Dixon Gahnz Current Wisconsin Legislation

Sly- Joining us now from Lawton and Cates, it’s Dixon Gahnz. I wish you had good news to bring us today, but you don’t.

Dixon- No, no. I am—what is the harbinger of doom.

Sly- That’s kind of the theme of my show the last 8-9 months. Alright first of all, Lawton and Cates, you do a variety of law, personal injury, you name it, labor law—for the good side.

Dixon- Yes.

Sly- How do we get ahold of you?

Dixon- You can call us at 282-6200 or check us out on the web at lawtoncates.com.

Sly- Okay. What’s new, in this legislature, the job legislature?

Dixon- There’s a number of provisions that are out there. I want to talk about four briefly this morning. The first is the so-called “I’m sorry” legislation.

Sly- Are we talking about the Patsy Cline’s song here?

Dixon- No, this is how it’s being sold—is that you have a tragic situation where a patient dies on the table and the doctor comes out and tells the family that I’m really sorry that your loved one died. On its face, that seems reasonable that the doctor ought to be able to do that and not be worried about that coming back to haunt them two years later in a lawsuit. However, and this is the part that they’re not talking about, the bill is a lot broader than that. The legislative counsel wrote a memo in response to a specific question by one of our representatives. The question was what happens if a nurse testifies at a deposition that doctor so and so was drunk during the surgery and the fact that he was intoxicated was the reason the person died, does that get to come into evidence? The legislative counsel said we don’t think that comes into evidence. We think that the reach of this bill is so broad that it precludes that.

Sly- Alright, let’s take just a step back. What are the origins of this? What are they trying to accomplish? Who got sued for what that they’re trying to prevent?

Dixon- These would be situations of medical negligence that they’re dealing with so I don’t know that there is a specific case that this is in response to, other than that.

Sly- Alright, give me a scenario.

Dixon- Okay. The scenario is your parent goes in for surgery and the doctor kills that person, during surgery, by a surgical misadventure. That’s the set up.

Sly- Okay.

Dixon- So the doctor comes out and says I’m really sorry that your mom or dad died. That should not be coming into evidence. The flip side is though, if the doctor comes out and says I goofed, I should have done A B and C and I didn’t, it’s our position that you ought to be able to put that into evidence. This bill would not allow that.

Sly- Why?

Dixon- Admissions of fault

Sly- Seriously, do they really believe that you shouldn’t sue a doctor who performs medical malpractice?

Dixon- That’s the only rational conclusion that I can reach because let me give you a different scenario.

Sly- Republicans have surgeries as well, right? They don’t have heart surgery evidentially because I don’t’ think they have hearts, but they do have surgery, right? We are not a lawsuit crazy state. We don’t have a bunch of medical malpractice cases in this state and it’s pretty rare that they go to trial, correct?

Dixon- That is correct.

Sly- So there is not an epidemic of frivolous lawsuits?

Dixon- There’s not even an epidemic of personal injury lawsuits and juries last year, in Wisconsin, 3% found for the patient.

Sly- Really?

Dixon- Between 3 and 4% so this is a non-problem.

Sly- Would there be any circumstances that you could sue a doctor for medical malpractice after they get done?

Dixon- Yes. I mean you would still be able to say that, through your experts, that doctor--

Sly- So and so.

Dixon- So and so, violated the standard of care. You just wouldn’t be able to get any admissions from either the doctor or anyone in the operating room according to the way that the legislative counsel has interpreted this.

Sly- This is the same thing that they did to the nursing homes where they don’t want you to have access to the discovery process of the laws and what’s going on in the nursing homes.

Dixon- That’s correct.

Sly- So this is a pattern of behavior on their part.

Dixon- It is a pattern of behavior and it’s designed to really make it difficult, if you get to court, to prove your case. I think you said it earlier; it’s putting your thumb on the scale of justice. Let the information come in and let the jury decide.

Sly- How are they defending this?

Dixon- As I said at the outset they’re calling it the I’m sorry legislation and it’s easy to understand. I would think as a normal human being out in society, a doctor ought to be able to say I’m sorry and not get sued for it as long as it’s I’m sorry that your parent died as opposed to I’m sorry that I goofed during the surgery and did it wrong.

Sly- Lawyers always tell their clients if you hit somebody in an accident, keep your mouth shut. So this is going to be another situation where wouldn’t most doctors know not to divulge too much information?

Dixon- Yeah this isn’t something that happens a whole lot.

Sly- I guess they’re doing it because they can. Dixon Gahnz with us on 1670 WTDY. He’s with Lawton and Cates. Alright, what other doozies do they have for us?

Dixon- The next one I want to talk about is the FDA approved drug.

Sly- Okay.

Dixon- So currently in Wisconsin we have product liability so if there’s a dangerous product including drugs and medical devices that ends up hurting you, you can sue the manufacturer.

Sly- Seems reasonable.

