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Did daddy touch you or not?

By J. DeVoy

From the WTF file in Dane County, Wisconsin (i.e. Madison and its metro area):

[A] jury has awarded $1 million to Dr. Charles and Karen Johnson, a former Madison couple who alleged that therapists implanted in their now adult daughter false memories of childhood sexual and physical abuse. The case has been cluttering up the docket for fourteen years, but at the time it was filed, it was just “one in a long line [of cases] across the country related to a controversial treatment called recovered memory therapy.” (more.)

The full story is available at The Spearhead.  In light of Wisconsin’s sweeping tort reform bill that’s working its way through the legislature – and almost sure to be made law by the state’s Republican governor – these kinds of cases are less likely in the future, as Wisconsin will finally join the rest of the world in adopting the Daubert standard for expert testimony.  Currently, Wisconsin looks only to the “relevance” of the expert’s testimony once qualified, which is a boon for trial lawyers but allows for family-ruining disasters such as this one when “soft” sciences are given rule of the testimonial roost. See Wis. Stat. §§ 907.02-07; see also this piece by Stephen Hurley.  Daubert attaches additional conditions to the admissibility expert testimony, requiring that the methodologies used be peer reviewed and scientifically accepted, with results arising from the expert’s use of the scientific method.

The proposed Wisconsin changes even go above this standard and require the testimony to be “true” as well as reliable.  This choice of language likely will spawn interesting litigation, especially in the discovery phases, if the law passes as written.  That may also be the last surge of litigation in Wisconsin for a while, as the rest of the tort reform bill guts the financial meat from some lucrative areas of plaintiff’s work.  The Journal Sentinel summarizes what the tort reform bill does:

• Limit noneconomic damages – payments for loss of companionship, mental distress and pain and suffering – to $750,000 in medical malpractice cases at nursing homes. That limit matches the one already in place for other types of medical malpractice cases.

• Limit punitive damages to $200,000 or double the amount of compensatory damages, whichever is higher.

• Raise the threshold for winning punitive damages in lawsuits so that plaintiffs would have to prove that defendants acted “with intent to cause injury to a particular person” or with a knowledge that their action would lead to that result. Now, plaintiffs have a lower threshold of proving that defendants acted maliciously or with intentional disregard for the rights of victims.

• Prevent reports required by state regulators, or statements from employees of a health care provider, from being used as evidence in civil and criminal actions.

• Raise the standards for qualifying people as experts when they give court testimony.

• Block lawsuits from proceeding in cases where plaintiffs cannot prove who harmed them. The change was a response to a 2005 state Supreme Court decision that allowed a case against seven paint manufacturers to advance to trial even though the plaintiff could not prove who made the lead-based paints that he said poisoned him as a child.

Lesson: Don’t get hurt in Wisconsin.

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