Wisconsin Gov. Scott Walker (R) has signed into law an amendment that would clarify the legislature’s intent that tort reforms, including limitations on the courts’ ability to apply the “risk-contribution” theory, enacted in 2011 are applicable even to pending litigation. In 2005, the Wisconsin Supreme Court applied the theory, under which a claimant harmed by a substance may recover from a manufacturer of that substance even if unable to prove with certainty that the particular manufacturer made the substance that caused the claimant’s injuries, to lead pigment manufacturers. The 2011 law, Wisconsin Act 2, was specifically crafted to correct the court’s “improperly expansive application of the risk contribution theory of liability.”
The 2013 amendment to Wisconsin Act 20, known as Motion #999, clarifies that the 2011 provision “applies to all actions in law or equity, whenever filed or accrued.” According to a news source, a number of cases involving lead paint are pending in the courts, and it is expected that the law will be challenged. In a June 2013 memorandum, staff attorneys with the Wisconsin Legislative Council opined that the retroactive elements of Motion #999 “raise constitutional concerns.” Among other things, the memorandum discusses cases finding retroactive legislation affecting vested rights unconstitutional. See Wisconsin Legislative Council Informational Memorandum, June 12, 2013; Bloomberg BNA Product Safety & Liability Reporter, July 8, 2013.