December 26, 2007

THE FLORIDA SENATE

SPECIAL MASTER ON CLAIM BILLS

Location

402 Senate Office Building

Mailing Address

404 South Monroe Street Tallahassee, Florida 32399-1100

(850) 487-5237

Re: SB 34 (2008) – Senator Al Lawson

HB 201 (2008) – Representative Stan Mayfield Relief of Laura Laporte

SPECIAL MASTER’S FINAL REPORT

THIS IS A CONTESTED CLAIM FOR $5,500,647.81 BASED ON A JURY VERDICT FOR CLAIMANT LAURA LAPORTE FOR INJURIES SHE SUSTAINED WHEN THE VEHICLE SHE WAS DRIVING WAS STRUCK BY A VEHICLE DRIVEN BY AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES.

left ankle. Claimant underwent three surgeries on her left leg, which involved inserting 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 replacement and possibly other surgeries to her left leg and right ankle.

The crash caused permanent injuries 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 walking. 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 dystrophy in 1978. She has the least debilitating of the three main forms of muscular dystrophy, referred to as "limb-girdle" muscular dystrophy. The principal effect of the disease for Claimant is that she has diminished upper body strength. 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 her 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 remained 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 percent disability caused by her muscular dystrophy. A vocational rehabilitation counselor testified that Claimant's physical activities prior to the crash are not inconsistent with her qualification for 100 percent disability because Social Security disability determinations are based on one's ability to do work for an employer without

physical assistance and interruption. 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 muscular dystrophy progresses slowly to further diminish strength and physical abilities until a point is reached when the victims will no longer be able to 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 of lost strength and ability, 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 sovereign immunity cap paid by the Department, Claimant received $100,000 from her own car insurance policy and $25,000 from the insurance carried by Ms. Jackson.

• The jury award is reasonable 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 her independence and quality of life.

  
  

• The jury award is further justified 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.

I am persuaded that Claimant was not dishonest in her 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 award is too high in the context of 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 not 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. 2d 599 (Fla. 3d DCA 1999). He also emphasized that it was not the role of the judge to "assume the role of the seventh juror." However, that law is applicable to a trial judge's review of a jury award on a defendant's motion to reject or reduce 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 sovereign immunity cap, to consider 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 amputation. There might be cases involving severe leg fractures, like the one suffered by Claimant, in which the jury awarded $5 million or more to the plaintiff. However, while no calculation 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

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 better than the one she predicted for herself at the claim bill hearing.

Although Claimant deserves to be compensated for the injuries she suffered through the negligence of the Department's employee, I think a more reasonable award, taking into account the more common jury awards for severe limb fractures and the special circumstance of Claimant's muscular dystrophy, would be $3,000,000.

Respectfully submitted,

cc: Senator Al Lawson Representative Stan Mayfield

Faye Blanton, Secretary of the Senate

Bram D. E. Canter Senate Special Master

House Committee on Constitution and Civil Law Michael Kliner, House Special Master

Counsel of Record

Docket for Case No: 07-004283CB

Orders for Case No: 07-004283CB