Wisconsin Civil Trial Journal - Mallery & Zimmerman · Spring 2016 • Volume 14 • Number 1...

Spring 2016 • Volume 14 • Number 1

Wisconsin CivilTrial Journal

Also In This IssuePresident’s Message Jeff Leavell

The Recent Amendments to Rule 26 of the Federal Rules of Civil Procedure Ashley Rouse

Venue: “Substantial Business” and Insurance Companies Gregory S. Venker

Aggravation of a Pre-Existing Condition William R. Wick and Andrew L. Stevens

Wisconsin Adopts the Uniform Interstate Depositions and Discovery Act (UIDDA) Kerry Gabrielson

Advance Cable: The Seventh Circuit Court of Appeals Holds that Looks Do Matter Forrest G. Hopper and Taylor C. Gumbleton

Avoiding and Defending Claims of Cat’s Paw Liability in Employment Discrimination Cases Aaron J. Graf

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OFFICERS

PRESIDENTJeff Leavell

Jeffrey Leavell, [email protected]

PRESIDENT ELECTLaura Lyons

Bell, Moore & Richter, [email protected]

SECRETARY/TREASURERFred Strampe

Borgelt, Powell, Peterson & Frauen, [email protected]

IMMEDIATE PAST PRESIDENTKara Burgos

Moen Sheehan Meyer, [email protected]

PROGRAM CHAIR Ariella Schreiber

Rural Mutual [email protected]

DIRECTORS

Christopher Bandt Nash, Spindler, Grimstad & McCracken, [email protected]

Spencer Davczyk Davczyk & Varline, [email protected]

Frank DohertyHale, Skemp, Hanson, Skemp & [email protected]

Michael Happe Weld, Riley, Prenn & Ricci, [email protected]

Andrew Hebl Boardman & Clark [email protected]

Josh JohanningmeierGodfrey & Kahn, S.C. [email protected]

Travis RhoadesCrivello Carlson, [email protected]

Christine Rice Simpson & Deardorff, S.C. [email protected]

Amy SchollCoyne, Schultz, Becker & Bauer, S.C. [email protected]

Michael Vescio SmithAmundsen, [email protected]

Amicus Curiae Committee Chair Monte Weiss

Weiss Law Offices, S.C. [email protected]

Wisconsin Civil Jury Instructions Committee Chair Christopher Bandt

Nash, Spindler, Grimstad & McCracken, LLP

[email protected]

Young Lawyer Committee Chair Danielle Rousset

Jeffrey Leavell, S.C. [email protected]

DRI Representative Todd Smith

Godfrey & Kahn, S.C. [email protected]

Executive Director Jane Svinicki, CAE

[email protected]

Account Coordinator Beth Riefe

[email protected]

Account Administrator Scott Mattson

[email protected]

Legislative Advisors Bob Fassbender

Hamilton Consulting Group [email protected]

R.J. Pirlot Hamilton Consulting Group

[email protected]

Columnists

Editor

Andrew Hebl Boardman & Clark LLP

[email protected]

Kerry Gabrielson Godfrey & Kahn, S.C.

Aaron J. Graf Mallery & Zimmerman, S.C.

Taylor C. Gumbleton Borgelt, Powell, Peterson & Frauen, S.C.

Forrest G. Hopper Borgelt, Powell, Peterson & Frauen, S.C.

Jeff Leavell Wisconsin Defense Counsel

Ashley Rouse Boardman & Clark LLP

Andrew L. Stevens Nash, Spindler, Grimstad &

McCracken LLP

Gregory S. Venker Coyne, Schultz, Becker & Bauer, S.C.

William R. Wick Nash, Spindler, Grimstad &

McCracken LLP

President’s Message by: Jeff Leavell, President, Wisconsin Defense Counsel ��4

Avoiding and Defending Claims of Cat’s Paw Liability in Employment Discrimination Cases by: Aaron J� Graf, Mallery & Zimmerman, S�C� ��6

The Recent Amendments to Rule 26 of the Federal Rules of Civil Procedure by: Ashley Rouse, Boardman & Clark LLP ��14

Venue: “Substantial Business” and Insurance Companies by: Gregory S� Venker, Coyne, Schultz, Becker & Bauer, S�C� �� 21

Aggravation of a Pre-Existing Condition by: William R� Wick and Andrew L� Stevens, Nash, Spindler,

Grimstad & McCracken LLP ��30

Wisconsin Adopts the Uniform Interstate Depositions and Discovery Act (UIDDA) by: Kerry Gabrielson, Godfrey & Kahn, S�C� ��41

Advance Cable: The Seventh Circuit Court of Appeals Holds that Looks Do Matter by: Forrest G� Hopper and Taylor C� Gumbleton, Borgelt, Powell,

Peterson & Frauen, S�C� ��47

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In This Issue…

Journal PolicyWDC Members and other readers are encouraged to submit articles for possible publication in the Civil Trial Journal, particularly articles of use to defense trial attorneys. No compensation is made for articles published and all articles may be subjected to editing.

Statements or expression of opinions in this publication are those of the authors and not necessarily those of the WDC or Editor. Letters to the Editor are encouraged and should be sent to the WDC office at 6737 W. Washington St., Suite 1300, Milwaukee, WI 53214. The Editor reserves the right to publish and edit all such letters received and to reply to them.

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President’s Messageby: Jeff Leavell, President, Wisconsin Defense Counsel

Friends, I hope you are all enjoying the late winter or early summer, depending upon which day you are reading this issue. I have several things to report to you in this message.

First, the Wisconsin legislative session has concluded and we have a victory! The WDC’s proposed amendment to the adult sponsorship law passed the Assembly and Senate and was signed by the Governor on March 1, 2016.1 Thanks to Senator Kapenga and Representative Kuglitsch for sponsoring it and advocating it so effectively. The amendment provides sponsors of minor drivers the protection of a limit on liability of $300,000 or available insurance if higher in amount. WDC worked hard to promote this legislation, with Hamilton Consulting and R.J. Pirlot representing us as lobbyists. I testified before the Assembly and the Senate, and our lobbyists persevered to keep the legislation moving. The idea for the legislation began with WDC, from an initial suggestion by Art Simpson. Congratulations to all. It is a slow and sometimes frustrating process but this success shows our efforts can result in a betterment of the law.

This session we also continued to press for a collateral source rule amendment, merely to allow the jury to know the amount of bills paid. Unfortunately, we were once again stymied. This change would be a significant and positive move; however, it affects various interest groups in different ways, making it a challenge to achieve passage. You might think that with Republican majorities in both legislative houses this legislation would find a more receptive audience. However,

Republican majorities commonly look for consensus in the business community. Despite our efforts, we were unable to obtain it this session. The health insurance lobby opposed us, united obviously with the plaintiffs’ lawyers lobby, seeking to keep the medical expenses fictitiously inflated. Our simple amendment would have allowed jurors to hear what amounts were paid for medical services, and use that information, along with the billed amount, to decide the proper amount to find in their verdict. In trying cases I have always been troubled by the court’s instruction to juries that they should “let your verdict speak the truth,” when we know the answer on medical expenses is fiction. I am hopeful in the next session that we can continue working with our partners in this legislative effort and move the law on this subject in a positive direction.

In other successes, we joined forces with others to oppose a bill that would have increased the interest rates on small claims judgments to 8 percent, and to support an amendment to the “dog bite” statute to make the double damages provision available only after a prior bite that caused permanent injury to a human, and if the owner knew the dog had previously done so.2 As I write this message, we are preparing for the WDC Board of Directors strategic planning session to be held on March 11. Thank you to those who answered the survey for it. We will use the survey results in our planning session. The session will be facilitated by a practicing defense lawyer from Indiana, John Trimble, who volunteers through DRI. We will have a frank discussion about WDC’s mission, its goals, a plan for achieving them, and

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how to deliver better services to members. I am proud of those taking time out of their busy schedule to participate in this planning session. We have not done this in over a decade.

On the issue of that survey, you gave high marks and complements to WDC for the quality of its CLE seminars and periodic updates on the law. The Civil Trial Journal, predictably, was identified by many as a positive program. We will redouble efforts on areas that were identified for improvement, including expanding our membership beyond the traditional insurance defense world, improving access to our programming via electronic means and the website, and sponsoring events in the beautiful sections of our state outside the usual Milwaukee-Madison corridor.

And now, I have a request for you: I urge you all to submit nominations for the WDC awards. The awards are an opportunity to reward superlative service, and also an opportunity for WDC to enhance its profile as an association interested in rewarding service. The awards are a win-win, for WDC and the recipient of the award. You can nominate a person for the award by submitting your nomination to the WDC office. The available awards are:

The Advocate of the Year Award, which recognizes the member with the most successful defense work during the prior calendar year.

The Distinguished Professional Service Award, which recognizes a longtime member who has given consistent effort to grow and improve WDC.

The Government Service Award, which recognizes an individual for service to the public in a governmental capacity.

We also have the Publication Award, which recognizes a particularly well-written article in the WDC Journal, and it is selected by the WDC Journal Editor.

Lastly, I want to congratulate the active Young Lawyers Division, chaired by Danielle Rousset.The Young Lawyers Division recently held a trial preparation CLE seminar that was well attended. I especially want to thank Attorney Eric Darling for taking time out of his busy schedule to present to the group. In a few months the Young Lawyers Division will host a CLE luncheon seminar in the Madison area, so keep an eye out for that invitation. Please feel free to contact Danielle Rousset with suggestions for CLE topics, or other services you would like the Young Lawyers Division to provide, as we are always looking to serve our members’ interests. The Division is raising our profile among young lawyers, and that is a necessity for the WDC to continue membership growth and to thrive.

Jeff Leavell has been a Wisconsin trial lawyer for over thirty years, with an emphasis on the defense of Wisconsin persons and businesses and insurance coverage� He is a Board-Certified Civil Trial Specialist by the National Board of Trial Advocacy, and has been so for over fifteen years. He has been selected as a “SuperLawyer” every year since 2006�His law firm, which he founded in 1994, has been recognized since 1995 by Martindale-Hubbell in its Bar Register of Preeminent Lawyers as a Most Distinguished Law Practice� He has served on the Board of Governors and is past President of the Racine County Bar Association�

Jeff is a frequent lecturer and author on trial and various law topics, including tort, construction, environmental, and employment law, and insurance coverage for them� He was admitted to the Bar in 1983. He graduated from the University of Chicago, with honors, in 1980, and the University of Wisconsin Law School, J.D., cum laude, in 1983. He was judicial law clerk for the Wisconsin Court of Appeals District IV from 1983-1985. He is the proud father of two Eagle Scouts, both now in college, and is married to attorney Georgia Herrera, whom he met in law school�

References1 See 2015 Wisconsin Act 202. 2 See 2015 Wisconsin Act 112.

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Avoiding and Defending Claims of Cat’s Paw Liability in Employment Discrimination Casesby: Aaron J� Graf, Mallery & Zimmerman, S�C�

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Introduction

In the complex, overlapping world of employment decisions it is common for a decision maker to rely on various other sources of information in making a termination decision.1 This may include considering recommendations of a low-level supervisor or even relying on past discipline issued by that supervisor. Due to time constraints, assuming that the supervisor knows the facts better, or simply not paying close attention, a decision maker sometimes is tempted to blindly rely on the recommendation or past discipline without verifying the facts or arriving at their own independent determination. Regardless of the merits of the ultimate termination decision, this can lead to what is known as “cat’s paw liability” for the employer if the underlying supervisor was illegally basing their recommendation or prior issued discipline on a protected characteristic.

These cases tend to pose interesting problems from a defense perspective as the employer may face significant liability even if the decision maker had no discriminatory intent whatsoever. This Article will review the history of cat’s paw liability in the Seventh Circuit, focus on how counsel can advise their clients to avoid such situations in the first place and, if a claim is made, outline strategies to defend against such claims.

I. Overview of Cat’s Paw Liability in the Seventh Circuit

The term “cat’s paw” comes from a 17th century fable entitled “The Monkey and the Cat” by Jean de La Fontaine.2 In the story, a monkey convinces an unsuspecting cat to retrieve chestnuts from a

fire. In the end, the cat burns its paws while the monkey devours the retrieved chestnuts.3 In today’s parlance, it refers to one being an unwitting dupe or tool for another’s purposes.

