If we are not careful, we are going to take a giant step backwards in this Supreme Court election. The state economy has been so good for so long, we tend to forget that a decade ago government-expansionist policies and judicial activism had Wisconsin ranked as one of the worst places to do business in the United States.
The following is an excerpt from an editorial that I wrote and that ran on February 3, 2011:
Here is the challenge: Wisconsin needs to improve its business climate so that employers can expand, create more jobs and grow government revenues.
Wisconsin has been suffering from the perception that it is an unfriendly place to do business, and our tort laws are a contributing factor. For example, during the 2004-05 term, the Wisconsin Supreme Court rocked the legal world with its decision in Thomas v. Mallet, a lead paint poisoning case. The Court expanded the scope of risk contribution theory and allowed the case to go to trial even though the plaintiff had no idea who made the lead paint. All historical manufacturers of lead paint could be held liable in proportion to their market share.
The decision got everyone’s attention. Judicial activist hailed it as an ingenious way for plaintiffs to recover damages even if they did not know who caused them harm. The judicial restraint crowd saw this as opening the floodgates to suing manufacturers by industry group. The one thing that both sides agreed on was that the Wisconsin court had set itself apart from what other states where doing.
Unfortunately businesses took notice too, and the case became a well-known illustration of why Wisconsin was an unfavorable place to do business.
Note that the Thomas v. Mallet decision has been repackaged and re framed for an attack ad in this year’s Supreme Court race. Here is some background. Use of lead paint was banned by federal law in 1978. By now, all lead paint should be covered-over or removed. Landlords are required to disclose the possible existence of lead point in an EPA-approved form.
No come 40 years into the future. Should we allow the surviving historical manufacturers of lead paint to be sued (1) because a landlord was negligent in maintaining a property and (2) regardless of whether it manufactured the paint that caused the injury?
I am sure that some of you have answered that questions yes. To some, it seems just that someone should have to pay. However, the question is are the people who said no evil and ignorant as the TV ad implies?
To be fair, there are legitimate reasons to be concerned about the reasoning and scope established by such a precedent. If a company can be sued for the actions of others or for being in the same industry as a product that caused harm, how could it defend itself? Even if the company acted legally and ethically, it could still be exposed to liability.
More importantly, why do business in a state that opens-up your company to this kind of risk? Why create jobs in Wisconsin?
With the benefit of hindsight, we can say that the reversal of Thomas v. Mallet by state law in 2011 was part of the package of tort reforms that gave us the thriving business climate that we have today. It is not unreasonable to see that as a good thing or to believe that the Thomas v. Mallet decision was wrong in the first place.
Keene Winters, Wausau
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