10-009597CB In Re: Senate Bill 64 (Ronald Miller) vs. * Status: Closed DOAH Final Order on Tuesday, February 1, 2011.

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

40 2 Senate Office Building

Mailing Address

404 South Monroe Street

Tallahassee, Florida 32399 - 1100

(850) 487 - 5237

DATE COMM ACTION

2/1/11 SM Unfavorable

February 1, 2011

The Honorable Mike Haridopolos

President, The Florida Senate

Suite 409, The Capitol

Tallahassee, Florida 32399 - 1100

Re : SB 64 (2011) Î Senator Gary Siplin

HB 569 (2011 ) Î Representative Janet Cruz

Relief of Ronald Miller

SPECIAL MASTERÓS FINAL REPORT

THIS CONTESTED EXCES S JUDGMENT CLAIM FOR

$1.05 MILLION AGAINS T THE CITY OF HOLLYW OOD,

WHICH WOULD BE PAID FROM LOCAL FUNDS, AR ISES

OUT OF AN AUTOMOBILE ACCIDENT CAUSED BY A

MUNICIPAL EMPLOYEE W HOSE NEGLIGENT DRIVI NG

ALLEGEDLY LEFT RONAL D MILLER WITH INJURI ES TO

HIS KNEES.

FINDINGS OF FACT: At about 5:30 p.m. on July 30, 2002, Ronald Miller, a self -

employed lawn service provider, was driving north on

Federal Highway. As he approached Sheridan Street in the

City of Hollywood, Florida, Miller encountered traffic

congestion in both of the northbound lanes on Federal

Highway; cars were backed up for several blocks south of

Sheridan Street, where the light was red.

Miller planned to turn left and travel west on Sherman Street,

which is one block south of She ridan Street. Avoiding the

lines of traffic waiting for the light to turn green at Sheridan,

Miller maneuvered his pickup truck Ï which was pulling a

trailer carrying his lawn equipment Ï into the center left - turn

lane, which is a common lane providing for th e two - way

movement of traffic. Miller's speed was at least 20 MPH Ï

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 2

within the posted limit but faster than the circumstances

warranted, as the left - turn lane is not meant to be used, as

Miller was using it, for passing cars waiting at a red light.

Meantime, Robert Mettler, an employee of the City of

Hollywood, was attempting to leave a Burger King restaurant

which is located on the east side of Federal Highway, facing

Sherman Street. (The Burger King thus was off to Miller's

right as he approached from the south.) Mettler was on

duty, behind the wheel of a City - owned pickup truck. He

wanted to head south on Federal Highway, and thus needed

to make a difficult left - hand turn across three lanes of rush -

hour traffic: the two northbound lanes, where traffic was

currently stopped, and the common turn lane, in which Miller

(unbeknownst to Mettler) was presently moving north.

Drivers stopped on Federal Highway (in the northbound

lanes) let Mettler out of the Burger King parking lot. As he

edged his w ay between the parked cars, Mettler saw one of

the drivers give him a hand signal, which he interpreted as a

sign that the center lane was clear. Mettler himself could not

get an unobstructed southward view of the turn lane

because of the vehicles backed up on Federal Highway.

Mettler decided that the turn lane was clear and began

nosing his truck forward. By this time, Miller was almost

there; he was looking both forward and to his left and didn't

see Mettler on his right. Mettler accelerated, pulling forward

into the turn lane. In so doing, he failed to exercise

reasonable care under the circumstances. Instantly, the

trucks collided head - to - head.

Miller was not wearing his seatbelt. The force of the impact

thrust him forward, and his knees struck t he dashboard.

Though hurt, Miller was not incapacitated; indeed, he walked

away from the crash without assistance and later declined

medical treatment at the accident site. Mettler was not badly

injured.

The Hollywood Police Department was called, and an officer

investigated the accident. Metter was given a ticket for

failing to yield the right - of - way, in violation of s . 316.125(1),

Florida Statutes. (Several months later, Mettler would be

found guilty of this infraction.)

