07-004280CB In Re: Senate Bill 28 (J. Rae Hoyer) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: A contested verdict-based judgment claim for $1,129,042.44 in funds from the Florida Sheriff`s Self-Insurance Fund to compensate Claimant for the death of husband, while conducting a mental health evaluation is recommended favorably.

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Dr. Hoyer was employed by th e David Lawrence Center, a

not-for-profit mental health faci lity in Naples, Collier County,

Florida. He worked for the center part-time, approximately

24 hours a week, and earned $88,500 a year. He was also

planning an association with a group of private practitioners.

Dr. Hoyer was appointed by the St ate of Florida to perform a

forensic mental health eval uation to determine whether an

inmate, Rodrigus Patten, was co mpetent to stand trial. At

the time he was strangled, Dr . Hoyer was conducting the

evaluation in an interview room located in the Collier County

Jail in Naples. The room had windows but no guards posted

inside or outside the room. Mr. Patten was charged with

carjacking, kidnapping, and robbery, and had been

incarcerated in the County Jail since October 3, 2000.

There were numerous incidents involving Mr. Patten’s self-

injurious, destructive, and homicidal behavior during his approximately 90-day incarcerati on. Because of his threats

to kill himself and other inmates, his intimidation of staff and inappropriate behavior, including masturbating in front o

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nurses, he frequently was discip lined, with measures ranging

from restraints to special confinement.

A mong other increasingly frequent incidents, on October 28,

2000, at Mr. Patten’s own request, he was moved to a different area of the jail because “he was going to kill

someone.” In November 2000, at the request of inmates

who were concerned about his “v iolent attitude,” Mr. Patten

was moved again. During the same month,he was

evaluated and determined to be suffering from auditory,

visual, and command hallucinations and delusions, and

spent time requiring closer monitoring on a segregated

suicide watch.

In the 10days preceding the strangling of Dr. Hoyer, Mr. Patten was shackled to his bunk five times for refusing to

stop banging objects and hitting his head on his cell door.

On the day before Dr. Hoyer wa s strangled during a fightin a

recreation yard,another inmate reported that Mr. Patten tried

to strangle him.

In 2001, there were approximat ely 600 inmates in the jail

and a total of 110 to 120 deputies, working in shifts of 23 to

28 at any one time.

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A t the joint House and Senate Special Masters’ hearing in

January 2007, as at trial, undisputed testimony and

documentary evidence established Mr. Patten’s violent and

aggressive behavior in jail. Ms. Vickie Freeman, the staf f

mental health counselor, test ified at trial that he was

extremely dangerous and, she felt he was “a predator about

to pounce on me.” Over the course of her interactions with him, she decided not to see hi m unless they were separated

by bars and a guard was present.

On January 3, 2001, Ms. Freeman received a telephone call from someone on his staff telling her that Dr. Hoyer was

coming to evaluate Mr. Patten. He arrived at the jail around

9:00 or 9:15 a.m., was met at the control center by

Ms. Freeman, and accompanied her to her office where he

reviewed Mr. Patten’s medica l records. Ms. Freeman says

she told Dr. Hoyer that Mr. Pa tten was the “most antisocial

person” she had ever met, that he “exposed himself in a very threatening way”; “that he needed to watch out for this guy,”

and that she herself did not meet with Mr. Patten without

security. Ms. Freeman testified that Dr. Hoyer ignored he

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warnings about inmate risk factors and chose to interview Mr. Patten in an interview room without a guard inside the

room or at the window.

Detention Deputy Gary Decker also testified that he

encountered Dr. Hoyer in passing in the hallway, and also

warnedDr. Hoyer about Mr. Patten’s posing an unusual risk and the need for someone to be with him during the

interview. Deputy Decker sa id he told Dr. Hoyer that

Mr. Patten was a “good sized gu y and he’s kind of whacky.”

He also said he looked into the interview room two times, saw Dr. Hoyer seated on the side of the table closest to the

door and facing the window that is on the opposite side o

f

the room. He said the first ti me he looked in the room Mr.

Patten was seated on the opposite side of the table and that

the second time he looked in the room Mr. Patten was standing.

Deputy Decker’s credibility is undermined significantly and

his testimony, without corrobora tion, lacks the reliability to

serve as the basis for a factual finding because he failed to

mention warning Dr. Hoyer in a report on the day of the

incident and in a sw orn statement to a detective investigating

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the incident 2days later. There was also testimony

contradicting Deputy Decker’s te stimony that he was present

at the control center where he said he had the conversation

with Dr. Hoyer. Jail logs in dicate that Deputy Decker was

transporting inmates to and fr om court that morning.

