Bostick v. State Farm Mutual Automobile Insurance Company
Filing
176
ORDER denying (Doc. # 163 ) Motion for New Trial. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/20/2018. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LISA N. BOSTICK,
Plaintiff,
v.
CASE No.: 8:16-cv-1400-T-33AAS
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
_____________________________/
ORDER
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.
Bostick
as
“full
(Id. at ¶¶ 7-8).
and
final
GEICO paid $100,000 to
settlement
for
the
bodily
injuries Alsup caused.” (Id. at ¶¶ 8-9).
A.
In
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
state court. (Doc. # 2).
motorist
benefits
in
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.
B.
(Doc. ## 11, 20).
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
2
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 (neuropsychological 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).
3
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
4
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
physicians
2017.
discovery
because
with
the
respect
discovery
to
the
deadline
19
was
treating
April
20,
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
questions
their
were
so
civic
duties.
poignant
5
and
Notably,
insightful
the
jurors’
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,
several notes from various jurors.
the
Court
received
The first notes related
to routine matters, for example, the jurors requested access
to a “whiteboard” that an expert used during his trial
6
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,
verbal and physical abuse.
the
tense
situation
and
harassment,
as
well
as
The Court apprised counsel of
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.
7
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.
and the Court questioned each juror.
dismissed Mr. Samelton for cause.
The attorneys
Ultimately, the Court
The Court did so based on
the testimony below.
D.
Jury
Samelton
The Juror Interviews
foreperson
used
William
profanity,
Moffitt
threats
of
testified
physical
that
Mr.
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
8
Mr.
Samelton
“was
physically
aggressive
toward
you
and
answered: “Yes.” (Id. at 7).
others?” and Mr. Moffitt
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
altercation. (Id. at 11).
him”
to
initiate
a
physical
The third juror to be interviewed
was Marlene Peterson. She stated that Mr. Samelton used
profanity,
jurors
was
yelling,
verbally”
and
was
“disrespectful
“called
other
members
to
of
the
other
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
deliberations, Ms. Engert testified:
Some of them were threatened about getting hit. .
. . One of the jurors said that he was going to
hit someone; and they said, If that’s what you
need to do, go ahead.
And he said, Well, I’ve
been in jail before, so it doesn’t matter.
We
were called – I hate to say it.
We were called
white asses and the B word and F-U.
And it was
bad. He didn’t want to work with anybody. . . . I
mean, we were in tears. The girls were in tears
Friday when we left here.
(Id. at 20-21).
9
The next juror to be interviewed by counsel and the
Court was Minh Le.
Mr. Le described his interaction with
Mr. Samelton as follows:
[L]ast week there was one person. I mean, when we
tried to discuss the case together as a group, he
basically didn’t want to do it. Basically he just
said, This is what I want, and either you guys
accept it or it’s going to be a mistrial. Don’t
talk to me. He’s just laying there. We tried to
talk to him, to get him to discuss about this
points. Also, this morning, too, we tried to put
aside whatever happened last week. . . . He say,
This is what I want, and nothing else.
I don’t
want to listen.
(Id. at 24).
Mr. Le further testified that Mr. Samelton
“refused to follow the [jury] instructions . . . . He just
want to do his way.
That’s basically all.” (Id. at 25-26).
The sixth juror to be interviewed was Bruce MacFarlane,
who testified:
First day we were here, he wanted to be the
foreman of the jury, the one person. From there
on, it went into a matter of disrespect if you
didn’t do something he wanted. Like leaving early
on certain days. . . . And we took all these
notes, and we have all the results of what the
trial had given us. So we were supposed to work
on that, but that wasn’t the issue.
It was
whether he was disrespected or not.
So it came
down to it was about him, not the case.
(Id. at 28). State Farm’s counsel asked Mr. MacFarlane
whether he felt “physically intimidated” by Mr. Samelton.
Mr. MacFarlane responded: “Well, yes.
10
He did use some
rather bad words.
there.
He’s so big.
He had both of those women crying in
He stood up in front of the other tall
guy and it was face to face, chest to chest.