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 3

Hours after the crash, Miller's knees were painful and his

neck was sore, so he sought treatment at Hollywood Medical

Center, checking into the emergency room at around

midnight. The emergency room doctor prescribed painkillers

and a cervical collar and s ent Miller home.

Miller saw a chiropractor on July 31, 2002. After several

visits, Miller switched to another chiropractor, Dr. Keith

Buchalter, from whom he received treatment for neck and

knee pain beginning August 12, 2002, and continuing until

Marc h 5, 2003. While under Dr. Buchalter's care, on

September 16, 2002, Miller had m agnetic resonance

imaging ( MRI ) scans taken of his cervical spine, left knee,

and right knee. These MRI scans, taken about one - and - a -

half months after the crash, produced the first (and only)

post - accident radiologic studies of Miller's knees and neck.

The radiologist who read the scans believed the images

showed, among other things, a torn anterior cruciate

ligament (ACL) in both of Miller's knees.

On October 16, 2002, Mill er was seen by Dr. Stephen

Wender, an orthopedic surgeon. Dr. Wender prescribed a

course of n on - steroidal anti - inflammatory drugs for Miller's

still - painful knees. On March 20, 2003, approximately eight

months after the accident, Dr. Wender performed

art hroscopic surgery on Miller's left and right knees. Dr.

Wender did not repair the ACL in either of Miller's knees

because, it turned out, Miller did not have ligament damage

after all.

This was not the first time that an orthopedic surgeon had

operated on Miller's right knee. It was, in fact, the fourth

surgery on Miller's right knee, which had been damaged

years earlier when Miller, as a pedestrian, had been hit by a

car. The previous accident had led to three knee surgeries

by two different doctors. Medical records from the prior

surgeries were not produced at hearing, and the orthopedic

surgeons who performed them did not testify.

The undersigned is persuaded, and finds, that Miller's right

knee sustained some injury as a result of the July 2002

c rash. Without information concerning the nature and extent

of the previous injuries to Miller's right knee, however, it

cannot be determined, with reasonable particularity, which

damage was proximately caused by the accident in 2002,

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 4

and which was present before this accident. That said, the

evidence shows (and the undersigned finds) that, broadly

speaking, roughly 80 to 90 percent of the damage to Miller's

right knee existed before the 2002 accident.

Miller's left knee, too, was injured in the 2002 cr ash. While

the left knee (unlike the right) had not previously suffered a

traumatic injury, by July 2002 Miller's left knee already had

begun to deteriorate due to degenerative arthritis. In other

words, Miller's left knee had a chronic, preexisting cond ition.

There is no evidence, however, that Miller's left knee was

bothering him before the accident in question.

Miller incurred approximately $75,000 in medical expenses

following the 2002 accident, beginning with the next - day

treatment in the emergency room and continuing until he had

knee surgery in March 2003. These medical expenses

constitute an economic loss that was directly and

proximately caused by the 2002 accident.

Whether the 2002 accident was the proximate cause of

medical expenses yet to b e incurred is a more difficult

question. Miller seeks an award of $415,000 for future

medical treatment which, he claims, will be necessary as a

result of the accident. Most of this sum is needed, according

to Miller, to pay for knee replacement surgerie s. Dr. Wender

is of the opinion that Miller will need to have both of his

knees surgically replaced with artificial joints at least once

and potentially as many as three times each (because the

lifespan of an artificial knee is approximately 15 years), at a

cost of $50,000 to $60,000 per knee, per replacement.

Thus, in a worst - case scenario, assuming Dr. Wender is

correct, Miller would have three bilateral knee replacement

surgeries, for a total cost of between $300,000 and

$360,000.

The City strongly disagrees with Dr. Wender's opinion and

offered two experts of its own, Dr. Robert L. Kagen and Dr.

Philip F. Averbuch, whose opinions (though not identical)

cast genuine and substantial doubt on the notion that Miller

will need multiple knee replacements Ï or any knee

replacements. Having carefully considered all of the

evidence, the undersigned has determined that the

possibility of Miller's having six total knee replacements

(three per leg) is so remote as to be speculative.