The most reliable independent evidence of what, if any, warnings were given to Dr. Ho yer is the information provided

to Dr. Carl Sieg. Approximat ely 2½ weeks earlier, Dr. Sieg

was in a similar situation pr eparing to conduct the same type

of court-ordered evaluation of Mr. Patten. He also met with

Ms. Freeman before conducting the interview.

Ms. Freeman testified that she gave Dr. Sieg essentially the same information that she gave Dr. Hoyer. Her testimony is

that she told both of them that Mr. Patten was dangerous,

antisocial, and that she repeated some of the key statements

he had made in interviews. She testified that she did not recall telling Dr. Sieg where to conduct his interviewwith Mr. Patten.

Dr. Sieg recalled that, on December 18, 2000, he met with

Mr. Patten in the front family visitation room, a room that is

larger than the interview room, with large windows and

visible from the control center at the suggestion o f

Ms. Freeman who only“told me t hat she had something akin to a hunch, or suspicion--I’m not sure she used those exact

words--that you may want to consider meeting with this

inmate in thefamily visitation room.” Dr. Sieg does not remember her giving him any factual basis for he

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recommendation.

Dr. Sieg also did not recall Ms. Freeman’s saying that

Mr. Patten was “the most ant isocial person she had eve r

met,” nor that she gave any details about Mr. Patten’s

exposing himself. He testifi ed that he does not recall he r

saying that she was afraid of the inmate or that she always

had a guard with her whenever she met with Mr. Patten.

From 1996 to 2001, Dr. Sieg conducted mental health evaluations at the Collier Coun ty Jail in Naples, from 25 to

100 times. One of those evaluations was successfully completed while the inmate wa s in shackles. Other than

being shown around the jail by Ms. Freeman on one of his first visits, Dr. Sieg testif ied that he was not given any

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information on safety precautions, the alarm system, or the locations and use of panic buttons.

A fter Dr. Hoyer arrived at the jail on January 3, 2001, around

9:00 or 9:15 a.m., and met wit h Ms. Freeman to review he r

records for 10 or 15minutes, he began his evaluation of Mr.

Patten at approximately 9:30 a. m. Sometime after that

(varying from a half-hour to an hour), Mr. Patten was seen

walking near the central control area of the jail and told someone that there was someth ing wrong with Dr. Hoyer. Deputies began CPR and summoned emergency workers,

while others returned Mr. Patten to his cell. The deputies

suspected that Dr. Hoyer was suffering from a heart attack.

After Dr. Hoyer was in the hosp ital, his wife and the hospital

staff noticed marks on his neck. During the course of an

investigation, Mr. Patten c onfessed and strangulation was

confirmed as the cause of deat h by the medical examiner.

Ms. Freeman recovered notes from the interview room,

apparently made by Dr. Hoyer bef ore the interview. In

responding to the question, “[W]hat does he say?” regarding

the notes, Ms. Freeman testified as follows:

A. He says 20-year-old single black male. Was on

Trilafon, four milligrams , QHS Lee County. Said

suicidal in jail, LeeCounty. Said auditory

hallucinations. History, drugs . Rule out antisocial. In

quotes, “Voices tell him to make right choices.”

Marijuana since age 16. Task, which is an education

drug program, 1994. 10/10/00, mental status exam . .

. within normal limits per jail doc. “How can I convince

the system I’m a good guy?” Manipulating housing in

j ail. Meds discontinued 11/7. Reports auditory

hallucinations, “To expose my private parts.” Late r

said “Nurse needed it.” And then it says jail three

months.

That testimony concerning the notes does not support Ms. Freeman’s testimony concerning a conversation that

included warnings over and above the information that

Dr. Hoyer copied from the medical record. Ms. Freeman did

not know and, therefore, could not have told Dr. Hoyer about

the attempted strangling of another inmate on the day before

his evaluation.

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Dr. Hoyer was described as 5 feet 10 inches tall and 118

pounds. The human resource s manager at the mental

health center where he worked said that Dr. Hoyer was not

aggressive and not a risk taker who would knowingly put

himself in harm’s way. It is reasonable to assume that

Dr. Hoyer might have complied with Ms. Freeman’s

suggestion that he, like Dr. Si eg, conduct the interview in a

different location, if she had made that suggestion to him.

She did not make that suggestion, according to her own

testimony and if, as she said, she gave both psychiatrists the

same warnings, Dr. Sieg’s testimony supports a finding that

the warning of her "hunch" was vague and, given her lack o f

knowledge of the most re cent strangling incident,

inadequate.

