Many scholars and analysts say that the Wisconsin Supreme Court has been on an activist trajectory since the addition of Justice Louis Butler. Four of the Court’s recent cases, in particular, have been labeled “landmark” decisions that were new to Wisconsin and unique nationally: Ferdon v. Wisconsin Patients Compensation Fund, Thomas v. Mallett, State v. Dubose, and State v. Knapp.
When those particular decisions were handed down, conservative analysts predicted they would spread to other states and situations. For instance, the Wall Street Journal editorial board said of Thomas, “This decision is the first of its kind in the country and establishes a dangerous precedent. … There’s every reason to believe those same lawyers will try to export this same unfair theory to other states.” Judge Diane Sykes said of the same case, “The extension of risk contribution theory in Thomas may signal the court’s willingness to modify the causation requirement in other contexts.”
This paper looks at the four cases above and asks: in just the two years since each was decided, have they been used as precedent for further decisions? Have other courts accepted or rejected the rationale and rule offered in these cases?
You can find this second memorandum (first) on the Wisconsin Supreme Court as a PDF document, Extended and Exported, or you can find the full text with many embedded links after the jump.
Ferdon v. Patients Compensation Fund
Ferdon struck down the statutory cap on noneconomic damages awards in medical malpractice cases by employing rational review “with bite” and “with teeth.”
In State v. Lynch, the Wisconsin Court of Appeals applied rational basis review to a criminal statute using Ferdon as the framework. Lynch urged the Court to use the five-part rational basis test articulated by Aicher v. Patients Compensation Fund, which is considered a more deferential decision than Ferdon. “Because Ferdon is the most recent supreme court opinion discussing the standard to be employed when using the rational basis test, we use Ferdon’s formulation of that standard, not Aicher’s.” If future courts also use Ferdon as their starting point for rational basis analysis, we may see more decisions striking down statutes.
In Love v. Blue Cross and Blue Shield of Georgia, a federal judge had to choose whether Wisconsin or Georgia state law applied to an insurance case based in diversity jurisdiction. In choosing Wisconsin’s more plaintiff-friendly law, he reasoned, “[G]iven the State Supreme Court’s opinion in DeChant, as well as its more recent pronouncements on liability damage caps [Ferdon], it is abundantly clear that the Wisconsin Supreme Court views damage caps with a jaundiced eye” (896). He quotes extensively from Ferdon, and then concludes the Court has a “general distaste for damage limitations” (897).
In Arrington v. ER Physicians Group, the Louisiana Court of Appeals cited Ferdon, among cases from other states, to hold that the medical malpractice damages cap fails to provide an “adequate remedy” under the state constitution.
In N.J. Bar Association v. State, the New Jersey Superior Court’s appellate division explicitly rejected the type of rational basis review adopted in Ferdon, saying, “if we were to adopt the approach urged here by plaintiffs, we would ignore those limitations and substitute our judgment for that of the Legislature.”
“In a decision that raises further questions and concerns about the long-term shape of Georgia tort reform, the Wisconsin Supreme Court last week struck down as unconstitutional that state’s limit, or “cap,” on noneconomic damage awards. … Like Wisconsin, Georgia’s state constitution includes a clause that guarantees her citizens equal protection under the law. Accordingly, although it is not controlling authority in Georgia, the Wisconsin Supreme Court’s reasoning in striking down that state’s damage cap may be considered by Georgia courts facing similar challenges.”
Powell Goldstein LLP, 2005
In Kaul v. St Mary’s Hopsital – Ozaukee and Zak v. Zifferblatt, the Court of Appeals applied Ferdon retroactively to reinstate jury decisions that were above the cap.
Thomas v. Mallett
In Thomas, the Wisconsin Supreme Court decided that lead paint manufacturers may be held liable for damages to a child who had ingested lead paint even if the child could not prove that the paint he ingested was made by that particular manufacturer.
“When a state supreme court takes this kind of bold move, it’s definitely going to be used by whoever will challenge the Missouri provision as a precedent worth following,” Thomas L. Stewart, vice president of the Missouri Association of Trial Lawyers, said to a Missouri newspaper about Thomas. In City of St. Louis v. Lead Industry Association, Inc., the City has pushed the Missouri courts to adopt Thomas as the governing rule. While the trial court followed Missouri’s current precedent and declined, things could change on appeal.
