heath P. Straka Mark D. Baus Laurence J. Fehring Steven M. Lucareli Stephen B. Strnad John A. Becker Thomas M. Fitzpatrick Christopher J. MacGillis Christopher L. Strohbehn Brian R Beisenstein Thomas J. Flanagan William D. Mansell Jason T. Studinski Jeanne Bell Julie J. Flessas Kevin R. Martin Douglas E. Swanson Robert E. Bellin, Jr. Alexander Flynn Craig A Mastantuono Mark S. Sweet Avram D. Berk Richard A. Fortune Daniel R. McCormick Fred N.Tabak Matthew A Biegert Steven C. Gabert Wallace K. McDonell Michael I. Tamoff Lisle W. Blackboum Paul Gagliardi John F. McNally Scott B. Taylor David S. Blinka Dixon R. Gahnz Robert C. Menard Ronald G. Tays Jesse Blocher John J. Gelshenen,Jr. Patrick C. Miller Ralph J. Tease,Jr. Charles S. Blumenfield Phillip S. Georges William W. Moir, III Willard P. Techmeier Ronald Bornstein Jeffrey M. Goldberg Eric P. Molberg Kent A Tess-Mattner Steven T. Botzau Russell T. Golla Jeffrey J. Morgan William R.Te Winkle Christine Bremer Muggli Robert J. Gray Phillip A Munroe Mark L. Thomsen Shawn Brock Gary S. Greenberg Tea Norfolk Steven F. Tilton JoelW.Brodd Rachel Grischke Jacqueline Chada Nuckels Jerome P. Tlusty Michael J. Brose David E. Gruber John V. 0*Connor Jessica J. Tlusty Jean J. Brown Thomas K Guelzow PartickC. O'Neill Michael E. Trager James P. Burnett D. Michael Guerin Thomas A. Ogorchock Timothy S. Trecek Scott M. Butler Robert L. Habush Christy Olson Lance R.Trollop Kristin M. Cafferty Terese M. Halhnann John R. Orton Keith E. Trower John L. Cates Charles E. Hanson Beth Osowski Joseph M.Troy Kelly L. Centofanti Victor C. Harding Nicol M.Padway Catherine T. Tully Craig A Christensen Charles J. Hausmann Frank T. Pasternak Jay A Urban Raymond Clausen Nicholas L. Hermann Daniel P. Patrykus Lawrence G. Vesely John D. Claypool Ryan J. Hetzel John C. Peterson Edward J. Vopal Keith R. Clifford Michael Hupy Paul D.Peterson Benjamin S. Wagner Dennis O. Cochrane Ann S. Jacobs Nicholas E. Petty William J. Waltenberger Rebecca M. Coffee James R.Jansen Jeffrey A. Pitman Robert T. Ward Gregory J. Cook Robert J. Janssen James P. Pitz D.James Weis Frank T. Crivello, II Robert L. Jaskulski Kenneth J. Quincey Joseph J. Welcenbach Robert D. Crivello Michael J. Jassak Jill A. Rakauski Robert J. Welcenbach George W. Curtis Gordon S.Johnson, Jr. Michael D. Riegert Jason W. Whitley Barry M.Cymerman Charles W.Jones, Jr. J. Michael Riley Beverly Wickstrom Curtis R. Czachor Sarah F. Kaas Amy M. Risseeuw Geoffrey D. Wilber Douglas P. Dehler Douglas W. Kammer Edward E. Robinson Gregory R. Wright Michael Demo David B. Karp Christopher E. Rogers Tiffany R. Wunderlin M.Angela Dentice Douglas B. Keberle Merton N. Rotter Peter M.Young Charles J. Derenne Paul A Kinne Randall L. Rozek Jeffrey P. Zarzynski Brandon D. Derry Steven G. Kmiec Eric J. Ryberg Jeffrey R. Ziigibel Collin G. Doherty Eric M. Knobloch J. Drew Ryberg Robert D.Zitowsky Joseph Doherty Kristen S. Emutson Jonathan S. Safran Charles F. Domer Todd R. Korb Amy F. Scan- Thomas M.Domer Chad A E^eblin Leon S. Schmidt,Jr. Merrick R. Domnitz Joseph A Kromholz Scott L. Schroeder Noah D. Domnitz Kevin J. Kukor Carlton H.Schuh Rebecca L. Domnitz Michael B. Kulkoski Richard H.Schulz Robert Domol Lynn R. Laufenberg Jacqueline L. Sehloff Michael J. Donovan Michael L. Laufenberg H.Elizabeth Severson Robert G. Dowling Theresa B. Laughlin Michael S. Siddall Christopher A. Duesing Molly C. Lavin Ruth D. Simpson Peter G. Duffey Michael D. Leffler Anthony J. Skemp

12 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Stand Up & Be Join ihe Justice Fi

Join over two hundred of your colleagues of the Name:_ Wisconsin Association for Justice who are helping to elect candidates for state office that share our commitment to the civil justice system by signing up for the Justice Fund. Pooling your contributions with other Justice Fund participants amplifies WAJ's Today's Date:_ electoral power throughout Wisconsin. Flome Address:- 1. Make one-time or recurring payments into the Fund. WAJ maintains a conduit fund at our financial City/ST/Zip:_ institution. All conduit participants' money is placed into this account. Phone:_ 2. WAJ will periodically request your approval to send funds to targeted candidates for state office who need your support Contribution Amount:$ ! 3. Once you authorize the contribution, we will combine it with other contributions and submit a single □ One-time Contribution check to the candidate for the total amount □ Monthly Recurring Contribution of the aggregate, but disclose it as individual contributions. Payment Method □ Personal Check - Payable to the Justice Fund □ Withdrawal from my personal checking account Money is released to candidates only when you approve and authorize your contribution. (Please attach a voided check for account information) □ Personal Credit Card (For protection of WAJ member's credit card information and in order for WAJ to be PCI compliant, call the WAJ office to give your Justice Fund participants will receive a "Justice Fund credit card information.) Champion"lapel pin. Many conduit participants can be seen at seminars and events around the state Corporate Contributions Are Not Allowed In Wisconsin proudly showing their commitment to maintaining a strong civil justice system in Wisconsin. Please return this form to the WAJ office By mail to: 44 E. Mifflin St., Suite 402 / Madison, Wl 53703 Fax to: 608.255.9285 / or Email to: [email protected] Have questions? call the WAJ office at 608.257.5741

Wisconsin Association for Justice The\^ Book Review

Fighting the good fight Courtroom Avenger: The Challenges and Triumphs of Robert Habush Kurt Chandler ABA Book Publishing www.americaanbar.org 276 pp., $39.95 Reviewed by Stacy E. Burke

The title is an appropriate moni dence in court—something all lawyers can ker for master litigator Robert relate to. Habush: In Courtroom Avenger:, The average nonlawyer reader might Kurt Chandler highlights Habush's many consider it a small drawback that the pro successes and the roadblocks he overcame portion of trial stories and trial transcript along the way. He explains how Habush excerpts to other information is somewhat channeled his frustration with his personal unbalanced."While each of Habush's experiences—from anti-Semitism, to his clients, cases, and trials is noteworthy, a daughters devastating vaccination injury, nonlawyer can only read so many war sto to a lack of affection from his lawyer ries in a row. Still, his landmark cases are father—into a heated vengeance directed many: HlV-tainted blood being transfused at those who negligently harm others. into healthy patients; products liability Habush largely focused on products claims against automakers for seat collapse, liability cases before such claims were lack of shoulder straps in back-seat seat mainstream, laying the groundwork for belts, and inadequate child restraints; and our current ability to hold accountable acting as special counsel on Wisconsin's companies that disregard worker and con behalf against tobacco companies. sumer safety. He was among the first trial As a mother, reading Habush's story lawyers to engage in political activism as about how his daughter suffered irrepara Take your career to new president of the American Association for ble brain damage from a vaccination as an heights. Join the American Justice—then the Association of Trial Law infant was heart-wrenching. At the begin Association for Justice yers of America^—from 1986 to 1987. ning of his legal career, he was a client in a (formerly ATLA®)today! Habush has mastered the art of sto products liability case against Parke-Davis rytelling—presenting his clients' stories to regarding the Quadrigen vaccine, and it Improve your practice and get better the jury and proving the facts to support was a turning point. This horrible personal results for your clients witti ttiese the necessary elements of their claims. experience led him to become one of the exclusive AAJ member benefits: In this biography. Chandler, the editor most successful trial lawyers in U.S. legal • Attend OLE programs led by the of Milwaukee Magazine and a newspaper nation's leading experts and top history. trial lawyers reporter, gives readers a birds-eye view of Such personal flourishes and details • Keep up-to-date with AAJ's the formulaic method Habush would use of Habush's personal life, lifelong politi award-winning publications, to decide whether to accept a case—and cal activism, and philanthropic endeavors including Trial magazine then how he would prepare it for trial and make Courtroom Avenger a quick and • Network with the greatest legal minds In the nation win. enjoyable read for almost any lawyer in • Protect the civil justice system Chandler doesn't spell out trial tactics the mood for renewed inspiration to keep and your clients' rights in a simple list; instead, he uses Habush's fighting the good fight. The book also locally and nationally success stories to illustrate best practices, showcases the best of why trial lawyers do When you Invest In AAJ, including working on whatever cases come what we do and will serve as a solid coun you Invest In yourself. your way so that you can learn, getting a terargument to tort "reform" for years to For more information or to join, workers' compensation insurance carrier come. visit www.justice.org or to work with you (because your objec Stacey E. Burke is a trial lawyer cali 800-424-2727 or tives are often harmonious), finding the consultingfor lawfirms through her own 202-965-3500, ext. 8611. best experts on a case-by-case basis, and business headquartered in Houston. giving a passionate closing argument. The Reprinted with permission ofTrial AMERICAN A 1 A ASSOCIATION for book also emphasizes the concept of being (November 2014) Copyright American JUSTICE inwardly self-critical and a perfectionist Association for Justice, formerly Associa Formerly the Association of THal Lawyers of America(AILA*) while outwardly portraying stalwart confi- tion of Trial Lawyers of America (ATLA®).

14 Winter 2015, Volume 38:1 ■WWW.WISJtJSTICE.ORG r' L'>?ir I ^

Practice Pointer if* Curbing Defense \cJ J. Michael Riley Medical Evaluations David S. Blinka

The Problem defense. medical expert consistently disagrees with There was a time when defense medi Section 804.10(1) also rests with the the opinions of a broad range of treating cal evaluations wete reasonably objective, courts. It also affords the court control physicians. albeit conservative. They were also a rela over the time, place, manner, and scope of It may also be worth pointing out tive rarity because the defense ran the any examination. Significantly, the section that in opinion after opinion these doctors risk of an adverse opinion. Those days are also permits the court to determine the rely heavily upon medical records. Their gone. person or persons by whom an evaluation opinions are also predicated upon what is Over the years insurers have developed is to be conducted. essentially an article of faith, that every a reliable stable of hired gun "experts". The case law interpreting Sec one who is injured in an accident recovers These doctors churn out predictable opin tion 804.10(1) is limited. Significantly rapidly. At the same time, they essentially ions that support the company line. They what constitutes "for cause shown" was ignore the history offered to them by the are most prominent in soft tissue and addressed in Ranft v. Lyons? In denying plaintiff in the course of these examina chronic pain cases, where they consis the request for an evaluation, the court tions. tently opine that everyone recovers within held that the requesting party would need Under all of those circumstances it is a relatively brief period of an injury. to demonstrate cause beyond the thresh difficult to see that permitting an evalu The statute concerning medical eval old requirement that the party's physical ation by someone who is more advocate uations, Section 804.10(1), is part of the condition be at issue. Citing to Schlagen- than expert can promote the ends of jus Wisconsin Statutes governing discovery. haufv. Holder^ the court noted that under tice or meet the for cause standard set The purpose ofthose statutes is to serve the a similar federal rule the U.S. Supreme forth in Section 804.10(1). ends ofjustice and increase the chances for Court had concluded that an examination settlement. Dudek v. Circuit Courtfor Mil might not be appropriate if the opposing B. Docs and Daubert waukee County} What we have at present party could obtain the desired informa We believe there is also a compelling is a group of well-paid advocates posing tion by other means. case to be made that the opinions consis as "independent experts." They provide The fundamental purpose of the tently offered by many of the best known cookie cutter opinions which do far more discovery statutes, coupled with the defense medical advocates does not pass to obstruct than promote settlement and requirement of Section 804.10(1) provide muster under the Daubert standards. further the interests of their masters, not a sound basis for challenging or limiting In Daubert v. Merrell Dow Pharm., Inc? the ends of justice. the defense right to a medical evaluation. and its progeny, the U.S. Supreme Court This article is focused on the hired The argument is particularly compelling sought to eliminate junk science from the gun medical expert. While some of the when it can be demonstrated that the courtroom. The court was concerned that arguments advanced may have broader defense is proposing that the evaluation advocacy masquerading as science could application, they are most likely to be be conducted by one of the relative hand be used to confuse jurors in cases involv effective in that context. ful of well-paid advocates who conduct a ing technical issues. As anyone knows who Insurers seem to assume that a majority of the defense evaluations. They has handled medical malpractice cases, defense medical evaluation is a matter of toutinely issue opinions which are both jurors are all too readily confused by con right. That assumption has gone largely scientifically categorical and essentially flicting medical opinions, regardless of unchallenged, although some efforts have identical in case after case. their merit. been made to place conditions on exami Presenting the court with evidence Daubert and the subsequent cases nations. We believe a more fundamental that the proposed expert is little more interpreting it set forth a number of cri challenge is justified. than a hired gun is critical. Evidence can teria for determining whether proposed be obtained through discovery. That will expert testimony passes muster. Several of Suggested Solution almost certainly show that the expert has those criteria apply with particular force A, Section 804.10(1) completed a large number of evaluations to the standard hired gun medical opin Far from providing a carte blanche on behalf of the defense and has consis ion. right to defendants. Section 804.10(1) tently produced opinions that do not First and foremost, courts should grants the court discretion to order an vary materially from case to case. That is concetn themselves with whether the the examination on "good cause shown". so despite significant differences among ory underlying the expert's opinion enjoys Absent a stipulation, the burden to jus a variety of plaintiffs. Prior opinions will broad acceptance within the relevant sci tify a medical evaluation rests with the also disclose that the proposed defense entific community. The often repeated