Dixon- Seems reasonable and the current legislation that’s pending would give manufacturers of drugs and medical devices immunity from being sued if their drug or medical device was approved by the FDA. This to me, the irony of this, goes against everything you believe if you believe in small government. We want the federal government to decide what cases can and can’t be brought as opposed to twelve people in your local community deciding whether this drug was unreasonably dangerous.

Sly- Well they’re basically saying if the FDA approved something, they had all the knowledge that the drug manufacturer had. Don’t we sometimes, through the discovery process, find out Eli Lilly or one of these drug manufacturers had information they didn’t divulge to the FDA through testing?

Dixon- Yeah, there’s a Metronics bone infuse that’s an ongoing issue where there’s significant side effects that weren’t disclosed to the FDA. Let me give the listeners an idea of what cases would not be able to be brought. We’ve all heard of Celebrex, people dropping dead of heart attacks. That was FDA approved. The most famous one I think is Fen Phen, permanent heart valve damage, approved by the FDA.

Sly- That was a weight loss drug, right?

Dixon- Yes it was. And of course there’s Vioxx, causing heart attacks and strokes. Under this new legislation, because it was FDA approved, you wouldn’t be able to bring a product’s liability suit.

Sly- There have been some horrific cases over the years with drugs that cause birth defects, cause sterilization, cause a whole list of things. So they’re basically saying drug manufacturers are infallible because the FDA approves drugs. Of course here’s what makes this all the worse Dixon, we have people that go in and out of the revolving door of the FDA that work for drug manufacturers and then go work for the FDA then go back and work for the drug manufacturers.

Dixon- I mean this is—

Sly- This is big government.

Dixon- Like I said, I think it’s ironic that the government of small party wants to have the federal government decide what cases can be brought.

Sly- You know it’s amazing, don’t any of these legislators, these Republicans that control the legislature first of all is all of this stuff coming up in this job session?

Dixon- This is all coming up in the job session.

Sly- Oh okay well that’s going to create some jobs. I mean I guess for casket makers. Don’t any of these legislators realize that they may have to bring a lawsuit against a drug manufacturer at some point or they may have to go after a nursing home or they may be the victim of malpractice by a doctor?

Dixon- I don’t think that anybody ever thinks it’s going to happen to them.

Sly- Oh I do. Maybe it’s just because I’m paranoid but I know I’m dealing with humans.

Dixon- Yeah.

Sly-Anybody can make a mistake. And this is why we have a legal system to mitigate this but they’re again putting their thumb on the scale of justice. Alright normally you don’t stay, but can you stay a little longer so we can talk about these other two cases because it think this is important.

Dixon- Sure, absolutely.

Sly- Dixon Gahnz with us from Lawton and Cates. Madison 1670 WTDY, your phone number?

Dixon- 282-6200

Sly- And your website?

Dixon- www.lawtoncates.com

Sly- 9:20 Madison 1670 WDTY, one of the most progressive firms in the state, Lawton and Cates joins us every other Tuesday. Today, Dixon Gahnz is telling us about the job session. Once again Republicans are basically hazing lawyers and unfortunately the problem with that is that lawyers represent people and our access to the courts. They are our only access to the courts, maybe with the exception of public defenders. So these horrific bills go on? We have more?

Dixon- We do. And these last two that I want to talk about are really attacks on consumers, which is everybody. The first one that I want to talk about is interest which doesn’t seem like it’s that exciting of a topic, but the current law is if you win a lawsuit, any kind of lawsuit, you win a judgment and you get 12% of that judgment from the date of the lawsuit until the other side pays. That’s a pretty big incentive for people not to appeal because the appeal process takes a year and half to two years. So if you have $100,000 judgment, you’re talking 12 to $24,000 in interest. That’s the set up to this.

Sly- I see where this is going.

Dixon- Well they’re going to change it, but not for big business. Big business gets to keep its 12% interest, no matter what, essentially no matter what. Let’s take the example of a giant credit card company sues you for failing to pay your bill.

Sly- That’s interesting because Vicki McKenna was sued for not paying her credit card bill.

Dixon- Leaving that aside, they get their 12% interest until you pay the judgment.

Sly- Alright.

Dixon- So now let’s flip it around. You sue a giant credit card company because of their unfair trade practices. They are deceptive, they are fraudulent and you catch them and you get a judgment for $500 that they ripped you off.

Sly- Uh huh.

Dixon- You don’t get your 12% anymore as they wind that through the court of appeals. You get prime plus one and for anyone that’s keeping track, that’s about 4% these days.

Sly- How is that constitutional?

Dixon- I’m not sure that it’s going to be. These are not the law. These are things that they want to make the law.

Sly- Who is the author of that bill? Do you remember?

Dixon- I think I have that in front of me. I want to say that Grothman was.

Sly- Morgan, you may have to get ahold of Senator Grothman. Do we have that?