The Rhode Island attorney general is using Thomas as part of a public nuisance suit against the lead paint industry. State v. Lead Industry Association, Inc.
“[A]s if it could get any worse, nothing in the ruling limits the ‘risk contribution’ theory to lead pigment. It could, arguably, apply to any product. So it was no surprise when a Chicago plaintiffs’ firm recently filed a case against 13 Wisconsin companies alleging that a client died from asbestos exposure, but not necessarily from asbestos manufactured by any of the 13 named defendants.”
Maureen Martin, senior fellow for legal affairs at the Heartland Institute, 2006
“The Thomas decision was groundbreaking in tort law and, through the clear and precise definition of fungibility articulated by the Thomas court, risk contribution theory has the opportunity to expand well beyond the scope of DES.”
Laura L. Worley, Marquette Law Review, 2006
“Wisconsin is pioneering ground here and provides some very persuasive precedent for those who haven’t considered this question and for those who have considered it very narrowly in the DES context.”
Peter G. Earle, Milwaukee attorney for Thomas, 2005
State v. Dubose
In State v. Dubose, the Wisconsin Supreme Court decided that showup identifications were inherently unreliable and should be very rarely used. The Court based this decision in a reading of the state constitution that was different than, and more protective of defendants’ rights than, the U.S. Constitution.
In State v. Knapp, the Wisconsin Supreme Court cited Dubose for the proposition that the Court may interpret cognate state constitutional provisions differently than the U.S. Supreme Court’s federal constitutional interpretation.
In State v. Cooper, the Wisconsin Court of Appeals granted a new trial to the defendant because the police used a showup identification procedure on site and later as the basis for an identification in court.
In State v. Dodd, the Wisconsin Court of Appeals held that Dubose applied retroactively to cases still open on appeal, and ordered a new hearing.
In State v. Shomberg, a dissenting Justice Louis Butler cited Dubose to argue that an expert should be allowed to testify in a criminal trial as to the scientific reliability of eye witness testimony.
In Dane County v. McGrew, a dissenting Justice Louis Butler cited Dubose for the New Federalist proposition: “[T]hat the United States Supreme Court has concluded in Williams v. Florida (1970), that the Sixth Amendment did not require that a jury be comprised of 12 persons has limited import on what the Wisconsin Constitution secures. See State v. Knapp; State v. Dubose.” (Internal citations omitted).
In State v. Herrera, the New Jersey Supreme Court explicitly rejected Dubose, deciding instead to follow the U.S. Supreme Court’s rule on identification evidence.
Cited by a dissenting justice of the Connecticut Supreme Court for the proposition that “[t]his court would not be the first to increase protection of criminal defendants under its state constitution in light of recent evidence of wrongful convictions.”
Cited by a dissenting justice of the Supreme Judicial Court of Massachusetts: “While I do not suggest that we presently adopt the Wisconsin standard, which, among other things, would fundamentally change our jurisprudence on showups conducted in the immediate aftermath of a crime, its analysis of the subject is worthy of consideration.”
Criminal defendants often urge Wisconsin courts to extend Dubose’s pro-defendant rule to other contexts. See, e.g., State v. Hibl, State v. Drew, State v. Garcia, State v. Klumpyan, State v. Denson, State v. West, State v. Nguyen, State v. Jarosinski, and State v. Bruski.
Criminal defendants in other courts also often urge those bodies to extend Dubose’s pro-defendant rule to their jurisdiction. See, e.g., United States v. Adams, Perez v. United States, People v. Hernandez, In re Miguel V., People v. Ontiveros, Gutierrez v. Garcia, State v. Scott, Commonwealth v. Aulet, Bridgeford v. State, Purnell v. State, State v. Barnes, State v. Damous, and State v. Steward.
State v. Knapp
In State v. Knapp, the Wisconsin Supreme Court suppressed evidence that was identified by a suspect before the suspect’s Miranda rights were read to him. The Court based the decision in a reading of the state constitution that was different than, and more protective of defendants’ rights than, the U.S. Constitution.