LITIGATION HISTORY: Seeking compensation for the strangling of her husband by

Mr. Patten, Mrs. Hoyer filed a wr ongful death lawsuit in state

court that was later, because of federal claims included in

the complaint, removed to federal court at the request of the

Sheriff. The central issues at trial and, before the Senate,

are whether Mr. Patten’s increasi ngly violent behavior in jail

was conveyed to Dr. Hoyer by Vickie Freeman or anyone else on the Sheriff’s staff befor e he attempted to conduct the

interview and evaluation in the interview room alone with the

inmate; and whether, in spite of the duty the Sheriff owed to

Dr. Hoyer to warn him of known dangerous propensities o

f

inmates andto protect him while he was in the jail, Dr. Hoye r

assumed the risk of conducting the interview unde r

circumstances that directly caused his death.

On May 10, 2005, after a 5-day trial, the jury found the

Sheriff and Dr. Hoyer equally at fault, and awarded damages

to Mrs. Hoyer in the amount of $31,079 for funeral expenses;

$244,047 for past support and $375, 134 for future support;

$1,000,000 for past pain and suffering; and $1,000,000 fo r

future pain and suffering, for a total of $2,650,260. After a

50 percent reduction for Dr. Ho yer’s comparative share o f

negligence, the trial court entered an amended judgment, on

June 23, 2005, of $1,325,130 in damages, and $3,912.44 in

costs. The Sheriff’s moti on for a new trial was denied.

In its opinion on March 28, 20 06, the United States Court o f

Appeal for the Eleventh Circuit affirmed the trial court’s

j udgment, rejecting arguments that jury instructions and the

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verdict form were improper. Following the decision on appeal, Mrs. Hoyer was paid $200,000, the sovereign

immunity limit, leaving $1, 129,042.44, as the excess

judgment for the claim bill.

A n expert, who prepared an economic loss analysis o f

Dr. Hoyer’s death, estimated $1,199,750 as the past and future loss of support and services that resulted from his

death. At the Special Ma sters’ hearing, Mrs. Hoye

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confirmed her dependenc e on Dr. Hoyer’s income during

their marriage. She is a hi gh school graduate who worked

as a secretary and office manager at a hospital and in a

mental health institute in Virg inia. After their marriage and

move to Florida in 1988, Mrs. Hoyer and her late husband agreed that she would not wo rk and would instead spend

some time pursuing her talent for painting. Since his death,

she has taken $100,000 from t he equity in her home to

support herself and pay debt s, and has made interest

payments only totaling approxim ately $22,000 to $25,000,

on the home equity loan. As of October 31, 2007, he

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attorney reports that Mrs. Hoye r continues to live in Bonita

Springs, is unemployed, and continues to experience "a

financial crunch."

CLAIMANT’S POSITION: Sheriff Hunter owed a duty to Dr . Hoyer to protect him while

he was in jail, and breached that duty by negligently failing

to:

advise Dr. Hoyer of the risk posed by the inmate;

follow the standards in the Collier County Jail Policy and

Procedure Manual, that requi red direct or visual

supervision of a business invitee;

instruct Dr. Hoyer on the av ailability of a panic button in

the interview room;

reschedule the interview to a time or date when the jail

would not be short-staffed; and

classify Mr. Patten as high risk and use restraints

appropriate for that level of risk.

COLLIER COUNTY SHERIFF’S There was no active, egregious wrongdoing by the Sheriff o r

POSITION: his agents that justifies the enactment of a claim bill.

Dr. Hoyer assumed the risk of interviewing Mr. Patten

without supervision after being adequately warned by

Ms. Freeman, the jail’s ment al health counselor, and by

another staff person of the inmate’s past violence and

dangerous propensities.

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Regardless of the standards in the Sheriff’s Manual, a

psychiatrist, like an attorney for whom the psychiatrist is

conducting the mental heal th evaluation, may demand a

private interview with an inmate, including re j ecting the offe r

of a guard observing the interview.

Dr. Hoyer, a former employee of the Collier County Jail was

familiar with the facility, including presumably the location o f

panic buttons and the use of t he security system. There was

no need to postpone the evaluati on when Dr. Hoyer’s office

called in advance or when he arrived, due to staff limitations.

When the jail is short-staffed, security is not compromised;

rather,more optional activities, such as visits and programs

sponsored by community groups, for example, are postponed.

The failure to classify Mr. Pa tten as high risk did not affec t

the conduct of the interview. A high risk classification means an inmate is transported with shackles, handcuffs, and two

guards, but restraints generally are, but not always,removed for the evaluation.