It looked like
there could have been some demonstrative action taken on his
part.” (Id. at 30). State Farm’s counsel also asked: “Is it
your impression that he is intentionally not wanting to
follow the instructions of the Court and the law that were
given because he’s mad about not being the foreman?”
Mr.
MacFarlane answered “Yes.” (Id. at 31).
Defense counsel
asked
were
whether
Mr.
Samelton’s
behaviors
aimed
at
“revenge” and Mr. MacFarlane explained “It has nothing to do
with the case. It has to do with him.” (Id.).
The last juror to be interviewed by counsel and the
Court was Mr. Samelton.
For his part, he said: “I was just
concerned about, I guess, people trying to sway me a certain
way.” (Id. at 35). The Court asked Mr. Samelton “Do you
think that you are able to continue deliberating with the
other jurors or not?” and he responded: “I doubt it.
(Id. at 38).
No.”
The Court asked why, and Mr. Samelton stated:
“I don’t know how to put it.
I put it as since there are
seven of us and we all weigh a ton and there are six ton
hammers pounding on the one-ton nail and it’s going to go
11
deeper and deeper into the hole until it gets to the point
you can’t pull it out, and so I feel that’s where I’m at.”
(Id.).
The Court gave both sides the opportunity to ask Mr.
Samelton questions and both sides took advantage of the
opportunity.
The
regarding
Court
heard
whether
Mr.
oral
argument
Samelton
from
should
the
be
parties
released.
Bostick’s counsel objected, but the Court ultimately excused
Mr. Samelton. (Id. at 46).
After carefully listening to
each juror, the Court determined that it was absolutely
necessary to excuse Mr. Samelton for the safety of the
jurors.
E.
The Verdict
Shortly
after
Mr.
Samelton
was
dismissed,
the
jury
reached a verdict in favor of State Farm on October 30,
2017. (Doc. # 140). Specifically, the jury answered “No” to
question 1 on the verdict form, finding that there was no
“negligence on the part of non-party, Blair Alsup [that was]
a legal cause of loss, injury, or damages to Plaintiff, Dr.
Bostick.” (Id.).
At the conclusion of the trial, in conformity with
Local Rule 5.01(d), the Court orally instructed the parties
12
not to contact any juror.
Judgment in favor of State Farm
was entered on October 31, 2017. (Doc. # 145).
2,
2017,
Bostick
filed
a
“Notice
of
Juror
On November
Contact
and
Request for Hearing,” explaining: “On November 1, 2017, at
approximately 2:37 PM and again at 2:47 PM, the dismissed
juror left two voicemails at Plaintiff’s Counsel’s office
requesting to speak.” (Id. at 1).
State Farm responded to
the Notice (Doc. # 149), and the Court held a hearing on the
matter on November 7, 2017. (Doc. # 148).
The Court denied
Bostick’s request to further interview any juror.
At the
hearing, the Court explained that counsel for both sides
already had the opportunity to interview the jurors and that
it was neither necessary nor appropriate to have further
communications with any juror. (Doc. # 153).
Bostick
filed
a
Motion
requesting
the
Thereafter,
opportunity
interview the entire jury once more. (Doc. # 157 at 1).
to
The
Court denied the Motion. (Doc. # 174).
At this juncture, Bostick seeks a new trial arguing
that
(1)
“the
jury
should
have
been
discharged
and
a
mistrial declared when it became apparent that a physical
altercation had occurred or was imminent,” (2) the verdict
was against the clear weight of the evidence, (3) a complete
13
set of exhibits did not go back to the jury room, (4) the
jury did not understand the jury instructions and verdict
form, (5) the court improperly limited the testimony of
Bostick’s treating physicians, (6) State Farm made improper
arguments, (7) Dr. Fijalkowski offered improper causation
testimony, and (8) the cumulative effect of the Court’s
evidentiary rulings prevented a fair trial.
The Court will
address each argument in turn.
II.
Rule 59 Analysis
Rule 59 of the Federal Rules of Civil Procedure governs
motions for a new trial and generally provides that a new
trial may be granted “on all or some of the issues--and to
any party
. . .
after a jury trial, for any reason for
which a new trial has heretofore been granted in an action
at law in federal court." Id.
