Wisconsin Product Liability Laws
According to Find Law, a website dedicated to helping people find lawyers, “Defective or dangerous products are the cause of thousands of injuries every year in the U.S.” (Find Law, n.d.). If people are getting injured because of defective products, there must be some kind of legislation that protects consumers. Product liability laws are laws that were created so that people who are injured from a defective product can sue to recover damages. Keep in mind that a defective product does not simply mean that the product is broken. The Business Dictionary says that a defective product is “unfit for its intended use, dangerous or harmful for normal use, does not carry adequate instructions for its use, or is inherently dangerous due to defective design, assembly, or manufacture” (Business Dictionary, n.d.). If a product is dangerous to use, why would people still use it? Sometimes the danger that lurks within a product is not visible, and unfortunately it takes someone getting hurt before anyone notices that something is wrong with it. It is these types of products that product liability laws protect us from. So then, whose laws protect us?
During this class, we have learned that federal laws are the highest laws of the land. That means that if a crime is committed, state courts must follow federal laws if there is a law in place for that particular crime. What are the federal laws when it comes to product liability? There are none. Product liability laws are created state by state and no two states have the same laws. So, if someone is injured from a defective product in the state of Wisconsin, they would sue in Wisconsin courts (that is where the product was when the injury took place) and follow Wisconsin laws.
Wisconsin’s product liability laws were reformed in January 2011. Until then, product liability fell on manufacturer and distributor. On January 27, 2011, Governor Scott Walker signed into law the Omnibus Tort Reform Act (OTRA). This reform made significant changes to Wisconsin product liability laws and they were designed to protect businesses in Wisconsin. These changes were also meant to encourage new businesses to come to Wisconsin without the fear of strict product liability laws. The Omnibus Tort Reform Act went into effect on February 1, 2011. The next few paragraphs will discuss the former laws and the changes made with OTRA. The basis for manufacturer liability under products law covers what two types of liability that a case can be brought to court under. The former law stated that products liability claims were either under common-law theories of negligence or strict liability. Common-law theories of negligence mean that there was a manufacturing defect, a design defect, or that the manufacturer failed to warn of possible risks. Strict liability claims followed the “consumer contemplation” standard that compels that plaintiffs prove that the product was more dangerous than the average consumer could see. Under the Omnibus Tort Reform Act, the legislation creates a statutory strict products liability claim that maintains the three available theories on which a products liability claim may be based (manufacturing defect, design defect, and failure to warn). The statute breaks with existing Wisconsin law by expressly adopting a new standard stated in the Restatement (Third) of Torts, published in 1997, requiring a plaintiff to prove that a reasonable alternative design existed and the manufacturer's failure to use that design rendered the product not reasonably safe. The adoption of this standard brings Wisconsin's law into alignment with that of most other states. (Johanningmeier & Poland, 2011)
Like the former law, this reform requires a plaintiff to abide by the “consumer contemplation” standard, but adds that they must also show that there was an alternative design. The second section of Wisconsin’s product liability law focuses on who is responsible. The former law allowed a plaintiff to sue anyone in the distribution chain. That means that manufacturers, distributors, and sellers could all be found liable. With the tort reformation, the new legislation restricts the liability of a seller or distributor of a product to cases where the manufacturer is held liable and: (1) the seller or distributor contractually assumed the manufacturer's duty to manufacture or design a safe product or provide adequate warnings; (2) neither the manufacturer nor its insurer may be haled into court in Wisconsin; or (3) the plaintiff could not enforce a judgment against the manufacturer or its insurer. (Johanningmeier & Poland, 2011)