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 5

The chance that Miller might need fewer (or no) knee

replacement surgeries must be evaluated separately for

each knee because his right knee is in worse shape than the

left, due to the traumatic injury which damaged the former

long before 2002 Ï and was caused by the prior negligence

of another, unidentified party. Taking the (healthier) left

knee first, the pain that Miller presently experiences in that

joint stems at least in part from arthritic degeneration that

began before the July 2002 accident. It is likely, however,

that the ac cident aggravated the arthritis Ï for the arthritic left

knee was asymptomatic before the crash. As for future

medical treatment, the evidence taken as a whole persuades

the undersigned that Miller will not likely need to have his left

knee replaced with an artificial joint. (Dr. Kagen, for

example, testified credibly that Miller's left knee is "largely

normal." Similarly, Dr. Averbuch "didn't find a whole lot

wrong" with Miller's left knee.) While it is reasonable to infer

that Miller's left knee will re quire other future medical

attention (besides a total knee replacement), the evidence is

insufficient to support findings as to either (a) the nature of

such treatment or (b) the cost thereof. The evidence,

therefore, fails to support an award of future m edical

expenses with regard to Miller's left knee.

As for Miller's right knee, it is likely that the accident

aggravated the preexisting injury, making it worse that it

would have been otherwise. But the undersigned is unable

to determine with reasonable particularity how much worse

Miller's right knee is today than it otherwise would have been

had the accident in 2002 not occurred. This is because

Miller did not make a reasonable effort to present evidence

sufficient to permit an apportionment of his da mages

between the preexisting traumatic injury and the traumatic

injury sustained in the 2002 accident.

Apart from his knees, Miller has sought compensation for an

alleged injury to his neck. The MRI scan taken after the

accident showed some herniation s (bulging) of the discs at

the C5 - 6 and C6 - 7 levels of the cervical spine. The

evidence persuades the undersigned, however, that this

damage is the result of wear - and - tear. The chronic

problems that Miller has had with his neck, in other words,

stem not from the accident (as far as the evidence shows),

but from the aging process.

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 6

Miller wants to be compensated for "pain and suffering"

(which category includes, in addition to pain and suffering,

such noneconomic losses as mental anguish,

inconvenience, and loss of capacity to enjoy life). At the trial

on the civil suit in which Miller sued the City for negligence,

the jury awarded Miller $700,000 for pain and suffering Ï

$200,000 for past suffering and $500,000 for future suffering.

(It should be mentioned here, at least parenthetically, that

Miller has not sought to recover for lost wages or loss of

ability to earn money. The reason Miller has not pursued

such a claim is that he has not filed a federal income tax

return since the mid - 1990s Ï a fact that the jury would have

learned if Miller had urged an award for lost income. The

City suggests that the jury (unaware of Miller's tax situation)

might have padded its award to compensate Miller indirectly

for loss of income or ability to work. While t his may be true,

it was not prov ed .)

Mettler's failure to use reasonable care to avoid colliding with

Miller's pickup truck unquestionably constituted negligence.

Miller, however, was negligent too , for he drove too fast for

the circumstances and failed to pay reasonable attention to

all of the traffic on the road. The jury in the civil trial was

asked to compare the negligence of Mettler to that of Miller

and apportion the fault between them by pe rcentages. The

jury determined that Mettler's negligence comprised 95

percent of the cause of Miller's injuries , while finding Miller

himself five percent at fault .

While t he undersigned might have placed a bit more blame

on Miller, he nonetheless consid ers the jury's apportionment

of the fault to be consistent with the evidence and will defer

to the jury's collective wisdom in the matter . It is found,

therefore, that Metter was 95 percent responsible for the

crash, Miller five percent.

LEGAL PROCEEDIN GS : In January 200 5 , Miller brought suit against the City. The

action was filed in the Broward County Circuit Court.

