07-004283CB In Re: Senate Bill 34 (Laura Laporte) vs. * Status: Closed DOAH Final Order on Friday, May 2, 2008.

Summary: Because the jury award of $5.5 million exceeded the more common damage award for similar inquiries, it is recommended that the claim bill be amended to reduce the award to $3 million.

SPECIAL MASTER’S FINAL REPORT – SB 34 (2008) T

December 26, 2007

Page 2

left ankle. Claimant underwent three surgeries on her left

leg, which involved insert ing a metal rod and screws to

stabilize and align her leg, and subsequent surgeries to replace the hardware when it failed. A fourth surgery

involved fusing her right ankle to the leg bone. In the future, she will require a knee re placement and possibly othe

r

surgeries to her left leg and right ankle.

The crash caused permanent inju ries and disfigurement to

Claimant's legs. Her left leg was shortened as a result of the

reconstructive surgeries. Claimant now has a waddling gait

and experiences pain when walki ng. She is unable to get up

on her own when she falls and, because she lives alone, this

has created situations in the past when she has had to wait

a long time before a friend could come to help her up. On

two occasions, she broke her left foot when she fell.

A significant factor in this case, and one that was apparently

influential to the jury in making its damage award to Claimant, is her muscular dystrophy. Claimant was first

diagnosed with muscular dystr ophy in 1978. She has the

least debilitating of the th ree main forms of muscula

r

dystrophy, referred to as "limb-girdle" muscular dystrophy. The principal effect of the disease for Claimant is that she

has diminished upper body strengt h. For example, Claimant

is unable to raise her arms above her head and a task such

as brushing her hair requires that she first lie down in a

position where she does not have to lift her hands above he

r

shoulders. Although Claimant' s muscular dystrophy mostly

affected her upper body, it had some effect upon her legs as

well. She admitted that even before the accident she would

occasionally fall down.

Commendably, Claimant remai ned as active as possible

despite her muscular dystrophy, and helped to operate a petting zoo and related summer and after-school programs

for kids. She even rode her horses.

Since 1990, Claimant has received Social Security disability

payments based on 100 percentdisability caused by he r

muscular dystrophy. A vocational rehabilitation counselo r

testified that Claiman t's physical activities prior to the crash

are not inconsistent with her qualification for 100 percent

disability because Social Secu rity disability determinations

are based on one's ability to do work for an employer without

SPECIAL MASTER’S FINAL REPORT – SB 34 (2008) T

December 26, 2007

Page 3

physical assistance and interrupt ion. Claimant was only able

to work for herself because she could get physical

assistance and take rests when she needed.

Claimant's neurologist stated that her form of muscula r

dystrophy progresses slowly to further diminish strength and

physical abilities until a point is reached when the victims will

no longer be ableto care for themselves and will need

constant care from others. It was his opinion that Claimant's

injuries suffered in the crash will likely cause the stages o f

lost strength and abilit y, including the stage at which she will

need constant care, to arrive years earlier.

The cost for part-time, in- home care for Claimant was

estimated at $18,000 per year. The cost of full-time care was estimated at $55,000 to $80,000 per year. Medicare,

which has paid most of Claimant's past medical expenses is

likely to pay for her future surgeries, but would not pay for in-

home care.

In addition to the $100,000 sove reign immunity cap paid by

the Department, Claimant rece ived $100,000 from her own

car insurance policy and $25,000 from the insurance carried

by Ms. Jackson.

LITIGATION HISTORY: Claimant sued the Depar tment in 2000 in the circuit court fo r

Indian River County. The De partment admitted liability and

the trial proceeded to determi ne Claimant's damages. At the

conclusion of the trial in 2002, the jury verdict was

$160,536.82 for past medical expenses, $422,240 for future

medical expenses, $500,000 for past pain and suffering, and

$4,500,000 for future pain and suffering. When costs were added, the final judgment for Claimant was $5,600,647.81.

The Department paid the so vereign immunity cap o

f

$100,000, leaving $5,500,647.81, which is the amount

sought in this claim bill.

Following the judgmen t, the Department filed a motion fo r

remittitur, arguing that the ju ry award was excessive. The

motion was denied by the court.

CLAIMANT’S POSITION: The Department is liable for the negligence of its

employee.

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December 26, 2007

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The jury award is reasonab le because Claimant, who

already had disabilities in her upper body caused by

muscular dystrophy, has now been burdened with

significant disabilities in her lower body, and the

combination has substantially destroyed he r

independence and qua lity of life.

The jury award is further ju stified by the fact that

Ms. Jackson had a history of prescription drug abuse and her supervisors at the Department knew at the time of the

crash that Ms. Jackson was unfit to drive.

DEPARTMENT’S POSITION: The Department admitted liability for negligence.

Claimant's physical activities before 1999 show that she

was dishonest when applying for disability payments from the Federal Government and, therefore, Claimant lacks

credibility in her subsequent cl aims regarding her injuries

from the 1999 crash.

A lternatively, Claimant's muscular dystrophy was a

significant preexisting disability that makes the jury's

damage award for her 1999 injuries excessive.

