AB 1

This bill makes several changes to current law regarding civil actions for

negligence in long-term care facilities product liability, actions in strict liability,

punitive damage awards, and awards for defending a frivolous lawsuit. The bill also

makes changes regarding the confidentially and use of reviews and evaluations of

health care providers and regarding criminal liability for certain acts or omissions

by health care providers.

Actions against manufacturers, distributors, sellers,

and promoters of a product

In

Thomas v. Mallett

, 2005 WI 129,

the Wisconsin Supreme Court held that a

manufacturer of white lead carbonate, which was used as a pigment in paint, could

be held liable for the injuries caused to a child who had ingested paint that contained

the white lead carbonate and who could prove certain elements, even if the child

could not prove that a particular manufacturer produced the white lead carbonate

that he ingested. The court applied the risk-contribution theory, established in

Collins v. Eli Lilly

, 116 Wis. 2d 166 (1984), saying that all of the manufacturers' white

lead carbonate were basically the same, the manufacturers created the risk of injury,

and the manufacturers were in a better position than the child to absorb the cost of

the injury.

This bill provides that a manufacturer, distributor, seller, or promoter of a

product generally may be held liable for damages only if the injured party proves, in

addition to the 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. The bill also provides that if 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 if, in addition to proving the other

elements of the claim, the injured party names as defendants in the action those

manufacturers of a product 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 or harm

and proves all of the following:

1. That no other lawful process exists for the injured party to seek redress for

the injury or harm.

2. That the injury could only be caused by a product that is chemically identical

to the specific product that allegedly caused the injury.

3. That the defendant manufactured, distributed, sold, or promoted a product

that was chemically identical to the specific product that allegedly caused the injury