Wisconsin Association for Justice The\^RDicT 15 opinion that everyone heals within 12 vert science into a partisan smokescreen. ologies that may be used in developing an to 18 weeks, does not enjoy such accep Defense medical opinions which consis expert opinion. In conclusion, the court tance. In fact, that categorical opinion is tently contradict treating physicians and held that the physician had employed the contradicted in case after case by a vari ignore real world medical experience have accepted diagnostic tool of examination ety of treating physicians. Defense experts precisely that aflFect. accompanied by physical history as related almost uniformly disregard those opinions Wisconsin has not specifically applied by the patient. The case was returned to and the well accepted reality that long Daubert to medical testimony. The Wis the trial court with instructions to fol term chronic pain is a common sequelae consin Court of Appeals has expressly low the court's direction in determining of neck and back injuries. rejected ipse dixit testimony in State v. admissibility. Daubert also asks whether the theory Giese.^ The court noted ipse testimony Ultimately, the court concluded that or technique underlying an opinion has is barred because it contains none of the arguments concerning alternative pos been subjected to peer review and publica indicia of reliability that Daubert requires. sibilities were susceptible to exploration tion. There is no peer reviewed literature The U.S. Supreme Court had previously on cross-examination. The court took the we are aware of which supports the cat stated in Kumho, supra, that "nothing in same approach to disputes relating to the egorical opinion that everyone recovers either Daubert ot the Federal Rules of Evi patient's medical history. from soft tissue injuries within a given dence requires a District Court to admit Cooper is quite consistent with the timeframe regardless of the severity of the opinion evidence that is connected to approach taken by Wisconsin coiurts prior injury, the nature of the plaintiff, or the existing data only by the ipse dixit of the to Daubert. We anticipate the Wiscon manner in which the injury occurred. expert." The opinions most commonly sin courts following a similar course post Testimony which is based on test offered by defense medical experts are Daubert with respect to clinical opinions ing that was conducted for purposes of classic ipse dixit testimony. They rest on by treating physicians. litigation is also highly suspect under nothing more than the expert's assertion So why would our courts be less recep Daubert. Some defense experts rely on that the categorical opinion he offers is tive to defense medical experts? There are tests conducted by the insurance industry true because he says it is true. fundamental differences between the tes specifically for the purposes of litigation. One obviously related question is timony offered by treating physicians and Ultimately, Daubert requires that an whether testimony by treating physicians that offered by hired gun defense medical expert opinion be grounded in the scien may also run afoul of Daubert. In general, experts. Treating physicians give opinions tific method. It rejects the use of ipse dixit we believe not. specific to a particular case based on a (it is so because I say it is so) testimony. In Cooper v. Carl A. Nelson & Co? patient's history, their clinical examina In the case of many medical experts, the the 7^ Circuit Court of Appeals rejected tion of the patient, and their experience opinions offered are not based on a sci a challenge to testimony by a treating with similar patients and similar condi entific analysis of the evidence presented, physician. The defense challenged pro tions. The opinions vary from patient to but rather on a categorical and scientifi posed testimony by the plaintiff's pain patient. At least treating physicians can cally unsupported belief. specialist linking the plaintiff's chronic attest that a patient's recovery or lack of Case law applying Daubert to medical pain syndrome to trauma sustained in the recovery can be impacted by a variety of testimony is sparse. Wisconsin's appel accident. The physician had testified based factors relating both to the patient and to late courts have not addressed the issue on his examination of the plaintiff as well how they were injured. directly, although there is at least one Wis as plaintiffs reported medical history. The Defense medical experts, by contrast, consin decision that discussed the suspect trial court initially rejected the testimony offer opinions predicated on categorical nature of ipse testimony in evaluating because it was based on history which the belief that everyone who has sustained the admissibility of nonmedical testimony. defense asserted was inaccurate. certain types of injuries recovers within a The federal courts have held that The Court of Appeals rejected the defined and relatively brief period. That Daubert can be applied to medical tes defense argument, concluding it would categorical approach is at direct odds to timony. In Bowers v. Norfolk^ the court establish an overly demanding gate opinions held by the majority of the medi rejected testimony by a physician hired keeper role. The court observed that it cal community. It is also unsupported by by a third party because it felt there was was not seriously disputed that in clini literature, or indeed by logic. insufficient indicia of reliability. The pro cal medicine the methodology of physical Hired gun medical experts are not posed testimony concerned an unusually examination and self-reported medical offering testimony rooted in the real complex causation issue. The court based history employed by the plaintiffs expert ity that human beings are not machines, its rejection on the fact that the opinions was generally acceptable. The defense but rather are infinitely variable. They had not been peer reviewed, were not sup argued that the approach was not accept offer categorical opinions that are rooted ported by medical literature and were not able where the etiology of a condition was neither in sound medical theory or sci demonstrated to have general acceptance well established. The court rejected that ence. Those are precisely the sort of one in the medical community. argument noting the defense suggested no size fits all partisan opinions that Daubert The precise concerns articulated in alternative that could be employed by a condemned. If such testimony cannot Bowers apply to the standard hired gun conscientious clinical physician. withstand scrutiny under Daubert, there medical opinions. What Daubert and The court cited United States v. Lund^ is no reason for the court to permit an Bowers condemn is the effort to con as recognizing a wide choice of method evaluation intended merely to bolster tes-

16 Winter 2015, Volume 38:1 www.WISJUSTICE. ORG timony which would violate the strictures of Dauhert. It would be much neater if there were clear cut answers as to how challenges to defense medical experts will play out. That said, we believe there are strong arguments under Section 804.10(1) and Dauhert to object to the use of hired gun defense doctors. While such challenges are not appropriate in every case, we believe it is time that an effort was made to rein in Improve your practice and get better results for your what has become a destructive phenom clients with these exclusive AAJ member benefits: enon. To paraphrase, we can't know what we'll get, but we know what we've got. • Attend CLE programs led by the nation's leading experts Hired gun doctors present a real impedi and top trial lawyers ment to obtaining fair compensation for • Keep up-to-date with AAJ's award-winning publications, our clients. Allowing them to continue including Trial magazine unchecked seems a poor option. • Network with the greatest legal minds In the nation ]. Michael Riley is an attorney at • Protect the civil justice system and your clients' rights Axley Brynelson in Madison. His practice locally and nationally includes personal injury, insurance cover age, appellate matters, mediation and When you invest in AAJ, you invest in yourself. arbitration. Attorney Riley has lectured and written extensively on matters relating to For more information or to join, ..H-t AMERICAN the settlement and trial ofpersonal injury visit www.justice.org or A 1 A ASSOCIATION claims. He taught trial advocacy and nego call 800-424-2727 or tiation at the University ofWisconsin Law JUSTICE 202-965-3500, ext. 8611. Formerly the Assodatfon of Trial Lawyers of Arnica(ATIA*) School He has been regularly cited as a top personal injury lawyer in Best Lawyers in America; He has also been designated as Super Lawyer in the area ofpersonal injury by Milwaukee Magazinefor multiple years and one ofMadison's top personal injury Sometimes you need an in-depth, confidential review ofyour pending case... attorneys by Madison Magazine.

David Blinka is an associate attorney WAJ Case Evaluation Clinic at Habush Habush & Rottier, S. C. in Mad ison where hefocuses on personal injury in A panel of experienced trial attorneys volunteer their time to review addition to working on a mass tort gasoline your ease and offer advice, ideas and strategies to move your spill case. Mr. Blinka graduatedfrom the ease towards settlement or help in trial preparation. University ofWisconsin Law School in 2012 and is a member ofWAJ's New Law The panel offers advice on liability, damages, experts, yers Section. negotiation strategies, trial tactics and valuations. (Endnotes) '34 Wis. 2d 559, 150 N.W.2d 387 (1967). Register online today at ^ 163 Wis. 2d 282, 471 N.W.2d 274, review www.wisjustice.org/CaseEvaluation denied A75 N.W.2d 584 (1991). ^379 U.S. 104, 117-122 (1964). ^ 509 U.S. 579 (1993). 2015 Clinics '537 F. Supp. 2d 1343(M.D. GA 2007). ® 2014 WI App 92, 356 Wis. 2d 796, 854 N.W.2d 687. March 19, 2015 July 9,2015 '211 F.3d 1008 (2000). The Radisson Hotel, Green Bay The Landmark Resort, Egg Harbor » 809 F.2d 392, 395-6 {7'^ Clr. 1987). Request due by Request due by February 27,2015 June 18,2015

Wisconsin Association for Justice The\Ai New Lawyers Sectio

Permanenc

Megan M. Zabkowicz The Path of Least

Introduction phone call with the doctor can also help practice to make things as easy as possible As we all have discovered one way or determine whether it is even in your cli for the doctor. Providing a short stack of another, medical records can be full of hid ent's best interest to request the report. If pertinent records rather than a four-inch den gems, whether delightful quotes from a doctor does not indicate that he or she is stack of every single certified record makes our clients or damaging notations about going to provide a causation opinion, then the doctor's job easier and increases the our clients' prior medical conditions. there is no sense in requesting the report. odds the doctor will actually read the To loosely paraphrase Homer Simpson, Figuring this out early is always best records. If the prior treatment and medical our clients' medical records are the cause practices. Knowing early may determine records are substantial, it may be ben of and solution to all of our problems. whether the case merits filing a lawsuit and eficial to provide the doctor with a brief Because of the significance of medical prevent finding out thirty days before a medical review. These types of reviews records to personal injury claims, it is criti disclosure deadline that the treating doctor help clarify treatment history, highlight cal to control, as much as possible, what a will not "play ball." pertinent aspects, and provide the doctor treating doctor dictates in the permanency Before speaking with the doctor, it is with a time saving opportunity. Providing report. important your office has already provided the doctors with a brief medical summary In counties such as Milwaukee, the the doctor all the appropriate informa also allows you to paint a narrative of your Scheduling Order mandates permanency tion and medical records, whether prior client's history to the doctor. A word of reports. As a result, reports are essential to medical records or records from other cur caution, though: medical record reviews a client's significant injury claim. If a client rent treating doctors. Make it easy for the are appropriate tools hut make sure they had surgery or treated for a considerable doctor to understand the entire picture of are completely accurate. Not only is the amount of time, a permanency report your client's medical history. If a client has doctor relying on you for this information helps substantiate the severity of the injury had treatment in the past for his or her for the foundation of his or her medical and provides the foundation for the future low back, the doctor may be uncomfort opinion, but the review now becomes part damages question on the verdict. Regard able opining an accident caused the injury. of the doctor's file and is discoverable. less of whether you request a repott prior However, if the doctor has a better under to sending the demand or filing suit, there standing of a client's prior health history, Phone Call with the Doctor are some basic tips to help ease the process the doctor may be willing to opine the Schedule a short telephone conference of attaining a permanency report. accident caused an aggravation of a pre in advance of requesting the permanency existing condition. report to educate the doctor on your Preparing the Doctor for the Report Furthermore, during a deposition, the client's injuries and assess whether you In general, you should assume your doctor will be questioned as to whether he should request a report. Contact the doc client's treating doctor dislikes attorneys or she had a full, clear picture of your cli tor's scheduler or assistant to schedule the and dislikes interactions with attorneys ent's medical history. The doctor's opinions phone call with the doctor. Typically, the even more. Discussing the treatment of may change if the doctor finds out about noon hour is the most convenient time for a patient is generally easy for doctors; prior records for the first time at his or her doctors to speak directly with attorneys. however, asking a treating doctor about deposition. Be sure to determine whether you are call causation and permanent injuries can be a Additionally, if the doctor has the ing the doctor or the doctor is calling you. seemingly arduous task. prior records, understands the prior medi Also, make sure to have the correct office Therefore, there is a considerable risk cal history, and cannot say to a reasonable telephone number if you are facilitating asking the treating doctor for a report that degree of medical certainty the injuries the phone call with the doctor. Nothing may not give the necessary causation or were caused by the accident, you likely would be more irritating for both you and permanency. If a doctor cannot opine a will reconsider a request for a permanency the doctor than to lose your window of motor vehicle accident caused the tear in a report and negotiate the case accord opportunity to speak because you are call client's rotator cuff or that a client has suf ingly. Although unhelpful with regards to ing the wrong office. fered a permanent back injury and writes a permanency claim, it is better to have Once on the phone with the doctor, that in the report, you and the client are this information provided to you over the feel free to get right to the point. You both stuck with that opinion. phone, as opposed to in a damaging per are very busy and respecting evetyone's Because of this uncertainty, schedul manency report you are unable to abstract time is important. There are basic ques ing a quick phone call with the treating from the medical records. tions that should be asked and answered doctor can easily assuage concerns of When providing the doaor with during every phone call, but each call what could end up in a written report. A appropriate medical records, it is best

18 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG should be tailored to your clients specific understands the aggravated/accelerated/ case needs. The following are easy tips to exacerbated opinion. The goal of the Quick Recap help you both get right to the point: request should be to tailor the questions to 1. Do I need a permanency report for 1. Make sure the doctor remembers the your specific needs. The more concise your my client s claim? client/patient request, the greater likelihood the doctor a. Do the medical records indicate 2. Explain who you are and whom their permanent injury? will be willing to answer it expeditiously. claim is against. (This can help ease b. Could this claim end up in concerns that you are somehow out to Here are some general examples: Litigation? get the doctor with these questions) 1. What is the patients current medi 3. Confirm the injuries cal condition? 2. Before requesting a report: 4. Confirm the doaor agrees the ac 2. Was the current condition caused a. phone call cident caused the injuries, or alter by the accident on (date)? i. Make sure doctor has prior natively aggravated/exacerbated a 3. If not directly caused by the ac medical records, if relevant cident, was the patient s current pre-existing injury. ii. Know the cost of the phone medical condition aggravated/exac- call and whether pre-pay is erbated by the accident? required Be clear about what you are look 4. Are the injuries permanent in iii. Schedule telephone call ing for from the doctor. If causation is an nature? I. Who is calling whom? issue, be sure to highlight that. If the issue 5. Does the patient have permanent What number? What is whether there is permanent injury, make restrictions as a result of the injuries date/time? sure to focus on those specific types of from the accident? iv. Prepare questions 6. What are the permanent restric questions. Once you have determined the 1. Causation tions? 2. Permanent injury treating doctor will be able to provide a 7. Will the patient require future 3. Future treatment favorable report, be sure to end the phone medical treatment as a result of the 4. Permanent restric call by telling the doctor you would like to injury? tions now send over a brief list of questions for 8. If yes, what type of future treat him or her to answer in a written report. ment will the patient likely require? 3. Report If during the phone call it is evident a. Know the costs for the report the doctor is not going to give the neces Because doctors are extremely busy, b. Ask specific question; be con cise sary causation or permanency opinions, requested permanency reports are generally not at the top of their to-do lists and attor c. Expectations of how long it will do not despair. The entire purpose of take for the doctor to complete this phone call is to ensure a permanency neys often have to wait weeks or months is calling whom? What number? report that will be only helpful to your for reports. Follow up phone calls to the What date/time? client and not harmful. It is better to hear doctors office are often necessary, but d. include with demand or file with the doctor tell you over the phone he or really should not be more than a gentle the court she does not opine there is causation or reminder for the report. Highlighting the a permanent injury than to have him or courts Scheduling Order deadline should her dictate it in a report in the medical be a last resort. Conclusion records. Think of this phone call as a way Unfortunately, even if you have done Requesting a permanency report is to help formulate strategies for the claim all you can to prepare for a permanency not always an easy process, but with a solid going forward. report, there is no guarantee it will be plan of action you will be able to develop favorable or include everything you had the right strategies for your client s claim Requesting the Report asked about. If the report is unfavor going forward and reduced headaches as Send the report request out immedi able, you could request a supplemental the disclosure deadline approaches. ately after the phone call. Doctors tend to report; however, there is still no certainty place a low priority on assisting attorneys, the second report will clarify the first, Megan M.Zabkowicz is an attorney so getting the request out as soon as pos or particularly benefit your client s case. at Gruber Law Offices, where she practices sible can help expedite matters. Additionally, the first report is not going personal injury law. Megan is a graduate It is critical to phrase questions to the to be eradicated and is likely still part of ofMarquette University Law School and doctor using the correa legal standards. the certified medical records. Even if the earned her undergraduate degree at the For example, all answers should be a doctor provides supplemental reports, your University ofWisconsin-Madison. While at reasonable degree ofmedical certaintyr If communications with the doctor to attain Marquette, Megan waspresident ofthe Asso causation is an issue be sure to ask whether it are discoverable and will undoubtedly ciationfor Women Lawyers and competed the accident, if not the cause, was a sub provide fodder for cross-examination. in thefi nals ofthe Jenkins Honors Moot stantialfactor in the cause of the client s Court Competition, arguing infront ofUS. current medical condition. If the client has Supreme CourtJustice Elena Kagan. significant priors, make sure the doctor

Wisconsin Association for Justice The\^RDiCT 19 NLS Chairs Get the most from your WAJ Membership

WAJ has the tools you need to help you prepare for trial, in trial, on appeal and more.