The Seventh Circuit Court of Appeals (covering Wisconsin, Illinois, and Indiana)4 has recognized the concepts behind cat’s paw liability in the employment discrimination context since at least 1990. In Shager v� Upjohn Co�, the court analyzed whether the discriminatory animus of a supervisor could taint the ultimate termination decision of the employer’s committee.5 “If [the committee] acted as the conduit of [the supervisor’s] prejudice—his cat’s paw—the innocence of its members would not spare the company from liability.”6 While the theory did not garner much attention at the Seventh Circuit over the following decade or so, the doctrine began receiving increased attention in decisions such as Brewer v� Bd� of Trustees of Univ� of Ill�, in which the Seventh Circuit developed specific contours for the application of cat’s paw liability.7 There, the court held that application of the cat’s paw theory was inappropriate “where a decision maker is not wholly dependent on a single source of information, but instead conducts its own investigation into the facts relevant to the decision.”8 The court expounded that “[i]t does not matter that in a particular situation much of the information has come from a single, potentially biased source, so long as the decision maker does not artificially or by virtue of her role in the company limit her investigation to information from that source.”9 This holding rendered the circumstances in which cat’s paw liability could be asserted rather narrow and circumscribed and was a largely employer-friendly decision.

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The Seventh Circuit continued its use of these principles in Staub v� Proctor Hospital.10 In Staub, the plaintiff was a reservist military member who was protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA).11 After working for his employer for over ten years, he was eventually fired by the decision maker, who admitted she would not have terminated the plaintiff without the prior write-ups and complaints from the lower-level supervisors.12 Further, there was ample evidence in favor of the plaintiff that the lower-level supervisors treated him unfavorably because of his military status.13 This led a jury to find in plaintiff’s favor based on cat’s paw liability. Despite this, on appeal the Seventh Circuit overturned the decision, relying on the prior Brewer language, and held that “[d]ecisionmakers usually have to rely on others’ opinions to some extent because they are removed from the underlying situation. But to be a cat’s paw requires more; true to the fable, it requires a blind reliance, the stuff of ‘singular influence.’”14

The United States Supreme Court accepted review and overturned the Seventh Circuit’s decision, along with the doctrines developed and applied in Brewer and Staub.15 The Supreme Court analyzed the issues under tort principles of proximate cause and agent liability and determined that the Seventh Circuit’s limitations on cat’s paw liability were not appropriate. There was no basis under these principles to limit liability to situations in which the supervisor was a “singular influence” on the decision maker. Rather, the court held that, “if a supervisor performs an act motivated by [] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.”16 This proximate cause approach was much more employee-friendly than the “singular influence” standard previously used by the Seventh Circuit in Brewer and Staub.

Perhaps unsurprisingly, this broadening of the availability of cat’s paw liability under Staub has led to an increase in such claims by plaintiffs, along with increased challenges for employers and defense counsel.17 Recent developments provide

guidance on avoiding such claims in the first place and, if asserted, how to successfully defend against them.

II. Insulating Employment Decisions from the Influence of the Menacing Monkey

Of course, the best way to defeat a cat’s paw claim is by never having to face one in the first place. If one can insulate the cat (decision maker) from the undue influences of the monkey (supervisor) and ensure that the decision is based on independent, corroborated evidence, the decision is unlikely to face cat’s paw scrutiny. There are several practices that attorneys can recommend that their clients adopt to insulate employment decisions from such claims, or to at least assist in making them as legally defensible as possible.

As described above, cat’s paw liability can arise anytime the underlying supervisor’s acts are motivated by illegal animus and that animus is a proximate cause of an adverse employment decision. Thus, the challenge becomes severing the proximate cause between the potential illegal act of the supervisor and the ultimate employment decision.

Recent decisions demonstrate how to effectively insulate such employment actions against cat’s paw claims. In Woods v� City of Berwyn, the Seventh Circuit was faced with a situation in which it was alleged that the age-based bias of the fire chief had illegally influenced the termination decision made by the Fire and Police Commission Board.18 In Woods, there were several events preceding plaintiff’s termination which could lead a jury to believe that the fire chief was biased against plaintiff because of his age. Eventually, the fire chief recommended to the Board that the plaintiff be terminated. The Board held its own evidentiary hearing, where the employee was represented by counsel, in which the Board: (1) heard testimony, opening statements and closing statements; (2) viewed exhibits and ruled on objections; (3) ruled on objections that went for and against the employee; and (4) issued an eight page decision setting forth its findings and conclusions.19

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However, as the Woods court readily noted, under Staub, “because the unbiased decision-maker could possibly rely on facts provided by the biased supervisor, a formal adversarial procedure does not automatically break the chain of causation.”20 Thus, it was crucially important that the Board almost exclusively relied on, and cited to, the testimony of another firefighter who was not alleged to have any animus against the plaintiff. Thus, “the hearing broke the chain of causation because the record shows that the Board did not rely on the facts presented by the presumably biased [fire chief.]”21 The court cautioned, however, that, “[h]ad the Board relied on [the fire chief’s] statements or failed to independently determine whether the conversation [justifying termination] happened, this might be a different case.”22

From Woods and past decisions it can be said that a cat’s paw theory is unlikely to be brought, or will easily be defeated, where the decision maker: (1) performs their own independent investigation of the grounds supporting the employment action; (2) relies almost exclusively on testimony or documents created by unbiased or disinterested individuals instead of on the individual initially making the recommendation; and (3) provides the employee a brief opportunity to rebut or disprove the allegations.

This suggests that developing formal policies (or improving ones already in place) for internal review processes is warranted and justified to insulate against such claims. While it may not be financially feasible for smaller employers, those that can afford the added upfront costs must seriously consider policies that require independent investigations of all significant adverse employment actions, such as lengthy suspensions or terminations. The usefulness of such review processes can be seen in recent decision from other circuits as well, such as the Tenth Circuit’s decision in Thomas v� Berry Plastics Corp.23

Ideally, the policy should provide for a small review panel of two to three disinterested managers to undercut any suggestion that a single reviewer

is biased against the employee. Further, the policy should require that the review panel not rely on or consider the initial recommendation but instead independently arrive at its own decision based on its own investigation. Also, the review panel should not rely solely on past-issued discipline documents but should independently verify the legitimacy of such past discipline, if possible. Finally, the process should provide a brief, informal process for the employee to rebut the bases for the adverse employment action. Given that the defense costs alone for a single “average” discrimination case can approach or exceed $100,000, not to mention the possibility of opposing attorneys’ fees and damages, insulating against several claims can easily pay for the added upfront costs many times over. While such a review process may seem daunting, each review need not be a Watergate investigation. Most situations would not require expending more than several hours of time.

The effects of not having any review process can be seen in a recent decision from the Western District of Wisconsin. In Hamzah v� Woodman’s Food Mkt�, Inc�, the employer was able to obtain summary judgment against a pro se plaintiff on all claims asserted except one—a Title VII discrimination claim based on cat’s paw liability.24 There were no allegations that the decision maker had any animus against the plaintiff or that his decision was discriminatory. However, completely unbeknownst to the decision maker, two of the plaintiff’s low-level supervisors had made inappropriate racial comments to him.25 The district court denied summary judgment and found that the pro se plaintiff presented enough evidence that a reasonable jury could conclude that the racial animus of low-level supervisors influenced the decision maker. The court found that “it is not apparent that [the decision maker] went anywhere near the lengths required to investigate whether [plaintiff’s] [disciplines] were justified apart from [the supervisors’] allegations.”26 As a result, the employer in Hamzah will now have to expend substantial time and resources defending what probably seemed like a certain victory because it had not implemented the type of review process that could have prevented cat’s paw liability.

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Counsel would be well advised to recommend such review processes to their clients where feasible. Insulating significant adverse employment decisions from the potential undue influences of lower-level supervisors can be a significant tool in avoiding suit or successfully defending against such claims.

III. Successfully Defending Against Cat’s Paw Claims

Of course, even the most carefully laid plans do not always protect against an enterprising plaintiff’s attorney attempting to assert a cat’s paw claim. In the event one is defending an employment discrimination claim and a cat’s paw theory is asserted by plaintiff, there are several tools in the proverbial toolbox to defeat such claims.

A. What Type of Discrimination Claim Is Asserted?

While the Seventh Circuit has not had occasion to explicitly rule on whether the cat’s paw theory applies under every possible discrimination law, it is likely that, in most situations, only those discrimination laws applying the lesser “motivating factor” test will be implicated for cat’s paw treatment. In other words, absent an unusually strong influence by the supervisor, the underlying discrimination triggering potential cat’s paw liability may rise to the level of a motivating factor but will typically not be a determinative factor in the employment decision. After all, the theory is that the decision maker is an unwitting dupe, unaware of any illegal animus underlying their decision. As a result, where the discrimination law in question requires that the illegal discrimination be a determinative factor in the employment decision, a strong argument can be made that the cat’s paw theory should not be applied.27 This nuance is not always appreciated by plaintiffs drafting and filing complaints. This distinction can be an important tool in seeking dismissal of suits entirely or whittling down the scope of the claims asserted.28

B. Strategies for Defense

Defense counsel should carefully investigate the facts from the outset to determine whether cat’s paw liability will be an issue. Having full knowledge of such facts from the beginning will lead to a better, more comprehensive defense and can lead to favorable settlements or other developments. There is nothing worse than believing one has an airtight defense because there is no evidence the decision maker bore any animus whatsoever towards the plaintiff, only to have the entire defense torpedoed because one low-level supervisor uttered a racial slur two months before the decision.

If cat’s paw liability is likely to be an issue, counsel should purposefully develop the evidence to defend against it. First, counsel should insulate the decision maker from the supposed undue influence as much as possible and downplay any reliance or consideration of the supposedly tainted recommendation or underlying discipline. This may consist of developing evidence about the level of limited interaction between the decision maker and the supervisor, evidence showing past examples of the decision maker departing from recommendations of the supposedly tainted supervisor, emphasizing the influence of other untainted individuals on the process (such as human resources staff or the decision maker’s superior), and the like.

In that same vein, counsel should develop the record as much as possible about every nuanced step the decision maker took in investigating the bases for the employment action and in reaching the ultimate decision. No amount of detail in this regard should be seen as overkill. The more detail presented to the fact finder about the decision maker’s own investigation and independent judgment, the more likely that it will be found the illegal animus was not a proximate cause of the ultimate decision.

Defense counsel should be wary of plaintiffs who attempt to take the easy road in asserting cat’s paw liability. Plaintiffs often attempt to establish cat’s paw liability by merely offering evidence that suggests an illegal animus by their supervisor and then demonstrating that the supervisor

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recommended the adverse action or that the decision maker relied on prior discipline issued by that supervisor. However, under Staub, the burden for cat’s paw liability is not supposed to be this low. While such an approach is the easiest road for plaintiffs to follow, it is not the legal standard. Rather, under Staub, the plaintiff must show that the underlying supervisor’s act was actually motivated by the animus and that they intended their acts to cause the adverse employment action. Plaintiffs who have not developed sufficient evidence during discovery on these issues are prime candidates for dispositive motions in advance of trial.

Conclusion

The assertion of cat’s paw liability by a plaintiff can turn the otherwise straightforward defense of an employment discrimination claim into a complex scheme of animus, intent, and the tainting of otherwise completely legitimate employment actions. To the extent employers are able to further insulate employment decisions from the possibility of the undue influences of a biased supervisor, such steps are highly recommended. If litigation occurs and a theory of cat’s paw liability is asserted, a conscious, proactive approach to developing evidence which severs the causation between the biased supervisor and the ultimate employment decision will aid in a successful defense.

Aaron Graf is a litigator in the Milwaukee, Wisconsin office of Mallery & Zimmerman, S.C. He focuses his practice on labor and employment law and municipal law and is certified as a Professional in Human Resources (PHR)� He routinely defends employers and municipalities throughout Wisconsin and proactively advises them on ways to avoid liability� Aaron was selected for inclusion as a Wisconsin Rising Star in 2014 and 2015 by Super Lawyers� He received his J�D� from Marquette University Law School in 2008 and his B.S. from Concordia University Wisconsin in 2004�

References1 While cat’s paw liability can be utilized in regards to any

adverse employment action, for simplicity this Article will focus on termination decisions.

2 Staub v� Proctor Hosp�, 560 F.3d 647, 650 (7th Cir. 2009), reversed and remanded, 562 U.S. 411 (2011).

3 Id. 4 It should be noted that some states, such as Wisconsin,

equally apply the cat’s paw theory of liability under their separate state employment discrimination laws. See, e�g�, Tohl v� CUSA ES LLC, ERD Case No. CR200701939 (LIRC 11/21/13) (Wisconsin’s Labor and Industry Review Commission applying the cat’s paw theory to violations of the Wisconsin Fair Employment Act).

