Modernizing Wisconsin Tort Law: Tort Reform and Assembly Bill 773

Submitted by HKM Profession… on Thu, 04/26/2018 - 20:29

Casey B. Suszynski By Casey B. Suszynski

Governor Scott Walker signed Wisconsin’s most recent tort reform bill into law earlier this month.  Assembly Bill 773 (“AB 773”) aims to lower litigation costs for businesses by modernizing and tightening Wisconsin’s outdated rules of civil procedure.  Through passage of AB 773, Wisconsin’s statutes regarding discovery procedures now comport with the Federal Rules of Civil Procedure on these issues.  The bill also amends statutes pertaining to class actions, statute of repose and limitations, and an insurer’s timely payment of claims.

Discovery Provisions

Wisconsin joined numerous states by adopting a proportionality requirement to discovery that mirrors Rule 26 of the Federal Rules of Civil Procedure.  As always, a party may still obtain relevant non-privileged discovery.  Now, however, that discovery must be proportional to the needs of the case. See Wis. Stat. § 804.01(2)(a).  Courts will balance proportionality by weighing the importance of the issues at stake, the amount in controversy, the parties’ access to relevant information, the parties’ resources, the importance of discovery, and whether the burden of discovery outweighs the benefit. AB 773, staying true to Fed. R. Civ. P. 26(b)(1), clarifies that discoverable information within this scope need not be admissible in evidence to be discoverable.

The changes to Wisconsin statutes created by AB 773 will now impose limits on depositions and interrogatories.  Wisconsin Statute § 804.045 will limit the number of depositions that a party may take in a matter to ten.  Each deposition can last no more than seven hours unless stipulation or court order provides for a longer time.  Prior to AB 773, Wisconsin had no limitation on the number of interrogatories which could be served, on the number of depositions that could be taken, or on the length of those depositions.  See Wis. Stat. § 804.08, amended by 2017 Wis. Act 235 (2017 A.B. 773); Wis. Stat. § 804.05. Similarly, without leave of court, a party may now only serve 25 interrogatories, including all subparts.1 In addition, Wis. Stat. § 804.09(2)(a) prevents parties from requesting records older than five years before a cause of action accrues, but allows exceptions for various records including health care, educational, vocational, and similar records.

AB 773 also includes a provision that modifies Wis. Stat. § 804.01(2)(e). The modification no longer requires a party, absent a showing of good cause, to produce or retain certain electronically stored information including data that is irretrievable without substantial additional programming, backup data that is substantially duplicative of data that is more accessible elsewhere, legacy data from obsolete systems, and any data that is not available to the producing party in the ordinary course of business and that is not reasonably accessible because of undue burden or cost.

Finally, AB 773 modifies Wis. Stat. § 804.01(2)(bg) by imposing a mandatory duty on a party to disclose any agreement under which any person, other than an attorney, has a right to receive compensation that is contingent on an outcome from a civil action.

Class Action Interlocutory Appeal

Wisconsin will now allow for interlocutory appeals of class certification orders, which could stall proceedings in a class action case. However, courts will still be able to consider and weigh in on settlements parties may reach during the interlocutory appeal process. See Wis. Stat. § 804.01(2)(a).

Statutes of Repose and Limitations

Wisconsin’s construction statute of repose shields contractors, architects, and engineers from personal injury claims alleging negligent design for injuries that do not occur within a defined period of time following substantial completion of an improvement to real property.  Existing Wisconsin law allowed parties to bring such construction-related actions within ten years after substantial completion of the improvement to real property.  A provision in AB 773 shortens that period to seven years.  In addition, AB 773 shortens the statute of limitations in Wis. Stat. § 893.53 for an action for injury to character from six years to three years.

Insurance Payments

AB 773 decreases the interest rate that insurers must pay on overdue claims under Wis. Stat. § 628.46(1) from the simple interest rate of 12% to 7.5%.

AB 773’s changes to discovery procedures will apply to actions that are filed on or after July 1, 2018. Whether AB 773 proves to accomplish Governor Walker’s goal of reducing litigation costs for businesses remains to be seen.  However, businesses and proponents of AB 773 believe the bill will benefit all litigators by streamlining litigation and imposing limitations on cumbersome and oppressive discovery practices.  

If you have any questions regarding the content of this article, please contact the author or any of HKM’s Wisconsin-licensed attorneys at (651) 227-9411.

1 This provision is similar to Fed. R. Civ. P. 33(a)(1).