Network Learn 0PI, Workers Comp and 0 Outstanding CLE Paralegal Listservs Seminars at a 0 Women's Caucus, Reduced Rate New Lawyer and 0 SeminarWeb Live and Paralegal Sections SeminarWeb On Chair 0 Case Evaluation Demand CLE Kristen E,Lonergan is an associate Clinics attorney with Bremer & Trollop Law Ofhces in Wausau where she practices personal injury litigation. She received Research her law degree from the University of 0 Verdicts & Settlements Wisconsin Law School in 2010. She Online received her undergraduate degree from 0 TrialSmith Online the University ofWisconsin-Madison Deposition Bank in 2007. Kristen is admitted to prac 0Talented WAJ research staff tice in the State ofWisconsin and the Western District ofWisconsin. She is a member ofWAJ where she serves on the Board of Directors, the Membership Services Committee, as Chair ofthe New Lawyers Seaion and as Chair of the Women's Caucus Mentoring Com NJUREDCLIEM mittee. Kristen is also a member ofthe State Bar ofWisconsin, serving on the Mock Trial Casewriting and Mock Trial If you want to prevail more in cases, then ' Advisory Committees. Chiropractic Company has your • 8 locations in greater Milwaukee i • 11 credible doctors who care and are willing to stand-up for their patients i A r: • Complete documentation for your file f % • Fast narratives with the info you need j • IME, Record Reviews, impairment Ratings| I Chair Elect: Christopher J. MacGillis is a founder • Award winning care for patients and partner at MacGillis Wiemer, LLC in Milwaukee. Chris focuses his practice • Immediate ontime appointments " on personal injury and employment/ labor law, and has represented employ ees, labor unions, and those injured • Patients who need legal advice y yBli by the acts of others throughout the State ofWisconsin. He graduated from Let's build a powerful relationship Marquette Law School and received his undergraduate degree from Lawrence where everyone wins, especially your clients. University. Reach Chris at (414) 727- 5150 or [email protected]. www.Plchiropractic.com

20 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG 4"-^ r*'-.. • .

Women's Caucus

It's Time to Raise America's

"Other Minimum Wage" Breanne L. Snapp

Introduction "Management" includes the following COMPUTER EMPLOYF.E The Fair Labor Standards Act activities: EXEMPTION: Exempt computer ("FLSA"), 29 U.S.C. § 201, efse^., • Interviewing, selecting, and employees include computer systems provides exemptions from both minimum training employees; analysts, computer programmers, software wage and overtime requirements for • Directing the work of employees; engineers, and other similarly skilled bona fide executive, administrative, • Setting and adjusting employees' workers in the computer field." The professional, and computer employees.' rates of pay and hours of work; computer employee exemption applies These exemptions are commonly known • Determining the type of materials, only to computer employees whose as the "white collar" exemptions.^ A supplies, machinery, and primary duty consists of: broad interpretation of these exemptions, equipment to be used; (1) The application of as well as an incredibly low salary • Determining the type of systems analysis techniques threshold of $455.00 per week, pose merchandise to be bought, and procedures, including significant obstacles to overtime claims stocked, and sold; consulting with users, and deny millions of low paid salaried • Planning and controlling the to determine hardware, workers overtime pay. Current decisions budget; and software or system functional examining the executive exemption • Monitoring or implementing specifications; illustrate these issues well. However, the legal compliance measures. changes proposed by President Obama (2) The design, development, could restore the intent of the FLSA and An exempt executive must also have the documentation, analysis, strengthen wage and hour protections for authority to hire and fire employees from creation, testing or millions of Americans. the company, or make recommendations modification of computer This article will provide an overview as to hiring and firing that are given systems or programs, including of the white collar exemptions, examine particular weight.' prototypes, based on and recent trends in the interpretation of the ADMINISTRATIVE EXEMPTION: related to user or system design executive exemption, and discuss President To qualify for the administrative specifications; or Obama's call for changes to the white exemption, an employee's primary duty collar exemptions. must be the performance of office work (3) The design, directly related to the management documentation, testing, The White CoUar Exemptions or general business operations of the creation or modification of To qualify as an exempt executive, employer or the employer's customers, computer programs related to administrative, professional, or computer and the employee must assist with the machine operating systems." employee, an individual must be running or servicing of the business.® The compensated on a salary basis at a rate employee's primary duty must include the Courts have struggled to reconcile of not less than $455.00 per week.' This exercise of discretion and independent the language of the computer employee compensation amounts to an annual salary judgment with respect to matters of exemption with ever-evolving technology. of $23,660.00 and constitutes Americas significance to the company.' While it is clear that Information "other minimum wage," the minimum PROFESSIONAL EXEMPTION: Technology ("IT") support specialists are an employer can pay workers and avoid To qualify for the professional exemption, nonexempt,''* the exempt status of certain overtime requirements.'* an employee's primary duty must be the employees in the software industry has All exempt white collar employees performance of work requiring advanced not been resolved. For example, end user must also meet a "duties test." The duties knowledge in a field of science or learning, testers of software and employees who tests for each white collar exemption are typically acquired through a college or simply configure software generally have outlined here: similar program of instruction.'" The little to no education or training in the EXECUTIVE EXEMPTION:To employee's work must also require the computer sciences or a technical field. qualify for the executive exemption, consistent exercise of discretion and However, many employers classify these an employees primary duty must be judgment." Common examples of individuals exempt simply because this managing the business, and the employee exempt professionals include doctors, work may seem complex to an outsider. must regularly direct the work of at least lawyers, pharmacists, and engineers. two full-time employees.'

Wisconsin Association for Justice TheVa Recent Interpretations ofthe Executive From the early 1980s through exemptions have not kept up with our Exemption the mid-2000s, federal circuit courts modern economy, resulting in millions As a remedial statute, the FLSAs unanimously found retail store managers of Americans lacking overtime and exemptions are to be narrowly construed exempt from overtime pay.^® In minimum wage protections.^® The against employers and are "limited 1999, the Government Accountability President encouraged the Secretary of to those establishments plainly and Office commented on the difficultly Labor to address the changing nature of unmistakably within their terms and of challenging exempt classifications the workplace and simplify the regulations spirit."^^ In practice, however, courts for employees who supervise at least for employers and workers.^^ have broadly construed the exemptions two employees, even if they spend only Many observers have speculated to include employees who are clearly minimal time on management tasks.^^ regarding the content of the proposed outside the terms and spirit of the statute. However, there have been successful changes, but most predict that the salary These decisions leave us with exempt challenges to managers' exempt status in threshold will be increased significantly, as "executives" potentially working at hourly the past 10 years. In 2008, for example, high as $984.00 per week.^^ This would rates less than those of their subordinates, the Eleventh Circuit upheld a $36 million amount to an annual salary of $51,168.00 depending on their hours logged. Because dollar jury verdict against Family Dollar (the FLSA's 1975 salary threshold these executives are also exempt from for misclassifying its store managers as adjusted for inflation.)^^ In addition, new the FLSAs minimum wage requirement, exempt executives.^^ In addition, assistant regulations will likely implement a 50% their hourly rate can even fall below the managers have prevailed in claiming limitation on work deemed non-exempt.^"^ minimum wage. that their primary duty is nonexempt This change in the duties test would lend To avoid paying overtime, employers work. For example, McDonald s paid clarity to both employers and employees, commonly classify managers, manager $2.4 million dollars in 2010 to settle a and would eliminate exempt status for assistants, and other employees with claim that it willfully misclassified its low-paid supervisory workers. supervisory roles as exempt executives. assistant managers as exempt executives.^^ In terms of timing, the proposed rule However, many "managers" spend Similarly, Taco Bell paid $2.5 million was originally expected to be issued in most of their time performing the dollars in 2013 to settle a claim that it November 2014.^^ The latest Department same nonexempt duties as their hourly also misclassified its assistant managers as of Labor Regulatory Agenda indicates that employees. Therefore, claims regarding exempt executives.^"^ the agency now plans to publish a Notice the executive exemption often hinge on Nevertheless, the current legal of Proposed Rulemaking in February whether the employee s primary duty is landscape confirms a trend broadening the 2015.^^ If the Department sticks to the performance of exempt management executive exemptions duties test. In 2011, this timeline, it is possible that the new work, or whether nonexempt concurrent for example, the Fourth Circuit ignored regulations could go into effect before the duties disqualify the employee from the Morgan Decision and held that Family end of President Obama's second term. exempt status. Dollar s managers were in faa exempt Concurrent performance of executive employees.^^ The Lead Plaintiff Conclusion exempt and nonexempt work does not spent 99% of her time performing The FLSA's white collar exemptions automatically disqualify an employee nonexempt duties, such as stocking have failed to serve their purpose of from the executive exemption. Whether freight, running a cash register, and exempting bona fide, highly compensated, an employee qualifies for the exemption doing janitorial work.^^ Still, the court professionals from overtime requirements. depends instead on whether his or her latched onto the regulations language Instead, these exemptions have resulted in primary duty is the performance of that "... time alone is not the sole test, millions oflow-paid salaried workers who exempt work.^^ The term, "primary duty" and nothing in this section requires that are virtually barred from bringing overtime means the principal, main, major, or exempt employees spend more than 50% claims. The Department of Labor should most important duty that the employee of their time performing exempt work."^^ prioritize the regulatory changes suggested performs.^® Because the plaintiffs work apparently by President Obama to restore the intent Factors to consider when determining satisfied the other factors oudine in § of the FLSA. the primary duty include: 541.700, the court held that her primary was management.^® Federal courts have Breanne L. Snapp is an associate at • The relative importance of the typically followed Family Dollars lead, Habush Habush &Rattier, S.C., where her exempt duties as compared with disregarding the significant time plaintiffs practice includes wage and hour class actions. other types of duties; spend performing nonexempt work. In 2013 Ms. Snapp graduated cum laude, • The amount of time spent per forming exempt work; Order ofthe Coif,from the University of • The employee s relative freedom Proposed Changes Wisconsin Law School, where she also earned from direct supervision; and President Obama released a a Consumer Health Advocacy Certificate, • The relationship between the em Presidential Memorandum this spring Ms, Snapp is a member ofthe Women's ployee s salary and the wages paid authorizing the Secretary of Labor to Caucus and the New Lawyers Section, to other employees for the kind update and modernize the country's of nonexempt work performed by overtime regulations.^^ In it he the employee. acknowledged that the white collar

22 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Women's Caucus Chairs

Amy F. Scarr has taken over the helm of the WAJ Women's Christine D.Esser was elected the Vice Chair of the Women's Caucus. Amy is a solo practitioner and practices in the areas of Caucus. Christine is a shareholder at Habush Habush & Rottier employment discrimination, civil rights, and personal injury. S.C. and has been a member of the firm since 2000. She began Amy is on the Board of Directors of the WAJ. She is a member of her legal career as a law clerk for the Honorable Marsha Ternus the State Bar of Wisconsin's Labor and Employment Law Section of the Iowa Supreme Court. Since that time she has successfiilly (Chair of the Board, 2012-13) and Civil Rights and Liberties Sec tried numerous cases in counties throughout Wisconsin. Chris tion (Chair of the Board, 2005-06). She is also a member of the tine has been certified as a Civil Trial Advocate by the National Dane County Bar Association, the Western District of Wisconsin Board of Trial Advocacy since 2005. She is a member of the Bar Association, the Legal Association for Women, the National State Bar of Wisconsin, the Wisconsin Association for Justice, Employment Lawyers Association, the Wisconsin Employment the Sheboygan County Bar Association where she serves on the Lawyers Association, and the AAJ. Amy received her law degree Community Outreach and Education Committee and the Judi from the University of Wisconsin Law School. She lives and prac cial Advisory Council. Christine has been included in the list of tices law in Madison. the Top 25 Women by Wisconsin SuperLawyers since 2011 and was also included in the list of the top 50 Lawyers in the State this year. She is a frequent presenter on topics related to personal injury litigation at various seminars throughout the state.