5 913 F.2d 398 (7th Cir. 1990).6 Id� at 405.7 479 F.3d 908 (7th Cir. 2007).8 Id� at 918. 9 Id. 10 560 F.3d 647.11 Id� at 651.12 Id� at 654. 13 Id� at 652. 14 Id� at 659.15 Staub v� Proctor Hosp�, 562 U.S. 411 (2011). 16 Id� at 422. 17 While Staub addressed liability under USERRA, the

Supreme Court specifically noted that “[USERRA] is very similar to Title VII.” Id� at 417. Further, the Seventh Circuit has readily applied the Staub principles in the Title VII context. See, e�g�, Matthews v� Waukesha Cnty�, 759 F.3d 821, 828 (7th Cir. 2014).

18 803 F.3d 865 (7th Cir. 2015).19 Id� at 870-872.20 Id� at 871.21 Id. 22 Id. 23 Thomas v� Berry Plastics Corp., 803 F.3d 510 (10th Cir.

2015).24 Hamzah v� Woodman’s Food Mkt�, Inc�, 2016 WL 297748

(W.D. Wis. Jan. 22, 2016) (unpublished decision).25 Id� at **6-7.26 Id. 27 See, e�g�, Lindsey v� Walgreen Co�, 615 F.3d 873, 876 (7th

Cir. 2010) (“And even if Jenkins were a cat’s paw, Lindsey could not prevail because the evidence established at most that her age was a motivating factor in Walgreens’ decision to fire her. To establish liability under the ADEA, however, Lindsey had to show that her age was the determinativefactor.”) (emphasis added).

28 It should be cautioned that there is the possibility of individual liability for the malicious monkey for claims brought under 42 U.S.C. § 1981. See Smith v� Bray, 681 F.3d 888, 899 (7th Cir. 2012) (“It also makes sense as a matter of basic fairness: why should the ‘hapless cat’ (or at least his employer) get burned but not the malicious ‘monkey’? The cat’s paw theory can support individual liability under § 1981 for a subordinate employee who intentionally causes a decision-maker to take adverse action against another employee in retaliation for statutorily protected activity.”).

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The Recent Amendments to Rule 26 of the Federal Rules of Civil Procedure by: Ashley Rouse, Boardman & Clark LLP

On December 1, 2015, a package of amendments to the Federal Rules of Civil Procedure was implemented. Included among the amendments are changes to case scheduling, judicial involvement in case management, and discovery. This Article provides an overview of the changes to discovery practice under Rule 26 and summarizes commentary regarding the practical implications (if any) of the discovery amendments.

Proportionality Standard

There are several prominent changes to Rule 26 on discovery matters ranging from the scope of discovery to updates in timing and sequence. The first key amendment is found in Rule 26(b)(1), which governs the scope of discovery. Under the amended rule, discovery is now centered on the concept of proportionality. Amended Rule 26 provides that unless otherwise limited by court order, the scope of discovery is any non-privileged matter that is both relevant to any party’s claim or defense and “proportional to the needs of the case.” The “proportional to the needs of the case” language is new. In determining whether the information sought is proportional, the rule provides parties with six factors to consider. They are: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties’ relative access to relevant information; (4) the resources of the parties; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit.

Most of the factors probably look familiar, as they were present previously in the rule (except for “the parties’ relative access to relevant information” factor, which was not present in the previous rule at all). However, the factors were not listed as a part of the scope of discovery. Instead, they were found in a less prominent subpart. Courts were allowed to limit discovery based on those factors. The placement of the proportionality factors within the scope of discovery arguably gives them greater significance in practice. The 2015 Advisory Committee Notes make it clear that parties must now consider the proportionality factors in making discovery requests, responses, and objections.

Further, the proportionality factor requiring consideration of “parties’ relative access to relevant information” is an entirely new addition to Rule 26. The inclusion of this factor is intended to bring overt consideration to information asymmetry, where it was once implicit in the former rules.1 Information asymmetry describes a case where one party may have very little discoverable information, while the other party may have vast amounts of information. Information asymmetry is often seen in disputes between large corporations and individual plaintiffs. The Advisory Committee notes that in practice, information asymmetry often means that the party who has more information is left with a greater burden in responding to discovery. The Committee states that placing this burden on the party with more information is proper. Incorporation of this factor into the language of the rules mandates consideration of information asymmetry in determining whether the information is discoverable under the new proportionality standard.

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Removal of “Subject Matter” and “Reasonably Calculated”

Another significant change to Rule 26(b)(1) is that the language allowing for discovery of information that appears “reasonably calculated to lead to the discovery of admissible evidence” has been removed from the rule. While surprising to many, the Advisory Committee concluded that the phrase has been used incorrectly to define the scope of discovery and has in fact created problems over the years. The “reasonably calculated” language is now replaced with the direct phrase “information within the scope of discovery need not be admissible in evidence to be discoverable.”

In addition, the provision authorizing the court, for good cause, to order the discovery of any matter relevant to the “subject matter involved in the action” has been removed. According to the Committee, this language is rarely used. After the amendments, as long as there is a proper understanding of what is relevant to a party’s claim or defense, proportional discovery relevant to any party’s claim or defense is sufficient. Some argue that removing this language greatly constricts the scope of available discovery and now discovery will essentially be only self-initiated as parties may not turn to the court for previously-allowed broader discovery.

Elimination of Listed Examples of Discovery Items in Rule 26(b)(1)

Under former Rule 26, parties could seek discovery of any matter relevant to any party’s claim or defense, “including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of such persons who know of any discoverable matter.” The amendment deletes that language. Though the language has been removed, the Committee Notes explain that discovery of such matters is still permitted under the amended rule when relevant and proportional to the needs of the case. The Committee explains that discovery of these items is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with the examples.2 Thus, this amendment

is not designed to have any practical impact despite the significant amount of language removed from the Rule.

Timing and Sequence of Discovery

The timing and sequence of discovery has also been amended in two major ways. The first change relates to the timing of discovery and updates the procedure for service of requests for production. The second change relates to discovery’s sequence and allows parties to stipulate to case-specific sequences of discovery.

Parties were forbidden under the previous rule from serving document requests before the Rule 26(f) conference. The Rule 26(f) conference can provide for a swifter disposition of the case by planning for discovery and exploring whether the parties are open to the possibility of settlement. Amended Rule 26(d)(2) now permits a party to “deliver” requests for production prior to that conference. Parties may now deliver requests as soon as 21 days after the receiving party has been served in the litigation. Delivery may be made even though the parties have not yet had a Rule 26(f) conference. Following the conference, producing parties have 30 days to serve objections and responses. Practitioners should note that the rule makes a distinction between “delivery” of requests and “service” of requests. Delivery of requests for production does not count as service. Instead, requests delivered prior to the Rule 26(f) conference will not be deemed served until the Rule 26(f) conference occurs. This of course means that the time for responding is not triggered until the conference is held.

The purpose of the revision allowing early requests for production is to foster more productive and focused discussions during Rule 26(f) conferences. If parties are aware of what opposing counsel is seeking at the time of the conference, this knowledge will arguably assist with more streamlined discussions. The Committee further acknowledges that discussion at the conference may result in a party changing the requests. If a party is provided an opportunity to review the requests before the conference, this should not impact a decision of

16

whether or not to allow additional time to respond.3 The second change to the Rule allows parties to stipulate to case-specific sequences of discovery under amended Rule 26(d)(3).

Expenses for Disclosure

Rule 26(c)(1)(b) is amended to include an express recognition of protective orders that allocate expenses for disclosure. As the Committee Note states: “Authority to enter such orders was in the previous rule and courts already exercise this authority. However, explicit recognition is designed to forestall the temptation some parties may feel to contest this authority.” The Committee has noted that explicitly recognizing the authority does not imply that cost-shifting should become a common practice. Instead, courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.4

Discovery Plans

Yet another amendment to Rule 26 revises the required contents of discovery plans to include two additional topics. Under the former rule, parties were required to develop a proposed discovery plan on the issues of initial disclosures and the scope of discovery. After the amendments, discovery plans must now also state the parties’ views and proposals on both electronically stored information (“ESI”) preservation and orders protecting against waiver of the attorney-client privilege. Beginning with the topic of ESI, both parties must now address preservation issues in the discovery plan itself. Previously, discussions regarding ESI preservation could be completed at the meet and confer. Additionally, the parties must consider seeking a 502(d) order to protect against waiver of the attorney-client privilege or work product protection under amended Rule 26(f)(3)(d). The amendments to the provisions on discovery plans are designed to encourage the early identification and resolution of potential disputes.

Commentary Regarding the Significance of the Amendments

In the 2015 Year-End Report on the Federal Judiciary, Chief Justice John Roberts stated that the 2015 amendments “provide a concrete opportunity for actually getting something done.” The Chief Justice further stated that amended Rule 26(b)(1) develops the concept of reasonable limits on discovery through additional reliance on the common-sense concept of proportionality. He added that the amendments eliminate unnecessary and wasteful discovery. He concluded that the true test for plaintiffs’ and defendants’ counsel alike is whether they will “affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.” Members of the bar, he stated, did not go to law school because of a “burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.”

Though the Chief Justice hails the amendments as a much-needed change, the views and commentary from practicing litigators regarding the amended discovery rules are mixed. Supporters of the amendments assert that the changes will encourage parties to devote more attention to discovery planning and to also give greater consideration to conducting phased discovery. On the other hand, attorneys in opposition to the amended rules assert that the changes will result in significant constrictions to the scope of discovery. Finally, there are some attorneys who assert that the changes are unnecessary and will have very little practical effect on the way attorneys conduct discovery.

A member of the Advisory Committee stated that the amendments were not enacted to reduce the scope of relevant discovery. Instead, “the whole point of these changes is to make the rules work better, and lawyers should respond in that spirit.”5 Commentators are split on whether that will actually prove true in practice. One Wisconsin attorney asserts that the Committee downplays the

18

significance of the 2015 Rule changes and states that courts and practitioners should prepare for the paradigm shift affected by the amendments.6 Additionally, some commentators assert that litigants are undoubtedly going to continue to receive incredibly broad discovery requests that demand “all” documents, data, correspondence, etc. As this practice will not change, proportionality will become the new blanket objection, leaving the party who is requesting the information with the burden to justify how each request made is proportional to the needs of the case. The Advisory Committee attempts to alleviate those concerns by making clear within the Committee Notes that the changes are not intended to permit opposing parties to make blanket objections stating that the information sought is not proportional.7 Instead, both the parties and the court have a shared responsibility to evaluate the proportionality of discovery and consider it when resolving discovery disputes.8

A fair amount of criticism regarding the amendments provides that the amendments are in sharp contrast with the robust model of discovery that is intended for litigation practice. Commentary of this nature cites to the deletion of the “reasonably calculated” provision as an example of one of the amendments that will significantly constrict the scope of discovery, citing cases when broad discovery was ordered based on that provision.9 If parties are no longer able to seek discovery of information reasonably calculated to lead to admissible evidence, this will essentially limit the breadth of discovery that can be sought and obtained. Parties now must be prepared to argue the proportionality of the discovery they seek without having a full understanding of what the request may lead to. As a further limit, practitioners may no longer ask a court for broader discovery of “any matter relevant to the subject matter involved in the action.” These restrictions, some argue, will drastically impact the access that an opposing party has to information that was once discoverable under the previous rule.

Supporters of the changes to Rule 26 argue that the amended rule will encourage parties to devote more attention to discovery planning. Also, in an effort to

ensure that discovery is proportional, practitioners may give greater consideration to conducting discovery in phases. Along those same lines, the emphasis on proportionality may lead to reductions in the costs of discovery as parties must be more thoughtful about the discovery they seek. Finally, as parties are able to deliver discovery requests prior to the 26(f) conference, both sides are now able to come to the conference with an understanding of the information sought and talk through the reasonableness or necessity of the requests.

As practitioners are split on what the effects of these amendments will be, the Duke Law Center for Judicial Studies drafted a set of guidelines for practitioners and judges, entitled “Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality.” The guidelines offer practices and useful ways to achieve proportional discovery, noting that there is no one-size-fits-all approach.10 For example, one recommendation is that the parties and the judge consider using technology to help achieve proportional discovery. This practice is recommended because technology can help achieve proportionality by decreasing the burden or expense, or by increasing the likely benefit, of the proposed discovery. The guidelines also offer a recommendation for cases in which discovery is likely to be voluminous or intricate, or cases in which the parties are likely to have significant disagreements about the relevance or proportionality of discovery. In those cases, the Center recommends that the parties and the judge consider initially focusing discovery on the subjects and sources that are most clearly proportional to the needs of the case. The results of that discovery should be used to guide decisions concerning further discovery.11

Conclusion

The implementation of amendments to the practice of discovery under the federal rules has been touted by many as a way of developing more focused and effective discovery practice. On the other hand, the amendments have also been sharply criticized for greatly restricting the scope of discovery. Despite

20

the great divide, until the rules have been in practice for quite some time, it remains to be seen whether the amendments will actually have significant practical implications long-term.

