Jake Harper
Veterans, unions and asbestos victims have formed a coalition to fight Assembly Bill 19.
As a steamfitter for the Wisconsin Electric Power Company in Milwaukee, Robert Hass' job was to install and repair the steam pipes that heat city buildings. Unibestos, a product made from asbestos, was used to insulate the pipes.
Hass died in 2011 from mesothelioma, a painful cancer that starts in the lining of the lungs. According to the Centers for Disease Control and Prevention, asbestos is a known carcinogen and considered the primary cause of a number of diseases, including mesothelioma.
Pittsburgh Corning, manufacturer of Unibestos, filed for bankruptcy in 2000 to establish a personal injury trust to compensate victims of asbestos exposure. More than 100,000 asbestos claims have been filed against the company. The trust is still pending in bankruptcy court in Pennsylvania, however, so no claims can yet be filed.
Hass' wife filed suit in early 2012 over the death of her husband, and the couple's children have since taken up the case. But if Assembly Bill 19, known as the "asbestos bill," is approved by the Wisconsin Legislature, the case could be suspended indefinitely.
The bill would require plaintiffs in injury cases to file against all applicable trusts before taking any company to court. That means no companies implicated in Hass' death could be held liable until the Pittsburgh Corning trust is established, says Jill Rakauski, an attorney who is representing the Hass family in its case against Building Service Industrial Supply and other defendants. "They can't file that claim with a pending trust, and there doesn't seem to be any exception for that in the bill," she said.
The proposal is part of a larger effort in Wisconsin and across the country to protect corporations from lawsuits. Pushed primarily by pro-business advocates, including the Wisconsin Civil Justice Council, Wisconsin Manufacturers & Commerce and the U.S. Chamber of Commerce, their argument is that litigation against Wisconsin companies is stifling the business environment in the state.
Reform efforts generally aim to shield companies by raising the bar for filing civil actions and by reducing allowable damages for neglect or causing injury. The asbestos bill is one of five fresh efforts introduced so far this session. Two have cleared the Assembly Judiciary Committee and appear on track for passage when the Legislature convenes next week.
Because the deadly effects of asbestos are now well known, AB 19 has drawn more attention than the other bills. Veterans groups, trade unions and asbestos victims announced Thursday they had launched a new coalition - the Wisconsin Asbestos Victims Network - to fight the bill and lobby lawmakers to vote against it. A disproportionate number of veterans and laborers are diagnosed with asbestos-related illnesses. The coalition might help stir the pot, but usually the complex nature of injury law makes it a hard issue to get the general public to rally around.
"Until they understand how it's taking something away from them, it's an abstract issue," says Jeff Pitman, president of the Wisconsin Association for Justice, the trial lawyers association that is battling the measures. Pitman says that because the issue affects a minority of people, getting such bills passed without public outcry is relatively easy.
"Unless it's touched you, why would you even be thinking about it?"
Capping state contracts
Republicans wasted no time in pursuing tort reform after taking over the governor's office and both houses of the Legislature in 2011. The Omnibus Tort Reform Bill was the first law Gov. Scott Walker signed in office.
Among its many provisions, the law ties the hands of judges and juries in determining how much a plaintiff can receive in certain cases. For instance, non-economic damages in nursing home injury cases were capped at $750,000.
The Legislature also later in the session reduced the interest rate for court-ordered payments in personal injury cases and protected drug and medical device manufacturers from liability in the event of injuries caused by an FDA-approved product.
A new bill pending this session aims to curtail state litigation against corporations.
In such cases, the state currently has the option to hire an outside law firm on a contingency fee basis, meaning the firm is paid based on a percentage of the settlement, rather than at an hourly rate. If the state loses the case, the outside counsel does not get paid.
But if the state prevails, private law firms sometimes walk away with a large payout - a reward for risking resources on a case they might lose.
AB 27, authored by Rep. Mike Kuglitsch (R-New Berlin), would set strict guidelines for contingency contracts, capping the percentages at a much lower level than the typical 25% to 30%.
Rob Jaskulski, a personal injury lawyer, was the only person who testified against this bill at a March hearing before the Assembly judiciary committee. "This is a bill that's advanced by large corporate interests, because they are on the other end of this battle," he said.
Jaskulski said the cap would give corporations, which have deep pockets for legal representation, an unfair advantage by hampering the state's ability to hire high-quality legal representation.
Jason Culotta, policy director for WMC, does not have a problem with that scenario. "One of the concerns we have is that a future governor may have an interest in punitively going after some businesses in what we would not think is a just case," he says.
'A solution looking for a problem'
Wisconsin rarely uses contingency agreements when suing corporations. One exception was the state's lawsuit against the tobacco industry that was settled more than a decade ago. For this reason, Jaskulski and others call AB 27 "a solution looking for a problem."
Similarly, few asbestos lawsuits have been filed in Wisconsin. There were just nine filings last year, according to court records.
Rep. Andre Jacque (R-De Pere), author of the asbestos bill, says his aim is to increase transparency and prevent plaintiffs from double-dipping - filing claims against a trust and a solvent company over the same issue. But when questioned by Rep. Gary Hebl (D-Sun Prairie) at an April 4 judiciary committee hearing, Jacque could not name a single case in which such fraud had occurred.
"I think we're putting great effort into something that is really a phantom problem," said Rep. Dana Wachs (D-Eau Claire), a member of the panel and a trial attorney, just before his colleagues approved the bill.
Even before the most recent round of tort reform in the state, the number of personal injury and product liability case filings in Wisconsin was declining. Filings dropped from 7,889 in 2003 to 6,350 in 2012 (PDF), according to civil disposition summaries prepared by the state court system. In contrast, there were 20,109 divorce filings in Wisconsin last year.
In 2009, a study (PDF) released by the University of Wisconsin Law School found no direct evidence that the civil justice system was depressing business activity. It cited a 2006 survey Wisconsin Manufacturers & Commerce did of its own members in which CEOs were asked to rate 10 factors "in terms of their negative impact on your company's operations." "Fear of litigation" came in 10th.
