STORAGE NAME: h6509f.JDC
DATE: 2/23/2022
February 17, 2022
SPECIAL MASTER’S FINAL REPORT
The Honorable Chris Sprowls
Speaker, The Florida House of Representatives
Suite 420, The Capitol
Tallahassee, Florida 32399-1300
Re: CS/HB 6509 - Representative Fernandez-Barquin
Relief/Donna Catalano/Department of Agriculture and Consumer Services
THIS IS AN UNCONTESTED EXCESS JUDGMENT CLAIM
FOR $3,175,000 BASED ON A SETTLEMENT AGREEMENT
IN WHICH THE DEPARTMENT OF AGRICULTURE AND
CONSUMER SERVICES AGREED TO COMPENSATE
DONNA CATALANO A TOTAL AMOUNT OF $3,375,000
RELATING TO THE INJURIES SHE SUSTAINED BECAUSE
OF THE NEGLIGENCE OF AN EMPLOYEE OF THE
DEPARTMENT. THE DEPARTMENT HAS PAID THE
STATUTORY LIMIT OF $200,000.
FINDINGS OF FACT: On June 26, 2019, at approximately 3:20 p.m., a clear and sunny
afternoon, Claimant was driving home1 after completing her
nursing shift at Tallahassee Memorial Healthcare. As she
traveled eastbound on U.S. Highway 90, approximately ten
minutes away from her home, a motor vehicle owned by the
Department of Agriculture and Consumer Services (DACS) and
operated by Donald G. Burthe (Burthe), a DACS employee,
traveling westbound, crossed the centerline of U.S. Highway 90
and crashed head-on into Claimant’s vehicle. In the seconds
prior to impact, while trying to avoid the collision, Claimant
applied her brakes and slowed her vehicle. Both the vehicle
ahead of her and the vehicle behind her saw Burthe’s vehicle
1 Claimant was wearing her seatbelt and traveling the posted speed limit, which is 60 mph.
SPECIAL MASTER’S FINAL REPORT--
Page 2
cross the centerline and avoided being hit by Burthe; both
watched as his vehicle crashed into Claimant’s and remained on
scene until law enforcement arrived.
Claimant’s vehicle traveled onto the south shoulder where it
overturned before coming to rest. Burthe’s vehicle began to
overturn and came to rest in the eastbound lanes on its right
side, partially on its roof. Claimant was trapped in her vehicle
with the steering wheel against her chest and the dashboard
pinning her legs. She had to be cut out of the vehicle.
Florida Highway Patrol Officer N.A. Hagedorn arrived on scene,
interviewed witnesses, witnessed the damage caused to both
vehicles as well as their final locations, and confirmed that what
the witnesses reported had in fact occurred.
Claimant was transported to the emergency room at Tallahassee
Memorial Healthcare, suffering from numerous fractures,
including fractures of the femur bones in both legs, both knees,
left ankle, the radius, ulnar, and proximal humerus in her left arm,
and four ribs; rupture of both ear drums, and numerous
abrasions and contusions. She underwent six surgeries over
four days to repair the various injuries she sustained using
cabling, screws, pins, plates and bone-grafting. She spent nine
days in the hospital before being transported to Tallahassee
Memorial Healthcare Rehabilitation Center, where she remained
for approximately three months. She was discharged in
September 2019 to continue physical therapy at home. As a
result of her life-altering injuries, Claimant can no longer work as
a nurse.
Burthe2 was cited for failing to drive within a single lane, in
violation of section 316.089, Florida Statutes. The fine
associated with that citation was paid on October 8, 2019.
Expert Witnesses
Claimant’s expert witness, G. Bryant Butcher, a Professional
Engineer and expert in failure analysis and accident
reconstruction, reviewed the information retrieved from the
vehicle event data recorder from Claimant’s vehicle and
confirmed that she was traveling 60 mph five seconds prior to
impact and slowed to 43 mph by the time of impact. Butcher also
reviewed photographs of the DACS vehicle post-crash and
observed that all electrical power in the vehicle had been
severed, resulting in the electronically powered speedometer
freezing at the speed it was being operated at the time of impact,
which was 70 mph, ten miles over the posted speed limit.
A Life Care Plan was prepared for Claimant by Christopher M.
Leber, MD, FAAPMR, CLCP. Dr. Leber is a licensed physician
2 Burthe succumbed to the injuries he sustained as a result of the crash and passed away before he could be
interviewed. Thus, no one has been able to determine what caused him to veer into Claimant’s lane of travel.
SPECIAL MASTER’S FINAL REPORT--
Page 3
in the State of Florida; board certified by the American Board of
Physical Medicine & Rehabilitation; a Certified Life Care planner,
certified by the International Commission on Health Care
Certification; and a Board Member of the American Academy of
Physician Life Care Planners Educational Committee. He opined
that the total nominal value3 of Claimant’s future medically
necessary requirements,4 which relate to the injuries she
sustained as a result of the crash, is $861,325.91. Dr. Leber’s
review of Claimant’s medical records led him to opine that
Claimant “will have lifelong disfigurement, progressive
symptoms, as well as physical and psychological impairments
and disabilities, which require lifelong medical care,” which he
estimates to be another 22 years, the probable duration of care
upon which the life care plan he authored is based. He further
opined that these medically necessary requirements are
attributable to the medical conditions which resulted from the
crash.
An Economic Loss Report was prepared for Claimant by
Benjamin S. Shippen, PhD 5 with Economists Incorporated. At
the time of the crash, Claimant was 60.24 years of age; Dr.