Ashley Rouse is an associate with Boardman & Clark LLP and is a member of the firm’s Litigation and Labor and Employment practice groups� Prior to joining Boardman & Clark in 2015 as an associate, Ashley spent two summers as a law clerk with the firm during law school. Ashley is licensed to practice law in Wisconsin and Illinois�

References1 Fed. R. Civ. P., 2015 Notes of Advisory Committee.2 Id�3 Id�4 Id�5 Andrew M. Kennedy, “Amended Federal Rules:

Streamlining Litigation,” ABA Journal, Vol. 41., No. 2 (Winter 2016).

6 Richard B. Moriarty, “And Now for Something Completely Different: Are the Federal Civil Discovery Rules Shifting Back in Time?,” Western District of Wisconsin Bar Association (May 2015).

7 Fed. R. Civ. P., 2015 Notes of Advisory Committee.8 Id�9 Moriarty, “And Now for Something Completely Different,”

supra note 6. 10 Discovery Proportionality Guidelines and Practices, 99

Judicature No. 3 (Winter 2015). 11 Id�

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21

Venue: “Substantial Business” and Insurance Companiesby: Gregory S� Venker, Coyne, Schultz, Becker & Bauer, S�C�

I. Introduction

Consider the following situation. A car accident occurs in Sauk County where defendant also resides. Plaintiff, who resides in Illinois, files suit in Milwaukee County. Or how about this scenario? A motorcycle accident occurs in Ashland County. Defendant lives in Marathon County. Plaintiff, who resides in Washington County, files suit in Dane County. Although it may seem absurd for a case to be venued in a county with no connection to the facts or the parties, plaintiff’s attorneys routinely attempt to venue cases in this manner, arguing that the venue is appropriate because the liability insurer does “substantial business” in the venue county.

Indeed, it seems that there is a conference every few years where someone suggests that if an insurer does “substantial business”1 in multiple counties in Wisconsin, then venue should vest in any county. However, venue rules are longstanding in Wisconsin and across the United States, and are couched in policy principles of fundamental fairness.2 The problem is, the specific venue statute in Wisconsin has changed over time, and with it, key statutory language has been removed. These changes have created an ambiguity in the statute that is sometimes exploited to absurd results, including the argument that venue is properly in any county so long as an insurer does “substantial business” there. This Article discusses how to challenge such efforts when they are encountered.

II. History of Wisconsin’s Venue Statute

Venue in Wisconsin has been controlled by statute or legislative act since shortly after statehood.3 As

the law matured, venue rules for the most common types of cases were consolidated into a unified venue statute, which also evolved over time.4 The first consistent numbering occurred in 1878.5 Major re-numberings occurred in 1925 and 1973.6 Common factors in determining venue have always included “where the claim arose,” “where the subject of the action is situated,” and residence of the parties.7

Railroads and corporations were among the first classes of defendants to have venue specified by statute.8 Railroads could be sued in any county their railway ran.9 Corporations could be sued either where they had their principal place of business or where the cause of action arose.10 But in 1919, the legislature added a new paragraph to address an “action against an insurance company … to recover on a policy of insurance.” 11 Insurance companies, like corporations, were to be sued in the county in which they had their principal office but, in contrast to corporations, could also be sued in the county in which the plaintiff resided.12 These requirements persisted until the statute was significantly rewritten in 1983.13 A catch-all has existed largely unchanged since 1878, placing venue in “any other action” in the county where any defendant resides, or if no defendant resides in the state, then in any county plaintiff chooses.14

Importantly, in 1925 the legislature added a subsection to specify that “actions growing out of the negligent operation of a motor vehicle” would be tried in “the county in which the cause of action arose or where the defendant resides.”15 In 1943, the legislature further clarified venue for insurance companies when they were “sued growing out of the negligent operation of a motor vehicle.”16 In

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that scenario, venue was consistent with other actions for negligent operation of a motor vehicle: the county where the cause of action arose or the county where the insured resided.17

Venue for insurance companies was clarified once more in 1977. The legislature repealed the subsection specifically addressing automobile accidents and modified the subsection dealing with insurance companies so that any “action growing out of negligence by the insured” would be tried in the county where the cause of action arose or where the insured resided.18 This language persisted until a major revision of the venue statute for all civil cases in 1983.19

At the time of the revision, Wis. Stat. § 801.50 contained 12 different subsections dealing with specific types of actions and specific classes of parties, as well as the catch-all provision for “any other action.”20 The legislature asked the Judicial Council to review the subsection and determine whether § 801.50 could be revised and streamlined.21

The Council found that Wisconsin’s venue law contained archaic distinctions, which restricted plaintiff’s choice of venue, and sought to liberalize plaintiff’s initial choice.22 All of the subsections addressing types of action and classes of parties were eliminated and the framework now found in § 801.50(2) was created for almost all civil actions. Section 801.50(2) currently reads as follows:

(2) Except as otherwise provided by statute, venue in civil actions or special proceeding shall be as follows:(a) In the county where the claim arose;(b) In the county where the real or tangible

personal property, or some part thereof, which is the subject of the claim, is situated;

(c) In the county where a defendant resides or does substantial business; or

(d) If the provisions under par. (a) to (c) do not apply, then venue shall be in any county designated by the plaintiff.23

The changes are significant in two ways. First, they replace “principal place of business” with

“substantial business.” Second, they create an arguable ambiguity in subsection (2)(c), which states that venue is proper in the county where a defendant resides or does substantial business.

III. Definition of “Substantial Business”

There is a surprising lack of case law interpreting and applying the concept of “substantial business” in Wisconsin. The first case to examine “substantial business” for venue questions was published nearly a decade after Wis. Stat. § 801.50 was rewritten, and there have been no detailed analyses since then.24

In Enpro Assessment Corp v� Enpro Plus, Inc., a Wisconsin corporation was sued by a Minnesota corporation over a trade name dispute.25 The Minnesota corporation filed in St. Croix County, conveniently located near Minneapolis. The Wisconsin corporation challenged venue on the basis that its headquarters was in Calumet County.26

The Wisconsin corporation specifically asserted that it did not do substantial business in St. Croix County, and this was the sole focus of the court of appeals’ attention on appeal.27 The court determined this was a matter of first impression in Wisconsin, and looked to Wisconsin case law interpreting “substantial business” in contexts other than venue. The court also reviewed case law interpreting the language “substantial and not isolated” in the context of personal jurisdiction.28

The Enpro court found only two prior cases applying the concept of “substantial business.”29 Both cases dealt with out of state insurance companies, and the court interpreted them to show that entities could carry on “substantial business” in an area “even in the absence of an office or employees.”30 The first case, National Liberty Life Ins� Co� v� State, asked whether Wisconsin could tax a foreign insurer’s premiums resulting from direct mail business as part of the state’s regulatory scheme against unauthorized insurers.31 The National Liberty court concluded that the insurer could be taxed based on the significant increase in gross premiums in Wisconsin after the direct mailing efforts began.32

However, venue was not discussed at all in the

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National Liberty case, and the phrase “substantial business” appears only once in the entire decision.33

The second case, Wisconsin Area Health & Welfare Fund v� Cate, is more interesting since it actually dealt with venue and interpreted a former statute using the phrase “substantial business.”34 However, Cate is the only case interpreting that use of the term “substantial business” and, unfortunately, the Enpro court misinterpreted the holding in Cate.

In Cate, part of the issue was that the Wisconsin Area Health & Welfare Fund (“the Fund”) was registered as a domestic trust company in Dane County, but was sued in a small claims action in Ashland County.35 The statute then governing venue in small claims actions, Wis. Stat. § 299.11, stated that, in contract actions, venue was “the county where the defendant resides or is personally served.”36 For foreign corporations, “residence” was “any county in which a corporation carries on substantial business activity,” but for domestic corporations “residence” was “the county in which the corporation has its principal office.”37 The Fund moved to dismiss for incorrect venue. The trial court ultimately decided that venue was correct because the Fund was actually a foreign insurance company, not simply a Wisconsin trust.38 The Cate court recited the findings of the circuit court regarding the Fund’s identity and noted that, as a foreign corporation, the Fund did substantial business in Ashland County. Thus, venue was proper.39

The Enpro court interpreted Cate to stand for the proposition that venue can be in any county where an entity does “substantial business.”40 This interpretation is wrong for two reasons. First, the Cate court did not ratify the holding of the lower court; the Cate court didn’t even examine the issue directly.41 Instead, it focused on whether the trial court had abused its discretion in denying dismissal—i.e., it deferentially reviewed the trial court decision.42 The Cate court held that there was “room for doubt” on the part of the lower court for it to refuse to dismiss for incorrect venue.43 The court noted that it had already remanded the same case, in a separate appeal on the same issue, and

directed the lower court to hold a jurisdictional trial.44 Second, and more importantly, the statutory language the Cate court examined specifically allowed venue to be in “any county in which a [foreign] corporation carries on substantial business activity.”45 Wisconsin’s current venue statute neither specifies between foreign and domestic entities nor permits venue in “any” county under any subsection.46

The court of appeals in Enpro also examined cases dealing with “substantial and not isolated” connections for jurisdictional questions under Wis. Stat. § 801.05(1)(d).47 The most relevant of those cases for this discussion is Milwaukee County v� Hartford Casualty Company, where the court concluded that a Texas insurance company was engaged in “substantial and not isolated activities” within Wisconsin because the company was licensed to sell in Wisconsin and maintained a Wisconsin business office.48

The Enpro court ultimately found that the Wisconsin corporation did not do substantial business in St. Croix County, and reversed with direction to the trial court to transfer venue to Calumet County.49

One reading of Enpro would indicate an insurer can be sued in any county where it has issued or delivered a policy, which quickly produces absurd results. However, a closer reading shows that the Enpro court was aware of this potential absurdity. Buried in an endnote, the court stated:

[W]hen looking to cases construing long-arm jurisdiction statutes as persuasive authority for venue cases, it must be remembered that some inferences given to jurisdictional cases do not apply to venue cases. For example, statutes regulating long-arm jurisdiction are to be given a liberal construction in favor of the exercise of jurisdiction. The venue statutes are not to be given a similar liberal construction in favor of finding that venue is proper.50

At the close of its opinion, the court observed that the liberal reading of “substantial business” the Minnesota corporation was calling for would render

26

the term superfluous.51 The Enpro court continued: “[I]f St Croix County were to be a proper venue in this action, then any county in the state would be a proper venue for this action.”52

IV. Venue Based Solely on “Substantial Business” of the Insurer

There is a crucial, often overlooked element in the language of Wis. Stat. § 801.50(2)(c). The statute does not place venue in “any county” or “a county” where a defendant resides or does substantial business, yet plaintiffs often interpret it that way. Instead, subsection (2)(c) describes one of the three options for venue as “the county where a defendant … does substantial business.”53 The difference between this language and the language reviewed in Cates and Enpro, which might suggest venue could be in any county where an insurer has an insured, is significant, especially for domestic insurance companies. The legislature easily could have specified for venue to be in “any county” where a defendant does substantial business. It did not.

To the extent the statute is logically applied to a standard negligence claim, there will nearly always be a valid option for venue other than a county plaintiff chooses where the insurer just happens to have issued a policy. For example, the county where the alleged act or failure to act occurred or the county where the insured defendant resides are options that immediately come to mind. These options have been among the principal venue considerations since Wisconsin began publishing statutes. Ignoring these options in favor of some other county of plaintiff’s choosing goes directly against the intent and purpose of the venue statute.

