Gov. Walker: Why protect the worst of the worst?

You may know Dawn Kellner as the mother of Jared Kellner, the 15-year-old-boy who died on his way to Summerfest on June 24, 2010, when a 13 ½ ton concrete panel fell from the O'Donnell Park parking structure and crushed him. I know Dawn as a grieving mother who came to me to uncover the truth about why her son died so senselessly, and to make sure that those responsible are held fully accountable.

On Jan. 11, 2011, Dawn testified courageously at the State Capitol against portions of Gov. Walker's first so-called "jobs" bill. This bill (called Assembly Bill 1) actually has nothing to do with either creating or maintaining jobs, but rather limits people's ability to punish those who cause harm. Dawn's story should give all of us pause as we consider why Gov. Walker's first order of business is to protect those who put all of us in danger.

Dawn made her way to Madison over snow covered roads and waited nearly seven-and-a-half hours before her name was called to speak before a joint committee on this so-called "jobs" bill. Choking back tears, she told how contractors who built O'Donnell Park intentionally cut corners, thereby creating a "ticking time bomb." In legal speak, these contractors "intentionally disregarded the rights" of the public, including Jared. It was simply a matter of time before this slab fell and crushed anything or anybody in its path. Unfortunately for Dawn, we all know how that story ended.

Dawn testified about her sincere dismay at Gov. Walker's proposal to protect the very type of businesses that killed her son. She recounted how Walker, then Milwaukee County Executive, decried the installation at O'Donnell Park as "inexcusable" and promised to join in her lawsuit. The irony of the present bill was not lost on Dawn:

"After my son died, Governor Walker told the media that he wanted to reach-out to me to join in any potential lawsuit. So why is it that his very first proposal as Governor is to protect people like those who killed my son?"

Dawn's impassioned plea to not pass this bill was based on a key question: "Why does Gov. Walker want to protect the worst of the worst?" And make no mistake about it, the worst of the worst are the only ones who benefit from Walker's proposed changes. Under current law (enacted by the Republicans in 1995), punitive damages are designed to punish a defendant who "intentionally disregards the rights of the plaintiff." Walker proposes heightening that standard to allow punitive damages only where a defendant acted with "intent to injure" or knew that it was "practically certain" that injury would result. The change in verbiage is subtle, but it is meant to relieve those who "intentionally disregard the rights" of individuals from being punished. This means, for example, that three, four, or five time repeat drunk drivers that were accountable for punitive damages under the present law will no longer be responsible for them under Walker's law. As Dawn asked: "Why does Governor Walker want to protect the worst of the worst?"

The State Senate recognized the absurdity of Walker's proposal and yesterday passed a version of the bill that maintains the current punitive damage standard. But the State Senate proposal is also a step in the wrong direction. It caps punitive damages at $200,000 or twice the amount of other damages, whichever is greater. The problem with this "fix" is obvious: it encourages businesses to run a cost/benefit analysis to see whether the corporate bottom-line is more than the cap on punitive damages. If so, remember the Ford Pinto debacle? Your safety hangs in the balance.

This bill is being sold to the public as a "jobs" bill, but when supporters were asked point blank how many jobs were going to be created after the bill's passage, no one—not a single person—said that a single job was waiting in the wings. In fact, other supporters candidly admitted under pointed questioning that some of the provisions concerning revamping Wisconsin's product liability laws will actually discourage businesses from settling here. And if you had not heard, this bill also decriminalizes nursing home neglect, hides evidence of nursing home abuse, and dramatically limits nursing home victims' right to recover any damages. How does this create a single job? Let's call this bill for what it is, and perhaps Dawn called it out best: "This bill is a slap in the face to my son and the family of the next Jared Kellner and a slap on the back to bad businesses that cut corners and put profits over safety."

Try as Walker and talk radio might to make the opposition to this bill about "greedy trial lawyers," Dawn's story cuts through that bumper sticker political nonsense. This isn't about trial lawyers or even partisan politics. This is about you, your children, your parents, and your extended families, and whether you want to take away your jury's ability to punish those who intentionally disregard your rights. If that question still gives you pause, go to the Wisconsin Eye's Website and watch the entirety of Dawn's testimony, available here and beginning at 7:18:30. We were all led to believe that job creation was Governor Walker's first order of business, so why is it Governor Walker's first bill creates not a single job but rather a legal climate that protects the "worst of the worst?"

Dawn is still waiting for an answer.

- Al Foeckler is an attorney at Cannon & Dunphy, S.C. and represents Dawn Kellner.