AB 538

2011 Wisconsin Act 2

(Act 2) made a number of changes to the law governing

civil actions involving product liability claims brought under a theory of strict

liability and to civil actions against manufacturers, distributors, sellers, and

promoters of products. This bill makes several changes to certain provisions enacted

under Act 2.

Product liability

Requirements for bringing a product liability action based on a defective

product; defenses and exceptions to liability

Act 2 created specific requirements for bringing a product liability action

seeking damages under the theory of strict liability against manufacturers of the

product and against sellers and distributors of the product. Act 2 included defenses

and exceptions to strict liability for these types of parties. Finally, Act 2 included an

inapplicability provision making the requirements for bringing a product liability

action seeking damages under a theory of strict liability, the exceptions to strict

liability, and the defenses to strict liability inapplicable to actions based on a claim

of negligence or breach of warranty. This bill eliminates the inapplicability

provision.

RISK CONTRIBUTION THEORY: Remedies against

manufacturers, distributors, sellers, and promoters of

a product

Under Act 2, a manufacturer, distributor, seller, or promoter of a product who

is a defendant in a civil action generally may be held liable for damages only if an

injured party proves, in addition to causation, damages, and other elements of the

claim, that the specific product that caused the injury was manufactured,

distributed, sold, or promoted by the defendant. Also under Act 2, in cases in which

an injured party cannot prove that the defendant manufactured, distributed, sold or

promoted the specific product that caused the injury, the defendant may be held

liable under risk contribution theory if: 1) the injured party names as defendants in

the action those manufacturers who, collectively, during the relevant production

period, manufactured at least 80 percent of all products sold in this state that are

chemically identical to the specific product that allegedly caused the claimant's

injury and 2) the injured party proves certain other elements related to the cause of

the injury and the right of the injured party to a recovery. These provisions of Act

2 were made applicable to actions or special proceedings commenced on or after the

effective date of the Act.

This bill provides that the provisions of Act 2 governing remedies against

manufacturers, distributors, sellers, and promoters of a product apply to all actions

in law or equity, whenever filed or accrued. The bill includes a statement of

legislative findings and intent which states, in part, that the portions of Act 2