The basic function of the venue statute is to set a fair and convenient location for trial.54 Venue statutes are not to be given a liberal construction in favor of finding that venue is proper.55 Fairness considerations are best laid out in cases applying forum non conveniens principles when parties move for a discretionary change of venue pursuant to statute.56 The doctrine of forum non conveniens has long been advocated by judicial scholars to avoid forum-shopping and to encourage the

disposition of cases with economy, expedition, and convenience at the place where justice can reasonably be done.57 The factors which must be considered in applying the doctrine include “the ease of access to proof, the availability and cost of obtaining witnesses, the possibility of harassment of the defendant in litigating in an inconvenient forum, the enforceability of the judgment, the burden on the community of litigating matters not of local concern, and the desirability of litigating local matters in local courts.”58

Permitting a plaintiff to choose a county other than one where the claim arose, or one where the natural defendant resides, permits plaintiff to avoid the restrictions of venue altogether and simply forum shop. Many of the above factors come immediately into play, especially ease of access to proof, the burden on community and judicial resources of litigating matters not of local concern, and the fundamental desirability of litigating matters in local courts.

Again, there are few published cases providing guidance for how trial courts should proceed on motions for discretionary change of venue. One case in particular, however, State ex rel� Carl v�Charles, is especially enlightening and suggests that, under the above contemplated circumstances, change of venue is appropriate.59 Carl involves interpretation of the former venue scheme, which was more rigid, as explained above. In Carl, a resident of Ashland County was involved in a motor vehicle collision in Dodge County.60 Suit was filed in Ashland County.61 The defendant subsequently moved the trial court to transfer the action to Dodge County, where the accident occurred.62 The trial court granted the motion as a matter of right and the plaintiff appealed.63 On review, the Wisconsin Supreme Court determined that the defendant was not entitled to change of venue as a matter of right due to the venue statutes at that time, and that the trial court should instead have exercised its discretion to move venue based on forum non conveniens principles.64 The supreme court then noted that the case was “especially appropriate for consideration of a discretionary change of venue” since the accident happened in Dodge County,

27

recovery depended upon proof that the Dodge County accident was caused by the negligence of the defendant, and Dodge County was a more appropriate and convenient forum than Ashland County.65 With this direction, the supreme court remanded the action back to the trial court to decide whether the convenience of the witnesses and the ends of justice would be promoted by transferring the case to Dodge County.66

If the “substantial business” test, when applied to insurance companies, permits plaintiff to choose nearly any county in the state, the venue statute becomes meaningless. The statute already provides the necessary circumstances for plaintiff to choose any county—when none of the other provisions apply. Wisconsin requires insurance of its citizens. Surely the legislature did not intend venue for cases with defendants who comply with insurance mandates to be equated with cases involving entirely foreign defendants or circumstances occurring entirely outside of the state. Clearly, “the county where a defendant … does substantial business” has to have a much narrower meaning than many plaintiff’s attorneys would like to suggest.

V. Conclusion

Venue is often pleaded correctly and plaintiffs have an interest in keeping cases in the county where the claim arose or where a natural defendant resides. This is precisely why it should raise concerns when such an obvious venue is not chosen, and why a venue supported only by unrelated connections of a defendant insurance company must be challenged. Based on the above discussion, defense counsel have a number of strong arguments to advance in order to ensure that actions against their clients are properly venued in the county where they should be.

Gregory S� Venker is an associate with Coyne, Schultz, Becker & Bauer, S�C� His practice focuses on personal injury, employment law, professional responsibility, and insurance coverage issues� Mr� Venker is admitted to practice in Wisconsin state courts. Mr. Venker is a 2008 graduate of Washington

University in St� Louis School of Law� While in law school, he served as Executive Articles Editor for the Journal of Law & Policy� Mr� Venker received his undergraduate degree, magna cum laude, from the University of Arizona in 2004� References1 Wis. Stat. § 801.50(2)(b) (2013-14).2 See Voit v� Madison Newspapers, Inc�, 116 Wis. 2d 217,

341 N.W.2d 693 (1984); see also Littmann v� Littmann, 57 Wis. 2d 238, 245-46, 203 N.W.2d 901 (1973).

3 See Wis. Rev. Stat. ch. 90, §§ 3-5 (1849) (concerning where defendants may be sued).

4 See, e�g., Wis. Stat. § 2619 (1878); Wis. Stat. § 261.01 (1941); Wis. Stat. § 801.50 (1975); Wis. Stat. § 801.50 (1983-85).

5 Wis. Stat. § 2619 (1878).6 See 1925 Wisconsin Act 4 (changing § 2619 to § 261.01);

1973 Wisconsin Act 189 (changing § 261.01 to § 801.50).7 See supra note 4�8 Wis. Stat. § 2619 (1878).9 Id.10 Id.11 1919 Wisconsin Act 334.12 Id. Compare Wis. Stat. § 2619 (1921) “Against Domestic

Insurance Company” with “Against Other Corporations.”13 See Wis. Stat. § 801.50(2) (1981-82); cf. Wis. Stat. §

801.50(2) (1983-85).14 See supra note 4. The 1983 rewrite, discussed infra,

maintained this but in slightly different form. Compare Wis. Stat. § 801.50(12) (1981-82) with Wis. Stat. § 801.50(2)(c)-(d) (2013-14).

15 1925 Wisconsin Act 383 (creating Wis. Stat. § 261.01(11)).16 1943 Wisconsin Act 394.17 Wis. Stat. § 261.01(5), (11) (1943).18 1977 Wisconsin Act 404; Wis. Stat. § 801.50(5).19 See 1983 Wisconsin Act 228.20 Wis. Stat. § 801.50(1)-(12) (1981-82).21 See 1981 Senate Joint Resolution 58.22 83 Wisconsin Act 228, Judicial Council Prefatory Note.23 83 Wisconsin Act 228, § 10. For a listing of many

specialized venue provisions not found in chapter 801, see Wis. Stat. § 801.50, Judicial Council Note, 1983, ¶ 3 (2013-14).

24 Enpro Assessment Corp� v� Enpro Plus, Inc�, 171 Wis. 2d 542, 492 N.W.2d 325 (Ct. App. 1992). There have been other cases addressing venue, but none directly addresses the application of “substantial business” as the only tie to a county. There is a recent, unpublished, per curium decision from the court of appeals, Teske v� Wisconsin Mut� Ins� Co�, 2015 WI App 75, 365 Wis. 2d 196, 870 N.W.2d 248. The court correctly affirmed the trial court’s discretion to move a case from Milwaukee County to Sheboygan County, where Wisconsin Mutual was headquartered, after the only dispute was contractual interpretation of plaintiff’s policy for UIM coverage. However, the case cannot be cited per

29

Wis. Stat. § 809.23(3).25 Id. at 544.26 Id.27 Id.28 Id. at 547.29 Id. at 547-48 (citing National Liberty Life Ins� Co� v� State,

62 Wis. 2d 347, 215 N.W.2d 26 (1974); Wisconsin Area Health & Welfare Fund v� Cate, 71 Wis. 2d 375, 380-81, 238 N.W.2d 107 (1976)).

30 Id.31 National Liberty Life Ins� Co�, 62 Wis. 2d 347.32 Id. at 364-65.33 See generally id.; id� at 365 (stating that gross premium

payments from 1963 to 1969 of $1,432,479.00 “indicates a substantial business and establishes a sufficient contact with the state to justify the imposition of a tax”).

34 Cate, 71 Wis. 2d 375.35 Id. at 377.36 Wis. Stat. § 299.11(1)(b) (1967).37 Wis. Stat. § 299.11(3) (1967) (emphasis added).38 Cate, 71 Wis. 2d at 380-81.39 Id.40 Enpro, 171 Wis. 2d at 548.41 Cate, 71 Wis. 2d at 380-82.42 Id.43 Id. at 381.44 Id. at 377-78, 381; see also Grage v� Wisconsin Area Health

& Welfare Fund, 60 Wis. 2d 761, 211 N.W.2d 509 (1973).45 Wis. Stat. § 299.11(3) (1967) (emphasis added).46 Wis. Stat. § 801.50(2)(c).

47 Enpro, 171 Wis. 2d at 549-551.48 151 Wis. 2d 463, 474, 444 N.W.2d 455 (Ct. App. 1989).49 Enpro, 171 Wis. 2d at 552. 50 Id� at 549 n.4.51 Id. 52 Id. (emphasis added).53 Wis. Stat. § 801.50(2)(c) (2013-14).54 Voit, 116 Wis. 2d at 224.55 Enpro, 171 Wis. 2d at 549 n.4.

56 Wis. Stat. § 801.52, entitled “Discretionary change of venue,” states as follows: “The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.”

57 See Littmann, 57 Wis. 2d at 245-46; see also Wis. Stat. § 801.52, Judicial Council Note, 1983 (“This section authorizes grounds for changing venue beyond the failure to comply with s. 801.50. It permits the court to apply traditional forum non conveniens principles to requests for discretionary change of venue. The court has discretion to change venue to any county in the state.”).

58 Littman, 57 Wis. 2d at 246 (internal citations omitted).59 71 Wis. 2d 85, 237 N.W.2d 29 (1976).60 Id. at 85-88.61 Id. at 87.62 Id.63 Id.64 Id. at 92.65 Id. at 92-93.66 Id. at 93.

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Every personal injury defense lawyer has encountered a case where the plaintiff has had some condition, disease, or ailment that was present or produced symptoms before an accident, and following the accident, it is claimed that the

prior condition was worsened. The issue is whether the worsening of the condition was the natural consequence of injuries from the accident. In this situation, the defense lawyer needs to determine how the pre-existing condition can be evaluated to reduce the damages being claimed. The purpose of this Article is to address what a pre-existing condition is, whether it has been aggravated as a result of the accident/incident, and how a pre-existing condition is used to reduce the damages.

Overview

The legal concept of an aggravation or activation of a pre-existing condition or disease is based on well-established law that has been in existence for decades. A jury cannot award damages for any pre-existing disease, condition, ailment, or predisposition except to the extent that it is satisfied that the disease, condition, ailment, or predisposition is aggravated by injuries from the accident.1 Damages may not be awarded if they do not flow from the natural result of injuries received in the accident, nor may damages be awarded for any condition which has resulted, or will result, from the natural progression

of the pre-existing disease or ailment as a result of causes unrelated to the accident.2 If the injured party is more susceptible to serious injury by reason of a pre-existing disease, condition, or predisposition to the disease, damages are to be awarded for what is the natural result of the accident even though there is such predisposition or susceptibility.3 Unfortunately, the law gives little guidance as to what constitutes an aggravation or activation, and the assessment turns on the facts of each case. It is the assessment of the factual issues surrounding an aggravation of a pre-existing condition that can be perplexing to the defense lawyer.

When there is a pre-existing condition, the question is whether the trauma of the accident caused a worsening of the condition, or caused a condition that was asymptomatic prior to the accident to become symptomatic following the trauma of the accident. The defense seeks to show through lay and expert testimony that no damages can be awarded for a pre-existing condition unless it is brought into activity as a natural result of the injuries received in the accident.4 The Wisconsin Supreme Court has determined that plaintiff’s disability, before and after the accident, which affects the same parts of the body and same bodily functions before and after the accident, presents a question for the jury.5

Degenerative disease or arthritis of the spine and joints is the most common condition that raises the issue of aggravation of a pre-existing condition. In these situations, there is generally a degenerative arthritic change that is present prior to the accident which is alleged to have been aggravated or worsened by the trauma of the

Aggravation of a Pre-Existing Condition by: William R� Wick and Andrew L� Stevens, Nash, Spindler, Grimstad & McCracken LLP

32

accident. This aggravation presents in the form of increased symptoms, disability, and/or the need for additional treatment that was unnecessary prior to the traumatic event. The additional treatment can include medications, physical therapy, injections, radiofrequency ablations, joint replacements, or vertebral fusions, all of which, in the view of the defense, would still have been necessary absent the trauma from the accident.

Causation Issues

The rationale for causation frequently employed by the plaintiff is that the plaintiff did not have any complaints before the accident, had them following the accident, and therefore the accident must have caused them or made them worse. This is known as “post hoc ergo propter hoc,” which is Latin for “after this, therefore because of this.” This fallacy assumes that if one event occurs after another, then the first event must have caused the second event. It does not necessarily follow that if the plaintiff did not have complaints for a period of time before the accident, and symptoms were reported following it, that the accident was the cause. However, defense counsel needs to offer proof that this is the case.

Briefly summarized, when a person has a pre-existing condition or injury that has already caused or is causing harm to some degree, the person causing the harm is only liable for any enhancement of the harm caused by the negligent or intentional conduct.6 The injury or damage may far exceed what is anticipated from the nature of the trauma. In addition, Wisconsin law has accepted the Restatement of Torts view that “you take the plaintiff as you find him/her,” and has adopted the “eggshell skull” rule, which is that unusual susceptibility to trauma does not relieve the defendant of his or her responsibility for the outcome.

