PRODUCTS LIABILITY TEST CHANGED IN WISCONSIN: Wisconsin Follows Trend Towards Adopting Restatement (Third) Of Torts

A rapidly changing area of insurance defense involves products causing injury or damage to people and property. Many states are moving towards adopting the standards set by the Restatement (Third) of Torts, and Wisconsin is no different. On February 1, 2011, the Wisconsin Omnibus Tort Reform Act went into effect, severely affecting and changing products liability law in Wisconsin. The Act, approved by a 57 to 36 vote in the Assembly made some rather dramatic changes to products liability in Wisconsin. Those changes will, in turn, have a significant impact on defending products liability cases.

Changes In Wisconsin Product Liability Law

With regards to products liability cases, the principal change in the Act was the adoption of a new test for defectiveness when claiming a design defect in a product. In the past, in order to establish strict liability, the standard was whether a product was dangerous beyond which would be contemplated by the ordinary consumer (“consumer expectations” test). This test focused on the reasonable expectations of the ordinary consumer, and was arguably a lower hurdle for a plaintiff to overcome in proving that a design was defective.

The Act changed this standard to a more exact test of whether there is a reasonable alternative design that should have been utilized by the manufacturer. Now, in Wisconsin, in an action for damages caused by a manufactured product based on strict liability, a product is defective in its design if the foreseeable risk of harm could have been reduced or avoided by the adoption of a reasonable alternative design, the omission of which renders the product not reasonably safe.

This is an expansive move to a standard that will be more difficult for a plaintiff to prove and something that will have to be identified early in litigation. A plaintiff’s engineering expert will not only need to identify the cause of the injury, but also identify whether an alternative design could have reduced or avoided the injury. This will be an area where a defense expert can examine and investigate with regards to whether the alternative design would have brought about a reduction or avoidance of the injury.

The Act also changed the apportionment of fault in products liability cases filed after February 1, 2011, to address the recent cases and arguments made in lead-paint cases in Wisconsin. Now, if more than one manufacturer, distributor, or seller of a product is found liable, the court must apportion liability among those defendants and that liability will be several and not joint.

Further, in addition to the other elements that are needed to prove a products liability claim, a claimant must prove that the manufacturer distributor, seller, or promoter of a product manufactured, distributed sold, or promoted the specific product alleged to have caused the claimant’s injury or harm.

Now, if a claimant cannot prove that a specific product caused an injury (if there are multiple manufacturers of a product and a specific manufacturer cannot be identified), then the claimant must prove all of the following:

  1. No other lawful process exists for the claimant to seek any redress from any other person for the injury or harm;
  2. The plaintiff has suffered an injury or damage that can be caused only by a product chemically identical to the specific product that caused the plaintiff’s harm; and
  3. The manufacturer, distributor, seller, or promoter of a product manufactured the product as a complete integrated produced in the form used by the plaintiff.

Other Notable Changes To Wisconsin Law

This bill has some other rather broad-reaching effects above and beyond its effect on products liability actions. The changes will apply to actions filed on or after its effective date. Some of these changes include the following:

Punitive Damages: (a) Places a cap where punitive damages received by a plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff or $200,000, whichever is greater. Wis. Stat. § 895.043(6). However, this cap does not apply to a plaintiff seeking punitive damages from a defendant whose actions included the operation of a vehicle while under the influence of an intoxicant to a degree that rendered the defendant incapable of safe operation of the vehicle; and (b) Raises the threshold for winning punitive damages in lawsuits so that plaintiffs would have to prove that defendants acted “with intent to cause injury to a particular person” or with a knowledge that their action would lead to that result.

Expert Testimony: (a) In addition to the current requirements for expert testimony in Wisconsin, an expert may now only testify if: (1) the testimony is based upon a sufficient review of the facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert has applied the principles and methods reliably to the facts. This moves toward the Daubert standard that has been utilized in Federal Courts and other state courts around the nation.

Please keep an eye out for future articles from MWL explaining these subjects in greater depth.

Wisconsin Is Following Other States

Wisconsin’s change in the standard for proving a design defect follows most other states in moving away from the Restatement (Second) of Torts to the Restatement (Third) of Torts. One should expect that most other states that are still following the Restatement (Second) and its consumer expectations test may follow suit in the near future.

Matthiesen, Wickert & Lehrer, S.C. believes in a scientific, aggressive, yet cost-effective approach to the evaluation and defense of products liability cases. As an engineer, I am one of the lawyers at MWL who reviews and defends products liability cases. Please contact me at if you have any questions or would like us to defend a case that involves products liability.

Gary L. Wickert

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.