The Supreme Court noted that a party may seek a new
trial on grounds that “the verdict is against the weight of
the evidence, that damages are excessive, or that, for other
reasons, the trial was not fair to the party moving; and may
raise questions of law arising out of alleged substantial
errors in admission or rejection of evidence or instructions
to the jury.” Montgomery Ward & Co. v. Duncan, 311 U.S. 243,
14
251 (1940).
The Eleventh Circuit has emphasized that “new
trials should not be granted on evidentiary grounds unless,
at a minimum, the verdict is against the great – not merely
the greater – weight of the evidence.” Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.
2001).
verdict
And, the Court should only grant a new trial if the
“will
result
in
a
miscarriage
of
justice.”
Id.
“[W]hen the trial involves simple issues, highly disputed
facts, and there is an absence of ‘pernicious occurrences,’
trial courts should be considerably less inclined to disturb
a jury verdict.” Williams v. Valdosta, 689 F.2d 964, 974
(11th Cir. 1982).
A.
Juror Issues
Bostick seeks a new trial based on the Court’s removal
of
Mr.
Samelton
as
a
juror
and
also
indicates
that
a
mistrial should have been declared based on “unorthodox jury
deliberations.” (Doc. # 163 at 3).
Bostick contends that
Mr. Samelton was a “holdout juror” and it was improper for
the
Court
to
nonprejudicial
remove
way
to
him
from
determine
the
jury:
whether
acting in self-defense or is an aggressor.
“There
the
is
no
holdout
is
In essence, what
occurred was a trial within a trial itself, resulting in the
15
discharge of an apparent dissenter.
This dynamic defies the
reliability and trustworthiness the jury system demands of
verdicts.”
(Id. at 4).
Federal Rule of Civil Procedure 47(c) specifies that
the Court may excuse a juror during trial or deliberation
for good cause.
Samelton
after
The Court found good cause to excuse Mr.
individually
questioning
permitting counsel to do the same.
each
juror
and
The juror interviews
demonstrated that Mr. Samelton was refusing to follow the
Court’s jury instructions, infecting the jury deliberations
with racial slurs, calling female jurors “bitches” and other
pejorative terms, using physical violence or threats against
other jurors, and engaging in other gravely inappropriate
conduct.
To be sure, Mr. Samelton generally denied that he
engaged in misconduct, but the Court, after considering all
of the juror testimony, determined that it was absolutely
necessary
to
excuse
Mr.
Samelton
to
prevent
him
from
physically harming the other jurors.
The Court acknowledges Bostick’s argument that, instead
of excusing Mr. Samelton, the Court should have given an
Allen charge.
The Court has given Allen charges in several
trials, and the Court realizes the value of such a charge.
16
However, the Court found that removal of Mr. Samelton was
required to ensure the physical safety of the jurors.
The
Court did not remove Mr. Samelton because he was a “holdout
juror.”
If the Court believed that Mr. Samelton could
continue
deliberating
without
physically
harming
and
intimidating the other jurors, the Court would have given
the Allen charge and allowed the deliberations to continue.
And, if a hung jury were the result, the Court would have
accepted that result and declared a mistrial.
However,
there is a vast difference between a holdout juror and a
juror who engages in misconduct such that the other jurors
are in fear for their physical safety.
All in all, the
Court was faced with a very difficult situation, and only
excused Mr. Samelton as a last resort because the Court
believed that he was going to physically harm other jurors.
After
Mr.
Samelton
was
excused,
the
jurors
unanimous verdict in favor of State Farm.
reached
a
Bostick has not
demonstrated that “juror issues” warrant a new trial.
B.
The Weight of the Evidence
Bostick argues that “[i]n finding completely for the
Defendant and awarding zero damages to Plaintiff, the jury
disregarded
the
medical
testimony
17
of
Dr.
E.
Michael
Williams, Dr. Kimberly Tobon, Dr. Gregory T. Flynn, Dr.
Thomas J. Boland, Dr. Joseph Chiaramonte, Dr. Randall R.
Benson, Dr. Christopher N. Leber, and Dr. Steven Knezevich,
resulting in a miscarriage of justice.” (Doc. # 163 at 4).