The Role of Expert Testimony

Whether a pre-existing condition is aggravated or a latent condition activated is usually the subject of conflicting expert testimony. Conflicting expert opinions present a question for the jury. Peters v� Zimmerman,7 a 1957 Wisconsin Supreme Court

case, dealt with a cause question involving a congenital pre-existing condition that may have played a factor in the damages. A minor plaintiff was riding on a tractor that was involved in combining, a rut in the field was negligently struck, the minor was thrown and his crotch and the rear of his right thigh made contact with a crossbar. The injury was not noted immediately. The minor began to limp and complain of pain two months after the accident. Treatment was initiated for probable Perthes disease of the right hip. Perthes disease is a rare childhood condition that affects the hip. It likely occurs when the blood supply to the rounded head of the femur is temporarily disrupted. There was a difference of expert opinion in Peters as to whether Perthes disease could be caused by trauma. The court held that where there is a difference of opinion between qualified experts, the jury needs to resolve the issue.

The effect of conflicting expert opinions and the arguments that can be made from preexisting conditions are also illustrated in Anderson v� Milwaukee Insurance, a 1991 Wisconsin Court of Appeals case.8 In Anderson, the plaintiff had a latent congenital inguinal hernia. An inguinal hernia is a weakness in the abdominal wall that exists from birth. The hernia can become apparent when there is abdominal pressure on a weak abdominal wall that allows the contents to bulge into the abdomen. When the hernia is diagnosed, surgery is the treatment of choice. Plaintiff alleged that an automobile accident caused the latent hernia to become apparent and require treatment. After the accident, the plaintiff was treated and released. Eighteen days after the accident, the plaintiff reported continuing pain in the groin area. The expert testimony was conflicting, but the experts agreed that the hernia was congenital and would not become apparent until there was some pressure in the abdomen. The experts disagreed as to what caused the hernia to become apparent and whether it would have become apparent absent the trauma of the accident. The trial court found that the accident made the latent hernia apparent but concluded that the repair of the hernia was not compensable because the hernia was the result of the natural progression of the pre-existing condition and would still have occurred absent the accident.

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The court of appeals rejected the defense’s argument that there could be no recovery because the pre-existing condition was treated sooner rather than later. The court of appeals said that Wisconsin law does not support the proposition that when the injuries from an accident are the same as the injuries that may inevitably occur due to a pre-existing condition, the injuries from the accident are completely un-compensable, but the court said that “such a situation may reduce the amount of damages.”9

The Anderson court relied on Fantin v� Mahnke10 in support of its decision. In Fantin, the plaintiff was already “on the road” to a hip replacement before the accident occurred. The court held that although the accident aggravated a pre-existing condition, there was sufficient evidence that the pain would have been the same without the accident and therefore damages for future pain and suffering were properly denied by the jury. The holding in Anderson was that, while a plaintiff may inevitably suffer from a pre-existing condition unrelated to the accident, the defendant is still liable for damages that are a natural consequence of the accident. Where the plaintiff’s increased injuries are the natural consequence of the accident, the defendant’s argument is relevant only to determine the amount of damages. Thus, it is difficult to determine where the court draws the line on damages that are the natural consequence of the accident and those that are the result of the pre-existing condition.

In Fantin, the plaintiff had hip and back problems that predated the accident by at least four years. The expert testimony was that the plaintiff had pre-existing arthritis and that a hip replacement was necessary because of it. The expert testimony conflicted. One expert concluded that the accident was the triggering mechanism for the pain. The other expert countered that hip surgery was inevitable with or without the accident. The court held that although there was testimony that the accident aggravated pre-existing conditions, because there was also testimony that the pain and disability would have been the same without the accident, a jury finding of no damages for future

pain and suffering was justified. The conclusion one can reach from Anderson and Fantin is that if a latent condition is activated or aggravated, the fact that the same treatment, pain, and disability would have occurred at some point in the future does not prevent recovery, but such evidence may be taken into consideration by the jury in considering the damage award.

Strategies for Defending Cases Involving Pre-Existing Conditions

Defending damage claims involving pre-existing conditions involves issues that are more medical than legal. The defense position is that the plaintiff had the condition before the accident, the treatment was likely to have been necessary absent the trauma of the accident, and the increased symptoms were simply caused by the natural course of the disease process and would have occurred absent the trauma of the accident. This often requires resolving a conflict between subjective complaints and objective medical information. This is a conflict between signs and symptoms. A sign is an indication of a medical condition that can be objectively detected. A symptom is a manifestation of a condition that is apparent to the patient. Symptoms are subjective explanations. Signs are objective findings. The plaintiff will rely on the subjective assessment of the plaintiff’s symptoms as being worse after the accident. Defendants will point to the absence of signs caused by the accident to explain the symptoms. The problem is further complicated by the fact that a condition such as arthritis may be present and detectable but still be asymptomatic. Thus, the defense view will be that for a pre-existing condition to be aggravated there must be an identifiable explanation for the symptoms that is anatomically consistent with the type and nature of the trauma sustained in the accident.

Even if the plaintiff’s symptoms have worsened after the accident, the defense position is that the plaintiff’s pre-accident condition has not progressed beyond its normal course. The pathophysiology of arthritis or degenerative changes is progressive. The defense claim is that the natural course of

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the condition would have been to progress to the point of needing treatment absent the trauma of the accident. The plaintiff’s position will be that while the condition is progressive, the rate of progression is unpredictable and indeterminate and therefore the defense contention is invalid.

In assessing whether a pre-existing condition has been aggravated beyond its normal progression, a thorough knowledge of the plaintiff’s medical history and a detailed deposition are required. Consultation with a medical or surgical specialist with experience in evaluating and treating the pre-existing condition is essential. Determining whether there has been an aggravation or activation and the extent of it requires a comparison of signs and symptoms that existed before and after the accident. Consideration may be given to the following:

• Symptoms. Although symptoms are subjective, establishing the pre-accident baseline and comparing it to post-accident complaints may show there has been no aggravation. Factors to consider are:

1. Location: This requires an assessment of whether the pain pre- and post-accident is in the same location anatomically—i.e., involves the same vertebral level, the same muscle, etc.

2. Frequency: A change in frequency of symptoms may be significant and includes whether the symptoms are constant or intermittent, and if intermittent, how the duration of intermittent pain has changed.

3. Intensity: The intensity of the pain is generally rated on a 0 to 10 scale with 0 being no pain and 10 being the worst pain imaginable. Records and/or testimony can provide the basis for a comparison using this method of assessment.

4. Onset: The length of time between the accident and the first report of symptoms may suggest that the pre-existing condition was not aggravated.

5. Type: The similarity or change in the description of pain using terms such as aching, burning, shooting, dull, sharp, etc. may suggest whether there has been an aggravation.

6. Nonspecific complaints: Subjective complaints are non-specific. The presence of pain in and of itself is not specific as to any medical cause. Therefore, the defense to a claim of aggravation of pre-existing injury is best tied to the absence of an explainable physiological cause, i.e., some abnormality that is causing the pain or is considered the pain generator. Without an etiology or identifiable pain generator, the complaint of pain is of unknown origin and not the result of an aggravation of a pre-existing condition.

• Diagnosis and treatment. With respect to this category, consider the following factors:

1. Prior diagnosis and treatment: A pre-accident diagnosis of a progressive condition such as degenerative joint disease or arthritis for which there was ongoing pre-accident treatment may be used to suggest there was no aggravation.

2. Future treatment: The medical records may reflect that the patient will require future treatment for the pre-accident condition. This suggested treatment may be in the form of injections, radiofrequency ablations, or surgery, including a future joint replacement or vertebral fusion.

3. Temporal relationship: The proximity of diagnosis and treatment to the accident may be a factor. Continuing regular treatment shortly before the accident may suggest an ongoing or progressive problem. The greater the length of time between the last treatment and the accident, the more likely it is that the trauma accelerated the condition.

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4. The effect of prior treatment: A person with prior back complaints treated by discectomy or fusion may be susceptible to the need for future treatment at the levels above and below without intervening trauma, or abdominal surgery may weaken an area making it more susceptible to future injury.

5. The nature of the post-accident treatment: The type of post-accident treatment may reflect a pre-accident condition that was not aggravated by the trauma of the accident. Opinions may be obtained that a multi-level spinal fusion is unrelated to a single traumatic event. The need for a carpal tunnel surgery is generally considered to be the result of ongoing repetitive activity over a significant period of time. The type of condition and the form of treatment may suggest a mechanism of injury that is unrelated to trauma from the accident.

6. Gaps in treatment: Intervals in continuity of treatment are assessed from two perspectives: (1) the time interval between the accident and the onset of the treatment; and (2) the length of the interval between treatments that were received after the accident. The longer the lapse of time between the accident and the first report of a symptom that is claimed to be related to the accident, the better the argument that the trauma of the accident was not the cause. A lapse in post-accident treatment may suggest recovery. Many conditions caused by trauma are self-limiting. A pre-existing condition may be aggravated for a period of time and then the symptoms return to baseline. An initial report of pain followed by a lengthy hiatus of treatment suggests that the injury was self-limiting. If treatment is resumed at a later date, it can be claimed that the treatment is unrelated to the accident. A timeline and/or calendar of medical contacts showing significant gaps in treatment may be helpful to show that any claimed aggravation was temporary.

• The physical examination: A physical examination that is consistent with pre-accident findings can be said to be objective evidence of lack of aggravation of a pre-existing condition. The physical findings may also indicate there was no aggravation; for example, a nerve injury should be consistent with deficits in the anatomical distribution of the nerve. Complaints that do not follow an anatomic distribution reflect lack of physiological cause.

• Permanency: A prior accident with the same type of trauma and a finding of permanency may be helpful to show there was no aggravation. Prior trauma that resulted in an injury with permanent residuals may be used to suggest a lack of aggravation, if the permanent residuals are the same. For the person that is totally disabled, even if it is from a condition unrelated to the accident, it is difficult to envision a disability greater than total. Where there is a prior surgery such as a spinal fusion, there is always some degree of permanency. Permanent restrictions on activity pre-trauma may be used to assess the extent of the aggravation post-trauma.

• Imaging studies and diagnostic tests: The assessment of an aggravation of a pre-existing condition may be aided by diagnostic studies. Changes in degenerative disease can be assessed with imaging studies such as x-rays, CT scans, and MRIs. While imaging studies are considered to be objective evidence, these studies are subject to interpretation. There is a subjective component to the objective data. This is particularly true in assessing whether there has been aggravation of a disease or condition beyond its normal progression. Defendants should seek the opinion of an expert that the imaging studies pre-accident are unchanged from those post-accident or, if there are changes evident, that the changes do not exceed the normal progression. What constitutes normal progression is subject to interpretation. Reports in the medical records or opinions from consultants that degenerative joint disease is unchanged, that the joint space is no different, or that the disc bulge or herniation

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is the same, support the position that there has been no aggravation. Frequently, when a nerve injury is claimed, electromyogram and nerve conduction studies are done. These too involve interpretation by the physician giving the test. Consistent results before and after the accident or an equivocal interpretation may be helpful. Diagnostic nerve blocks are often used to determine if nerve root compression is caused by a disk injury. The nature of these tests needs to be assessed and may be helpful to show that there is no aggravation of the pre-existing condition.

• Type of trauma: The nature of the trauma that is alleged to have caused the aggravation must be assessed. Low velocity impacts may not produce sufficient forces to cause an aggravation of the pre-existing condition. How the trauma was applied should also be considered. Attributing wrist and upper extremity problems to grasping the wheel or bracing for the accident may not result in forces that could produce the injuries claimed. Thus, it is important to determine the movement of the plaintiff’s body after impact, whether there was contact with the interior of the vehicle, whether the seatbelt and shoulder harness held them in place, and the effect of the airbag. The defense may rely on an opinion from an examining physician that the nature of the trauma is not likely to cause the injuries complained of based upon the background, training, and experience of the physician, and the mechanism of the injury. For some injuries, a biomechanical assessment may be used to show that the force threshold for causing injury was not reached�

Conclusion

The effect of a pre-existing condition on the evaluation of a case for settlement, for mediation, and for evaluation of the award a jury may ultimately make is perplexing. Even the “objective” assessments have a subjective component. Determining that a medical condition or disease is “aggravated beyond its normal progression” is ill-defined. The assessments are based on the opinions

of the medical experts on one hand, and on the subjective complaints of the plaintiff and those close to him or her on the other. Thus, the effect of a pre-existing condition on the valuation of damages depends upon the credibility of the witnesses. The credibility of the plaintiff’s explanation of the trauma and its effect on the pre-existing condition is likely to have significant weight. The portrayal of the plaintiff’s treating physicians as objective and unbiased in contrast to the defense experts as biased and hired guns will certainly come into play. The ultimate benefit of the pre-existing condition defense may be to attack the credibility of a plaintiff who is seeking unreasonable compensation, overstating the post-accident related complaints, and denying or significantly downplaying pre-existing conditions that were definitely operating and having an effect.