The case was tried before a jury in June 2006 . The jury

returned a verdict awarding Miller a total of $ 1.19 million in

damages, broken d own as follows: (a) $ 2 00,000 for past

pain and suffering; (b) $5 00,000 for fu ture pain and suffering;

(c) $75 ,000 for pas t medical expenses; and (d) $415 ,000 for

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 7

future medical expenses. The trial court entered a judgment

agains t the City in the amount o f $1.13 million Ï or 95

percent of the total damages, in accordance with the jury's

apportionment of fault. (All of the foregoing numbers were

rounded for ease of reference.)

The City appealed the adverse judgment. The Fourth

District Court of Appeal affi rmed, per curiam, without issuing

an opinion.

On August 16, 2007, the City paid $100,000 to Miller,

satisfying so much of the judgment as falls outside the

protection of sovereign immunity. The City previously (in

2002) had compensated Miller in full for his property

damage, which consequently is not in issue here.

The proceeds recovered on the judgment were distributed to

Miller in February 2008. His net recovery, after paying

attorney's fees ($30,000), litigation costs ($21,000), and

medical bills ($6,400), was $43,000 . (These numbers have

been rounded for convenience.)

CLAIMANT'S ARGUMENTS: The City is vicariously liable for its employee's negligent

operation of a municipal vehicle, which negligence caused

an accident wherein Miller suffered severe and permanent

bodily injur ies .

RESPONDENT'S ARGUMENTS: The City disputes the severity of Miller's claimed injuries,

asserting that they are not permanent and, in any event, are

largely the result of preexisting conditions. The City

contends that Miller himself was negligent and at least

partially to blame for the crash. The City is adamant that the

"runaway" jury's award was grossly excessive and plainly

informed by improper sympathies, which had been stoked by

the inflammatory arguments of plain tiff's counsel. Finally,

the City maintains that, in view of its current budgetary

constraints stemming from increased costs and diminished

revenues, exacerbated by the ongoing economic downturn,

paying the claim would have a devastating impact on the

Cit y's fiscal condition . (The City's general liability insurer,

TIG Insurance Company, disclaimed coverage for the

accident on the ground that the City had unreasonably

rejected Miller's pre - trial offer to settle the case for $85,000.)

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 8

CONCLUSIONS OF LAW: As provided in s . 768.28, Florida Statutes (20 1 0), sovereign

immunity shields the City against tort liability in excess of

$200,000 per occurrence.

Under the doctrine of respondeat superior, the City is

vicariously liable for the negligent acts of its agents and

employees, when such acts are within the course and scope

of the agency or employment. See Roessler v. Novak , 858

So. 2d 1158, 1161 (Fla. 2d DCA 2003). Metter, a City

employee, was acting within the course and scope of his

employment when he negligently collided with Miller. The

City , therefore, is liable for Mettler's negligence.

Miller was negligent, too, and his negligence was a

contrib utory cause of the accident. Therefore, it is

necessary to determine the extent of Mettler's fault as

compared to Miller's . As noted above, the jury's allocation of

95 percent of the fault to the City (through Miller) is

reasonable. The undersigned acco rdingly concludes that

the City was 95 percent to blame for the accident.

While it is relatively easy to determine that Mettler's

negligence was a substantial cause of the accident , it is

difficult to ascertain which of Miller's injuries were

proximately caused by Mettler's negligence. Complicating

the issue of proximate cause is the fact that each of Miller's

knees had a preexisting condition, defect, or injury.

"It is a fundamental principle . . . that where one seeks to

recover damages by reason of th e negligence of another,

the former must not only prove the extent of his injuries, but

also that they were proximately caused by the negligence of

the latter." Washewich v. LeFave , 248 So. 2d 670, 672 (Fla.

4th DCA 1971). This general rule is qualified by the theory

that the defendant must take the plaintiff "as is" Ï which

means that the plaintiff's preexisting conditions or injuries,

though not the result of the defendant's fault, might

nevertheless become the defendant's responsibility.