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Wisconsin Association for Justice The\^RDiCT /WISCONSIN Jtustice spring Seminar

Slip/Trip & Fall Symposium: All Your Questions Answered

Radisson Hotel & Conference Center Green Bay Friday, March 20,2015 8:30 a.m.- 3:30 p.m. Attorney Session Chairs Amy M.Risseeuw Kristm M.Cafferty Peterson, Berk & Cross SC, Appleton Habush Habush & Rottier SC, Racine Paralegal Session Chair^s MicheUe Don^e Choiia Lee Habush Habush & Rottier SC,Sheboygan Ramon & Medrano, SC, Milwaukee

Andrea R.Ihunhorst Laufenberg, Jassak & Laufenberg SC, Milwaukee

Attorney Morning Session Paralegal Morning Session WAJ Update Mandatory eFiling - Are you ready? Ann S. Jacobs, WAJ President Jean Bousquet, ChiefInformation OflScer A Practical Review ofPremises Liability: Andrea Olson, CCAP Customer Services Manager Wisconsin Court System - CCAP A Panel Discussion of Case Studies Panelists: Work Smarter, Not Harder with eDiscovery Tools Timothy J. Algiers, O'Meara Law Firm, LLP, Hartford Shawn R. GUey, Midwest Legal &:eData Services, Inc., Oak Creek John D. Claypool, Herrling Clark Law Firm, Appleton Hon. Marc A. Hammer,Brown County Circuit Cotut Wisconsin Wrongful Death Actions: Things to Think About John C. Peterson, Peterson Berk & Cross SC, Appleton Jessica E. Slavin, Averbeck & Hammer,S.C., Fond du Lac Presentation ofExhibits at Trial With and Without Technology The Secrets of Winning a Million Dollar Fall Case Michael K. Bush, Bush, Motto, Creen, Koury Halhgan, Jesse B. Blocher, Habush Habush & Rottier SC, Waukesha Davenport,lA Medicare Compliance Today and In the Future Todd J. Belisle, Vice President of The Centers, Clearwater, FL Safe Place Statute & Non-Profits Rebecca Domnitz,Pitman Kalkhoflf Sicula & Dentice SC, Milwaukee Combined Afternoon Session The Role of the Liability Expert in Slip and Fall Accident Cases John J. DeRosia,Ph. D., P.E., Consulting Engineer, Dousman Using 911 CaUs to Strengthen Your Case How to Use the Mode of Operations Exception to Mop the Floor Christine D. Esser, Habush Habush Sc Rottier SC,Sheboygan with Your Big Box Opponent Intake: A Time for Discovery Rachel Grischke, Laufenberg Jassak & Laufenberg SC, Milwaukee Ricardo Perez, Ricardo Law OflSces LLC,Kenosha Recreational Immunity:Ifs Not All Fun and Games An Overview of Municipal and Private Liability Scott M.Butler, Fitzpatrick Skemp & Associates LLC,La Crosse Under the Highway Immunity Act Wisconsin's Safe Place Statute: The Often Ignored Requirement Katherine C. Polich, ChflFord & Raihala SC,Madison Placed on Employers Breaking Bad: Forays off the Ethical Path Jacob R. Reis, Habush Habush Rottier SC, Appleton Hon. Michael J. Aprahamian Waukesha County Circuit Court

CLE pending with the Wisconsin Board of Bar Examiners, the Minnesota State Board of Continuing Legal Education and the Paralegal Association of Wisconsin. Confirmation of credit will appear on our website, www.wisju8tice.org/CLE Seminar Registration OLE Credit Registfation and distribution of course materials begins Friday, WAJ will apply for CLE Credit approval with the Wisconsin March 20, at 7:45 a.m. at the Seminar Registration desk. We Board of Bar Examiners, Paralegal Association of Wisconsin ask that you pre-register for this program at your earliest and Minnesota Board of Continuing Legal Education. convenience. Registration on the day of the program will Confirmation of credit approval will be included in the seminar include a $20 surcharge. materials. Registration includes electronic access to the seminar materials, special Offer to New Members continental breakfast and refreshments at breaks. To register, Attorneys and Paralegals may enjoy member discounts complete the registration form below and mail to WAJ with on seminars and materials by joining WAJ and paying the your registration fee. Make checks payable to Wisconsin appropriate dues. Current membership fees are as follows: Association for Justice or register online at wisjustice.org. More than 15 Years in Legal Practice $360 Cancellations must be made at least 24 hours prior to the date 10-15 Years in Legal Practice $342 of the program. Refunds are subject to a $15 service charge. 5-9 Years in Legal Practice $276 Cancellations made after March 19th will not be refunded. You 3-4 Years in Legal Practice $192 may request that your registration fee be transferred to another 1-2 Years in Legal Practice $96 WAJ seminar held within one year of the original seminar date. Inactive Status* $132 Paralegal/Legal Assistant $90 Hotel Accoinmodations Sustaining Seminar Membership $1320 WAJ has reserved a block of rooms at The Radisson Hotel *Based on membership standing with State Bar of Wisconsin or & Conference Center at 2040 Airport Drive in Green Bay, licensing authority of respective state. Wisconsin 54313. Please make your reservations directly with the hotel at: (920) 494-7300. In order to receive the special WAJ estimates that 35% of dues are not deductible as ordinary room rate of $95 to $109, you will need to make your and necessary business expense for 2015. reservation no later than March 1, 2015. Contact the WAJ office at (608) 257-5741 for additional information or visit us on the web at www.wisjustice.org.

2015 Spring Seminar Registration Form Name: Phone: Firm: Email: Address: City: State: , Zip:

Seminar Registration Fees Payment Options Tuition & Tuition & Hard Weblink to Book Copy of Book Check Enclosed WAJ Member □$210 □$245 Non-Member □$330 □$365 O Please bill my Sustaining Member □FREE □$35 □ Visa □ Mastercard Gov't Employed Member □$180 □$215 n Discover O American Express Gov*t Employed Non-Member □$260 □$295 Law Student □$30 □$65 Accoimt Number: Paralegal Member □$110 □$145 Paralegal Non-Member □$185 □$220 Paralegal Student □$30 □$65 Expiration Date: Signature: *Hard copy materials must be ordered by March 2nd, 2015 J^u may also register on our website^ www.wisjustice.org Total Amount Enclosed $ Mail registration form to: Note: At-the-door registration wiU include a $20 surcharge. Cancellations Wisconsin Association for Justice must be made at least 24 houre prior to die start of the program. 44 E. Mifflin St., Suite 402, Madison, WI 53703 Wisconsin Association for Tustice

n ^ -^N-

Ann S. Jacobs, President Russell T. Golla, President-Elect Benjamin S. Wagner,Vice-President Ann S. Jacobs is the founder of Jacobs Russell Golla is a partner with Benjamin S. Wagner is a shareholder Injury Law, S.C. She received her Anderson, O'Brien, Bertz, Skrenes at the firm and has been a member B.A. with distinction in 1989 from & Golla in Stevens Point where he of the firm since 2003. He graduated UW-Madison, and graduated from has been practicing since 1981. His magna cum laude from the University of U.W. Law School in 1992 {cum laude). practice is focused on personal injury, Wisconsin Law School in 2003 and also She began her legal career as a public product liability, complex commercial, received the Phillips Owens Memorial defender before changing her emphasis construction and environmental Scholarship for outstanding academic to personal injury litigation. Her practice litigation, and insurance and employment achievement and community service. Mr. focuses on personal injuries and medical law. He received his Bachelors Degree in Wagner has successfully tried numerous malpractice, as well as nursing home 1976 from the University of Wisconsin cases throughout southeastern Wisconsin. abuse/neglect on behalf of injured persons - Stevens Point, where he graduated Due to his significant trial experience and and their families. In 2011, 2012, 2013 with high honors and a double major. success, he has been certified as a Civil & 2014 she was named one of the top Mathematics and Political Science. In Trial Specialist by the National Board 50 lawyers in the State of Wisconsin 1980 he graduated from Marquette of Trial Advocacy and as an advocate and one of Milwaukee's top 25 lawyers University Law School {cum laude). by the National Board of Civil Pretrial by SuperLawyers.*" Milwaukee's M Following graduation, he clerked for Practice Advocacy, and listed in the Magazine named her a "Leading Lawyer" Wisconsin Supreme Court Justice John 2012, 2013, and 2014 editions of the in both personal injury and medical L. Coffey for one year before joining his Best Lawyers in America. Mr. Wagner malpractice in 2011, 2012, 2013 & present firm. Golla is a member of the is the Vice President of the Wisconsin 2014. She is an officer and a member of Wisconsin Association for Justice and Association for Justice. He is also a the Board of Directors of the Wisconsin has been on the Board of Directors since member of the State Bar of Wisconsin, Association for Justice and a founding 2000. He is a member of the State Bar the Milwaukee Bar Association, the member of their Women's Caucus. of Wisconsin, the American Association American Association for Justice, and She was elected in 2013 to the Board for Justice and other specialty bar the American Bar Association. He is a of Directors for the Milwaukee Bar organizations. He has been certified as member of the Board of the Legal Aid Association, and continues to serve as a Civil Trial Specialist by the National Society of Wisconsin, and a former chair of their Lawyer Referral Committee. Board of Trial Advocacy since 1999, has president and board member of the She serves as a board member for the received an "AV Preeminent" rating by Milwaukee Young Lawyers. He is the past Wisconsin Equal Justice Fund and has his peers in Martindale-Hubbell and has Chair of the Young Lawyers Division of served on the American Bar Association's been named a Wisconsin SuperLawyer™ the Wisconsin Association for Justice, national committee on Lawyer Referral each year since 2006. Golla has been and currently serves as its Treasurer. Mr. Services. She is a frequent lecturer a frequent presenter on topics related Wagner is a former board member of to other attorneys on various topics, to personal injury litigation at various Milwaukee World Festival, Inc., and including complex lien resolution, mild seminars throughout the State including currently serves on the Board of Jewish traumatic brain injuries, and nursing on subrogation and ERISA, default Family Services and also the Board home neglect and abuse. judgment, UM and UIM,governmental of Directors of Safe & Sound, Inc., a immunity, and the use of"Black Box" non-profit organization committed to and cell phone evidence at trial. reducing violent crime in communities; he has joined the Board of Directors of Discovery World in Milwaukee, and also the Neuroscience Center Advisory Board of the Medical College of Wisconsin.

26 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Officers for 2015

1 Heath P. Straha, Secretary Edward E. Robinson,Treasurer Christopher D.Stombaugh, Heath Straka is a partner at Gingras, Edward E. Robinson is a Partner at Past-President Gates &C Luebke. His practice focuses on Cannon & Dunphy, S.C. in Brookfield. Christopher Stombaugh concentrates personal injury, medical malpractice, bad He graduated, magna cum laude, from his practice in the areas of personal injury, faith insurance claims and also complex Marquette University in 1991, with a wrongful death, product liability, and litigation and class actions involving wage double major in History and English. stray voltage damage to dairy cattle. He and hour violations. Unable to find gainful employment read received his B.A. from the University Heath received his law degree from ing poetry and historical biographies all of Wisconsin- Platteville and his J.D., the UW Law School in 2000. He has liti day in coffee shops, he decided to attend with honors, from Drake University Law gation experience in the State and Federal law school. Ed received his J.D., cum School. He is a member of the Wisconsin, Courts of Wisconsin and has practiced laude, from the University of Wisconsin Iowa, and Minnesota bar associations. in the successful resolution of numerous Law School in 1995, where he was a Chris began his pracrice in Milwaukee Civil Rights and Personal Injury cases. member of the Law Review, and a Malt & with Kasdorf, Lewis & Swietlik, S.C. and Heath has succeiisiully argued two cases Barley editor (yes, rhere was such a posi represented insurance companies and in front of the Wisconsin Supreme Court, tion). Since graduating from law school, rhe firm's large institutional clients. He both involving medical malpractice; Otto Ed has been very active in The Wisconsin returned home to Southwest Wisconsin V. PIC and Bubb v. Brushy, et. al. Association for Justice. He previously and practiced at Kopp, McKichan, As a member of the Wisconsin served on the Amicus Curiae Commit Ceyer, Skemp & Stombaugh, LLP in Association for Justice, Heath serves as a tee, where he authored and co-authored Platteville, Wisconsin in 1995, and member of the Board of Directors and the numerous briefs to the Wisconsin Court became a partner in the firm in 1998. Program Committee and is a past chair of of Appeals and Wisconsin Supreme In those 15 years, his practice became rhe New Lawyers Section. Heath is also Court advocating on behalf of WAJ. He devoted to his true passions in rhe law a member of the State Bar of Wisconsin, has authored and coauthored numerous — the service of injured rri-srare families Dane County Bar Association and Ameri articles published in The Verdict, and con and of farm families affiicred by stray can Association for Justice. tinues to serve on its editorial board. He voltage. He joined the Platteville office of Heath is fluent in Spanish and vol has been a frequenr speaker at WAJ semi Laufenberg, Stombaugh & Jassak, S.C. unteers with the Dane County bar for nars, and since 2008, he has presented the in 2010 and in 2013 became a partner non-English speaking legal services. He annual Torts Update at the WAJ Summer in the national practice of The Keenan also volunteers in the community. He Seminar, much to his family's dismay. He Law Firm in Atlanta, Georgia. He and is the President of the Patriots Youth has been a member of the Association's his family srill live in their home town Hockey Association; is a Board Mem Board of Directors since 2009. Since of Platteville. He has been a member of ber with Madison Festivals, Inc. (which 2009, he has also been recognized annu the Board of Directors of the Wisconsin runs Taste of Madison, The Madison ally as a Wisconsin Super Lawyer™, Association for Justice since 1997, and he Marathon and Rliythm & Booms); and and has also been chosen annually since is also a member of the Iowa Association coaches for a traveling soccer club. Heath 2011 for inclusion in Best Lawyers'. In for Jusrice and the American Association is married with three children. 2014, he was privileged to be seleaed for for Justice. He graduated from Cerry membership in the Wisconsin chapter of Spence's Trial Lawyers College (TLC)in the American Board of Trial Advocates 2007 and became a member ofTLC's (ABOTA). Ed is a long-time resident of teaching faculty in 2013. In addition to Oconomowoc, where he resides with his maintaining his active trial practice, he wife Lee Ann (who he is proud to point regularly teaches trial advocacy across the out is a public school teacher), and his country wirh his law partner Don Keenan two children, Connor and Keeley. and with trial consulrant David Ball.