In State v. Dubose, the Wisconsin Supreme Court cites Knapp for the proposition that the Court may interpret cognate state constitutional provisions differently than the U.S. Supreme Court’s federal constitutional interpretation.
In State v. Cleaver, the Wisconsin Court of Appeals suppresses statements given to the police when the suspect was in custody but before she was Mirandized. It further suppressed statements given after she was Mirandized as fruit of an earlier violation.
In State v. Peterson, the Vermont Supreme Court cited Knapp and two other state supreme court decisions when holding that the Vermont Constitution provided broader pre-Miranda evidence gathering protection than the U.S. Constitution.
In State v. Farris, the Ohio Supreme Court cited Knapp and one other state supreme court decision to hold that the Ohio Constitution provided broader pre-Miranda evidence gathering protection than the U.S. Constitution.
Criminal defendant’s briefs filed before appellate courts in Wisconsin, Ohio, Nebraska, Kansas, and Maryland have cited Knapp to argue for interpretations of their state constitutions that grant broader rights to criminal defendants.
Conclusion
Justice Louis Butler’s vote was crucial in each of these four-vote majority decisions. Voters should consider how Justice Butler’s vote in these cases has affected the Court’s role and power in Wisconsin’s system of government. They should also consider the implications of these cases for the jurisprudence used by our state courts in making decisions.
At the time it was decided, each case was more or less unique nationally. In just the two years since the decisions, they have been relied on by parties in Wisconsin and in other jurisdictions scores of times. Unfortunately, the early results show that courts in Wisconsin and nationally have picked up the decisions and incorporated them further into the common law. They will likely become more solidified as time passes, to the further detriment of the safety, prosperity, and health of the citizens of many states, especially Wisconsin.
(full citations to many sources that are only available on password protected sites – i.e. Proquest and Westlaw – are available in the PDF document)
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Daniel- you have misinterpreted Thomas:
“In Thomas, the Wisconsin Supreme Court decided that lead paint manufacturers may be held liable for damages to a child who had ingested lead paint even if the child could not prove that the paint he ingested was made by that particular manufacturer.”
In fact, Thomas does not say that. Thomas allows someone to file SUIT against a lead paint company without first proving that the paint he ingested was made by that particular manufacturer. In order to win in court, you still have to prove causality (i.e. this particular paint made by this particular company caused this particular injury. In the recent court case in Milwaukee, the plaintiffs were not able to prove this and thus lost the case.
The case is about access to the courts not about rendering judgments.
You are correct in saying that the decision only allowed the case to move forward and did not render a final judgment (the appeal was from a summary judgment motion). Hence the “may be held liable” rather than “is held liable.” However, the opinion also set out the relevant standard of proof for Thomas to make his case in the trial, and that affected the causation requirement substantially:
My analysis of these paragraphs is shared by Justice Wilcox, who opens his dissent by saying, “The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market” (177).
Judge Sykes, in evaluating the decision, also concluded that the Court changed the causation requirements:
In the story on the jury’s later trial decision in the Thomas case, USA Today reported, “The high court ruled that Thomas didn’t need to prove the companies manufactured the actual paint that made him sick. He had to prove that the companies were making that type of lead paint when the homes in which he lived were built, from 1900 to 1905, that the paint sickened him and that the manufacturers knew of that danger.”
Thus, while I am open to further discussion always, I am content with my description of the case.
Both Wilcox and Sykes were referring to exactly what I said. They had concerns that in order to file the suit you did not have to prove that a particular company caused the harm. That is a valid criticism, but it is not the same as what you said.
In response to the USA Today article, and to the Journal Sentinel article which you did not quote, they misinterpreted the case just like you did.
Not a single company is going to have a judgment against them unless a plaintiff proves that a specific injury is caused by one of their products. I point to the 3rd element in the ruling that you quoted:
(3) That the defect was a cause of Thomas’s injuries or damages;
I dunno John… particularly reading 161 again, I’m still comfortable with my characterization. Moreover, rereading Wilcox and Sykes, I don’t see them as supporting the claim you are making. Wilcox says that the manufacturer “can be held liable,” not merely “can be sued to see if he can be held liable.” Sykes too speaks of “liability” and “recovery,” not mere “exposure to suit.” Look at the negligence standard:
There is no requirement there that Thomas prove that the particular defendants he sued manfactured the particular paint that was on the walls of Thomas’ rental house.
