Wisconsin Court of Appeals decides three issues of first impression.

• Author: Ziemer, David

Byline: David Ziemer

A Dec. 2 opinion from the Wisconsin Court of Appeals decides three issues of first impression.

First, if a party has invoked his Fifth Amendment right against self-incrimination during discovery, the court can bar him from testifying after he waives the privilege during trial.

Second, the victim of an intentional tort has no duty to mitigate his damages.

And third, the double damages provision of the Wisconsin Organized Crime Control Act (WOCCA) is remedial, so the entire damage award should be doubled.

The case involved a lawsuit by S.C. Johnson & Son, Inc. against various employees and transportation companies. The complaint alleged that the employees invited bribes and kick-backs from outside companies and, in exchange, submitted inflated invoices to S.C. Johnson on behalf of the companies.

The jury awarded S.C. Johnson $203.8 million, and the Court of Appeals affirmed, in an opinion by Judge Richard Brown.

Fifth Amendment

The court first held that the trial court acted within its discretion in barring one of the parties, Tom Russell, from testifying, because during discovery he had invoked the Fifth Amendment.

Lacking any Wisconsin precedent on the issue, the court relied most heavily on the Second Circuit's opinion in U.S. v. Certain Real Prop. and Premises Known as: 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78 (2d Cir. 1995).

The Court of Appeals adopted the Second Circuit's reasoning that, Invoking the privilege during discovery only to later withdraw the privilege may give the invoking party a decided advantage in that he or she can delay having to answer questions until after having had the opportunity to watch the adverse party's case develop. It allows the invoking party to conceal information and then tailor the invoker's own version of the events to meet the opposition's theory of the case and the evidence garnered in support of it.

Intentional Torts

Second, the court held that victims of intentional torts have no duty to mitigate damages.

Under Wisconsin law, there is a duty to mitigate both breaches of contract and negligence. But...