The case arose from tragic circumstances when Savannah Wren gave birth to a stillborn child at Columbia St. Mary's Hospital Milwaukee in May 2020, during the window of immunity created by Wisconsin Statute § 895.4801. Wren had visited healthcare professionals twice with concerning symptoms during her high-risk pregnancy and was discharged from Columbia St. Mary's just hours before returning for a scheduled induction, when no fetal heart rate could be detected. She subsequently filed medical malpractice, wrongful death, and negligent infliction of emotional distress claims against the hospital and physicians.
The court held that the legislature's authority under Article XIV, Section 13 of the Wisconsin Constitution to 'alter or suspend' common law empowered it to enact the immunity statute. As Chief Justice Karofsky explained, 'The legislature's authority includes the power to define and limit causes of action and to abrogate common law on policy grounds.' Because the statute suspended Wren's common law causes of action, the court reasoned, no jury trial right could attach under Article I, Section 5, which guarantees jury trials only for viable 'cases at law.'
In forceful language rejecting Wren's constitutional challenge, the court declared that 'Section 895.4801 cannot burden a constitutional right that has not attached.' The opinion emphasized that once the legislature abrogated Wren's asserted causes of action, 'she has pled no viable cause of action against the defendants upon which the right to a jury trial could attach.'
The case reached the state supreme court after the Wisconsin Court of Appeals reversed a circuit court dismissal and found the immunity statute facially unconstitutional. Circuit Judge Kashoua Kristy Yang had initially dismissed Wren's lawsuit with prejudice, concluding she failed to prove the statute was unconstitutional. But the appeals court applied strict scrutiny analysis, finding the broad immunity was not narrowly tailored to serve the state's compelling interest in responding to the pandemic.
Wren had argued the immunity statute was unconstitutional on multiple grounds, including that it violated due process, equal protection, and was impermissibly vague. She distinguished the law from Wisconsin's Worker's Compensation Act by arguing that workers' compensation provides an alternative remedy while the COVID immunity statute 'abolishes certain causes of action altogether.' The court rejected this distinction, noting that 'the alternative remedy under the Worker's Compensation Act does not include a right to a jury trial' and that precedent 'rejected the constitutional challenge because no jury trial right attaches to claims the legislature has abrogated.'
The unanimous decision reinforces the legislature's broad authority to eliminate civil liability during public health emergencies. The court noted in a footnote that the appeals court's contrary conclusion 'necessarily calls into question the constitutionality of numerous other instances in which the legislature eliminated common law causes of action,' including various Good Samaritan laws and recreational land use immunity statutes.
The Wisconsin Supreme Court declined to apply any level of constitutional scrutiny to the jury trial claim, distinguishing its approach from the appeals court's strict scrutiny analysis. As Chief Justice Karofsky wrote, 'because the right to a jury trial does not attach to Wren's asserted causes of action in this lawsuit, § 895.4801 does not implicate Wren's constitutional right to a jury trial, and our analysis ends.' The court remanded the case to the appeals court to address Wren's remaining constitutional challenges, which were not resolved in the initial appeal.