United States District Court, M.D. Florida, Tampa Division
LISA N. BOSTICK, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
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.
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).
Bostick Initiates a Lawsuit
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).
Deadlines and Delays
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).
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).
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).
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).
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).
The Trial Takes Place
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.
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.
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.
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
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
The Juror Interviews
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).
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).
fourth juror to be interviewed was Deborah Engert. When the
Court asked her what she observed during ...