Wisconsin Association for Justice TheV^iCT Paralegal Resource

« • •

Drafting Discovery and Responses:

The Paralegal's Role Tea B. Norfolk

I. Introduction The rules governing interrogatories, client was injured by a machine that cannot Whether you have been drafting dis Wis. Stat. § 804.08 or Fed. R Civ. P. Rule be moved off the premises and sent to your covery requests and responses for thirty 33, and requests for production of docu office, an appointment must be made noti years or whether you are about to embark ments, Wis. Stat. § 804.09 or Fed R. Civ. fying all attorneys in the case when your upon your first discovery effort, this brief P. Rule 34, have some similarities. For attorney will arrive, who will accompany overview may serve as a handy resource or example, in Wisconsin, any party may serve the attorney, and what they will be looking refresher. This article describes Wisconsin them on any other party; each item must at. This method can also be used for dis law and notes the analogous Federal Rule be answered separately and fully in writ covering electronically stored information. of Civil Procedure. Note, however, that ing under oath; the reasons for objections For example, if the other party has extensive the Wisconsin statutes are not precisely the must be stated; the answers must be signed electronic files that are stored in a unique same as the Federal Rules, so if your case is by the person making them; and objec database that was created specifically for venued in federal court, look at the specific tions must be signed by the attorney. When that company, you may request to enter the language of the Federal Rule. receiving discovery responses from the other premises to inspect that database. Additionally, each attorney and law party(ies), make sure the responses conform Requests for admission are governed firm may have practices that differ from to these rules. by Wis. Stat. § 894.11 or Fed. R. Civ. P. what is printed in this article. When in Additionally, answets and objections Rule 36. These are a somewhat underuti doubt, follow the practices at your law firm. must be served within 30 days after service lized tool. While parties may often deliver or 45 days after service of the summons vague responses with boilerplate objections II. Drafting Discovery Requests and complaint. When sending discovery in response to interrogatories and requests When drafting discovery requests, it is requests, tickle on your calendar when for production of documents, requests for important to familiarize yourself with the responses are due from opposing counsel. admission require a specific answer usually pertinent statutes to the pertinent jurisdic Attorneys may agree to extend discovery of the "yes" or "no" variety. In Wisconsin, tion. In Wisconsin, look to Wis. Stat. § deadlines for one another; having these the party must specifically admit or deny 804.01, which governs discovery in general. deadlines on your calendar helps keep your the request or set forth in detail the reasons The analogous federal rule is Rule 26 of the case on track. Any deadline extensions it cannot admit or deny the request. The Federal Rules of Civil Procedure. should be entered on the calendar as well. party may not give lack of information as a After reviewing at the statutes, look at Requests for production of documents reason unless a reasonable inquiry has been the local rules pertinent to your case. For must describe with reasonable particularity conduaed. For example, if the buildings example, in Milwaukee County, Local Rule each item or category ofitems requested. maintenance technician should have been 3.20 limits the number of interrogatories: For example, it is not sufficient to state, on the premises at the time of the accident no party may serve more than a total of 35 "Please produce all brochures produced and the person answering the request does interrogatories in any one case; each sub- by your company." Instead, narrow the not know whether the maintenance tech part is counted as one interrogatory; and request to the types of brochures you are nician was actually there at the time, the certain categories of information do not seeking that are pertinent to your case party must find out this information before count toward that number. Make sure when and fall within a particular timeframe. For answering. If the maintenance technician you are drafting interrogatories that they example, if your client was injured in 2014 has left the country and is nowhere to be conform to the local rules, if any, where by a shovel with a defective handle that found, the party must make a reasonable your case is venued. In addition, check was manufactured in 2012 by a company inquiry into the maintenance technicians whether the court has set forth any addi that also makes lunch boxes, the request whereabouts and, if unable to find the tional requirements pertaining to discovery. should state that the plaintiff seeks sales and maintenance technician, then respond There are, generally, four forms of dis marketing materials for the model number not only that the party does not know covery: shovel that were produced in 2011 to the the answer, but also what was done in an • Interrogatories present, or some other time frame specified attempt to find out the answer. If a request • Requests for Production by the attorney handling the case. The risk is not answered, it is considered admitted; of Documents of making a request that does not describe accordingly, pay particularly close attention • Requests for Admissions the documents with reasonable particularity to deadlines for requests for admissions. • Depositions is that you may end up with either nothing Depositions are governed by Wis. Each of these forms may be sent at or with hundteds of thousands of docu Stats. §§ 804.03, 804.05, 804.06, and any time after the commencement of the ments that are irrelevant. 804.07 or by Fed. R. Civ. P. Rule 30. action. Some attorneys send interrogatories, Wisconsin Statute § 804.09 also gov Importantly, Fed. R. Civ. P. 30 requires requests for production of documents, and/ erns entry upon land for inspection and the attorney to store the sealed deposi or notices for deposition along with service other purposes. When making a request for tion under "conditions that will protect of the summons and complaint. Oth entry upon land, the request must specify it against loss, destruction, tampering, or ers prefer to send discovery requests after a reasonable time, place, and manner of deterioration." Best practice is to not open receiving the answer. making the inspeaion. For example, if your the sealed deposition and instead to acquire

28 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG an additional copy that may be used in the date your responses are due. Your client will of entry and exit. Additionally, when office. need to review the responses and sign them, producing documents, make sure multiple- In Wisconsin, Wis. Stat. § 804.03 gov so you want to get the discovery responses page dociunents contain all pages of that erns persons before whom depositions may drafted as soon as possible to allow time for document. If the accident report skips from be taken. In the United States, that person mailing. Typically, my office prepares most page 2 to page 4, make sure to account for must be an officer authorized to administer of the responses from the information we page 3, i.e. "our office never received page oaths or a person appointed by the court. have in the client's file, then we send the 3." Finally, if the documents sought do not The court reporter usually is authorized to interrogatories and / or requests for produc exist, objea and state that the documents serve this role. tion of documents to the client, specifying do not exist. For example, if the defendant Wis. Stat. § 804.05 governs noticing which numbers we need the client to seeks employment records from the shoe depositions. Any party may take the deposi answer and asking the client to review the store, but your client has never worked at a tion of any person, and the attendance of other answers. Upon receipt of the cli shoe store. witnesses may he compelled. A deposition ent's responses, we put their answers in the Finally, confidentiality is key to your notice must state the time and place for proper format and send them back to the role when responding to discovery requests. taking the deposition and the name and client to review and sign. All of this takes Your client's file will contain some fascinat address of each person being examined, or time. Allow sufficient time accordingly. ing information, especially medical records. a reasonable description, such as the cor When drafting responses, keep stan Maybe you will learn that your client is porate officer most knowledgeable about a dard objections handy. Some attorneys in alcohol treatment or has been previ particular aspect of the case. Additionally, prefer to object to each question so as to ously gored by a bull. Do not talk about it. if the attorney wants the deponent to bring preserve those objections; others prefer to You cannot talk about it at home, to your any materials to the deposition, attach a let the easy ones go and to only object to friends, or post it on Facebook or other designation of the materials to be produced those deemed important enough to register social media. You may, however, discuss it at deposition. an objection. In either case, use objections with your attorney. Always keep informa Wis. Stat. § 804.06 governs deposi that are pertinent to the request. Some tion about your clients inside the office. tions upon written questions. These are more commonly used objections include: When in doubt, err on the side of caution. rarely used. If, however, this type of deposi "not reasonably calculated to lead to the dis tion is needed in your case, read this statute. covery of admissible evidence," "vague and Tea Norfolk is a personal injury attor Wis. Stat. § 804.07 governs the use overbroad," "relevance,"' and "seeks infor ney advocating on the behalfofplaintiffi. She of depositions in court proceedings. Any mation that is better suited to deposition." earned herJuris Doctoratefrom Marquette deposition may be used by any party for Most questions require a response after University Law School, graduating cum laude any purpose. The substitution of a party the objeaion. However, some objeaions, with a certificate in litigation. does not affea the right to use depositions such as attorney work product or privi previously taken. For example, if a party leged communications, require you not to (Endnotes) was dismissed, that party's deposition may answer the question; answering will waive 1 See Wis. Stat. §§ 904.01. 904.02, and still be used at trial. If only part of the the objeaion.^ If privileged or proteaed 904.03 or Fed R. Evid. 401, 402, and deposition is being used, the adverse party information is inadvertently disclosed, the 403. may require the introduction of another privilege may not be waived if all of the 2 See Wis. Stat. §§ 905.01 and 905.03 or part. When assembling the trial hook for following apply: (1) the disclosure was inad Fed. R Evid. 501 and 502. your attorney, make sure to include the vertent; (2) the holder of the privilege or 3 See Fed. R Proc. 26(b)(5)(B). entire deposition and then flag and high protection took reasonable steps to prevent light the portions to be used. The attorney the disclosure; and (3) the holder promptly should be aware of the other parts of the took reasonable steps to rectify the error, 2015 Paralegal Section Chair deposition that opposing counsel may seek including promptly notifying the opposing to introduce. Finally, any errors or irregular party of the inadvertent disclosure.' ities are waived unless a motion to suppress Look out for unreasonable requests. is made with reasonable promptness. When For example, if your client fractured an depositions come in, check them for any ankle in an auto collision, it is likely unrea irregularities, such as missing pages, so sonable for the defendant to request 20 those can be dealt with immediately. years of medical records. If, however, your client has low back pain, the defense may in. Drafting Discovery Responses be entitled to look at medical records that Sara Sweda, a native of Freedom, The first thing you want to find out predate the incident. Consider having the WI, received her bachelor's degree when drafting discovery responses is: When request limited to five or ten years, however, from the University of Wisconsin is it due? Other important considerations: rather than the full 20. Flag these types of — Oshkosh in May, 2005. Upon keep your objections handy; look for unrea unreasonable requests, and bring them to graduating, she moved to Milwaukee, and immediately began work at sonable requests; some information requires the attention of the attorney. Mishlove & Stuckert, LLC as an you not to produce it; and remember con When producing documents, iden office administrator and client fidentiality. tify everyone in the chain of custody. For services specialist. Over the past 9 In determining when discovery example, if your client brings in the bumper years, she has managed the overall responses are due, the document itself may from their car, lock it up in the evidence operations of the office and currently state a deadline. If none is given, look at room and keep a log of every person who serves as a litigation specialist and the state or federal statute, the local rules, has access to the key and who has entered senior paralegal. and the scheduling order to determine the the evidence room with the date and time

Wisconsin Association for Justice The\^ Trial Lawyer of the Year Kevin Lonergan Awarded the Robert L. Habush Trial Lawyer of the Year

Kevin Lonergan had an outstanding ance companies tried to deny coverage to the decision of Kristen and Emily to pursue professional year in 2014. But in parents of their 18-year old son who was their own legal careers as well as more than what may have been a professional killed in an accident. a dozen other future latvyers. and personal benchmark, it was being "Even as a boy 1 loved to debate "Kevin is the epitome of why legal nominated and presented the Robert L. issues," said the Appleton lawyer. "But I advocacy matters," said, Chris Stombaugh, Habush Trial Lawyer of the Year Award by always argued from a positive perspective the Immediate Past-President of WAJ."He his daughters, and fellow attorneys, Kris- and that has carried over into my career. We fights for fairness in the courtroom and ten and Emily Lonergan, that made it so are here to fight for our clients when they then volunteers even more hours helping memorable. need us most." Lonergan says trial work has young people find their career path. As an "As proud as 1 was to be named been especially rewarding because he's had organization, we could not have a better Trial Lawyer of the Year," said Lonergan, the chance to represent people who have, role model than Kevin Lonergan." "when Chris (Stombaugh) introduced "felt the effects of prejudice, been beaten The award is inscribed with following my daughters I was taken aback because I down in life, and then had the chance to listing of Kevin's achievements: "For his wasn't expecting it. What was already an overcome those obstacles." compassionate commitment to advocatingfor emotional moment became even more so as As Kristen and Emily explained, "... injured consumers, earningjustice for clients they made the introduction. It's a night I what mattered most to Kevin was a person at trial and before the Wisconsin Supreme will never forget." who was rough around the edges and in a Court; andfor his years ofdedication to The nominating letter the daughters difficult spot...came for help. He was able to inspiringfuture generations oftrial lawyers, wrote spoke volumes about a special level help him achievejustice through the twelve coaching high school mock trial and serving of respect for their father Kevin, as a fellow people who believed in him and recognized his as Chair ofthe 2014 National High School trial lawyer. pain and struggles. {He} always taught us... Mock Trial Tournament." "... one good verdict in a year, one suc "This is why we do what we do!" What a great A graduate of the US Air Force Acad cessful argument before the Wisconsin Supreme examplefor us as young latvyers, andfor our emy, Lonergan attended the UW Law Court, or one act ofservice to ourprofession... entire community oftrial lawyers." School. He started practicing law as an would make usfeel like a champion ofjus Lonergan was also part of a legal team Assistant District Attorney in Eau Claire tice... but to achieve all three in one year... that worked tirelessly for years to ultimately County, and was briefly in private practice that is something great." receive a favorable, unanimous decision in LaCrosse before joining Herling Clark. Indeed. from the Wisconsin Supreme Court. Lonergan has been named a "Super Law One of Lonergan's proudest accom The issue before the high court involved yer" every year the award has been given. plishments of the year came this past whether the short-lived Truth-in-Auto- He is a past president of the Wisconsin March. Lonergan's client was horribly mobile insurance law intended for injured Association for Justice and for the last two injured in a car accident while he was out people to be able to access the uninsured years served as the Chair for the State Bar's of prison on parole. However, his client and underinsured motorists benefits paid Public Education Committee. Lonergan had technically violated parole by being in for by the injured party. Lonergan helped was also the 2014 Chair for the Mock Trial the accident-vehicle and, as a result, was to build and develop a dynamic theory in National Competition. sent back to prison. "The accident wasn't favor of recovery and he successfully argued The Robert L. Habush Trial Lawyer his fault, he was an invited passenger, he on behalf of WAJ before the Supreme OfThe Year award was created in 2000 to wouldn't get the medical care he needed Court. recognize a Wisconsin trial lawyer who has behind bars, and still the system insisted on Away from the courtroom, Loner made significant contributions to the trail locking him up," said Lonergan. gan served for 13 years as the Mock Trial bar by handling a case involving significant Even before an overwhelmingly favor Attorney Coach at Xavier High School in change in the law, a precedent setting suit, able jury verdict came back, the client Appleton. Under his leadership, rhe Xavier or donating time to a project involving hugged Lonergan and told him,"anytime, team finished in the top five statewide 11 injured consumers. anywhere, for any reason, if you need me, years in a row and was state champion three Nominations for the 2015 Robert L. rU be there." In that moment, Lonergan times in his last five years as coach. "Giving Habush Trial Lawyer of the Year Award was reminded why he chose to practice law young people the skills they need to speak will be accepted at the WAJ office until and why trial lawyers are so vital to our effectively in public is empowering," said beginning next Spring. Look for nomina legal system. Lonergan also won another Lonergan. A father of four, Lonergan says tion information in the Spring issue of The significant jury trial in a case where insur- the mock trial competitions played a role in Verdict.