William R. Wick, is a defense lawyer who concentrates his practice in the areas of medical malpractice and general personal injury litigation� He received his B.S. in 1970 from Carroll College, his M.P.A. in 1972 from the University of Southern California, and his J.D. in 1974 from Marquette University Law School� Mr. Wick was certified by the American Board of Trial Advocacy as a Civil Trial Specialist� He is a member of the State Bar of Wisconsin and a past chair of the Litigation Section� He has also been President of the Civil Trial Counsel of Wisconsin now known as the Wisconsin Defense Counsel� Mr� Wick is a fellow of the American College of Trial Lawyers� He has also been President of the Wisconsin Chapter of the American Board of Trial Advocates (ABOTA)� He has also been selected to be included in Best Lawyers in America for the last nine years� Mr� Wick is a frequent lecturer on topics involving civil litigation�

Andrew Stevens is an associate at Nash, Spindler, Grimstad and McCracken, LLP� Andrew joined the firm in 2014 and practices in the areas of litigation and insurance defense� Prior to joining the firm, Andrew worked as a police officer for 11 years with the Wayne County Sheriff’s Department in Detroit, Michigan and served as the judicial law

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clerk for Judge Amy Hathaway at Wayne County Circuit Court� Andrew is licensed to practice law in Wisconsin and Michigan�

References1 See Wis. JI-Civil 1715 – Aggravation of Pre-Existing

Injury.2 Id� 3 See Wis. JI-Civil 1720 – Aggravation or Activation of a

Latent Disease or Condition.

4 Kablitz v� Hoeft, 25 Wis. 2d 518, 525, 131 N.W.2d 346 (1964).

5 See Leusink v� O’Donnell, 255 Wis. 2d 627, 631, 39 N.W.2d 675 (1949).

6 Anderson v� Milwaukee Ins�, 161 Wis. 2d 766, 769, 468 N.W.2d 766 (Ct. App. 1991).

7 275 Wis. 164, 170, 81 N.W.2d 756 (1957).8 Anderson, 161 Wis. 2d 766.9 Id� at 770.10 113 Wis. 2d 92, 334 N.W.2d 564 (Ct. App. 1983).

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Wisconsin Adopts the Uniform Interstate Depositions and Discovery Act (UIDDA)by: Kerry Gabrielson, Godfrey & Kahn, S�C�

Effective January 1, 2016, Wisconsin adopted aspects of the Uniform Interstate Deposition and Discovery Act (the “UIDDA”), a model act developed by the Uniform Law Commission to help streamline the once-complex process of conducting out-of-state discovery for a matter venued in state court. The new statute, Wis. Stat. § 887.24, embodies significant aspects of the UIDDA and applies to litigants in state court outside of Wisconsin that seek to conduct discovery in Wisconsin. The UIDDA was originally promulgated in 2007 in an effort to standardize the process for taking out-of-state discovery and harmonize it with Federal Rule of Civil Procedure 45. The Act has been steadily adopted in various iterations by the majority of states since 2007.1 Despite the uniformity created by the UIDDA, however, prudent practitioners should still check the requirements of both the state where their case is venued and the state where they wish to seek discovery because some individual states (like Wisconsin) have elected to customize the provisions in the model act prior to its adoption. This Article provides an overview of the Act.

Case Pending Out-of-State in State Court

Newly-adopted Wis. Stat. § 887.24 provides that a party in a state court proceeding venued outside of Wisconsin may conduct discovery in Wisconsin via one of two routes:

Option 1: The party may submit a valid foreign subpoena to the clerk for the county in which discovery is sought to be conducted in this state, accompanied by the appropriate subpoena form. The subpoena form shall include the following:

(1) the Wisconsin county in which the discovery is sought and the court from which the subpoena is issued; (2) the title of the action and its docket number from the foreign jurisdiction; (3) the terms used in the foreign subpoena and a copy of the foreign subpoena as an attachment; (4) the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel; and (5) language that advises the subject of the subpoena that “You have a right to petition the Wisconsin circuit court for a protective order to quash or modify the subpoena or provide other relief under s. 805.07(3).”2 The statutory notes make clear that to “modify” a subpoena means to alter its terms including, for example, the date, time, or location of a deposition.

When a party complies with these requirements in Wis. Stat. § 887.24(3)(a), the clerk “shall promptly sign and issue the Wisconsin subpoena for service upon the person to which the foreign subpoena is directed.”3 The clerk of circuit court will not create a case file when discovery is initiated nor collect a fee.

Option 2: Alternatively, a party may retain an attorney who is licensed or otherwise authorized to practice law in Wisconsin to sign and issue the Wisconsin subpoena as an officer of the court pursuant to Wis. Stat. § 805.07. The subpoena must, of course, comply in all other respects with above-listed requirements for the form of the subpoena. This provision is an important deviation from the Uniform Rule as it provides that if a party to the out-of-state proceeding retains an attorney licensed

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in Wisconsin and that attorney receives the original or a true copy of the out-of-state subpoena, the attorney may issue the subpoena.

It is important to note that the new rule places the obligation to retain the original subpoena and the proof of service on the attorney initiating the discovery. Under both option 1 and option 2, a file will only be created by the clerk of circuit court in the event that a special proceeding is commenced to enforce, quash, or modify the subpoena.

As before, if the subpoena is directed to an individual, the discovery with respect to that person, such as a deposition, shall be conducted in the county in which the person resides. If, however, the subpoena is directed to something other than a natural person, discovery is to be conducted in a county in which the entity does “substantial business.” The adoption of the new statute also does not alter the fact that discovery conducted in Wisconsin must comply Wisconsin’s rules and statutes, including, but not limited to, the requirements of Wis. Stat. ch. 804.

The notes to the statute indicate that nothing in Wis. Stat. § 887.24 limits any party from applying for appropriate relief in the state where the action is venued. Applications to the court that impact only the parties to the action may, of course, be made in the venue state. The notes also remind practitioners that “[e]videntiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles).”

Example

An example illustrating how the new rules apply is helpful. A case is filed in Kansas. The witness to be deposed lives in Wisconsin. To achieve service of the subpoena, a lawyer of record for a party in the action pending in Kansas issues a subpoena in Kansas (the same way lawyers in Kansas routinely issue subpoenas in pending actions). That lawyer then checks with the clerk’s office in the Wisconsin county in which the witness to be deposed lives

to obtain a copy of its subpoena form. Then, the lawyer prepares a Wisconsin subpoena so that it has the same terms as the Kansas subpoena. Next, the lawyer submits the completed and executed Kansas subpoena and the completed but not yet executed Wisconsin subpoena to the clerk’s office in Wisconsin. In addition, the lawyer might prepare a short transmittal letter to accompany the Kansas subpoena, advising the clerk that the Wisconsin subpoena is being sought pursuant to Wis. Stat. § 887.24(3). The clerk of court, upon being given the Kansas subpoena, will then issue the identical Wisconsin subpoena. Finally, the process server (or other agent of the party) serves the Wisconsin subpoena on the deponent in accordance with Wisconsin law.

Special Proceedings

If a special proceeding is initiated in Wisconsin court to challenge, enforce, or modify the subpoena, all other filings in that special proceeding must comply with the applicable Wisconsin rules or statutes, including the service requirements under Wis. Stat. § 801.14(2), and must be filed with the circuit court in the county in which discovery is to be conducted. An application to enforce a subpoena, for example, must include proof of service of the subpoena and must be accompanied by the appropriate fee specified in Wis. Stat. ch. 814. Every filing in a special proceeding must also be served on all parties to that proceeding, including the witness. However, a summons is unnecessary to initiate the action, and service by mail or facsimile is permitted pursuant to section 801.14(2).

Any application to the court for a special proceeding, including an application for a protective order, or to enforce, quash, or modify a subpoena, must comply with the law of the discovery state. Those laws include the discovery state’s procedural, evidentiary, and conflict of laws rules. The Act expressly recognizes that the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests.

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A court may award a prevailing party in a special proceeding its reasonable attorney’s fees and expenses. This provision is consistent with motions to compel and for protective orders in discovery disputes under Wis. Stat. §§ 804.12(1)(c) and 804.01(3)(b).

A final order granting, denying, or otherwise resolving an application for a special proceeding is a final order for purposes of filing an appeal in accordance with Wis. Stat. § 808.03(1).

Comments to the UIDDA

Wisconsin Supreme Court Order No. 13-16A (July 7, 2015) states that “the Uniform Comments (Comments to the Uniform Interstate Depositions and Discovery Act) and the Judicial Council Committee Notes are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.” Uniform Comment 2, for example, provides that the Act is limited to discovery in state courts and it does not apply to international proceedings. The Committee Notes also clarify that “subpoena” does not include a subpoena for the inspection of a person. Medical examinations in a personal injury case, for example, are separately controlled by state discovery rules (the corresponding federal rule is Fed. R. Civ. P. 35). Since the plaintiff is already subject to the jurisdiction of the trial state, a subpoena should never be necessary.

Notably, a party issuing a subpoena in Wisconsin has not “appeared” as counsel; thus, it is no longer necessary for an out-of-state party in a state court proceeding venued elsewhere to obtain pro hac vice admission or hire local counsel to take discovery of a party. However, if a party makes or responds to an application to enforce, quash, or modify a subpoena in the discovery state, the attorney making or responding to the application must comply with the discovery state’s rules governing lawyers appearing in its courts. Wisconsin’s partial adoption of the UIDDA does not change existing state rules governing out-of-state lawyers appearing in its courts.

Cases Pending in Wisconsin State Court

Wisconsin has not chosen to alter the requirements for Wisconsin state court litigants seeking to take discovery out-of-state. Thus, when a case is pending in Wisconsin and a party wishes to take discovery of a non-Wisconsin party, they still need to go through the commission process set forth in Wis. Stat. § 887.26, as this procedure is not impacted by the adoption of Wis. Stat. § 887.24. A litigant in a Wisconsin state court proceeding then must look to the laws of the state where they wish to take discovery to determine how to serve their subpoena.

Dane County and Milwaukee County have published guides to the process for serving discovery subpoenas in those counties, but the process is essentially the same throughout Wisconsin.

The UIDDA does not change or repeal the law in those states that still require a commission or letter rogatory to take a deposition in a foreign jurisdiction. The Act does, however, repeal the law in those states in which discovery is sought that still require a commission or letter rogatory from a trial state before a deposition can be taken in those states.

Conclusion

Litigants in out-of-state proceedings venued in state court no longer need to obtain Wisconsin local counsel to serve subpoenas in this state. Litigants in cases venued in a circuit court in this state seeking to take discovery elsewhere, however, will still need to obtain a commission in Wisconsin before complying with the procedure for serving their subpoena in the state where discovery is sought. As always, it is critical to review the rules and statutes governing subpoenas and discovery in the venue where your case is situated and, where applicable, the rules and statutes applicable to taking discovery in other states.

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Kerry Gabrielson is an associate in the Litigation Practice Group in the Madison office of Godfrey & Kahn, S�C� While in law school, Kerry worked for the Public Service Commission as a law clerk and served as a judicial intern to the Honorable Ann Walsh Bradley at the Wisconsin Supreme Court�

References1 Thus far, the states that have signed onto at least part of

the UIDDA are: Washington, Oregon, Idaho, California, Nevada, Utah, Arizona, Colorado, New Mexico, South Dakota, North Dakota, Iowa, Kansas, Michigan, Indiana,

Kentucky, Tennessee, Alabama, Georgia, South Carolina, North Carolina, Pennsylvania, New York, Vermont, Louisiana, Mississippi, Washington D.C., New Jersey, Hawaii, Delaware, Maryland, Alaska, Illinois (also effective Jan 1, 2016), Minnesota, Montana, Virginia (and the Virgin Islands). That leaves (for now at least) the following non-signatories: Connecticut, Massachusetts, Texas, Wyoming, Puerto Rico, Florida, Missouri, Arkansas, Oklahoma, Nebraska, New Hampshire, Maine, Rhode Island, West Virginia, and Ohio. West Virgina and Ohio, however, have introduced legislation relating to the UIDDA.