This means that only the manufacturer can be found liable. The third section of Wisconsin’s product liability law centers around what a defense can claim. Before 2011, a defense’s defense was limited. If a jury found a manufacturer more at fault (than the plaintiff) then they were liable. Governor Walker’s Omnibus Tort Reform Act allows for more of a defense. According to the law offices of Godfrey and Kahn, the legislation codifies five statutory defenses, some of which are new and some already available: (1) if the plaintiff was under the influence of alcohol or a controlled substance, there is a rebuttable presumption that the plaintiff's impairment was the cause of the injury; (2) if the product complied with federal or state standards when it was sold, there is a rebuttable presumption that it was not defective; (3) the claimant's misuse, alteration, or modification of the product will reduce the percentage of responsibility for causing the plaintiff's injury; (4) if the injury was caused by an inherent characteristic of the product, recognized by a typical user, the case must be dismissed; and (5) a seller or distributor that receives a sealed product from the manufacturer cannot be held liable if they did not have a reasonable opportunity to test or inspect the product. (Johanningmeier & Poland, 2011)
Before OTRA, Wisconsin had no cap on punitive damages, but the Supreme Courts of both the United States and Wisconsin did set some restrictions on awards. The fourth section of the reform discusses a cap on punitive damages. Punitive damages is a monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. The new law states that defendants will only be liable for punitive damages of “$200,000 or twice the amount of compensatory damages awarded to the plaintiff, whichever is greater. The limit does not apply where the defendant was found to have been operating a motor vehicle, snowmobile, all-terrain vehicle, or boat while intoxicated” (Johanningmeier & Poland, 2011). Compensatory damages provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. This is probably the biggest change to Wisconsin product liability laws.
Subsequent remedial measures are the topics in the fifth section of this state’s product liability laws. Previously, Wisconsin courts allowed plaintiffs to show that a manufacturer only made changes to a product’s design to make it safer after it had caused someone harm. The new laws prohibit this as evidence unless it helps to bring Wisconsin in line with the majority rule. This means that any changes a manufacturer made to make a product safer after the fact are inadmissible.
Wisconsin now has a statute of repose. A statute of repose prevents a plaintiff from filing a claim after a certain number of years. The sixth section of the tort reformation states that plaintiffs now only have 15 years to file a lawsuit. The only way a plaintiff can file a claim after 15 years is if the manufacturer specifically claims that a product will last longer than 15 years. In this case, a plaintiff has the lifespan of the product to file a claim. This law does not apply to claims of damages caused by latent diseases. There was no statute of repose before OTRA.
Apportionment of fault and imposition of joint and several liabilities is the seventh part of Wisconsin’s product liability laws. With the former laws, a manufacturer is liable for the plaintiff’s injury regardless of their percentage of fault. It was lessened if the plaintiff was found to be somewhat at fault. Josh Johanningmeier and Douglas M. Poland, author of Wisconsin Enacts Tort Reform Measures to Restrict Liability in Products Liability and Tort Actions, say, the legislation requires a jury to first determine, in a strict liability case, the percentage of responsibility for causing the injury that should be allocated to the plaintiff, to the defective condition of the product, and to any other person. If the plaintiff's percentage of responsibility is greater than that of the product, the plaintiff is barred from recovering. If the plaintiff's percentage is equal to or less than the percentage attributed to the product, then the plaintiff's damages are reduced by the percentage of the plaintiff's responsibility. If there is only one defendant responsible for the defective condition of the product, that defendant will be responsible for all damages, minus the reduction for plaintiff's responsibility, only if it was assigned at least 51% or greater responsibility. If multiple defendants are found liable for the product's defective condition, the fact finder must assign them percentages of responsibility for that defective condition, which the judge will multiply times the product's percentage of responsibility for the injury to establish the product defendant's percentage of responsibility for the plaintiff's damages. Each defendant will be liable in damages based on its percentage of responsibility but only a defendant allocated a 51% or greater share of responsibility is jointly and severally liable for all of the plaintiff's damages. Therefore, in effect, only one defendant, at most, may be subject to joint and several liabilities. (Johanningmeier & Poland, 2011)