1. Yes there is.
2. If there was not then explain the result of the first court case under Thomas.
Are you serious, John? If your interpretation of Thomas v. Mallett is true, then why all the discussion? Why did the Justices waste so much paper? Why have the commentators even bothered to criticize the case? So to survive summary judgment, the plaintiff need only meet the requirements Dan copied above (twice), but to win at trial, the plaintiff must prove that he was injured by a specific manufacturer’s paint?
You might want to take another look at the decision (or the paragraphs included by Daniel, which clearly state that the plaintiff must prove only that the defendant produced or marketed the TYPE of white lead carbonate the plaintiff ingested, NOT that he must prove that he ingested the ACTUAL white lead carbonate produced/marketed by the defendant).
I’m not sure what “the first court case under Thomas” refers to, but if you are referring to Thomas losing at trial, then I’ll answer your second question. The jury found that Thomas failed to prove the second listed requirement: that the lead in the paint caused his alleged brain damage. He did not fail because he couldn’t prove that certain defendants’ brands of paint were on the walls of the home(s) he lived in, which he clearly did not need to prove under the Supreme Court opinion. (See Marie Rohde, “Paint Makers Win Verdict; Milwaukee Boy Ingested Lead, But Other Factors Harmed Him, Jury Finds, Milwaukee Journal-Sentinel, Nov. 6, 2007, at A1.)
Only what was alleged was before the court in Thomas. The issue was whether the defendants could be liable if what was alleged was subsequently proved. The plaintiff did not allege that what the plaintiff ingested contained pigment that came from a specific manufacturer. Rather plaintiff alleged each of the defendants made that type of pigment. As the majority concedes at para. 164 “The procedure is not perfect and could result in drawing in some defendants who are actually innocent…”.
The USA Today report that Wis. jury rejects claim in lead paint case said,
“The jurors decided that Thomas had been exposed to lead as a child, but because that exposure did not cause his brain damage, they didn’t address the paint makers’ liability.”
Hot fuzz- You need to reread that article. It clearly says that the jury ruled that not only did the plaintiff fail to prove that lead paint caused the injury, but also that they failed to prove which company manufactured the paint that was to have allegedly caused the injury (which they failed to prove).
The problem with this case is, when the decision was made the media misread the decision and falsely reported its result. This is the problem with using newspaper articles and talk show hosts as sources in a well written academic article.
While it does place lead paint lawsuits into a special category with a few other products and make it easier to file suit, it does not make it easier for plaintiffs to win a judgment. That is where the criticism should be.
John writes:
In order to win in court, you still have to prove causality (i.e. this particular paint made by this particular company caused this particular injury.
You are flat out wrong. It’s not even debatable. Thomas stands for the proposition that a person suing lead paint pigment manufacturers does not have to prove which of the manufacturers made the pigment to which he or she was exposed. They will have to prove that lead paint pigment (generally) was defective and that their injury was caused by the ingestion of lead paint pigment. They do not have to prove – ever – which company made it.
That was the whole point of Thomas. There was no way that the plaintiff was ever going to be able to prove who made the particular pigment to which he was exposed. The question before the court was whether that barred recovery.
Thomas lost his case after remand because the jury could not conclude that his injury was caused by lead paint pigment; not because he couldn’t prove who made it.
Thank you, Professor Esenberg. An appeal to the clear text of the decision hasn’t swayed John, so perhaps the opinion of a learned scholar will sway him.
John, do you have some ax to grind (aside from your ideology, that is — I disagree with the accusation that someone’s beliefs constitute an ax to grind)? I’m just not sure what, if anything, could coax you away from your assessment of the case.
By the way, I re-read the article (twice) and have yet to see where the journalist “clearly” wrote “that the jury ruled that not only did the plaintiff fail to prove that lead paint caused the injury, but also that they failed to prove which company manufactured the paint that was to have allegedly caused the injury (which they failed to prove).”