CONCLUSIONS OF LAW: The Collier County Sheriff agreed that he had a duty to protect business invitees to the jail from known dangerous

inmates. There is no dis pute that Rodrigus Patten was

known to be dangerous by the Sheriff, through the actual

knowledge of his own st aff and through the actual

knowledge of the Prison Health Services staff, the private

contractor that provided me ntal health services and

employed Vickie Freeman, the ja il’s mental health counselor.

On the issue of negligence, the Restatement (Second) o f

Torts § 319 (1965) provides that:

One who takes charge of a third person whom he knows or should know to be likely

to cause bodily harm to others if not

controlled is under a duty to exercise

reasonable care to control the third person

to prevent him from doing such harm.

In Nova University v. Wagner , 491 So. 2d 1116 (Fla. 1986),

the Florida Supreme Court accepted Section 319 as an

applicable statement in Florida of traditional tort principles.

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In Nova , the operator of a residenti al rehabilitation program

that accepted ungovernable and emotionally disturbed

delinquent children that exhibite d, on numerous occasions, a

propensity for physical violence to ward younger children was held to have a duty to exerci se reasonable care to avoid

harm to the general public. 491 So. 2d at 1117.

The Restatement (Second) of Torts § 496B describes

express assumption of the risk as follows:

A plaintiff who by contract or otherwise

expressly agrees to accept a risk of harm

arising from the defenda nt’s negligent or

reckless conduct cannot recover for such

harm, unless the agreement is invalid as

contrary to public policy.

The facts do not support any claim that Dr. Hoyer agreed to relieve the Sheriff of his duty of care by expressly assuming

the risks. While certain risks were inherent in the job

Dr. Hoyer was performing, there is no evidence, even in the

testimony of Ms. Freeman, that he rejected proposed safety

measures and absolved the Sheriff of any responsibility fo

r

his negligence. See , e.g. , Mazzeo v. Sebastian , 550 So. 2d

1113 (Fla 1989). Therefore, w hether the Sheriff breached

his duty depends on whether Dr. Hoyer impliedly assumed

the risks.

In Blackburn v. Dorta , 348 So. 2d 287 (Fla. 1977), the

Florida Supreme Court abolishe d the use of the defense o f

implied assumption of the risk as a total bar to recovery o f

damages and, instead held that it was merged into the

defense of contributory neglig ence, as defined in the

Restatement (Second) of Torts, § 466 (1965).

The Restatement (Second) of Torts, § 466 (1965) describes

contributory negligence as follows:

§ 466 Types of Contributory Negligence

The plaintiff’s contributory negligence may

be either

(a) an intentional and unreasonable exposure of himself to danger created by

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the defendant’s neglig ence, of which

danger the plaintiff knows or has reason to

know, or

(b) conduct which, in respects other than

those stated in Clause (a ), falls short of the

standard to which the reasonable man

should conform in order to protect himself

from harm.

The legal conclusion must be that, in effect, even assuming

that the Sheriff’s assertion th at Dr. Hoyer can be implied to

have assumed the risk of interviewing Mr. Patten unde r

dangerous circumstances is correct, the comparative negligence of each party must be apportioned, as it was by

the jury.

Resolving any doubts in favor of Sheriff Hunter, the jury

found, as I do, that the Sheriff was at least, if not more,

negligent than Dr. Hoyer. I do not recommend that more fault be apportioned to the Sher iff than the jury did solely

because the amount of the award, when reduced by 50

percent, is sufficiently close to the estimated economic loss.

ATTORNEY’S FEES AND The Claimant’s attorney’s fees are 25 percent plus costs,

LOBBYIST’S FEES: consistent with Section 76 8.28(8), Florida Statutes.

Lobbyist’s fees are an additional five pe rcent of any award,

or $56,452.13 for the full amou nt of this claim bill.

OTHER ISSUES: The Florida Sheriff’s Self -Insurance Fund allocated

$3.5 million to Collier County fo r claims in the 2001 fiscal

year. Of that, at least $1.2 million remains available for an

award of this claim bill.

LEGISLATIVE HISTORY: This is the second year that a bill has been file d on behalf o f

this Claimant. During the 2007 session, SB 42 died in the Committee on The Special Master on Claim Bills on May 4,

2007.

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RECOMMENDATIONS: For the reasons set forth above, I recommend Senate Bill 28 (2008) be reported FAVORABLY.

Respectfully submitted,

Eleanor M. Hunter

Senate Special Master

cc: Senator Dave Aronberg

Representative Susan Bucher

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law