30 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG 2015 Winter Seminar Photos

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Wisconsin Association for Justice The\^ 32 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Wisconsin Association for Justice Tile's^ Wisconsin CivilJustice Education Foimdation Thanks to those whose investment makes a difference... *designates new hinder or additional funding contributed in 2013

5.?, \ Benefactor " Robert L. Habush

Diamond ($2S.000) Patrick O.Dunphy James J. Murphy Daniel A. Rottier

Platinum ($1S.000 to $24.999) Herrling Clark Law Firm,Ltd. (Michael S. Siddall,* Kevin Lonergan,John D. Claypool, Richard T.Elrod)

Gold (SS.OOO to $14999) Mark L. Thomsen R George Burnett M. Angela Dentice Gray & End, LLP Aiken & Scoptur, S.C. Slattery & Lee, Ltd. ClifFord & Raihala, S.C. Thomas K. Guelzow Premier Settlement Services, Inc./ TheTechmeier Law Firm, S.C. Charles J. Derenne Kersten & McKinnon, S.C. Thomas M. Fitzpatrick Jay A. Urban Bruce and Bette Bachhuber Peterson, Berk & Cross George W. Curtis Jason F. Abraham* Lynn and Mary Jane Laufenberg Jeffrey M. Goldberg* Domnitz, Mawicke & Goisman, S.C.

Silver(SLSOO to S4.999) Gary R. Kuphall Laurence J. Fehring Jill A.Rakauski Donald H.Slavik D.James Weis MichaelJ.Jassak Gruber Law Offices Christopher D. William R.Wilde Hannula & Halom Stombaugh John D. Murray Ralph J. Tease Jr. James R.Jansen John F. McNally Phillip M.Steans Mark S. Young

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34 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Welcome Our New Executive Director, Bryan Roessler

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Bryan Roessler, a veteran non-profit association both part of that effort and this team." manager has been named as the new Executive Director Roessler's expertise is in helping organizations maxi of the Wisconsin Association for Justice (WAJ). mize resources, promoting innovative solutions in 21""^ Roessler, from Sun Prairie, has more than 20 years century business environments, and integrating an asso of association management experience including lengthy ciation's purpose with the community it serves. service with The Wisconsin Safety Council and MRA — "Bryan brings impressive skills to our organization," Association Management Solutions in Waukesha. said Ann Jacobs, the President ofWAJ, "and we look "For nearly sixty years the members of the Wisconsin forward to continuing to expand our mission even more Association for Justice have been fighting for the rights under his leadership." of all Wisconsinites," said Roessler, "and I'm proud to be Now you can search every ListServer message at WAJ with just one click! TRIALSMITH Plus, we'll tell you if any of our 350,000 depositions or 1.2 Million other items match your search. Membership on WAJ ListServer required. Members Only.

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36 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Employment/Civil Rights

Key Differences Between Federal and State Law Personal Injury Litigation Against Public Employees Paul A. Kinne

INTRODUCTION was a clear trend in the law establishing a of the public official discharging his or her Public employees at the state and violatioff. It is not necessary for a plaintiff official duties." local level may be held responsible for tort to point to a case directly on point; how It is a different story for liability claims. However, plaintiffs often must ever, prior case law must put the defendant under sec. 1983. In Payne v. Churchich^^ work through an obstacle of time limita on notice that his or her conduct was a the Seventh Circuit Court of Appeals tions, caps on damages and in some cases, violation of the right in a particularized (as succinctly spelled out the necessary state- immunity. In the right circumstances, opposed to general or abstract) sense. If of-mind elements in any sec. 1983 claim: public officials can be found liable for no constitutional issue is at stake, and if violations of both state and federal law. the contours of the right were not clearly The Supreme court distinguished Below, the reader will find a discussion established, then the public official enjoys among three levels of fault of some of the key differences in public immunity.' — negligence, deliberate indif official liability under state and federal law, The State of Wisconsin is absolutely ference and conduct that shocks with a focus on public employee liability immune from suit, unless that immunity the conscience. It stated that under 42 U.S.C. § 1983. is abridged by state law or the U.S. Consti "liability for negligently inflicted tution itself. Local governmental units, as harm is categorically beneath I. DIFFERENCES IN THE IMMU opposed to their employees, do not enjoy the threshold of constitutional NITY GRANTED TO PUBLIC qualified immunity. due process," .. . that deliberate EMPLOYEES The Federal Torts Claim Act'^ applies indifference is the standard to Under Wisconsin law, both state to federal employee tort liability; however, employ "when actual delibera and local government employees may be this article will focus upon tort liability for tion is practical" .. . and that "a protected from liability if their conduct state and local public actors. much higher standard of fault was an exercise of a "legislative," "quasi- Although not immunity, Wis. Stats. than deliberate indifference has legislative," "judicial" or "quasi-judicial" § 893.80 and 893.82, Stats., offer public to be shown for officer liability in function. If the act fails within this employees another form of protection: a a prison riot" or in a high-speed category, the employee may be granted very short statute of limitations. For torts chase. That higher standard is immunity by Wis. Stats. §§ 893.80 and against local government officials other "shocks the conscience."" 893.82. There is no immunity, however, than medical negligence claims, the plain Additionally, the sec. 1983 plaintiff for liability associated with the perfor tiff must provide the governmental entity must prove that the individual defendant mance of an act imposed by law.' The with notice of the circumstances of the personally caused or acted in the constitu immunity afforded by Wis. Stats. §§ claim within 120 days of the event giving tional deprivation: principles of respondeat rise to the claim.'' Likewise, for claims 893.80 and 893.82 can be altered or superior do not apply in sec. 1983 cases. eliminated by other statutes setting forth against state employees, the plaintiff must give the Attorney General s office notice Furthermore, the plaintiff must prove that different standards.^ the defendant was acting under color of With respect to liability under sec. within 120 days of the act, with medical state law at the time of the violation.''' 1983, a different immunity standard negligence claims again being the excep (qualified immunity) is applied. Govern tion.® III. DIFFERENCES WITH RESPECT mental actors performing discretionary Section 1983 allows much more time TO RELIEF AVAILABLE functions are entitled to qualified immu to bring a claim. The statute of limitations For claims against local governments nity from suits for damages insofar as their for sec. 1983 claims is six years.' More and their employees, under state law, the conduct does not violate clearly established over, the mandates and limits of Wis. Stat. recovery is generally limited to $50,000." statutory or constitutional rights of which §§ 893.80 and 893.82 do not apply to sec. For claims against state employees, the a reasonable person would have known.' 1983 claims.'" general limit is $250,000.'" Furthermore, In order to overcome qualified immu neither statute authorizes awards of puni nity, the plaintiff must allege a violation 11. DIFFERENCES WITH RESPECT tive damages, nor does either statute allow of the plaintiffs constitutional rights and TO GENERAL ELEMENTS OF for the prevailing party to recover attorney the plaintiff must prove that the contours PROOF of the right were clearly established on Under state law, any personal injury fees and costs. A broad recovery is allowed in sec. the date of the violation. To determine claim that can be brought against a non- 1983 claims. A plaintiff can recover emo whether a right is clearly established, a public person or entity can also be brought tional distress damages, special damages court will first look to controlling prec against a public official. If not immune, a and loss of earning capacity damages.'^ edent, and if no such precedent can be state or local government actor can be sued For claims against individuals (as opposed found, courts will then examine all rel for his or her negligent, reckless or inten to public entities), the plaintiff can also tional conduct committed in the course evant case law to discover whether there recover punitive damages.'® A prevail-

Wisconsln Association for Justice TheV^ ing plaintiff can furthermore recover his not sue a public official for a negligent Id. or her attorney fees and costs; however, violation of a constitutional right, whereas Id. imprisoned plaintiffs face more obstacles negligence claims can be litigated under 28 U.S.C. § 1346. because of the Prison Litigation Reform state law. State law claims, however, are Wis. Stat. § 893.80. Act." There are no statutory limits on the subject to severe limitations on recovery. Wis. Stat. § 893.82. amount of the recovery in a sec. 1983 case. Section 1983 claims are not limited by Hemburger v. Bitzer, 216 Wis.2d 509 Although only indirectly related to statute and allows for the recovery of puni (1998). damages, Wis. Stat. § 895.46 bears men tive damages and attorney fees in most ) Felderv. Casey, 487 U.S. 131 (1988). tioning. Broadly speaking, sec. 895.46 cases. In sum, sec. 1983 claims provide 1 Wis. Stats. §§ 893.80, 893.82. requires the government to indemnify greater remedies and fewer procedure . 161 F.3d 1030 (7th Cir. 2014). an individual public employee defendant obstacles, but only state law allows for the I Payne, 161 F.3d at 1040 (citations omit for the damages arising out of his or her recovery of damages flowing from a public ted). unlawful conduct as long as the public official's negligence. f Id., at 1039. employee was acting within the scope of i Wis. Stat. § 893.80(4). employment. PaulA. Kinne is a partner at Gingras, 1 Wis. Stat. § 893.82(4). Gates & Luehke. He received his B.A. and ' Fleming V. County ofKane, 898 F.2d 553 IV, CONCLUSION J.D.from UW-Madison,graduating fr om (7th Cir. 1990), Carey v. Piphus, 98 S.Ct. Public employees enjoy strong pro latu school in 1993. His practice includes 1042 (1978). tections from liability under both state employment law, civil rights, professional I Daniek v. Pipefitters Assoc., 945 F.2d 906 and federal law. Public employees can be malpractice, personal injury, products (7th Cir. 1991) shielded from liability by claims of immu liability, and lender liability. His peers have . 1942 U.S.C. § 1997e. See, Mary Beth nity, which is not absolute under either recognized him as a "Super Lawyer"in G. V. City ofChicago, ll'i F.2d 1263 (7th state or federal law. While state law gener Cir. 1984). ally requires the filing of a notice of claim 2009, 2010, 2011, 2012 and 2013. against public officials within 120 days, for (Endnotes) claims under sec. 1983 a notice of claim 1 Legue V. City ofRacine, 2014 WI 92. is not necessary. Plaintiffs litigating a sec. 2 Id. 1983 claim operate under a six year statute 3 Abbot V. Sangamon County, 705 F.3d 706 of limitations. A sec. 1983 plaintiff can (7th Cir. 2013).

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38 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Farming Cases Can Help Learn from your office, At Risk Children home or hotel room with

The National Farm Medicine Center and SeminarWeb Live! the National Childrens Center for Rural and Agricultural Health and Safe are our asking for Co-sponsored by the Wisconsin Association for Justice, Seminar our help. Web Live! is a nationai series of live programs that brings recognized The two groups are compiling a national national speakers to you. data base on injuries to children in rural farm communities. The focus will be on the chil Ail you need is a PC or Mac computer with high-speed Internet dren hurt in non-working farm environments. access and a phone line for the audio portion of the program. Simple Surprisingly, its children under 10 years of age instructions with a link to the program will be sent when you register. who account for more than half of non-fatal Registration fees vary by program and program registration closes farm injuries. Its not uncommon for children 60 minutes before the program's start. Several programs are also to be hurt in farm accidents because parents available On Demand so now it's even easier to earn your CLE credit from your computer. For a complete listing of live and on demand often think they "can keep an eye on" their programs, visit www.wisjustice.org/SeminarWeb. children even while the adults are hard at work. "This is our chance to make a difference Upcoming programs include: in a national research project," said Christine Bremer Muggli. The former WAJ president has Preparing to Cross-Examine the Defense been asked by the group to gather case histories Collision Reconstructionist as well as anecdotal information on farm acci January 20, 2:00-3:15pm dents. Medical Device Mass Tort Update: The National Farm Medicine Center, Inferior Vena Cava (IVC) Filters which is located in Marshfield, will use the January 22, 2:00-3:15pm information to create the first-ever data base of detailed accounts of childrens injuries or deaths Veterans Benefits and the Disability on farms. The goal is to create best practice Compensation Process standards which will protect farm children January 27,2:00-3:15pm from any injuries. Forensic Toxicology and Service of Alcohol Researchers would like to interview law January 28, 2:00-3:15pm yers who have been involved in the cases as Ethics for Litigation Financing well as engineers or other experts who may in the 21st Century have been part of a legal team. Within limited February 5, 2:00-3:15pm circumstances, the researchers would like to see work product concerning the original accident The Federal Torts Claims Act: How to Avoid investigation to document what happened and Malpractice when Suing the United States February 10, 2:00-3:15pm to better understand context. "Its important to understand a clients Mild Traumatic Brain Injury in Motor Vehicle confidentiality will never be compromised Crash Cases: How to Identify and Prove by cooperating with this study," said Mug This to Adjusters and Juries gli. "We re being asked to step up for our kids February 12, 2:00-3:15pm and create the kind of program that will ben Special Considerations in Handling efit countless families here in Wisconsin and Motorcycle Cases around the nation." February 17, 2:00-3:15pm You can help by stepping forward with any How to Build Up Your Damages information you may have about a farm acci February 25, 2:00-3:15pm dent involving a child. It can be a current or past case, or even if you didn't take the case the information can still be useful. For a complete list of programs and registration links visit; For more information, call Christine www.wisjustlce.org/SeminarWeb Bremer Muggli at (877) 949-3200.

Wisconsin Association for Justice The\^RDiCT 39 Take your career to new heights. Join the American Association for Justice (formerly ATLA®)today!