The eighth section of Wisconsin’s product liability laws discusses market-share liability. Market-share liability essentially means that a plaintiff can file a claim against a manufacturer even if that manufacturer’s product is not the product that caused the injury. With the Omnibus Tort Reform Act, the new legislation generally requires a plaintiff to prove that each and every defendant that is named in a complaint either manufactured, distributed, sold, or promoted the specific product alleged to have caused the plaintiff's injury. If the plaintiff cannot meet that proof of specific product identification, the new statute allows the plaintiff to recover from the defendants (under several, but not joint liability) but only under a very restrictive set of criteria including requirements that: the plaintiff has no other legal remedy against any other person; the plaintiff's injury could be caused only by a manufactured product that is "chemically and physically identical" to the specific product alleged to have injured the plaintiff; each defendant manufactured, distributed, sold, or promoted a "complete integrated product" in the same form as the product that allegedly injured the plaintiff; each defendant's product was "chemically and physically identical" to the product that injured the plaintiff, was sold in the same geographic market at the same time as the product that injured the plaintiff, and was sold without any label or other distinctive characteristic identifying the defendant; and the plaintiff include as defendants the manufacturers holding an 80 percent market share for the product in Wisconsin during the relevant time. In addition, the legislation bars claims against defendants that last manufactured, distributed, sold, or promoted the product more than 25 years before the plaintiff was injured. (Johanningmeier & Poland, 2011)
The final section of OTRA examines the standards for expert testimony. A plaintiff (pre 2011) could ask expert witnesses to testify on their behalf about a manufacturer’s product. This person’s opinions had to helpful and this person had to be qualified to speak of such a product. The new laws state,
Wisconsin now will employ the Daubert standard that has been used in federal courts for nearly a decade, which requires a judge to determine whether an expert's opinion is "of a type reasonably relied upon by experts in the particular field" before it may be submitted to a jury. Under the Daubert standard, courts typically consider several well-established factors to make that determination. (Johanningmeier & Poland, 2011)
All of the changes made to Wisconsin’s product liability laws are more manufacturer friendly and make it very hard for a consumer to prove a manufacturer’s fault if they should be injured. Here is a brief summary of an actual product liability case in the state of Wisconsin where the plaintiff won her suit. Linda Green worked as a radiology and CT scan technician for St. Joseph’s Hospital in Milwaukee. This job required her to wear powdered latex gloves. The gloves used by the hospital were manufactured by Smith & Nephew AHP, Inc., a company that makes medical equipment and other medical products. Ms. Green started to develop rashes that she claimed were caused by the gloves. She had never had a reaction to other types of gloves and had no previous allergic reactions in her life. According to the case file found on the Justia US Law website,
Green’s hands eventually became red, cracked, and sore, and began peeling. In response to this condition, she applied hand lotion, changed the soap she used, changed the type of hand towels she used, and tried various other remedies. Nevertheless, the rash continued. Green's condition deteriorated. Her rash spread to her upper trunk and neck, and she began experiencing chronic cold-like symptoms such as a runny nose and watery eyes. Green's symptoms grew increasingly severe, eventually culminating in an acute shortness of breath, coughing, and tightening of the throat. As a result, Green spent significant time in the hospital. She was eventually diagnosed with latex allergies. (Justia US Law, 2001)
Ms. Green filed a claim against Smith & Nephew AHP, Inc., claiming that the gloves contained extreme quantities of allergy causing latex proteins, and the cornstarch used to powder the gloves helped make these proteins more inhalable. A jury ruled in her favor after her lawyer proved that latex allergies were caused by overexposure to latex proteins (with the help of expert testimony) and that there was an alternative design that could have made this product safer. Linda Green was awarded $1,000,000. Smith & Nephew AHP, Inc. appealed the decision in the court of appeals and lost. Would the outcome have been different if this had happened in another state? Let us now take a look at Illinois product liability laws.
In Illinois, strict product liability is imposed without regard to traditional questions of privity, fault, or the user's ordinary negligence. It was developed in response to the inadequacy of negligence and warranty remedies. Anyone in the distribution chain is liable and a bystander may recover if injured by another's use of a defective product. Plaintiffs in this state can only sue for compensatory damages (the monetary amount necessary to replace what was lost, and nothing more). This is quite different than Wisconsin laws.