In
considering
Bostick’s
contentions
regarding
the
weight of the evidence presented at trial, this Court is
mindful of the Eleventh Circuit’s warning that “[t]he trial
judge’s discretion to set aside a jury verdict based on the
great weight of the evidence is very narrow” and is limited
to “protect[ing] against manifest injustice in the jury’s
verdict.” Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556
(11th Cir. 1984).
The Eleventh Circuit explained in Lipphardt:
A judge should grant a new trial when the verdict
is against the clear weight of the evidence or
will result in a miscarriage of justice, even
though there may be substantial evidence which
would prevent the direction of a verdict. . . . .
Because it is critical that a judge does not
merely substitute h[er] judgment for that of the
jury, new trials should not be granted on
evidentiary grounds unless, at a minimum, the
verdict is against the great--not merely the
greater--weight of the evidence.
267 F.3d at 1186 (internal citations omitted).
18
In deciding whether to grant a new trial, the Court is
also guided by the holding in Tennant v. Peoria & Pekin
Union Ry., 321 U.S. 29, 35 (1944) that:
It is the jury, not the court, which is the factfinding body.
It weighs the contradictory
evidence and inferences, judges the credibility of
witnesses, receives expert instructions, and draws
the ultimate conclusion as to the facts. The very
essence of its function is to select from among
conflicting inferences and conclusions that which
it considers most reasonable.
That conclusion,
whether it relates to negligence, causation or any
other factual matter, cannot be ignored.
Courts
are not free to reweigh the evidence and set aside
the jury verdict merely because the jury could
have drawn different inferences or conclusions or
because judges feel that other results are more
reasonable.
Id.
Stated another way, “[t]he district court should not
substitute h[er] own credibility choices and inferences for
the reasonable credibility choices and inferences made by
the jury.” Walls v. Button Gwinnett Bancorp., 1 F.3d 1198,
1201 (11th Cir. 1993).
However, an order reweighing the
evidence is precisely what Bostick requests by her present
Motion.
Both sides secured medical testimony and that testimony
was in conflict.
The jury was entitled to accept or reject
any portion of that evidence and was entitled to follow or
discredit any expert’s opinion.
19
Just as Bostick has pointed
to evidence that she believes would support a verdict in her
favor, State Farm has highlighted evidence favorable to it
and tending to show that Bostick did not suffer injuries as
a result of the car accident.
For example, State Farm points out that the jury heard
testimony from Alsup about Bostick’s non-injured state at
the scene of the car accident; from Bostick herself that she
is currently a tenured accounting professor and is teaching
the
courses
that
she
was
hired
to
teach;
from
Dr.
Fijalkowski that there was not sufficient force created in
the accident to create the injury that Bostick claims to
have sustained; from Dr. Castellano that Bostick did not
sustain any temporomandibular joint injuries as a result of
the accident; from Dr. Foley that there was no radiographic
evidence of injury to Bostick; and from Dr. Vanderploeg that
Bostick
had
no
issues
indicative
of
a
traumatic
brain
injury.
As explained in Mims v. United States, 375 F.2d 135,
140 (5th Cir. 1967), “one of the most generally accepted
rules in all jurisprudence, state and federal, civil and
criminal, is that the question of credibility and weight of
expert opinion testimony are for the trier of facts, and
20
that such testimony is ordinarily not conclusive even where
it is uncontradicted.” (emphasis in original).
The Court’s
instructions to the jury reflect that the jurors were not
required to accept the opinion of any witness, including
expert
witnesses:
“When
scientific,
technical
or
other
specialized knowledge might be helpful, a person who has
special training or experience in that field is allowed to
state an opinion about the matter.
But that doesn’t mean
you must accept the witness’s opinion.
As with any other
witness’s testimony, you must decide for yourself whether to
rely upon the opinion.” (Doc. # 141 at 6)(emphasis added).
Thus, the jury was not required to credit the testimony of
Bostick’s experts, and the jury’s decision not to credit
such testimony is not a proper basis for granting a new
trial.
In
addition,
the
Court
finds
that
State
Farm
presented substantial evidence demonstrating that Bostick’s
injuries,
if
any,
were
not
caused
by
the
subject
car
accident, evidence that the jury was entitled to credit.