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40 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG AMERICAN Federal Legislative Update ASSOCIATION Public Affairs Department 111 6th Street, NW,Ste 200 Washington,D.C. 20001 JUSTICE 800-424-2725 or 202-965-3500

Federal Legislative Report government through September 2015, NTSB Investigation Procedures for Avia Winter 2015 Congress reapproved the Franken amend tion Accidents In November, Congress returned to ment to limit the use of forced arbitration The National Transportation Safety address various outstanding legislative in defense contracts. This amendment, Board (NTSB) began rulemaking in Octo agenda items prior to concluding the 113^ originally introduced by Sen. A1 Fran ber to review its regulations addressing Congress. After several weeks of intense ken (D-MN) and first passed in 2010, investigation procedures following avia negotiations, Congress passed legislation significantly limits the ability of defense tion accidents. Currently, while the Board to fund the government until September contractors to require their employees to regularly invites aircraft manufacturers 2015. This funding will ensure that criti submit to forced arbitration for employ to participate in examinations of wreck cal government programs continue and ment or civil rights related issues. As a age and other evidence, crash victims and another devastating government shut result, defense contractors will remain their representative may only participate down will be avoided. Additionally, the unable to force their employees into arbi at the discretion of the investigator-in- House passed a bipartisan $41.6 billion tax tration in many circumstances for at least charge. Moreover, the NTSB is often slow extenders package that is now being con another year. More broadly, the Franken to release information related to the crash sidered by the Senate. AAJ team worked amendment has also served to buttress which has a detrimental effect on victims' diligently with congressional leadership our many other avenues of arbitration ability to access the civil justice system to help ensure that neither of these pieces advocacy, in particular because it has had before the statute of limitations on their of legislation contained certain danger bipartisan support. AAJ will continue to claim has run. ous provisions that would have interfered build on the amendment s passage and In responding to NTSB's review, with rulemakings to enhance remedies and work toward the monumental task of end AAJ urged the Board to consider allow impeded the ability to hold wrongdoers ing forced arbitration. ing a victim representative to participate accountable for negligence. in the investigation as an observer, and As the 113^ Congress wraps up all FMCSA Releases Advanced Notice of employing confidentiality agreements to unfinished legislative business, we now Rulemaking on Insurance Requirements protect against dissemination of informa turn our focus to the 114* Congress. We for Motor Carriers tion before an investigation is complete. expect the next Congress to present new In November, the Federal Motor AAJ will continue tracking the Board's challenges and a renewed focus on attempts Carrier Safety Administration (FMCSA) review as it moves through the rulemaking to dismantle the civil justice system and initiated an Advanced Notice of Proposed process. deny Americans access to the courts. AAJ Rulemaking(ANPRM) to gather informa will continue to monitor and defend tion from concerned stakeholders as the FTC Telemarketing Sales Rule against any efforts to use legislative vehicles Agency considers formal rulemaking to AAJ filed comments with the Federal or others to infringe upon victims' rights increase minimum insurance requirements Trade Commission (FTC)in November in and deny access to civil justice. for interstate trucks and motor coaches. response to the Commission's request for The current $750,000 per incident mini input regarding the Telemarketing Sales Stability for Service Members Act mum for motor carriers has not changed Rule (TSR). While the clarification of the On December 4*, Rep. Heck (D- since 1980 when the Motor Carrier Act TSR and rules governing the Do Not Call WA)and Rep. Fincher (R-TN) introduced was passed, deregulating the industry. Registry will be helpful to prevent evasions H.R.5798, "Stability for Service Members AAJ will file comments in response of important consumer protections, AAJ Act." This bill seeks to protect members to FMCSAs request for input detailing urged the FTC to also consider expand of the uniformed services from mortgage the inadequacy of current insurance mini- ing the scope of the regulation to include foreclosures and evictions by extending mums to appropriately compensate crash specific language banning the use offorced certain protections relating to these issues victims as well as the positive impacts of arbitration clauses between consumers and afforded to them under the Servicemembers raising financial responsibilities, such as telemarketers. Civil Relief Act for one year. safer roads for all motorists. In addition, Companies that use telemarketing AAJ encourages trial lawyers to voice their to reach targeted audiences are known to Forced Arbitration: Franken Amend concerns and submit client stories that require consumers to sign away their legal ment Extended Through 2015)Limiting illustrate the need to increase insurance rights. While AAJ supports arbitration the Use ofForced Arbitration in Defense requirements. The comment period is open that is agreed upon by both parties after a Contracts until February 26, 2014. dispute arises, we highlighted the many pit As part of the recent Congressional falls offorced arbitration including upfront spending bill to fund the majority of the costs, inconvenient venues, and arbitrators

Wisconsin Association for Justice The\fe®iCT 41 that are "repeat players" with the compa nies that contract for their services. By Two — Disc DVD Set and 54-page Book eliminating forced arbitration as an avenue for companies to funnel consumer com plaints, AAJ argued that the likelihood that Wisconsin's Daubert Rule: consumers prevail in fighting fraudulent Relevancy vs. Reliability & Judicial Gatekeeping activities by telemarketers would be signifi vs. Counsel's Cross Examination cantly enhanced. A.production of the Wisconsin Associationfor Justice and Wisconsin Association of Criminal Defense Dangers Conclusion: Ptogtam Chaif: The 114^ Congress begins on January Edward J. Vopal, Habush Habush &Rottier, S.C., Green Bay 6, 2015. During the 113"^ Congress AAJ witnessed attempts at legislative reforms Wisconsin's Premier Daubert Program that threatened the nations vital health, safety, environmental and financial Don't miss this opportunity to own written materials and the two-disc protections. Ultimately, the AAJ team was DVD of WAJ and WACDL's joint seminar focusing on the Wisconsin able to fend off and defeat many of these attempts that would have not only set Legislature's adoption of Daubert evidentiary standards. dangerous precedent but also would have You will Learn: essentially closed the courthouse doors to ♦ The Daubert basics many citizens with valid legal claims. ♦ When and why to challenge an expert AAJ anticipates that during the 114"^ ^ How to prepare and defend your expert against a Congress the U.S. Chamber of Commerce Daubert challenge will continue its assault on the civil justice system through legislation that seeks to With Esteemed Faculty: shield corporations from liability, overturn ♦ Professor Daniel D. Blinka, Marquette University Law School critical environmental protections, and ♦ Daniel A. Rottier, Habush Habush & Rottier, S.C. derail regulations that would help preserve ♦ James L. SanteUe, US Attorneys Office, Eastern District the safety of all Americans. As always, AAJ ♦ Dean A. Strang, Hurley, Burish & Stanton, SC will continue to monitor any legislation ♦ Nathaniel Cade,Jr., Gonzalez Saggio & Harlan LLP and new regulatory developments as they move forward to ensure that your clients' rights are protected and no harmful mea DVD Order Form sures are enacted. NAME:. . FIItM:.

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42 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Amicus

Curiae by Lynn R Laufenherg &D.James Weis

Summary ofAcdvity Susan R. Tyndall and Peter M.Young Holding: In a 6-1 decision, the Supreme July 1, 2014 to January 1,2015 Court held that the father (Kontos) who Legue V. City ofRacine et aL provided shelter was not an "owner" under Cases Reviewed: 2 2012AP2499,2014 WI 92 the statute. The Court said,"A statutory Cases Accepted: 2 Plaintiff's attorney: Timothy S. Knurr of owner includes one who owns, harbors or Milwaukee keeps a dog.' Wis. Stat. § 174.001(5). It Supreme Court Issues: Does governmental immunity is undisputed that Kontos did not legally Decided apply when someone is injured because own the dogs and did not 'keep' them. an ofEcer proceeds against a traffic signal Additionally, we conclude that he was not Force, etaL v. American Family Mutual as authorized by Wis. Stat. § 346.03(2) a harborer as evidenced by the totality of Ins. Co., etaL, 2012AP2402, 2014 WI 82 (b), if the officer slowed the vehicle and the circumstances. He neither lived in the PlaintifPs attorneys: Joseph J. activated lights and sirens as required by same household as the dogs nor exercised Welcenbach and Jason R Oldenburg of § 346.03(3) but nonetheless arguably control over the property on which the Milwaukee violated the duty to operate the vehicle dogs were kept." The Court of Appeals Issues: 1) Can the minor children of a "with due regard under the circumstances" decision was reversed. man killed in a car accident recover for as required by § 346.03(5)? Amicus Brief written by: William C. wrongful death under Wis. Star. § 895.04 Date Issued: 7/26/14 Gleisner, III of Hartland when there is a surviving spouse, but Opinion Written by: C.J. Abrahamson that surviving spouse has been estranged Holding: In a 4-3 decision the Supreme Holman etaL v. Harvey, etaL from the decedent for over ten years, thus Court held that the immunity statute does 2012AP2552 precluding any recovery by the spouse not apply in the present case to the police Plaintiff's Attorneys: Dean Rohde and from which to set aside the children's officers violation of the duty to operate Martha Heidt, New Richmond share? the vehicle "with due regard under the Issues: Did a municipal employee exercise 2) If the statute does not allow the circumstances." "A contrary outcome "legislative, quasi-legislative, judicial or children to recover absent a recovery by would contravene Wis. Stat. § 893.80(4) quasi-judicial functions" for purposes of the surviving spouse, does the statute and 346.03(5), public policy, the rules of Wis. Stat. § 893.80(4) when he violated violate the Equal Protection Clause statutory interpretation, and case law." Wis. Stat. § 346.87, mandating safe of the United States Constitution by The trial court was decision was reversed backing, and Wis. Stat. § 346.46(1), the impermissibly diflFerentiating between and the jury verdict restored. Stop Sign Statute, requiring stopping minor dependent children by conditioning Amicus Brief written by: J. Michael and yielding the right-of-way to vehicles their recovery on the viability of the Riley of Madison approaching on a through highway? surviving spouses claim? Does the known danger exception to 3) Is there a rational basis for providing Augsburgerv. Homestead Mutual governmental immunity apply to a hazard recovery to minor children whose deceased Insurance Company, etaL, 2012AP641, created by backing a motor grader into parents surviving spouse has a viable claim 2014 WI 133 an intersection in front of an approaching and denying recovery to those whose PlaintifiPs attorneys: Joseph M.Troy vehicle? deceased parents surviving spouse does of Appleton and Susan R. Tyndall of Status: Motion to participate granted on not? Waukesha 12/5/14. Motion to dismiss the case was Date Issued: 7/22/14 Issue: Under Pawlowskiy is a father who filed on 12/23/14 so no amicus brief was Opinion Vi/ritten by: C.J. Abrahamson provided free refuge, shelter and protection filed in the case. Holding: A 4-3 decision by the Supreme for six dogs in a home he owned, occupied Court held that the estranged spouse by his daughter and her family with Court ofAppeals was not a "surviving spouse" under the no formal or informal landlord-tenant Decided Cases wrongfiil death statute to "avoid an agreement, where both agreed he had the absurd, unreasonable result contrary to the authority to make rules concerning the Dakterv. CaviUino, etaL, 2013AP1750 legislative purposes of the wrongful death dogs, a statutory owner of the dogs under (District IV Court of Appeals) 2014 WI statute. Therefore, under the unique facts Wis. Stat.§§ 174.001(5) and 174.02 App 112 of the instant case, the minor children because he "harbored" the dogs? PlaintifiPs attorney: John R. Orton of were allowed to recover..." Date Issued: 12/26/2014 Mauston Amicus Brief written by: D.James Weis, Opinion W-itten by: Justice Bradley Issues: What is the proper standard of

Wisconsin Association for Justice The\^^icr 43 care for professional truck drivers - is Holding: In light of existing precedent, Please contact the Amicus Curiae Brief it ordinary negligence or can it include the Fiezes have not shown a basis to Committee ifyou are brining an appeal, ordinary negligence where a professional conclude that the $250,000 statutory cap or know ofsomeone else brining an truck driver must use the knowledge and on damages from state employees violates appeal, involving an issue ofconcern to the skill requirements of operators in similar the state constitutions equal protection, membership. The earlier we become aware of situations? jury trial, or certain remedy clauses. pending issues, the more likely we are to exert Date Issued: 10/9/14 Amicus Brief written by: William C. a positive influence on the development of Opinion Written by: Judge Blanchard Gleisner, III of Hartland case law that may afpict all ofour practices. Holding: The Court of Appeals held that Please contact any ofthe co-chairs ofthe the trial court s use of the truck driver Court of Appeals committee or Ruth Simpson at the WAJ instruction was not prejudicial given it Pending Cases office. was done within the realm of other jury instructions that call for the "reasonable Dufour V. Dairyland et aU 2014AP157 Lynn R. Laufenberg is the senior member person standard" (District IV Court of Appeals) ofthe Milwaukee lawfi rm ofLaufenberg, Status: Petition for Review filed 11-7-14. Plaintiff's attorney: Joseph M. Mirabella Jassak &Laufenberg S.C. He is a past Amicus Brief written by: William C. of Milwaukee president ofWAJ and has been a member of Gleisner, III of Hardand and Lynn R. Issue: Whether an insurer is obligated the Board ofDirectors since 1988. He is the Laufenberg of Milwaukee to pay a seriously injured plaintiff the 2006recipient ofthe Robert L. Habush Trial property damage funds it received in Lawyer ofthe Year award. State Farm MutualAutomobile Ins. Co. subrogation from the tortfeasor's insurer tt/fii«^,2013AP2518, 20l4WIApp 115 when the plaintiff has not been made D.James Weis is a shareholder at the (District IV Court of Appeals) whole? Habush, Habush &Rattier lawfi rm and PlaintifPs attorneys: Christopher E. Status: Motion to participate granted. the manager ofthe Rhinelander, Stevens Rogers of Madison, Susan R Tyndall and Amicus brief filed on 7/29/14. Point, and Wausau offices. Mr. Weis has Jesse B. Blocher of Waukesha Amicus Briefto be written by: Jesse B. held numerous leadership roles with WAJ, Issue: Whether underinsured motorist Blocher ofWaukesha including President in 1993. In 2003, WAJ coverage in a Wisconsin automobile bestowed upon him the Robert L. Habush insurance policy provides proteaion Johnson v. Cintas Corporation No. Trial Lawyer ofthe Year award. for damages sustained as a result of the 2, 2013AP2323 (District II Court of negligence of a government employee in Appeals) excess of the $250,000 liability cap? Plaintiff's attorneys: John V. O'Connor Date Issued: 10/2/14 of Kenosha and Kent A. Tess-Mattner of Opinion Written by: Judge Blanchard Brookfield Never Stand Holding: The Court of Appeals Issue: A constitutional challenge of the concluded that the Hunts are "legally retroactive application of the interest rate Alone! entitled to recover" damages within the on offers ofjudgment after the interest meaning of Wis. Stat. § 632.32(2)(d) rate was reduced on verdicts and offers of When you utilize the and that, assuming that the definition judgment in 2011 Wisconsin Act 69 on resources of WAJ and your of underinsured motor vehicle in the December 2, 2011. fellow members, it's as if you Hunts' policy included an exclusion for Status: Motion to participate granted on are a part of a 800-member law government-owned vehicles, this exclusion 7/16/14. Amicus brief filed 8/15/14. firm. is void under Wis. Stat. § 632.32. Amicus Brief to be written by: Mark Status: Petition for Review filed on L. Thomsen & Brett A. Eckstein of ^ Listservers- collaborate 10/31/14 Brookfield wifli other members Amicus Brief written by: William C. Gleisner, III of Hardand Hoxha V. American Family Insurance ^ CLE Seminars — topics Mutual Company, 2014AP1375 tailored to plaintiff lawyers Fiez, etaL v. KeeviU 2013AP2711 Plaintiff's attorney: Thomas C. Lenz, (District IV Court of Appeals) Decision Milwaukee ^ Advocacy- Amicus Unpublished Issue: WTiether the trial court can Plaintiff's attorney: Eric A. Farnsworth of force the injured party to file a workers Committee and powerful lobbying team Madison compensation claim prior to adjudicating Issue: A constitutional challenge to the an UIM claim. state governmental cap of$250,000 based Status: Motion to participate filed ^ Research -TrialSmitb on the fact it has not been increased in 34 12/18/14. deposition bank and talented years. Amicus Briefto be written by: Jesse B. WAJ research staff. Date Issued: 10/29/14 Blocher of Waukesha Opinion Written by: Per Curium

44 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG Tort Preservation Membership

The following members/firms have contributed from Januaiy 2014 to December 2014 to the Tort Preservation Membership. As with other WAJ dues, 35% ofthe Tort Preservation Fund Membership dues are not deductible as ordinary and necessary business expense for the 2014 tax year. None ofthe contributions to the Tort Preservation Fund are deductible as charitable contributions for federal income tax purposes. Tort Fund Membership