Like Wisconsin, Illinois allows claims based on types of defects. The three types of defects are manufacturing defects, design defects, and inadequate warnings and instructions. Manufacturing defects mean that a particular unit of a product may be defective because of an imperfection resulting from some miscarriage during the manufacturing process. Design defects mean that a product may be defective because its design renders it unreasonably dangerous. Two tests may be conducted to establish a design defect. The Consumer Expectation Test assumes that the danger must go beyond that which would be contemplated by the ordinary consumer with ordinary knowledge common to the community as to its characteristics. The Risk Utility Test assumes that the design is a cause of the injuries and if the benefits of the challenged design are outweighed by the design's inherent risk of danger. Inadequate warnings and instructions mean that there was a failure to adequately warn of a danger or a failure to adequately instruct on the proper use of the product. These are the same three defects that Wisconsin uses.
Illinois product liability laws allocate a section for a plaintiff's contributory fault (their assumption of the risk). This law requires the defendant to prove that the plaintiff knew of the specific product defect, understood and appreciated the risk of injury from that defect, and nevertheless used the product in disregard of the known danger. It stipulates that a user may assume a product is safe; however, if the user finds a defect and proceeds to use the product, the user assumes the risk of injury or property damage. The test of whether the plaintiff has assumed the risk is subjective; the conduct and knowledge of the plaintiff is at issue. A jury will consider the plaintiff's age, experience, knowledge, understanding, and the obviousness of the defect in considering assumption of the risk. This is different from Wisconsin where the defense does not have to prove that the plaintiff knew of the defect and the risks.
Illinois requires a plaintiff to have a burden of proof. It is up to the plaintiff to prove four things. They must prove that the product was defective. They must prove that the defective product was unreasonably dangerous. It also has to be proved that the defective product was defective at the time it left the manufacturer. Finally, a plaintiff must prove that the defective product caused an injury. This is more than a plaintiff would have to show in Wisconsin for strict liability claims.
Product liability laws differ in each state and there are no federal laws to guide them. Wisconsin’s product liability laws have nine different sections that dictate the requirements needed for a consumer in Wisconsin to file a claim against a manufacturer. There must be a basis for manufacturer liability. They can only sue the product manufacturer. A plaintiff must not have been under the influence of drugs and/or alcohol and must not have altered or misused the product. If a plaintiff wins, they will only be awarded $200,000 or twice the amount of compensatory damages and can only file a claim within 15 years of the injury or the lifespan of the product, whichever is greater. In Illinois, a plaintiff can only file a claim based on three types of defects. A defendant must prove that the plaintiff know of the defect and decided to use it anyways regardless of the risks. Finally, Illinois plaintiffs are required to show a burden of proof. Regardless of where someone lives, a consumer has the right to expect safe products and manufacturers are expected to provide safe products. If a product is not safe and causes an injury or death, consumers have the right to seek compensation.

References
Business Dictionary. (n.d.). Defective Product. Retrieved from http://www.businessdictionary.com/definition/defective-product.html
Find Law. (n.d.). What is Product Liability? Retrieved from http://injury.findlaw.com/product-liability/what-is-product-liability.html
Johanningmeier, J., & Poland, D. M. (2011, January 27). Wisconsin Enacts Tort Reform Measures To Restrict Liability in Products Liability and Tort Actions. Retrieved from http://www.gklaw.com/news.cfm?action=pub_detail&publication_id=1058
Justia US Law. (2001). Linda M. Green v. Smith & Nephew AHP, Inc.. Retrieved from http://law.justia.com/cases/wisconsin/supreme-court/2001/17416.html
State of Illinois. (2007, December). Strict Product Liability. Retrieved from https://www.state.il.us/court/CircuitCourt/CivilJuryInstructions/400.00.pdf