The Motion for a New Trial is denied to the extent it is
based on the weight of the evidence.
The Court also rejects Bostick’s related argument that
she should have at least been awarded her medical expenses.
21
Bostick at no time moved for a judgment as a matter of law
that she was entitled to medical expenses.
not
request
another
a
jury
specific
instruction
charge
on
And, Bostick did
nominal
regarding
damages,
medical
or
expenses.
Furthermore, Bostick waived any argument of an inconsistent
verdict because she failed to timely object to the verdict.
This was an “all or nothing” verdict form.
exactly what it was instructed to do.
The jury did
The first question
asked if “the negligence on the part of non-party, Blair
Alsup, was a legal cause of loss, injury, or damage to
Plaintiff, Dr. Bostick?”
The verdict form then instructed
the jury that if their answer to that question is “no,” then
their verdict was for State Farm and that they should not
answer any other questions.
Bostick agreed to this verdict
form and waived any challenge to the verdict form.
C.
Incomplete Exhibits
Bostick also contends that a new trial is warranted
because “it appears as though a complete set of exhibits did
not go back before the jury for the panel to consider in
reaching a verdict.” (Doc. # 163 at 5).
Specifically,
Bostick claims that Dr. Chiaramonte’s medical records did
not make it back to the jury room.
22
The Court agrees with
State Farm that “it was Plaintiff’s obligation to ensure
that
all
of
her
exhibits
were
evidence.” (Doc. # 165 at 8).
moved
and
accepted
into
The Court certainly gave
Bostick the opportunity to review all of the exhibits and
evidence before it was given to the jury and to ensure that
it was complete, accurate, and in accord with the Court’s
evidentiary rulings.
Bostick’s counsel did in fact review
the exhibits and there was no indication that any files were
incomplete.
The Court denies the Motion for a New Trial
based on the supposed incomplete nature of the jury’s access
to Dr. Chiaramonte’s records.
D.
Jury Confusion over Verdict Form and Instructions
Bostick requests a new trial based on the argument that
the jury was confused by the verdict form and the jury
instructions.
The Court roundly rejects her arguments about
the verdict form.
The verdict form was simple, straight
forward, and there is no indication that the jury struggled
with the form.
And, importantly, the verdict form read and
provided to the jury was jointly submitted and approved by
the parties, and Bostick did not object to the verdict form
at any point before the trial, during the multiple charge
23
conferences, or before the verdict form was sent to the
jury.
As to the jury instructions, the Eleventh Circuit has
noted:
So long as the instructions accurately reflect the
law, the trial judge is given wide discretion as
to the style and wording employed in the
instructions.
On appeal, we examine whether the
jury charges, considered as a whole, sufficiently
instructed the jury so that the jurors understood
the issues and were not misled.
Under this
standard, if the jury charge as a whole correctly
instructs the jury, even if it is technically
imperfect, no reversible error has been committed.
We must reverse an erroneous instruction, however,
if we are left with a substantial and ineradicable
doubt as to whether the jury was properly guided
in its deliberations.
Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1543 (11th Cir.
1996)(internal citations and quotations omitted).
Here,
Bostick
argues
that
there
was
confusion
over
“negligence” and claims that the confusion warrants a trial
because “negligence was not at issue at trial.” (Doc. # 163
at 6).
Jury instruction six -– the “Summary of Claims”
states: “Dr. Bostick claims that Blair Alsup was negligent
in the operation of her motor vehicle, which caused her
harm.
State Farm agrees Blair Alsup was at fault for the
accident, but is challenging the cause, nature, and extent
24
of Dr. Bostick’s losses, injuries, or damages.” (Doc. # 141
at 7).
This instruction is clear, concise, direct, and is not
misleading.
It was what Bostick requested.
During the
October 26, 2017, charge conference, the Court considered
defining negligence in the jury instructions, but Bostick
opposed elaborating on the issue of negligence or defining
negligence.
The Court notes that State Farm’s proposed jury
instructions (Doc. # 85 at 16) contained a discussion of
negligence and the legal definition of negligence, but the
Court omitted that instruction based on Bostick’s arguments.