Regardless, how ever , "where the evidence reveals two

successive accidents, and the defendant is only responsible

for the second accident, the burden is on the plaintiff to

prove to the extent reasonably possible what injuries were

proximately caused by each of the two ac cidents ." Id. at

672.

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 9

In Washewich , t he plaintiff, who had been run over by the

defendant's car after having been ejected from her own

vehicle in consequence of an accident for which she herself

was at fault, obtained an award against the defendant for all

her injuries, which evi dently could not be apportioned. T he

court affirmed the judgment because "the plaintiff [had done]

everything that could reasonably have been expected of her

[at trial] to segregate the damages as between the two

accidents." Id. at 673; see also Gross v. Lyons , 721 So. 2d

304 , 308 (Fla. 4th DCA 1998) (The jury "instruction in this

case [was fatally defective beca use it] failed to inform the

jury that if the injuries could not be apportioned between the

two accidents, the tortfeasor causing the first accident could

be held responsible for the entire condition if plaintiff has

made all reasonable efforts to apportio n the

injuries .")(emphasis added) , aff'd , 763 So. 2d 276 (Fla.

2000).

In this case, the undersigned has found and concluded that

Miller failed to make all reasonable efforts to apportion the

injuries to his right knee between the July 2002 accident, on

the one hand, and the earlier accident wherein his knee was

so severely injured that he was required to undergo three

knee surgeries, on the other. Based on this failure of proof,

the undersigned concludes that, with respect to the injuries

to his right k nee, Miller is not entitled to recover dam ages .

Miller failed to prove his claim for future medical expenses

arising from the injuries to his left knee, for a different

reason. Miller's evidence in support of the contention that he

will need three knee replacement surgeries on his left leg

was simply not persuasive when weighed against the

conflicting Ï and ultimately more persuasive Ï evidence

presented by the City in this regard. As found above, Miller's

left knee will not likely need to be replaced. Bec ause he

failed to prove any other measurable future medical costs,

Miller's claim for such damages cannot succeed.

Miller did prove, however, that Mettler's negligence

proximately caused acute injuries that resulted in Miller's

incurring $75,000 in medic al expenses. An award for these

past medical expenses is factually and legally justified (apart

from sovereign immunity considerations).

SPECIAL MASTERÓS FINAL REPORT Î SB 64 (2011)

February 1, 2011

Page 10

LEGISLATIVE HISTORY: This is the third year that this claim has been presented to

the Florida Legislature.

ATTORNEYS FEES: Section 768.28(8), Florida Statutes, provides that "[n] o

attorney may charge, demand, receive, or collect, for

services rendered, fees in excess of 25 percent of any

judgment or settlement." Miller's attorney, Winston & Clark,

P.A., has su bmitted proposed distribution statement showing

that the attorneys' and lobbyist's fees would be limited, in the

aggregate, to 25 percent of the compensation being sought.

(To date, Winston & Clark, P.A. , has been paid $18,750 for

its work as trial counse l, while another attorney, serving as

co - counsel, has received $6,250. Their fees totaled 25

percent of the $100,000 that the City previously paid in

partial satisfaction of the judgment. Miller's appellate

counsel was paid $5,000 from those proceeds.) Miller's

attorney proposes that an additional $ 15,606.25 be deducted

from Miller's award on this bill, to cover costs incurred.

In its current form, the instant claim bill provides that the

"total amount paid for attorney's fees, lobbying fees, costs,

a nd other similar expenses relating to this claim may not

exceed 25 percent of the amount awarded under this act."

For Miller's attorney to be reimbursed the $ 15,606.25 in

costs claimed in addition to fees (see above), the bill would

need to be amended to remove "costs" from the items

placed under the 25 percent cap.

RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate

Bill 64 (2011) be reported UNFAVORABLY.

Respectfully submitted,

John G. Van Laningham

Senate Special Master

cc: Senator Gary Siplin

Representative Janet Cruz

R. Philip Twogood , Secretary of the Senate

Counsel of Record