There is insufficient evidenc e to prove that Ms. Jackson

was impaired by drugs at the ti me of the crash or that the

Department should have prohibited her from driving a

vehicle in the course of her duties.

CONCLUSIONS OF LAW: Ms. Jackson had a legal duty to yield the right-of-way to

Claimant. Because Ms. Jackson was acting in the course

and scope of her employment at the time of the crash, the

Department shared that duty. Ms. Jackson breached the

duty by turning in front of Claimant's vehicle and the breach

was the proximate cause of the collision and the injuries to

Claimant that resulted from the collision.

Whether Ms. Jackson was impaired by drugs at the time o f

the crash was not an issue presented in the trial court

because liability was admitted by the Department. I conclude that whether Ms. Jackson was impaired by

prescription or other drugs at the time of the crash is also

irrelevant in this claim bill proceeding and, even if it were relevant, the evidence is insufficient to make a finding on that issue.

SPECIAL MASTER’S FINAL REPORT – SB 34 (2008) T

December 26, 2007

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I am persuaded that Claimant was not dishonest in he r

application for Social Security disability benefits and, therefore, there is no basis to doubt her credibility regarding

the injuries she suffered in the crash.

However, I believe the jury awar d is too high in the context o f

this claim bill, even when Claimant's unique situation with muscular dystrophy is taken into account. Claimant's

counsel argued before the trial court that the law in Florida is

that a jury verdict should no t be disturbed by the court unless

"it is so inordinately large as obviously to exceed the

maximum reasonable range within which the jury may reasonably operate," citing

Kaine v. Government Employees

Insurance Company , 735 So. 2d599 (Fla. 3d DCA 1999).

He also emphasized that it wa s not the role of the judge to

"assume the role of the seventh juror." However, that law is applicable to a trial judge's revi ew of a jury award on a

defendant's motion to reject or r educe the award. This claim

bill process, on the other hand, involves a

de novo

proceeding in which I am rightfully assuming the role of a new jury. Furthermore, the payment of a claim bill is a

matter of legislative grace and the Senate, unlike the trial

court judge, is free to deviate from the jury award. It is

reasonable for the Senate, in determining whether to pay a

claim in excess of the soverei gn immunity cap, to conside

r

whether the jury award deviates substantially above or below

the usual award for similar injuries.

Claimant's attorney presented a number of examples of jury

awards in excess of $5 million, but almost all of the cases

involved paraplegia or amputat ion. There might be cases

involving severe leg fractures, like the one suffered by

Claimant, in which the jury award ed $5 million or more to the

plaintiff. However, while no ca lculation was attempted by the

parties or by me to determine the average or median jury award in cases involving severe leg fractures, using the legal

reference books that compile and discuss jury verdicts, it

appears that the vast majority of jury awards for severe

fractures are significantly less than $5 million and closer to

$1 million.

Claimant made much of her determination before the 1999 crash to not let her muscular dystrophy prevent her from

enjoying life fully. If Claimant dedicates herself just as

SPECIAL MASTER’S FINAL REPORT – SB 34 (2008) T

December 26, 2007

Page 6

enthusiastically to making the most of her present physical

predicament as she did in the past, I believe her future

quality of life can be much bette r than the one she predicted for herself at the claim bill hearing.

A lthough Claimant deserves to be compensated for the

injuries she suffered thr ough the negligence of the

Department's employee, I thin k a more reasonable award,

taking into account the more co mmon jury awards for severe

limb fractures and the special circumstance of Claimant's

muscular dystrophy, would be $3,000,000.

ATTORNEY’S FEES AND Claimant's attorneys agree to lim it their fees to 25 percento f

LOBBYIST’S FEES: any amount awarded by the L egislature as required by s.

768.28(8), F.S. They object to the provision of the bill that

limits attorney’ fees, lobbying fees, and costs to 25 percent

of the award. Claimant’s atto rneys report costs of $51,866.

They propose a lobbyist's fee that would be an additional 6

percent of the award.

The Florida Supreme Court held in Gamble v. Wells , 450 So.

2d 850 (1984) that the Legislat ure allows compensation

pursuant to a claim bill “as a matter of grace” and it can

determine the conditions to be placed on the appropriation.

The Court specifically held that parties cannot enter into

contracts, such as fee agreemen ts, that bind the state in the

exercise of its sovereign immunity.

LEGISLATIVE HISTORY: Claim bills for Laura Laporte were first filed in the 2003

Session and have been filed in each session thereafter. A

hearing was held before a Senate Special Master in 2002,

but no report was issued.

RECOMMENDATIONS: The claim bill should be amended to reduce the claim to $3,000,000.

For the reasons set forth above, I recommend that Senate Bill 34 (2008) be report ed FAVORABLY, as amended.

SPECIAL MASTER’S FINAL REPORT – SB 34 (2008) T

December 26, 2007

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Respectfully submitted,

Bram D. E. Canter

Senate Special Master

cc: Senator Al Lawson

Representative Stan Mayfield

Faye Blanton, Secr etary of the Senate

House Committee on Constitution and Civil Law

Michael Kliner, House Special Master

Counsel of Record