VANGUARDS — $50,000-$75,000 Hinkfuss, Sickel, Petitjean & Wieting, Green Bay Habush Habush & Rottler, S.C., Milwaukee Lawton & Gates, Madison Lein Law Offices, Hayward DIPLOMAT— $ll,000-$20,000 Mark L. Thomsen, Brookfield Hupy & Abraham, SC, Milwaukee McCormick Law Office, Milwaukee Pitman, Kyle, Sicula & Dentice, Milwaukee Michael C. Meyer S.C., Marion O'Flaherty Heim Egan & Birnbaum Ltd, La Crosse BARRISTER'S COUNCIL — $5>000-$10,000 Pasternak & Zirgibel SC, Brookfield Domnitz & Skemp, S.C., Milwaukee Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Laufenberg, Jassak & Laufenberg, SC, Milwaukee Milwaukee Richie, Wickstrom & Wachs, LLP, Eau Claire COUNSELOR — $2,000-$5,000 Ryberg Law Firm, Eau Claire Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point Scott L. Schroeder, SC,Janesville Bremer & Trollop, S.C., Wausau Slaby, Deda, Marshall, Reinhard & Writz, LLP, Phillips Curtis Law Office, Oshkosh Stellpflug Law Office, DePere Gagliardi Law, LLP, Salem Terschan Steinle, Milwaukee Herrling Clark Law Firm, Ltd., Appleton The Cochran Firm WI, Milwaukee Murphy & Prachthauser SC, Milwaukee Welcenbach Law Office, SC, Milwaukee Novitzke Gust Sempf Whitley & Bergamanis, Amery Peterson, Berk & Cross SC,Appleton FRIENDS — $100-$500 Urban & Taylor, SC, Milwaukee Amy F. Scarr, SC, Madison Warshafsky, Rotter, TarnofF& Bloch, Milwaukee Conway, Olejniczak & Jerry, SC, Green Bay David J. Lisko, S.C., Germantown ADVOCATE — $l,000-$2,000 Godrey, Leibsle, Blackbourn & Howarth, Elkhorn Averbeck & Hammer SC, Fond du Lac Hans A. Buehler Law Office, Oconomowoc Brodd Law Firm LLC, New Auburn Harper & Peterson PLLC, Woodbury, MN Centofanti Law SC, Mequon Herrick & Hart SC, Eau Claire Clausen & Severson, Madison John Gearin, PA, Lake Elmo, MN Clifford & Raihala SC, Madison John O'Connor Law Office, Kenosha Edward E. Robinson, Brookfield LaBell, Oobroski & Morgan LLP, Milwaukee Gendlin, Liverman & Rymer SC, Milwaukee Lucareli & Erickson Law Office, Eagle River Gingras, Gates & Luebke, S.C., Madison Lutz, Burnett, McDermott,Jahn & King, Chilton Greg Wright Law Offices, SC, Montello Murphy & Pressentin, LLC, Madison Guelzow Law Office, Eau Claire Neuberger, Wakeman, Lorenz, Griggs & Sweet, Watertown Hanaway & Ross SC, Green Bay Rapoport Law Offices PC, Chicago Hertel Law SC, Eau Claire Samster, Konkel & Safran SC, Milwaukee Hetzel & Nelson LLC,West Bend Toney Law Offices, S.C., Madison

(Copy or Detach and Mail)

WISCONSIN ASSOCIATION FOR JUSTICE TORT PRESERVATION MEMBERSHIP Yes, I want to support the legislative efforts of WAJ. Enclosed is my check in the amount of$ .

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Please check payable to WAJ Tort Preservation Fund and mail to: Wisconsin Association for Justice, 44 East MiflBin Street, Suite 402, Madison, WI 53703

Wisconsin Association for Justice Tlie\^Ri>iCT 45 Recent Verdicts and Settlements

WAJ s Verdict and Setdements Database contains verdia and settlement reports submitted by our members. Each issue of The Verdict, the editorial board wiU feature highlights of the cases submitted. To view the entire submission, go to wv.'w.wisius- tice.org and click on the "members" section for Verdicts and Settlement. Additional information, including the amount received is listed in the database. The information reported here is for informational value only irrespective of post-trial activity. This is a self-reporting service. WAJ has no means to independently investigate all of the information provided and cannot accept responsibility for its accuracy. Individuals needing verified information should check with appropriate court or counsel involved in the particular case.

Semi-truck - Car Crash - Mediation Motorcycle - Truck Crash - Voc/Econ: Michelle Albers, Vocational Settlement Diagnostics, Phoenix, AZ On March 2, 2012, Mr. Steven Mr. Evan Bashirian, 41 years old, was The defense retained the following experts: Reimer was driving on a country highway operating his motorcycle westbound on Liability: James Whelan, engineering, during wintry conditions. When rounding Highway 18 near Helenville, Wisconsin, Chicago, IL a turn, Mr. Reimer's car collided with a Shortly before the intersection with Voc/Econ: Jan Klosterman, St. Louis, semi-tractor trailer driven by Mr. Anthony County Highway D, he drove around MO McKnight. As a result of the crash Mr. a vehicle that was turning right into a The matter was settled. Reimer sufiered a closed head injury and driveway. Witnesses had differing versions Evan Bashirian et al vs. Hartford Fire fractures to his arm, wrist, ribs, and spine. of the motorcycle's speed and movement Insurance Company et al, Jefferson County Due to his serious injuries Mr. Reimer as it accelerated after passing the tutning Case No. 12CV873. The plaintiff was did not have any recollection of the actual vehicle. At the same time, defendant represented by WAJ member James R collision. Mr. McKnight reported that Brian Kozak was driving a Schwan's Jansen of Habush Habush & Rottier SC, Mr. Reimer crossed the center line and Home Service delivery vehicle and was Madison, WI. Defendants were represented caused the crash. The police investigated attempting to cross Highway 18 from the by attorney Patrick Lubenow ofSmith and relied on Mr. McKnight s statement. stop sign on Highway D. Mr. Kozak did Amundsen LLC, Milwaukee, WI. However, the police investigation did not not see the Bashirian motorcycle until his include any witness statements. Great West vehicle was blocking the westbound lane. denied liability and suit was filed. As a result of the collision that occurred, Calling All Paralegals Mr. Reimer's past medicals totaled Evan Bashirian suffered multiple injuries and Litigation approximately $253,000, with an including a head injury and a spinal cord Support Staff! anticipated $18,000 in future medicals. injury. The head injury resolved after The plaintifFs expert witnesses were: weeks of hospitalization, but the spinal WAJ has the necessary tools Liability: Gary W. Cooper, Accident cord injury left him paralyzed. for every litigation support Reconstruction, Lake Zurich, IL. As a result of the crash Mr. Bashirian professional on your team! Medical: Matthew R. Bong, M.D., has some use of his arms and is actively Orthopaedic Surgery, Waukesha, WI; engaged in therapy to improve his ► Seminars - with topics Matthew R. Herald, M.D., Behavioral mobility. He also has some surgical Medicine Summit, WI scarring. It is anticipated that Mr. tailored specifically to After depositions were conducted and an Bashirian will return to the workforce after plaintiff-only litigation accident reconstruction was completed, obtaining some additional training in the support professionals, you the case settled at mediation. information technology field. wont get this information Steven Reimer et al vs. Great West While his future medical expenses anywhere else. Casualty Company et al, Waukesha County were disputed, he did suffer the following Case No. 13CVI785. The plaintiff was damages: ► Listserver - WAJ offers a represented by WAJ member Benjamin Past medicals: $1,274,312 listserver exclusively tor S. Wagner of Habush Habush & Rottier Past wage loss: $88,400 litigation support staff. SC, Milwaukee, WI. Defendants were Future LOEC: $88,000 represented by attorney Michael P. Crooks The plaintifFs experts were: Not yet a member? of Peterson, Johnson & Murray SC, Liability: Paul Erdtmann, Skogen Join today at Milwaukee, WI. Engineering Medical: Dr. Merle Orr, Physical www.wisjustice.org/JoinWAJ Medicine and Rehabilitation, Froedtert

46 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG WAJ Sustaining Seminar Members The following members ofthe Wisconsin Association for Justice have contributed over and above the regular dues structure for the Association by becoming Sustaining Seminar Members. This extra revenue is a great aid in allowing the Association to carry out its educational and membership services. We highly commend those who have given so generously.

Jason F. Abraham, Milwaukee Harry R. Hertel, Eau Claire Amy M. Risseeuw, Appleton Avram D. Berk, Appleton Ryan J. Hetzel, West Bend Christopher E. Rogers, Lake Geneva David S. Biinka, Madison Paul R Hoefle, Milwaukee Daniel A. Rottier, Madison Christine Bremer Muggli, Wausau James R. Jansen, Madison Eric J. Ryberg, Madison Kelly L. Centofanti, Mequon Robert L. Jaskulski, Milwaukee Scott L. Schroeder, Janesville Frank T. Crivello, II, Milwaukee Jason J. Knutson, Madison Thomas P. Schwaba, Marinette George W. Curtis, Oshkosh Kevin J. Kukor, Milwaukee Anthony J. Skemp, Milwaukee Steven G. Danielson, Eau Claire Lynn R. Laufenberg, Milwaukee Brenda Sunby, Wausau M.Angela Dentice, Milwaukee Theresa B. Laughlin, Wausau Ralph J. Tease Jr., Green Bay Joseph G. Doherty, West Bend Michael D. Leffler, Milwaukee Willard P. Techmeier, Milwaukee Merrick R. Domnitz, Milwaukee Jerome A. Maeder, Wausau Frank R. Terschan, Milwaukee J. Michael End, Milwaukee Daniel R. McCormick, Milwaukee Mark L. Thomsen, Brookfield Laurence J. Fehring, Milwaukee Michael C. Meyer, Marion Jay A. Urban, Milwaukee James M. Fergal, Milwaukee Frank T. Pasternak, Wauwatosa Edward J. Vopal, Green Bay Julie J. Flessas, Mequon John C. Peterson, Appleton D. James Weis, Rhinelander Steven C. Gabert, Milwaukee Paul D. Peterson, Woodbury MN Mark S. Young, Milwaukee Paul Gagliardi, Salem Jeffrey A. Pitman, Milwaukee Peter M.Young, Rhinelander Thomas Kent Guelzow, Eau Claire Don C. Prachthauser, Milwaukee Robert L. Habush, Milwaukee Jill A. Rakauski, Racine

1^ Exhausted

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Wisconsin Association for Justice The following people joined "WAJ from October, 2014 to December, 2014 2015 Seminar Calendar

March 20,2015 Brendan M. Bush Jacob Sundeiius Spring Seminar Paul M. Gagliardi Sharon Theisen* The Radisson Hotel Green Bay Janice Kellam* Andrea R. Thunhorst* Jennifer Kovacovich* Kevin Van Ert Rene L'Esperance Warren M. Wanezek July 10 & 11,2015 Summer Seminar Melanie Rasmussen* The Landmark Resort Egg Harbor *Denotes paralegal membership

September 17 & 18,2015 Women's Caucus Retreat Glacier Canyon Lodge Help us spread the word! Sundara Inn & Spa Do you work with a company or expert witness Wisconsin Dells that you think should be advertising with the Wisconsin Association for Justice? If so,let us know! October 16, 2015 Tort and Technique Update Seminar Contact WAJ at [email protected] Inn on the Park or call WAJ at(608) 257-5741 Madison and let us know whom we should get in touch with and help promote!

December 4 & 5 Winter Seminar & Aimual Meeting Email Listserver: for Wisconsin Plaintiffs' lawyers and The Pfister Hotel & Tower paralegal/support staff who devote over 95% of their prac Milwaukee tice to the representation of injured consumers. WAJ has the following lists: 1. Personal Injury Attorneys Wisconsin Association for Justice 2. Workers Compensation Attorneys 44 East Mifflin Street, Suite 402 Madison, WI 53703 3. Paralegals/Litigation Support Staff www.wisjustice.org To subscribe, contact our office at(608) 257-5741 and indi cate which list you'd like to join.

48 Winter 2015, Volume 38:1 WWW.WISJUSTICE.ORG NEW RELEASE FROM ABA PUBLISHING! "Courtroom Avenger is enthralling, the story ofsuperstar lawyer Robert Habush, an iron-fisted, fearless, imaginative advocate with a big heart for his injured clients, with the determination to surmount every obstacle to assure they are compensated in the courts." —Joan B. Claybrook, Past President of Public Citizen, former Administrator of the National Highway Traffic Safety Administration

"I've known Bob Habush and marveled at his accomplishments for over 35years. This informative and entertaining book reflects his enormous courage and dedication to his clients. His Impressive list of trial victories for deserving clients have resulted in preventing harm to many others. Bob is a plain speaking trial lawyer who has shown total determination for Justice for his clients. This is a man / would want standing next to me In any worthwhile fight forjustice." —Paul N. Luvera, Past President of the Inner Circle of Advocates, Member of the National Trial Lawyer's Hall of Fame

Courtroom Avenger: The Challenges and Triumphs of Robert Habush

By Kurt Chandler

This new addition to the acclaimed ABA Lawyer Biography Series is a profile of Robert Habush, a prolific and esteemed trial lawyer based in Milwaukee. He's a lawyer whose name would probably appear on any top-ten list in the country. He's recognized by his peers as a lawyer 1620595, 2014, 6x9 Hardcover, who is always fighting for the little guy against the big pocket. Habush 276 Pages has been honored by every bar association in his state and has been $39.95 General Public honored by the Association of Trial Lawyers of America on numerous $34.95 ABA Members occasions. In the state of Wisconsin, an award was established in his name, the Robert Habush Trial Lawyer of the Year Award. Each chapter of this compelling book covers a significant trial in his /BV career, with analysis of trial strategy and commentary from Habush AMERICAN BAR ASSOCIATION himself, interwoven with biographical information. From the Mitsubishi Defending Liberty Pursuing Justice Heavy Industries trial, where he represented the widows of three ironworkers who had been killed during the construction of Miller Park stadium in Milwaukee, to representing a family of a man killed in the World Trade Center Attack this book is filled with stories that will thrill, educate and inspire you.

In addition, Robert Habush shares his personal visions for the future of the legal profession and the law. Read this compelling story of a man who wasn't afraid to fight for the common man and make a difference in the legal profession.

Call 1-800-285-2221 to ^ (800)285-2221 Order Your Copy Today! ^ www.ShopABA.org ^JL 4 ♦ "f *

Pitman, Kyle

Sicula®Dentices.c. Jeff Pitman 1-800-950-9882 [email protected] WisconsmNursingHomeAbuse.com