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Bostick v. State Farm Mutual Automobile Insurance Co.

United States District Court, M.D. Florida, Tampa Division

March 20, 2018

LISA N. BOSTICK, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court pursuant to Plaintiff Lisa N. Bostick's Motion for New Trial (Doc. # 163), which was filed on November 28, 2017. Defendant State Farm Mutual Automobile Insurance Company filed a response in opposition on December 12, 2017. (Doc. # 165). After careful review, this Court denies the Motion.

         I. Background

         In mid-November of 2013, Bostick, a University of Tampa accounting professor, was driving in Tampa, Florida when her car was rear-ended by non-party Blair Alsup. (Doc. # 2 at ¶ 4). Bostick claims to have suffered grave bodily injuries (including a traumatic brain injury), disability, mental anguish, and loss of capacity for the enjoyment of life as a result of the accident. (Id. at ¶ 6). At the time of the accident, Bostick was insured by State Farm and Alsup was insured by GEICO. (Id. at ¶¶ 7-8). GEICO paid $100, 000 to Bostick as “full and final settlement for the bodily injuries Alsup caused.” (Id. at ¶¶ 8-9).

         A. Bostick Initiates a Lawsuit

         In Bostick's eyes, the $100, 000 was insufficient compensation for her injuries and therefore she sued State Farm seeking underinsured/uninsured motorist benefits in state court. (Doc. # 2). State Farm removed the action to this Court on June 2, 2016, predicating jurisdiction on complete diversity of citizenship and underscoring in the Notice of Removal that “Plaintiff claims to have incurred, to date, $257, 315.95 in total medical bills.” (Doc. # 1 at 2). Bostick filed a Motion to Remand, which this Court denied. (Doc. ## 11, 20).

         B. Deadlines and Delays

         The Court held a Case Management Hearing and issued a Case Management and Scheduling Order on June 29, 2016. (Doc. ## 12, 13). At that time, the Court set Bostick's expert disclosure deadline as December 19, 2016, and set State Farm's expert disclosure deadline as January 23, 2017. (Doc. # 13 at 1). The Court established the discovery deadline as February 28, 2017, and the dispositive motions deadline as March 20, 2017. (Id.). The pretrial conference was set as July 13, 2017, with the case on the August 2017 trial term. (Id.). In accordance with the Case Management and Scheduling Order, the parties selected Robert Lancaster, Esq., a certified mediator, and the Court appointed him to conduct the January 11, 2017 mediation. (Doc. ## 16, 17).

         In light of Bostick's claimed injuries: “includ[ing] orthopedic injuries, neurological injuries, a brain injury, and psychological injuries, ” State Farm planned to conduct a Rule 35, Fed. R. Civ. P., compulsory medical examination on September 13, 2016. (Doc. ## 22-1, 28 at 1). Bostick sought to avoid or otherwise delay the examination. The Court entered numerous Orders regarding the examination (Doc. # 23, 27, 30, 32, 37). And, after months of delay that impacted other proceedings, including the mediation, the compulsory medical examinations finally occurred on January 19, 2017 (orthopedic exam) and January 26, 2017 (neuro-psychological exam). (Doc. # 37 at 3-4).

         Because of the delays associated with scheduling the examinations, and receiving the results of the examinations, the Court extended all deadlines and authorized the parties to conduct the mediation in March of 2017. (Doc. ## 32, 35). The Court issued an Amended Case Management and Scheduling Order establishing April 20, 2017, as the discovery deadline, May 4, 2017, as the dispositive motions deadline, and setting the pretrial conference for August 17, 2017, with the trial set for September of 2017. (Doc. # 41).

         The mediator reported that the parties reached an impasse on March 14, 2017 (Doc. # 40), and thereafter, the parties flooded the docket with motions in limine, motions to strike, and motions for protective orders. See (Doc. ## 45, 51, 53, 54, 57, 58, 59, 60, 89, 100, 116). The parties also filed motions to strike during the course of the trial. See (Doc. ## 124, 126, 127).

         Among other motions to strike, Bostick sought an Order striking State Farm's biomechanical engineer, Ronald Fijalkowski, Ph.D. (Doc. # 60), which the Court denied after conducting a detailed Daubert analysis. (Doc. # 76). Likewise, State Farm filed a Motion requesting that the Court exclude Bostick's treating physicians from testifying at trial, or in the alternative, to limit their testimony. (Doc. # 53). In that motion to strike, State Farm explained that Bostick disclosed five retained expert witnesses, but did not provide proper disclosures for her treating physicians. The Court granted the motion in part and denied the motion in part on July 5, 2017. (Doc. # 74). Notably, Bostick disclosed 19 treating physicians to State Farm on April 20, 2017, but State Farm did not have the opportunity to conduct discovery with respect to the 19 treating physicians because the discovery deadline was April 20, 2017. When Bostick disclosed the 19 treating physicians, she did not provide information on the subject matter of their testimony nor a summary of the facts and opinions on which the witnesses were expected to testify. See Fed.R.Civ.P. 26(a)(2)(C). The Court declined to strike the treating physicians, but did limit their testimony to the observations that they made during the course of Bostick's treatment. (Doc. # 74).