Now, in hindsight, Bostick regrets her arguments.
It is too
late, and the Court determines that the instructions given
were an accurate account of the law and do not warrant a new
trial.
E.
Bostick’s Treating Physicians
Bostick complains that the Court unfairly limited some
of
her
treating
causation.
physicians
from
testifying
regarding
However, and as explained in detail in the
Court’s prior ruling (Doc. # 74), the Court limited the
testimony of some of Bostick’s physicians because Bostick
violated the Federal Rules of Civil Procedure. She did not
25
timely and properly disclose her treating physicians if she
desired for them to serve as expert witnesses.
Bostick
violated
26(a)(2)(C).
Federal
Rule
of
Civil
Plainly,
Procedure
As a consequence, the Court allowed certain
treating physicians to testify, but limited the testimony to
observations made during Bostick’s treatment. (Doc. # 74).
This is not grounds for a new trial.
F.
Improper Defense Arguments
Bostick
also
asserts
that
defense
counsel
made
“improper arguments” such that a new trial is warranted.
Without
specifying
exactly
what
improper
arguments
were
made, Bostick insinuates that defense counsel improperly
argued to the jury that Bostick was mentally ill.
The
Court
one
gives
this
assertion
short
shrift.
More
than
witness offered testimony concerning Bostick’s mental state.
Her own husband testified about Bostick’s suicide attempt
and her child testified that she was on antidepressant “Rob
pills”
because
Bostick’s
mental
defense team.
on
the
of
her
son
illness
Robert’s
was
not
same-sex
a
preference.
fabrication
of
the
Counsel for State Farm made arguments based
evidence
in
the
record,
26
and
there
was
nothing
improper about the manner in which counsel defended State
Farm in this action.
G.
Dr. Fijalowski
State Farm retained Dr. Fijalkowski, a biomechanical
and biomedical engineer, as an expert witness and properly
disclosed his identity to Bostick on March 10, 2017. (Doc. #
60 at 1). Dr. Fijalkowski was retained to assist the jury in
understanding
the
mechanics
and
biomechanics
of
the
car
accident, including the forces involved, levels of force
reasonably necessary to result in certain injuries, and the
likelihood of injury to Bostick.
Bostick filed a Motion in Liminie arguing that Dr.
Fijalkowski’s methodology is flawed because Dr. Fijalkowski
failed to take into consideration Bostick’s idiosyncratic
features, among other arguments. (Doc. # 60).
denied the Motion to Strike. (Doc. # 76).
The Court
Bostick now
claims that a new trial is warranted because: “Despite his
lack of qualifications and specialization, Dr. Fijalkowski
testified that the forces experienced by Plaintiff in the
auto accident were insufficient to cause any of the injuries
she suffered. Permitting this witness to offer testimony
that the forces experienced by Plaintiff were insufficient
27
to cause her injury was in error because that testimony
speaks directly to medical causation, an opinion the witness
is not qualified to render.” (Doc. # 163 at 8).
But,
it
is
biomechanical
well-established
engineers
-
like
in
Dr.
the
case
law
that
-
“are
Fijalkowski
qualified to testify about how forces may affect or injure
an individual.” Berner v. Carnival Corp., 632 F. Supp. 2d
1208, 1213 (S.D. Fla. 2009).
stated
his
agreement
biomechanical
Interestingly, Dr. Fijalkowski
with
engineering
Bostick
causation
that
are
medical
two
and
distinct
concepts and that he knew that his role was to determine
whether
or
not
Bostick’s
injuries
were
related
to
the
accident based on his biomedical and biomechanical analysis.
(Doc. # 165-3 at 72-75).
Dr. Fijalkowski’s analysis was
consistent with the Court’s prior ruling in the context of a
Daubert
order.
medical
causation
warranted
based
He
did
not
testimony,
on
any
cross
and
aspect
testimony.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
28
the
a
of
line
new
Dr.
into
trial
giving
is
not
Fijalkowski’s
Plaintiff Lisa N. Bostick’s Motion for New Trial (Doc.
# 163) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida this
20th day of March, 2018.
29
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?