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Wisconsin high court strikes down cap on non-economic damages, ATLA reports

(7/19/2005) - Association of Trial Lawyers of America (ATLA) President Todd Smith announced that last Thursday the Wisconsin Supreme Court issued a 4-3 decision striking down as unconstitutional the state's cap on non-economic damages in medical malpractice cases.  According to Smith, the $350,000 cap went into effect in May 1995 (though it was indexed for inflation and had grown to $433,000).  Smith said the decision rests on equal protection grounds, though the court did not address other asserted constitutional infirmities.  The court found that there was no rational basis for the cap, concluding after examining the available empirical evidence that the legislature's faith in the cap was too speculative to justify a reduction in patient's rights.

According to Smith, the ruling involved the case of Matthew Ferdon, now 8, who is partially paralyzed and has a deformed right arm as a result of an injury that occurred at birth.  The case, Ferdon v. Wisconsin Patients Compensation Fund, runs 179 pages long; the majority opinion was written by Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

The Center for Constitutional Litigation consulted with plaintiff's counsel in the case, and ATLA joined the amicus brief filed by the Wisconsin Academy of Trial Lawyers. 

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