         C. The Trial Takes Place

         The Court conducted an 11-day jury trial that began on October 16, 2017. (Doc. # 119). The trial was an interesting one and the seated jurors posed many questions to the witnesses, demonstrating that they were engaged and mindful of their civic duties. Notably, the jurors' questions were so poignant and insightful that they sometimes surpassed the questions counsel posed to the witnesses.

         Over the course of six days, Bostick presented her case through the following witnesses: Dr. Thomas Boland, Dr. Robert Beekman, Dr. Michael Williams, Dr. Kimberly Tobon (via video), Dr. Randall Benson, Dr. Joseph Chiaramonte, Dr. Gregory Flynn, Kathryn Bostick, Blair Alsup, Stephen Koontz, James Bostick, Dr. Christopher Leber, Dr. Daniel Verreault, Dr. Cheri Etling, Lisa Bostick, Patricia Daphne Ullman, and Robert Johnson. State Farm presented its case for three days through Dr. Nelson Castellano, Dr. Rodney Vanderploeg, Dr. Micahel Foley (via video), and Dr. Fijalkowski. Bostick offered video deposition testimony in rebuttal from herself, Dr. Stephen Knezevich, and Dr. Vanderploeg. The presentation of the evidence concluded on October 27, 2017, and the Court held charge conferences on October 26, and 27, 2017.

         The jury began deliberating on the afternoon of Friday October 27, 2017. During that time, the Court received several notes from various jurors. The first notes related to routine matters, for example, the jurors requested access to a “whiteboard” that an expert used during his trial testimony. And, the jurors asked for clarification of a pattern jury instruction. (Doc. ## 144-52, 144-50). The Court then received several urgent messages from the jurors related to potential misconduct, harassment, as well as verbal and physical abuse. The Court apprised counsel of the tense situation and considered dismissing a juror, Jonathan Samelton, because the other jurors indicated that Mr. Samelton threatened them with physical violence.

         However, in an abundance of fairness, the Court spoke with the concerned jurors outside of the presence of counsel and then sent the jurors home. It was very late in the evening, and the Court hoped that a cooling-off period would be sufficient to diffuse the emotional situation. That Friday evening, the Court instructed the jury to return at 9:00 on the following Monday morning. Mr. Samelton explained that he had an appointment related to the payment of his electric bills on Monday morning, but that he would try to make it on time. The Court indicated to Mr. Samelton that he should try to make it to Court on Monday, but if he could not make it, the Court would allow the jury to continue their deliberations without him because only six jurors were needed in order to return a verdict.

         On Monday, October 30, 2017, all of the jurors appeared for deliberations, including Mr. Samelton. From the very beginning of the day, members of the jury complained that Mr. Samelton had threatened to punch and harm them. In addition, Mr. Samelton gave the Court a letter explaining that he left the Courthouse in tears on Friday because he felt as though his vote did not matter. (Doc. # 144-57). The Court decided to bring each juror into the Courtroom individually for questioning on the record. The attorneys and the Court questioned each juror. Ultimately, the Court dismissed Mr. Samelton for cause. The Court did so based on the testimony below.

         D. The Juror Interviews

         Jury foreperson William Moffitt testified that Mr. Samelton used profanity, threats of physical violence, racial slurs, and other actions that demonstrated disrespect for the other jurors and for the deliberative process. (Doc. # 159 at 1-6). State Farm's counsel asked Mr. Moffitt if Mr. Samelton's actions put the jurors “in fear physically for their safety” and Mr. Moffitt answered: “Yes.” (Id. at 6). Counsel for State Farm also asked Mr. Moffitt whether Mr. Samelton “was physically aggressive toward you and others?” and Mr. Moffitt answered: “Yes.” (Id. at 7).

         The next juror to be questioned was Thomas Barone. He indicated that Mr. Samelton “wanted something to start” and “wanted one of us to hit him” to initiate a physical altercation. (Id. at 11). The third juror to be interviewed was Marlene Peterson. She stated that Mr. Samelton used profanity, was yelling, was “disrespectful to the other jurors verbally” and “called other members of the jury stupid just because of the disagreement.” (Id. at 15-16). Ms. Peterson also testified that Mr. Samelton refused to follow the Court's jury instructions. (Id. at 19).

         The fourth juror to be interviewed was Deborah Engert. When the Court asked her what she observed during ...


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