2 Wis. Stat. § 887.24 (3)(a) (emphasis added).3 Wis. Stat. § 887.24 (3)(b).

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Advance Cable: The Seventh Circuit Court of Appeals Holds that Looks Do Matterby: Forrest G� Hopper and Taylor C� Gumbleton, Borgelt,

Powell, Peterson & Frauen, S�C�

In Advance Cable Co�, LLC v� Cincinnati Ins� Co�,1 the Seventh Circuit Court of Appeals provided a lesson in insurance policy drafting and the importance of supporting policy interpretation arguments. One hailstorm produced

two companion federal court cases that addressed the issue of whether cosmetic damage fell within the coverage for “direct physical loss” as used in insurance policies issued by Cincinnati Insurance Company (“Cincinnati”).

One case reached the Seventh Circuit while the other was subsequently decided in federal district court. The result was the same in both cases. The courts determined, under the facts presented, that the phrase “direct physical loss,” as used in Cincinnati’s policies, encompassed cosmetic damage. Both courts pointed out that Cincinnati could not explain why its policies included certain policy language. Cincinnati’s failure to offer an explanation for this language was important to both courts. At the same time, although Cincinnati’s coverage position was ultimately rejected, both courts also determined that Cincinnati had not acted in bad faith by initially denying coverage for cosmetic damage.

These decisions may not be the final word on this issue. Different policy language or different policy interpretation arguments may result in a different outcome once this issue is addressed in Wisconsin state courts. In the meantime, defense counsel and

their insurance company clients must be cognizant of these decisions, which serve as another example of the importance of carefully drafting policy language and being fully prepared to support a policy interpretation argument in litigation.

Advance Cable Co., LLC v. Cincinnati Ins. Co.

On April 3, 2011, a hailstorm occurred in Middleton, Wisconsin.2 The hail dented the metal roof of a building owned by Advance Cable Company, LLC, and Pinehurst Commercial Investments, LLC (collectively, “Advance”). Advance submitted a claim to Cincinnati.3 Cincinnati inspected the roof and found dents in the soft metal roof vents and air conditioning fins, but its claims representative did not observe any damage to the roofing.4 Cincinnati issued payment for the damage to the roof vents and air conditioning fins only.5

Advance later considered selling the property. In January 2012, a potential buyer inspected the property and determined that the roof suffered hail damage.6 Advance asked Cincinnati to re-open the claim based on this information. Cincinnati obliged and completed another inspection of the property. A report was issued with the results of the second inspection.7 The report identified hail dents to the metal roof but stated that the denting was relatively minor and could not be seen from ground level. The report also stated that the denting would not affect the performance or detract from the life expectancy of the roof.8

Advance later sold the building.9 In April 2013, Advance sued Cincinnati in the United States

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District Court for the Western District of Wisconsin asserting claims of breach of contract and bad faith. The parties moved for summary judgment.10

The district court held that the policy covered the hail damage, but that Cincinnati did not act in bad faith.11 The parties then stipulated that it would cost $175,500 to replace the roof, and the district court entered final judgment in favor of Advance in that amount.12 Cincinnati appealed the decision relating to coverage and Advance cross-appealed the decision relating to bad faith.13

Since the matter was up on summary judgment, the Seventh Circuit reviewed the case de novo.14 The policy at issue contained several relevant provisions and several important terms without definitions. The policy stated that Cincinnati would “pay for direct physical ‘loss’ to Covered Property” “caused by or resulting from any Covered Cause of Loss.”15

The policy defined “Covered Cause of Loss” as “risks of direct physical loss.” The policy defined “loss” as “accidental loss or damage.” The policy did not define “direct” or “physical.”16

The core of the parties’ dispute concerned the meaning of the term “direct physical loss.” The parties agreed on the meaning of “direct.”17

However, they disagreed on the meaning of “physical.”18 Cincinnati argued that “physical” meant “material,” but Cincinnati “unhelpfully” did not provide the court with a definition of “material.”19 Rather, Cincinnati relied upon a district court decision20 involving physical damage to a famous tree on the 13th hole of a golf course; the loss of the tree resulted in intangible damage to the hole’s character. The court rejected Cincinnati’s position.21 The court stated that Advance was not seeking coverage for intangible damage but instead was “claiming that hail caused visible indentations to the surface of the roof.”22 Because the denting changed the physical characteristics of the roof, the court held that the denting was “physical” as that term was used in the policy.23

The parties also disputed the meaning of the term “loss,” which was defined as “accidental loss or damage.”24 The Seventh Circuit approved of the

district court’s analysis, that the policy encompassed both dents that diminished the functionality of the roof and dents that were only cosmetic. The policy language covered “loss or damage.” Therefore, “even without a measureable ‘loss’ in value or in function, the policy expressly contemplate[d] the possibility that there may still be ‘damage,’ presumably giving it a different meaning than loss.”25 The court pointed out that Cincinnati had provided no explanation as to why both words were used.26

Instead of providing an explanation, Cincinnati simply argued that “loss or damage” meant “harm.” The court rejected this argument because it bore “no relation to the language of the policy.”27 The court stated that Cincinnati, as drafter of the policy, should have included an exception for cosmetic damage from the meaning of “loss” if it intended to exclude such damage from coverage. Even if the policy language was unclear, the court concluded that it would have to apply the well-established rule of construing ambiguous policy language against Cincinnati and in favor of Advance.28

Additionally, the court rejected Cincinnati’s argument that it should not have to pay for the hail dents because of the concept of economic waste. The court scolded Cincinnati, stating that it was “attempting to board a ship that has already sailed. The issue before us is not damages; it is coverage,” and economic waste is a damages concept.29 The court reiterated that the policy required Cincinnati to compensate Advance for “direct physical loss.” Because the hail dents physically and directly damaged the roof, the Seventh Circuit affirmed the district court’s grant of summary judgment on the coverage issues.30

However, the court also upheld the district court’s dismissal of the bad faith claim against Cincinnati.31 The court concluded that Cincinnati did not act unreasonably. Cincinnati’s reading of the policy, “while wrong, was not beyond the pale.”32 The court held that an insurer cannot be found to have acted in bad faith simply because it does not prevail on its reading of the policy.33 The court also

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rejected Advance’s argument that Cincinnati acted in bad faith by retaining an attorney who apparently was not hired to assess coverage. The court held that “[c]ompanies are permitted to hire attorneys to assess their legal positions without being suspected of bad faith.”34

In sum, the court concluded that, as applied to the facts of the case, the language of Cincinnati’s policy required coverage for the cosmetic hail damage. It also concluded that the district court properly granted summary judgment to Cincinnati on the bad faith claim. Accordingly, the Seventh Circuit affirmed the district court’s decision in all respects.35

The Companion Case

In Welton Enterprises, Inc� v� Cincinnati Ins� Co�,36

a companion case to Advance Cable, the Western District of Wisconsin addressed similar coverage and bad faith issues. The same April 3, 2011, hailstorm in Middleton, Wisconsin, had caused hail dents to property owned by Welton Enterprises, Inc., Welton Family Limited Partnerships, and 3PP Plus Limited Partnership (collectively, “Welton”).37 Welton submitted a claim to Cincinnati. The Cincinnati policy contained the same relevant provisions and definitions as the policy in Advance Cable.38 The district court pointed out that Cincinnati once again failed to explain why the policy defined “loss” as “accidental loss or damage” if both possibilities meant a reduction in usefulness, value, or lifespan.39 Relying on Advance Cable, the district court concluded that the policy language required a finding of coverage for the hail dents.40

The district court then addressed Welton’s argument that Cincinnati acted in bad faith by interpreting the policy to exclude coverage for the hail dents.41 The district court rejected this argument and found that Cincinnati did not act in bad faith. Cincinnati offered plausible readings of the policy language and relied on federal cases that provided some support for its position. The district court stated, “[a]s in Advance Cable, this court again rejects Welton’s ‘draconian’ attempt to premise bad faith liability on an incorrect reading of its Policy language.”42

However, the district court included an apparent cautionary statement: “Of course, now that Cincinnati Insurance’s construction argument has seemingly run its course under Wisconsin law, a similar position in the future might well move beyond wrong to wrongheaded.”43

Would Things Have Been Different?

Advance Cable and Welton are just the latest in a line of cases that demonstrate how clear definitions and policy provisions are essential to a successful coverage defense. In light of these decisions, particularly the cautionary language in Welton, insurers and their defense counsel will want to review their coverage positions in claims involving cosmetic damage to metal roofs caused by hail, especially if the policies contain definitions of “loss” that are the same or similar to what was contained in the Cincinnati policies. That said, it is also important to note that the courts in those cases concluded that coverage existed, at least in part, because Cincinnati could not explain why its definition of “loss” included a disjunctive: “loss or damage.”

There are several potential explanations for this policy language. One explanation is that the language is consistent with the perils insured against. For example, a policy may cover loss in the form of a theft of a wedding ring. The ring is not damaged but the insured suffered a loss from the peril of theft. This is compared to the peril of fire, which causes damage to property. Thus, one explanation is that the policy defines “loss” as “loss or damage” in order to maintain consistency with the perils insured against. Such an explanation, which was not offered in the two cases discussed, might have assisted Cincinnati’s policy interpretation argument.

Similarly, Cincinnati might also have had more success supporting its position if it had produced evidence that the hail dents did not affect the value of the property––that is, that the insured did not suffer a “loss” because the hail denting was cosmetic only. At the end of the day, however, it is

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difficult to say whether such evidence would have changed the outcome in either case.

The Insurance Industry’s Response

The insurance industry has responded to Advance Cable, Welton, and similar cosmetic damage claims in various ways. Insurers are now utilizing different definitions of “loss” that do not extend to hail dents or other cosmetic damage. Similarly, some insurers have issued endorsements for buildings with metal roofs that specifically exclude coverage for hail dents or cosmetic damage. Others are affording coverage for cosmetic damage, but limiting the coverage to a certain percentage of the property’s value. Similarly, some insurers are increasing the deductible for storm damage claims. Finally, some insurers are issuing policies that provide actual cash value only coverage for metal roofs.

Conclusion

Although Advance Cable and Welton are federal court cases that are not binding on Wisconsin state courts, and although the parties in those cases may not have presented all of the relevant issues, arguments, or evidence regarding coverage, it would seem most prudent from a defense perspective to attempt to address these decisions head-on. The insurance industry has already begun this process. However, it remains to be seen how the new definitions, endorsements, and other industry responses will affect this issue. Defense counsel should remain apprised of the situation as the new definitions and industry responses are analyzed in Wisconsin courts.

Forrest G. Hopper is a Shareholder with Borgelt, Powell, Peterson & Frauen S.C. in the firm’s Minnesota office. He focuses his practice on property insurance coverage issues, liability defense, and subrogation in Wisconsin, Minnesota, and South Dakota� He can be reached at fhopper@borgelt�com�

Taylor C. Gumbleton is an Associate with Borgelt, Powell, Peterson & Frauen S.C. in the firm’s Milwaukee office. She focuses her practice on property insurance coverage issues, bad faith counseling and litigation, and liability defense� She can be reached at tgumbleton@borgelt�com�

References1 Advance Cable Co�, LLC v� Cincinnati Ins� Co�, 788 F.3d

743, 744 (7th Cir. 2015).2 Id� at 744.3 Id�4 Id� at 745.5 Id�6 Id.7 Id�8 Id�9 Id.10 Id�11 Id� at 746.12 Id�13 Id�14 Id.15 Id� at 745.16 Id�17 Id� at 746.18 Id� 19 Id�20 Crestview Country Club, Inc� v� St� Paul Guardian Ins� Co�,

321 F. Supp. 2d 260 (D. Mass. 2004). 21 Advance Cable, 788 F.3d at 746-47.22 Id� at 747.23 Id�24 Id.25 Id� 26 Id�27 Id.28 Id�29 Id.30 Id� at 748.31 Id.32 Id�33 Id�34 Id� at 749.35 Id.36 Welton Enterprises, Inc� v� Cincinnati Ins� Co�, __ F. Supp.

3d __, 2015 WL 5474667 (W.D. Wis. 2015).37 Id� at *1. 38 Id�39 Id� at *6.40 Id� at *7.41 Id�42 Id�43 Id�

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NOTES

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NOTES

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Wisconsin Civil Trial Journal - Mallery & Zimmerman · Spring 2016 • Volume 14 • Number 1...

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Transcript of Wisconsin Civil Trial Journal - Mallery & Zimmerman · Spring 2016 • Volume 14 • Number 1...