Dixon- I have it in front of me. That was introduced by the Committee on Assembly Organization by request of Governor Walker, Representative Pharo, and Senator Zipperer.

Sly- Representative, now State Senator Zipperer has been very busy because he has some bills attacking attorney fees as well.

Dixon- Not surprisingly, that was the next one that I was going to talk about because it rolls into the whole consumer protection and the attack on consumers.

Sly- Right.

Dixon- There are certain statutes in Wisconsin, there are certain things within the consumer statutes that say if, again going back to our giant credit card company, you catch them trying to rip you off, you’re going to have to hire a lawyer. And the lawyer is going to want to get paid. The way that it currently works is that if the lawyer is successful and they win your $500 back regardless of how long it takes, if it’s three years and two appeals and exedra exedra, the lawyer gets paid his or her reasonable attorney’s fees.

Sly- What it costs them to litigate and the wages for their staff, right?

Dixon- Right.

Sly- And a judge can look at this and determine what’s reasonable.

Dixon- Right, there’s a whole series of things that judges look at in terms of the experience of the lawyer, the complexity of the case, the amount of time that was put in.

Sly- This isn’t arbitrary. In other words, they look at this and there’s some parameters, right?

Dixon- Absolutely.

Sly- Alright. So Robin Vos, the State Representative from Burlington, he has a car dealership in his district. It’s in the paper this morning, the Lynch Dealership. They get a judgment against them for $150,000 in lawyer fees and they’re pissed off. Of course they’re the ones that wanted to go to court. Had they just fixed the guy’s transmission they wouldn’t have ended up in court, but they went to court and ended up with $150,000 judgment and they don’t like it. So now Robin Vos says well let’s just put a cap on fees. What’s the problem with that?

Dixon- It kills consumer litigation. You can’t do it. I mean what person, Sly, is going to fight--

Sly- For $500.

Dixon- For $500 when it’s going to cost them $25,000 or $100,000 or whatever it is.

Sly- This is a backhanded way of weakening consumer protection laws without saying that you weaken consumer protection laws. They get the cover of oh we’re just trying to stop those greedy lawyers from collecting big money, right?

Dixon- Yes absolutely. What they don’t understand is that you’re not going to rack up $100,000 in attorney’s fees on a two month fight.

Sly- Dixon, they understand.

Dixon- No I meant the consumer. The general public doesn’t understand that what you’re dealing with is thousands of hours of legal resources being put into this fight.

Sly- And the other thing that some do not understand is that we do not live in a litigious society unless you’re talking about companies suing companies, then we live in a litigious society.

Dixon- The latest statistics are that personal injury lawsuits are down, every other kind of lawsuit is down, except business to business. In Dane County and throughout Wisconsin, those are the lawsuits that continue to increase. So it’s important that we have access to the courts for them.

Sly- Now let’s get to Grothman, Michelle Litjens and Glenn Grothman. Elimination of compensatory and punitive damages in employment discrimination cases. Have you seen that one?

Dixon- I have seen that. And that one is, at least on the face, it’s a lot of noise but it’s not a lot of impact, so far. Knock on wood. Because the way that you go about getting those types of damages is so convoluted that—

Sly- They’re hard to get anyway?

Dixon- Right. And there’s other ways that you can go about it. You have federal claims that you can bring so although it certainly is a continued attack on employees—

Sly- The thumb is pushing harder on that scale, Dixon.

Dixon- It absolutely is.

Sly- Okay.

Dixon- And the attorney’s fees, going back to this, the attorney’s fees provision is not limited to consumer cases. They’re also talking about employment cases. So let’s say there’s a situation where a lawyer does a fantastic job for the client and gets the client reinstated, there’s not actually any damages so under this new law it’s going to be very difficult for that attorney to get her fee for getting this person that was wrongfully terminated, their job back.

Sly- Of course, they don’t like trial lawyers.

Dixon- It’s more than that. It’s more than that, it’s what is good for business, those are the types of laws they want passed.

Sly- They represent a very narrow group of people at the expense of all others. Is there another one you want to bring up?

Dixon- That’s about as much doom and gloom as I can dispense for one morning.

Sly- What about the hazardous highway exemption bill? You go down the list and not one of them do they side with the consumers or the little guy versus big business.

Dixon- That’s correct.

Sly- Not one of them.

Dixon- There’s nothing in here for Joe Sixpack

Sly- If you live in a trailer park, there’s nothing here for you.

Dixon- Not only a trailer park, but anywhere other than—well there’s not any protection for the average man and woman in this state.

Sly- Well on that that fine note give me Lawton and Cates phone number.

Dixon- 282-6200

Sly- If there’s even anything left to sue for, I don’t know. They’re just out to get you and out to get me. I hate to be paranoid but that’s the bottom line. People need to call their legislators.

Dixon- Absolutely, that’s the one take away. Email your legislator. Call your legislator. Register your opposition to these bills.

Sly- Dixon thanks for coming on, we’ll be seeing you soon.