Shippen calculated her remaining life expectancy to be 24.5
years. Based on Claimant’s age at the time of the crash and her
educational level (she has a graduate degree in nursing), he
opined that she would have had a remaining work life of 7.5
years from the date of the crash, predicting that she would have
worked until age 67.74. Claimant was expected to have earned,
$140,960 (net) in income and $18,913 in benefits in between the
time of the crash and September 30, 2021, for a total back-pay
loss of $159,873.6 Dr. Shippen estimated that Claimant was
expected to earn $509,490 in present-value income and benefits
from October 1, 2021 through December 25, 2026; thus, the
present value of the earnings and benefits Claimant would have
been expected to earn during her lifetime is $669,363. Finally,
he estimated that Claimant will be unable to perform 694 hours
of household production7 per year that she would have otherwise
done. He estimated the present-value of household production
to be $211,615. In sum, Dr. Shippen calculated Claimant’s loss
of earnings and benefits to be $669,363 plus $211,615 in
3 Nominal value represents the value of Claimant’s future medical expenses expressed in today’s market and
does not account for inflation.
4 Claimant’s future medical requirements can be divided into nine major areas: physician services; routine
diagnostics; medications; laboratory studies; rehabilitation services; equipment and supplies; environmental
modifications and essential services; nursing and attendant care; and acute care services.
5 Dr. Shippen received his PhD in Economics with a special interest in labor economics and econometric s at
Florida State University. He has worked as an economical consultant and expert witness in statistical analysis
of employment practices since July 2000.
6 This back-pay calculation accounts for the mitigating income and benefits Claimant earned while working for
the Department of Health (DOH) during this period. Claimant was able to work from home briefly in an OPS
position with the DOH answering a COVID hotline from August 12, 2020 through June 30, 2021, when the
position ceased to exist. The position paid $25 per hour.
7 Household production refers to the normal household duties Claimant performed prior to the crash, such as
food preparation, cleaning the house, yard maintenance, etc.
SPECIAL MASTER’S FINAL REPORT--
Page 4
household production, for a total of $880,978. This combined
with the value of her life care plan is $1,742,303.91.
LITIGATION HISTORY: On July 10, 2020, Claimant filed a civil suit against DACS,
alleging negligence.
On July 15, 2021, during mediation, the parties reached a
settlement for $3,375,000 and DACS paid the statutory limit of
$200,000 under section 768.28, Florida Statutes. As terms of the
Settlement and Release Agreement, DACS acknowledged that
Claimant would be presenting a claim bill for payment of the
additional $3,175,000 to the legislature for passage and DACS
agreed to support the claim bill authorizing the additional
payment of $3,175,000.
CLAIMANT’S POSITION: Claimant argues she is entitled to the remaining amount of
$3,175,000 under the settlement agreement.
RESPONDENT’S POSITION: As stated in the settlement agreement, DACS “agrees to support
a Claims Bill filed by Plaintiff.”
CONCLUSIONS OF LAW: Regardless of whether there is a jury verdict or settlement, each
claim bill is reviewed de novo in light of the elements of
negligence.
Duty & Breach
The driver of a vehicle has a duty to take reasonable care and to
follow all applicable laws to prevent injury to others within the
vehicle’s path.
Section 316.089(1), F.S. (2019) requires a vehicle being
operated on a roadway that has been divided into two or more
lanes to “be driven as nearly as practicable entirely within a
single lane and shall not be moved from such lane until the driver
has first ascertained that such movement can be made with
safety.” Under this statute, Burthe had a duty to maintain a single
lane. His failure to do so was a breach of that duty. As an
employee of DACS in the course and scope of his employment
while driving a DACS-owned vehicle, his negligence is
attributable to DACS under the doctrine of respondeat superior.
Causation
I find that Burthe’s failure to maintain a single lane, veering head-
on into the vehicle being operated by Claimant was the direct
and proximate cause of Claimant’s injuries.
Damages
Claimant was a 60-year old emergency room charge nurse prior
to the crash. Because of the injuries she sustained she can no
longer work as a nurse.8 Additionally, she suffers from chronic
pain, stress and anxiety, incontinence, and she must walk with a
cane, walker, or use a wheelchair. She has decreased grip,
8 Prior to the crash, she was earning $70,000 annually as a registered nurse.
SPECIAL MASTER’S FINAL REPORT--
Page 5
difficulty climbing stairs, difficulty ambulating, decreased range
of motion and decreased strength. If she were to fall, she would
not be able to get up on her own. She has difficult doing things
she once took for granted, such as sitting on and getting up from
the toilet and brushing her hair. She has intermittent headaches
that she did not have prior to the crash. She feels tired, fatigued
and, on some days, depressed or anxious. She can no longer do
the things she once did and enjoyed, such as gardening, yard
work, fishing, boating and walking and playing with her
grandchild.
Since the accident, Claimant has had to make some
improvements to her home including adding a ramp to the back
of the house and having concrete poured for a walkway and
ramped driveway; she also had a wheelchair lift installed on her
vehicle.
State Farm has an outstanding medical payments lien in the
amount of $5,000.00. Claimant owes $22,697.76 in outstanding
charges to Tallahassee Memorial Hospital.9
Expert witnesses have calculated Claimant’s loss of earnings
and benefits to be $669,363; her loss of household production to
be $211,615; and the value of her life care plan to be $861,325, 10
for a total economic loss of $1,742,203. Adding Claimant’s past
medical expenses of $676,935.26 to this results in total losses
of $2,419,238.36.