Case Note: Carol Lorbiecki v. Pabst Brewing Company
Hanna C. Day, Coyne, Schultz, Becker & Bauer, S.C.

On May 7, 2024, the Wisconsin Court of Appeals issued an important decision instructing circuit courts on how to apply the punitive damages cap in Wis. Stat. § 895.043(6). In Carol Lorbiecki v. Pabst Brewing Company, the court of appeals ruled that punitive damages must be calculated based on total damages, not just the damages attributed to a particular defendant.[1] As discussed below, Lorbiecki could result in unfair judgments entered against defendants who are found minimally liable in high dollar cases. The Wisconsin Supreme Court has accepted the case for review but unless the decision is reversed, Lorbiecki is citable and binding on circuit courts. A summary and discussion of Lorbiecki is set forth below.

I.              Jury Verdict

Gerald Lorbiecki worked as a pipefitter in Wisconsin from the mid-1970s to the early 2000s at multiple worksites in Wisconsin, including Pabst Brewing Company, where he was exposed to asbestos-containing materials.[2] He was diagnosed with mesothelioma in 2017 and died in 2018.[3] 

Prior to his death, Gerald initiated a lawsuit against Pabst and others for negligence and violations of the safe place statute relating to his asbestos exposure.[4] His wife, Carol, continued the lawsuit individually and on behalf of his estate after his death.[5] Before trial, all the defendants except Pabst were dismissed by stipulation. [6]

At the end of trial, the jury apportioned liability as follows:[7]

For damages, the jury awarded $5,545,163.55 in compensatory damages, including $195,163.55 for medical and funeral expenses, $5 million for pre-death pain and suffering, and $1.35 million for loss of society and companionship (which the court reduced to $350,000 per the wrongful death damages cap).[8] In addition, the jury awarded $20 million in punitive damages specifically against Pabst.[9]

II.            Post-Verdict Motions

Post-verdict, the circuit court imputed Sprinkmann’s percentage of liability to Pabst because Sprinkmann was a subcontractor of Pabst’s, and Pabst had a nondelegable duty under the safe place statute to maintain its premises in reasonably safe condition.[10] This resulted in Pabst being found 42% liable for the total compensatory damages, or $2,328,968.69.[11] 

Next, Pabst argued that the punitive damages award should be reduced under Wis. Stat. 895.043(6), which provides: “Punitive damages received by the plaintiff may not exceed twice the amount of any compensatory damages recovered by the plaintiff ….” The circuit court agreed and calculated the punitive damages recoverable from Pabst as twice Pabst’s apportionment of the compensatory damages, or $4,657,937.38.[12] 

Based on these decisions, the court entered total judgment against Pabst in the amount of $6,986,906.07.[13]

III.          Court of Appeals 

Both parties cross-appealed.[14] With regard to the punitive damages award, Lorbiecki argued that the circuit court erroneously interpreted the punitive damages statute and should have doubled the jury’s total award of compensatory damages, not just the amount attributable to Pabst based on its comparative liability.[15] She based her argument on the language of § 895.043(6), which states that punitive damages are calculated based on “the amount of any compensatory damages recovered by the plaintiff,” without reference to comparative fault.[16]

The court of appeals agreed with Lorbiecki and ruled that “[a] plaintiff’s recovery arises out of the calculation of compensatory damages, even if a plaintiff may never touch a fraction of that amount due to other factors.”[17] Applying the punitive damages cap to the total amount of compensatory damages awarded by the jury, the court of appeals remanded the case to the circuit court with instructions to increase the punitive damages award to $11,090,327.10 (an increase of approximately $6.5 million from the circuit court’s original award).[18]

IV.          Conclusion

In its decision, the court of appeals conceded that its interpretation of the punitive damages statute could result in unconstitutionally excessive punitive damage awards.[19] For example, a jury could award $10 million in compensatory damages, find the defendant only 1% at fault (and other non-parties 99% at fault), award $20 million in punitive damages, and the plaintiff would be able to recover $100,000 from the defendant in compensatory damages and $20 million in punitive damages (a 200x multiplier). The court of appeals declined to rule, however, that its interpretation was facially unconstitutional or would always lead to an absurd result or violate due process in every circumstance.[20] 

The Wisconsin Supreme Court has accepted the case for review. As of the date of publication, the case is currently being briefed. Oral arguments are expected to occur this fall.

Author Biography:

Hanna C. Day is an associate at Coyne, Schultz, Becker & Bauer, S.C. in Madison. She practices in civil litigation with a focus on insurance defense. She received her B.S. in 2019 from the University of Wisconsin-La Crosse and her J.D. in 2024 from University of St. Thomas – School of Law. Hanna is admitted to practice in Wisconsin.