Last year’s election of Justice Michael Gabelman changed the “balance” of the Wisconsin Supreme Court to a 4-3 conservative majority. I usually have a problem with that phrase for Courts because it denotes that two ideological views in any court case must be classified as conservative and liberal and I don’t think the judges see their decisions as political ones. The phrase implies that justice is a partisan issue and that other factors like the two parties to the lawsuit, the law, and the merits of the case play no role in its outcome. I think that implication is false.
This statement by AP writer Ryan Foley highlights the problem:
“Conservatives and business groups have welcomed the change in the state’s legal landscape, which they say will help protect businesses from crippling lawsuits.”
So what protection did businesses receive this past year?
The notable cases can be found here.
In looking at them, I agree with the decisions that were made with one exception:
— dismissed a wrongful death lawsuit filed by a woman whose husband died after a botched surgery, saying she filed it days too late. The court sided with an insurance company by ruling the statute of limitations started when doctors left a sponge in the man, not when he died.
It is counterintuitive to have a wrongful death suit have its filing period begin before the death has occurred. That flies in the face of logic it appears to me.
But I am in agreement with the ruling on lead paint ‘design defect’. In this instance, one point in the suit alleges that manufacturers designed the paint defectively by inserting lead.
I think that the court ruled correctly that to remove lead from designed lead paint would make it a different product. The lawsuit may still have merit on other points like warning labels to draw attention to the existence of a health hazard.
It is not easy to determine culpability when the use of the product is beyond the manufacturer’s control or when circumstances do not directly tie the product or its use to design or manufacturing negligence. I do not envy those who have to make such decisions.
I do not ascribe to the ‘deep pockets’ approach when ascertaining who is responsible for a victim’s injury. There is an inherent bias in that thinking that offends me.
Compared to last year, this Court was relatively without a major controversial case.
I do differ from your assessment in a few regards, I believe they got the wrongful death suit right. The cause of action would begin at the time of the discovery of the negligence. Let’s say the guy lives… he has three years under statute to file the claim. The fact that the individual later dies because of the negligence shouldn’t be grounds to extend the statue of limitations. Remember, the cause of action is based on the discovery of the act and not the category of the damage. But more than anything, that case was sloppy lawyering on the Plaintiffs part. In any pre-suit conference you ask when did the injury occur. Then you put that date on your calender and make darn sure you are within the statute of limitations before even considering to take the case.
That being said, I do think they got a few other decisions wrong: The preclusion of the emotional distress case and the Catholic School case. I agree with you that the lead paint case was good decision. As Justice Bradley noted it is not lead paint without lead, just as it is not aluminum foil without aluminum. The fact that the paint had lead in does not make it a defective product because it would be a different product.
Yeah, I’m inclined to agree with the decision on lead paint. It seems illogical to say lead paint having lead in it was a defective design, and as SId said, that’d be like arguing aluminum foil was defective because it contained aluminum.
I also agree the Supreme Court made the “wrong” ruling in the Catholic school case.