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New limits on liability suits?
8:18 PM 1/10/04
Judy Newman Business reporter

Kent Kutsugeras was helping with the corn harvest at his brother-in-law's farm near Hustisford, in Dodge County, in November 1986. <

The Allis Chalmers plant in West Allis, where Kutsugeras tested hydraulic systems for farm tractors, had closed and he was about to start work at the John Deere factory in Horicon. He never made it there. <

Kutsugeras fell into a corn picker. Entangled in the machine for more than two hours, he lost his right hand and both legs were amputated below the knee. <

Kutsugeras was 33, with a wife and 4-year old son. His life was forever changed. So he filed suit against the company that made the corn picker, Avco New Idea, because there was no emergency shutoff. The case took seven years to resolve; the federal court jury's verdict, awarding Kutsugeras $2.9 million, has helped pay his medical bills and build his family's wheelchair-accessible home. <

But if a bill before the Wisconsin Legislature had been law at the time, Kutsugeras might not have gotten a penny. <

The measure sets limits on lawsuits filed by people who have become injured or ill because of defective products. One of those limits prevents a manufacturer, in most cases, from being liable for damage caused by a product that's more than 15 years old. <

"The machine I was trapped in was over 15 years old," Kutsugeras said. "I know of three people (who have gotten) caught in them." <

Sen. Bob Welch, R-Redgranite, is the Senate author of the product liability bill. It raises the standard for proving an item is defective, he said. <

"It puts some common sense back into the system," said Welch, Senate president pro tem. "I have long thought that we spend too much of our society's money on extortion by trial." <

Here are some of the changes the bill would make: <

  • Removes most liability of distributors or sellers of the faulty product. <

  • Prohibits a lawsuit if a feature of the product is inherently and obviously dangerous to the user. <

  • Presumes the product is safe if it meets federal or state standards. <

  • If the user is intoxicated at the time of an accident, the manufacturer can make a "rebuttable presumption" that the alcohol or drugs caused the injury. <

    The proposal "doesn't necessarily constrict anybody's ability to sue if a product was defective and caused harm," said Brandon Scholz, president and chief executive officer of the Wisconsin Grocers Association, one of more than a dozen organizations supporting the bill. "It probably better defines for consumers what actions they can take." <

    The issue is important to vendors and suppliers, as well as manufacturers, "because of the ease with which somebody can get a knock on the head and just start suing everybody and their brother," Scholz said. <

    "Lawsuits are costly," he said. "A couple hundred thousand dollars can put you out of business." <

    But Milwaukee attorney Lynn Laufenberg said there's no need for such a bill. "There is no product liability crisis in Wisconsin," he said. <

    In 2001, more than 250,000 civil court cases were filed statewide and of those, only 85 involved faulty product claims, said Laufenberg, past president of the Wisconsin Academy of Trial Lawyers. <

    Laufenberg represented Kutsugeras in his lawsuit against Avco New Idea. He said putting a 15-year limit on cases against defective equipment discourages manufacturers from taking responsibility. <

    "Many of the people injured are family farmers and most of them simply cannot afford the newest and most modern equipment. So they use equipment made many years ago .

  • .
  • . for which they can still buy parts," Laufenberg said. <

    "These products are still on the market, still being used, still as dangerous as ever," he said. <

    Some may have met government standards at the time, but Laufenberg said that's not good enough. Welch disagreed. He said if standards are not adequate, they should be changed through legislation. <

    "You don't go suing; I just don't think that's the way our government is supposed to work," said Welch. <

    Laufenberg is also concerned about the provision that bars lawsuits if the product presents an obvious hazard. "It would say to the industry that you don't have to worry about guarding these kinds of problems .

  • .
  • . That sets back the concept of safety by decades in this state." <

    Gordy Farrell, Green Lake, was 29 when he became caught in a John Deere corn picker in 1984 at his father-in-law's farm in nearby Princeton. Farrell had been an assembler at Oshkosh Truck Corp. until the accident. He lost both arms to just below the elbow, his right leg to below the knee and his left foot. <

    "If you spend any time on a farm today .

  • .
  • . that clear and present danger is something that I'm sure could be argued on just about every piece of machinery," said Farrell, who now owns a small trucking company. "There's a lot of (farm) equipment that, by its very nature, is open and dangerous." <

    Another hangup opponents have with the bill is a provision that limits manufacturers' liability if more than one company is involved. <

    Chicago attorney Jill Rakauski represents 20 Wisconsin residents with asbestos-related cancer. In some cases, the plaintiffs were exposed to several products and it's hard to divide the blame, she said. <

    "A lot of manufacturers are in bankruptcy and there's no medical way to absolutely say this particular fiber started the cancerous process," she said. <

    On the other side of the asbestos issue are groups like the Wisconsin Retail Lumber Association in Germantown. Hometown retail lumber yards that carried ceiling tiles and flooring once made with asbestos are facing lawsuits, said David Rosenmeier, executive vice president of the organization. <

    "They don't have a clue as to whether the person involved that's ill bought the asbestos from them or from somebody else," he said. "You're talking about claims that go back 20 or 30 years. <

    "Unfortunately, some attorneys are just throwing a blanket over anybody (to) bring in as many people as they can, hoping they'll get something out of it," Rosenmeier said. <

    Holding companies responsible for hazardous products helps to pressure them into making changes that result in safer products, said Joanne Ricca, legislative staff member for the Wisconsin AFL-CIO in Milwaukee. <

    She cited a 2001 Wisconsin Supreme Court ruling upholding a lawsuit in favor of nurse Linda Green, who developed a severe allergy to the latex gloves she wore in her job at St. Joseph's Hospital in Milwaukee. <

    "You're not even sure which injuries or deaths you prevent because manufacturers know that they're held accountable," Ricca said. "We don't like to see erosion of that protection." <

    <

  • Copyright © 2003 Wisconsin State Journal


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